author: ODOM, Judge. ONION, Presiding Judge

text:
    Earnest WALKER, Appellant, v. The STATE of Texas, Appellee.
    No. 49289.
    Court of Criminal Appeals of Texas.
    June 25, 1975.
    Rehearing Denied July 16, 1975.

      Charles L. Rittenberry, Charles W. Fair-weather, Amarillo (Tom Upchurch, Jr., Amarillo, Frank Maloney, Austin, on rehearing only), for appellant.
    George E. Dowlen, Dist. Atty., Canyon, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

ODOM, Judge.

Our prior opinion in this cause is withdrawn.

On motion for rehearing appellant urges that his conviction be reversed because the trial court wholly failed to advise him of the range of punishment at the time of his plea of guilty, as required by Article 26.13, Vernon’s Ann.C.C.P.

In Guster v. State, Tex.Cr.App., 522 S.W.2d 494, this Court held:

“. . . where there is no showing that a defendant was prejudiced or injured by the failure of the trial court to fully comply with Article 26.13, supra, and where no objection is made to such failure at the time the plea is accepted or by motion for new trial, that failure to fully comply will not constitute reversible error on appeal.”

In the instant case, there was a total failure to explain or even mention the range of punishment to appellant. It is, therefore, not within the scope of the rule stated in Guster v. State, supra. See also Williams v. State, Tex.Cr.App., 522 S.W.2d 488, and Ex parte Taylor, Tex.Cr.App., 522 S.W.2d 479.

In Tellez v. State, Tex.Cr.App., 522 S.W.2d 500, decided the same day as Guster, supra, and Williams, supra, this Court held that, if a trial court in admonishing an accused of the consequences of his plea misstates the range of possible punishment, but the accused is not misled to his prejudice by such erroneous admonishment, the error is harmless. See also Cameron v. State, Tex.Cr.App., 508 S.W.2d 618; Jorden v. State, Tex.Cr.App., 500 S.W.2d 117; Valdez v. State, Tex.Cr.App., 479 S.W.2d 927. That rule likewise does not apply in this case because the trial court gave absolutely no admonishment respecting the range of possible punishment.

Because the trial court here did not merely fall short of full compliance, but in fact totally failed to admonish appellant of the consequences of his plea, in total disregard of Article 26.13, Y.A.C.C.P. (see concurring opinion in Cameron v. State, supra), the conviction is reversed.

Appellant’s motion for rehearing is granted; the judgment affirming the conviction is set aside; and the judgment is reversed and remanded.

ONION, Presiding Judge

(concurring in part and dissenting in part).

I concur in the result reached by the majority on appellant’s contention raised on appeal for the first time on his motion for rehearing in this court, but clearly cannot agree with the reasoning of the majority.

Article 26.13, Vernon’s Ann.C.C.P., provides:

“If the defendant pleads guilty, or enters a plea of nolo contendere, he shall be admonished by the court of the consequences; and neither of such pleas shall be received unless it plainly appears that he is mentally competent, and is uninfluenced by any consideration of fear, or by any persuasion, or delusive hope of pardon, prompting him to confess his guilt.”

This statute and its forerunners have been a part of every Code of Criminal Procedure ever enacted in this State and have remained the same for 118 years. See Bosworth v. State, 510 S.W.2d 334 (Tex.Cr.App.1974) (Dissenting Opinion). Over the years this court has again and again held that the statute was mandatory. See, i. e., Ex parte Chavez, 482 S.W.2d 175 (Tex.Cr.App.1972); Ex parte Battenfield, 466 S.W.2d 569 (Tex.Cr.App.1971); May v. State, 151 Tex.Cr.R. 534, 209 S.W.2d 606 (1948); Coleman v. State, 35 Tex.Cr.R. 404, 33 S.W. 1083 (1896); Saunders v. State, 10 Tex.App. 336 (1881). And following such construction, the Legislature on a number of occasions reenacted the statute virtually unchanged. See Bosworth v. State, supra (Dissenting Opinion).

Further, the “consequences of a guilty plea or plea of nolo contendere” have long been held to be “the punishment provided by law for the offense charged and the punishment which could be inflicted under his plea.” Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779 (1956); Ex parte Battenfield, 466 S.W.2d 569, 571 (Tex.Cr.App.1971). And where there has been a failure to comply with that portion of Article 26.13, supra, requiring admonishment as to the consequences of the plea, reversal will follow. See, i. e., Williams v. State, 415 S.W.2d 917 (Tex.Cr.App.1967); Miller v. State, 424 S.W.2d 430 (Tex.Cr.App.1968); Ex parte Humphrey, 456 S.W.2d 118 (Tex.Cr.App.1970); Ex parte Battenfield, supra; Crawford v. State, 466 S.W.2d 319 (Tex.Cr.App.1971); Vasquez v. State, 477 S.W.2d 629 (Tex.Cr.App.1972); Loudd v. State, 474 S.W.2d 200 (Tex.Cr.App.1971); Alvarez v. State, 511 S.W.2d 521 (Tex.Cr.App.1974).

And this court has for many years held that a failure to comply with the mandatory provisions of the statute may be raised any time. May v. State, 151 Tex.Cr.R. 534, 209 S.W.2d 606 (1948); Alexander v. State, supra; Ex parte Battenfield, supra; Ex parte Chavez, supra; Wilson v. State, 456 S.W.2d 941 (Tex.Cr.App.1970) (Concurring Opinion).

It is on the basis of these authorities that I would reverse this conviction for failure to admonish the appellant as to the consequences of his plea even though the contention was first raised by the appellant in this court by his motion for rehearing.

Now, as to why I cannot agree with the majority’s reasoning:

The majority’s opinion could easily be labeled as “Retreat from Guster,” and it is a retreat in confusion that adds to the uncertainty concerning Article 26.13, supra, visited upon the bench and bar by the majority since Espinosa v. State, 493 S.W.2d 172 (Tex.Cr.App.1973), and Mitchell v. State, 493 S.W.2d 174 (Tex.Cr.App.1973), when the majority began to seriously erode the legislative intent expressed in Article 26.13, supra. Espinosa and Mitchell held that in a felony case the trial court no longer needed to inquire as to whether a plea of guilty or nolo contendere was prompted by a “delusive hope of pardon” or any similar inquiry. See also Higginbotham v. State, 497 S.W.2d 299, 300 (Tex.Cr.App.1973). The majority in Espinosa and Mitchell did not explain just how they could give less weight or no weight to “delusive hope of pardon” than “any consideration of fear” or “any persuasion” found in the same sentence of the mandatory statute, but the majority apparently for some time, at least, looked upon an inquiry as to “fear” or “persuasion” as essential to satisfy the “minimal requirements” of the statute. For example, in Harris v. State, 500 S.W.2d 126 (Tex.Cr.App.1973), the majority, speaking through Judge Morrison, held that mere inquiry as to whether the plea was voluntary was insufficient, but that the “minimal requirements” of Article 26.13, supra, as to consideration of fear or persuasion “must be inquired into and appear of record.” See also Martinez v. State, 494 S.W.2d 545 (Tex.Cr.App.1973); Heathcock v. State, 494 S.W.2d 570 (Tex.Cr.App.1973). In Mayse and Ross v. State, 494 S.W.2d 914 (Tex.Cr.App.1973), the majority, speaking through Judge Odom, began inching away from even the so-called “minimal requirements” established by the majority. The opinion there held that an inquiry as to whether the guilty plea was prompted by force or coercion or promise was sufficient to comply with the statute.

It became clear from these cases that the majority had added “force” or “promise” to the statute while eliminating “delusive hope of pardon.” Nevertheless, it appeared that on some occasions the majority was still requiring inquiry as to “fear” and “persuasion.” See, i. e., Johnson v. State, 500 S.W.2d 115 (Tex.Cr.App.1973); Ex parte Scott, 505 S.W.2d 602 (Tex.Cr.App.1974) (an opinion by Judge Douglas); Ex parte Dickerson, 508 S.W.2d 387 (Tex.Cr.App.1974).

In Bosworth v. State, 510 S.W.2d 334 (Tex.Cr.App.1974), the necessity of an inquiry as to “persuasion” was eliminated despite the earlier decisions. In a dissenting opinion, this writer wrote, “One is left to wonder if any inquiry as to ‘fear’ is still required or whether it is also gone with the wind.”

In Wade v. State, 511 S.W.2d 7 (Tex.Cr.App.1974), the majority held that the inquiry was fatally defective because of a failure to inquire if the guilty plea was due to “fear” or “persuasion.” The concurring opinion by Judge Odom, joined in by Judge Morrison, agreed to the result since there was inquiry as to “fear.” Apparently the statutory requirement as to an inquiry as to “fear” was still alive and well. See also Ex parte Watson, 508 S.W.2d 399 (Tex.Cr.App.1974); Pigg v. State, 508 S.W.2d 652 (Tex.Cr.App.1974); Cevilla v. State, 515 S.W.2d 676 (Tex.Cr.App.1974).

In Guster v. State, supra, the court was confronted with an admonishment which did not include any inquiry as to “fear.” Before discussing the majority’s approach in Guster, I think it important to also observe what the majority was also doing to that portion of the statute requiring the trial court to admonish the defendant as to the consequences of his plea. As observed earlier in this opinion, that portion of the statute has been upheld as mandatory. However, the majority began to even erode that portion of the statute. In Jorden v. State, 500 S.W.2d 117 (Tex.Cr.App.1973), and again in Cameron v. State, 508 S.W.2d 618 (Tex.Cr.App.1974), the court upheld admonishments in which the trial court inaccurately informed the defendant of the consequences of his plea. See also Valdez v. State, 479 S.W.2d 927 (Tex.Cr.App.1972). And in Tellez v. State, 522 S.W.2d 500 (Tex.Cr.App.1975), the majority upheld an admonishment where the trial court incorrectly advised the defendant as to the range of punishment on both cases to which he was pleading guilty, overruling Alvarez v. State, 511 S.W.2d 521 (Tex.Cr.App.1974), to the contrary.

This was the status of Article 26.13, supra, when the majority was confronted with Guster. Recognizing their past efforts to emasculate the mandatory statute had not been consistent or logical, the majority seizes upon the opinion in Ex parte Taylor, 522 S.W.2d 479 (Tex.Cr.App.1975). In Taylor the court held that a collateral attack upon a felony conviction resulting from a plea of guilty or nolo contendere will not be considered absent a showing that the petitioner was prejudiced or injured for failure of the trial court to fully comply with Article 26.13, supra. Taylor represented a significant departure from the holdings of this court that the failure to comply with the mandatory provisions of Article 26.13, supra, and its forerunners could be raised after conviction, upon collateral attack, or at any time. See, i. e., May v. State, 151 Tex.Cr.R. 534, 209 S.W.2d 606 (1948); Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779 (1956); Ex parte Battenfield, 466 S.W.2d 569 (Tex.Cr.App.1971); Ex parte Chavez, 482 S.W.2d 175 (Tex.Cr.App.1972). The Taylor decision was based primarily upon Ex parte Meadows, 418 S.W.2d 666 (Tex.Cr.App.1967). In Meadows the court was confronted with a collateral attack upon a conviction for failure to comply with Article 494, Vernon’s Ann.C.C.P. [now Article 26.04(b)], which required the waiver of the ten days’ preparation period to be in writing. Meadows held that the petitioner was not entitled to relief on collateral attack if the failure to comply with the mandatory statute did not result in injury to the petitioner such as would deprive him of a fair trial or deny him a constitutional right. Earlier cases to the contrary were overruled. Meadows did not, however, attempt to undermine or diminish the mandatory nature of the statute involved, and it is clear that a failure to comply with the requirement of waiver of ten days’ preparation period will call for reversal on direct appeal. See, i. e. Young v. State, 448 S.W.2d 484 (Tex.Cr.App.1970); Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1968); Farmer v. State, 419 S.W.2d 382 (Tex.Cr.App.1967). Clearly Taylor followed Meadows in a like manner, for the opinion stated, “By our holding today, we do not in any way diminish the requirement of complying with Article 26.13 . . and added footnote # 2 which stated, “Our holding does not apply to cases on direct appeal.”

Nevertheless, in Williams v. State, 522 S.W.2d 488 (Tex.Cr.App.1975), the majority, disregarding the fact that Taylor was based on Meadows and the statements quoted above, advanced the theory that Taylor supports the non-review on direct appeal of a violation of the mandatory provisions of Article 26.13, supra, if it be unassigned error, and that it would not be considered under Article 40.09, Sec. 13, Vernon’s Ann. C.C.P. “in the interest of jus'ice” unless harm or injury has been shown. Then in Guster v. State, 522 S.W.2d 494 (Tex.Cr.App.1975), the majority, using Taylor and Williams as a bootstrap, held that unless there is a showing that the accused is prejudiced or injured by the failure of the trial court to fully comply with the “mandatory” statute, and there is no objection made to such non-compliance at the time of the plea or by motion for new trial, no appellate review will follow, even though the ground of error is raised in an appellate brief filed in the trial court in accordance with Article 40.09, Sec. 9, Vernon’s Ann.C.C.P. Thus by judicial muscle the statute was laid flat.

Guster made clear that even if there was a failure of the trial court to fully comply with any portion of the statute the law now casts the burden upon the possibly unwary or even illiterate defendant the burden of calling the legally trained judge’s attention to any error, oversight or omission in the requirements of Article 26.13, supra, at the time of the plea or motion for new trial, and that the question cannot be raised on appeal by an appellate brief, even one filed in the trial court. It is observed that no distinction was made in the Taylor, Williams and Guster cases between admonition as to the consequences of the plea and the balance of the statute. In fact, Taylor actually involved the failure to properly admonish as to the consequences of the plea.

In Guster this writer observed in a dissenting opinion (footnote # 3) that, “In light of other earlier opinions of the majority, one is left to wonder the meaning of the trial court ‘fully’ complying with the mandatory statute,” and also wrote:

“This new approach may not last any longer than the majority’s ‘substantial compliance’ approach, which was a label for a conclusion, not a test to be applied, or the semicolon approach advanced in Cameron v. State, 508 S.W.2d 618 (Tex.Cr.App.1974) (Concurring Opinion).”

Now, shortly after Guster, we find the majority retreating from Guster. In the instant case the appellant did not object to the failure of the trial court to admonish as to the consequences of the plea at the time of the plea or by motion for new trial as required by Guster, nor was it even raised by the appellate brief filed in the trial court. After the opinion on original submission, it was first raised in appellant’s motion for rehearing filed in this court. To be considered at all as unassigned error under this circumstance, it would have to be considered “in the interest of justice,” which Williams, based on Taylor, said was a “no, no.” Nevertheless, the majority, despite Williams and Guster, considers the matter properly presented as to whether the trial court “fully” complied with the statute even though there was a partial compliance with the statute. The majority attempts to explain that in the instant case since there was a total failure to explain or even mention the range of punishment, which relates to only a portion of the statute, somehow Guster does not apply. This is clearly not what Guster held. It made no distinction between portions of the statute. Is the majority saying that total failure to comply with the consequences of the plea requirement calls for one result but an inaccurate admonition as to the consequences of the plea would fall within Guster ? It would seem so.

Is this total failure approach applicable to a total failure to inquire as to whether the guilty plea was prompted by “any consideration of fear”? To a total failure to inquire as to “any persuasion”? To a total failure to inquire as to a “delusive hope of pardon”? Would this new approach apply to a total failure to inquire as to any or all of the three factors above? If it does not, is the majority making the distinction be- - tween one portion of Article 26.13, supra, and another? Is the majority giving more weight to one portion of the statute than another? It is observed that the majority opinion, in conclusion, cites with approval the concurring opinion in Cameron v. State, 508 S.W.2d 618 (Tex.Cr.App.1974), which favored the semicolon approach, holding in effect that everything in the statute prior to the semicolon in the statute (including the consequences of the plea requirement) was mandatory and the rest was not. Has this approach of one judge now become the majority’s approach since Guster ?

The majority holds that when there is a total failure to admonish as to the range of punishment prejudice will be presumed and the conviction will be reversed, but what about cases where the trial judge totally fails to advise the accused as to any range of punishment but the record reflects that the range of punishment was mentioned during voir dire examination of the jury, Wilson v. State, 456 S.W.2d 941 (Tex.Cr.App.1970), or by an instrument filed by the accused, Vavra v. State, 171 Tex.Cr.R. 24, 343 S.W.2d 709 (1961). Is harm to be presumed there?

These are just a few of the questions that come to mind regarding the Guster approach, and the instant case is a good example of the invalidity of that approach, and the first of many exceptions that will have to be made to such approach. Guster is a house built upon sand.

For the reasons stated, I concur in the result but dissent to the majority’s reasoning.

      . We note that Article 26.13, supra, has recently been amended (S.B. 122) and effective June 19, 1975, provides:
      “Article 26.13. PLEA OF GUILTY, (a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
      “(1) the range of punishment attached to the offense; and
      “(2) the fact that any recommendation of the prosecuting attorney as to punishment is not binding on the court.
      “(b) No plea of gulty or a plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.
      “(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.”

      . Since the majority cites Tellez v. State, 522 S.W.2d 500 (Tex.Cr.App.1975), it appears that Tellez and Guster would be applicable to those situations where the trial court misstates the range of punishment but the accused is not misled to his prejudice thereby. In Tellez, Cameron, Jordan and Valdez the trial judge misstated the correct statutory range of punishment, but the punishment subsequently imposed was both within the statutory range and the range of penalties stated by the judge. Surely it is a horse of a different color if the punishment assessed in such a situation was beyond that stated by the trial judge in his admonishment. The majority opinion in Tellez, by quoting from the dissenting opinion in Alvarez v. State, 511 S.W.2d 521 (Tex.Cr.App.1974), makes this point. Clearly, then Gus-ter would not control as to that situation either, thus creating another exception to the Guster rule.

      . It is observed that the majority takes note of the amendment of Article 26.13, Vernon’s Ann.C.C.P., in footnote # 1 of its opinion, which amendment became effective June 19, 1975, but it is not applicable to the instant case. It appears that supporters of the majority’s interpretation of the now former Article 26.13 sought this act to bring the statute in line with the majority’s interpretation. This amendment will be no answer to the problems raised by the decisions in Taylor, Williams and Guster and the retreat from Guster in the instant case.
      Further, while the amendment to the statute now requires only “substantial compliance,” and when there is, there is cast upon the defendant the burden to affirmatively show that “he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.”
      While “substantial compliance” may now satisfy State statutory requirements, it appears to me a question of due process is presented where the court does not admonish the accused at all as to punishment and the record is silent as to any suggestion that the appellant knew the range of punishment.
      Due process, as related to the validity of a guilty plea, requires that the plea be voluntarily and understandably made, and such understanding includes knowledge and comprehension not only as to the nature of the charge, but also as to the penalty which can be imposed. See and compare Kotz v. United States, 353 F.2d 312 (8th Cir. 1965); Bailey v. MacDougall, 392 F.2d 155 (4th Cir. 1968). The decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), in effect held that in a State criminal proceeding a guilty plea can be compelled only if accepted in a manner analogous to Fed.Rules Cr.Proc., rule 11, 18 U.S.C. Rule 11 reads as follows:
      “A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.” Effective July 1, 1966.
      And it is clear from Boykin that there is a federally constitutional right to the determination of voluntariness of guilty pleas in State criminal proceedings. If the admonition of the range of punishment or knowledge or comprehension of the penalty involved affects whether the guilty plea was intelligently, knowingly and voluntarily entered, as it does, then a silent record as to such is not sufficient to support a conviction upon a guilty plea as in the instant case. Boykin v. Alabama, supra.

        Boykin, it is noted, does not place any burden on the defendant where the record is silent.
      It is a sad day for the jurisprudence of this State when high standards which have existed for many years are lowered when the efforts by the bar nationwide are to raise those standards.
      It is noted that the American Bar Association, Standards for Criminal Justice, Standards Relating to Pleas of Guilty, provide in Section 1.4 thereof in part:
      “The court should not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally and
      “(a) determining that he understands the nature of the charge;
      “(b) —
      “(c) informing him:
      “(i) of the maximum possible sentence on the charge, including that possible from consecutive sentences;
      “(ii) of the mandatory minimum sentence, if any, on the charge; and .

        Further, Section 1.5 thereof provides as follows:
      “The court should not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. By inquiry of the prosecuting attorney and defense counsel, the court should determine whether the tendered plea is the result of prior plea discussions and a plea agreement, and, if it is, what agreement has been reached. If the prosecuting attorney has agreed to seek charge or sentence concessions which must be approved by the court, the court must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the court. • The court should then address the defendant personally and determine whether any other promises or any force or threats were used to obtain the plea.”


source: Caselaw Access Project

author: ROBERTS, Judge.

license: Public Domain

text:
    Antonio MEDRANO, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 50,137.
    Court of Criminal Appeals of Texas.
    June 25, 1975.
    Alan Brown, Appleberry, Deyeso & Haase, San Antonio, for appellant.
    Joe Carroll, Dist. Atty., Bob D. Odom, Asst. Dist. Atty., Belton, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

Appellant was convicted of delivery of marijuana under the Controlled Substances Act. The jury assessed his punishment at five years’ confinement and a fine of three thousand dollars.

Appellant’s third ground alleges that the indictment is fatally defective for failing to allege the quantity involved or that the delivery was for remuneration. We agree.

Section 4.05 of the Controlled Substances Act provides, in part, as follows:

“Sec. 4.05 . . .
“(d) Except as otherwise provided by this Act, a person commits an offense if he knowingly or intentionally delivers marihuana.
“(e) Except as provided in Subsection (f) of this section, an offense under Subsection (d) of this section is a felony of the third degree.
“(f) An offense under Subsection (d) is a Class B misdemeanor if the actor delivers one-fourth ounce or less without receiving remuneration.”

In Wilson v. State, 520 S.W.2d 377 (Tex.Cr.App.1975), and Mears v. State, 520 S.W.2d 380 (Tex.Cr.App.1975), we held that:

“The failure of the indictment in the instant case to allege the amount of marihuana delivered or other allegations of remuneration so as to reflect what punishment was involved, whether the offense is a misdemeanor or felony, or whether the District Court had jurisdiction, renders the indictment fundmentally defective.” Wilson, supra, at 380.

The indictment in this cause is similarly defective. It follows that this case must be reversed.

Nor is it significant that no motion to quash the indictment was filed, since the error goes to the very jurisdiction of the District Court. See Wilson v. State, supra; Mears v. State, supra; and Price v. State, 165 Tex.Cr.R. 326, 308 S.W.2d 47 (1957).

The judgment is reversed and the prosecution ordered dismissed.

      . We observe that in Mears the appellant did not challenge the indictment in the trial court or on appeal.

      . In examining the record, we note that the only copy of the indictment included therein . is a photocopy. It appears that in the process of photocopying the original, the left edge of the indictment was inadvertently “cut off.” As a result, the indictment concludes “AINST [sic] THE PEACE AND DIGNITY OF THE STATE.” See Art. 21.02(8), Vernon’s Ann.C.C.P. Greater care should be taken in the preparation of the appellate record.


author: COULSON, Justice.

text:
    FIRST CONTINENTAL LIFE & ACCIDENT COMPANY, Appellant, v. Gloria Jean BOLTON, Appellee.
    No. 1078.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 28, 1975.
    Rehearing Denied June 18, 1975.
    Charles P. Merrill, Sherwood Gaines, Gaines & Merrill, Houston, for appellant.
    Vincent J. Musaehia, Houston, for appel-lee.
   COULSON, Justice.

This is a suit to collect the benefits of a life insurance policy.

On February 12, 1970, Gerald Glen Bolton applied to Union Standard Life Insurance Company for a policy of insurance on his life in the principal sum of $5,000. The application form for the policy was completed by Mr. Shields, an agent of Union Standard Life Insurance Company, during an interview with Gerald Glen Bolton. Present during the interview was Gloria Jean Bolton, the wife of Gerald Glen Bolton. The application designated Gloria Jean Bolton as the beneficiary of the life insurance policy. After the application form was completed by Shields it was signed by Gerald Glen Bolton. On February 25, 1970, the life insurance policy was issued by Union Standard Life Insurance Company as insurer, and delivered to Gerald Glen Bolton, the insured. A copy of the completed application, as signed by Gerald Glen Bolton, was attached to the life insurance policy when delivered. The insured, Gerald Glen Bolton, died on May 10, 1971, while the policy was in effect. The beneficiary, Gloria Jean Bolton, timely notified the insurer of the death of the insured and made a claim for the benefits under the policy. The insured denied the claim and refused payment under the policy.

On January 21, 1972, Gloria Jean Bolton, appellee, instituted suit against Union Standard Life Insurance Company seeking to recover the $5,000 face value of the life insurance policy, together with 12% penalty, reasonable attorney’s fees of $1,666.67, interest and costs of court.

The defendant, Union Standard Life Insurance Company, answered and asserted that it had been acquired by First Continental Life & Accident Insurance Company which was the proper party defendant and is the appellant in this proceeding. The insurer alleged in its defense: That the insured was suffering from seriously adverse health and physical conditions at the time he made application for the subject policy and at the time the policy was delivered to him; that the insured knowingly misrepresented his health condition in the application; that the adverse health condition of the insured was material to the risk; that such misrepresentation of his health condition was knowingly made by the insured with the intent to mislead and defraud the defendant; that the defendant was mislead by the false and untrue representations in the insured’s application; that the defendant would not have issued the subject policy if it had been truly informed of the adverse health condition of the insured; and that the death of the insured occurred less than fifteen months after the issuance of the subject policy. The insurer paid into the Registry of the Court all sums paid to it as premiums on the policy and requested that the court make proper distribution of the sums.

The case was tried before a jury. In response to special issues, the jury found that on February 12, 1970, Gerald Bolton made full disclosure of his past medical history to Mr. Shields (the insurance agent) in preparing his application for insurance; that Gerald G. Bolton in making his application for insurance made untrue statements; that the untrue statements were material; and that Gerald G. Bolton did not know that such statement or statements were untrue at the time such statements were made. The jury failed to answer the special issue inquiring if the insurer issued its insurance policy in reliance upon such untrue statement or statements and the special issue inquiring if Gerald G. Bolton wil-fully made an untrue statement or statements. The jury found that $1250 were reasonable attorney’s fees for the prosecution of the claim and suit. Based upon the jury’s answers the trial court entered judgment in the amount of $6,850 for Gloria Jean Bolton, the named beneficiary and ap-pellee herein.

In its first point of error, the appellant contends that the trial court erred in refusing to grant the appellant’s motion for judgment non obstante veredicto. The appellant urges that it has established its asserted affirmative defense of misrepresentation as a matter of law. In order to establish the defense of misrepresentation on an insurance contract, the appellant must show that the insured gave false and misleading information to the company on a material fact. The company must rely upon the misrepresentation in issuing the insurance policy. The misrepresentation must be made by the insured wilfully and with the intent to deceive the company and thereby induce the company to issue the policy. Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820 (Tex.Sup.1947); Prudential Insurance Company of America v. Torres, 449 S.W.2d 335 (Tex.Civ.App.—San Antonio 1970, writ ref’d n.r. e.). For this Court to sustain this point of error the appellant must demonstrate that each of these elements was established at the trial of the case.

The appellant cites the case of Odom v. Insurance Company of State of Penn., 455 S.W.2d 195 (Tex.Sup.1970), in support of its position. In Odom the Supreme Court determined that where an application for insurance contains false statements, and the application is signed by the applicant and attached to the contract of insurance which is returned to the applicant, the applicant is “conclusively presumed to have knowledge of its contents and to have ratified any false statements therein.” Odom, supra at 199.

In the case before this Court, the evidence shows that on February 12, 1970, Mr. Shields, an agent for the appellant insurance company, interviewed the insured and took his application for insurance. The application was filled in by Mr. Shields based on the insured’s response to the agent’s questions. The questions relied upon by the appellant to establish misrepresentation sought to determine whether the insured had ever been treated for or had any known indication of:

(d) heart trouble or murmur, chest pain, high blood pressure, or abnormal pulse?
(h) indigestion, liver trouble, appendicitis, intestinal trouble?
(j) cancer, tumor, ulcer, on any part of the body?

and whether the insured had “ever had X-Ray, Electrocardiogram, Blood Sugar, or any special laboratory tests?” All of these questions were marked “No”. The appel-lee, Gloria Jean Bolton, testified that in the course of the interview her husband told the insurance agent that he had once been treated for stomach trouble which had been diagnosed as indigestion and a nervous stomach, and that he had been X-Rayed at that time. The records of the family physician, Dr. George Johnson, were introduced by the appellee to demonstrate these facts. The records also show evidence of high blood pressure.

The application, completed by the agent, was signed by the insured and returned to the company for approval. On February 25, 1970, the policy was issued and returned to the insured with the application attached. Under the rule in the Odom case, the appellant conclusively showed that the insured knew that there were incorrect statements in the insurance application. However, there was a question of fact outstanding on the issue of intentional deception, upon which issue the appellant had the burden of proof.

The testimony of the appellee that the insurance agent was told of the past medical history and the outcome of past treatment, and the absence of any evidence that the agent indicated the presence of any difficulty with insurability upon hearing those facts, distinguishes this case from Odom. In Odom it was clear that the agent and the insured had been concerned about the insurability issue and there was strong evidence of collusion between the insured and the agent with the intent to defraud the insurance company. This same distinction holds true for the case of Johnson v. Prudential Insurance Co. of America, 519 S.W.2d 111 (Tex.Sup.1975). There, the insurance company had secured favorable jury findings on the issue of wilful deceit.

In this case it may be said that the insured was, under the Odom standard, negligent in failing to check through the answers marked on the application, but there is a question for the jury on the issue of intentional misrepresentation. The appellant has therefore failed to establish this defense as a matter of law.

Alternatively, in Odom, the representations made by the insured in the insurance contract were, by the terms of the contract expressly warranted to be true. The Supreme Court relied upon this warranty in holding that the insured was, as a matter of law, bound by the statements contained in the application. In Texas State Mut. Fire Ins. Co. v. Richbourg, 257 S.W. 1089 (Tex.Comm’n App.1924, jdgmt. adopted), relied upon the Supreme Court in Odom, the insured also warranted that the statements made in the contract were true. In this case, the parties have expressly agreed that “All statements made by any person insured hereunder as the basis for the contract shall, in the absence of fraud, be deemed representations and not warranties.” The application signed by the insured stated that:

The undersigned declares and agrees that (a)the above statements and answers are complete, true and are correctly recorded.

By the terms of the contract, the insured represented that the statements made in the application were correctly recorded. He did not warrant that they were so recorded. This contractual agreement between the parties takes the case out of the rule in the Odom case.

The contractual agreement placed the burden on the appellant to prove either that there was actual fraud by the insured, or that the insured was inspired by a deliberate purpose to injure the appellant. American Central Life Ins. Co. v. Alexander, 56 S.W.2d 864 (Tex.Comm’n App.1933, jdgmt. adopted); Universal Life & Accident Insurance Co. v. Burden, 294 S.W.2d 855 (Tex.Civ.App.—Fort Worth 1956, no writ). A factual question was raised, and there was evidence that there was no intent to defraud the insurance company. The ap-pellee’s testimony that the insured had told the agent of his prior difficulties, coupled with the lack of any evidence that the insured was told there might be trouble insuring him, gives rise to a possible inference that he had no intent to defraud the company. The appellant failed to establish this defense as a matter of law.

Although the appellant failed to establish its defense as a matter of law, it is entitled to a new trial in this case.

In response to special issue four which reads:

Do you find from a preponderance of the evidence that at the time such statement or statements, if any you have so found, were made Gerald C. Bolton knew such statement or statements to be untrue?

The jury responded “We do not”. Under Odom v. Insurance Company of State of Penn., supra, it is conclusively presumed that the insured had knowledge of the incorrect statements made by the agent on the insurance application. This special is-, sue inquired into the question of whether or not the insured knew those answers to be incorrect. Such an inquiry was irrelevant in light of Odom.

The questions on the application which were incorrectly answered, asked whether or not the insured had ever had an X-Ray, indigestion trouble or chest pains. It is the uncontroverted testimony of the appellee that the insured told the agent that the answers to these questions ought to be “Yes”. The effect of the Odom deci-' sion is to place the burden on the insured to check over the answers on the application when he signs it, or to inform the insurance company of errors discovered when the application is returned to the insured as part of the insurance contract. In this case, under Odom, the insured knew what answers had been recorded by the agent, and, by the appellee’s testimony, the insured knew that the recorded answers did not correctly state the facts.

The jury did not answer those special issues dealing with the insured’s state of mind when answering the relevant questions on the application for insurance. Those issues were not answered because they were predicated upon an answer of “We do” to special issue number four. As noted above, the jury answered “We do not” to special issue number four and such answer was not permissible under Odom. The question of fact as to intent remains outstanding and this case must be remanded for new trial and a determination of whether or not the insured intentionally defrauded the insurance company.

Reversed and remanded.

      . The application which was signed in the Odom case read as follows:
      I hereby warrant the truth of the above statements and I declare that I have not withheld any information whatever which might tend in any way to increase the risk of the company or influence the acceptance of this application, additionally, I warrant that my automobile will be operated only by persons holding valid drivers’ licenses. I understand that any false statement by me will constitute a breach of warranty and cause the policy to be void as provided by the conditions of the policy. I agree that this application shall be the basis of the policy between me and the company. Odom v. Insurance Company of State of Pa., 441 S.W.2d 584, 586 (Tex.Civ.App.—Austin 1969) affirmed, 455 S.W.2d 195.
      This is compared with the language in this case which reads:
      The undersigned declares and agrees that (a) the above statements and answers are complete, true and are correctly recorded; (b) this Application consisting of Part 1 and Part 2 if requested by the Company, shall become part of any policy issued hereon; (c) the insurance shall commence after both (1) a policy issued by the Company is manually delivered to the Owner during the continued good health of the Proposed Insured, his wife if listed in question IB and all children listed in question 6 and (2) the first premium is paid; (b) acceptance of any Policy issued on this Application shall constitute a ratification of any additions or corrections made by the Company and noted in the space entitled “Home Office corrections and additions.” I also agree that the following authorization for additional information shall be part of this Application.


author: TUNES, Chief Justice.

text:
    John C. ECHOLS et al., Appellants, v. E. E. BREWER et ux., Appellees. John C. ECHOLS et al., Appellants, v. Gary McCONNELL, Appellee.
    Nos. 1172, 1195.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    June 4, 1975.

      J. Clifford Gunter, III, Mike A. Pohl, Bracewell & Patterson, Houston, for appellants.
    Wiley Thomas, Jerry Benedict, Angleton, W. Dan Myers, Dearman, Myers & Brown, Houston, for appellees.
   TUNES, Chief Justice.

On December 2, 1974, John C. Echols and Robert K. Carter filed suit in the 190th District Court of Harris County against E. E. Brewer and wife, Dorothy Brewer, Gary McConnell, and William Taylor. The petition alleged the existence of a shareholders’ voting agreement between the plaintiffs and E. E. Brewer and sought enforcement. It also alleged the existence of a fiduciary relationship on the part of E. E. Brewer and the fraudulent breach by E. E. Brewer of his fiduciary duties to the plaintiffs for which damages and other relief were sought. Brewer and wife were alleged to be residents of Brazoria County and McConnell and Taylor residents of Harris County.

The record, as shown by the transcripts filed in this Court, is somewhat confusing as to the proceedings in the trial court following the filing of plaintiffs’ petition.

On December 11,1974, Taylor filed a plea of privilege to be sued in Galveston County, where he allegedly resided. On December 20, plaintiffs controverted Taylor’s plea, alleging an exception under subdivision 4 of Vernon’s Tex.Rev.Civ.Stat.Ann. art. 1995 (1964). The transcript included an order signed March 5, 1975, by the judge of the 190th District Court reciting that Taylor’s plea of privilege was heard on January 27, 1975 and denying the plea of privilege “without prejudice.” That order also recited “. . . that Plaintiffs will have ninety (90) days in which to effectuate service on Defendant, Gary McConnell; and that in this interim period William Taylor’s plea of privilidge [sic] may not be re-urged and will not be entertained by this court. . . . ” Counsel for plaintiffs and for Taylor noted their approval of that order by their signatures. Taylor’s counsel does not appear as counsel for any of the parties in these appeals.

On December 16, 1974, defendants E. E. Brewer and wife filed their pleas of privilege and answers subject thereto. On December 20, the plaintiffs controverted the Brewers’ pleas of privilege, again claiming the exception of subdivision 4. On January 21, 1975, this controverting affidavit was amended so as to allege also the exception provided by subdivision 7 of Article 1995.

On January 30, 1975, McConnell filed his plea of privilege and answer subject thereto alleging his residence to be in Brazoria County. The plaintiffs and their counsel were not served with a copy of this plea until February 13, 1975.

Also on January 30, 1975, the judge of the 152nd District Court of Harris County signed an order setting a hearing “on the Pleas of Privilege in the captioned cause” for February 17, 1975. The transcript does not show at whose request this order of setting was made, but it seems he conceded that it was at the request of counsel for the defendants Brewer and McConnell and that plaintiffs and their counsel did not receive notice of it until February 12, 1975.

An order signed by the judge of the 152nd District Court on February 18, 1975 recites that on February 17

the Court asked for announcements on the hearing of the Pleas of Privilege of the Defendants, E. E. Brewer and Dorothy Brewer and the Plaintiffs announced that they were not ready and presented a Motion for Continuance of said hearing, and the attorney for the Defendants announced ready; the Court proceeded to hear the Motion for Continuance filed by the Plaintiffs, John C. Echols and Robert K. Carter, and after hearing the argument of the attorneys, is of the opinion and finds that the same should be overruled. .

There then follows a formal order overruling the motion for continuance. The order then recites,

WHEREUPON, the Court proceeded to hear the Pleas of Privilege of the Defendants, E. E. Brewer and Dorothy Brewer and the Controverting Affidavit filed by the Plaintiffs in reply thereto, and after Plaintiffs announced they would not offer evidence is of the opinion and finds that said Pleas of Privilege should be sustained.

There then follows an order “. . . that said Pleas of Privilege of the Defendants, E. E. Brewer and Dorothy Brewer be, and the same is hereby sustained and same is transferred to the District Court of Brazo-ria County, Texas.”

The appellants appealed from this order. As to it, their complaints are that the trial court erred in overruling their motion for continuance and that the order is not in proper form.

As noted above, plaintiffs were not served with a copy of McConnell’s plea of privilege until February 13. The ten days they were allowed, under Texas Rules of Civil Procedure, rule 86, to controvert that plea had not passed by the date of the hearing before the 152nd District Court on February 17. For that reason the trial court did not, and could not, rule on McConnell’s plea in the February 17 hearing. The order signed following that hearing sustained only the pleas of privilege of the Brewers.

On March 10, 1975, the plaintiffs filed a motion for extension of time in which to controvert the plea of privilege of McConnell. On March 24, that motion was overruled by the trial court and an order entered sustaining McConnell’s plea and transferring the case as to him to Brazoria County. The plaintiffs appeal from that order on the ground that the court erred in overruling their motion for extension of time in which to file their controverting affidavit.

The first position taken by appellants is that the trial court erred in overruling their motion to postpone the plea of privilege hearing set for February 17. As grounds for such postponement, appellants stated in their motion:

6. The reasons for requesting the postponement were and are that both Plaintiffs, Robert K. Carter and John C. Echols, have previous business engagements which will require them to be out of town on February 17, 1975. Mr. Echols is engaged in business in Jasper, Texas on that date and Mr. Carter must be in Waco, Texas to meet prior business commitments on that date. These commitments were scheduled far in advance of the requested hearing for February 17, 1975; they were specifically scheduled on Monday, February 17, 1975 as that day is a banking holiday. Both Plaintiffs are engaged in the banking business.
7. The undersigned counsel, J. Clifford Gunter III, lead counsel for Plaintiffs in this cause, also had prior commitments which will make it necessary for him to be out of Houston, Texas on Monday, February 17, 1975.

They also stated that the testimony of Robert K. Carter was “absolutely essential” for proof of the fraud alleged in their petition and relevant to their subdivision 7 exception alleged in their controverting plea.

For several reasons the motion did not meet the requirements of Tex.R.Civ.P. 252. It did not show the diligence used to arrange for the presence of Echols and Carter. It did not show that their “business engagements” could not be rescheduled. It did not show that the nature of the business engagements was such as to require the personal presence of Echols and Carter and that they could not be represented at the meetings by someone else. Since the missing witnesses were parties, a motion for continuance based on their absence was addressed largely to the discretion of the trial court. Condry v. Mantooth, 460 S.W.2d 513 (Tex.Civ.App.—Houston [1st Dist.] 1970, no writ); Erback v. Donald, 170 S.W.2d 289 (Tex.Civ.App.—Fort Worth 1943, writ ref’d w. o. m.).

In another respect appellants’ motion for continuance failed to strictly comply with Rule 252. It merely stated that Mr. Carter’s testimony was “absolutely essential” on the issues of the appellees’ fraud. Rule 252 requires that if a continuance is sought on the ground of want of testimony, it must be upon “. . . affidavit that such testimony is material, showing the materiality thereof . . . .” The conclusion statement in the appellants’ motion does not meet that requirement. Emmco Insurance Company v. Burrows, 419 S.W.2d 665 (Tex.Civ.App.—Tyler 1967, no writ); Davis v. National Acceptance Co., 233 S.W.2d 321 (Tex.Civ.App.-Dallas 1950, writ ref’d n. r. e.).

Even if the appellants’ motion had been in strict compliance with Rule 252, the trial court could have examined the allegations as to diligence in the light of the record before it and, if that record sustained a finding of lack of diligence, could properly, in its discretion, have overruled it. Fritsch v. J. M. English Truck Line, 151 Tex. 168, 246 S.W.2d 856 (1952).

Appellants’ motion for continuance based on the absence of Mr. Gunter, designated as their lead counsel, was also addressed to the discretion of the court. Browne v. Jefferson County, 507 S.W.2d 293 (Tex.Civ.App.—Beaumont 1974, writ ref’d n. r. e.); Tex.R.Civ.P. 253. While Mr. Gunter was the one who had signed the plaintiffs’ pleadings, the name of Mr. Mike A. Pohl, another member of the same firm, also appeared on the pleading as attorney of record. Before the plea of privilege hearing, there had been a hearing before the same judge on an application for temporary injunction. Mr. Pohl appeared in behalf of the plaintiffs at the plea of privilege hearing. In fact, in oral presentation of the case in this Court, Mr. Pohl made the opening argument by which he demonstrated himself quite able to represent the plaintiffs. The trial court could well have believed that Mr. Gunter’s absence, if unavoidable, did not deprive the plaintiffs of capable representation. Furthermore, plaintiffs’ motion did not adequately show facts making it necessary for Mr. Gunter to be absent. See Piano v. Gulf Coast Investment Corporation, 429 S.W.2d 554 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ dism’d).

The trial court did not commit reversible error in overruling the plaintiffs’ motion for continuance.

The appellants also complain of the form of the judgment rendered after the hearing of the Brewers’ pleas of privilege. The language of that judgment is set forth above. Appellants’ complaint as to the language of the judgment includes a complaint that it does not specify whether all or only a part of the ease was to be transferred to Brazoria County. This objection is well taken.

Plaintiffs’ petition alleges that they and Brewer entered into a written shareholders’ agreement which was intended to and did give the three of them voting control of the First Danbury State Bank of Danbury, Texas. A copy of that agreement is attached to plaintiffs’ petition. They alleged a breach of that agreement by Brewer (and other breaches of duty by him). They alleged that Brewer, with the help of his wife, McConnell, and Taylor, circulated another shareholders’ agreement in violation of Brewer’s agreement with them. Among the items of relief for which they asked in their prayer was an adjudication “[tjhat the voting agreement presently being circulated by Defendants be in all respects can-celled and held null and void. . . . ”

It is our opinion that the cause of action pleaded by plaintiffs, as to the enforcement of the shareholders’ agreement between themselves and Brewer and the cancellation and annulment of the shareholders’ agreement being circulated by the defendants which was in conflict therewith, was a joint cause of action against all of the defendants. It was not severable as between the defendants. Tex.R.Civ.P. 89 provides that where the plea of privilege of one defendant is sustained, if the cause of action is severable as to the parties defendant, it may be ordered transferred as to the defendant whose plea is sustained but not as to all defendants. Where, as here, the cause of action is not severable as between the defendants, and one or more defendant’s plea of privilege is sustained, the entire cause, as against all defendants, must be transferred to the county of the residence of that defendant whose plea is sustained. Thus, when the trial court, within its discretion, as we have held, overruled the plaintiffs’ motion for continuance and they, when called on to do so, offered no evidence as to the Brewers’ plea of privilege, the court should have rendered judgment that the entire case, as against all defendants, be transferred to Brazoria County. International Harvester Company v. Stedman, 324 S.W.2d 543 (Tex.Sup.1959).

Since the trial court, upon the sustaining of the pleas of privilege of the defendants, Brewer and wife, should have transferred the entire case to Brazoria County, its error, if any, in denying the plaintiffs’ motion for extension of time to file their controverting affidavit to the plea of privilege of the defendant, McConnell, and in sustaining his plea to be sued in Brazoria County, is harmless.

The judgment of the trial court is modified so as to order that the entire case be transferred to the District Court of Brazo-ria County and, as so modified, is affirmed.


author: STEPHENSON, Justice.

text:
    J. Norman WELLS et al., Appellants, v. CITY OF KILLEEN, Appellee.
    No. 7708.
    Court of Civil Appeals of Texas, Beaumont.
    June 12, 1975.
    Rehearing Denied July 10, 1975.

      Terral R. Smith, Austin, for appellants.
    J. Rush Milam, III, Killeen, for appellee.
   STEPHENSON, Justice.

This is an appeal from an order of the trial court granting the application of the City of Killeen for a permanent injunction. The parties will be referred to here as they were in the trial court.

The injunction granted restrains J. Norman Wells, and other defendants named, from using the premises in question for theatrical purposes and from violating two city ordinances of the City of Killeen. Trial was before the court and findings of fact and conclusions of law were filed. The trial court found that defendants had violated both the zoning ordinance and the theater licensing and regulating ordinance.

The two ordinances complained of here will be referred to as the “Zoning Ordinance” and the “Licensing Act.” The Zoning Ordinance provides in substance that there is hereby created a new zoning classification for the purpose of regulating the establishment and operation of theaters. City Council by three-fourths or more vote may grant a special permit for theater use, and may impose appropriate reasonable conditions and safeguards.

The Licensing Act provides, in substance: That it shall be unlawful to exhibit or maintain any show unless the exhibitor shall first pay a license fee or occupation tax and secure a permit in writing from the city. The City Council can demand a bond from the exhibitor in such sum as in the discretion of the Council is deemed sufficient for the protection of the city and the general public, conditioned that the exhibitor pay off all damages assessed against it by reason of giving the show or exhibition. It provides for a fine for violation of this ordinance and that each exhibition shall constitute a separate offense.

Defendants have four points of error attacking the validity of the zoning ordinance on the following grounds:

1. Public notice before the adoption was inadequate and insufficient.
2. Written notice was not sent to the affected property owners.
3. The ordinance was void, because it is arbitrary, unreasonable, discriminatory, and has no relation to the public health, safety morals, or general welfare.
4. The ordinance is void because it violates the 1st, 4th, and 14th amendments to the United States Constitution.

Defendants’ argument as the insufficiency of the notice is, in substance, that the newspaper publication did not contain the words “zone” or “zoning” and was, therefore, inadequate. Such notice was to the effect that the City of Killeen would have a public hearing at a specified time and place, and included this statement:

“The purpose of this public hearing is to consider adoption of an ordinance by the City of Killeen regulating movie theaters in the city.”

The enactment of zoning laws is an exercise of the police powers of the State by the legislative branch of our State government. The State has delegated some of its authority to municipalities. Vernon’s Tex.Rev.Civ. Stat.Ann. arts. 1011a-1011j. Art. lOUd reads as follows:

“The legislative body of such municipality shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established, and enforced, and from time to time amended, supplemented, or changed. However, no such regulation, restriction, or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least 15 days’ notice of the time and place of such hearing shall be published in an official paper, or a paper of general circulation, in such municipality.”

Defendants’ argument as to the failure to send the written notice to the property owners is, in substance, that in this case such written notice was required of art. lOllf to be sent to all property owners in the city. It is agreed that written notices were not sent to anyone. Art. lOllf provides, in part, as follows:

“Written notice of all public hearing before the Zoning Commission on proposed changes in classification shall be sent to owners of real property lying within two hundred (200) feet of the property on which the change in classification is proposed, such notice to be given, not less than ten (10) days before the date set for hearing, to all such owners who have rendered their said property for city taxes as the ownership appears on the last approved city tax roll.”

These questions raised by defendants constitute a collateral attack upon the validity of the zoning ordinance. The burden of proof was upon them to show that such ordinance was void ab initio. Among other things, defendants had to prove that they were entitled to be given adequate published notice as well as mailed notice of the hearing to adopt such ordinance. In order to do that, defendants had to show that their property was in a zone in which they could have operated a theater before the adoption of this zoning ordinance. If the property in question in the case before us was located in a zone in the comprehensive zoning ordinance which did not permit the operation of a theater, then they were not entitled to either a published or a written notice of such hearing. Defendants simply have not shown that they were situated in a category entitled to have either of such notices, and cannot here be heard to complain about the inadequacy of notice before the zoning ordinance was adopted.

In passing upon the other two facets of defendants’ attack upon the zoning ordinance, as shown above (3 and 4), we are bound to follow the principles of law set forth in City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477, 480-481 (1955). In holding that the zoning amendments in question were valid, these rules were announced:

“[2] Since it is an exercise of the legislative power of the city’s council, the ordinance must be presumed to be valid.
“[3,4] The courts cannot interfere unless it appears that the ordinance represents a dear abuse of municipal discretion. And the ‘extraordinary burden’ rests on one attacking the ordinance ‘to show that no conclusive, or even controversial or issuable, facts or conditions existed which would authorize the governing board of the municipality to exercise the discretion confided to it.’ City of Dallas v. Lively, Tex.Civ.App., 161 S.W.2d 895, 898, error refused, quoting from King v. Guerra, Tex.Civ.App., 1 S.W.2d 373, error refused.
“[5,6] The presumption of validity accorded original comprehensive zoning applies as well to an amendatory ordinance. Weaver v. Ham, 149 Tex. 309, 232 S.W.2d 704. In either case the courts have no authority to interfere unless the change is clearly unreasonable and arbitrary. Clesi v. Northwest Dallas Improvement Ass’n, Tex.Civ.App., 263 S.W .2d 820, 827, error refused, N.R.E., quoting 62 C.J.S., Municipal Corporations, § 228, p. 561.
“[7, 8] If reasonable minds may differ as to whether or not a particular zoning restriction has a substantial relationship to the .public health, safety, morals or general welfare, no clear abuse of discretion is shown and the restriction must stand as a valid exercise of the city’s police power. City of Corpus Christi v. Jones, Tex.Civ.App., 144 S.W.2d 388, error dism., correct judgt. Otherwise expressed by the court in the case just cited, if the issue of validity is fairly debatable courts will not interfere.”

Defendants in this case had the burden of showing that reasonable minds could not differ as to whether or not the zoning ordinance involved in the case before us had a substantial relationship to the public health, safety, morals or general welfare of the City of Killeen. This the defendants totally failed to do. The points of error as to the validity of the zoning ordinance are overruled. See Baccus v. City of Dallas, 454 S.W.2d 391 (Tex.1970) and Westworth Village v. Mitchell, 414 S.W.2d 59 (Tex.Civ.App.—Ft. Worth 1967, writ ref’d n. r. e.).

Defendants have a point of error to the effect that an injunction is not available as a remedy because the licensing act provides for a fine in the event of a violation of that ordinance. It is true that the general rule is that injunctions may not be used to prevent violations of penal statutes or laws. Defendants cite Lammon v. City of San Antonio, 223 S.W.2d 533 (Tex.Civ.App.—San Antonio 1949, writ ref’d n. r. e.) and City of San Antonio v. Schutte, 246 S.W. 413 (Tex.Civ.App.—San Antonio 1922, no writ), in support of that contention. However, in the case before us, we have a violation of the zoning ordinance as well as the licensing act, and, under Tex.Rev.Civ. Stat.Ann. art. lOllh and the cases construing it, injunctive relief is available to restrain violations of the zoning ordinance. See cases annotated under art. lOllh. This point is overruled.

Affirmed.


author: BISSETT, Justice.

text:
    H. L. CHOLEVA, Appellant, v. SPARTAN AVIATION, INC., Appellee.
    No. 973.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 26, 1975.
    Randall P. Crane, Chavez & Barnard, Harlingen, for appellant.
    Albert E. Coneway, Harlingen, for appel-lee.
   OPINION

BISSETT, Justice.

This is a summary judgment case. H. L. Choleva sued Spartan Aviation, Inc. to recover damages for an alleged breach of an employment contract. Summary judgment, following a motion therefor, was rendered for Spartan Aviation, Inc., defendant-appel-lee. H. L. Choleva, plaintiff-appellant, has appealed.

Suit was instituted by appellant on November 10, 1972. The action is based upon an alleged employment contract with appel-lee, which, according to the allegations contained in the original petition (the trial petition) covered a two-year period of time that began on April 12, 1971 and terminated on April 12,1973. It was further alleged that the contract was wrongfully terminated by appellee on January 28, 1972. Appellant sought to recover for the loss of salary from January 29,1972 to April 12,1973 and for the money value of additional benefits that allegedly would have accrued under the contract had it not been terminated.

In addition to a general denial, appellee pled that the contract sued on was unenforceable under the Statute of Frauds. Appellant did not, by amended or supplemental petition, reply to appellee’s plea that the contract was in violation of the Statute of Frauds, although he did claim that there was “a written agreement” in his written opposition to appellee’s motion for summary judgment.

Appellant, in three points of error, complains that it was error to grant a summary judgment to appellee because: appellee failed to show that there was no genuine issue of fact; part performance of the contract removed it from the Statute of Frauds; and if in fact no signed contract or written memorandum thereof existed, appellant should have been allowed to amend his pleadings in order to recover under an oral contract. None of the points can be sustained.

Appellee’s motion for summary judgment was based on the grounds: 1) the contract sued on was not in writing, and if so, was not signed by it, the person sought to be charged with the payment provisions under such contract; and 2) the contract was in contravention of that provision of the Statute of Frauds which requires that any agreement which is not to be performed within one year from the making of the agreement is not enforceable by either party unless such agreement is in writing and signed by the person to be charged with the promise or agreement, or by someone lawfully authorized to sign for him.

Appellant, in his written response to ap-pellee’s motion for summary judgment, contended: 1) that “there was a written agreement as to the terms of his employment contract signed by defendant”; 2) that “if all discovery requested of defendant is completed, this written contract will be disclosed”; 3) that “if no written memorandum of the employment agreement is found, summary judgment still should not be granted since plaintiff’s damages can be sustained on the basis of oral contracts for a period of a year or less which were renegotiated from time to time as alleged in plaintiff’s original petition”; and 4) “whether or not such oral contract did exist in which plaintiff is entitled to recover the alleged damages is a question of fact”.

Summary judgment evidence consisted of appellee’s answers to written interrogatories which it filed on April 11, 1973, and appellant’s deposition which was taken on January 4, 1974. Appellee, in reply to the first interrogatory, admitted that appellant had been employed by it, and in reply to a question asked in the second interrogatory stated that the dates on which each term of his employment began and terminated were: “June 1, 1970 through December 31, 1970; April 12, 1970 through January 28, 1972”.

Appellant, in his deposition, said that his contract negotiations were with Jim O’Rourke, the Vice-President and General Manager of the appellee corporation; that they worked out “an agreement for regular employment” about June 5, 1970, effective June 1, 1970; that a discussion was had with respect to annual salary, expense allowances and other benefits in connection with his employment “for a minimum of six months”; that he had additional negotiations with O’Rourke concerning his employment subsequent to June 5, 1970; that on April 10,1971 he and O’Rourke “got together for a short time, about an hour or so”, when the matter of employment and compensation was discussed; that he had a sheet prepared with his main requirements; that he delivered the sheet to O’Rourke at that time; that the next Monday, Bernice Cole, “the local girl who took care of personnel”, wanted him to sign the standard employee contract that she had filled out and signed, . . . that he did not sign it because he “had a different agreement with O’Rourke”. The two documents were attached to and made part of the deposition as exhibits. The document referred to by appellant as “the standard contract” is a printed form with a line for signature by appellee’s “Personnel Director” and a line for signature by the employee. The printed form of the employment contract which appellant said was tendered to him (as his employment contract) is not signed by a corporate officer of the appellee corporation, but is signed by Bernice Cole. There is no showing that Bernice Cole was authorized to sign the document as the act of appellee. The document was not signed by appellant. The instrument does not set out any term or period of time covered by the contract. The “sheet”, which appellant prepared, consists of a blank piece of paper upon which plaintiff hand-printed four requirements which he wanted incorporated in his employment contract. It was not signed by anyone; it did not mention a time-period of employment. Appellant acknowledged in his deposition that no formal written contract was ever executed by the parties, and that he had not asked for nor had he received a signed employment contract from appellee for the two year period commencing April 12, 1971.

Appellant also stated in his deposition that following his conversations with O’Rourke on or about April 10, 1971, he then contacted Jerry Dicks, the “supervisor when it came to details at Spartan”, and asked for a copy of the standard memorandum agreement relating to employment contracts; that he was told the company did not have a standard employment agreement, except for Philippine contract labor on Wake Island, and that all that was required for a contract was for O’Rourke to make a note of the agreement made and put it in appellant’s personnel file; that he (appellant) and O’Rourke “went over some of these things again”; that he explained the conversation with Jerry Dicks to O’Rourke, and O’Rourke said that he would “take care of it”; that during the negotiations with O’Rourke he (appellant) “insisted on long term employment for a period of about two years”; that he reached such an agreement with O’Rourke; and that O’Rourke agreed to provide a memorandum of agreement for the long term employment of two years.

Tex.Bus. & Comm.Code Ann., V.T.C.A. § 26.01(a), (b)(6), invoked by appellee, provides:

“(a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is
(1) in writing; and
(2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.
(b) Subsection (a) of this section applies to
******
(6) an agreement which is not to be performed within one year from the date of making the agreement;

The present controversy does not concern “a series of employment agreements between plaintiff and defendant which span a period from around June 1, 1970 through plaintiff’s termination on January 28, 1972”, as argued by appellant in his brief. The sole employment agreement involved in this case is the agreement that was made in April, 1971.

Appellant, in his deposition, makes repeated references to a written memorandum of his employment contract which he says was to be signed by defendant and filed in his “personnel file”. However, the record does not contain a written memorandum of an employment contract which is signed by anyone lawfully authorized to sign the same for appellee. The writings (the printed contract form and the “sheet”), which are attached to the deposition, were placed in appellant's “personnel file,” and while such action is in accord with the usual, proper and reasonable administrative procedures pertaining to the keeping of business records, the fact that the printed form was signed by Bernice Cole, standing alone, is not sufficient to show that she was lawfully authorized to sign the same for appellee. It affirmatively appears that the agreement between appellant and O’Rourke was the only agreement reached by and between appellant and appellee. That agreement was for two years. It was unenforceable under the Statute of Frauds. It was established as a matter of law that there is no genuine issue as to any material fact in this case.

The employment contract was not removed from the bar of the Statute of Frauds because of partial performance. Chevalier v. Lane’s, Inc., 147 Tex. 106, 213 S.W.2d 530 (1948), is controlling of that contention. There, Lane’s, Inc., the employer, and Chevalier, the employee, entered into an oral agreement on February 18, 1945, whereby it was agreed Chevalier would go to work for Lane’s, Inc. for one year, at an annual salary, payable in monthly installmentSj and in addition thereto, would be paid $1,500.00 bonus at the end of each six-months period. Chevalier went to work under the terms of the verbal agreement on March 1, 1945; he worked for six months (and was paid his monthly salary), at which time he was dismissed without cause and was not paid the bonus. He then filed suit to recover a) the bonus due him at the end of the six-months period, and b) the remaining balance due him under the agreement. He reasoned that the bonus was not within the Statute of Frauds since it was due within one year from the date the agreement was made, and that he was entitled to the other contractual benefits because part performance of the agreement took it out from under that section of the Statute of Frauds relating to oral agreements which were not to be performed within the space of one year from the date the agreement was made. The trial court granted the defendant’s motion for judgment non obstante veredicto on the ground that the contract sued on was entirely oral and was one which could not be performed within one year from the time it was made (February 18, 1945) and was, therefore, in violation of the Statute of Frauds. Judgment was rendered that Chevalier take nothing. The Beaumont Court of Civil Appeals affirmed that judgment (208 S.W.2d 113), and the judgments of the trial court and the Court of Civil Appeals were affirmed by our Supreme Court.

In the instant case, the contract sued on was not shown to be in writing. It was made on April 12, 1971. It covered a two-year period of time. It was breached on January 28, 1972, some nine months, two weeks and a few days after it was made. In accord with the rule announced in Chevalier v. Lane’s, Inc., supra, we hold that the services performed by appellant from April 12, 1971 through January 28, 1972 did not take the contract out of the operation of the Statute of Frauds.

We do not agree with appellant that “summary judgment should not have been granted to defendant if some (or all) of plaintiff’s damages could have been sustained by repleading” (as stated in his brief). Appellant’s first set of written interrogatories were served on appellee about February 1, 1973. Appellee, in his reply, filed on April 10, 1973, answered some of the interrogatories, but refused to answer interrogatories 6, 7 and 8. A second set of written interrogatories was served on ap-pellee on October 18, 1974. They were not answered by appellee. The trial court, by order made and signed on November 4, 1974, set appellee’s motion for summary judgment for hearing on November 19, 1974. Counsel for appellant was notified of that action on November 4, 1974. Written opposition to the motion was filed by appellant on November 19, 1974. Summary judgment in appellee’s favor was rendered on November 27, 1974.

Appellant did not attempt to compel ap-pellee to reply to all of the interrogatories, as provided by Rule 168, Texas Rules of Civil Procedure. Nor did appellant seek additional time to oppose appellee’s motion for summary judgment under the provisions of Rule 166-A(f), T.R.C.P. Appellant did not amend his pleadings. He has not shown that he was prevented by either appellee or the trial court from either amending his petition so “that he could have recovered under the terms of an oral contract”. He filed no pleadings in reply to appellee’s plea which raised the Statute of Frauds as a defense to the action brought by him. There is nothing in the record which indicates that an enforcement of the Statute of Frauds would itself amount to a fraud on appellant.

We know of no Rule of Civil Procedure, Statute, or case which denies a trial court the power to render summary judgment on the ground that a litigant might, at some future stage in the proceedings, amend his pleadings in some way that would avoid the rendition of a summary judgment. If that were the case, it would be impossible ever to render summary judgment against a litigant.

We have carefully reviewed the record and have considered all of appellant’s points of error. They are all overruled. The trial court correctly rendered summary judgment for appellee that appellant take nothing by his suit.

The judgment of the trial court is affirmed.


author: SPURLOCK, Justice.

text:
    LIBERTY MUTUAL INSURANCE COMPANY for Danill E. Migura, Jr., Appellant, v. CITY OF FORT WORTH, Appellee.
    No. 17629.
    Court of Civil Appeals of Texas, Fort Worth.
    June 13, 1975.
    Rehearing Denied July 11, 1975.

      Richard B. Ouer, Dallas, for appellant.
    S. G. Johndroe, Jr., City Atty., and Wallace T. Keller, Asst. City Atty., Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

This is a suit brought by appellant, Liberty Mutual Insurance Company, by way of subrogation under the name of its insured, Daniil E. Migura, Jr., to recover for its payment to Migura for property damage to his vehicle. Migura will be referred to as plaintiff and the City of Fort Worth will be referred to as defendant.

Plaintiff was unable to obtain service on some of the defendants, the cause of action as to another defendant was dismissed, and plaintiff has abandoned his suit against all defendants except the City of Fort Worth.

This Court has heretofore held that this is an appealable judgment. Liberty Mutual Insurance Company for Danill E. Migura, Jr. v. City of Fort Worth, 517 S.W.2d 646 (1975).

Plaintiff alleged the damages to be an amount within the jurisdiction of the trial court. The petition did not mention the Charter of the City of Fort Worth and was silent as to whether or not there were any charter provisions applicable and whether or not those provisions had been complied with prior to the filing of the suit. The petition on its face showed that the trial court had jurisdiction of the amount in controversy, the subject matter of the suit, and defendant by filing its answer, submitted itself to the jurisdiction of the Court.

The City of Fort Worth filed an instrument entitled, “Plea to the Jurisdiction”, in which instrument the City set forth its charter provision which provided if a person has a claim against the City for personal injury or injury to or destruction of property then such claimant must file under oath notice and claim with the City within 60 days of the happening of such event. In such pleading the City alleged that this charter provision was not complied with and that therefore, “. . . plaintiff’s suit be abated and dismissed with prejudice . .” The plea was verified by the City Secretary and was supported by an affidavit from the City Secretary to the effect that his records did not reflect any such claim having been filed and a certificate that the attached document was a true copy of the official charter of the City of Fort Worth.

A hearing was held on the plea to the jurisdiction or abatement. The court, after considering the plea, the affidavit, and document attached to the plea, then announced that the Court was sustaining the plea and dismissing the case. Before judgment was signed plaintiff filed a supplemental petition pleading that the City was estopped from asserting this provision of the Charter because the City had taken such action on the claim that amounted to an estoppel. After such pleading was filed the court then signed the judgment dismissing this cause of action and sustaining the plea to the jurisdiction and abatement.

We reverse and remand.

The plea to the jurisdiction and abatement has some of the elements of a general demurrer, a speaking demurrer, a motion for summary judgment, and plea in bar.

Where the plaintiff alleges a cause of action for damages to property in an amount that is within the jurisdiction of the court where the case is filed, usually, the burden of proof is upon the defendant to prove its plea to the jurisdiction and also to prove the allegations in its plea in bar. A plea to the jurisdiction is inappropriate where the claim is that the petition fails to state a mature cause of action because it does not allege the satisfaction of claimed conditions precedent. 2 McDonald Texas Civil Practice (1970 Ed.), “Pleading: Answer,” Sec. 7.07 — D., “Pleas to the Jurisdiction,” pp. 177-178.

Jud v. City of San Antonio, 143 Tex. 303, 184 S.W.2d 821 (1945) is a suit for declaratory judgment to set aside pension board’s order denying plaintiff a pension. The defendant filed a plea to the jurisdiction, a hearing was held, evidence introduced, then the court sustained a plea to the jurisdiction. The Court held as follows: “By Texas Rule of Civil Procedure, No. 90, it is provided that a general demurrer shall not be used. To dismiss a plaintiff’s case upon sustaining a plea to the jurisdiction on the ground that his petition is insufficient to state a cause of action when he is praying for judgment for an amount within the jurisdiction of the Court, is even a more summary proceeding than to sustain a general demurrer. This is true for the reason that, upon sustaining a demurrer the Court does not dismiss the case until the plaintiff has been afforded an opportunity to amend, whereas, upon sustaining such plea the plaintiff is not afforded that opportunity.”

The court further held that this type of defense is not to be determined by a motion in limine. The effect of the trial court’s ruling was that the court had no jurisdiction to consider the case at all and not even exceptions to the pleadings.

The courts have generally held that a party should be afforded an opportunity to amend his pleadings. Ragsdale v. Rags-dale, 520 S.W.2d 839 (Fort Worth Civ.App., 1975, no writ hist.).

In the case of Metalab Equipment Co. v. Spring Branch Ind. Sch. Dist., 378 S.W.2d 347 (Tex.Civ.App.—Houston, 1964, writ ref., n. r. e.), reversed with per curiam opinion 381 S.W.2d 48 (Tex.Sup., 1964), the Court of Civil Appeals had before it a case in which the trial court had sustained the School District’s plea in abatement and plea to the jurisdiction by reason of the failure of plaintiff’s petition to allege that he had requested a hearing before the Board of Trustees. That court stated as follows: “Since no evidence was presented at the hearing on the plea in abatement, appellant’s petition must be presumed to state the facts pled correctly and it must be construed in the light most favorable to appellant. Taylor v. United Ass’n of J. and A. of Plumbing, etc., Tex.Civ.App., 337 S.W.2d 421, ref. n. r. e.; Turman Oil Co. v. Roberts, Tex.Civ.App., 96 S.W.2d 724, writ ref.”

If such pleadings be construed as a plea in abatement then the applicable law is well stated in 1 Tex.Jur.2d (1959 Ed.), “Abatement and Revival,” See. 94, “Necessity of Proof,” p. 104, as follows: “The burden of proof is on the party presenting a plea in abatement to sustain his plea by competent evidence. The mere averment of facts, set up in the plea, not supported by proof is insufficient unless the truth of the matters alleged appears from the plaintiff’s petition. Thus, where the plaintiff’s petition alleges facts that show that jurisdiction is in the court where the suit is commenced, the burden is on the defendant who alleges in abatement that the court is without jurisdiction to show facts that negative jurisdiction.” See also State of Texas ex rel. City of Colleyville v. City of Hurst, 519 S.W.2d 698 (Fort Worth Civ.App., 1975, application pending).

If such plea be considered as a motion for summary judgment then same does not meet the requirements of Rule 166 — A, Texas Rules of Civil Procedure. No notice was given to the plaintiff prior to the hearing that this proceeding was in the nature of a summary judgment so that he could be prepared to file summary judgment evidence prior to the hearing. If said motion could be construed as a motion for summary judgment then same is an attempt to obtain a summary judgment upon the inadequacy of plaintiff’s pleadings. Under the facts in this case summary judgment could not be granted upon the inadequacy of plaintiff’s pleadings. Swilley v. Hughes, infra.

Defendant asserts that it cannot waive its charter provision and cannot by its conduct be estopped from asserting the defense contained in the above charter provisions. We overrule this contention.

In the case of Cawthorn v. City of Houston, 231 S.W. 701 (Tex.Com.App., 1921) that court in passing upon this precise question where the charter provided for a 90-day notice as a condition precedent to the right of filing such a suit, in an opinion adopted by the Supreme Court, stated as follows: “. . . But they are not prohibited from waiving it during the 90 days’ period. The charter does not prohibit a waiver at any time. If the mayor and commissioners are willing to investigate a given case themselves, and attempt to compromise the same during the 90 days period, we see no reason why they should not be permitted to do so. The provision is solely for their convenience. We think they can waive strict compliance with this provision. A waiver, in law, is the voluntary relinquishment of a known right, and if, under the facts, a jury can say that the mayor and commissioners intended to waive strict compliance with this provision, such compliance would not be necessary as a condition precedent to the maintenance of this suit for damages. The question of waiver is ordinarily one for a jury, where intention of the parties is not clear. For a case in point, and a charge approved, see Railway Co. v. Hendricks, 49 Tex.Civ.App. 314, 108 S.W. 747, in which a writ of error was denied by the Supreme Court.

“The Court of Civil Appeals say that it certainly cannot be held that one commissioner can waive this provision. That is not the point. Cawthorn alleges that Commissioner Drennan was authorized by the may- or and his colleagues to approach the claimant and offer him a compromise and invite him to their office to discuss it. The mayor and other commissioners could authorize Drennan to act for them. If he was their agent, they were all bound. It follows from what has been said that we think the Court of Civil Appeals erred in its various holdings relative to the question of waiver.

“Again, the doctrine of estoppel applies to this case, in our opinion. No matter whether the mayor and commissioners intended to waive strict compliance with the charter provisions or not, we think the evidence raises the issue of estoppel.” See also City of Denison v. Fulce, 437 S.W.2d 277 (Texarkana Civ.App., 1969, ref., n. r. e.); City of El Paso v. Parish, 293 S.W.2d 201 (El Paso Civ.App., 1956, ref. n. r. e.).

In the case of Smith v. City of Dallas, 404 S.W.2d 839 (Dallas Civ.App., 1966, no writ hist.; second appeal 425 S.W.2d 467) a plea in abatement was filed praying that the suit be abated, barred, and dismissed because of appellant’s failure to give the written notice required by the charter of the City of Dallas, which is very similar to the provisions here involved. The trial court held a preliminary hearing on the plea, heard no testimony, sustained the plea and dismissed the suit. The court held as follows:

“Regardless of the label placed thereon by the pleader, the plea was actually one in bar rather than in abatement. It sought a ruling that appellants, not having alleged compliance with the charter provision, and being unable ever to prove compliance, could never recover. 1 Tex.Jur.2d, Abatement And Revival, § 4, p. 20; Couger v. Allen, Tex.Civ.App., 25 S.W.2d 666, no wr. hist.; Pucek v. Koppa, Tex.Civ.App., 32 S.W.2d 248, no wr. hist. As such, it should not have been disposed oí on the pleadings, affidavits, certified copies of ordinances and arguments of counsel unless this manner of disposition had been previously agreed to by the parties. As said by Mr. Justice Gar-wood, speaking for the Supreme Court in Kelley v. Bluff Creek Oil Co., 158 Tex. 180, 309 S.W.2d 208, 214:
“ ‘ * * * defenses “in bar” are not the proper subject matter of disposition on mere preliminary hearing before the court like pleas in abatement, although a speedy and final judgment may be obtained on the basis of matters in bar and without the formality of a trial on the merits, if the parties so agree or if recourse is had to the process of summary judgment where contested fact issues are not present. The practice of misnaming a plea in bar in order to procure a preliminary trial as if the plea were one in abatement is confusing and not to be encouraged.’
“In City of Denton v. White, Tex.Civ.App., 179 S.W.2d 834, wr. ref. w. m., the Fort Worth Court of Civil Appeals had before it a quite similar situation to that shown here. The City of Denton filed what it called a ‘plea in abatement,’ setting up the failure to give the required notice. As in the case at bar, the claimant White had alleged certain facts to relieve him from the consequences of his failure to give notice. The trial court overruled the ‘plea in abatement,’ then went fully into the matter upon the jury trial, and issues touching the matter were submitted to the jury and answered favorably to White. The Court of Civil Appeals said: ‘It seems to us that the matter set up in the plea in abatement was not a matter in abatement, but was rather a matter in bar, which properly was determined upon the trial on the merits.’ ” (Emphasis ours.)

See also 40 Tex.Jur.2d 351 (1962 Ed.), “Municipal Corporations,” Sec. 656, “Claims Against Municipality — Waiver and estoppel.” See: 82 A.L.R. 749; 153 A.L.R. 329; 65 A.L.R.2d 1278.

The defendant relies in part upon the authorities of the City of Brownsville v. Galvan, 162 S.W.2d 98 (Tex.Com.App., 1942). In that case the plaintiff filed an amended pleading alleging estoppel and waiver of a notice provision in the City charter similar to the one here under consideration. The City filed a motion to strike the petition and dismiss the case. The court held that, “The motion to strike was, in effect, but another form of a general demurrer.

“ ‘ * * * In brief, the Court’s action had the effect of sustaining a general demurrer to Appellant’s Second Amended Original Petition. Appellant refusing to amend for the obvious reason that no truthful amendment could be made to bring him within the purview of the Court’s and Charter requirements, the Court dismissed this action; * * *.’ ”

This case was obviously heard in the trial court prior to the adoption of Rule 90, T.R. C.P., which abolished the general demurrer practice. Therefore, this case is no authority for sustaining the plea to the jurisdiction since the adoption of Rule 90.

The defendant relies also in part upon the case of Benedict v. City of Fort Worth, 447 S.W.2d 451 (Fort Worth Civ.App., 1969, ref. n. r. e.). This is a case in which a City employee sustained personal injury while in the course and scope of employment for the City. No notice or claim was made under the terms of the City charter. Plaintiff sued on the theory that he had an implied contract with the City established by custom and practice for the City to pay his necessary medical expenses and carrying him on the payroll while unable to work because of injury. This court held that this was basically a suit for personal injuries. This court held that it was proper for the trial court to sustain the plea to the jurisdiction because plaintiff admitted that his cause of action was barred by the provisions of the City charter notice. Plaintiff admitted that he could recover under the theory that the City had breached its implied contract described above, or not at all.

In the instant case plaintiff is claiming that the City is estopped from claiming the benefit of the notice provision of its charter. Therefore, plaintiff does not admit his action is barred by this charter provision. This fact is in dispute. Therefore, this case is distinguishable from the Benedict case.

The rule of law applicable in this case is well stated in Swilley v. Hughes, 488 S.W.2d 64 (Tex.Sup., 1972). In that case intervenors filed a suit against the adminis-tratrix to recover a debt owed by the estate. Intervenors did not allege that the claim had been presented to and rejected by the administratrix as required in the Probate Code before suit was filed. All defendants moved for summary judgment which was granted and intervenors appealed.

The cross points were bottomed on the proposition that the trial court did not acquire jurisdiction of intervenors’ suit because the petition did not contain the necessary factual allegations that would give the court jurisdiction. Defendant cited numerous cases so holding. That court held that all such cases were decided before the effective date of the Texas Rules of Civil Procedure and therefore are not applicable to a case tried since that time. That court stated, in speaking of Rules 90 and 91, T.R.C.P., the following: “We have held that the provisions of the Rule also operate to forestall a prevailing party from supporting a judgment of dismissal for lack of jurisdiction by pointing to defects and omissions in a petition. Jud v. City of San Antonio, 143 Tex. 303, 184 S.W.2d 821 (1945). And see Texas Osage Co-op. Royalty Pool v. Kemper, 170 S.W.2d 849 (Tex.Civ.App.—Galveston 1943, writ ref’d); Metalab Equipment Co. v. Spring Branch Ind. Sch. Dist., 378 S.W.2d 347 (Tex.Civ.App.—Houston 1964, writ ref’d n. r. e.), reversed with per curiam opinion 381 S.W.2d 48 (Tex.1964); Weisenberger v. Lone Star Gas Co., 257 S.W.2d 331 (Tex.Civ.App.—Fort Worth 1953, writ dism’d).

“. . . Certain court of civil appeals’ opinions have indicated that a motion for summary judgment on the pleadings ‘partakes of the office of a general demurrer.’ See Baxter v. Beaupre, 295 S.W.2d 718 (Tex.Civ.App.—Galveston 1956, no writ); Barnard v. Kuldell, 349 S.W.2d 313 (Tex.Civ.App.—Houston 1961, no writ). Situations in which such a motion can be sustained, however, are very limited, and the ease before us does not present such a situation. It is not a case in which the facts alleged by a plaintiff establish the absence of a right of action or an insuperable barrier to a right of recovery. See McDonald, Summary Judgments, 30 Texas L.Rev. 285, 297.”

The point of error is sustained.

Judgment is reversed and remanded.