author: POPE, Justice.

text:
    CORPUS CHRISTI BANK AND TRUST, Petitioner, v. Chester SMITH et al., Respondents.
    No. B-4888.
    Supreme Court of Texas.
    June 4, 1975.
    Rehearing Denied July 23, 1975.

      Wood, Boykin & Wolter, Mark W. Owen, Corpus Christi, for petitioner.
    Wood, Burney, Nesbitt & Ryan, Shelby A. Jordan, Luther & Karchmer, Max J. Luther, III, Milton W. Walton, Meredith & Donnell, Finley Edmonds, Sorrell, Anderson & Sorrell, William R. Anderson, Jr., Harold Alberts, James. F. McKibben, Jr., Asst. City Atty., Corpus Christi, for respondents.
   POPE, Justice.

Corpus Christi Bank and Trust contends that its security interest in certain funds retained by the City of Corpus Christi under a construction contract should prevail over the claims of certain materialmen and subcontractors who failed to perfect their rights against a payment bond given under Article 5160. The trial court, sitting without a jury, rendered judgment for the ma-terialmen and subcontractors giving them judgment against the original contractor and also for the retained funds. The court of civil appeals affirmed. 512 S.W.2d 761. We reverse that part of the judgment which denied the Bank’s secured claim to the retained funds and render judgment that the Bank recover the funds.

On March 12, 1971, Manson Industries entered into a contract with the City of Corpus Christi to repair damages to the municipal airport which were caused by Hurricane Celia. The contract required Manson to provide performance and payment bonds in the sum of $22,250.00, the amount of the contract price. Manson provided those bonds pursuant to the contract and Article 5160, Tex.Rev.Civ.Stat.Ann. (1971). The project was financed through the Bank, which advanced funds to Manson Industries as needed. The advancements were secured by agreement by Manson’s accounts receivable then owned or thereafter acquired. Similar security agreements were entered into on February 26,1971, and July 27, 1971. The Bank filed financing statements with the Secretary of State on December 31, 1970 and January 15, 1971. Manson began the repair work in early April, 1971, and in November of that year, the city engineer certified the work as completed in substantial compliance with the contract.

Several individuals and firms came forward with claims for unpaid materials and labor. They were Chester Smith, Armstrong Lumber Co., Thurman-Fondren Glass Co., Inc., A.B.C. Hardware and Supply Co., Baker Roofing and Sheet Metal Co., and Heath Floor Co., Inc. Chester Smith filed suit against the contractor, Manson Industries, the Bank as Manson’s assignee of the contract rights and accounts receivable, and the City of Corpus Christi. The City tendered into the court the sum of $13,221.10 which it had retained and inter-plead the other parties who asserted claims to the funds. The City was then dismissed and is not a party to the suit. Since A.B.C. Hardware and Supply Co. gave notice of its claim as required by Article 5160, that company recovered against the surety on the payment bond by force of its perfected claim and it is no longer in the case.

The Bank claims that it has prior claim upon the remaining funds because it perfected its security interest. The material-men and subcontractors say that they own the funds because they are third-party beneficiaries under the contract which the City made with Manson. They do not and could not assert any rights under the payment bond since they did not comply with Article 5160. The controlling question presented in this case is whether the following provision of the contract between the City of Corpus Christi and Manson Industries as the original contractor made the materialmen and subcontractors third-party beneficiaries under the contract:

Whenever the improvement provided for by the contract shall have been completely performed on the part of the Contractor as evidenced by the Engineer in the Certificate of Final Inspection, a final estimate showing the value of the work will be prepared by the Engineer as soon as the necessary measurements and computations can be made. All prior estimates upon which payments have been made are subject to necessary corrections or revisions in the final payment. The amount of this final estimate, less any sums that have been deducted or retained under the provisions of the contract, will be paid the Contractor within thirty (30) days after final acceptance provided the Contractor has furnished to the City satisfactory evidence that all sums of money due for any labor, materials, apparatus, fixtures, or machinery furnished for and used in the prosecution of the work have been paid; or that the person or persons to whom the sum may respectively be due have consented to such final payment. . (Emphasis added.)

The intention of the contracting parties is of controlling significance to a determination that a third party may enforce the contract provision. Banker v. Breaux, 133 Tex. 183, 128 S.W.2d 23 (1939). In deriving intent, we must begin with the presumption that parties contract for themselves, and a contract will not be construed as having been made for the benefit of third parties unless it clearly appears that such was the intention of the contracting parties. Employers’ Liability Assur. Corp. v. Trane Co., 139 Tex. 388, 163 S.W.2d 398 (1942); Citizens Nat. Bk. v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003 (1941); National Bank v. Gulf, C. & S. F. Ry. Co., 95 Tex. 176, 66 S.W. 203 (1902); Republic Nat. Bank v. National Bankers Life Ins. Co., 427 S.W .2d 76 (Tex.Civ.App.1968, writ ref’d n.r.e.); 17 Am.Jur.2d, Contracts § 304 (1964).

The assertion of rights as third-party beneficiaries to funds retained under construction contracts has often been the source of claims by materialmen and laborers. This court has consistently denied the claims. Citizens Nat. Bk. v. Texas & P. Ry. Co., supra; Tezel & Cotter v. Roark, 301 S.W.2d 179 (Tex.Civ.App.1957, writ ref’d); Scarborough v. Victoria Bank & Trust Co., 250 S.W.2d 918 (Tex.Civ.App.1952, writ ref’d); C. A. Dunham Co. v. McKee, 57 S.W .2d 1132 (Tex.Civ.App.1933, writ ref’d); see also Barfield v. Henderson, 471 S.W .2d 633 (Tex.Civ.App.1971, writ ref’d n.r.e.); Henderson v. Couch, 274 S.W.2d 844 (Tex.Civ.App.1955, no writ); Houston Shell & Concrete Co. v. Minella, 269 S.W.2d 953 (Tex.Civ.App.1954, writ ref’d n.r.e.).

In the first case, above cited, Texas & Pacific Railway Company contracted with Locke, a general contractor, for grading and culvert work. Locke financed the project with Citizens National Bank, who secured the loan by taking an assignment of funds due Locke under the contract with Railway. The owner, Railway, also retained fifteen percent of the funds due under the contract, pursuant to a contract provision nearly identical to that involved in this case. After completion of the work, the bank sued to recover the funds by virtue of its assignment contract with Locke, and the materialmen intervened claiming to be third-party beneficiaries of the contract between Locke and Railway. This court held that the retainage provision in the contract was intended to benefit Railway to protect it against lien claims on its property, and was not intended to benefit the third-party materialmen.

A similar Texas case is Scarborough v. Victoria Bank & Trust Co., 250 S.W.2d 918 (Tex.Civ.App.1952, writ ref’d). The facts are very similar to the instant case, except that Scarborough involved a private owner. The owner, however, required the general contractor to execute a performance bond in order to insulate the owner’s property from liens. In spite of the fact that the owner’s property was adequately protected, it was held that the retainage provision was not a contract for the benefit of material-men.

The materialmen and subcontractors here forcibly argue and the courts below have held that all of the prior decisions concerning claims to retainage as third-party beneficiaries are distinguishable since no lien can be enforced against the property of a municipality and, unless the retainage provision was meant to benefit them, it is an idle provision which is meaningless apart from such an intent.

A municipality has a number of reasons for including the retainage provision in its contract with the contractor. The provision insures the diligent prosecution of the work by affording an incentive to the contractor to finish his work. It affords protection and indemnity to the public agency in the event the contractor abandons his work. It supplies salvage funds for the contractor’s surety in the event it makes good on defaults for which it is bound. 64 Am.Jur.2d, Public Works and Contracts § 95 (1972); Employers’ Cas. Co. v. Rockwall County, 120 Tex. 441, 35 S.W.2d 690 (1931); Trinity Universal Ins. Co. v. Bellmead State Bank, 396 S.W.2d 163 (Tex.Civ.App.1965, writ ref’d n.r.e.); Aetna Cas. & Sur. Co. v. Robertson Lumber Co., 3 S.W.2d 895 (Tex.Civ.App.1928, no writ).

A part of the contract between the City and contractor was the requirement for a payment bond in conformity with Article 5160. The City prescribed the form of the payment bond including the words that the contractor and surety “are held and firmly bound unto the City of Corpus Christi . and unto all persons, firms, and corporations who may furnish materials for or perform labor upon the buildings, structures, or improvements referred to in the attached contract . . . to be paid in Nueces County, Texas, for the payment of which sum well and truly be made, we bind ourselves, our heirs, executors, administrators and successors, jointly and severally . . ”

The City, as appears from both the contract provision and the provisions of the prescribed and required payment bond, was interested in protecting the materialmen and subcontractors, and it clearly provided protection in the form of a bond which also conferred upon them the right to recover under the bond. That plan was more consistent with an intent on the part of the City to afford protection to the material-men and subcontractors who complied with Article 5160 by giving timely notice than to contractually obligate the City. The requirement for the Article 5160 performance and payment bonds shows an intent to insulate itself contractually by the substitution of a source for payment. Other provisions of the contract between the City and Manson, the contractor, further show the absence of an intent to benefit materialmen and subcontractors otherwise. One provision is: “ . . . the City will not recognize any subcontractor on the work.”

In our opinion, it appears that the City intended to protect the materialmen and subcontractors by its contractual requirement for an Article 5160 payment bond, but it does not “clearly appear,” as required by Citizens that the City intended to make them claimants against the City on the contract. Since they did not perfect their claims through Article 5160, their claims are subordinate to the secured claim of the Bank.

The court of civil appeals cited Cove Irr. Dist. v. American Surety Co., 42 F.2d 957 (9th Cir. 1930) and General Electric Supply Co. v. Epco Constructors, Inc., 332 F.Supp. 112 (S.D.Tex.1971) in support of its holding that the materialmen and laborers were third-party beneficiaries of the contract between the City and the general contractor. The materialmen and laborers rely also upon Pearlman v. Reliance Ins. Co., 371 U.S. 132, 83 S.Ct. 232, 9 L.Ed.2d 190 (1962) and Avco Delta Corporation Canada Ltd. v. United States, 484 F.2d 692 (7th Cir. 1973). In Cove, the public agency required its contractor to furnish a payment bond and to indemnify the public agency against any loss or damage. The laborers and material-men in that case proceeded against the surety on the contractor’s bond, and quite correctly the court ruled that the claimants could recover, for that was the purpose intended by the public agency’s requirement for a payment bond. General Electric is also distinguishable from the instant case because the materialman there had perfected his lien under Article 5160. Pearlman involved a priority contest for retained funds between the general contractor’s trustee in bankruptcy and the surety on a payment bond. Avco, however, is essentially in point with the present case. The Court of Appeals for the Seventh Circuit, applying its interpretation of Illinois law, held that a retained fund was created for the benefit of the subcontractors, laborers and materialmen. The court found that the intent to benefit third parties was evident from the contract. We do not find sufficient evidence of such intent in this case.

The materialmen and subcontractors also argue that the Bank does not have a superi- or claim to the retained funds since it does not have a security interest in them. Although the Bank executed security agreements describing the collateral, and gave value therefor, the respondents claim that the debtor, Manson, has no rights in the collateral, and consequently the Bank does not have a proper security interest. Tex. Bus. & Comm.Code Ann. § 9.203 (Supp.1974). The argument is that Manson had no rights in the collateral, the retained funds, because its contract with the City conditioned payment of the retainage upon Manson first paying all subcontractors and materialmen.

The contention that payment by the contractor of all claims of subcontractors, laborers and materialmen, under contract provisions such as involved here, is a necessary condition to the contractor’s right to the retainage has been expressly rejected by this court. Citizens National Bank v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003 (1941); Scarborough v. Victoria Bank & Trust Co., 250 S.W.2d 918, 923 (Tex.Civ.App.1952, writ ref’d); Tezel & Cotter v. Roark, 301 S.W.2d 179 (Tex.Civ.App. 1957, writ ref’d). Since Manson did have rights in the collateral, it follows that the Bank’s security agreements were sufficient to give it a security interest in the retained funds, which is superior to that of general creditors. Tex.Bus. & Comm.Code Ann. § 9.201 (Supp.1974).

We affirm that part of the judgment below which awarded judgment against Lewis Manson d/b/a Manson Industries. We reverse that part of the judgment which awarded recovery to the materialmen and subcontractors for their claims to the retained funds. We render judgment that Corpus Christi Bank & Trust recover the funds interpleaded. Costs are adjudged against the respondents.

      . Upon completion of the work herein provided, the Chief Engineer shall have an inspection made and if the work is complete and satisfactory, a final statement of all the work done and moneys due the Contractor shall be made by the Railway Engineer, whereupon, after the Contractor has furnished written evidence satisfactory to the Railway, that he has paid in full all amounts that may be due by him to any and all persons who may have performed labor or furnished materials or supplies to the Contractor in connection with the work to be done hereunder, the Railway shall pay to the Contractor the full amount earned under this contract, less payments previously made, as soon as final statement can be audited and passed for voucher in the course of the Railway’s business.


source: Caselaw Access Project

author: DANIEL, Justice.

license: Public Domain

text:
    HARRIS COUNTY FLOOD CONTROL DISTRICT, Petitioner, v. Frank MIHELICH, Respondent.
    No. B-4854.
    Supreme Court of Texas.
    July 9, 1975.

      Joe Resweber, County Atty., Anthony D. Sheppard, Asst. County Atty., Houston, for petitioner.
    Kronzer, Abraham & Watkins, Nick C. Nichols and W. James Kronzer, Houston, for respondent.
   DANIEL, Justice.

The questions here are whether a flood control district is liable for damages in a tort action for personal injuries proximately caused by the negligence of its employee, and if so, whether payment of a judgment therefor may be required from maintenance taxes levied by the district. Plaintiff, Frank Mihelich, sustained personal injuries when a Harris County Flood Control District employee, in the course and scope of his employment, negligently drove one of the District’s trucks into plaintiff’s ear. The trial court, based upon jury findings, rendered judgment for plaintiff in the sum of approximately $41,000. The court of civil appeals affirmed. 512 S.W.2d 393. For reasons other than those stated by the court of civil appeals, we affirm.

The District’s single point in the court of civil appeals and in this Court is that the Texas Tort Claims Act violates Article XVI, Section 59, of the Texas Constitution, Vernon’s Ann.St., and is void insofar as the Flood Control District is concerned. Section 59 of Article XVI is the provision of our Constitution adopted in 1917 to encourage conservation and development of natural resources through formation of conservation and reclamation districts. The parties agree that the Harris County Flood Control District was created in accordance with this constitutional authority and that the District is subject to the terms thereof. Subsection (c) of Section 59 of Article XVI, provides:

“(c) The Legislature shall authorize all such indebtedness as may be necessary to provide all improvements and the maintenance thereof requisite to the achievement of the purposes of this amendment, and all such indebtedness may be evidenced by bonds of such conservation and reclamation districts, to be issued under such regulations as may be prescribed by law and shall also, authorize the levy and collection within such districts of all such taxes, equitably distributed, as may be necessary for the payment of the interest and the creation of a sinking fund for the payment of such bonds; and also for the maintenance of such districts and improvements, and such indebtedness' shall be a lien upon the property assessed for the payment thereof; provided the Legislature shall not authorize the issuance of any bonds or provide for any indebtedness against any reclamation district unless such proposition shall first be submitted to the qualified property tax-paying voters of such district and the proposition adopted.” [Emphasis added.]

Districts formed in accordance with Section 59 of Article XVI have been recognized to be governmental agencies and bodies politic and corporate, “governed by the law applicable to counties,” with the same immunities from tort actions as were enjoyed by the State and its counties prior to enactment of the Tort Claims Act of 1969. Bennett v. Brown County Water Improvement District No. 1,153 Tex. 599, 272 S.W.2d 498 (1954); Brown County Water Improvement District No. 1 v. Austin Mill & Grain Co., 135 Tex. 140, 138 S.W.2d 523 (1940). For a general discussion of governmental immunity and the terms of the Texas Tort Claims Act, see Greenhill and Murto, Governmental Immunity, 49 Tex.L.Rev. (1971) 462, and Bickley, Local Government, 24 SW.L.J. (1970) 199-202.

The Texas Tort Claims Act, Article 6252-19, effective January 1, 1970, provided a limited waiver of former sovereign immunities of the State and all of its agencies and units of government, specifically including conservation and reclamation districts. After defining “officer, agent, or employee” as meaning “every person who is in the paid service of any unit of government by competent authority . . . whether elective or appointive . . . ,” the Act provides in part as follows:

“Sec. 3. Each unit of government in the state shall be liable for money damages for personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment, other than motor-driven equipment used in connection with the operation of floodgates or water release equipment by river authorities created under the laws of this state, under circumstances where such officer or employee would be personally liable to the claimant in accordance with the law of this state, or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state. Such liability is subject to the exceptions contained herein, and it shall not extend to punitive or exemplary damages. Liability hereunder shall be limited to $100,000 per person and $300,000 for any single occurrence for bodily injury or death.
“Sec. 4. To the extent of such liability created by Section 3, immunity of the sovereign to suit, as heretofore recognized and practiced in the State of Texas with reference to units of government, is hereby expressly waived and abolished, and permission is hereby granted by the Legislature to all claimants to bring suit against the State of Texas, or any and all other units of government covered by this Act, for all claims arising hereunder.
“Sec. 9. . all units of government are hereby expressly authorized to purchase policies of insurance providing protection for such units of government, their officers, agents and employees against claims brought under the provisions of this Act, .
“Sec. 11. Judgments recovered against units of government pursuant to the provisions of this Act shall be enforced in the same manner and to the same extent as judgments are now enforced against such units of government under the statutes and law of Texas; and no additional methods of collecting judgments are granted by this Act. . . . It is expressly provided, however, that judgments under this Act becoming final during any fiscal year need not be paid by such unit of government until the following fiscal year except to the extent that they may be payable by an insurance carrier. For the payment of any final judgment obtained under the provisions of this Act, a unit of government not fully covered by liability insurance is hereby authorized to levy an ad valorem tax, the rate of which, if found by the unit of government to be necessary, may exceed any legal limit otherwise applicable except as may be imposed by the Constitution of the State of Texas. In the event that judgments arising under the provisions of this Act become final against a unit of government in any one fiscal year in an aggregate amount, exclusive of insurance coverage, if any, in excess of one percent of the budgeted tax funds, exclusive of general obligation debt service requirements, of such unit of government for such fiscal year, then such unit of government may pay such judgments over a period of not more than five years in equal annual installments and shall pay interest on the unpaid balance at the rate provided by law.”

The District contends that the Tort Claims Act is void in its entirety as to this District, because it violates that part of Section 59, Article XVI of the Texas Constitution which prohibits the Legislature from providing for any indebtedness against a reclamation district unless such proposition shall first be submitted and adopted by the voters of the district. We think the Act can be reconciled with the Constitution. Indeed, the District’s arguments are relevant only to Section 11, which concerns the collection of judgments. Even if the collecting and taxing provisions are unconstitutional when applied to a conservation and reclamation district whose voters have not approved a maintenance and operations tax, it would not affect the remainder of the Act or forego its application to those districts whose voters have approved a tax from which such judgments can be paid. Governmental immunity from personal injury suits is not provided by the Texas Constitution; it is court-made law; and we hold that the Legislature acted within its constitutional authority in providing for the limited waiver of immunity as set forth in Article 6252-19.

This is not to say that the portion of Section 11 of the Act relating to collection of judgments and levying of taxes is not violative of the final proviso of Section 59(c) of Article XVI of the Texas Constitution, if applied to a conservation and recia-mation district in which the voters have not adopted a maintenance tax. For instance, if the Harris County Flood Control District had not levied a maintenance tax after approval by its voters, we would agree that the District could not be ordered by the Legislature or the courts to levy a. tax for the payment of the judgment in this case. Under such circumstances, it is doubtful that there would have been occasion for plaintiff’s injuries or for the Tort Claims Act to apply. As to personal injuries, the Act is limited to damages proximately caused by negligent or wrongful acts or omissions of a person “who is in the paid service of any unit of government . . .” If a district is not engaged in its own construction work or operation and maintenance activities through paid officers or employees, it is difficult to perceive how it might be responsible for personal injuries to anyone under the Tort Claims Act.

These were not the circumstances of the present case. On the contrary, the Harris County Flood Control District was engaged in day-to-day maintenance and operations which involved paid employees, trucks, and other equipment, all or part of which was being financed by a maintenance tax approved by the voters of the District. Therefore, the question here is whether judgments obtained in accordance with the Texas Tort Claims Act are payable from maintenance taxes levied by the District in accordance with Article XVI, Section 59 of the Texas Constitution. We hold that they are. In this holding, we find support in the briefs of both parties that judgments under the Tort Claims Act are incidental to and properly payable out of maintenance funds. Plaintiff strongly contends that his injuries, cause of action, and judgment grew out of the maintenance operations of the District; that they were incidental thereto; and that they can be properly budgeted and paid from maintenance taxes levied with voter approval either before or after the date of the accident or the date of the judgment. Likewise, the District, in support of its argument that the Legislature is powerless to authorize a “tort claims tax” against it without approval of its voters, argues that “tort debts and tort taxes” are part of either “improvements or maintenance,” stating further in its brief: “Manifestly, the meaning of the words ‘improvements and maintenance’ are so broad that the words include all that these districts may do, and all restrictions upon taxation and the incursion of debts for improvements and maintenance must stand fast.”

The District, and others similarly situated, are generally authorized to levy taxes for only two purposes: (1) construction and (2) maintenance. All of the statutes applying to such districts prior to enactment of the present Water Code in 1971 treated the authority for maintenance taxes in a manner broadly enough to cover not only maintenance and operations but any expenses or debts incidental thereto. In Brown Co. Water Improvement District No. 1 v. Austin Mill & Grain Co., supra, this Court, with reference to Section 59 of Article XVI, said:

“Looking at said constitutional provision more in detail we find that Subdivision (a) empowers the Legislature to authorize all such indebtedness as may be necessary to provide all improvements and the maintenance thereof. Manifestly, the ‘indebtedness’ which, under this provision, the Legislature may authorize, means all enforceable obligations which may be incurred, regardless of the conditions of their payment or the time in which they may be payable. In other words, ‘indebtedness,’ as here used, has no technical or special meaning, but obviously has a broad significance as covering all debts or obligations created for improvements or maintenance.” [Emphasis added.]

The same broad use of the term “maintenance” was carried forward in the Water Code of 1971. For instance, § 51.352 of the Texas Water Code, applicable to water control and improvement districts, specifically provides that “[t]he maintenance fund shall be used to pay all expenses of maintenance, repairs, and operation of the district except the expenses of assessing and collecting taxes for the interest and sinking fund. . the district may pay from the maintenance fund other expenses for which the payment is not provided in this chapter.” See also § 51.360 which authorizes, subject to voter approval, “a tax for maintenance purposes, including funds for planning, maintenance, repairing, and operating all necessary plants, properties, facilities and improvements of the district and for paying costs of proper services, engineering and legal fees . . . .”

We hold that the negligence of the District’s employee in operating its truck while acting within the scope of his employment was incidental to the maintenance activities and operations of the District. The plaintiff is entitled to collect, and the District is authorized to pay, the judgment from maintenance funds derived by the District from any source, including those heretofore or hereafter obtained from any maintenance tax which received voter approval. It follows that the District is entitled to make payments in subsequent fiscal years as provided in Section 11 of Article 6252-19, and that it is authorized in the future to purchase liability insurance from maintenance funds as provided in Section 9 of said Act.

For the reasons stated above, the judgment of the court of civil appeals is affirmed.

      . All statutory references are to Vernon’s Ann.Civil Statutes, unless otherwise noted.

      . For statutes applying to various conservation and reclamation districts prior to 1971, see Articles 7622-8263h. For provisions of the present statutes, see V.T.C.A., Water Code § 1.001 et seq., Acts 1971, 61st Leg., Ch. 58.


author: GREEN, Commissioner. DOUGLAS, Judge ROBERTS, Judge

text:
    Marty Houston LOVELL, Appellant, v. The STATE of Texas, Appellee.
    No. 49963.
    Court of Criminal Appeals of Texas.
    July 23, 1975.

      Daniel D. Sullivan, Andrews, for appellant.
    Ed Paynter, Dist. Atty. and Patricia A. Elliott, Asst. Dist. Atty., Abilene, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

This is an appeal from a conviction for injury to a child. The punishment, assessed by the jury, is 14 years.

The sufficiency of the evidence is not challenged.

In his first ground of error, appellant contends the trial court committed reversible error in admitting into evidence his written confession. We agree.

The record reflects that on February 10, 1974, the date the confession was made, appellant was a child, aged 16 years. On such date, Officer Jim W. Johnson of the Abilene Police Department received a call from a nurse at Hendrick Memorial Hospital. As a result of the call Officer Johnson went to the hospital where he spoke with Dr. Herman Schaffer, appellant and appellant’s wife, then viewed the battered baby. Officer Johnson gave appellant his Miranda warnings at the hospital, and drove him directly to the police station where he warned him again.

At the police station, appellant, without the aid, advice or presence of counsel, signed a “waiver” of his rights and made a statement which was reduced to writing and introduced at the trial as State’s Exhibit # 6.

During the trial and before allowing the statement into evidence, the trial court conducted a hearing, outside the presence of the jury, to determine the issue of the admissibility of appellant’s confession. The evidence at the hearing reflected, and the court found, that appellant was duly advised of his constitutional and statutory rights, including the right to be represented by counsel, and that he knowingly and voluntarily waived those rights and made the confession. No lawyer was present representing appellant, and at that time he was not represented by counsel, retained or appointed.

At the trial appellant objected to the admission of the confession in evidence on the ground that he was a child under seventeen years of age when he gave the confession, and was not represented by counsel as required by Title 3 of the Family Code, and that, consequently, his waiver of counsel was void and the confession was inadmissible. The objection was overruled, and the confession was admitted.

On appeal, appellant contends that his waiver of his rights, including the right to be represented by legal counsel, was void at its inception by virtue of V.T.C.A., Family Code, Title III, Section 51.09(1) and (2), which read:

“Unless a contrary intent clearly appears elsewhere in this title, any right granted to a child by this title or by the constitution or laws of this state or of the United States may be waived in proceedings under this title if:
“(1) the waiver is made by the child and the attorney for the child;
“(2) the child and the attorney waiving the right are informed and understand the right and the possible consequences of waiving it . . .” V.T.C.A., Family Code, Title III, Section 51.09(1), (2).

We find no contrary intent expressed anywhere in Title III in regard to the waiver of right to silence and right to counsel.

Miranda teaches that a heavy burden rests upon the prosecution to prove that a person in custody “knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” 384 U.S. at 475, 86 S.Ct. at 1628. The Court in Miranda relied upon Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), in which the Court unequivocally stated that the determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. Miranda further holds the states are free to develop their own safeguards as long as their standards meet those expressed in Miranda; Texas has done this for juveniles in Section 51.09, supra.

Prior to the enactment of the Family Code, a minor could waive his right to counsel before making an extrajudicial statement. Moreno v. State, Tex.Cr.App., 511 S.W.2d 273; Garza v. State, Tex.Cr.App., 469 S.W.2d 169; In re Garcia, 443 S.W.2d 594 (Tex.Civ.App.—El Paso, 1969).

Title III of the Family Code was enacted in 1973 with the stated purpose of assuring a fair hearing in which the constitutional and other legal rights of the parties are recognized and enforced. V.T.C.A., Family Code, Section 51.01. The Legislature was aware of the admonitions of the United States Supreme Court in Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), that the admissions and confessions made by a child require careful inquiry and special caution, and in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), that the juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and prepare to submit it. The child “requires the guiding hand of counsel at every step of the proceeding against him.” The Gault decision extended the constitutional right to remain silent, and thereby to resist compulsory self-incrimination, to children. Title III of the Family Code is an enactment of the above concepts; it determines and protects the best interest of the child, assures the constitutional and other legal rights of the child are recognized and enforced, and permits waiver of the child’s rights only under certain conditions. In re R.E.J., 511 S.W.2d 347 (Tex.Civ.App.—Houston [1st Dist.] 1974). The Family Code underscores its protections by providing that, in the adjudication hearing provided by Title III, an extrajudicial statement which was obtained without fulfilling the requirements of this title or of the Constitution of this State or the United States may not be used in such hearing. V.T.C.A., Family Code, Section 54.03(e). This section augments Section 51.09 but does not limit it. See In re F.G., 511 S.W.2d 370 (Tex.Civ. App. — Amarillo 1974). Since the enactment of the Family Code, the courts have concluded that the Legislature obviously provided a safeguard for children, including the right to silence and an absolute right to an attorney during custodial interrogations, unless with an attorney the child waives that right in accordance with the terms of the statute. The “waiver” executed without the child’s attorney is a nullity. In re S.E.B., 514 S.W.2d 948 (Tex.Civ.App.—El Paso 1974); In re V.R.S., 512 S.W.2d 350 (Tex.Civ.App.—Amarillo 1974); In re R.E.J., supra; In re F.G., supra.

The record reflects appellant “waived” his rights prior to the court’s action in waiving its juvenile jurisdiction and transferring him to the appropriate court for criminal proceedings. The Family Code provides that, on transfer for criminal proceedings, the child shall be dealt with as an adult in accordance with the Texas Code of Criminal Procedure, 1965. V.T.C.A., Family Code, Section 54.02(h). This provision triggers the issue of the applicability of 38.22, Vernon’s Ann.C.C.P., upon such transfer. The trial court’s holding reaches behind the transfer in holding appellant waived his rights at the time of the confession. The trial court erred for the reasons stated above.

Nor does the court’s transference revive the “waiver” executed by appellant. The Legislature deliberately chose the language “unless a contrary intent clearly appears.” No contrary intent clearly appears in Section 54.02(h), supra. We cannot, by implication, construe 54.02(h) on the basis that it was the intent of the Legislature that the transferral result in breathing life into a void waiver. If the Legislature had intended such a result, it would have clearly said so.

Moreover, were we to construe Section 54.02(h) in the manner sought by the State, the State could henceforth circumvent Section 51.09 merely by having the child transferred to a criminal court. This would make the Family Code protections meaningless and run counter to the presumptions that, in enacting a statute, the • entire statute is intended to be effective, a just and reasonable result is intended, and a result feasible of execution is intended. See Vernon’s Ann.Civ.Stats., Art. 5429b—2 (Code Construction Act).

Since the Family Code itself will not permit waiver of the child’s rights by implication, the confession is admissible only if 38.22, V.A.C.C.P., prevails over the Family Code provisions in question. It is the Family Code which prevails.

Art. 5429b-2, Section 3.05(a), “. if statutes enacted at the same or different sessions of the legislature are irreconcilable, the statute latest in date of enactment prevails.
Art. 5429b-2, Section 3.06, “If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent' is that the general provision prevail.” Vernon’s Ann.Civ.Stats., Art. 5429b—2 (Code Construction Act).

The Code Construction Act applies to the Family Code and Art. 38.22, V.A.C.C.P. Code Construction Act, Section 1.02(1) and (2), respectively. Section 51.09 of the Family Code went into effect on September 1, 1973. Art. 38.22 was enacted with the Code of Criminal Procedure, 1965, and was amended in 1967. Section 51.09 is the more specific enactment and also controls for that reason.

Pursuant to the Code Construction Act, supra, we hold Section 51.09 of the Texas Family Code prevails as an exception to Art. 38.22, V.A.C.C.P., where applicable. The confession, having been taken in violation of Section 51.09, is inadmissible as a matter of law.

The State contends that appellant waived the error in the admission into evidence of the confession because, in attempting to show appellant was intoxicated or insane at the time of the offense, appellant’s counsel brought out the same testimony he alleged was error. The attempt at the insanity defense, even though logically inconsistent, did not, by itself, preclude denial of the allegations in the indictment. Art. 27.17, V.A.C.C.P. The State places reliance upon the general rule that the admission of improper evidence will not constitute reversible error if the same facts were proved by other and proper testimony, as where the defendant voluntarily gives testimony as that improperly admitted over objection. 5 Tex.Jur.2d 446. This rule is not without exceptions. _ In Alvarez v. State, 511 S.W.2d 493, this Court held the defendant does not waive the error if he offers “testimony to rebut, destroy, or explain” the improperly admitted evidence. See also Nicholas v. State, 502 S.W.2d 169 (On Reh. at 173). 1 Branch’s Ann. P.C.2d, Sec. 119, p. 134 (1956).

In the cases cited by the State in support of its position, the evidence admitted elsewhere without objection is the same or substantially the same as objected to earlier. Vela v. State, Tex.Cr.App., 516 S.W.2d 176; Davis v. State, Tex.Cr.App., 516 S.W.2d 157; Patterson v. State, Tex.Cr.App., 509 S.W.2d 857; Walker v.State, Tex.Cr.App., 499 S.W.2d 177; Bain v. State, Tex.Cr.App., 492 S.W.2d 475; Berry v. State, Tex.Cr.App., 477 S.W.2d 284; Curry v. State, Tex. Cr.App., 468 S.W.2d 455; Brown v. State, Tex.Cr.App., 457 S.W.2d 917; Browning- v. State, Tex.Cr.App., 432 S.W.2d 85; East v. State, Tex.Cr.App., 420 S.W.2d 414.

Appellant’s confession is as follows:-

“My name is Marty Houston Lovell, I am 16 years of age and I live at 1934 Burger, Abilene, Texas.
“Approx. 3 or 4 days ago I spanked my 7 week old son, Mathew Lovell, because he was crying.
“I can’t remember the exact date or time. I hit him on the butt about 3 times. I spanked him again the next day or so. I kept spanking him, I don’t know why. I also hit him on the back yesterday.
“My wife got on to me and said she would leave me if I spanked him again, this was in the afternoon. Brenda (my wife) went over to Sandy Brown’s house, 1958 Fannin, to call Jack Landrum and left him with me and he [M.H.L. ] started crying and I hit him in the face. His nose started bleeding and he stopped breathing. My wife came in and I told her he had stopped breathing and went to call the safety cruiser. She don’t know about me hitting him. I didn’t tel- her. I returned to the house and she told me to go call Dr. Shaffer and when I got back to the house they had taken him to the hospital.
“This is a true and correct statement given of my own free will and accord on this day Feb. 10, 1974.”

In the instant case, the statements which the State submits constitute waiver of appellant’s error are as follows:

Officer Johnson testified without objection:

“Q Well, did he make any statement to you at that very time that at the time he hit this child in the face or whether or not he was under the influence of glue?
“A No, sir.
“Q He didn’t make any statement at all?
“A He said he — at the time that I asked him was he high on the glue, the words I used, when he hit the child, he said, no, he wasn’t.
“Q So, he told you that he was not high on glue at the time?
“A Right.
* * * * * *
“Q Now, Officer Johnson, I don’t want to misstate this, but you have indicated previously that at the Police Station after this confession, State’s Exhibit # 6, was given to you that in a conversation with this Defendant he stated that at the time he struck this child he was not under the influence of anything?
“A Yes, sir, he did.”

Appellant’s counsel elicited from defense witnesses Dr. Rickman and Dr. Day:

“Q All right. Would you assume that Marty, at that point in time, would have any kind of rational con-control over his acts in what he did to the child?
“A Having gone that far, very likely not.
“Q Doctor, in your opinion do you have an opinion as to whether or not Marty Lovell- would have done it had it not been for the glue?
“A My opinion is that it would have been far less likely. Of course, I can’t state with certainty either way.
* * * * * *
“Q All right . . . what I’m trying to get at . . .at the time the child was struck, is whether or not Marty was under the influence of drugs or not could . .

Mr. Day in reading his report to the Juvenile Court testified as to statements appellant had made to him.

“He has one older brother, age twenty-six, and that he and his wife were sniffing glue at the time — sniffing glue and that he didn’t know what he was doing when — that he was another person when he spanked his baby.”

On direct examination, Dr. Day testified:

“Q Doctor, do you have an opinion as to whether or not, if you assume that he had been sniffing glue at the time — prior to the time that he struck the child, whether or not the act of sniffing glue, or the effect of sniffing the glue would lessen what control he did have?
“A Yes.”

The above statements are not tantamount to testimony of the same facts and details found in the confession. It should be clear that the general waiver rule is based on the introduction of other evidence of the same facts without objection and not merely the introduction of some evidence on the same subject. Here the questions and testimony are directed to the appellant’s state of mind, his use or non-use of glue or drugs, a fact not mentioned anywhere in the confession. The questions for the most part would admit appellant struck the child, but the confession relates several instances of the child being struck over a three day period. It was appellant’s attempt to meet, explain and destroy the erroneously admitted evidence to rebut its incriminating effect. Under such circumstances there is no waiver of objection to the erroneously admitted evidence. Nicholas v. State, supra; Alvarez v. State, supra.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, Judge

(concurring).

The majority is correct in that part of the opinion which holds that the confession of the juvenile without the aid of counsel is inadmissible. Also correct is that part of the opinion which shows testimony elicited by appellant’s counsel is not tantamount to the same facts and details found in the confession. The rest of the opinion about introducing evidence to combat illegally introduced evidence is unnecessary to the opinion and is dictum.

ROBERTS, Judge

(concurring).

I concur in the opinion of the Court which I reluctantly agree correctly states the law applicable to this case. I only wish to add a few comments on the status of married juveniles in Texas.

In the case at bar, appellant was protected as a “child” under V.T.C.A., Family Code, Sec. 51.09(1). Yet it was also shown that he was married at the time of the offense. V.T.C.A., Family Code, Sec. 4.03 provides:

“Except as expressly provided by statute or by the constitution, every person who has been married in accordance with the law of this state, regardless of age, has the power and capacity of an adult . . . ” (Emphasis added)

This provision has been given broad effect. See, for example, Ex Parte Williams, 420 S.W.2d 135 (Tex.1967) construing V.A.C.S., Art. 4625, a predecessor of Sec. 4.03. But it has been interpreted to have no bearing upon the question of crimes committed by juvenile delinquents. See Op.Atty.Gen., 1947, V-77. Sec. 51.09 is, of course, a more recently enacted and specific exception to Sec. 4.03.

It should also be noted that V.T.C.A., Probate Code, See. 3(t) defines “minors” in the following way:

“. . . all persons under twenty-one years of age who have never been married, except persons under that age whose disabilities have been removed generally, except as to the right to vote, in accordance with the laws of this State.” (Emphasis added)

Pittman v. Time Securities, 301 S.W.2d 521 (Tex.Civ.App., San Antonio, 1957, no writ history) held that Sec. 3(t), supra, had general application and that males under twenty-one who were married were adults for all purposes, not just for purposes of the Probate Code. Pittman was followed by Ward v. Lavy, 314 S.W.2d 381 (Tex.Civ.App., Eastland, 1958, no writ) and Travelers Indemnity Co. v. Mattox, 345 S.W.2d 290 (Tex.Civ.App., Texarkana, 1961, err. ref’d, n. r. e.). Art. 5923b, V.A.C.S., Acts 1973, 63rd Leg., p. 1723, ch. 626, eff. August 27, 1973 lowered the age of majority to eighteen years of age and continued the general applicability of Sec. 3(t) as held by Pittman, et al., Op.Atty.Gen., 1973, H-82. Art. 5923b, supra, wás also being construed by the Attorney General when he wrote:

“Persons who are married, regardless of their age, have the status of adults.” Op. Atty.Gen., 1973, H — 85 (rendered August 13, 1973).

Texas thus has a broad scheme of statutory and decisional law emancipating all married “children” under the age of eighteen years, except as to the right to vote which was controlled by Art. VI, Sec. 1 of the Texas Constitution, Vernon’s Ann.St. Sec. 51.09 of Title III of the Family Code appears to contain the only legislative' exception to this rule in the jurisprudence of this State. I am unable to understand why the Legislature has deemed it necessary to coddle minors who otherwise enjoy the full complement of rights and responsibilities of adulthood.

I note that the 64th Legislature has wisely moved to mitigate the more extreme aspects of Sec. 51.09. It recently enacted S.B. 247 which now permits a “child” to waive his Fifth Amendment rights and confess in the absence of a lawyer. Except for a few other minor changes, S.B. 247 leaves the unique effect of Sec. 51.09 intact. And, of course, Sec. 51.09 remains as an exception to the rule that marriage emancipates a “child.”

For these reasons, I concur.

      . V.T.C.A., Family Code, Title III, Section 51.02 provides:
      “In this title: (1) ‘Child’ means a person who is: (A) ten years of age or older and under 17 years of age; or (B) seventeen years of age and under 18 . .”

      . The officer read appellant his constitutional and legal warning from a card which was read into the record. We have reviewed same and find it complies with the standards set forth by this Court and the Supreme Court of the United States.

        .Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Acts 1973, 63rd Leg., Ch. 544, eff. Sept. 1, 1973.


author: DALLY, Commissioner.

text:
    Ricky Scot CRANFIL, Appellant, v. The STATE of Texas, Appellee.
    No. 49922.
    Court of Criminal Appeals of Texas.
    July 16, 1975.

      Bob Hanna, Abilene, for appellant.
    Ed Paynter, Dist. Atty., James H. Smart, Jr., Asst. Dist. Atty., Abilene, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for knowingly and intentionally possessing a usable amount of marihuana over four ounces. The punishment assessed by the jury is imprisonment for three years. In six grounds of error the appellant asserts that the evidence is insufficient to support the conviction, the court erred in failing to instruct the jury that three witnesses were accomplice witnesses as a matter of law, the evidence which tends to connect the appellant with the commission of the offense is insufficient to corroborate the testimony given by the accomplice witnesses, and the court erred in failing to submit to the jury the appellant’s motion for probation.

At approximately 4:30 a. m. on April 22, 1974, five officers of the Police Department of the City of Abilene entered a residence at 1025 Vine Street to serve a search warrant. They found the appellant sitting on a couch in the living room. Charlie Hoe was sitting on another couch in the same room. Jimmy Stayton was stopped by the officers as he was leaving the living room going toward the kitchen. Darrell and Jo Nell Owens were asleep in a bedroom at the east side of the house, and Charles David Whitehead was asleep in a bedroom at the southwest corner of the house. The appellant, Hoe, and Stayton appeared to be under the influence of drugs. There was a smell of burned marihuana which was stronger in the living room than the rest of the house. A “heavily used toker,” a device used for smoking marihuana cigarettes, was found in a pocket of the pants worn by the appellant. Slightly more than one ounce of marihuana was found in a container under the couch on which the appellant was sitting, and 0.05 ounces of marihuana seeds were found scattered on and under the cushions on the couch where the appellant was seated. In a dresser drawer in the bedroom at the southwest corner of the house a letter postmarked January 14,1974, and an envelope with a bank statement were found, both addressed to the appellant at a Bellmead, Texas address. In the drawer with the letters were two plastic baggies containing 1.6 pounds of marihuana. The total amount of marihuana found in the house was over seventeen pounds. There were also several pipes used for smoking marihuana and a scale calibrated in ounces suitable for weighing marihuana found in the house.

The appellant erroneously assumes that Jo Nell Owens was an accomplice witness and that it was necessary to corroborate her testimony. The appellant called Jo Nell Owens as a witness, and he offered her testimony; therefore, her testimony is not that of an accomplice witness. Article 38.-14, Vernon’s Ann.C.C.P., does not require corroboration of a witness called by an accused. Jenkins v. State, 484 S.W.2d 900 (Tex.Cr.App.1972); Brown v. State, 476 S.W.2d 699 (Tex.Cr.App.1972); Daviss v. State, 162 Tex.Cr.R. 280, 284 S.W.2d 713 (1955); 24 Tex.Jur.2d, § 687, p. 304, and see Chapman v. State, 486 S.W.2d 383 (Tex.Cr. App.1972). Jo Nell Owens testified that the appellant and Stayton had come to the Owens’ house Saturday evening and that on Sunday evening all of the people whom the officers found in the house had been smoking marihuana. She said that the appellant and Stayton brought the large quantity of marihuana to the house and that they weighed and placed quantities of the marihuana in baggies.

The court charged the jurors on the law of accomplice testimony instructing them that they were to determine from the facts whether Jo Nell Owens, Darrell Owens, and Charles David Whitehead were accomplice witnesses. From what has already been said no such instruction was necessary as to the testimony of Jo Nell Owens since she was a defense witness.

It is unnecessary for us to determine whether the court erred in failing to charge that Darrell Owens and Charles David Whitehead were accomplices as a matter of law, if we apply the rule stated in Gonzales v. State, 441 S.W.2d 539 (Tex.Cr.App.1969). There it was said:

“In Harrell v. State, 107 Tex.Cr.R. 8, 294 S.W. 597, the failure to peremptorily instruct the jury that the witness was an accomplice witness was reversible error where the testimony of the witness was held essential to the conviction.
“The distinction between the line of cases represented by Harrell v. State, supra, and the line of cases where the submission of the issue was held sufficient though the evidence made it apparent that the witness was in fact an accomplice witness was explicated in Cantrell v. State, 129 Tex.Cr.R. 240, 86 S.w.2d 777. See also Phillips v. State, 144 Tex.Cr.R. 666, 164 S.W.2d 844; Nisbet v. State, supra [170 Tex.Cr.R. 1, 336 S.W.2d 142, cert. den. 363 U.S. 829, 80 S.Ct. 1601, 4 L.Ed.2d 1524],
“It appears from the cases that where the court submits to the jury the fact question of whether a certain State witness is an accomplice witness when the evidence was such as to justify a charge that such witness was an accomplice as a matter of law, and proper objection is reserved, the error does not require reversal unless the testimony of the witness is essential to the State’s case (a) because, if the witness is in fact an accomplice, there is no evidence to corroborate his testimony, or (b) because, without the testimony of the witness (whether he be an accomplice or not) there is insufficient evidence to support a conviction or (c) because it is the sole corroboration of the testimony of another accomplice witness.”

We find the evidence already summarized, which does not include any of the testimony of Darrell Owens or Whitehead, is amply sufficient to sustain the jury’s verdict and this conviction. That evidence shows that the appellant at least jointly exercised actual care, control, and management over the marihuana and that he knew the material he possessed was marihuana.

We have considered Hernandez v. State, 517 S.W.2d 782 (Tex.Cr.App.1975) and all of the cases cited by the appellant including Kinkle v. State, 474 S.W.2d 704 (Tex.Cr.App.1971); Haynes v. State, 475 S.W.2d 739 (Tex.Cr.App.1972); Hausman v. State, 480 S.W.2d 721 (Tex.Cr.App.1972); Payne v. State, 480 S.W.2d 732 (Tex.Cr.App.1972), and Higgins v. State, 515 S.W.2d 268 (Tex.Cr.App.1974), but even though the appellant was a guest in the Owens’ home we do not find these cases to be authority for the reversal of this conviction.

The remaining question is whether the court erred in failing to submit to the jury the appellant’s request that he be granted probation. Prior to trial the appellant filed a motion alleging that he had not been finally convicted of any felony offense and that he was eligible for probation. Before any testimony was offered before the jury to support the appellant’s motion for probation the prosecutor was sworn as a witness and testified that the appellant was the same person who had been convicted in Cause No. 11,285A on July 17, 1974, for the sale of marihuana, that his penalty in that case was assessed by a jury at imprisonment for three years and a fine of twenty-five hundred dollars and that the jury had recommended and the appellant had been granted probation. The State incorrectly took the position that even though Cause No. 11,285A had been appealed and was not final the appellant was not entitled to have the jury consider his motion for probation. Subsequent to the trial of the present case this Court in Baker v. State, 520 S.W.2d 782 (Tex.Cr.App.1975), held that an accused was eligible to have his motion for probation submitted to the jury even though he had been convicted prior to that time if that prior conviction was not a final conviction because it was on appeal; however, in Baker v. State, 519 S.W.2d 437 (Tex.Cr.App.1975) where the notice of appeal in the prior conviction was not timely and the appellant had failed to show that the conviction was properly on appeal it was held that the appellant was not entitled to have his motion for probation submitted to the jury in his subsequent trial.

This Court may take judicial cognizance of one of its own opinions and determine from what court that appeal was taken and the cause number in the trial court. Cf. Mayhew v. State, 69 Tex.Cr.R. 187, 155 S.W. 191 (1913); Donald v. State, 165 Tex.Cr.R. 252, 306 S.W.2d 360 (1957). By doing so we judicially know that the appellant’s conviction in Cause No. 11,285A in the 42nd District Court of Taylor County was docketed in this Court as Number 49,-681, and that it was dismissed by a per curiam opinion on January 15,1975, because the record did not contain any notice of appeal. The appellant also argues that since he had filed a motion for new trial in Cause No. 11,285A it was not a final conviction at the time of the trial of this case. The trial of this case commenced on August 19, 1974. Cause No. 11,285A was tried and judgment was entered on July 17,1974. On July 24, 1974, the appellant filed a motion for new trial. The records fail to show that this motion was ever submitted to the court for consideration. Article 40.05, V.A.C.C.P. requires that a motion or an amended motion for new trial be acted on within twenty days after it is filed. This provision has been held to be mandatory. Grimes v. State, 171 Tex.Cr.R. 298, 349 S.W.2d 598 (1961); Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1968). The case at bar was tried twenty-six days after the motion for new trial had been filed in Cause No. 11,-285A. Therefore, the motion for new trial had been overruled by operation of law, and, insofar as the records before us show, the conviction had become final. The appellant was not entitled to have the issue of probation submitted to the jury in the trial of this case.

The judgment is affirmed.

Opinion approved by the Court.

      . The record reflects that a diagram of the house was used before the jury to show where approximately twenty pieces of evidence were found. Unfortunately a copy of that diagram was not included in the record. This makes it difficult for us to understand the testimony and to determine precisely where each piece of evidence was found. Trial judges and counsel are admonished to see that such diagrams are admitted in evidence and made a part of the appellate record.


author: CURTISS BROWN, Justice.

text:
    DIAMOND PAINT COMPANY OF HOUSTON et al., Appellants, v. John A. EMBRY, Jr., Trustee, et al., Appellees.
    No. 1069.
    Court of Civil Appeals of Texas, Houston (14th Dist.)
    June 18, 1975.
    Rehearing Denied July 9, 1975.

      Michael S. Wilk, Hirsch, Westheimer & Block, J. Eugene Clements, Sewell, Junell & Riggs, Houston, for appellants.
    T. J. Sims, Urban, Coolidge, Pennington & Scott, Grant Cook, Reynolds, White, Allen & Cook, Houston, for appellees.
   CURTISS BROWN, Justice.

This case originated in a loan transaction. W. D. “Don” Shepherd (Shepherd) was active in many business and promotional activities including a number of corporations containing the word “Diamond” in their name. He was a major stockholder and dominated the activities of these companies which were often managed with very little regard for corporate formalities. Diamond Paint Company (Paint) was a viable and somewhat successful company. Shepherd organized Diamond Industries (Industries) for the purpose of holding stock in other “Diamond” companies including Paint. At the time of the loan in question Diamond Manufacturing (Manufacturing) had been recently incorporated with a view of exploiting the talents of a person having expertise in the field of defense contracts and industries. This company was “starting out” and had very little, if any, financial resources. The merger between Paint and Manufacturing was being effected but the exchange of stock had not yet been completed on October 1, 1969 (the date of the loan made the basis of this suit). Shepherd approached William Ladin (Ladin or appel-lee) and the Small Business Investment Corporation (SBIC or appellee) in an attempt to secure a loan for Manufacturing. Ladin was the dominant influence at SBIC. He was unable to accommodate Shepherd but did agree to make “take-out” commitments if another lender could be found. John A. Embry, Trustee for the Estate of Lillie Houseman (Embry or appellee) was approached and he agreed to fund a loan of $100,000 if adequate security was provided. It was eventually agreed that the note would be executed by Manufacturing with personal guaranties by Shepherd, Industries and Paint. In addition, take-out commitments by Ladin (25%) and the SBIC (75%) were required. A third lien was also to be taken on certain realty owned by Shepherd.

Manufacturing came to be in default and Embry called on Ladin and SBIC to honor their take-out commitments. Ladin sought to persuade Embry to look to Manufacturing, Shepherd, Industries, Paint and the real estate. Since the financial strength of Shepherd and his companies had begun to disintegrate, Embry chose to enforce the take-out commitments and instituted this suit in an effort to do so. After this suit had been pending for some time, Ladin and SBIC agreed to pay Embry the $100,000 principal amount. After such payment, La-din and SBIC brought a cross-action against Manufacturing on the note and Paint on its guaranty. Embry also filed against Manufacturing and Paint for the difference between the principal amount received, $100,-000 (which was the face amount of the note) and other charges including interest, expenses and attorney’s fees as provided in the note. Shepherd placed the Paint Company stock as security for a loan to Industries, at American Bank of Galveston (Bank). Following default on this loan, the Bank foreclosed on the Paint stock. The Paint stock was acquired by Standard Southern (Southern or appellant). Southern, as the sole outstanding shareholder of Paint, intervened and sought to enjoin the payment of the guaranty as being illegal or ultra vires. Trial was to a jury.

In answer to special issues submitted to them, the jury found: that W. C. Marshall (Marshall) had apparent authority to execute the Paint guaranty; that Embry acted in reliance upon such apparent authority; that Ladin and SBIC also relied thereon; that Paint ratified the guaranty; that the President of Paint was absent or unable to act; that Marshall had express authority to execute the guaranty on behalf of Paint; refused to find that there was no consideration for Manufacturing becoming maker of the note; refused to find that there was no consideration for Paint’s guaranty; that while Shepherd received money from the loan in question, such loan was not made solely for his benefit; refused to find that only Ladin and Shepherd benefited from the loan. Thus, the jury answered all issues submitted to them in favor of appellees and against appellants. The trial court entered a judgment on the verdict against Manufacturing and Paint and refused the injunctive relief sought by Southern. Hence, this appeal.

Paint assigns fifty-six points of error which essentially present the following contentions: (1) The payment by Ladin and SBIC to Embry amounted to a settlement which released appellants; (2) that the letters of Ladin and SBIC were contracts of guaranty and as a matter of law that Ladin and SBIC could not recover against appellants on the note or its guaranty; (3) that the guaranty is illegal and unenforceable; (4) that there was no consideration for the note by Manufacturing or the guaranty by Paint; (5) that the doctrine of apparent authority is inapplicable and there is no evidence or insufficient evidence to justify the findings of express authority for the guaranty; (6) that the issues of apparent authority and ratification were insufficiently supported by the pleadings and by the evidence. Southern makes these same assignments with the additional claim as in-tervenor that it is entitled to an injunction prohibiting Paint from making any payment under the guaranty since it is illegal, or, in the alternative, ultra vires.

Both appellants take the position that the acceptance by Embry of partial payment with knowledge of the insolvency of Manufacturing precludes any recovery by the appellees. It is contended that the take-out commitments were guaranties. Further, that as co-guarantors with Ladin and SBIC the settlement constituted a satisfaction of the debt which would preclude recovery by Embry. It is also maintained that subsequent to the settlement, Ladin and SBIC could recover from Paint, if at all, on a theory of contribution between co-guarantors which was neither pled nor proved. We do not agree.

The rule that acceptance of partial payment with knowledge of the obligor’s insolvency will extinguish the debt is well established. Pugh v. Turner, 145 Tex. 292, 197 S.W.2d 822 (1946); City of San Antonio v. Guido Bros. Construction Co., 460 S.W.2d 155 (Tex.Civ.App. — Beaumont 1970, writ ref’d n. r. e.). It has been extended to guarantors. United States Gypsum Company v. Sampson, 496 S.W.2d 687 (Tex.Civ. App.—Amarillo 1978, no writ). The rationale of these cases depends upon the nature of accord and satisfaction and the law of guaranty. It is, therefore, necessary to determine whether the “take-out” letters were guaranties. It is settled that “the nature of the obligation, not the words used, determines the status” of a purported guaranty. Texas Tractor Co. v. Texas Power & Light Co., 412 S.W.2d 935, 937 (Tex.Civ.App. — Waco 1967, no writ); Wood v. Canfield Paper Co., 117 Tex. 399, 5 S.W.2d 748 (1928, opinion adopted).

The take-out letters of Ladin and SBIC to Manufacturing and Embry were identical except for the amount and entity named. They provide in part: “This will constitute a commitment on the part of William E. Ladin of Houston, Texas, to purchase from John A. Embry, Jr., . a $25,000.00 interest in your promissory note in the original principal sum of $100,-000.00 dated September 29, 1969 . . .” The letter further provided:

[i]n the event said $100,000.00 promissory note executed by Diamond Manufacturing Company is not paid in accordance with its original tenor and effect, then John A. Embry, Jr., . . . shall give William E. Ladin written notice by certified mail of such non-payment, concurrently with written notice to Diamond Manufacturing Company, and in the event said note is not paid within ten (10) days after receipt of such notice William E. Ladin within twenty (20) days after the receipt of such notice shall purchase said $25,000.00 interest in said promissory note from the said John A. Embry, Jr., . without recourse, and John A. Embry, Jr., . . . shall assign to William E. Ladin any and all collateral, guarantees and liens securing said note.

Following settlement of the suit by Embry against Ladin and SBIC, Embry executed an “assignment of collateral” to Ladin and SBIC to the extent of $100,000 and interest thereon at the rate of 10% per annum. The assignment of collateral included, but was not limited to, the guaranty of Paint and Diamond Industries.

While the obligation functionally served to provide additional security for Embry, it did not amount to a guaranty of payment of the debt of another. Under these letters, Ladin and SBIC were obligated to purchase the promissory note of Manufacturing. Upon the purchase of such note, they were entitled to an assignment of collateral securing the note. Ladin and SBIC did not promise to answer for the debt of another. On the contrary they agreed to purchase the note and thereafter stand in the shoes of Embry with his rights against the maker and the collateral securing the note including the guaranties executed by Paint, Shepherd and Industries. We therefore hold that these take-out commitments were not guaranties. It follows that the settlement of the contractual dispute between Embry and Ladin and SBIC did not extinguish the debt. Embry properly maintained his right to seek the balance of the interest, expenses and attorney’s fees not included in the payment made under the take-out letters.

Appellants contend that there was no consideration for the note of Manufacturing and the Paint guaranty. It is also urged that answers of the jury to special issues numbers 11 and 12 relating to consideration were factually and legally insufficiently supported by the evidence; we do not agree. It is apparent that there were numerous transactions between Shepherd and the various Diamond entities in which cash was both infused and withdrawn. The record would support the conclusion that some of the funds were transmitted from Shepherd to Paint following the loan in question. It is unnecessary, however, to rest our opinion upon such a basis because of the well-settled proposition that consideration may consist of a detriment to the promisee or a benefit to the promissor. See James v. Fulcrod, 5 Tex. 512 (Tex.Sup. 1851). Embry testified that he funded the loan on the basis of the entire “package”. This package included the obligation of the maker, guaranties of Paint, Industries and Shepherd and the third lien on certain real estate as well as the take-out commitments of Ladin and SBIC. It was on the “faith” of the note as well as the satellite guarantees and commitments that the loan was issued. There was consideration for the note. Union Cent. Life Ins. Co. v. Roach, 106 S.W.2d 374, 377 (Tex.Civ.App.—Waco 1937, writ dism’d).

In Shaw v. McShane, 50 S.W.2d 278 (Tex. Comm’n App.1932, jdgmt. adopted), a bank director was the maker of a note in return for money of a bank which was applied to protect a lien interest of the bank. Although the director received no benefit directly or indirectly the note was held to be supported by consideration. The Court stated that a “note given for money borrowed for the sole benefit of a third party is based upon a valid consideration.” Manufacturing was a new corporation. It is not unusual for a lender dealing with corporations or persons of limited resources to look to guarantors or other collateral for security other than the maker. As we pointed out in Cooper Petroleum Co. v. LaGloria Oil & Gas Co., 423 S.W.2d 645, 652 (Tex.Civ.App. — Houston [14th Dist.] 1968), rev’d on other grounds, 436 S.W.2d 889 (Tex.Sup.1969), the contract of guaranty itself being in writing “imported a consideration.” Where a note and a guaranty are executed contemporaneously, if there is consideration for the note, then there is consideration for the guaranty. Dean v. Allied Oil Co., 261 S.W.2d 900 (Tex.Civ.App. — Waco 1953, writ dism’d). We hold therefore that the note and guaranty were supported by consideration.

Appellants attack the jury findings of actual and apparent authority as well as the findings of ratification. The attacks are predicated upon the contention: (1) if a transaction is not in the usual course of business, one may not rely upon apparent authority; (2) that as to Ladin and SBIC, the findings are not sufficiently supported by pleadings; (3) that the evidence was insufficient to support the findings both legally and factually. In Great American Ins. Co. v. Sharpstown State Bank, 460 S.W.2d 117 (Tex.Sup.1970), the Supreme Court reversed the Court of Civil Appeals’ decision which had held that apparent authority had been established as a matter of law. No issue had been requested. The Supreme Court held that there was some evidence to support a finding of lack of apparent authority. The transaction in Sharpstown was the issuance of a performance bond as security for a promissory note. Despite the testimony that this was a most unusual situation, the Court held that the question of apparent authority was a question of fact for the jury. In that case, the expert witnesses did not know of any instances where a performance bond had been issued by an insurance company as security for a promissory note. Therefore, even if the transaction was not in the usual course of business, apparent authority may provide a basis of liability of a corporation for the act of its purported agent. The issue here is whether Paint’s conduct was such as to lead a reasonably prudent person, using diligence and discretion, to suppose that Marshall had the authority to bind Paint and that appellees were induced by such conduct to act to their detriment. The issue tendered by Paint of whether the execution of the guaranty was in the normal course of the business was properly refused as it is evidentiary and not controlling. Texas Rules of Civil Procedure, rule 277. The' closing was attended by the Chairman of the Board, Vice-President and Secretary of Paint. These officers of the corporation tendered the corporate resolution authorizing the execution of the guaranty and both officers executed it at the closing. Embry testified that he would not have made the loan except for the entire “package”. Clearly, such conduct in evidence supported the finding of apparent authority and the reliance of Embry, Ladin and SBIC thereon.

With respect to the matter of pleadings, it is clear that Embry pled actual and apparent authority of Marshall and Latner while Ladin and SBIC pled the existence of the guaranty and the “authority” for its execution. Appellees are correct that by pleading the more inclusive of theories, they have in the absence of special exception, pled the lesser included. 3 McDonald, Texas Civil Practice § 12.07 (1970).

The evidence in support of the findings of actual authority consists of a corporate resolution of Paint authorizing the Secretary and President to execute the guaranty. This resolution is attacked by Paint as hearsay. We agree with appellees’ contention that the resolution is not hearsay as it was an operative act of the corporation creating express authority. 1 McCormick and Ray, Texas Law of Evidence § 795 (2nd ed. 1956). Further, Latner (the Secretary of the Corporation) had the actual authority to certify copies of Board resolutions. It is elementary that a corporation is estopped from denying the representations of an agent made within the scope of authority. McMan Oil & Gas Co. v. Hurley, 24 F.2d 776 (5th Cir. 1928). As Paint is estopped to deny the representation by Latner (its secretary) in the certificate, there was express authority for the execution of the guaranty. In addition, there was evidence that the resolution was presented to Embry at the closing. The evidence was conflicting as to the availability of Hood (the actual President of Paint) at the time of closing. The jury chose to believe that Hood was unavailable and we cannot say that there was no evidence or insufficient evidence to support their answers to the issues of express authority. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (Tex.Sup.1914); Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). A Vice-President may validly act for the President in his absence. Ballard v. Carmichael, 83 Tex. 355, 18 S.W. 734 (Tex.Sup.1892); Hufstedler v. Sides, 165 S.W.2d 1006 (Tex.Civ.App. — Amarillo 1942, writ ref’d). Thus, the act of the Vice-President in accordance with the express authority granted to the President was valid.

In addition to the findings of actual and apparent authority, the judgment is independently supported by the findings that Paint ratified the transaction. Appellants attack these findings. Ratification may either be express or implied from a course of conduct. Silence which misleads the other party to the transaction to his detriment may constitute such course of conduct. Petroleum Anchor Equipment, Inc. v. Tyra, 419 S.W.2d 829, 834 (Tex.Sup.1967); Brown v. Grayson Enterprises, Inc., 401 S.W.2d 653 (Tex.Civ.App. — Dallas 1966, writ ref’d n. r. e.). This case involves the question as to whether Paint failed to disaf-firm the guaranty. It is required that where silence is the basis of ratification that knowledge of all material facts be possessed by the “principal.” Brown v. Grayson Enterprises, Inc., supra. Hood testified that he learned of the guaranty in the Spring of 1970. It was, of course, known to Latner and Marshall in October of 1969. Ladin testified that he informed a director and officer of Paint of the guaranty, while that company was owned by American Bank of Galveston. Owens, an employee and director of Paint, was advised of the guaranty in March-April of 1970. There was no evidence that any of these agents, whose knowledge may be attributed to the corporation, ever repudiated the guaranty. There is a conflict in the evidence between the testimony of Gillespie (a Paint director) and Ladin as to whether there was a repudiation to Ladin during a meeting between them. There was testimony that Hood had noted the guaranty in a reconstructed balance sheet dated February 28, 1970 and that the President of Southern “probably” saw such balance sheet in the course of investigating whether or not to purchase Paint. The notation on the balance sheet referred to the guaranty as “probable of collection.” Under appropriate standards of review as established by the Supreme Court, we cannot say that the attack of appellants upon these findings are well founded.

Appellants present points asserting that the guaranty violated Vernon’s Ann. Tex.Civ.St.Misc.Corp.Act art. 1302-2.06 (as amended in 1963) and is illegal and unenforceable. Appellants say that our decision in Cooper Petroleum Company v. LaGloria Oil & Gas Go., 423 S.W.2d 645 (Tex.Civ.App. —Houston [14th Dist.] 1968), rev’d on other grounds, 436 S.W.2d 889 (Tex.Sup.1969) is not controlling because the Legislature amended the Act to add section B in 1963. Section B permits corporate guaranties of obligations of subsidiary, parent, or affiliated corporations as defined in that section. The Legislature, in providing that certain guaranties are neither illegal nor ultra vires, affords no basis to avoid the holding in Cooper Petroleum. In Whitten v. Republic National Bank of Dallas, 397 S.W.2d 415 (Tex.Sup.1965) the Supreme Court restates the test of Bond v. Terrell Cotton and Woolen Manuf’g Co., 82 Tex. 309, 18 S.W. 691 (1891) as to the distinction between illegal and ultra vires acts. To be illegal, the act must be essentially evil or immoral, expressly prohibited by specific statute or contrary to public policy. Whitten v. Republic National Bank of Dallas, supra at 418. This guaranty is not essentially evil, and it is not expressly prohibited by a specific statute. As regards public policy, we note that the Legislature amended Article 1302-2.06 in 1973 to provide that corporate guaranties are permissible where they directly or indirectly benefit the corporation. While this statute is not controlling, it is indicative of the trend of public policy from 1963 to the present to increasingly sanction corporate guaranties and to ease restrictions against them. We cannot say in light of this trend that the guaranty here is in violation of public policy and therefore illegal. Paint is denied the defense of ultra vires under Article 2.04(b) of the Tex.Bus. Corp.Act Ann.V.A.T.S. (1956).

Southern was allowed to intervene and asserts as appellant here, as it did in the trial court below, that it is entitled as a matter of law to an injunction prohibiting Paint from making any payment under its purported guaranty since the guaranty is claimed to be illegal, or in the alternative, ultra vires. The loan made the basis of this suit was closed on or about October 1, 1969. In early 1970, the transfer of Industries’ stock for Paint stock had been completed. Industries made a loan at the American Bank of Galveston and pledged Paint’s stock as collateral. In June of 1970, this stock was acquired by the Bank through foreclosure following default. Thus, the Bank became the sole stockholder of Paint. Following negotiations in June or July of 1970, Southern acquired Paint in October of that year. The acquisition was structured so that Southern for $20,000 purchased 80,-000 shares of Paint and Paint purchased 270,000 shares of its own stock for $180,000. Therefore, Southern is the sole stockholder of Paint (other than itself).

Appellant intervenor Southern cites Article 2.04 of the Tex.Bus.Corp.Act entitled “Defense of Ultra Vires” providing in pertinent part as follows:

B. No act of a corporation . shall be invalid by reason of the fact that such act . . . was beyond the scope of the purpose or purposes of the corporation as expressed in its articles of incorporation or by reason of limitations on authority of its officers and directors to exercise any statutory power of the corporation, as such limitations are expressed in the articles of incorporation, but that such act . . . was, or is, beyond the scope of the purpose or purposes of the corporation as expressed in its articles of incorporation or inconsistent with any such expressed limitations of authority, may be asserted: (1) In a proceeding by a shareholder against the corporation to enjoin the doing of any act or acts or the transfer of real or personal property by or to the corporation. If the unauthorized act or transfer sought to be enjoined is being, or is to be, performed or made pursuant to any contract to which the corporation is a party, the court may, if all of the parties to the contract are parties to the proceeding and if it deems the same to be equitable, set aside and enjoin the performance of such contract, and in so doing may allow to the corporation or to the other parties to the contract, as the case may be, compensation for the loss or damage sustained by either of them which may result from the action of the court in setting aside and in enjoining the performance of such contract, but anticipated profits to be derived from the performance of the contract shall not be awarded by the court as a part of loss or damage sustained.

It may be an over-simplification to say that the Act provides that (1) ultra vires acts are not illegal or invalid; (2) that in a proceeding “by a shareholder against the corporation” the Court may enjoin the performance of such contract if it deems such injunction to be equitable; and (3) provides that the court may allow the corporation or other parties to the contract compensation for the loss or damage sustained except for anticipated profits.

The question presented here is whether the trial court as a matter of law abused its discretion in refusing the injunction. Appellees claim that Southern was the sole outstanding shareholder of Paint and thus seeks to distinguish appellants from the equitable position disclosed in Intercontinental Corporation v. Moody, 411 S.W.2d 578 (Tex.Civ.App.—Houston 1966, writ ref’d n. r. e.). They claim that where, as here, the sole outstanding shareholder is seeking the injunction that such shareholder has not and is not deprived of information as is the case when the corporate stock is widely held by different persons in varying amounts. We do not agree with appel-lees in this regard. The Act refers to “a shareholder”. Nor do we accept appellees’ contention that, as sole outstanding stockholder, an injunction on behalf of Southern would be tantamount to enjoining itself. While Southern owns 100% of the outstanding stock of Paint, it is, in the absence of a proof of alter ego, a separate entity. Evans v. General Ins. Co., 390 S.W.2d 818 (Tex.Civ.App.—Dallas 1965, no writ). These facts, while not precluding appellant Southern from the relief it seeks, are relevant and material to the determination as to whether the court “deems the same (injunction) to be equitable.” Undoubtedly, Southern’s officers and directors were aware of the existence of the guaranty before purchasing the company. While it may have been “only haphazardly” informed as contended by appellants, it is certain that they made no investigation and elected to ignore the matter. Hood had prepared a reconstructed balance sheet showing the contingent liability on the guaranty and that it was “probable” of collection. The President of Southern testified that he “probably” saw this balance sheet. Furthermore, the Act clearly provides that the court may allow the other parties to the contract (i. e. Em-bry, Ladin and SBIC) compensation for the loss or damage sustained by them in granting such injunction. The court here could well have concluded that such loss or damage was largely measured by the recovery allowed and that to grant the injunction would be useless as well as inequitable. All of the facts and circumstances before the Court preclude the conclusion that the trial court abused its discretion as a matter of law in refusing the injunction requested.

All of appellants’ points of error have been considered and are overruled.

Affirmed.


author: WALTER, Justice.

text:
    Wm. ANDRESS, Jr., Appellant, v. AMERICAN YOUTH CAMPS, INC., et al., Appellees.
    No. 4811.
    Court of Civil Appeals of Texas, Eastland.
    July 11, 1975.
    Rehearing Denied Aug. 8, 1975.

      William Andress, Jr., Dallas (Andress, Woodgate & Lodewick, Dallas), for appellant.
    Steve Robertson, Clifton (Vance, McMul-len & Connally, Inc., Clifton), for appellees.
   WALTER, Justice.

This is a venue case.

Wm. Andress, Jr., filed suit against American Youth Camps, Inc., on a note for $165,000 and sought foreclosure of a vendor’s lien against 175.5 acres of land in Coryell County, Texas. He alleged that Youth Camps, of America, Inc. made, executed and delivered a note payable in Dallas County, Texas, to Betty J. Vickrey. He alleges the note was assigned and transferred to him for a valuable consideration. Andress alleges in paragraph two of his petition the following:

“On or about the 21st day of March 1973, Betty J. Vickrey deeded to Youth Camps, of America, Inc., a non-profit Texas Corporation, the 175.5 acres of land in Cor-yell County, Texas, hereinafter described, retaining therein a vendor’s lien to secure a note of even date therewith executed by the grantor therein to the order of Betty J. Vickrey at Dallas, Texas, in the principal sum of $165,000, with interest at the rate of 6% per annum, in equal annual installments beginning one year after date, which said vendor’s lien note was executed by Youth Camps of America, by George C. Richards.”

Andress alleges that Joe W. Phillips, Jr., is residing upon the premises and is making some sort of personal claim, the nature of which is unknown to Andress.

American Youth Camps, Inc., filed a plea of privilege to be sued in the county of its residence, Coryell County. American Youth Camps, Inc., in its plea of privilege pursuant to Rule 93, Texas Rules of Civil Procedure, denied the execution and delivery of the note and denied the genuineness of the endorsement and the assignment of the note.

Joe W. Phillips, Jr., filed a plea of privilege to be sued in the county of his residence, Coryell County, Texas. He also denies under oath the execution and delivery of the note and denies the genuineness of the assignment of the note to plaintiff, Andress.

In his controverting plea, Andress relies on Sections 5 and 29a of Article 1995, Vernon’s Ann.Rev.Civ.Stats. The court sustained the defendants’ plea of privilege and Andress has appealed.

The plaintiff introduced a note executed by Youth Camps of America for $165,000 payable to the order of Betty Fickling Vick-rey. Mrs. Vickrey testified she assigned this note to Mr. Andress.

There is no evidence that the defendant, American Youth Camps, Inc., made, executed and delivered this note to Mrs. Vick-rey. There is no evidence that Youth Camps of America, Inc., and American Youth Camps, Inc., are one and the same entity.

We hold plaintiff’s proof fails to show that Phillips was a necessary party under subdivision 29a of Article 1995. Cockburn Oil Corp. v. Newman, 244 S.W.2d 845 (Tex.Civ.App.—Eastland 1951, no writ).

We hold the evidence fails to establish the venue facts in Dallas County. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935).

The judgment is affirmed.