author: DOUGLAS, Judge.

text:
    TEXAS BOARD OF PARDONS & PAROLES, Petitioner, v. Chuck MILLER, Judge, Respondent.
    No. 62121.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 28, 1979.
    Mark White, Atty. Gen. of Texas, John W. Fainter, Jr., Ted L. Hartley, W. Barton Boling, Joe Chumlea and Renea Hicks, Asst. Attys. Gen., Dallas, for petitioner.
    Charles E. Miller Jr., Roark M. Reed, Dallas, and Robert Huttash, State’s Atty., Austin, for the State. ■
   OPINION

DOUGLAS, Judge.

Petitioner, the Texas Board of Pardons and Paroles (hereinafter referred to as the Board), filed this petition for a writ of mandamus pursuant to Article 5, Section 5, Texas Constitution, to order a trial judge not to deliver a file of a parolee to his counsel in a case involving a different offense from that of which he was originally convicted. The requested relief is granted in part and denied in part.

On June 20, 1979, attorneys for the defendant, in a case styled The State of Texas vs. Dwight Sennert Barnes, in the County Criminal Court No. 7 of Dallas County, had issued a subpoena duces tecum to the Board for all files and letters concerning Barnes and all letters written to the Board by Melinda Barnes, the defendant’s ex-wife. The Board then filed a motion to quash the subpoena duces tecum claiming a statutory privilege under Article 42.12, Section 27, V.A.C.C.P., which provides:

“All information obtained in connection with inmates of the Texas Department of Corrections subject to parole, release to mandatory supervision, or executive clemency or individuals who may be on mandatory supervision or parole and under the supervision of the division, or persons directly identified in any proposed plan of release for, a prisoner, shall be confidential and privileged information and shall not be subject to public inspection; provided, however, that all such information shall be available to the Governor and the Board of Pardons and Paroles upon request. It is further provided, that statistical and general information respecting the parole and mandatory supervision program and system, including the names of paroled prisoners, prisoners released to mandatory supervision, and date recorded in connection with parole and mandatory supervision services, shall be subject to public inspection at any reasonable time.”

Barnes had been charged with making obscene telephone calls to his former wife, Melinda Barnes.

At a pre-trial hearing, Barnes’ attorneys stated that the purpose of the subpoenaed documents was to show the bias and prejudice of the complaining witness, Melinda Barnes. It was stipulated that.neither side knew the contents of those letters. The trial judge, the respondent here, overruled the motion to quash and ordered the documents to be tendered to defense counsel. At the request of the Board, a motion to stay the order was granted by the trial court pending the application for a writ of mandamus in this Court. This Court issued an order setting this case for submission and ordering all enforcement proceedings on the court’s order stayed pending disposition of the case.

I.

The initial question is whether the writ of mandamus is a proper remedy for this type of case. The recent amendments to Article 5, Section 5, of the Texas Constitution give this Court jurisdiction to issue, among other things, writs of mandamus in all criminal matters. See Thomas v. Stevenson, 561 S.W.2d 845 (Tex.Cr.App.1978). To justify this extraordinary remedy, the application for a writ of mandamus must meet a two-fold test. First, there must be no other adequate legal remedy available to the petitioner. Second, the relief sought must be in the nature of a ministerial act by the respondent, as opposed to a discretionary one. See generally, Ordunez v. Bean, 579 S.W.2d 911 (Tex.Cr.App.1979); State ex rel. Vance v. Routt, 579 S.W.2d 903 (Tex.Cr.App.1978).

The Board’s motion to stay the order in the trial court is as follows:

“The issues raised by the service of a subpoena duces tecum upon the Board in the context of a criminal trial and the Board’s assertion of the statutory privilege asserted in [Section] 27 are such that any legal decision affecting the privilege is not susceptible to meaningful review through the normal criminal appellate processes. Therefore, in order to obtain a meaningful review of the issue, it is necessary for the Board, when its motion to quash a subpoena duces tecum has been denied, to seek the extraordinary remedy of a writ of [mandamus] so that the issue may be finally determined.”
The first requirement is met in this case.

As for the second requirement, we hold that the remedy is ministerial in regard to most of the file and is properly the subject of a writ of mandamus.

The conflict is between the Sixth Amendment right of Dwight Barnes to confront his accusers and the Board’s statutory privilege necessary to preserve confidentiality and to encourage the frank and candid discussion necessary to its function.

This Court has long recognized the fundamental importance of a defendant’s right to adequately cross-examine a witness. In Spain v. State, 585 S.W.2d 705 (Tex.Cr.App. 1979), we quoted from Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931):

“It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them.”

In Spain, we reversed because of the trial court’s failure to allow the defendant to cross-examine a State’s witness as to his bias, prejudice or motive to testify.

In Castro v. State, 562 S.W.2d 252 (Tex. Cr.App.1978), the trial court refused, as in Spain, to allow defense counsel to cross-examine for bias or prejudice and the Court stated that great latitude should be allowed a defendant in showing any fact that might go to bias or motive. There can be no collateral or immaterial motive.

In Jackson v. State, 482 S.W.2d 864 (Tex. Cr.App.1972), this Court held that even though a witness admitted bias against the defendant and wanted her convicted, she was entitled to prove particular acts of the witness to show the extent of such bias.

In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court of the United States held that a state statutory privilege prohibiting disclosure of a juvenile’s probationary status must give way to a defendant’s Sixth Amendment right of confrontation. To deny a defendant the opportunity to show the bias or prejudice of a witness is a “constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” It should be noted that in Davis, the State did not assert a need for confidentiality but merely the need to protect the anonymity of a juvenile offender for rehabilitation purposes.

The need for confidentiality is presented here. The Board contends that many documents are submitted by people who have relied on the confidential status of the files and that to require disclosure would make it more difficult to receive candid appraisals from those concerned with a particular parolee’s status. The Board asserts that the loss of this candor would result in imprecise parole determinations and could endanger citizens in the parolee’s community.

The Board also argues that the statute, Article 42.12, Section 27, V.A.C.C.P., admits of no exceptions. Had the Legislature intended an exception, they could have created one as they did with the clergyman-penitent privilege, Article 3715a, V.A.C.S., and the juvenile court records privilege with its delineated exceptions, Article 2338-1, Section 15, V.A.C.S.

This argument, however, would require a statutory enactment to take precedence over a constitutional right. Such has never been the case. In Davis v. Alaska, supra, the statutory juvenile records privilege gave way to a defendant’s Sixth Amendment right of confrontation. In Ex parte Turner, 545 S.W.2d 470 (Tex.Cr.App.1970), this Court held that:

“Common law and statutory privileges, not of constitutional dimension, must yield when in direct conflict with those constitutional rights essential to the concept of Due Process within the Fourteenth Amendment to the Constitution of the United States and further guaranteed in this State by Art. I, Sec. 19 (Due Process) and Art. I, Sec. 10 (Confrontation and Compulsory Process for Witnesses) of the Texas Constitution.”

In United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), the United States, represented by its special prosecutor, filed for a subpoena duces te-cum against President Nixon in order to secure the tape recordings of certain conversations between the President and his closest advisors. The President raised the issue of executive privilege, stating that the privilege was necessary to encourage frank and candid discussions among public figures who would have no fear of public disclosure.

The Supreme Court labeled this assertion as no more than a “generalized claim of the public interest in confidentiality.” Executive privilege is not an absolute but a presumptive privilege that must be balanced in light of a defendant’s Sixth Amendment right of confrontation and the orderly administration of justice. Though any privilege exists to protect necessary interests, the courts have a “manifest duty” to vindicate a defendant’s Sixth Amendment right of confrontation. “To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or the defense.” United States v. Nixon, supra, at 709, 94 S.Ct. at 3108.

The Board has made available to the Court what appears to be its entire file pertaining to Dwight Barnes. The trial court in the present case will examine the letters of Melinda Barnes to the Board in chambers. If the court is of the opinion that any of such letters would tend to show bias, prejudice or motive to testify, such letter or letters should be made available to counsel for defense for cross-examination purposes only after Melinda Barnes testifies. Making the letters available will be a matter of discretion on the part of the trial court and can be reviewed where there has been an abuse of such discretion discussed below.

As stated in the Nixon case, the in-chambers inspection must be conducted in a manner conducive to “scrupulous protection against, any release or publication of material not found by the court, at that state, * * * relevant to the issues of the trial for which it is sought.” The trial court must give due and proper regard for the Board’s need for confidentiality.

To comply with Article 42.12, Section 27, supra, we order that no other part of the file should be made available because there does not appear to be any claim of a constitutional right to the rest of the file.

In a proper case, where a need has been shown, a trial court may cause to be issued a subpoena to the Board for the file of a parolee. The entire file might not be requested or needed. It should not be necessary in most cases for the Court to order copies of the proceedings in a former trial such as the indictment, judgment, sentences and other documents forwarded by the clerk of the trial court. When instruments are received from the Board, they may be made available to counsel after the witness has testified. There may be instances where a trial judge in the interest of justice will not make the instruments available for inspection.

In Gaskin v. State, 353 S.W.2d 467, 469 (Tex.Cr.App.1962), Presiding Judge Wood-ley wrote for the Court:

“We have no doubt but that there are cases where the interests of justice require that the trial judge, even after trial, refuse to permit an inspection of instruments in the state’s files, nor do we doubt that the burden is upon the defendant to show that the demand for inspection of the statement was timely made and the refusal of the court to grant such demand was prejudicial and constituted an abuse of discretion.
“The trial court may, however, in his discretion require production of a prior statement of a witness, and is not precluded from doing so by the absence of a statute or rule of procedure. If he refuses to so require, the statement should be made a part of the record on appeal, in order that the defendant will not be deprived of the opportunity to show, if he can, that the trial judge abused his discretion in refusing to grant the demand, and that the defendant was harmed by such ruling.”

Although different instruments were involved in the Gaskin case, its reasoning and procedure are applicable here.

The relief sought by the Board is granted to the extent that the entire file of Dwight Barnes will not be made available to his counsel.

The relief is granted upon the conditions set out above concerning the letters written by Melinda Barnes to the Board concerning Dwight Barnes.

It is so ordered.

      . Article 3715a, V.A.C.S., reads, in part:
      “. . . provided however, that the presiding judge in any trial may compel such disclosure if in his opinion the same is necessary to a proper administration of justice.”

      . Article 2338-1, Section 15, V.A.C.S., states:
      “Juvenile Court records shall not be inspected by persons other than probation officers or other officers of the Juvenile Court unless otherwise directed by the court but information on juvenile cases in the grade of felony shall be made available by the court to the agencies responsible for the implementation of the federal Omnibus Crime Control and Safe Streets Act of 1968, Pub. Law 90-351 (June 19, 1968).”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jose GUILLEN and Guadalupe Guillen, Appellants, v. John W. CLAYBROOK, Appellee.
    No. A4084.
    Court of Civil Appeals of Texas, San Antonio.
    July 27, 1979.
    Richard 0. Gonzales, Del Rio, for appellants.
    John W. Claybrook, Eagle Pass, for ap-pellee.
   OPINION

PER CURIAM.

The motion filed by appellants, Jose Guil-len and Guadalupe Guillen, for extension of time within which to file the transcript and statement of facts is denied.

According to appellants’ motion, the judgment in this case was signed by the trial judge on May 9, 1979. Under Rule 386, Tex.R.Civ.P., appellants were required to file the record in this Court no later than Monday, July 9, 1979.

Appellants timely filed an affidavit of inability to pay the cost of appeal, or to give security therefor, on May 18, 1979, within the time prescribed by Rule 355. Appellee timely filed a contest of the affidavit on May 29, 1979 (the 10th day after the filing of the affidavit was Memorial Day, a legal holiday).

According to appellants’ verified motion, appellee failed “to set the contest for a hearing,” and at the time appellants filed their motion for extension of time on July 11, 1979, the contest had not been set for hearing. The motion contains statements to the effect that appellant will move for a setting, but that the hearing on the contest cannot take place before August, 1979.

The filing of the affidavit of inability to pay costs does not toll the appellate time table. Appellants mistakenly place the burden of securing a hearing on the contest of the affidavit on appellee. The burden of taking all steps necessary to the timely perfection of the appeal rests on appellants, not on appellee. An appellant who desires to appeal on the basis of a pauper’s oath cannot, when a contest is timely filed, sit idly by awaiting action by either the appellee or the trial .court. Here appellants have remained inactive for a period of 43 days after the contest was filed, and their motion contains no hint of justification for the inaction which permitted the time for filing the record in this court to expire. Under such circumstances, we cannot hold that appellants’ motion for extension offers a reasonable explanation for their failure to file the record in this Court within the period prescribed by Rule 386.

The motion for extension of time is denied and the appeal is dismissed.


author: KLINGEMAN, Justice.

text:
    OTTO VEHLE & RESERVE LAW OFFICERS ASSOCIATION, Appellants, v. Emery BRENNER, Individually and d/b/a Brenner Printing Company, Appellee.
    No. 16136.
    Court of Civil Appeals of Texas, ■ San Antonio.
    Sept. 5, 1979.
    Rehearing Denied Oct. 3, 1979.

      H. David Peeples, Tinsman & Houser, Inc., San Antonio, for appellants.
    Robert I. Kahn, Raymond E. Taylor, Phillip R. Spicer, Jr., San Antonio, for appellee.
   OPINION

KLINGEMAN, Justice.

This is a suit on an overdue account. Plaintiff Emery A. Brenner, individually and doing business as Brenner Printing Company, sued American Police Publications, Inc. (sometimes hereinafter referred to as APP); Leon Schumacker; and Otto Vehle on a sworn account. Vehle’s answer consisted of a general denial and a sworn denial under Rule 185 of the Texas Rules of Civil Procedure. APP and Schumacker did not answer after due citation, and an interlocutory default judgment was taken against them. Brenner then filed a first amended petition which was the same as his original petition in most respects, except that it named “Otto Viehle [sic], d/b/a Reserve Law Officers Association” as a defendant in lieu of Otto Vehle as an individual defendant. Vehle’s first amended answer consisted of a general denial and sworn pleas that, as to him, the account was not just or true in whole or in part, pursuant to Rule 185; that the action was barred by the Statute of Frauds; and that he was not liable in the capacity in which he was sued. There was no service of citation on Reserve Law Officers Association, and only Vehle was cited. American Police Publications, Inc., and Schumacker did not appear at trial.

Trial was to a jury, which, in answer to Special Issue No. 1, found that “Otto Vehle, doing business as Reserve Law Officers’ Association,” agreed in advance to pay for the work represented by the bill for $9,207.21. Special Issue Nos. 2, 3 and 4 pertained to attorney’s fees, and the jury awarded the plaintiff $2,500, $2,500 and $2,000, respectively, as attorney’s fees for legal services in preparation for and at trial; for appeal to the court of civil appeals, if necessary; and for appeal to the Supreme Court of Texas, if necessary. Reserve Law Officers Association (sometimes hereinafter referred to as the Association) filed an appeal by writ of error, and Vehle timely perfected his appeal to this court, both of which have been consolidated in the cause before us. Neither APP nor Schumacker perfected an appeal.

It is apparent from the record that a number of different entities were involved, or alleged to be involved, in this lawsuit. American Police Publications, Inc., a corporation, was engaged in the publishing business and was here involved in the publication of a magazine known as Reserve Law. As publisher it did not always do the actual printing of the magazine, however, and in the present dispute Brenner performed the printing on which this action is predicated. About sixty per cent of the magazine was comprised of advertisements sold by APP, from the sale of which APP kept the receipts, and the remaining forty per cent of the magazine’s composition consisted of stories and articles that dealt generally with police work of various law enforcement organizations around the nation. APP was required to print the magazine (or to see that it was printed) and to pay for all the expenses in connection therewith; to sell the advertisements; and to pay for all expenses and costs incurred in connection with the publication of the magazine; Leon Schumacker was APP’s agent for service and was active in the publishing activities previously outlined.

The Reserve Law Officers Association, a non-profit law enforcement association, consists of a large number of members who reside in forty-nine states and who pay yearly dues. The national headquarters are located in San Antonio. Some of the members volunteer to accompany regular law enforcement officers during the assigned tours of duty of such officers. Some Association members attend law enforcement programs where they receive various types of training. There is no common membership between APP and the Association. The Association members receive the magazine hereinbefore discussed as a benefit derived from their membership. The Association has at least five directors.

Otto Vehle is one of the directors of the Association and is also employed by' the Association to travel over large areas of the United States meeting with and speaking to law enforcement groups, addressing state legislatures, and similar types of activities. For such work he received a salary from the Association.

The case is before us in the following status: Brenner has a default judgment against American Police Publications, Inc., and Leon Schumacker in the total sum of $12,276.28, which includes plaintiff’s princi-. pal claim for $9,207.21, and attorney’s fees of $3,069.07. Plaintiff was also awarded interest from date of judgment. Neither party in default has perfected an appeal.

Plaintiff also has a judgment against “Otto Vehle, d/b/a Reserve Law Officers Association,” in the sum of $10,603.85, which, includes the principal sum of $9,207.21, and prejudgment interest to the date of judgment in the amount of $1,396.64; plus post-judgment interest at the rate of nine per cent per annum. Plaintiff was also awarded attorney’s fees for trial work in the amount of $2,500; an additional $1,000, if the appeal is perfected to the court of civil appeals, and another $1,000, if the appeal is perfected to the Supreme Court of Texas.

By a number of points of error, Vehle on appeal asserts that (1) the trial court erred in submitting Special Issue No. 1 because (a) the issue assumes the existence of a disputed fact, i. e., whether Vehle was “doing business as Reserve Law Officers’ Association” ; (b) the issue commented on the weight of the evidence by telling the jury that Vehle was doing business as the Association; and (c) the issue was multifarious and submitted two separate ultimate fact questions; (2) the evidence is legally and factually insufficient to support a finding in the judgment that Vehle agreed to be liable individually, or personally for the debt made the basis of this lawsuit; (3) the evidence is legally and factually insufficient to support a finding that Vehle was doing business as the Reserve Law Officers Association; (4) any cause of action is barred by the Statute of Frauds; and (5) portions of the jury argument made by counsel for Brenner were improper and harmful error.

The Association by three points of error asserts that the trial court erred in rendering judgment against it because (1) no citation was ever requested, issued, or served on the Association, nor did the Association ever make an appearance or waive service of citation; (2) any actual or constructive knowledge of the lawsuit by the Association did not cure the lack of citation and service, and the trial court did not, therefore, acquire jurisdiction over the Association; and (3) the trial court never acquired in person-am jurisdiction over the Association.

We will first discuss appellants’ contention that the trial court erred in submitting Special Issue No. 1 to the jury. Vehle denied throughout his testimony that he was Reserve Law Officers Association or that he was “doing business as” the Association, and he specifically denied under oath that he was liable in the capacity in which he was sued. He properly objected to Special Issue No. 1 on the grounds previously set forth and tendered two separate requested special issues in support of his position, which were refused.

Submission of Vehle’s requested special issues would not have unduly complicated or prolonged the case. Special Issue No. 1, as actually submitted to the jury, either assumed the existence of a disputed material fact, or the court found as a matter of law the existence of such a fact. The evidence before us does not support such a holding as a matter of law, and in actuality the evidence is to the contrary. As submitted, the jury was essentially told by the court that Vehle was “doing business as” Reserve Law Officers Association. At the least, it was a comment on the weight of the evidence. We have concluded that the presentation of the issue to the jury in the form in which it was submitted was error and harmful error. City of Wichita Falls v. Gleghorn, 531 S.W.2d 879 (Tex.Civ.App.—Eastland 1975), writ ref'd n. r. e. per curiam, 545 S.W.2d 446 (Tex.1976); Cactus Drilling Co. v. Williams, 525 S.W.2d 902 (Tex.Civ.App.—Amarillo 1975, writ ref’d n. r. e.); 3 R. McDonald, Texas Civil Practice §§ 12.03.2, 12.18.1 (rev. 1970). Vehle only asked that there be a separate special issue submitted for each ultimate issue.

We have further concluded that the jury’s answer to Special Issue No. 1 is against the great weight and preponderance of the evidence. Vehle consistently denied ever agreeing to pay for the debt here alleged. He testified positively that he never guaranteed the payment of such indebtedness, and that he never agreed to pay for the printing involved or to be responsible for it. He further testified that APP was to be wholly responsible for the printing of the Reserve Law magazine and that Brenner knew this. On the other hand, Brenner’s testimony on this point is not entirely unequivocal. Generally, he testified that he had the “impression” that Vehle or the Association would be one of the responsible parties, but in this connection the testimony refers to Vehle’s activities as a director of the Association. None of his testimony connects Vehle individually with responsibility for the debt.

Moreover, the documentary evidence supports Vehle’s contentions. A large number of statements and invoices for printing jobs were introduced, most of them by Brenner, to establish the claim that is the subject of this suit. None of these statements or invoices were ever billed to Otto Vehle. Brenner’s own account ledger cards, as introduced, do not list Vehle as the billed customer. There is nothing in any of the documentary evidence before us that suggests that Vehle was individually responsible for the bill. According to the testimony, Vehle did have a separate account with Brenner which consisted of small-scale printing jobs, and this account was paid in full and is not in dispute here. It is clear at least from the documentary evidence that Brenner recognized Vehle and the Association as different entities. There are no pleadings alleging that Vehle was an agent for the Association or that he was liable as an agent of the Association. The most that can be said of Brenner’s evidence is that he was under the “impression” that Vehle was in some way responsible for the account, but even his own business records refute this impression.

We. have also concluded that a portion of the appellee’s closing argument to the jury was improper. During such argument appellee’s counsel stated that Vehle had testified that there were some “twenty-five hundred members [of the Association]” and that the Association received $15 per member annually as dues; and that according to appellee’s counsel’s calculations this would amount to $375,000. At this time, Vehle’s attorney objected that the financial net worth of the Association was not in issue and that it was improper to “wave big dollar signs in front of the jury,” to which the court replied “Whatever the evidence shows you may discuss.” Counsel for Brenner then stated that this was “a lot of money” and that “they talk about not being able to pay a $9,000 bill with that kind of money” ; that “they talk about the good they do”; that “they buy [training] films and send them out free” ; that “with $375,000 I can send a lot of free films to a lot of places and have money left over.” At this time Vehle’s attorney further objected that opposing counsel’s figure of $375,000 in annual Association receipts was incorrect and pointed out that the true figure more closely approximated $37,500. The trial court sustained the objection and Brenner’s attorney then stated “if that’s right I apologize,” but even in that event, $37,500 is “a substantial amount of money as far as the charity involved in this organization” ; that “they want the charity to come from Mr. Brenner” and “they want him to donate his services for a magazine”; that “they talk about wanting to wash their hands of the publishing company,” but that “they want to wash their hands of the responsibility, but they certainly want to dirty them in the benefits.”'

One of the vices of such argument is the attorney’s continued use of the term “they.” In actuality, Reserve Law Officers Association was not sued as a party nor was the Association ever served with citation in this cause. The argument was an undisguised request for a favorable verdict based upon the purported wealth of the Association. We are convinced that the argument was improper. Improper jury arguments, however, do not always necessitate reversal. The argument must be such that it was reasonably calculated to cause, and probably did cause the rendition of an improper verdict. The argument complained of here, compounded with other matters hereinbe-fore discussed, was in the nature of cumulative error, and, as such, was harmful error.

By one point of error Vehle further urges that the trial court erred in overruling his motion for judgment non obstante veredic-to, for the reason that any agreement by him would have been an oral promise not enforceable under the Statute of Frauds. Vehle specially pleaded and invoked the provisions of the Statute of Frauds. Vehle urges that the alleged agreement is unenforceable under two provisions of the Texas Business and Commerce Code. He argues that it is undisputed that there is no writing of any kind signed by him and that Section 26.01(b)(2) of the Code provides that a promise by one person to answer for the debt of another is unenforceable, unless it is in writing and is signed by the person to be charged with the promise. Vehle' contends that the alleged agreement is also unenforceable under Section 2.201 of the Code which sets out the contractual requirements for the sale of goods for a price of $500 or more.

Brenner concedes that no contract was ever signed and that he is not relying on any written instrument. He asserts that he simply relied on the parties’ statements and previous dealings with them to satisfy himself that their oral promise would be sufficient. Brenner testified that he relied on Vehle’s promise to pay for the magazine and that in reliance on such verbal promise he changed his position to his detriment. Brenner further argues that if Vehle is allowed to escape liability because of the Statute of Frauds, he is using the statute to circumvent any liability for the printing obligation and that to enforce the Statute of Frauds here would produce a result that is unfair, inequitable, and would amount to a virtual fraud.

There are certain defenses that could take this case out of the operation of the Statute of Frauds. The burden of pleading the affirmative defense of the Statute of Frauds was upon defendant under Rule 94, Texas Rules of Civil Procedure, with the burden of proof resting upon plaintiff to establish facts which would take the verbal contract out of the Statute of Frauds and to show that the oral promise was enforceable. Cobb v. Johnson, 101 Tex. 440, 108 S.W. 811 (1908); Suniland Furniture Co. v. Pruitt, 347 S.W.2d 835 (Tex.Civ. App.—Waco 1961, writ ref'd n. r. e.); Perren v. Baker Hotel of Dallas, 228 S.W.2d 311 (Tex.Civ.App.— Waco 1950, no writ).

Vehle properly pleaded the Statute of Frauds, but plaintiff failed to establish any applicable rules of defense that would take the case out of the operation of the Statute of Frauds. Some of his evidence is sufficient, however, to raise a fact issue as to some of these defenses. See Gulf Liquid Fertilizer Co. v. Titus, 163 Tex. 260, 354 S.W.2d 378 (1962). On balance, we believe that the interests of justice would best be served by a reversal and remand of this cause, rather than a reversal and rendition. Scott v. Liebman, 404 S.W.2d 288 (Tex. 1966).

We have concluded that the judgment as to “Otto Vehle, d/b/a Reserve Law Officers Association” must be reversed for a number of reasons, including the trial court’s erroneous submission of Special Issue No. 1 in the form that it was presented to the jury; the factual insufficiency of the evidence supporting the jury’s answer to Special Is.sue No. 1; and the impropriety of that portion of plaintiff’s closing jury argument pertaining to the purported wealth of the Association.

We have also concluded that this judgment cannot stand as to Reserve Law Officers Association, since the Association was never named as a party defendant; was never served with citation; and'did not make any appearance or waive such service. A judgment rendered against a party without citation or service upon him, or appearance by or for him, is a nullity. Levy v. Roper, 113 Tex. 356, 256 S.W. 251 (1923). A writ of error in the court of civil appeals is not a collateral proceeding, but a direct attack on the trial court’s judgment. Whitney v. L & L Realty Corp., 500 S.W.2d 94 (Tex.1973). In a direct attack on a default judgment there is no presumption of service of citation, even if the judgment so recites. McKanna v. Edgar, 388 S.W.2d 927 (Tex. 1965); Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934 (1935). It is undisputed from the record that the Association is unincorporated and comprised of voluntary members. Service could have been had under provisions of Rule 106, Texas Rules of Civil Procedure, and under Articles 6133 and 6134, Texas Revised Civil Statutes. Plaintiff wholly failed to comply with the provisions of either the rule or these statutes, with respect to the Association.

Neither American Police Publications, Inc., nor Leon Shumacker, against both of which default judgment was taken below, perfected any appeal. The judgment is affirmed as to American Police Publications, Inc., and Leon Schumacker.

The judgment as to Otto Vehle, purported to be doing business as Reserve Law Officers Association, and as to Reserve Law Officers Association, is reversed and remanded to the trial court for a new trial.

      . Special Issue No. 1, as set forth in the charge to the jury, inquired:
      Do you find from a preponderance of the evidence that Otto Vehle, doing business as Reserve Law Officers’ Association, agreed in advance to pay for the work represented by the $9,207.21 bill?

      . The requested special issues inquired, as follows:
      Requested Special Issue: Do you find from a preponderance of the evidence that Otto Vehle agreed in advance to pay for-the work represented by the $9,207.21 bill?
      Requested Special Issue: Do you find from a preponderance of the evidence that when Otto Vehle made such agreement, if he did, he was doing business as the Reserve Law Officers Association of America?

      . Section 26.01 provides in part as follows:
      (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

      (2) a promise by one person to answer for the debt, default, or miscarriage of another person.
      Tex.Bus. & Com.Code Ann. § 26.01 (Vernon 1968)


text:
    Harold N. COOPER, M.D., Relator, v. George CADENA, Respondent.
    No. 16371.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 12, 1979.
    Peter N. Plumb, Allison & Plumb, San Antonio, for relator.
    Richard L. Josephson, Baker & Botts, Houston, George H. Spencer, Clemens, Spencer, Welmaker & Finck, San Antonio, Lawrence J. Madigan, Moriarty & Madigan, Houston, for respondent.
   OPINION

PER CURIAM.

This is an original proceeding in which Relator, Harold N. Cooper, seeks a writ of mandamus ordering Respondent, George Cadena, to prepare a statement of facts in our cause No. 16,279, Harold N. Cooper v. A. E. Bowser et ux. The transcript in No. 16,279 was filed in this Court on March 26, 1979.

Judgment in this case was signed January 25,1979. Under Rule 386, Tex.R.Civ.P., the transcript and statement of facts were required to be filed in this Court on or before March 26, 1979, unless an extension of time was granted under the provisions of Rule 21c. The transcript was timely filed, but on March 19,1979, Relator filed his first motion for extension of time within which to file the statement of facts. Attached to this motion was the affidavit of Respondent in which he stated that due to his duties.as official court reporter for County Court at Law No. 3, Bexar County, he was unable to prepare the statement of facts within the time prescribed by Rule 386. He added that he was required to give priority to requests for statements of facts in two criminal cases. This Court granted an extension of time to May 16,1979, the date on which the Respondent assured us in his affidavit that the statement of facts in this case would be ready.

On May 16, 1979, Relator filed his second motion for extension of time, supported by the affidavit of Respondent. In his affidavit, Respondent repeated the statements made by him in support of the first motion for extension of time, but added that, in addition to the two criminal cases, he was also engaged in preparation of a statement of facts in another civil case. This Court granted an extension of time to June 15, 1979.

The third motion for extension of time was filed on June 18,1979, supported by the affidavit of Respondent which again referred to the two criminal cases and the civil case mentioned in his affidavit attached to the second motion. This Court granted an extension to July 13, 1979.

The granting of the third extension resulted in the filing of a fourth motion for extension on July 13, 1979. Respondent’s affidavit attached to the fourth motion again assured the Court that Respondent was engaged in the preparation of statements of facts in the two criminal cases referred to in the first three motions and in the civil case mentioned in the second and third motions. The time was extended to August 13, 1979.

The fifth motion for extension of time was filed on August 10, 1979, seeking yet another extension. This motion made known to this Court that Relator was unable to secure an affidavit from Respondent because Respondent was on vacation. This motion was accompanied by a petition for mandamus.

The Court granted leave to file the petition for mandamus and set the application for hearing at 10:00 a. m., Monday, September 10.

Respondent has offered no excuse for his failure to prepare the statement of facts. An examination of the preceding motions reveals that Respondent has not completed the statements of facts in the two criminal cases nor the statement of facts in the civil case, despite his assertions in his first four affidavits that he was diligently working on such records. The affidavit attached to the fourth motion establishes that he has completed no statement of facts during a period of 135 days, as of the date of his affidavit attached to such fourth motion.

Under the circumstances, we conclude that this Court has been as lenient as can be expected, in the absence of an explanation for Respondent’s lack of progress in the preparation of the three records which he insists have delayed his completion of the record in cause 16,279 in this Court. As pointed out in O'Neal v. Stovall, 580 S.W.2d 130, 132 (Tex.Civ.App.—Austin 1979, no writ), “Other than the daily reporting of a court proceeding in progress, the reporter has no professional duty that takes precedence over the prompt completion of statements of fact.” Respondent’s explanation of his failure to perform his duty is not persuasive.

The Clerk of this Court is directed to issue a writ of mandamus commanding Respondent, George Cadena, to complete the statement of facts in the case of A. E. Bowser et ux. v. Ciba-Geigy Corporation et al., tried in the 57th Judicial District Court of Bexar County, Texas, bearing the trial court’s number 76-CI-8141; being the same case as is before this Court under the style of Harry N. Cooper v. A. E. Bowser et ux., and bearing our number 16,279, and to deliver such statement of facts to the Clerk of this Court no later than 10:00 a. m., Friday, September 21, 1979.

Upon receipt of such statement of facts, the Clerk of this Court will mark it “received,” stating the time and date of such receipt, and notify all attorneys of record in the case. The attorneys shall then have an opportunity to examine the statement of facts as to its truth and accuracy.

Respondent shall pay all costs of this proceeding.


text:
    Robert E. MARTIN v. William Allen RUSSELL
    Motion No. 20325.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 20, 1979.
    Rehearing Granted Oct. 11, 1979 and Record Filed as No. 18274.
    Stark, Barnhart & Moore and Richard S. Stark, Gainesville, for appellant.
    Henry, Hatcher & Freeman and Jim J. Hatcher, Gainesville, for appellee.
   OPINION ON MOTION TO EXTEND TIME FOR FILING TRANSCRIPT AND STATEMENT OF FACTS

PER CURIAM.

Appellant Robert E. Martin, having perfected his appeal from the judgment of the trial court, having deemed himself unable to file the transcript and statement of facts within the sixty days provided by T.R.C.P. 386, “Time to File Transcript and Statement of Facts”, has filed his motion for an extension of time within which he may file the record in this case within the time provided by T.R.C.P. 21c, “Extensions of Time on Appeal”.

By review of the motion is discovered: (1) no verification of the facts represented to exist and furthermore represented to constitute good cause for, or reasonably explaining the need for, the extension of time requested; (2) no affidavit of either the District Clerk or of the Official Court Reporter in support of the motion; (3) no proof showing date upon which the Official Court Reporter was requested to prepare the statement of facts, nor, if requested beyond 30 days from the time upon which an appellant’s time is to be counted, reasonable explanation — if any there might be— for this extraordinary delay.

Under these circumstances the proper order of the court is to deny the motion for extension of time, without prejudice to opportunity to seek relief by proof presented upon motion for rehearing.

Motion is denied.


author: RAY, Justice.

text:
    The TEXAS SOCIETY, Daughters of the American Revolution, Inc., Appellant, v. FORT BEND CHAPTER, The National Society, Daughters of the American Revolution et al., Appellees.
    No. 8554.
    Court of Civil Appeals of Texas, Texarkana.
    Sept. 25, 1979.
    Rehearing Denied Oct. 23, 1979.

      Bird Old, III, Old & Old, Mount Pleasant, for appellant.
    Jeffrey H. Hubbard, Houston, for appel-lees.
   RAY, Justice.

The original opinion of this Court delivered on September 29, 1978, is withdrawn and the following opinion is substituted.

This is an appeal from an order granting a temporary injunction. Suit was instituted by the Fort Bend Chapter of the National Society Daughters of the American Revolution and other member societies of The Texas Society, Daughters of the American Revolution, Inc., appellees (plaintiffs), against The Texas Society, Daughters of the American Revolution, Inc. (The Society), appellant (defendant), and certain officers, agents and others, alleging an ongoing conspiracy and fraud by the officers of The Society and their attorney in dealing with The Society’s assets and assets that The Society holds in trust for the benefit of others. Appellees are seeking a permanent injunction, accounting, cancellation of a deed to the Freeman Plantation from The Society to the DeWares, return of personal property and a money judgment. The trial court entered a temporary injunction enjoining The Society, its agents, representatives, officers, attorneys and those persons in active concert or participation with them who receive actual notice of the order, from selling stocks and other assets and from spending money or incurring debts for any purpose “other than in carrying on the ordinary business of The Society.” The Texas Society, Daughters of the American Revolution, Inc., alone, has perfected its appeal and submits five points of error for our consideration.

The real parties in interest are the member chapters of The Texas Society, Daughters of the American Revolution, Inc., who did not'want to sell the State Headquarters, the Freeman Plantation, and who have sought to cancel that sale. They brought suit against the present and former officers of The Society to enjoin them and The Society from disposing of the assets of the non-profit corporation. Those in charge of operating the non-profit corporation had obtained the passage of a resolution authorizing the sale of the corporation’s stocks and assets, as necessary, to defend themselves against suits for their actions in selling the plantation.

The judgment of the trial court granting the temporary injunction will be affirmed.

In reviewing all of the evidence in this case in the light most favorable to the trial court’s judgment and drawing legitimate inferences from such facts, we cannot say that the trial court abused its discretion in granting the temporary injunction. The injunction proceeding was tried to the court and no findings of fact or conclusions of law were requested or filed. The favorable evidence establishes that good reasons existed for the granting of the temporary injunction and that the trial court has complied with Tex.R.Civ.P. 683 by reciting such reasons in its order granting the temporary injunction.

The most cogent reason for granting the temporary injunction is established by the fact that the officers in charge of operating the non-profit corporation, The Society, had been paying their attorney’s fees in advance from corporate funds prior to a determination of whether or not the corporate officers and former officers, had been guilty of negligence or misconduct in the performance of their duties. The advancing of monies out of The Society’s funds for .the payment of attorney’s fees under the circumstances of this case would not be incurring an indebtedness or spending money in carrying on the ordinary business of The Society. The ordinary business of appellant would be fostering those purposes for which the non-profit corporation was created, such as promoting educational, patriotic and historical projects. The ordinary business of The Society would not be the defense of its officers and former officers. Country Club of Tyler v. McLaughlin, 300 S.W.2d 124 (Tex.Civ.App. Texarkana 1957, writ ref’d n. r. e.).

The record shows that many of the funds of The Society have been commingled and unauthorized transfers made. It appears from the evidence that some funds have not been accounted for in the annual treasurer’s report. The totality of the evidence could have led the trial court to infer that a course of conduct had been started by the executive board which would result in a sale of a substantial portion of the assets of the corporation and that the funds from the sale would be used to pay unauthorized legal fees and expenses. Ap-pellees established that a similar course of conduct had already occurred. Dissipating the assets of The Society through unauthorized and ultra vires expenditures, such as advancement of legal fees in this case, was not and would not be related to the espoused purposes of The Society in promoting educational, patriotic and historical projects. No funds can be expended by The Society for legal fees for the defense of The Society’s officers or their actions in selling the Freeman Plantation until such time as it is determined that The Society’s officers and former officers have not been guilty of negligence or misconduct. Once the court has finally absolved such officers from negligence and misconduct, then, and only then, may the corporation indemnify such officers for their legal fees as provided by Article 1396-2.22, Tex.Rev.Civ.Stat.Ann., the Texas Non-Profit Corporation Act. A diversion of funds to a purpose outside the object for which the corporation was organized is unauthorized. Country Club of Tyler v. McLaughlin, supra.

We have also concluded that the trial court could have inferred that irreparable injury could or would occur unless the temporary injunction was granted. The resolution passed by The Society (plaintiffs’ exhibit 11) ratified the payment of legal expenses in excess of $47,000.00 and authorized the sale of stock and other assets to continue the defense of all litigation against the officers and former officers of The Society. The trial court was authorized to take judicial notice of the extensive litigation that had been undertaken and determine that the legal fees and expenses are likely to be enormous before the litigation can be concluded. See Governing Board v. Pannill, 561 S.W.2d 517 (Tex.Civ.App. Texarkana 1977, writ ref’d n. r. e.). A sale of the assets of The Society to obtain funds with which to pay legal expenses could deplete the assets of the corporation to such an extent that The Society would be severely hampered in its ability to carry on its charter purposes, thus causing The Society to suffer damages which would not be capable of calculation or monetary compensation. The trial court was justified in determining that irreparable injury was probable and that an adequate remedy at law did not exist. The trial court could have concluded that the sale of all or a substantial part of the stock or other assets of the corporation would lead to damages to The Society which would not be readily ascertainable and this would be particularly true here, where the declared purpose was to use the funds for unauthorized purposes. “No adequate remedy at law exists if the damages are incapable of calculation . . . ”. R. H. Sanders Corporation v. Haves, 541 S.W.2d 262, 265 (Tex.Civ.App. Dallas 1976, no writ).

From our examination of the record, we conclude that a probable right and a probable injury were shown and set forth as reasons for granting the writ; that the trial court was correct in preserving the status quo of the subject matter until a final trial of the case on its merits; that the court did not abuse its discretion; and that the evidence supports the granting of the temporary injunction and meets all of the tests required by the Supreme Court in Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953). See also Baucum v. Texam Oil Corporation, 423 S.W.2d 434 (Tex.Civ.App. El Paso 1968, writ ref’d n. r. e.).

It has been difficult for this Court to perceive why Mrs. Georgia Bingle Edman, State Regent, has insisted upon appealing the temporary injunction. The order of the trial court was to preserve the status quo pending a final hearing on the merits in this case and was to preserve the assets of the corporation. Mrs. Edman, as State Regent and the espoused leader of the corporation, should have had an intense interest in seeing that the corporate assets were preserved until the trial court could determine the merits of the matter before it. The corporation itself could not be hurt by an order of the trial court directing that its assets be preserved and held in status quo under the circumstances of this case. The corporate entity had everything to gain and nothing to lose by the court’s order. Appel-lees in this case brought suit in their representative capacities on a derivative cause of action to protect the corporate entity and its assets. The real party at interest is the corporation though it has been formally aligned as a defendant. As stated in Providential Investment Corporation v. Dibrell, 320 S.W.2d 415 (Tex.Civ.App. Houston 1959, no writ),

“. . .It [the corporation] is a necessary party to the suit so that it will be bound by the judgment so that it may not later subject the defendants to a second suit. Barthold v. Thomas, supra. The reason it appears formally as a defendant is because it is under the control of persons charged with the wrongs complained of in the suit and refuses to act. This gives the shareholders the right to act for its benefit.”
The court further stated:
“Realistically the controversy is between the corporation and the fraudulently acting officers and directors. It [the corporation] is really the complainant in the suit. . . . ”

In the instant case, the corporation was the beneficiary of the trial court’s order for the issuance of a temporary injunction. The corporation itself was not adversely affected by the temporary injunction. The corporate entity, The Texas Society, Daughters of the American Revolution, Inc., is the sole appellant as evidenced by the cost bond signed by Mrs. Edman in her capacity as the State Regent of The Society. The Society itself cannot complain in this Court of the rulings of the trial court in its favor. No relief was given against The Society. Those in control of the corporation were temporarily enjoined from performing acts which would be detrimental to the nonprofit corporation, The Society. The officers, agents and attorneys have not appealed. Only The Society as a corporate entity has appealed and it is not entitled to any relief from the trial court’s judgment in its favor.

Appellees assert that this Court has erred in assessing costs against The Texas Society, Daughters of the American Revolution, Inc., in an appeal by The Society from the temporary injunction. We disagree. The only parties before this Court on the appeal other than appellees, are The Texas Society, Daughters of the American Revolution, Inc., and its surety, Insurance Company of North America. This Court has no authority to assess costs against persons who are not parties to the appeal. Tex.R.Civ.P. 435. The temporary injunction obtained by appellees was violated by those under the injunction when they expended The Society’s funds for costs of the appeal. An appeal of an order in favor of the corporate entity is certainly not in the ordinary course of business of the corporation. Those enjoined had no authority to spend any funds of The Society for further litigation. Their recourse, if they were dissatisfied, was to continue the litigation at their own expense. Suit may be brought on behalf of The Society to recover from the responsible parties the costs paid out of The Society’s funds for this appeal, but we have no authority to tax the costs directly against such parties. Costs incurred, exclusive of the contempt proceeding, are taxed against the appellant.

ON APPELLEES’ MOTION TO ADJUDICATE MRS. GEORGIA BINGLE ED-MAN AND MRS. KENNETH WICK-ETT GUILTY OF CONTEMPT

On April 17, 1978, the appellees herein filed with the Clerk of this Court a motion for contempt, together with supporting affidavits, complaining of alleged violations by Mrs. Georgia Bingle Edman and Mrs. Kenneth Wickett of the terms of a temporary injunction entered by the District Court of Marion County in Cause No. 147-76, dated June 14, 1977. This Court having jurisdiction (Tex.Rev.Civ.Stat.Ann. art. 1911a, Supp. 1978-1979) to consider such motion, by order entered on April 19, 1978, directed the district judge of the 115th Judicial District Court in Marion County to conduct an evidentiary hearing on the motion for contempt and to make findings and recommendations and to transmit them to this Court with a transcript of the evidence adduced. The district court held the hearing and its findings and recommendations which were signed on January 26, 1979, were filed in this Court on January 30, 1979. This Court then heard oral arguments on the motion for contempt related to Mrs. Edman and Mrs. Wickett on March 20, 1979, and post submission briefs submitted by the parties have been received and filed.

This Court has examined the motion to adjudicate Mrs. Edman and Mrs. Wickett guilty of contempt, together with the proof of such contempt, all of the evidence offered at the hearing, and the argument of counsel; and the Court is of the opinion, and so finds that Mrs. Georgia Bingle Ed-man and Mrs. Kenneth Wickett are guilty of contempt of court by reason of their violation of the terms of the temporary injunction entered by the District Court of Marion County on June 14, 1977, in Cause No. 147-76 and their punishment for such contempt is, by separate judgment of contempt this day entered, fixed by assessing against each of them a fine of $500.00 to be paid into the registry of this Court on or before the 25th day of May, 1979, together with all costs incurred in the contempt proceeding. The judgment of contempt is as follows:

JUDGMENT OF CONTEMPT
BE IT REMEMBERED that on this 10th day of May, 1979, came on to be considered the above entitled and numbered matter in which Mrs. Georgia Bin-gle Edman and Mrs. Kenneth Wickett stand charged, by motion, with contempt of court in failing and refusing to comply with the terms of the decree entered by the 115th Judicial District Court of Marion County, Texas, on or about the 14th day of June, 1977, in Cause No. 147-76, styled Fort Bend Chapter of the National Society, Daughters of the American Revolution, Et Al, Plaintiffs, v. Mrs. Hastings Pannill, Et Al, Defendants, wherein the said The Texas Society; Daughters of the American Revolution; Inc., its agents, representatives, officers, attorneys and those in active concert or participation with them, were temporarily enjoined from:
1. Selling, transferring, assigning, hy-pothecating, encumbering or in any manner disposing of the stocks, and bonds, or proceeds from the sale thereof presently on hand or other assets of The Society.
2. Incurring any indebtedness or expending any sum of money for any purpose other than in carrying on the ordinary business of The Society;
And it appearing to the Court that the said Mrs. Georgia Bingle Edman and Mrs. Kenneth Wickett, officers of The Texas Society, Daughters of the American Revolution, Inc., have been duly cited herein, to show cause if any they have, why they should not be adjudged to be in contempt for violation of said temporary injunction, and after having reviewed the proof of such contempt adduced before the District Judge of the 115th Judicial District Court of Marion County, Texas, pursuant to an order entered by this Court on April 19, 1978, and after reviewing all of the evidence offered at said hearing, and the argument of counsel before this Court, the Court is of the opinion, and so finds that the said Mrs. Georgia Bingle Edman and Mrs. Kenneth Wickett are guilty of contempt.
It is accordingly ordered, adjudged and decreed by the Court that the said Mrs. Georgia Bingle Edman and Mrs. Kenneth Wickett be and they are hereby each held guilty of contempt of court by reason of their violation of the terms of the temporary injunction entered by the District Court of Marion County, Texas, on June 14,1977, in Cause No. 147-76, styled Fort Bend Chapter, The National Society Daughters of the American Revolution, Et Al v. Mrs. Hastings Pannill, Et Al, and their punishment for such contempt is here fixed by assessing against each a fine of $500.00 which shall be paid into the registry of this Court on or before the 25th day of May, 1979.
It is further ordered that the said Mrs. Georgia Bingle Edman and Mrs. Kenneth Wickett pay all costs of this proceeding, for which let execution issue.
It is further ordered that the said Mrs. Georgia Bingle Edman and Mrs. Kenneth Wickett may each purge herself of such contempt by each paying the sum of $500.00 into the registry of this Court on or before the 25th day of May, 1979, together with all costs incurred in this contempt proceeding in the total sum of $3,675.95, which costs are taxed against Mrs. Georgia Bingle Edman and Mrs. Kenneth Wickett, jointly and severally.
Signed and entered this the 10th day of May, 1979.
/s/ C. L. Rav. Jr.
C. L. Ray, Jr., Associate Justice
/s/ Bun L. Hutchinson
Bun L. Hutchinson, Associate Justice

(Chief Justice Cornelius not participating.)

The evidence in this matter is clear and convincing that Mrs. Georgia Bingle Edman and Mrs. Kenneth Wickett each defied the terms of the temporary injunction by making unauthorized expenditures and disposition of the funds of the Texas Society, Daughters of the American Revolution, Inc. for purposes other than carrying on the ordinary business of The Society in violation of the temporary injunction entered by the District Court of Marion County on June 14, 1977, in Cause No. 147-76.

ON MOTION TO ADJUDICATE

C. LELAND HAMEL GUILTY OF CONTEMPT

On January 11,1979, appellees’ filed their motion in this Court to adjudicate C. Leland Hamel, attorney, guilty of contempt for violation of the same temporary injunction entered by the District Court of Marion County on June 14,1977, in Cause No. 147-76. That order not only enjoined The Texas Society, Daughters of the American Revolution, Inc., its agents, representatives and officers from incurring any indebtedness or expending any sum of money for any purpose other than in carrying on the ordinary business of The Society, but also enjoined The Society’s attorneys from participation in the disposition of the assets of the corporation other than for purposes related to the carrying on of the ordinary business of The Society. Because the motion to adjudicate C. Leland Hamel guilty of contempt was filed after the District Court of Marion County had started its evidentiary hearing related to Mrs. Edman and Mrs. Wickett, this Court did not wish to complicate the matter further by expanding its original order to direct C. Leland Hamel to appear and show cause why he should not be held in contempt for violation of the temporary injunction. This case has been pending in this Court on motions for rehearing since October 16, 1978, and at this point this Court is not inclined to delay the motions for rehearing any further by directing the trial court to hold an evidentiary hearing relative to the motion to adjudicate C. Leland Hamel in contempt of court. That matter can be taken up by the trial court when its jurisdiction reattaches. Further, since this Court has not issued a show cause notice to Mr. Hamel, and since he has not been given a chance to defend himself at a full evidentiary hearing, we are of the opinion that it would be a violation of due process and error to adjudicate Mr. Hamel in constructive contempt of court. Ex Parte Gordon, 584 S.W.2d 686 (1979).

During the evidentiary hearing substantial time was taken in trying to resolve the problem of whether or not Mr. Hamel would be required to produce certain records of the corporation after the officers of the corporation had directed him to invoke the attorney-client privilege and the work product privilege. Mr. Hamel has insisted throughout this case that he represents The Society. There is an obvious conflict of interest between The Society and the officers charged with wrongdoing. In view of Mr. Hamel’s insistence that he represents The Society; those officers of the corporation charged with wrongdoing cannot insist that he invoke the attorney-client privilege or the work product privilege, because to do so would thwart the corporate entity’s right to be protected from the alleged wrongdoing of its officers. The whole purpose of this suit is to discover, for the benefit of the corporate entity, whether its officers have been guilty of fraud, negligence, mismanagement, or other acts which violate the laws of this State or the provisions of the charter or by-laws of the corporation itself. In a derivative action, such as the one involved here, all books and records of the corporation are subject to inspection by any member, or its agent or attorney, for any proper purpose at any reasonable time, and this includes all records in the hands of the officers or the attorney for the corporation. Article 1396-2.23, the Texas Non-Profit Corporation Act. All of Mr. Hamel’s records and files in any way related to his representation of The Society are open for inspection by any member, or its agent or attorney, because those records and files are the property of the corporate entity. 18 C.J.S. Corporations § 7, p. 379 (1939); 20 R. Hamilton, Texas Business Organizations § 801, et seq. (1973).

Appellant’s points of error are overruled. The judgment of the trial court is affirmed.

ON MOTIONS FOR REHEARING

This Court’s opinion on motions for rehearing dated August 31, 1979, is withdrawn along with the rulings on the motions for rehearing and the following rulings and opinion are substituted.

All motions for rehearing filed by appellant, The Texas Society, Daughters of the American Revolution, Inc., are overruled.

All motions for rehearing of the judgment of contempt filed in behalf of Mrs. Georgia Bingle Edman and Mrs. Kenneth Wickett are overruled.

Appellees’ motion for rehearing is granted.

The judgment of contempt is based upon the record made in this case including the testimony and evidence admitted before the District Court of Marion County pursuant to the orders of this Court directing the District Court to hold an evidentiary hearing related to the possible contempt of Mrs. Edman and Mrs. Wickett. We are of the opinion that all of the expenditures, as distinguished from transfers of funds, listed in the trial court’s findings were unauthorized because those funds were expended to defend the officers of the corporation against allegations of wrongdoing. Further, we have concluded that the findings of the District Court related to the expenditures were patently erroneous. The findings of the District Court related to the transfers of $78.00 and $74.35 respectively from The Society’s funds to a special legal defense account as being contemptuous is not altogether clear or certain. Thus, this Court has held Mrs. Edman and Mrs. Wickett in contempt of court for having made unauthorized expenditures of funds of the corporation to defend themselves against alleged wrongdoing asserted in a derivative action brought by certain member societies of The Texas Society, Daughters of the American Revolution, Inc. The following expenditures were contemptuous for which the following fines are imposed:

For expending corporate funds in the sum of $105.00 by check No. 230, dated June 23, 1977, for aircraft rental (legal defense), Mrs. Edman and Mrs. Wickett are each fined the sum of $25.00;
For expending corporate funds in the sum of $1500.00 by check No. 231, dated June 23,1977, for retainer, legal fee, Mrs. Edman and Mrs. Wickett are each fined the sum of $100.00;
For expending corporate funds in the sum of $257.40 by check No. 236, dated July 7, 1977, for transcript (court proceedings), Mrs. Edman and Mrs. Wickett are each fined the sum of $50.00; For expending corporate funds in the sum of $122.00 by check No. 237, dated July 10, 1977, for aircraft rental (legal defense), Mrs. Edman and Mrs. Wickett are each fined the sum of $25.00;
For expending corporate funds in the sum of $1,000.00 by check'No. 256, dated September 20, 1977, for advance of lawyer expenses, Mrs. Edman and Mrs. Wick-ett are each fined the sum of $100.00; For expending corporate funds in the sum of $1241.20 by check No. 260, dated October 5, 1977, for legal fees, Mrs. Ed-man and Mrs. Wickett are each fined the sum of $100.00;
For expending corporate funds in the sum of $1,000.00 by check No. 275, dated November 30, 1977, for advance on legal fees, Mrs. Edman and Mrs. Wickett are each fined the sum of $100.00.

This Court makes no determination of whether or not the injunction proscribes the transfer of money from one account to another since such determination would be tantamount to granting final relief which may not be afforded in a temporary injunction proceeding. Neither does this Court decide that the legal defense fund was or was not the property of The Society. These matters will be finally determined when the case is tried on its merits.

The entire history of this litigation has revolved around a dispute between the member societies and the officers of The Texas Society, Daughters of the American Revolution, Inc. The officers of the corporation have from the beginning been charged with wrongdoing and thus, all money expended in the defense of such officers has been unauthorized. Aircraft rental, legal retainer fees, transcripts of court proceedings, advance of lawyer expenses, legal fees and monies expended from corporate funds for. the defense of the corporate officers violate the long standing law in this State that a corporate fiduciary may not derive a personal benefit in dealing with the corporation’s funds or its property. A corporate officer who diverts funds of the corporation to his own benefit in violation of his fiduciary relationship is personally liable to the corporation for such unauthorized use of corporate funds. International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 577 (Tex.1963). In Texas, pursuant to Articles 1396-2.02A(16) and 1396-2.22, Tex.Rev.Civ.Stat.Ann., the Texas Non-Profit Corporation Act, a corporation may indemnify any director or officer or former director or officer of the corporation for expenses and costs actually and necessarily incurred by him in connection with any claim asserted against him or in connection with the defense of any claim, suit or proceeding in which he is made a party by reason of being or having been such director or officer, “ . . . except in relation to matters as to which he shall be adjudged in such action, suit or proceeding to be liable for negligence or misconduct in performance of duty, . . . ”. These provisions are permissive and not mandatory. There is no common law right of indemnification of corporate officers and directors in Texas. Their right to indemnification is purely statutory. Thus, corporate officers, directors, former directors and former officers are not entitled to indemnification pendente lite because there is no statutory provision authorizing the advancement of expenses in connection with litigation against such officers and directors. It is only at the conclusion of the litigation and after which the officers and directors have been absolved from negligence or misconduct in performance of duty that the corporation is authorized to indemnify them. All corporate officers in this case, past, present and future, are charged with notice of the provisions of the statutes relating to indemnification. The statutes are clear that the officers and directors who are charged with wrongdoing are not entitled to indemnification until an adjudication of their actions has been made relative to their negligence or misconduct in performance of duty. Since the officers of the corporation were charged with notice of the indemnity statutes, it follows that they knew the advancement of corporate funds for legal fees and expenses to defend themselves would not be in the ordinary course of business because such actions had no statutory authorization and would be contrary to the clear implications of those statutes which do authorize indemnification. Gross v. Texas Plastics, Inc., 344 F.Supp. 564 (D.N.J.1972); Model Business Corporation Act § 5 (1971); 20 R. Hamilton, Texas Business Organizations §§ 731 and 845 (1973). The record in this case substantiates a finding that the listed expenditures were not in the ordinary course of business of the corporation and that Mrs. Edman and Mrs. Wickett. were aware of such. Mrs. Edman testified that she knew that these lawsuits “were not in the ordinary course of business.”

Had the DeWares, as purchasers of the Freeman Plantation, sued The Society for specific performance of the agreement to sell the Freeman Plantation to them, then The Society could have employed attorneys to represent The Society in its defense as being in the ordinary course of business pursuant to Article 1396-2.02 A(2), Tex. Rev.Civ.Stat.Ann., the Texas Non-Profit Corporation Act, which provides that each corporation shall have power to sue and be sued, complain and defend, in its corporate name. However, in a derivative action, such as this case, where the corporation is sued as a nominal party defendant to preserve the status quo and to preserve the assets of the corporation in which the officers of the corporation have been charged with wrongdoing, then, as we have previously pointed out, no funds can be expended by the corporation for the defense of its officers or former officers until those officers have been finally absolved from negligence and misconduct. It was a violation of the temporary injunction for such officers to have expended corporate funds for their defense prior to being cleared of negligence or misconduct.

The Judgment of Contempt entered by this Court on May 10, 1979, is amended to read as follows:

AMENDED JUDGMENT OF CONTEMPT
The Judgment of Contempt signed and entered by this Court on the 10th day of May, 1979, is hereby rescinded and the following Amended Judgment of Contempt is entered in place of the original Judgment of Contempt:
BE IT REMEMBERED that on the 10th day of May, 1979, came on to be considered the above entitled and numbered matter in which Mrs. Georgia Bin-gle Edman and Mrs. Kenneth Wickett stand charged, by motion and complaint, with contempt of court in failing and refusing to comply with the terms of the decree granting a temporary injunction entered by the 115th Judicial District Court of Marion County, Texas, on or about the 14th day of June, 1977, in Cause No. 147-76, styled Fort Bend Chapter of the National Society, Daughters of the American Revolution, Et Al, plaintiffs, v. Mrs. Hastings Pannill, Et Al, defendants, wherein The Texas Society, Daughters of the American Revolution, Inc., its agents, representatives, officers, attorneys and those in active concert or participation with them, were temporarily enjoined from:
1. Selling, transferring, assigning, hy-pothecating, encumbering or in any manner disposing of the stocks, and bonds, or proceeds from the sale thereof presently on hand or other assets of The Society.
2. Incurring any indebtedness or expending any sum of money for any purpose other than in carrying on the ordinary business of The Society;
And, it appearing to the Court that the said Mrs. Georgia Bingle Edman and Mrs. Kenneth Wickett, officers of The Texas Society, Daughters of the American Revolution, Inc., have been duly cited and given notice herein to show cause, if any they have, why they should not be adjudged to be in contempt for violation of such temporary injunction, and whereupon said parties appeared in person and by and through their attorneys of record and participated in the contempt hearing;
, And, whereas, the Court has reviewed the proof of such contempt adduced before the District Judge of the 115th Judicial District Court of Marion County, Texas, pursuant to an order entered by this Court on April 19, 1978, and after reviewing all of the testimony and evidence offered at said hearing, together with the entire record in this case, and the argument of counsel before this Court, the Court is of the opinion, and so finds that the evidence is clear and convincing that the said Mrs. Georgia Bingle Edman and Mrs. Kenneth Wickett have violated the unambiguous terms of said temporary injunction and are guilty of contempt.
It is accordingly ordered, adjudged and decreed by the Court that the said Mrs. Georgia Bingle Edman and Mrs. Kenneth Wickett be and they are hereby each held guilty of contempt of court by reason of their numerous violations of the terms of the temporary injunction entered by the District Court of Marion County, Texas, on June 14, 1977, in Cause No. 147-76, styled Fort Bend Chapter, The National Society Daughters of the American. Revolution, Et Al v. Mrs. Hastings Pannill, Et Al, and their respective punishment for each contemptuous act hereinafter set out is here fixed by assessing against each the following fines which shall be paid into the registry of this Court on or before the 10th day of October, 1979: For expending corporate funds in the sum of $105.00 by check No. 230, dated June 23, 1977, for aircraft rental (legal defense), Mrs. Edman and Mrs. Wickett are each fined the sum of $25.00;
For expending corporate funds in the sum of $1500.00 by check No. 231, dated June 23,1977, for retainer, legal fee, Mrs. Edman and Mrs. Wickett are each fined the sum of $100.00;
For expending corporate funds in the sum of $257.40 by check No. 236, dated July 7, 1977, for transcript (court proceedings), Mrs. Edman and Mrs. Wickett are each fined the sum of $50.00;
For expending corporate funds in the sum $122.00 by check No. 237, dated July 10, 1977, for aircraft rental (legal defense), Mrs. Edman and Mrs. Wickett are each fined the sum of $25.00;
For expending corporate .funds in the sum of $1,000.00 by check No. 256, dated September 20, 1977, for advance of lawyer expenses, Mrs. Edman and Mrs. Wick-ett are each fined the sum of $100.00; For expending corporate funds in the sum of $1241.20 by check No. 260, dated October 5, 1977, for legal fees, Mrs. Ed-man and Mrs. Wickett are each fined the sum of $100.00;
For expending corporate funds in the sum of $1,000.00 by check No. 275, dated November 30, 1977, for advance on legal fees, Mrs. Edman and Mrs. Wickett are each fined the sum of $100.00
It is further ordered that the said Mrs. Georgia Bingle Edman and Mrs. Kenneth Wickett pay all costs of this proceeding, for which let execution issue.
It is further ordered that the said Mrs. Georgia Bingle Edman and Mrs. Kenneth Wickett may each purge herself of such contempt by each paying her fines, totaling $500.00 each, into the registry of this Court on or before the 10th day of October, 1979, together with all costs incurred in this contempt proceeding in the total sum of $3,675.95, which costs are taxed against Mrs. Georgia Bingle Edman and Mrs. Kenneth Wickett, jointly and severally.

Signed and entered on this the 25th day of September, 1979.

/s/ C. L. Rav. Jr.

C. L. Ray, Jr., Associate Justice

/s/ Bun L. Hutchinson

Bun L. Hutchinson, Associate Justice

(Chief Justice Cornelius not participating.)

All motions for rehearing filed by the contemnors are overruled.

CORNELIUS, C. J., not participating.


author: BISSETT, Justice.

text:
    SNYDERS SMART SHOP, INC., d/b/a Snyders-Chenards, Appellant, v. SANTI, INC., Appellee.
    No. 1533.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 18, 1979.
    Rehearing Denied Nov. 29, 1979.
    Richard Banks, Salmanson, Smith & Mouer, Austin, for appellant.
    Thomas G. Sharpe, Jr., Brownsville, for appellee.
   OPINION

BISSETT, Justice.

This is an appeal from an order overruling a plea of privilege filed by Snyders Smart Shop, Inc., d/b/a Snyders-Chenards, defendant in the trial court and appellant in this Court. Santi, Inc., a Texas corporation, plaintiff in the trial court and appellee here, is domiciled in Cameron County, Texas. Appellant is domiciled in Travis County, Texas. Appellee, in its controverting plea, alleged that venue was in Cameron County under the provisions of Tex.Rev.Civ. Stat.Ann. art. 1995, §§ 5, and 30 (1964 and Supp.1978), and Tex.Bus. & Comm.Code Ann. § 17.56 (Supp.1978).

It is undisputed that the parties entered into a written contract, dated October 31, 1977, whereby appellant agreed to sell to appellee, and the latter agreed to buy from the former, the business assets of a store, owned by appellant, and located in the City of Brownsville, Cameron County, Texas, including all inventory, furniture, fixtures and equipment in the store building, “all accounts receivable attributable to said store,” and all layaway merchandise “presently held at said store.”

In connection with the sale of the accounts receivable and layaway merchandise which were to be sold to appellee for the sum of $118,000.00, in cash, as adjusted on the date of closing, the contract expressly provided:

“. . . It is understood and agreed, however, that, in the event accounts receivable and the unpaid balance of laya-ways transferred to PURCHASER at time of closing should be less than $118,-000.00, the purchase price will be reduced by any such difference; and if such accounts receivable and unpaid balance of layaway transfers should exceed such sum, the amount of the excess shall be paid by PURCHASER to SELLER at time of closing. It is also understood and agreed that the purchase price for Hartic (delinquent) accounts receivable of $18,-300.00 (approximately).(shall be subject to adjustment for a period of six (6) months following closing, in the event any of such accounts receivable purchased at closing shall thereafter prove to be uncollectible. Delinquent Hartic accounts which are restored to current or acceptable credit status during such six month period shall be accepted by PURCHASER, but such accounts which are not restored to active or acceptable status during such six month period shall be repurchased by SELLER at the end of such six month period.
2. SELLER represents and warrants that SELLER is the owner of and has good and marketable title to all assets covered by this Agreement and that such assets shall be conveyed to PURCHASER at time of closing, free and clear of all liens and encumbrances.”
***** *
“12. At the time of closing, SELLER shall furnish to PURCHASER a computer readout indicating the exact unpaid balance of accounts receivable and laya-ways covered by this Agreement.”

The “six-month” period relating to accounts. receivable expired on April 30, 1978.

On March 2, 1978, appellee’s attorney wrote appellant’s attorney concerning accounts receivable in the total amount of $13,791.08, hereinafter referred.to as the “Lozano accounts,” which appellee claims “had previously been turned (by appellant) to Valley Credit Control for collection.” In the letter, appellant was advised that appel-lee “never intended to purchase” the Loza-no accounts.

On May 24, 1978, appellee’s attorney wrote appellant’s attorney and told him that the unpaid balance of the “Hartic accounts” (which were the subject of special treatment in the contract) was $17,592.42. The letter further stated:

“In behalf of Santi, Inc., we now tender all of these present accounts, plus all of the Lozano accounts, back to Snyders-Chenards and request immediate reimbursement.”

Appellant did not comply with the demand made on it, and appellee filed suit to enforce its demand on October 27, 1978. Ap-pellee, plaintiff in the trial court, alleged:

“II
On or about the 31st day of October, 1977, Plaintiff and Defendant executed a written contract, performable in Cameron County, Texas. A true copy of the contract is made part of this pleading and incorporated herein as Exhibit ‘A’.”
“HI
Defendant agreed to repúrchase, on or before April 30, 1978, the remaining delinquent accounts receivable that Plaintiff purchased on October 31, 1977. The Defendant has failed and refused to repurchase the remaining delinquent accounts receivable which Plaintiff originally purchased, although same have repeatedly been tendered to it.”
“IV
The Defendant, unbeknown to the Plaintiff, intentionally included accounts receivable in those accounts which Plaintiff purchased pursuant to said written agreement, which were not active or bona fide store accounts and had in fact been previously removed from said store accounts and placed for collection many months prior to October 31, 1977. This deceitful conduct of the Defendant occurred at Brownsville, Cameron County, Texas, and it was fraudulent and deceptive and constituted a breach of the expressed contract and was an unconscionable course of action by Plaintiff.”
“VI.
. Since the conduct of defendant, acting through its officers, agents and employees, constitutes a deceptive trade action in violation of Section 17.50 of the Business and Commerce Code, the actual damages should be tripled.”

We first determine whether venue was proper in Cameron County pursuant to the provisions of Tex.Rev.Civ.Stat.Ann. art. 1995, § 5(a). This section has been con--strued to require that the written contract expressly state that the obligation is performable at a particular place. The place of performance cannot be implied; it must be expressed. Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610 (Tex.Sup.1948); Conner v. Prescon Corporation, 500 S.W.2d 713 (Tex.Civ.App.— Corpus Christi 1973, no writ). Our review of the contract in this case reveals nothing pertaining to the place of performance, although Cameron County is mentioned several times as the location of the store. See Traweek v. Ake, 280 S.W.2d 297 (Tex.Civ.App.—El Paso 1955, no writ). Hence, section 5(a) of article 1995 is inapplicable to the case at bar.

In order to maintain venue under the provisions of section 7 of art. 1995, not only must the cause of action be one sounding in tort and not one for breach of contract or to enforce the provisions of a contract, but the plaintiff must plead fraud and must also prove, prima facie, every constituent element of fraud. Safeway Stores, Inc. v. Amburn, 380 S.W.2d 727 (Tex.Civ.App.—Fort Worth 1964, writ dism’d); Nelson International, Inc. v. Bolin, 567 S.W.2d 901 (Tex.Civ.App.—San Antonio 1978, no writ); Banks v. Merritt, 537 S.W.2d 494 (Tex.Civ.App. — Tyler 1976, no writ). For the elements of actionable fraud, see Oilwell Division, United States Steel Corporation v. Fryer, 493 S.W.2d 487 (Tex.Sup.1973).

We have reviewed the record in its entirety. An examination of appellee’s petition convinces us that the main thrust of the action is the enforcement of the contract; the fraud aspect is purely secondary.. In view of our holding on the question of whether venue was proper under section 7 of the venue statute, we do not deem it necessary to decide whether the petition alleges fraud. We hold that appellee did not meet its burden of proving, prima facie, all of the elements of actionable fraud. Under those circumstances, venue cannot be maintained in Cameron County under the provisions of Tex.Rev.Civ.Stat.Ann. art. 1995, § 7.

We now consider appellant’s contention that venue cannot be maintained in Cameron County by virtue of the Deceptive Trade Practices Act. For that Act’s venue provision to apply, a plaintiff must allege a claim to relief under Section 17.50. Section 17.50 provides that a “consumer” may maintain an action under the Act. The Act defines “consumer” as “an individual, partnership, corporation, or governmental entity who seeks or acquires by purchase or lease, any goods or services.” We must, therefore, determine whether the appellee is a consumer under the Act. This determination hinges upon whether the obligation out of which the case here presented arose concerned the purchase or lease of goods or services.

The obligation being litigated in the case at bar concerns the purchase of accounts receivable. The Act defines “goods” as “tangible chattels or real property purr chased or leased for use.” It further defines “services” as “work, labor, or service purchased or leased for use, including services furnished in connection with the sale or repair of goods.” These statutory definitions indicate an obvious legislative intent to exclude the purchase of intangible property from the scope of the Act. Accounts receivable are clearly a species of intangible property; they do not concern the purchase or lease of goods or services. Thus, appellee failed to state a cause of action under the Act. Venue cannot be maintained in Cameron County, Texas, under Tex.Bus. & Comm.Code Ann. § 17.56 (Supp.1978).

The judgment of the trial court is reversed and judgment is rendered that the cause be transferred to the District Court of Travis County, Texas.

REVERSED and RENDERED.

YOUNG, J., not participating.

      . The pertinent part of art. 1995, § 5, reads:
      “5. Contract in writing — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

      . Art. 1995, § 7, provides:
      “7. Fraud and defalcation — In all cases of fraud, and in all cases of defalcation by public officers, suit may be brought in the county where the fraud was committed or where the defalcation occurred, or any of such suits may be brought where the defendant has his domicile.”

      . Art. 1995, § 30, reads:
      “30. Special venue — Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

      . Section 17.56 of the Business and Commerce Code, provides:
      “§ 17.56. Venue
      An action brought which alleges a claim to relief under Section 17.50 of this subchapter may be commenced in the county in which the person against whom the suit is brought resides, has his principal place of business, or has done business.”

      . Tex.Bus. & Comm.Code Ann. § 17.56 (Supp. 1979).

      . Tex.Bus. & Comm.Code Ann. 17.45(4) (Supp. 1979).

      . Tex.Bus. & Comm.Code Ann. § 17.45(1) (Supp. 1979).

      . Tex.Bus. & Comm.Code Ann. § 17.45(2) (Supp. 1979).


author: YOUNG, Justice.

text:
    Robert S. CUTHERELL et ux., Appellants, v. EXOTIC ISLE COMPANY, Appellee.
    No. 1404.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 18, 1979.

      James D. Norvell, Abilene, John L. Russell, Ragan, Russell & Rorschach, Houston, for appellants.
    Jimmy D. Ashley, Houston, for appellee.
   OPINION

YOUNG, Justice.

This is an appeal from a suit seeking a permanent injunction in which both sides moved for summary, judgment and the court granted the motion of the defendant, Exotic Isle Company. The denial of the injunction by the summary judgment, in effect, permitted the defendant to call a meeting of the Exotic Isle Homeowners As-' soeiation for the purpose of amending a Declaration of Access Easement and Restrictions to allow an increased assessment on all lot owners in the Exotic Isle subdivision.

The Exotic Isle Homeowners Association and several of its members originally brought this suit and all subsequently appealed. Thereafter, upon the request of all the appellants except Robert S. Cutherell and Suzanne S. Cutherell, we dismissed the appeal as to all appellants except the Cutherells.

A fair summary of the pertinent facts is as follows. Exotic Isle Company, appellee, was formed in order to develop a resort subdivision on an island created by the straightening of the Colorado River. In order to insure uniform use and maintenance of the island, appellee filed a Declaration of Access Easement and Restrictions in the deed records of Matagorda County. This Declaration vested the control of the subdivision in the Exotic Isle Homeowners Association. It provided, among other things, for the creation of a maintenance fund to serve certain needs of the subdivision.

Later, after a dispute arose over the right of control of the Association, the Association and the Company clarified their respective rights in an agreed judgment signed and entered November 24, 1975. The Company agreed in this judgment to relinquish all right of control over the Association except for the right to vote on any issue involving the amendment of the Declaration of Access Easement and Restrictions or the By-Laws (which includes any change in the assessments) to be made pursuant to the maintenance fund).

According to the appellee, part of the agreement was to keep the old channel of the Colorado River dredged so as to maintain the status of the development as an island. Silt from the ebb and flow of the tides was causing the old channel to become filled with sand, thus connecting the island with the land to form a peninsula. Appel-lee contends that this accretion threatened the attraction of the development as an island.

Therefore appellee attempted to call a meeting of the Association to vote on an amendment to the Declaration of Access Easement and Restrictions which would establish an assessment on each lot in the development to pay for the cost of dredging. Appellants obtained a temporary restraining order preventing the convening of such a meeting. At the subsequent hearing for a permanent injunction, both sides moved for summary judgment. The trial judge granted the motion of the defendant-appellee and this appeal followed.

Appellants raise three points of error. Point 1 pertains to the construction of the “Duration” clause of the Declaration. Point 2 raises the question of the doctrine of res judicata acting as a bar to the right of the developer, to call a meeting of the Association. Point 3 alleges that the former judgment is subject to two interpretations, thus making it ambiguous and incapable of sustaining a motion for summary judgment.

The central point of contention between the parties in this case is the construction of the “Duration” provision of the “Exotic Isle Declaration of Access Easement and Restrictions” (Article II, paragraph 4) which states:

“The provisions hereof, including the Reservations and Covenants herein set forth, shall run with the land and shall be binding upon Developer, its successors and assigns, and all persons or parties claiming under it for a period of forty (40) years from the date hereof, at which time all of such provisions shall be automatically extended for successive periods of ten (10) years each, unless prior to the expiration of any such period of forty (40) years or ten (10) years the then owners of sixty percent (60%) of Lots in the Subdivision shall have executed and recorded an instrument changing the provisions hereof, in whole or in part.”

The parties do not agree on the meaning of this provision.

In examining an ambiguous document to determine its true meaning, this Court must look at the entire document to attempt to give “all of its language some effective meaning.” Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617 (1954). A Houston Court of Civil Appeals did just that in determining the meaning of a duration provision very similar to the one in the case at bar. Valdes v. Moore, 476 S.W.2d 936 (Tex. Civ.App. —Houston [14th Dist.] 1972 writ ref’d n.r.e.). In that case, the Court held that the instrument could not “. be construed, as a matter of law, as permitting amendment within the- first 25 year period.” Valdez v. Moore, supra at 939. The Court continued:

“A holding to the effect that the restrictions could be so amended would require a resolution of a question of fact in support of such a holding. The existence of such a question of fact would preclude a summary judgment, as here rendered, that depended upon such a construction.”

Although the duration provisions vary as set out in the two cases, this Court cannot hold that the provision in this case is subject to only one construction as a matter of law. The meaning of the duration in the instrument is a question of fact that the trial court must resolve. As long as this material question of fact exists, it is improper for the trial court to grant a motion for summary judgment. Valdez v. Moore.

In that regard, this Court proposes that there are at least three possible, constructions of the duration provision. The liberal construction would permit an amendment of the Declaration whenever 60% of the landowners agree to change the provision. A middle-of-the-road construction would permit the landowners to agree to a change at any time during the 40 year period, but the change could not take effect until after the expiration of 40 years. A conservative construction would not permit any change, or agreement to change, to take place until the expiration of the 40 year period. Only then could a motion to change the provision be commenced. Appellants’ point 1 is sustained.

The appellants in their point 2 contend that the issue of control and direction of the Association was adjudicated in the judgment of November 24, 1975, in consolidated causes numbered 21,762 and 22,045. They argue that any attempt to exercise control over the Association at present is barred by the doctrine of res judicata. See Olivarez v. Broadway Hardware, Inc., 564 S.W.2d 195 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n.r.e.). And, according to the appellants, the appellee is thus prevented from calling a meeting of the Association because this right was taken from it in the prior judgment.

It is true that many of the rights to oversee and to manage the affairs of the Association were removed from the control of appellee in the prior judgment. The judgment, however, also established that the appellee has certain rights as to any issue involving the amendment of the Declaration of Access Easement and Restrictions or the By-Laws:

“[I]t is ORDERED, that henceforth the Defendants are not to exercise their right to vote in the operation of the EXOTIC ISLE HOMEOWNERS ASSOCIATION except on any issue involving the Amend-' ment of the Declaration of Access Easement and Restrictions, or the By-Laws; (which will include and change in the Assessment(s) to be made pursuant to the Maintenance Fund.)”

This clause clearly gives to the appellee the right to vote in specific cases affecting either an amendment of the Declaration or the By-Laws. Appellants, however, would have us believe that the exercise of this enfranchisement is only valid if some other member of the Association proposes a vote on one of these two matters; that at no time can appellee propose a vote on an issue involving an amendment of the Declaration or the By-Laws and thereby have a right to vote on it. We reject this theory. Appel--lants’ point 2 is overruled.

Point 3 questioning the meaning of the prior judgment between the parties has no merit. The trial court clearly defined the specific instances in which the appellee has the right to participate in the affairs of the Association as we pointed out in our discussion of appellants’ point 2. The prior judgment is not subject to more than one construction and, therefore, is not ambiguous. Appellants’ point 3 is overruled.

The judgment of the trial court is reversed and the cause is remanded.

      . “All restrictions and covenants herein set forth shall continue for a period of twenty-five years from date hereof and shall automatically be extended thereafter for successive periods of ■ten (10) years; provided, however, that the owners of the majority of these sites may change, modify or omit such restrictions, or any of them, by executing and acknowledging an appropriate instrument in writing, filed with the Office of the County Clerk of Harris County, Texas.”