text:
    TEXAS DEPARTMENT OF HUMAN RESOURCES, Appellant, v. Edward Charles DELLEY, Appellee.
    No. 19667.
    Court of Civil Appeals of Texas, Dallas.
    April 30, 1979.
    Rehearing Denied May 30, 1979.
    Lewis F. Boyd, Texas Dept, of Human Resources, Child Support Enforcement Branch, Austin, for appellant.
    Michael J. O’Neill, Adolph P. Canales, Dallas, for appellee.
    Before AKIN, ROBERTSON and CARVER, JJ.
   AKIN, Justice.

This suit was brought to compel an alleged father to support an illegitimate child born before the enactment of Tex. Family Code Ann. §§ 13.01-13.09 (Vernon Supp. 1978 — 1979). The question is whether the action is barred by the four-year statute of limitations, Tex.Rev.Civ.Stat.Ann. art. 5529 (Vernon 1958), or whether the statute is tolled during the minority of the child by Tex.Rev.Civ.Stat.Ann. art. 5535 (Vernon Supp. 1978-1979). Appellant Texas Department of Human Resources sued appel-lee Delley on behalf of a nine year old child whose mother received welfare assistance to establish that appellee was the biological father of the child. The mother assigned the child’s right to receive child support to the Texas Department of Human Resources. Before suit was filed, appellee signed a sworn statement witnessed by two people acknowledging that he was the father of the child in question. In the paternity proceeding, however, appellee asserted that the State’s suit was barred by the general four-year statute of limitations, Tex.Rev.Civ.Stat.Ann. art. 5529 (Vernon 1958). In a preliminary hearing, the trial court dismissed the State’s suit with prejudice, holding that the State’s cause of action was barred by the four-year statute of limitations since the child was born more than four years prior to the filing of this suit. We hold, however, that the four-year statute of limitations is tolled until the child attains majority. Tex.Rev.Civ.Stat.Ann. art. 5535 (Vernon Supp. 1978 — 1979). Accordingly, the judgment of the trial court is reversed and remanded.

Before discussing the merits of this case, we first overrule appellant’s motion to dismiss for want of jurisdiction. The motion was filed in advance of oral argument, but we have chosen to consider it with the merits. Appellee argues that this court lacks jurisdiction because appellant failed to timely file a cost bond or an affidavit in lieu of a cost bond. Tex.R.Civ.P. 354-356. Appellee contends that the State of Texas is not a party in interest in this suit, and that Tex.Rev.Civ.Stat.Ann. art. 2276 (Vernon 1971), which exempts the State from filing a bond on appeal, does not apply. We cannot agree.% Appellant’s first amended petition recites that support rights for the child have been assigned to the State under the mandate of Tex.Rev.Civ.Stat.Ann. art. 695c § 18-B(c) (Vernon Supp. 1978-1979), thus making the State a party in interest to this litigation. Since this is true, article 2276 is applicable, and no appeal bond is required. We turn now to appellant’s points of error on the merits.

Appellant first asserts that the trial court erred in sustaining appellee’s plea of limitations because Tex.Rev.Civ.Stat.Ann. art. 5517 (Vernon 1958) provides that the State shall not be barred by any statute of limitations. Although we agree that under article 5517 limitations may not run against the State, our question is whether the statute of limitations may be asserted against the State when the claim sued upon was over four years old before assignment to the State. The child here was born in 1968 and his right of support was not assigned to the Texas Department of Public Welfare until February 10, 1977. Thus, more than four years had expired before the State Welfare Department obtained the assignment of the child’s support rights. We hold that if more than four years have passed before an illegitimate child’s support rights are assigned to the State, then the right to assert the statute of limitations has vested in the defendant, and he may assert the statute of limitations against the State. Southern Pacific Transport Co. v. State, 380 S.W.2d 123, 126 (Tex.Civ.App.—Houston 1964, writ ref’d). Here, the mere assignment of the claim from the mother to the State should not deprive the defendant of the statute of limitations defense. Accordingly, we overrule this point of error.

Appellant next argues that if the statute of limitations applies, it is tolled by the child’s disability of minority. Before we address this point, a discussion of the right of an illegitimate child to maintain a paternity suit in Texas is necessary. The constitutional right to bring a paternity suit in Texas was first recognized in 1973 when the United States Supreme Court decided Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973). In Gomez, the Supreme Court held that Texas could not deny an illegitimate child the right to seek support from his natural father since the State had provided such a right to legitimate children. Prior to Gomez, Texas courts had held that a father had no legal duty to support his illegitimate child. Home of the Holy Infancy v. Kaska, 397 S.W.2d 208 (Tex.1965). Subsequent to Gomez, Texas enacted legislation establishing a framework for paternity proceedings. Tex. Family Code Ann. §§ 13.01-13.43 (Vernon Supp. 1978-1979). See generally Smith, Illegitimate Children And Their Fathers: Some Problems With Title 2, 5 Texas Tech L.Rev. 613 (1974); Comment, Paternity Statutes: Thwarting Equal Protection for Illegitimates, 32 Miami L. Rev. 339, 371 (1977); Comment, Texas Family Law and The Rights of Illegitimate Children, 13 Hous.L.Rev. 1062 (1976). See also In the Interest of R.V.M., 530 S.W.2d 921 (Tex.Civ.App.—Waco 1975, no writ) (illegitimate child has common-law right of support from father). Neither side argued that the Family Code’s one-year statute of limitations on paternity suits applied to this case, since the child here was born in 1968, which was prior to the effective date of this statute. Tex. Family Code Ann. § 13.01 (Vernon Supp. 1978-1979). See generally Texas Department of Human Resources v. Chapman, 570 S.W.2d 46 (Tex.Civ.App.—Dallas 1978, no writ) (one-year statute of limitations on paternity suits, section 13.01, held constitutional but application of tolling statutes not raised). We agree with the courts of civil appeals which have held that section 13.01 may not be applied retroactively; it only applies to children born after September 1, 1975, the effective date of that provision. State Department of Public Welfare v. Martin, 562 S.W.2d 9 (Tex.Civ.App.—Eastland 1978, no writ); Catchings v. Hamm, 560 S.W.2d 194 (Tex.Civ.App.—Waco 1977, no writ); Alvarado v. Gonzales, 552 S.W.2d 539 (Tex.Civ.App.—Corpus Christi 1977 no writ).

The above Texas cases do not, however, address the question of whether the four-year statute of limitations applies to paternity suits on behalf of children born before September 1, 1975, such as the child in this suit. Tex.Rev.Civ.Stat.Ann. art. 5529 (Vernon 1958) provides: “Every action . for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward.” Since no specific statute of limitations is designated for paternity suits concerning children born before September 1, 1975, article 5529 by its very language applies.

We turn now to appellant’s next contention that the statute of limitations in article 5529 is tolled. Tex.Rev.Civ.Stat. Ann. art. 5535 (Vernon Supp. 1978-1979), which is the tolling statute for all actions under Title 91, subdivision 2, provides:

If a person entitled to bring any action mentioned in this subdivision of this title be at the time the cause of action accrues either a minor . . . the time of such disability shall not be deemed a portion of the time limited for the commencement of the action and such person shall have the same time after the removal of his disability that it allowed to others by the provisions of this title. [Emphasis added.]

Title 91 concerns “Limitations” and is divided into two subdivisions. The first addresses actions pertaining to real estate and the second concerns personal actions. Both article 5529 and article 5535 appear in the second subdivision of Title 91. Since article 5529 “All Other Actions Barred” is specifically mentioned in subdivision 2 of Title 91, we hold that article 5535 tolls the general four-year statute of limitations. Accordingly, the trial judge erred in sustaining appellee’s plea of limitations. See generally Smith, Commentary on Title 2, Texas Family Code Symposium Supplement, 8 Tex. Tech L.Rev. 19, 54-56 (1976).

In further support of our holding, we note that paternity suits are a prerequisite to child support for an illegitimate child. As a matter of public policy, we doubt that fathers of illegitimate children should be absolved from the duty of paying child support merely because a paternity suit has not been filed within four years of the birth of the child. We agree with the Washington Supreme Court which held that “[t]he state has a compelling interest in assuring that the primary obligation for support of illegitimate children falls on both natural parents rather than on the taxpayers of this state.” State v. Wood, 89 Wash.2d 97, 569 P.2d 1148, 1151 (1977). In addition, tolling the four-year statute of limitations in this case is particularly appropriate since appellee voluntarily signed a statement of paternity before institution of this suit. In this respect, several jurisdictions have extended the limitations period for paternity and support suits if the father makes a written acknowledgment of paternity. See Okla.Stat.Ann. tit. 10, § 83 (West 1966) (if paternity acknowledged in writing, support obligation enforceable until child’s majority); Idaho Code § 7-1107 (1979) (if paternity acknowledged in writing, then suit may be brought within five years of signing date); Ind.Code Ann. § 31-6-6-17 (Burns Supp.1978) (if paternity acknowledged in writing, then suit may be brought within two years of signing date); Uniform Parentage Act §§ 4, 6, 7 (West Supp.1976).

Our holding is also consistent with numerous cases from other jurisdictions which have addressed constitutional questions concerning statutes of limitation and paternity or support suits. See generally Stringer v. Dudoich, 92 N.M. 98, 583 P.2d 462 (1978) (two-year statute of limitations on paternity action held unconstitutional to the extent that it limited illegitimate child in seeking a determination of paternity and support); Palmer v. Mangum, 338 So.2d 1002 (Miss. 1976) (one-year statute of limitations on paternity suits applies only to the mother and hot the child); Huss v. DeMott, 215 Kan. 450, 524 P.2d 743 (1974) (statute of limitations applicable to statutory paternity proceeding relates to mother’s statutory action and does not limit time in which illegitimate child may bring non-statutory common law action); Wiczynski v. Maher, 48 Ohio App.2d 224, 356 N.E.2d 770 (1976) (child born out of wedlock has standing to bring action against alleged father for child support as the real party in interest); Kaur v. Singh Chawla, 11 Wash.App. 362, 522 P.2d 1198 (1974) (right of illegitimate child to assert claim for parental support is too fundamental to permit forfeiture by mother’s failure to institute, paternity suit within two-year statute of limitations); Perez v. Singh, 21 Cal.App.3d 870, 97 Cal.Rptr. 920 (1971) (statute of limitations in paternity suit is tolled during child’s minority).

Reversed and remanded.

      . Formerly the Texas Department of Public Welfare.

      . There is no dispute here that the child is the primary party in interest. The State’s right is a derivative right from the child to the extent that the State provides support for the child.


source: Caselaw Access Project

author: NYE, Chief Justice.

license: Public Domain

text:
    Guadalupe H. GONZALEZ, Appellant, v. TEXAS DEPARTMENT OF HUMAN RESOURCES, Appellee.
    No. 1428.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 3, 1979.
    Rehearing Denied May 24, 1979.

      James E. Belton, Texas Rural Legal Aid, Inc., Brownsville, for appellant.
    Thomas Sullivan, Asst. Dist. Atty., Brownsville, for appellee.
   OPINION

NYE, Chief Justice.

Suit was brought by the Cameron County Child Welfare Unit of the Texas Department of Human Resources (State) to terminate the parent-child relationship between Appellant Guadalupe H. Gonzalez, the natural mother, Tomas Gonzalez and Leonzo de Leon, the living natural fathers, and seven of nine children: John Heath (born February 23, 1963), Martha Heath (born April 3, 1965), Albert Heath (born December 16, 1966), Tomas Gonzalez, Jr. (born January 24, 1970), Robert de Leon (born June 3, 1972), Zulema de Leon (born May 5, 1973), and Maria de Leon (born June 4, 1974).

The State based its suit on Section 15.-02(1)(D) and (2) of the Texas Family Code Ann. (Supp.1979) which provides that:

“A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
(1) the parent has: * * * * * *
(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; . ******
and .
(2) termination is in the best interest of the child.”

Appellant answered by filing a general denial, numerous special exceptions and the following two “affirmative defenses”: 1) that there were available less drastic alternatives to termination and that the State had failed to adequately provide her and her children the welfare, protective and supportive services which would assist her in maintaining and strengthening her family life; and 2) that although she lacked a formal education, had limited financial and economic resources, and was suffering from physical and emotional problems, she had never willfully denied her children the care they needed nor had she intentionally endangered their well-being.

In response to numerous special issues, the jury found: 1) that Appellant had knowingly placed each child in conditions or surroundings which endangered his/her physical well-being; 2) that Appellant had knowingly allowed each child to remain in conditions or surroundings which endangered his/her physical well-being; 3) that termination of the parent-child relationship is in the best interest of each child; 4) that the appointment of the State as managing conservator would be in the best interest of each child.

After the jury verdict, the parties, with the consent of the trial court, entered into an agreement whereby the State agreed not to seek termination of the parent-child relationship between Appellant and the two oldest minor children, John Heath, age 16, and Martha Heath, age 15. Based upon this agreement and the answers to the special issues, the trial court entered a judgment which terminated the parent-child relationship of Appellant and both living natural fathers as to the five youngest children, Albert Heath, Tomas Gonzalez, Jr., Robert de Leon, Zulema de Leon, and Maria de Leon. The court appointed the State as managing conservator of these children. The children have remained in foster homes during the course of this appeal.

Appellant brings forward nine points of error for our consideration. We consider Appellant’s complaints concerning the trial court’s action in overruling her special exceptions to the pleadings and in refusing to submit to the jury her tendered special instruction, before we address her legal and factual sufficiency points of error attacking the jury’s finding and her other constitutional complaints.

In point of error number two, Appellant complaints that the district court abused its discretion in overruling special exceptions to the State’s original petition because such petition did not allege facts in support of the grounds for termination of the parent-child relationship, thereby depriving her of fair notice of what the State expected to prove and what she had to defend. In point of error number three, Appellant, in a related argument, complains that the application to this case of Section 11.08 of the Texas Family Code resulted in an unconstitutional denial of Appellant’s procedural due process of law. These contentions are without merit.

Section 11.08 requires, among other things, that a petition which seeks termination of the parent-child relationship must include “a statement describing what action the court is requested to make concerning the child and the statutory grounds on which the request is made.” Tex.Fam.Code Ann. § 11.08(b)(9) (1972). Section 11.14(a) provides that the rules of civil eases generally shall be applicable. Tex.Fam.Code Ann. § 11.14(a) (1972). Rule 45, T.R.C.P., provides, in relevant part, as follows:

“Pleadings in the district and county courts shall .
(b) Consist of a statement in plain and concise language of the plaintiff’s cause of action or the defendant’s ground of defense. That an allegation be evidentia-ry or be of legal conclusion shall not be ground for objection when fair notice to the opponent is given by the allegations as a whole.” (Emphasis added).

This rule is consistent with the due process notice requirements outlined by the Supreme Court in In Re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

Here the State filed an original petition in which the State sought to be appointed the managing conservator of Appellant’s children. Later the State filed a pleading captioned “Original Petition for Temporary and Permanent Managing Conservatorship and to Terminate the Parent-Child Relationship.” In support of each petition, the State alleged the statutory grounds contained in Section 15.02(1)(D) and (2) of the Texas Family Code as the basis for termination of the parent-child relationship. In addition, the State alleged that:

“ . . . temporary and permanent court orders for the care and protection of the children are necessary for the reasons set forth in the affidavit attached

The affidavit by Remberto G. Arteaga, Supervisor for the Cameron County Child Welfare Unit stated, in relevant párt:

“The children, if required to return to their natural mother, GUADALUPE GONZALEZ, would suffer immediate and irreparable injury for which there is no adequate remedy at law and that their mother is an alcoholic, unemployed and would be unable to provide (1) decent, safe and sanitary housing, (2) adequate parental care and supervision, (3) proper nutritional meals for the children. Therefore, for the safety and welfare of the children, the children should not be permitted to return to their mother, and, in my opinion it would be in the best interest of the children if they were allowed to remain in their present foster homes pending a hearing . . . ”

In addition, the State filed a show cause motion which alleged that the statutory grounds which initially supported the State’s removal of the children were continuing and that, therefore, the State should continue as managing conservator because:

“1. Respondent has no visible means of support;
2. Respondent has failed to stabilize her home environment, in that, she continues to consort with men who physically abuse her;
3. She continues to deny that any problems existed in the past with respect to the way that she cared for and supervised her children.”

Several months later, the Appellant filed an answer which included special exceptions directed toward the allegations contained in the State’s pleadings on the basis that such allegations were “vague and general and consist of conclusions of law and do not state the family conditions and circumstances and the specific facts, dates, names and places which support Petitioner’s conclusions of law.” The trial court overruled Appellant’s special exceptions. Contrary to Appellant’s assertions, the State did allege more than the statutory grounds for termination as contained in Sections 15.02(1)(D) and (2) of the Texas Family Code. We note that during oral argument, both parties stated that the discovery process under our rules had been utilized. Appellant’s points of error numbers two and three are overruled.

By her points of error numbers four and five, Appellant complains: 1) that there is insufficient evidence to show that there exists a present danger to the physical well-being of the children; and 2) that the trial court abused its discretion in refusing to submit the following special instruction requested by Appellant:

“In connection with the Special Issues, you are instructed that termination may not be based solely upon conditions which existed in the past but no longer exist. Before termination of the parent-child relationship can be ordered, it must be shown that the grounds upon which termination is being sought presently exist.”

The trial judge refused to submit the special instruction. Appellant moved for a directed verdict and a judgment notwithstanding the verdict on the basis that there was insufficient evidence to show that there existed a present danger to the physical well-being of the children. These motions were overruled.

Rule 277, Texas Rules of Civil Procedure, requires the Court to “submit such explanatory instructions and definitions as shall be proper . . . ” An instruction is “proper” if it finds support in the evidence and the inferences to be drawn therefrom, and if it might be of some aid or assistance to the jury in answering the issues submitted. First State Bank & Trust Co. of Edinburg v. George, 519 S.W.2d 198 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n.r.e.); Mejia v. Liberty Mutual Ins. Co., 544 S.W.2d 690 (Tex.Civ.App.—Houston [14th Dist.] 1976, no writ). The trial court has considerable discretion in deciding what instructions are necessary and proper in submitting issues to the jury. We do not find that the trial judge abused his discretion in this regard. See: Spradling v. Williams, 553 S.W.2d 143, 145 (Tex.Civ.App.—Beaumont 1977), aff’d 566 S.W.2d 561 (Tex.Sup.1978); McCane Sondock Detective Agency v. Penland Distributors, Inc., 523 S.W.2d 62 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ); First State Bank & Trust Co. of Edinburg v. George, 519 S.W.2d 198 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n.r.e.).

Appellant’s only specific objection to the court’s charge was to the effect that the special issues (because they merely “tracked” the vague, overbroad, etc., language of the statutory grounds for termination), violated Appellant’s constitutional rights in several respects. Other complaints concerning the form of the special issues as submitted were waived. Allen v. American National Ins. Co., 380 S.W.2d 604 (Tex.Sup.1964); Texas Employers Ins. Ass’n v. Nueman, 379 S.W.2d 295 (Tex.Sup.1964). The issues, as submitted to the jury, did require the jury to make a judgment as to the present conditions of Appellant and of the children. For example:

“Do you find, from a preponderance of the evidence, that termination is in the best interest of the children, or any of them.” (Emphasis added).

The special issues directed the jurors’ attention to the ultimate issues of the case. Appellant’s points of error numbers four and five are overruled.

In point of error number eight, Appellant brings forward a “legal sufficiency” point as to the jury findings relating to the three youngest children by complaining that the trial court erred in entering a judgment which terminated the parent-child relationship between her and Robert, Zulema and Maria because there is “no evidence” to support a finding that Appellant either knowingly placed or knowingly allowed these three youngest children to remain in conditions or surroundings which endangered their physical well-being. In point of error number nine, Appellant complains of the jury’s findings as to all five children on “factual sufficiency” grounds.

At the outset we recognize that actions which break the ties between a parent and child “ ‘can never be justified without the most solid and substantial reasons.’ ” State v. Deaton, 54 S.W. 901 (Tex. Sup.1900). First, there is the strong presumption that a child’s foremost interest is usually best served by keeping custody in and with the natural parents. This is based on a logical belief that the ties of the natural relationship of parent and child ordinarily bring about strong assurances and genuine efforts on the part of the custodians to provide the child with the best of care and most beneficial opportunities possible. Usually, the best atmosphere for mental, moral and emotional development of the child is with its natural parent. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.Sup. 1976), citing Mumma v. Aguirre, 364 S.W.2d 220 (Tex.Sup.1963). See and compare: Sanchez v. Texas Department of Human Resources, 581 S.W.2d 260 (Tex.Civ.App.—Corpus Christi 1979, no writ).

The standard of our review of legal and factual sufficiency points of error which attack the findings made by the trial judge or jury in an involuntary termination proceeding pursuant to the Texas Family Code is governed by the same general rules applicable to other civil cases. See e. g., Woodard v. Texas Dept. of Human Resources, 573 S.W.2d 596 (Tex.Civ.App.—Amarillo 1978, writ ref’d n.r.e.); In re E. S. M., 550 S.W.2d 749, 752 (Tex.Civ.App.—Houston [1st Dist.] 1977, writ ref’d n.r.e.). Thus, in deciding the “legal sufficiency” point, we review the evidence only in the light most favorable to support the jury’s findings, and in deciding the “factual sufficiency” point, we must consider all of the evidence. See Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); In re King’s Estate, 244 S.W.2d 660 (Tex.Sup.1951); In re E. S. M., 550 S.W.2d 749 (Tex.Civ.App.—Houston [1st Dist.] 1977, writ ref’d n.r.e.).

First, we consider the legal sufficiency point. Frank DeGeer, a child welfare worker for the State, testified that he had been assigned to the Gonzalez case for approximately a two-year period which commenced in May, 1975, after the State had received complaints that Appellant had been leaving her children at home alone. During this period of time, he stated that he made 18 to 20 visits to Appellant’s home. On the date of the first home visit in 1975, DeGeer stated that he found, alone and without adult supervision, the school-age children, Richard Roy, Martha, Albert and “another eight year old” who “might have been Tomas.” DeGeer stated that a telephone call from a neighbor who “was concerned because just one of the children was there alone” prompted further home visits. Later, he made a visit to the school attended by the school-age children to talk with the school nurse. He stated that “a home visit was made that same day and the children were alone.” Appellant was not present at her home the following day either. On this day, DeGeer discovered that the children were with a neighbor, Mrs. Guerrero, who was the godmother of the Appellant’s children surnamed Heath. Appellant had not made prior arrangements with Mrs. Guerrero to have her look after the children. DeGeer found it necessary to take one of the older children with him back to the Gonzalez home in order to obtain clean clothing for the youngsters. De-Geer testified that, while he was in Appellant’s home, he noticed that the toilet could not be flushed without using a bucket of water; the electricity and gas were turned off; there was no food in the pantry or closets; the house was in a filthy and un-kept manner; and the refrigerator had no food — “Just a few cockroaches.”

In March DeGeer testified that he found John home alone. John told him that he was not in school because he didn’t have any shoes. DeGeer stated that he took John to school where he obtained shoes for him from the nurse’s office. During the time he was in the nurse’s office, DeGeer stated that Albert, John’s brother, was brought into the office because he was crying and disturbing the rest of the children. DeGeer further testified that, quite by coincidence, another brother, Tomas was also brought into the office a short time later because Tomas was being sullen and uncooperative in the classroom. Tomas refused to talk with anyone present. The next day DeGreer stated that he and Remberto Arteaga, the present welfare supervisor, made a visit to the Gonzalez home during school hours. They discovered that no one was at home and the door was not locked. DeGeer stated that an inspection revealed the absence of food and no utilities in the home. In April, he made another visit to the Gonzalez home in response to a complaint by Mrs. Guerrero, and found John again at home alone.

Olivia Guerrero testified that she was the godmother of Richard Roy, John, Mary and Martha and that she had known Appellant only through the children for the past six years. She stated that when she initially knew the children, they would come over to her home and visit. The visits became more and more frequent. By the end of the six-year period, they were coming to her home almost every day, sometimes staying two or three days in a row. Guerrero stated that Appellant had requested her to babysit with the children on only one occasion, and that was the night before the children were taken from the Appellant. When the children came to visit, she stated that they usually did not bring any clean clothes or food and were generally dirty. When the children came to her home, they usually only told her that their mother was not at home; that she was either with Mr. de Leon or that they did not know where she was.

DeGeer made a visit to the Guerrero home at Mrs. Guerrero’s request. Two school-age children, Albert and Tomas, and the three pre-school children, Robert, Zule-ma and Maria, were there. Mrs. Guerrero explained that the Appellant had requested her to take care of the children the previous night, promising to return the following day by 8:00 a.m. so that Mrs. Guerrero could go to work. She called because there was no one else to supervise the children. DeGeer stated that the children appeared as though they had not bathed for quite some time, their clothes were dirty and “they were lice-ridden.” DeGeer stated that he went to the Gonzalez home to obtain some clean clothing for the children. Upon his arrival, he found that the house was unlocked, that the utilities were still off, and that there was no food in the home. De-Geer testified that the children never seemed to know where their mother was when he asked about her absences. He stated that during the time he was working with the family, the housing condition deteriorated, became more unsanitary and the house sometimes smelled of urine.

Dr. Antonio Diaz, a specialist in family medicine, testified that he examined Albert who was then 9 years old. Diaz stated that Albert weighed fifty pounds, which placed his weight at only the third to fifth percentile of children his age (i.e., 95 to 97% of children nine years of age weigh more than 50 pounds), and his height was only at the tenth percentile. Diaz further stated that Albert was uncommunicative. His examination revealed that Albert had lice and showed signs of “failure to thrive.” Dr. Diaz stated that his last visit with Albert was after Albert had been placed in foster care. He described the child’s progress as far as his weight, health and emotional state to be good.

Dr. Diaz testified that when he examined Tomas, a six (6) year old boy, he found that Tomas was suffering from scabies, a parasite that burrows under the skin. He testified that the scabies had created sores on Tomas’ body which had become secondarily infected. He further found Tomas to be infected with lice and internal parasites. Tomas’ weight (42 pounds) was at the 40th percentile for children his age, while his height (44 inches) was only at the 7th to 10th percentile. Dr. Diaz stated that the medical condition of the children was consistent with a history of parental neglect. The evidence in the record showed that all of the children suffered from lice.

Dr. Michael de Socarrez, who holds a Ph.D. in psychology, testified that the Appellant was a woman of normal intelligence, but nevertheless suffered from a brain dysfunction which was a result of a brain trauma. Although the exact cause of the trauma could not be identified, he calculated the condition with a history of drinking and physical abuse. He testified that she tended to relate to others in a self-destructive manner. She had experienced an early history of emotional abuse and lack of warmth. As a result, the Appellant was unable to sustain long relationships. She related to men primarily through physical sex. On the basis of his evaluation, de Socarrez further stated that Appellant “is unable to meet the needs of her children in regard to emotional warmth, caring and protection, protection in every sense of the word.” The doctor’s prognosis for Mrs. Gonzalez was “guarded.” The prognosis for her learning to care appropriately for her children was nil. He did not believe that there was a program of psychotherapy, psychoanalysis or counseling which could provide the structure in which Mrs. Gonzalez could learn how to provide for her children adequately, emotionally and lovingly.

Mrs. Elias Salinas, a foster parent of Tomas, testified that when Tomas arrived at their home on April 15, 1976, he had lice, sores on his body and infected sores on his buttocks. Tomas was wearing dirty shorts and torn tennis shoes which did not fit. She stated that Tomas did not remember ever eating an egg. She described his health as improved: “being much better now.” He had gained weight and had “grown up,” she said. She stated that Tomas calls her and her husband “Mamma” and “Daddy.”

Esmeralda Rodriguez, a foster parent of Albert, testified that at the time Albert (10 years of age) arrived at their home, on April 15, 1976, he was slim and his stomach was protruding. She also stated that he had lice which took over three months to clear up by shampooing every day. She stated that he initially was somewhat uncoordinated, stumbled easily and had trouble in school; that he did not know his right hand from his left; and did not know the alphabet. She described him now as being much taller, healthy, and more conversant.

Bluford Bradford Hester, III, a child placement worker for the State, testified his duties included investigating reports of abuse and neglect, working with families which are having problems and working with foster children. He testified that he was assigned to the Gonzalez case in October, 1976. During his first visit with Mrs. Gonzalez, which occurred in October, 1976, Appellant informed him that she was living with a friend or relative because her utilities were out at her home. Appellant showed Hester her accumulated utility bills which showed an overdue and unpaid amount of approximately $1,000.00. Hester stated that the basic utility bill had been in the neighborhood of $300.00 or $400.00 and that the remainder was due to finance charges imposed for non-payment. Hester stated that Appellant’s utilities were turned on sometime in the spring of 1977 and remained on for approximately a year. In March, 1978, Hester stated that the utilities were again turned off due to non-payment and they remained off until sometime in May or the first part of June in 1978.

Hester testified that Appellant had no formal education, no prior job experiences and no special vocational job training. He described her most recent employment as that of a bar-maid at several different locations. It was undisputed that, prior to the time the children were removed, Appellant’s sources of income were social security benefits that she and the surnamed Heath children received. She also received aid to families with dependent children for Tomas Gonzalez, Jr., plus food stamps, for a total of approximately $500 to $600 per month. Mr. de Leon had paid her past due utility bill and provided some support payments for the children with the surname of de Leon. Appellant’s home had been paid for from the proceeds of an insurance policy when her first husband died. The title to the house had been placed in the name of the Heath children. Hester testified that Appellant requested a visit with one of her sons who was in the South Texas State School in Edinburg and, at the same time, asked whether there would be any excess over his allowance for that particular month. He informed Appellant there probably would be an excess, but that it would take some five to six weeks for the necessary paperwork to be completed before she could receive such excess. He testified that she seemed disappointed at this response and subsequently cancelled her visitation trip.

There is ample probative evidence, both circumstantial and direct, to support the jury’s findings as to each child. See Larson v. Ellison, 147 Tex. 465, 217 S.W.2d 420, 421 (Tex.Sup.1949). Appellant’s point of error number eight is overruled.

In addition to the evidence discussed above, we have reviewed the entire record and find that the jury’s answers are not against the great weight and preponderance of the evidence. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex. Sup.1951). There is ample evidence in the record from which the jury could reasonably conclude that Appellant knowingly placed or knowingly allowed all of the children to remain in conditions or surroundings which endanger their physical well-being. The jury is not only the judge of the facts and circumstances proven, but they are the judge of the credibility of the witnesses. They are at liberty to draw reasonable inferences and deductions from the evidence adduced at trial. Lynch v. Ricketts, 314 S.W.2d 273 (Tex.Sup.1958); Clark v. Brewer, 498 S.W.2d 957, 959 (Tex.Civ. App.—Corpus Christi 1973, no writ). Appellant’s point of error number nine is overruled.

In point of error number one, Appellant complains that Section 15.02(1)(D) is void for vagueness and is unconstitutional on its face, and as applied to her. We have recently considered the precise same contention that Section 15.02(1)(D) of the Texas Family Code is void for vagueness in Sanchez v. Texas Department of Human Resources, 581 S.W.2d 260 (Tex.Civ.App.—Corpus Christi 1979, no writ), and found that contention to be without merit. The record in this case does not support Appellant’s contention that Section 15.02(1)(D) is unconstitutional as it was applied to her. Appellant’s point of error number one is overruled.

In points of error numbers six and seven, Appellant complains that the trial court erred by refusing to admit into evidence certain testimony of Remberto Arteaga, Supervisor of the Cameron County Child Welfare Unit of the Texas Department of Human Resources. After the State rested its case, counsel for Appellant recalled Mr. Ar-teaga and attempted to elicit certain testimony allegedly relevant to Appellant’s “affirmative defense” that termination of the parent-child relationship was not the least drastic remedy available to the State. During the course of direct examination of Mr. Arteaga, the trial court refused to hear testimony by sustaining relevancy objections to the following three areas of inquiry:

1. (Counsel for Appellant): “And I believe you testified earlier that these policies and procedures of the [State] are contained in the Social Service Manual, is that correct?
(Arteaga): Yes.
(Counsel for Appellant): Are you familiar with this manual?
(Arteaga): Yes, ma’am.
(Counsel for State): I am going to object to the constant reference to the material that pertains to the operations of the Department. I don’t see the specific relevance to this case.
(Court): Objection will be sustained. * * * * * *
2. (Counsel for Appellant): [In light of the witnesses’ previous testimony], can you tell me, speaking again for the [State], how serious a matter is removal of a child from its home?
(Counsel for State): I object on the same basis, Your Honor, relevancy.
(Court): Sustained. That is for the jury to decide. ******
3.(Counsel for Appellant): Mr. Artea-ga, how many other eases have you been involved in where termination is sought?
(Counsel for State): We’ll object to that on the same basis, relevancy.
(Court): Sustained.”

The trial judge granted Appellant’s request to make a formal bill of exceptions concerning the excluded testimony.

The formal bill of exceptions, including exhibits attached thereto, comprises 74 pages in the supplemental transcript. Nowhere in the bill of exceptions is evidence concerning the areas of inquiry two and three above. Most of the substance of Mr. Arteaga’s testimony contained in the bill of exceptions is a summary of his own prior testimony or a summary of other witnesses’ prior testimony which had been introduced into evidence without objection. The bill of exceptions does contain the following statements which Appellant did not specifically attempt to introduce through Arteaga’s testimony during''the trial: 1) the family of Appellant, “at all times pertinent hereto, [was] experiencing a ‘protective situation’ as that term is used throughout the Social Services Handbook;” 2) Appellant “and her family were at all pertinent times hereto qualified for the services available through Cameron County Child Welfare Unit to families experiencing protective situations;” and 3) the Cameron County Child Welfare Unit was able to provide eight enumerated services to families experiencing “protective situations.” Attached to the bill of exceptions as exhibits were copies of: 1) “various pertinent sections of the ‘Social Services Handbook’ as those sections existed from and after the date shown on each page;” and 2) “copies of ‘Article 695c § 18A(1), V.A.T.S.; 42 U.S.C. §§ 601, 602(a), 622(a); 45 C.F.R. §§ 220.1-220.40, [which would have been offered into evidence].” These exhibits comprise 71 pages of the bill of exceptions.

As a general rule, error is not shown in the exclusion of evidence unless the Appellant brings before the appellate court a record that shows clearly not only what the evidence would have been if admitted, but also its relevancy. Kieffer v. Miller, 560 S.W.2d 431 (Tex.Civ.App.—Beaumont 1977, writ ref’d n.r.e.); Swinney v. Winters, 532 S.W.2d 396 (Tex.Civ.App.—San Antonio 1975, writ ref’d n.r.e.); Victoria Comfort Air Co. v. Alamo Express, 529 S.W.2d 250 (Tex.Civ.App.—Corpus Christi 1975, no writ). The complaining party has the burden to show reversible error by dem onstrating that the exclusion of evidence was reasonably calculated to and probably did cause the rendition of an improper verdict or judgment. Gomez Leon v. State, 426 S.W.2d 562 (Tex.Sup.1968); Ryder Tank Lines, Inc. v. Bentley, 397 S-W-2d 914 (Tex. Civ.App.—Fort Worth 1965, writ ref’d n.r. e.). Reversible error is not present where the substance of the excluded testimony is cumulative or has been previously introduced through that witness or another witness. Brazos Graphics, Inc. v. Irvin Industries, Inc., 22 Tex.Sup.J. 309 (Tex.Sup. April 18, 1979); Hopkins v. Clark, 20 Tex. 64 (Tex.Sup.1857); Yancey v. Olvera, 518 S.W.2d 935 (Tex.Civ.App.—San Antonio 1974, writ ref’d n.r.e.); Sanchez v. Billings, 481 S.W.2d 911 (Tex.Civ.App.— Houston [14th Dist.] 1972, writ ref’d n.r.e.); Parten v. Wilson, 243 S.W.2d 198 (Tex.Civ. App.— Beaumont 1951, writ ref’d n.r.e.).

Error is not shown by the exclusion of evidence which previously had been introduced. The remainder of Arteaga’s testimony and the Handbook (Exhibit “A”) contained in the bill of exceptions is of such a general nature that we fail to see its relevancy. No effort has been made to tie Arteaga’s testimony with any specific sections of the attached Handbook, nor to any of the other attached exhibits. We conclude that Appellant has failed to show that the exclusion of this evidence was error or if we could say that it was error, Appellant has failed to demonstrate that such error was reasonably calculated to and probably did cause the rendition of an improper judgment in this case. Rule 434, T.R.C.P. Appellant’s points of error numbers six and seven are overruled.

The judgment of the trial court is AFFIRMED.

      . Rolando Heath, father of the children sur-named Heath, died in 1967. Tomas Gonzalez, Sr., one of the natural fathers, executed an affidavit relinquishing his parental rights to his child, Tomas Gonzalez, Jr. Leonzo de Leon, the natural father of the children with the same surname, are the result of a meretricious relationship with the Appellant, de Leon, although duly served with service of process and notification of the hearing, failed to appear. Neither father appeals from the trial court’s order terminating his parental rights.

      . The State dismissed the termination suit as to Richard Roy prior to trial.


author: MOORE, Justice.

text:
    Frederick J. HOPMANN, Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellee.
    No. 1210.
    Court of Civil Appeals of Texas, Tyler.
    May 3, 1979.
    Rehearing Denied May 31, 1979.

      James H. Brannon, Schmidt & Matthews, Houston, for appellant.
    W. T. Womble, Houston, for appellee.
   MOORE, Justice.

This is a venue case. Appellant, Frederick J. Hopmann, brought suit in the district court of Harris County, Texas, under the Federal Employer’s Liability Act, 45 U.S. C.A., subsection 51, et seq., seeking to recover damages for personal injuries sustained while employed as a brakeman for appellee, Southern Pacific Transportation Company. The incident was alleged to have occurred on June 23, 1977, at Luling, Caldwell County, Texas. Appellant alleged in his petition that he was a resident of Bexar County, Texas, at the time of the occurrence in question and that the appellee was a railroad corporation engaged in interstate commerce doing business in Harris County, Texas, where it maintained its offices and place of business.

Appellee duly filed a plea of privilege to have the cause transferred to Caldwell County, Texas, or in the alternative, to Be-xar County, Texas, relying upon Article 1995, subdivision 25, Vernon’s Annotated Texas Civil Statutes. Appellant responded with a controverting affidavit alleging that under Article 1995, supra, venue was properly laid in Harris County due to the fact that appellant does business in Harris County and maintains its offices arid principal place of business there. After a hearing before the court, without a jury, the trial court sustained Southern Pacific’s plea of privilege and ordered that the cause be transferred to Bexar County, Texas, from which order appellant perfected this appeal.

On the venue hearing, it was stipulated that: (1) plaintiff was employed by defendant, Southern Pacific Transportation Company, on the date of his alleged injury on July 23, 1977; (2) the injury occurred in Caldwell County, Texas; (3) at the time of his injury plaintiff was a resident of Bexar County, Texas; (4) that at all times material to this suit Southern Pacific Transportation Company was doing business in Harris County, Bexar County and Caldwell County; (5) that for the purpose of venue only, it was stipulated that plaintiff’s pleading alleged a cause of action for venue purposes under the Federal Employer’s Liability Act, and that all necessary facts to support the pleading had been established; and (6) that if the plea of privilege was sustained by the trial court, it was stipulated that plaintiff’s suit would be transferred to Bexar County, Texas.

Under the first point, appellant contends that the trial court erred in transferring the cause to Bexar County because federal law governs, and under Title 45, U.S.C.A., subsection 56, this suit was properly brought in Harris County.

Subsection 56 of the Federal Employer’s Liability Act provides, in part, as follows:

“Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.”

Appellant takes the position that since the Act provides that the jurisdiction of the federal and state courts shall be concurrent, the state courts are obligated to apply the venue provisions provided by the Act. He argues that the right to select the forum and maintain suit in any county where ap-pellee does business, is a substantial right granted by congress, and to apply subdivision 25 of the Texas Venue Statute would deny him that right and would thwart the express purpose of the Federal Employer’s Liability Act.

The railroad company, on the other hand, contends that venue is controlled by subdivision 25 of Article 1995, supra, the material part of which reads as follows:

“25. Railway personal injuries. — Suits against railroad corporations, or against any assignee, trustee or receiver operating any railway in this State, for damages arising from personal injuries, resulting in death or otherwise, shall be brought either in the county in which the injury occurred, or in the county in which the plaintiff resided at the time of the injury. . . .”

In our view, the precise issue now presented was previously decided in Missouri Pacific Ry. Co. v. Little, 819 S.W.2d 785 (Tex.Civ.App.—Houston 1958, no writ history, cert. den., 361 U.S. 823, 898, 80 S.Ct. 69, 194, 4 L.Ed.2d 67, 153). In the Little case, the railroad employee brought suit against his employer for personal injuries sustained in McLennan County, Texas. At the time of the accident, plaintiff was a resident citizen of McLennan County, and his injuries occurred while he and his employer were engaged in interstate commerce. The action was brought under the Federal Employer’s Liability Act and suit was filed in Houston, Harris County, Texas. At the state district court level, the plaintiff’s employer, Missouri Pacific Ry. Co., sought, by way of plea of privilege, to remove the cause to the county in which the plaintiff resided and in which he sustained the injury. Missouri Pacific based its contention on Article 1995, subdivision 25, supra, just as the appellant does in this case. The district court overruled the railroad’s plea of privilege and the railroad appealed. The Houston Court of Civil Appeals reversed the case and ordered the cause transferred to McLennan County. In holding that subdivision 25 of the Texas Venue Statute (Article 1995) was controlling and that the venue provisions of section 56 of the Federal Employer’s Liability Act were not applicable to suits filed in state courts, the court of civil appeals stated at page 787:

“It is perfectly obvious that in the first sentence of the second paragraph of Section 56 the Congress was undertaking to establish the venue of suits under the Federal Employers’ Liability Act brought in ‘a district court of the United States’ (Emphasis supplied.) Nothing is said concerning the venue of an action that is brought in a state court.
“The legal doctrine that the clear expression of the one excludes the other is so ancient that it comes down to us in the time-honored maxim ‘expressio unius est exclusio alterius.’
“After prescribing venue in the United States courts, Section 56 then provides, ‘The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.’ This provision is concerned with jurisdiction, not venue.”

In support of its decision the court of civil appeals cited the case of Miles v. Illinois Central Ry. Co., 1942, 315 U.S. 698, 62 S.Ct. 827, 86 L.Ed. 1129, involving a Federal Employer’s Liability Act case, wherein the court stated at page 788:

“ ‘Words were simultaneously adopted recognizing the jurisdiction of the state courts by providing that the federal jurisdiction should be concurrent. The venue of state court suits was left to the practice of the forum.’ (Emphasis ours.)”

In Baltimore & Ohio Ry. Co. v. Kepner, 1941, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28, the Supreme Court held that a state could not validly exercise its equitable jurisdiction to enjoin a resident of the state from prosecuting a cause of action arising under the Federal Employer’s Liability Act in the federal court of another state, since under the supremacy clause the venue section of the federal Act was controlling. While the ruling in that regard is irrelevant to the present inquiry, it is significant to note that in the course of the opinion the Supreme Court made this statement at page 9 of 62 S.Ct.: “Section 6 [45 U.S.C.A. sec. 56] establishes venue for an action in the federal courts.” (Emphasis ours.)

We have found no case, and have been cited none, holding that venue provisions of sec. 56 of the federal statute is applicable to actions filed in a state court. The statements made by the United States Supreme Court in the cases cited above clearly indicate that Section 56 of the Act is to be interpreted as establishing venue for an action in the federal courts and that venue in state court actions are controlled by the venue statutes of the forum. Since appellant filed his suit in the Texas court, the federal venue statute was not applicable. Accordingly, appellant’s first point is overruled.

Under the second point, appellant contends that the provisions of subdivision 25 of Article 1995, supra, are not mandatory but were enacted for the benefit of the plaintiff, thus giving him a right to elect to either follow subdivision 25 or to sue appellant at its domicile in Harris County.

It has long been the law in this state that subdivision 25 of Article 1995 is mandatory and that suits controlled by this subdivision must be commenced in the particular county mentioned therein without reference to whether or not it is the domicile of the defendant. Lewis v. Gulf, C. & S.F. Ry. Co., 229 S.W.2d 395 (Tex.Civ.App.—Galveston 1950, writ dism’d); Texas & N. O. R. Co. v. Tankersley, 246 S.W.2d 253 (Tex.Civ.App.—San Antonio 1952, no writ); Missouri Pacific Ry. Co. v. Little, supra; see also Kinney v. McCleod, 9 Tex. 78 (1852). In Lewis v. Gulf, C. & S.F. Ry. Co., supra at 397, the Galveston court summarized the rights of the parties under the mandatory provisions of Article 1995 in the following language:

“It is well settled that if a suit is brought under the provisions of any of the mandatory subdivisions above referred to, the defendant is entitled to have the case transferred to the county provided for in such mandatory provision, regardless of the defendant’s residence, upon the filing of the proper plea.”

Applying the foregoing rules of law to the facts of the present case, it is obvious that appellant cannot maintain venue in Harris County, Texas, in face of the mandatory provision of the Texas statute providing otherwise. Appellant’s second point of error is overruled.

By the third and final point, appellant argues that if subdivision 25 of Article 1995 is mandatory, then it is unconstitutional because it denies substantial federal rights. Specifically, he contends that if subdivision 25 is mandatory it is unconstitutional because it not only deprives him of one of the substantial rights given to him by the federal Act, but also it discriminates against him and causes a lack of uniformity in the application of the federal Act. However, no authority is cited for this proposition. After considering appellant’s argument, we are convinced that it is without merit.

The F.E.L.A. claimant is given the election to sue in the federal court or the state court. Where he chooses to sue in the federal court, the right to select the forum granted by the federal statute constitutes a substantial right which the various states may not defeat. Boyd v. Grand Trunk Western Ry. Co., 338 U.S. 263, 70 S.Ct. 26, 94 L.Ed. 55 (1949); Missouri Pacific Railroad Company v. Little, supra. The substantial right granted, however, applies only to the right to maintain venue in accordance with the federal Act in cases filed in the federal courts. Where the injured employee chooses to sue in the state courts, his suit is subject to the venue statutes of the state. Miles v. Illinois Central Ry. Co., supra; Missouri Pacific Ry. Co. v. Little, supra. It is clear that the Congress did not intend to give the F.E.L.A. claimant who files suit in the state court the same venue rights as those provided for in suits filed in the federal court, otherwise the Congress would have said so. When appellant elected to file his suit in the state court, he no longer had federal venue rights subject to protection. Consequently, the application of the Texas venue statute would not defeat or curtail any of appellant’s federal venue rights. Since the Texas venue statute deprived him of no federal right, it follows that it could not be unconstitutional and void on such grounds.

Further, we find that we are unable to agree with appellant’s contention that the mandatory provisions of subdivision 25 of Article 1995 renders the Texas statute discriminatory and in violation of the 14th Amendment of the Constitution of the United States. This same question was addressed by the court in Missouri Pacific Ry. Co. v. Little, supra. After reviewing the Texas statute in question, the court in that case concluded, at page 788, that the statute fully protects the plaintiff and could not, in any way, be construed as discriminatory. After a careful review of the statute, we are convinced that the court in that case reached the proper result and that the statute should not be struck down on that basis.

It follows from what we have said that we are of the opinion that appellant had no legal or constitutional right to maintain venue in Harris County, Texas.

Accordingly, the judgment of the trial court is affirmed.


author: STOREY, Justice.

text:
    G_R_L_, Appellant, v. STATE of Texas, Appellee.
    No. 19900.
    Court of Civil Appeals of Texas, Dallas.
    May 3, 1979.

      Elizabeth Carlyle, David Carlock, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Maridell J. Templeton, Asst. Dist. Atty., Dallas, for ap-pellee.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   STOREY, Justice.

This is an appeal from an order granting the state’s motion for waiver of jurisdiction and discretionary transfer of appellant, G R— L — , from a juvenile to a criminal district court. Appellant complains on appeal that the trial court erred in receiving into evidence portions of the social evaluation and investigative report and the testimony of FBI agent Rasmussen because these represent multiple hearsay. We hold that no error is shown in this respect. Furthermore, even if it was error, it would be harmless in view of other evidence in the record to support the court’s findings. Accordingly, we affirm.

The facts are not disputed. Proceedings were commenced in juvenile court against appellant under a charge of aggravated robbery, and the state’s motion to waive jurisdiction and transfer the case to criminal district court was granted. The evidence complained of is the following: (1) that portions of the social evaluation and investigative report are multiple hearsay because the probation officer who prepared the report relied on the uncorroborated written statement of an accomplice to a bank robbery taken by a third party; and (2) that the testimony of FBI agent Rasmussen, wherein he concluded that appellant should be tried as an adult, was based primarily upon this same affidavit and also constitutes multiple hearsay.

Tex.Family Code Ann. § 54.02(e) (Vernon 1973) provides in part: “At the transfer hearing the court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses.” Hence, the trial court correctly considered this hearsay evidence, as it was offered only to aid the court in performing its limited duty in this type proceeding, namely, the determination of whether appellant was able to be tried as an adult rather than to determine his guilt or innocence. The testimony may go beyond admissible hearsay contemplated by the statute in that the agent’s testimony was based on the report of what the accomplice stated, but we must assume the trial court gave this evidence proper consideration and weighed its effect together with other evidence presented. This is especially true in light of other competent evidence to support the transfer order, such as the psychological evaluation and diagnostic study wherein appellant related to Chief Psychologist Saleem Ateek that he had committed numerous bank and store robberies with an older group of associates.

Appellant contends that the admission of this evidence violated his constitutional right to confront and cross-examine his accusers. He urges that Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1965), imposes a constitutional requirement of fundamental fairness under the due process clause which prohibits the introduction of hearsay testimony in a discretionary transfer hearing before a juvenile court. Kent is not controlling here because this proceeding is not a determination of guilt. The purpose of section 54.02 is to insure the fundamental fairness required by due process in determining whether a child is to be tried as an adult; that is, the juvenile court is bound to consider and weigh all information concerning the accused’s life and characteristics even though it may be in the nature of hearsay. The fact that section 54.02 gives the juvenile judge discretion to evaluate information of the present type does not violate due process requirements.

Appellant points to the fact that he had a steady job, thereby demonstrating his abilities to adjust and accept responsibilities of adult life. The facts of this case, however, conclusively show that appellant voluntarily chose to depart from that responsible adult life and instead to accept a life of crime because he committed the aggravated robbery while gainfully employed. Moreover, evidence of his ability to accept adult responsibility provides additional support for the trial court’s determination that he should be tried as an adult.

Affirmed.


author: GUITTARD, Chief Justice.

text:
    HUGHES BLANTON, INC., Appellant, v. Roy G. SHANNON, Appellee.
    No. 19909.
    Court of Civil Appeals of Texas, Dallas.
    May 4, 1979.

      Frederick Bartlett Wulff, Akin, Gump, Hauer & Field, Dallas, for appellant.
    Jerry D. Brownlow, Grand Prairie, for appellee.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   GUITTARD, Chief Justice.

Roy Shannon brought this suit against Hughes Blanton, Inc., his former employer, for conversion of tools used in plaintiff’s work as a mechanic. After a trial without a jury, the court awarded plaintiff a judgment for $3,000 with a provision for remit-titur of $1,000 in the event defendant returned to plaintiff any of the tools that were in defendant’s possession. Defendant appeals, asserting, among other points of error, that there is no probative evidence to support the finding of damages. We sustain this point, and, accordingly, we reverse the judgment and remand the cause for a new trial.

Since plaintiff, as appellee here, has filed no brief, we accept the statements in appellant’s brief as correct without further examination of the record. Rule 419, Tex.R. Civ.P. According to appellant-defendant’s summary of the evidence, plaintiff was employed as a mechanic to work on vehicles operated by defendant. Plaintiff owned various tools that were kept at defendant’s place of business. Plaintiff was injured in an automobile accident on March 22, 1976. After the accident he returned to work briefly, but then left to seek medical attention. Two or three weeks later he returned to defendant’s premises and was requested to take his tools. He replied that some of them were missing and that he was not going to take any of them unless he could take them all. Four to eight weeks after that conversation, plaintiff returned to the premises and was offered an opportunity to make an inventory of the tools, but was told that he could not take any of them until there had been a resolution of the controversy over whether any of the tools were missing.

In a suit for conversion plaintiff has the burden to establish the identity of the property converted. Satterfield v. Knippel, 169 S.W.2d 795, 796 (Tex.Civ.App.—Amarillo 1943, no writ); Moore v. Conway, 108 S.W.2d 954 (Tex.Civ.App.—Waco 1937, no writ). There is no evidence in this record establishing the identity of the tools that were in defendant’s possession at the time plaintiff was told he could not take them, and neither is there any evidence identifying the tools plaintiff asserted to be missing. Consequently, the evidence fails to identity the property alleged to have been converted.

Neither is there competent evidence establishing the value of the tools converted. Plaintiff was allowed to testify to his opinion concerning the value of the tools on March 22, 1976, but there is no evidence that all the tools, or any particular tools, were converted on that date. The trial judge found that on March 24, 1976, plaintiff noticed that many of his tools were missing and that plaintiff refused to deliver the remainder of the tools without a full release of any liability for the value of the missing tools. There is no evidence, however, of any conversation between the parties or any action by defendant on March 24.

Plaintiff was permitted to give his opinion concerning the market value of the tools on March 22, 1976, over defendant’s objection that he had not been qualified as an expert on the fair market value of the tools. He testified that their value was $4,300. He made no effort, however, to establish the value of any specific tool or group of tools. On cross-examination he admitted that this figure was a replacement value which he had determined on the basis of a 1975 price list of a different line of tools. Plaintiff testified that in determining the value of his tools he had followed the advice of a “friend” to take forty percent off the prices in this list.

We recognize that ordinarily an owner is deemed qualified to express an opinion on the value of his property. However, when his testimony shows that he did not rely on his own opinion and experience, but on the statement of a third party who was not familiar with the tools and was not available for cross-examination, the opinion of the owner has little, if any, weight. Moreover, the tools were never described, nor was any list supplied of the tools alleged to have been converted. All that the record shows is that plaintiff testified that an unspecified number and variety of tools, which he had left on defendant’s premises, had an overall value of $4,300, based on a price list of a different line of tools and a friend’s suggestion of the proportionate replacement value of the tools in question, with respect to that price list. We hold that this evidence fails to establish the value of the particular tools alleged to have been converted with sufficient certainty to support his recovery of damages.

We cannot, however, render judgment for defendant because we are not convinced that better evidence is not available. On another trial, plaintiff should be able to testify with greater certainty concerning'the identity of the tools and their condition and to obtain better evidence of their value. Consequently, the case is remanded for another trial.

Reversed and remanded.


text:
    Clinton MANGES, Appellant, v. POOL COMPANY, Appellee.
    No. 19953.
    Court of Civil Appeals of Texas, Dallas.
    May 4, 1979.

      Max J. Luther, III, Corpus Christi, for appellant.
    Dan S. Boyd, John B. Holstead, Houston, for appellee.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   GUITTARD, Chief Justice.

In this venue appeal we previously extended the time for filing appellant’s brief until April 19. On April 16 appellant filed a motion asking for another extension, this time until June 1. The appeal is set for submission and oral argument on May 17. Consequently, another extension would require postponement of submission and would possibly be used as an occasion to delay trial on the merits.

The sole ground stated in appellant’s second motion, as in the first, is other commitments of counsel. We conclude that such commitments do not constitute “good cause” for a second delay under rule 414 of the Texas Rules of Civil Procedure. In the absence of a showing of good cause, appellant’s failure to file his brief within the time allowed requires dismissal of the appeal for want of prosecution. Continental Oil Co. v. Dobie, 552 S.W.2d 183 (Tex.Civ. App.—Corpus Christi 1977, writ ref’d n. r. e.). We cannot appropriately indulge the same leniency as we would be inclined to do if the extension would not delay submission of the appeal. Cf. Akers v. City of Grand Prairie, 572 S.W.2d 22 (Tex.Civ.App.—Dallas 1978, no writ).

Although the foregoing considerations would seem to require the dismissal of the appeal, we shall delay that order for ten days to give appellant an opportunity to present any reason he may have for avoiding dismissal.

Motion for extension overruled.


author: HUGHES, Justice.

text:
    T. P. WHITLEY, Appellant, v. Boyd KING et al., Appellee.
    No. 18083.
    Court of Civil Appeals of Texas, Fort Worth.
    May 10, 1979.

      Mikeska & Francis, and R. C. Joe Mikes-ka, Jr. and John R. Francis, Temple, for appellant.
    Piperi, Roberts & Morris, and Frank Roberts, Killeen, for appellee.
   OPINION

HUGHES, Justice.

Defendant, T. P. Whitley has appealed a judgment of the trial court in a trespass to try title suit finding title to certain land to be in Boyd and Lloyd King, plaintiffs. Whitley had pled not guilty and title by limitations.

We affirm in part and reverse and remand in part.

Whitley, in his first point of error, says the trial court erred in refusing to allow him to present reputation evidence of the original boundaries. We overrule this point because Whitley waived his complaint by failure to make a bill of exceptions. Vega v. Royal Crown Bottling Company, 526 S.W.2d 729 (Tex.Civ.App.—Corpus Christi 1975, no writ). Also, there was testimony that the boundary in question had been located by a surveyor from an iron pipe in the ground set by another surveyor. We hold this to obviate reputation testimony in this case. Nabours v. Whiteley, 466 S.W.2d 62 (Tex.Civ.App.—Austin, 1971, writ ref’d n. r. e.).

We overrule point of error two wherein Whitley complains of not being able to open and close jury argument. Examination of the charge to the jury reflects the burden on Kings, in special issue number one, to show record title in themselves. Since Whitley refused to stipulate record title in the Kings, that issue was for the jury, as well as Whitley’s issue on adverse possession. Furthermore, the Kings also had the burden of proof on a third special issue dealing with rental value of the property.

We also overrule Whitley’s third point of error which argues that trial court erred in denying his first motion for continuance. The granting of a continuance is discretionary with the trial judge, reversible only if abused. Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.1963); J. C. Penney Company v. Duran, 479 S.W.2d 374 (Tex.Civ.App.—San Antonio 1972, writ ref’d n. r. e.). In his supporting affidavit to his motion, Whitley admitted knowing the absent witness was “old in years and physically infirm”, but believed he would appear. He said that he then learned that the witness’ condition “had worsened and would not be able to appear”. No particulars as to what was wrong were alleged, only age and infirmities. Further, no diligence was alleged nor were any facts set forth in the affidavit showing that Whitley had used any diligence in procuring the witness’ testimony. We hold that no abuse of discretion was shown and overrule appellant’s third point of error.

The judgment assessed all court costs against Whitley. His fourth and fifth points of error contend that the trial court erred in assessing against him three of the items in the bill of costs. The items he complains of are: $300.00 for copies of deed records; $75.00 to the court appointed surveyor to testify; and $200.00 to Carrell Williams as an expert witness fee. Williams, a surveyor, testified for the Kings. Whitley filed a motion for hearing on court costs alleging that the original bill of costs prepared by the district clerk contained items which, as a matter of law, should not have been included. At the hearing the trial judge ruled that he would sustain the clerk’s assessment of costs.

The general rule is that the prevailing party will recover from his adversary all of his costs. Rule 131 . The rules also provide that liability costs may be shifted by the trial court for good cause shown in the record. Rule 141. These rules and the case law interpreting them bear on the discretion of the trial court in allocating costs between the parties. Whitley contends that these are incidental expenses incurred in the preparation and prosecution of the Kings’ lawsuit and not authorized court costs. We conclude that the issues raised by these points do not turn on the court’s discretion, but rather whether, as a matter of law they are proper court costs. Hammonds v. Hammonds, 158 Tex. 516, 313 S.W.2d 603 (1958).

The record shows the judge’s basis for allowing the disputed terms to be taxed as costs was that, in his opinion, circumstances of the case provided him good cause to do so under Rule 141.

Regardless of any good cause shown, costs of experts are “merely incidental expenses in preparation for trial and not recoverable.” City of Houston v. Biggers, 380 S.W.2d 700, 705 (Tex.Civ.App.—Houston [1st Dist.] 1964, writ ref’d n. r. e.). Mr. Williams was not a court appointed survey- or in this case. He performed his duties solely on the Kings’ behalf. Therefore, the court was without authority to assess his expenses as costs. Taormina v. Culicchia, 355 S.W.2d 569, 575 (Tex.Civ.App.—El Paso 1962, writ ref’d n. r. e.). See also Gulf, C. & S. F. Ry. Co. v. Dooley, 62 Tex.Civ.App. 345, 131 S.W. 831, 835 (1910, no writ). We sustain Whitley’s fourth point of error as to this item of cost.

Whitley admitted that he was responsible under Rule 131 for the court appointed surveyor’s fee. However, he objected to paying the surveyor an additional witness fee. The surveyor had been called by the Kings as an expert witness. Whitley conceded that if testifying in court, in addition to making his report, was within the scope of the surveyor’s appointment, the witness fee would be a proper cost item.

The record shows that both before and during trial Whitley attacked the surveyor’s report. It also shows that he did not introduce any evidence in support of his attack. At the hearing the trial judge stated that under the circumstances, there was good cause for taxing against the losing party the costs of proving the surveyor’s report to be correct.

Whitley contended that, since he did not object to the report’s admission into evidence, the surveyor testified as an expert witness called by his adversary and in their behalf. It is because of this Whitley challenged the fee as a proper court cost. We disagree. We hold that in this fact situation, the surveyor’s trial testimony was within the scope of his appointment under Rule 796 and a part of the costs to be taxed under Rule 131. Therefore, good cause is immaterial. Further, at no time during the trial did Whitley object to the surveyor’s testimony as being outside the scope of his appointment. He also failed to seek a ruling the this issue when the surveyor was called as a witness by the Kings.

Whitley complains that there was no evidence to support recovery for charges for the testimony. He cited Metcalfe v. McCarty, 301 S.W.2d 263 (Tex.Civ.App.—Austin 1957, no writ) as holding that surveyor’s fees should be fixed and allowed on a reasonable basis taking into consideration the circumstances, the charges, the type of work and the evidence offered in support of and in opposition to the charges. However, we note that he did not offer any evidence on reasonableness in the trial court. As the complaining party, this was his burden. Harris v. Shotwell, 490 S.W.2d 860 (Tex.Civ. App.—Fort Worth 1973, no writ). Also, his objection in his motion and at the hearing was only that the disputed items, including the witness fee, should not be taxed as costs, not that the witness fee allowed was unreasonable. We conclude he has waived any right' to complain of the reasonableness of the witness fee. See Billingslea v. Greaves, 196 S.W.2d 945, 948 (Tex.Civ.App.—Amarillo 1946, no writ). In this respect we overrule Whitley’s fourth point of error.

The last disputed cost item is the $300.00 charged for certified copies of deeds. As with the other disputed items, the judge found good cause under Rule 141 to tax Whitley with this amount. As we have discussed above, the power to tax costs, otherwise than by Rule 131 for good cause shown, does not include the power to tax, as costs, items which are not normally allowed. We hold there was no authority lodged in the trial court permitting the taxing of this item.

Defendants are entitled to put plaintiffs to their proof on plaintiffs’ issues. Even if plaintiffs prevail after making such proof, they are still not entitled to be made whole for their entire loss or outlay in connection with the suit. City of Houston v. Biggers, supra. Cost of the deeds is not a proper item to be charged as costs. Whitley’s fifth point of error is sustained.

By crosspoint, the Kings assert that the trial court erred in refusing to permit them to recover attorney’s fees as allowed by Tex.Rev.Civ.Stat.Ann. art. 5523b. This statute allows the court, in its discretion, to award reasonable attorney’s fees in an action where the prevailing party was seeking to recover possession of land from a party unlawfully in possession. The Kings have filed a bill of exceptions and stipulation of fact stating what reasonable attorney’s fees in this case would be.

The effective date of the statute was August 29, 1977. This action was filed December 1, 1975. The judge, after a hearing outside the jury’s presence ruled that Tex. Rev.Civ.Stat.Ann. art. 5523b (1977) was not applicable to this cause because the original petition was filed prior to its effective date. We agree. The language of the statute lends itself to this interpretation. The pertinent section reads as follows:

“Sec. 2. (a) To recover attorney’s fees as provided in Section 1 of this Act, the party seeking recovery of possession must give the party unlawfully in possession written notice and demand to vacate the premises, by registered or certified mail, at least 10 days prior to filing the claim for the recovery of possession.
“(b) In the written notice and demand to vacate the premises, the party seeking recovery of possession shall give notice that in the event the party unlawfully in possession has not vacated the premises within 10 days and a claim is filed by the party seeking recovery of possession, judgment may be entered against the party unlawfully in possession for attorney’s fees in an amount determined by the court to be reasonable, plus costs of suit.”

In this case the record shows the Kings sent the required notice which was received on September 27, 1977. (Suit pended with issues joined at that time.) They filed a first amended petition December 1, 1977 in which they claimed possession of the land in question and asked for an award of attorney’s fees in the event that Whitley was determined to be in unlawful possession of the land. It is our opinion that the statute requires at least 10 days notice before the claim is filed. The first claim for possession of the land involved in this case was December 1, 1975, therefore the statute does not apply. The Kings’ crosspoint is overruled.

The judgment is affirmed in all things except for the items of costs for the $200.00 expert witness fee to Carrell Williams and the $300.00 for certified copies of deeds. Those items will be stricken from the bill of costs. The cause is remanded to the trial' court with the instruction to retax the costs in accord with the views herein expressed. The costs on appeal are to be taxed 60% against appellant and 40% against appel-lees.

       All citations to rules are to Tex.R.Civ.P.


author: MASSEY, Chief Justice.

text:
    Ex parte Clyde Sherald HARRIS, Relator.
    No. 18199.
    Court of Civil Appeals of Texas, Fort Worth.
    May 10, 1979.

      James F. Newth, Dallas, for relator.
    Carl McCurley, Irving, for Dortha Janann Harris.
   OPINION

MASSEY, Chief Justice.

Clyde Sherald Harris, petitioning con-temnor, seeks to obtain a writ of habeas corpus from this court following incarceration by order of a district court in Denton County, Texas, because of his failure to pay child support as required by a divorce decree.

The sole reason for our judgment and order will be hereinafter written upon, but it is to be recognized that it is unrelated to the guilt or innocence of contemnor relator. In this instance only the legality of detention is relevant. Consequently, our action discharging him from custody under the order of the district court is without prejudice to the right of that court to try the issue of contempt in a proceeding conducted in accordance with law. Gilbert v. State, 437 S.W.2d 444, 445 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ ref’d n. r. e.); Ex parte Stringer, 546 S.W.2d 837, 840 (Tex. Civ.App.—Houston [1st Dist.] 1976, no writ); Ex parte Hosken, 480 S.W.2d 18 (Tex.Civ.App.—Beaumont 1952, no writ).

At the trial court hearing the contemnor appeared without counsel and announced ready. Dortha Janann Harris, his former wife, was present and ready for trial. It was upon her complaint petition the hearing had been scheduled. She was represented by counsel. She was sworn as a witness.

At this point in the conduct of proceedings the court addressed Mr. Harris, as follows:

“THE COURT: Now, the way we handle, things in the court — you have indicated you are not an attorney- — is that first the Petitioner or Movant in the case, which is Mrs. Harris, will put on their side of the testimony. They can call any witnesses and put any evidence on they want and including calling you as an adverse party witness; do you understand that ? (Emphasis Supplied.)
“MR. HARRIS: Yes, sir.”

The hearing proceeded, including proof of there having been a divorce of Clyde Sher-ald Harris and Dortha Janann Harris, all pursuant to the process of direct examination of the latter. By this a case of contempt was made out. Interestingly, con-temnor, present and participating but not asking any question on cross-examination, was never identified as the former husband of Janann Harris, who was alleged to be in contempt of the divorce judgment.

In other words a case for contempt was made out against a person named Clyde Sherald Harris who had been the former husband of the witness, but contemnor, present and participating as Clyde Sherald Harris, was not identified by Mrs. Harris as the person who had been her former husband.

At this stage of the proceedings there was not a case made against con-temnor; he was not identified as the proper person. The situation posed presents a legal technicality where operation of the law to the benefit of one accused of crime oftentimes enrages the general public. The proceedings were quasi-criminal in their nature in that Harris was exposed to deprivation of his liberty in the event he be found guilty as charged. Contemnor petitioner, subjected to the hazard of being deprived of his liberty, must be deemed possessed of all the rights and privileges of one accused of crime. One is that against self-incrimination.

Contemnor was thereafter sworn as a witness upon being called to the stand to testify by the attorney for Dortha Janann Harris. He did not object to being called and required to testify. He proceeded, by his response to questions asked by the attorney representing Dortha Janann Harris, to identify himself as the person who was in arrears on payments of child support required by the judgment in the divorce case. Had he objected to the procedure and been overruled and required to be sworn as a witness or to testify, there is no doubt that he would be entitled to habeas corpus relief in the appellate courts in the event he was imprisoned by order of the trial court. Ex parte Werblud, 536 S.W.2d 542, 547 (Tex. 1976); Ex parte Rodriguez, 568 S.W.2d 894 (Tex.Civ.App.—Fort Worth 1978, no writ); Ex parte Stringer, 546 S.W.2d 837 (Tex.Civ. App.—Houston [1st Dist.] 1976, no writ).

Contemnor did not object to the procedure. Earlier, by language of the court hereinabove set out, he had been instructed that his former wife could call him as an adverse witness. Should he be accorded the rights of one who has objected and had his objection overruled?

We deem the situation posed to be no different from that which would have obtained had the instruction by the court occurred upon contemnor being called as an adverse witness at the time he was actually called, and where he had at that time made objection to such procedure, i. e., to being sworn as a witness and/or being required to testify. Thus our appropriate action would be ruled by the law applicable in Werblud, Rodriguez, and Stringer.

Had the instruction occurred at the usual time there is no doubt that it would have constituted a ruling of the court, which by good order and discipline to be accorded in the conduct of judicial proceedings con-temnor would have been obliged to obey. Though the instruction, in our view not to be distinguished from a ruling by the court upon objection made, occurred “out of time” it nevertheless occurred after all litigants had announced ready for trial.

Clyde Sherald Harris is ordered discharged from custody under the order of commitment dated March 22,1979, in Cause No. 76-580-C, styled: In the Matter of the Marriage of Clyde Sherald Harris and Dor-tha Janann Harris and in the Interest of Clyde Sherald Harris, Jr., Robert Todd Harris, and Clint Wayne Harris, Children, in the District Court of Denton County, Texas, 211th Judicial District. Furthermore, he is relieved of any obligation to pay the costs of the contempt proceedings of March 22,

1979, pursuant to which he was incarcerated, and to pay the attorney’s fees for Dor-tha Janann Harris’ counsel imposed by the trial court in its order of the same date.