author: CADENA, Justice.

text:
    R. E. M., Appellant, v. The STATE of Texas, Appellee.
    No. 15388.
    Court of Civil Appeals of Texas, San Antonio.
    May 30, 1975.
    Rehearing Denied Dec. 3, 1975.

      Phill Picket, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Lawrence Lin-nartz, Douglas C. Young, Asst. Dist. Attys., San Antonio, for appellee.
   CADENA, Justice.

Appellant here assails the order of the juvenile court of Bexar County certifying him for trial as an adult and transferring the case to the criminal district court.

Appellant was born on April 17, 1957. On April 19, 1974, when appellant was 17 years of age, a petition seeking a declaration that appellant was a delinquent child was filed by the district attorney. The petition alleged that on April 8, 1974, at which time appellant was under the age of 17, appellant “intentionally and knowingly caused the death of Leonard G. Sella by shooting the said Leonard G. Sella with a pistol.” The petition alleged that the crime charged was a felony under Section 19.02, Tex.Penal Code Ann. (1974).

On April 19, 1974, Hon. James E. Barlow, sitting as juvenile judge, entered an order that Richard Moreno “make a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances and the circumstances of the alleged offense and that said report be filed in the papers of this cause.” The order recited that appellant was above the age of 15 at the time of the commission of the alleged felony, and that the order was entered because it appeared to the court that “because of the seriousness of the offense and the background of the offender, the welfare of the community may require Criminal Proceedings; . . . .”

On April 22, 1974, appellant filed a “motion in limine” alleging that the order for diagnostic study constituted “a deprivation of the rights of the child under the” federal and state constitutions. The motion alleged that appellant was accused of the crime of murder “for which he will be ultimately tried as an adult,” and that “subjecting him to questioning while under arrest and incarcerated without the premise of his attorney is a subterfuge . . contrary to his rights . . . The motion concluded with a prayer that the court refuse an order for a diagnostic study or, if such an order had been entered, that it be “recalled.”

On May 7, 1974, appellant’s counsel, after alleging that appellant was in custody against his will on a charge of murder, sought an order requiring that appellant be questioned only in the presence of his attorney. The motion recited that counsel had instructed appellant to “speak to no one.”

The docket of the juvenile court reflects that on June 7, 1974, a hearing was held in the judge’s chambers for the purpose of determining whether appellant “would voluntarily comply with Judge James Barlow's order to submit himself to a ‘complete diagnostic study, social evaluation and full investigation of the child.” The docket entry recites: “Diagnostic study waived by Defendant.” This entry states that a court reporter and appellant’s attorney were present.

The “transfer” hearing was held on August 12, 1974. At the outset, the court instructed appellant that he had the right to remain silent and to be confronted by the witnesses against him. The court then inquired whether appellant had been asked to subject himself to a diagnostic study and social evaluation and had “failed to do so.” Appellant answered in the affirmative. The district attorney and counsel for appellant then entered into a stipulation that the report of the medical examiner concerning the cause of death of the alleged victim could be admitted in evidence. After such report had been marked as an exhibit and received as evidence, appellant’s counsel objected to proceeding with the hearing in the absence of “a social evaluation, a diagnostic study, and a full investigation of this child . . . .” Counsel stated that he had “steadfastly refused to let the defendant, in a murder case, . . . answer any questions or say anything about it, but there is nothing contained in the law that says a diagnostic study has to be made from the defendant himself . . . . The law is clear that there must be a diagnostic study and there is none.” The State replied that counsel for appellant had “respectfully submitted that his client should not be forced into giving any psychological and psychiatric information to anyone” and that, therefore, the court had ruled on June 7, 1974, that appellant had waived his right to a diagnostic study.

After appellant’s counsel pointed out the procedure established by law for waiver of his rights by a child, the trial judge announced that appellant’s objection was overruled.

The court, after hearing evidence, entered an order waiving the jurisdiction of the juvenile court, certifying appellant for trial as an adult, and transferring the case to a criminal district court of Bexar County. This order recites, among other things:

1. Prior to the hearing, the court had ordered and obtained a social evaluation and full investigation of the child, his circumstances, and the circumstances of the alleged offense.
2. Prior to the hearing, the court had ordered a diagnostic study of the child, “but said study was not obtained as counsel . . objected to the order and instructed the child not to cooperate in obtaining the diagnostic study.”
3. Appellant “is of sufficient sophistication and maturity to have intellingently, knowingly and voluntarily waived all constitutional and statutory rights heretofore waived by” him.

By his first, second and fifth points appellant asserts that the trial court erred in ordering him tried as an adult without having obtained a diagnostic study, social evaluation, and investigation of the child, his circumstances and the circumstances of the alleged offense.

Section 54.02(d) of the Family Code (1975) provides that, prior to the “transfer” hearing, “the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.” (Emphasis ours)

Section 54.02(d) is mandatory. Moreno v. State, 510 S.W.2d 116 (Tex.Civ.App.—Tyler 1974, writ ref’d n. r. e.). It is impossible to read Title 3 of the Family Code, which deals with proceedings commonly termed “juvenile delinquency proceedings,” without reaching the conclusion that its effect is to give to a juvenile offender the right not to be treated as an adult offender unless he is divested of that right by judicial order entered after complying with the requirements set forth in Section 54.02. The necessary conclusion is that, in the absence of an effective waiver by the child, he can be subjected to treatment as an adult only if there has been compliance with the mandatory provisions of Section 54.02.

Section 51.09 of the Family Code (1975) provides that, unless a contrary intent appears elsewhere in Title 3, a right guaranteed to a child by Title 3 or by the constitution or laws of Texas or of the United States may be waived in proceedings under that title (which includes “transfer” under Section 54.02) if “(1) the waiver is made by the child and the attorney for the child; (2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it; (3) the waiver is voluntary; and (4) the waiver is made in writing or in court proceedings that are recorded.”

It is clear that a waiver may be effective only if concurred in by both the child and his attorney. The “motion in limine” objecting to an order complying with the provisions of Section 54.02(d) is signed only by the attorney for the child. It cannot be considered as a waiver “made by the child and the attorney for the child.” The same is true of the motion seeking an order prohibiting the questioning of the child without the presence of his attorney. The docket entry of June 7, 1974, reciting that “defendant” waived a diagnostic study does not reflect a waiver made by both the attorney and the child. The docket entry reflects the presence only of the judge, the child’s attorney, and the court reporter. It contains no mention of the presence of the child. The docket entry recites that it was held in chambers, and it is not unusual for attendance at “in chamber” proceedings to be limited to the attorneys and the judge. The hearing was apparently held because of the attitude of appellant’s attorney, reflected in his instructions to appellant that appellant answer no questions unless the attorney was present. Under these circumstances, we cannot presume that appellant was present at the hearing. We deem it significant that the docket entry does not recite a waiver by the child and his attorney.

Nor do the events at the “transfer” hearing reflect an effective waiver under Section 51.09. The record affirmatively reflects that appellant’s counsel objected to the hearing in the absence of a diagnostic study. It can hardly be said that this reflects a waiver concurred in by both appellant and his attorney.

We must, then, consider whether the child’s refusal, on the advice of his attorney, to answer questions without the presence of his -attorney, constituted an effective waiver. As the court instructed appellant, he had an absolute right to remain silent. The state’s contention amounts to no more than an assertion that by claiming a constitutional right appellant, despite the clear language embodied in Section 51.09, waived a right guaranteed by Title 3 of the Family Code. There is no evidence in the record which suggests that a diagnostic study can be made only if the child waives the rights guaranteed him by the constitution of the United States. We are not prepared to hold that, absent such showing, as assertion of a constitutional right is an effective waiver of a statutory right.

Absent a showing of compliance with the mandatory requirements of Section 54.02(d), the transfer order is invalid.

Since the record before us establishes that, during the pendency of this appeal, appellant has reached the age of 18 and is no longer subject to the jurisdiction of the juvenile court, we must consider the proper order to be entered in this case. If this loss of jurisdiction in the court a quo makes the case moot, then under established Texas procedure, the proper order is one dismissing all proceedings pending in the juvenile court. However, under the rule announced in Hight v. State, 483 S.W.2d 256 (Tex.1972), the mere fact that appellant has reached age 18 has nothing to do with whether the case is moot. As the Supreme Court said in Hight, the loss of jurisdiction by the juvenile court “only prevents a remand” to the juvenile court if the order of transfer is held to be invalid. 483 S.W.2d at 257. None of the facts relied on by the Supreme Court in Hight as justifying a holding of mootness are present in this case.

The proper order, therefore, is one vacating the order of the juvenile court waiving jurisdiction and transferring appellant’s case to a criminal district court for trial of appellant as an adult.

The judgment of the trial court is vacated.

MOTION POR REHEARING

We adhere to our original opinion that appellant did not waive the right he is here asserting. We merely add, at this point, that there is nothing in the record to suggest compliance with the statutory requirement that, in order for a waiver to be effective, it is necessary that the child and the attorney waiving the right be informed of and understand the right and the possible consequences of waiving it. Family Code, See. 51.09(2).

In our original opinion, we merely vacated the order waiving the juvenile court’s jurisdiction and transferring appellant to criminal district court for trial as an adult, without remanding the cause to juvenile court for the purpose of determining whether he should be prosecuted as an adult. This refusal to remand was based on the fact that appellant had reached his 18th birthday and that therefore, the juvenile court had lost jurisdiction. Our conclusion that appellant’s age prevented a remand to juvenile court was based on the opinion of the Texas Supreme Court in Hight v. State, 483 S.W.2d 256 (Tex.1972). The problem relating to the proper disposition of the case was disposed of in rather summary fashion by merely referring to the Hight holding. We are now convinced that the problem merits further consideration.

Prior to 1965 the statute, Article 2338-1, relating to delinquency proceedings contained no provision for “waiver of jurisdiction” by the juvenile court and certification of the child for prosecution as an adult. The result was that when a child was accused of committing one of the more serious crimes, indictment of the child was merely delayed until he became of age. Sometimes, as in Huitin v. State, 121 Tex.Cr.R. 425, 351 S.W.2d 248 (1961), the child was adjudged “delinquent” in juvenile court on the basis of some lesser offense and kept in the custody of the Texas Youth Council until he became of age and could be prosecuted for the more serious offense. At other times no proceedings whatever were had in juvenile court, and the State merely delayed filing of criminal charges until he reached the age which made him subject to prosecution as an adult. Peterson v. State, 156 Tex.Cr.R. 105, 235 S.W.2d 138 (1951).

A provision for waiver of juvenile court jurisdiction and certification of a child offender for prosecution as an adult was first added to Article 2338-1 in 1965. Acts 1965, 59th Leg., ch. 577, Sec. 2, Sec. 6 of Article 2338-1, containing the provision for transfer of jurisdiction, was again amended in 1967 (Acts 1967, 60th Leg., p. 1082, ch. 475, Sec. 4), and, as thus amended, it established essentially the same procedure which now appears in Sec. 54.02 of the Family Code.

Even after the 1967 amendment to Sec. 6 of former Article 2338-1, our Court of Criminal Appeals continued to approve the procedure under which a child became amenable to prosecution as an adult by merely delaying the filing of criminal charges, without an order by the juvenile court waiving its jurisdiction. Whitaker v. State, 467 S.W.2d 264 (Tex.Cr.App.1971).

At the time that cases such as Huitín, Peterson and Whitaker were decided, our Penal Code made the criminal jurisdiction of the district court dependent on age at the time of trial, rather than at the time of the commission of the offense. Tex.Pen. Code Ann. (1972), Article 30. It is clear that the legislative intent in adopting Sec. 54.02, containing the provisions for waiver of juvenile court jurisdiction in 1973, was to require a waiver of juvenile court jurisdiction in any case in which the alleged offense was committed before the offender reached age 17. That is, jurisdiction to try the child as an adult depended on age at the time the offense was committed, rather than age at the time the criminal proceedings were initiated. This intention is made manifest by the fact that Title III of the Family Code, which contains the provisions relating to delinquent children, when it was adopted in 1973, carried with it a “conforming” amendment of Article 30 of the Penal Code which provided that, with certain exceptions not here applicable, no person could be prosecuted for or convicted of any offense committed before reaching age 17 unless the juvenile court waived its jurisdiction and certified the offender for trial as an adult. Acts 1973, 63rd Leg., p. 1460, ch. 544, Sec. 2 (at p. 1484).

However, the same session of the legislature which adopted Title III of the Family Code, with its accompanying amendment of Penal Code Article 30, also adopted a new Penal Code. Sec. 8.07 of the 1973 Penal Code, on its face, adopted the same standard for criminal prosecution as that embodied in Penal Code Article 30 prior to its amendment by adoption of Title III of the Family Code. Tex.Pen.Code Ann., Sec. 8.07 (1974).

This inconsistency between Title III of the Family Code and Sec. 8.07 of the new Penal Code, both adopted in 1973, is obviously a major one.

The 1973 Penal Code passed each house of the legislatures and was signed by the governor before Title III of the Family Code. However, Title III of the Family Code, with its conforming amendment of Penal Code Article 30, became effective as of September 1, 1973, while the new Penal Code did not become effective until January 1, 1974. Clearly, from September 1, 1973, through December 31, 1973, Texas law required a waiver of jurisdiction by juvenile court as a condition precedent to criminal prosecution of any person who had committed an offense before he attained age 17. The question, then, is simply whether on January 1, 1974, when the new Penal Code became effective, the law reverted to its previous condition permitting criminal prosecution so long as, at the time of such prosecution, the child has reached his 17th birthday, without regard to whether the waiver of juvenile court jurisdiction required by the Family Code has taken place.

It must be borne in mind that the Penal Code adopted in 1973 repealed Article 30 of the prior Penal Code. But Article 30 of the old Penal Code was amended at the same session of the legislature which enacted the new Penal Code containing the repeal of Article 30. Since the new Penal Code repealed a statute which had been amended by the same session of the legislature which enacted the repealer, Sec. 3.11(c) of the Code Construction Act, Tex.Rev.Civ. Stat.Ann., Article 5429b-2 (Supp.), requires that the Amendment of Article 30 contained in Title III of the Family Code be given effect over the provision of the new Penal Code. In this connection, it is significant that Sec. 1.05(b) of the 1973 Penal Code expressly refers to the Code Construction Act as a guide for resolution of questions concerning the interpretation of the new Penal Code.

We conclude that the adoption of Title III of the Family Code in 1973, including the conforming amendment of Article 30 of the then existing Penal Code, had the effect of precluding criminal prosecution of a person for an offense committed prior to his 17th birthday unless such criminal proceedings rested on a waiver of jurisdiction by the juvenile court in the manner outlined in Sec. 54.02 of the Family Code.

The problem which we face here, due to the fact that appellant has reached his 18th birthday and is, according to the literal language of the Family Code, no longer subject to juvenile court jurisdiction, was faced by the Supreme Court of the United States in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). After pointing out that the hearing relating to waiver of juvenile court jurisdiction is a “critically important” proceeding determining vitally important rights of the juvenile (383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d at 94), the Court noted that the petitioner had reached age 21 and was no longer amenable to the jurisdiction of the juvenile court. The petitioner argued that the only proper order was the vacation of the orders in the inferior courts, but the Court said it did not consider it appropriate to grant such “drastic” relief and, instead, remanded the case to the district court for a de novo hearing on the question of jurisdiction. 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d at 97.

Again, in Kemplen v. State of Maryland, 428 F.2d 169 (4 Cir. 1970), the problem was the proper disposition, by the appellate court, of a case in which the minor had become of age at the time the waiver proceedings were held to be invalid. It was decided that the proper remedy was the “. . . reconstruction in the Maryland courts, or failing that in the United States District Court, of the circumstances bearing on the waiver question and a determination nunc pro tunc or what the juvenile court judge would probably have done in light of all the information then available that might reasonably have been proffered by competent counsel.” 428 F.2d at 178.

The 1975 amendment to See. 54.02 of the Family Code, effective September 1, 1975, permits the initiation of waiver of jurisdiction proceedings in the juvenile court after the offender has reached age 18 if the juvenile court finds that, despite due diligence on the part of the state, it was not practicable to proceed in juvenile court prior to the 18th birthday of the person involved because the state did not have probable cause to proceed in juvenile court and new evidence has been found since the person’s 18th birthday or the person could not be found. Laws 1975, 64th Leg., p. 2152, ch. 693, Sec. 16 (at p. 2156). Even if the 1975 amendment could be made applicable to this case, the problem would not be resolved, since here the state timely initiated the waiver proceedings before the child’s 18th birthday, and the difficulty arises because the child became of age while his appeal from the transfer order was pending.

It cannot reasonably be concluded that the legislature intended that where the state has acted diligently and has, by the timely filing of a petition for waiver of juvenile court jurisdiction, thus affording the child offender all of the rights to which he is entitled, the offender must go free because, by the time an appellate court determines that the transfer order is, for some reason, invalid, he has become of age. This result was the one described by the Supreme Court of the United States in Kent as “drastic.” Under Texas Law, a child who commits a crime is entitled to a full due process hearing before the exclusive jurisdiction of the juvenile court can be waived. That right is in no way impaired by a remand of the case to the juvenile court.

Our holding is that once the jurisdiction of the juvenile court has been timely invoked by the filing of a petition for waiver of that court’s jurisdiction and transfer of the alleged offender to the district court for prosecution as an adult, the jurisdiction of the juvenile court continues until there has been a final disposition of the question of waiver of jurisdiction, whatever be the age of such alleged offender at the time of such final disposition.

The order of the juvenile court waiving its jurisdiction over appellant and certifying him for trial as an adult is set aside and the cause is remanded to that court for further proceedings in accordance with the provisions of Sec. 54.02 of the Family Code.

In all other respects the state’s motion for rehearing is overruled.

      . In 1975 the legislature amended Sec. 8.07 of the 1973 Penal Code to preclude, absent waiver of juvenile court jurisdiction, criminal prosecution based on an offense corn-mitted prior to the time the alleged offender reached age 17. Acts 1975, 64th Leg., p. 2152, ch. 693, Sec. 24 (at p. 2158), effective September 1, 1975.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    GARFIELD MUTUAL FIRE AND STORM INSURANCE ASSOCIATION, Appellant, v. Allen T. CALHOUN, Appellee.
    No. 1005.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1975.
    Rehearing Denied Jan. 30, 1976.
    Walter R. Long, Jr., Long & Whitehead, Karnes City, Crain, Crain & Sheppard, Cue-ro, for appellant.
    Nathan Hoffman, Law Office of O. F. Jones, Victoria, for appellee.
   OPINION

PER CURIAM.

This suit is an appeal from a judgment on a jury verdict awarding plaintiffs $6,000.00 in insurance benefits from the defendant insurance company. Appellee has filed a motion to dismiss the appeal on the grounds that this Court has no jurisdiction because the appellant did not give notice of appeal.

Final judgment was rendered on January 24, 1975. On January 31, appellant filed a motion for new trial, and an amended motion for new trial was timely filed on February 20. The amended motion for new trial was overruled by operation of law on April 7. An appeal bond was filed on April 16, and the record was filed with the clerk of this Court on June 4, 1975.

Rule 363, T.R.C.P., provides that an appeal is perfected when notice of appeal is given and the bond or affidavit in lieu thereof is filed, both of such steps being required to vest jurisdiction in the appellate court. Rule 353, T.R.C.P., sets out the methods in which the notice of appeal may be given or filed, providing that it must be done within ten days after the final judgment or order overruling the motion for new trial.

There is, however, an exception to these general rules. When a motion for new trial (or amended motion for new trial) is overruled by operation of law, no notice of appeal is necessary. The appeal is perfected by the filing of the appeal bond within the time required. This, the courts have held, furnishes adequate notice of appellant’s intention to appeal. Houston Life Ins. Co. v. Dabbs, 125 Tex. 100, 81 S.W.2d 42 (Com. of Appeals 1935); Combined American Ins. Co. v. Morgan, 207 S.W.2d 701 (Tex.Civ.App.—Dallas 1947, no writ); Combined American Ins. Co. v. Morgan, 214 S.W.2d 145 (Tex.Civ.App.—El Paso 1948, no writ); Chekanski v. Texas & New Orleans Railroad Company, 306 S.W.2d 935 (Tex.Civ.App.—Houston 1957, writ ref’d n. r. e.); McKinney v. Tromly, 386 S.W.2d 564 (Tex.Civ.App.—Tyler 1964, writ ref’d n. r. e.); Williams v. Hill, 392 S.W.2d 759 (Tex.Civ.App.—Dallas 1965, no writ).

In this case, the appeal bond was properly filed within 30 days after the amended motion for new trial had been overruled by operation of law. The record was filed here within 60 days after the motion had been overruled, Rule 386, T.R.C.P. Since no notice of appeal was required to perfect the appeal, appellee’s motion to dismiss the appeal is denied.


author: SPURLOCK, Justice.

text:
    CITY OF WICHITA FALLS, Appellant, v. Jerry W. HARRIS et al., Appellees.
    No. 17662.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 19, 1975.
    Rehearing Denied Jan. 23, 1976.

      H. P. Hodge, Jr., City Atty., Wichita Palls, for appellant.
    Neely & Mason, and Tom Neely, Wichita Falls, for appellees.
   OPINION

SPURLOCK, Justice.

This a suit by eight members of the Wichita Palls Fire Department against the City seeking a judgment (1) to annul and void an appointment of a Training Officer or Fire Training Specialist hired without competitive examination in violation of the terms and provisions of Article 1269m, V.A. C.S., “Firemen’s and Policemen’s Civil Service Act”; (2) declaring that six plaintiffs were entitled to receive sick pay for one day when they are absent from work on account of sickness; (3) requiring the Firemen’s and Policemen’s Civil Service Commission to inspect all institutions, departments, offices, places, and positions of employment affected by this Act once each year, all as is required by Art. 1269m, V.A. C.S.; and (4) setting aside the disciplinary suspension of plaintiff, Jerry W. Harris.

Trial was before the court and resulted in a take-nothing judgment for that part of the suit brought by 6 firemen for their sick pay. The judgment further ordered the Civil Service Commission to inspect all institutions, departments, offices, places, positions, and employments affected by the Act in accordance with the terms of Art. 1269m, Section 5a, V.A.C.S. The order of the Fire Chief suspending Harris was found to be in violation of law and was voided. The appointment by the Fire Chief of the Fire Training Specialist was voided.

We affirm.

By its first point, the City asserts that the trial court erred in declaring that the action of the City in creating the position of Fire Training Specialist as non-classified under Article 1269m, V.A.C.S., was void.

We overrule this point.

The City contends that it could not fill the Civil Service position described as “Fire Training Officer” by Civil Service examination. It then created and filled a non-Civil Service position described as “Fire Training Specialist” to take the place of the Fire Training Officer position. It contends that this act was not void.

The City, by Ordinance, created a position of Fire Training Officer and a fireman was pointed to this position in June of 1967. Thereafter, various persons were appointed to this position and most requested a demotion. These requests were granted. One fireman held the position for 3 years; several held the position only a matter of 3 to 6 months. In 1974 the examination was limited to Captains and Lieutenants and no one made application to take the examination. In 1974 only two applied, but at this time the examination was limited to Captains. There are only 9 Captains in the Fire Department. On May 7, 1974, the examination was open to Captains, Lieutenants, and fire equipment operators, but only 3 took the examination, and only one passed. This was the last examination given. Originally the position was held by a battalion chief.

Thereafter, by memorandum written by the City Manager of the City, there was created a classification of Fire Training Specialist in the Fire Department and it was noted that such position would replace the Fire Training Officer. This meant that a Civil Service position was abolished and a non-Civil Service position was created to take its place. The present occupant of that position was employed before the job was created by the legislative body. He was employed without an examination. Thereafter, the Board of Aldermen passed an ordinance purporting to abolish the Civil Service classification and created the non-Civil Service classification.

The job descriptions of both positions require that a person holding the position must have knowledge of the principles and practices of fire prevention and suppression.

The Fire Training Specialist is paid by the Fire Department, drives a Fire Department vehicle, attends fires, has an office in the fire station, and the Fire Chief is his supervisor. He attends the City’s rookie fire school and he is responsible for organizing and implementing the tactical attack on fires when they break out.

Mr. Caussey, who now holds this position, has a Bachelor of Science Degree in History and Social Studies and a Masters Degree in Education. The City contends his primary duty is that of an instructor who has developed skills in communication, education, and evaluation of knowledge and that he is not a firefighter.

A history of this legislation and the effect of the amendment of 1957 can be found in City of San Antonio v. Handley, 308 S.W.2d 608 (San Antonio Civ.App., 1957, ref.); City of Wichita Falls v. Cox, 300 S.W.2d 317 (Fort Worth Civ.App., 1957, ref., n. r. e.); City of San Antonio v. Castillo, 293 S.W.2d 691 (San Antonio Civ.App., 1956, ref., n. r. e.); Whitley v. City of San Angelo, 292 S.W.2d 857 (Austin Civ.App., 1956, no writ hist.); and Cox v. Purcell, 306 S.W.2d 814 (Fort Worth Civ.App., 1957, no writ hist.).

The definition of “Fireman” is contained in Article 1269m, V.A.C.S., Sec. 2, and defined as: “By the term ‘Fireman’ is meant any member of the Fire Department appointed to such position in substantial compliance with the provisions of Sections 9, 10 and 11 of this Act, or entitled to Civil Service Status under Section 24 of this Act.”

Sections 9, 10 and 11, referred to above, provide for examination, the filling of a position based upon the eligibility list following examination, and the certification of such person to the Fire Department. In other words, a fireman is a person who has passed an examination for fire-fighting and work in the Fire Department and has made a high enough grade to be certified and has been certified as a fireman. Section 24, referred to above, is the grandfather clause which provides that at the time of the passage of the Act firemen in actual service of an affected city shall have Civil Service status.

If the Act is construed strictly it would mean that the City could employ new firemen who would not be under Civil Service by simply not giving them an examination. The City acknowledges that this is obviously not the intent of the legislature.

An analysis of the job classification contained in the City’s ordinances show the positions of Fire Training Officer and Fire Training Specialist to be almost identical.

Section 9 of the Act provides that the Civil Service Commission shall hold open and competitive examinations for persons making application. It further provides: “All eligibility lists for applicants for original positions in.the Fire and Police Departments shall be created only as a result of such examinations, and no appointments shall ever be made for any position in such Departments except as a result of such examination, which shall be based on the applicant’s knowledge of and qualifications for fire fighting and work in the Fire Department, . . . .” (Emphasis ours.)

The Act further provides (Section 14 G): “In the event any new classification is established either by name or by increase of salary, the same shall be filled by competitive examination in accordance with this law.”

In the City of San Antonio v. Wallace, 161 Tex. 41, 338 S.W.2d 153 (1960) that court had before it a situation in which Civil Service positions were abolished and the work was done by an independent contractor and its employees. In construing this Act that court stated that while there is a presumption favoring the regularity of official acts, this presumption should not be extended in civil service cases so as to support the position urged by the City in that case. That court further stated: “While the City of San Antonio is a home rule city, Article 11, § 5 of the Texas Constitution, Vernon’s Ann.St. (the home rule amendment) expressly provides that ‘no [City] charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State; * * V Should we close the doors against a judicial inquiry into the element of good faith in municipal action, a colorable or sham ordinance could render an express constitutional provision impotent and meaningless. The policy of the state, as reflected in its civil service statutes, would be at the mercy of municipal action. In this situation, the courts in carrying out state policy must consider the element of good faith in passing upon the validity of municipal actions.

“ . . . The authorities however do support the proposition that an action of a city legislative body abolishing civil service positions may be judicially examined in the light of its surrounding circumstances, the prior and subsequent actions of such legislative body and the public policy represented by the civil service law in order to determine the good faith of the questioned action.” That court further stated that the public policy of the state as evidenced by its civil service law, which is to place municipal employees for the most part upon a merit system and free them from political control, cannot be circumvented and the court will scrutinize carefully any attempt to do so.

In the case of Loos v. City of Houston, 375 S.W.2d 952 (Houston Civ.App., 1964, ref., n. r. e.) the trial court and the City of Houston assumed that Arson Investigators were firemen. This point was not decided in that case. The duties of an Assistant Arson Investigator is normally to determine the cause of a fire rather than to fight fires.

After the trial court had heard all the evidence it found that the position of “Fire Training Specialist” is a “Fireman” within the meaning of Section 2 of Article 1269m, V.A.C.S. The judgment further provided that the action of the City in purporting to create this new position within the Fire Department did not comply with the Act because it created a non-classified position and therefore it is null and void. The Court further ordered that the City shall comply with the Act in the appointment and employment of a person to the position of Fire Training Specialist which is a classified position and that such position is now vacant.

Evidence is sufficient to sustain the trial court’s judgment that the new Civil Service position comes under Civil Service and therefore the filling of this position without competitive examination was unauthorized.

We also note that in a similar situation the City of Amarillo filled a position of a Training Officer for the Fire Department by simply selecting from among its classified personnel a person qualified to instruct other firemen. To do so the City, by ordinance, simply abolished the classification of “drill master” and the Fire Chief then assigned those instructional duties to a qualified fireman without creating a new classification and without holding an examination. That court upheld this procedure. Wortham v. City of Amarillo, 493 S.W.2d 597 (Amarillo Civ.App., 1973, ref., n. r. e.). There is no evidence in the case at bar that the City did not have within its Fire Department a person capable of instructing other firemen.

It is our opinion that a person holding the position of Fire Training Specialist and having the duties imposed upon him as reflected by the record is a “Fireman” within the intent of Art. 1269m, V.A.C.S.

By its second point of error, the City contends that the trial court erred in declaring void the action of the City in creating the position of Fire Training Specialist for the reason that the ruling of the Civil Service Commission upholding such action was reasonably supported by substantial evidence.

This point is overruled.

In the case of City of San Antonio v. Wallace, supra, that court stated that some courts regard the issue of whether or not an ordinance abolishing a civil service office must be made in good faith is ordinarily a question of fact to be determined in the same way as any other factual problem. It was noted therein that some courts regard the issue as a question of law. The court then proceeded to adopt the view that this is a law question rather than a fact issue.

In Volume 24, Southwestern Law Journal, pages 216-221, Administrative Law, Professor David M. Guinn, states: “While results in the cases varied, in none of the opinions did the courts place any considered emphasis upon the agency analysis, statutory interpretation being a question of law upon which the courts may properly substitute their judgment for that of the agency.” See also City of Houston v. Reyesi, 527 S.W.2d 489 (Houston Civ.App., 1st Dist., 1975, no writ hist.).

It is our opinion that the Civil Service Commission had before it only a question of law and not a fact question. The Commission is not authorized to construe a statute or an ordinance, and decide a question which is purely one of law.

By its third point of error the City asserts that the trial court erred in ordering the Civil Service Commission to make annual inspections, for the reason that such provisions in Section 5a of Article 1269m is directory rather than mandatory.

This point is overruled.

Section 5a of the Act provides as follows: “The Commission may make investigations concerning, and report upon all matters touching, the enforcement and effect of the provisions of this Act, and the rules and regulations prescribed hereunder; shall inspect all institutions, departments, offices, places, positions and employments affected by this Act at least once every year; . .” (Emphasis ours.) When the legislature used the word “may” in the introductory phase of this section and the word “shall” in regard to inspections, then the intent of the legislature becomes plain. It is a mandatory requirement.

In Jaynes v. Lee, 306 S.W.2d 182 (Texarkana Civ.App., 1957, no writ hist.), it is stated: “Statutes and rules are permissive or mandatory, governed by the intent of the Legislature, Congress, or the governing body that enacts the statute or promulgates the rule. When the intent clearly indicates that the word ‘shall’ as used in such statute or rule was intended to be mandatory, then it is clearly inconsistent with any idea of discretion and is mandatory.” See also State Board of Insurance v. Betts, 158 Tex. 612, 315 S.W.2d 279 (1958).

It is our opinion the clear connotation of the word “shall” preceded by the use of the word “may” indicates the legislature’s intent that the duty to inspect is mandatory.

The City, by its 4th and 5th points of error, complains of the trial court’s alleged error in refusing to dismiss Harris’ appeal. It maintains the court was without jurisdiction because the Civil Service Commission’s refusal to review his temporary suspension was not appealable under the Firemen’s and Policemen’s Civil Service Act.

We overrule points 4 and 5.

By letter addressed to the Commission, the Fire Chief suspended “Firefighter Jerry W. Harris for fifteen (15) working days, effective at 8:00 a. m., Friday, September 20, 1974 and until 8:00 p. m. Sunday, October 13, 1974.” This a period of 23 calendar days. The suspension was based upon an oral complaint of Caussey, the Fire Training Specialist.

The Civil Service Commission refused a hearing even though a hearing was requested by Harris. On trial of the case in district court the record reflects that Caussey, by circumstantial evidence, thought that Harris had written an obscene word in the dust on Caussey’s pickup truck. Several witnesses testified that he did not write such a word on the pickup truck. The trial court found that Harris did not commit the act made the basis of his suspension.

It is well settled law in this State that if the Act does not provide for an appeal from an order of the Commission, then the administrative action of the Commission is final and the courts have no jurisdiction to hear an appeal unless the administrative action complained of violates a constitutional provision. This rule was applied in connection with the grading of examination papers involving the promotion of a fireman. Firemen’s & Policemen’s Civil Serv. Com’n v. Kennedy, 514 S.W.2d 237 (Tex.Sup., 1974). See also Firemen’s and Policemen’s Civil Service Commission of the City of Fort Worth v. Richard L. Williams, Vol. 19, No. 9, The Texas Supreme Court Journal, p. 81 (November 29, 1975). This rule was also followed in City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788 (1951) involving the demotion of a fireman before the Act was amended concerning demotions.

Section 20 of the Act provides that the Fire Chief “ . . . shall have the power to suspend any officer or employee under his jurisdiction or supervision for disciplinary purposes, for reasonable periods, not to exceed fifteen (15) days . ' . . .” This section provides further that the Chief shall file a written statement of the action with the Commission within a designated time and the Commission shall have the power to investigate and to determine whether just cause exists therefor. The Commission has the power to set aside the order of suspension. No provision is made requiring the Commission to hold a hearing and no right of appeal from its order is afforded by that section.

Section 16 provides that the Fire Chief has the power to suspend indefinitely any fireman. This section also provides for the filing of a statement with the Commission giving the reasons for the suspension and “immediately furnish a copy thereof to the officer or employee affected by such act, said copy to be delivered in person to such suspended officer or employee by said department head.” This section further provides that the order of suspension shall also inform the employee that he has 10 days after receipt of a copy thereof, within which to file a written appeal with the Commission. This section provides for a hearing.

Section 16a states that the purpose of this Act is to secure to the cities affected thereby efficient Fire Departments, composed of capable personnel, free from political influence, and with permanent tenure of employment as public servants. It states: “The members of the Civil Service Boards are hereby directed to administer the civil service law in accordance with this purpose; and when sitting as a board of appeals for a suspended or aggrieved employee, they are to conduct such hearing fairly and impartially under the provisions of this law, and are to render a fair and just decision, considering only the evidence presented before them in such hearing.” (Emphasis ours.)

Section 17 provides for the procedure before the Commission.

Section 18 provides for an appeal by filing a petition in the district court “asking that his order of suspension or dismissal or demotion be set aside, that he be reinstated in the Fire Department . . . .”

It is clear that a disciplinary suspension for a greater period of time than 15 days then becomes an indefinite suspension.

It is equally clear that if Lt. Harris was not afforded his procedural rights provided by statute he was denied due process.

The question then presents itself: Does a “suspension of 15 days” mean “15 successive calendar days” or “15 working days” within the meaning of the Act?

In New Orleans Fire. Ass’n Loc. v. City of New Orleans, 263 La. 649, 269 So.2d 194 (1972) that court had before it an action by the City firemen in which they were contending that a statute providing that firemen shall be entitled to vacation of 18 days with full pay after one year of service which period shall be increased one day each year up to a maximum of 30 days with full pay. The firemen contended that this meant “working days”. Their contention in effect was that the days they were off-duty should not be included as vacation days. The Court of Civil Appeals in that case (260 So.2d 779) stated: “We are of the opinion that the trial judge was correct in his interpretation of the work ‘days’ as contained in LRS 33:1996. We have previously decided that this is a general law and that it applies to all Fire Department governing authorities throughout the State. The only way in which such a statute can be applied equally throughout the State is to determine that a day for annual vacation purposes means a calendar day. To rule otherwise would cause not only confusion in its application to other departments throughout the State, but even within the Fire Department in the City of New Orleans itself, wherein the actual working Firemen work different shifts and schedule arrangements than the other personnel in the department.” The Supreme Court of Louisiana sustained this interpretation of the word “day” as meaning a calendar day.

In Golden v. City of Oakland, 122 Cal.Rptr. 400, 49 Cal.App.3d 284 (Ct. of App., First Dist., Div. 4, 1975) that court had before it an ordinance that employed the term “working day” in respect to vacation benefits for members of the Fire Department. The predecessor ordinance used only the word “days” rather than “working days”. That court held that even though the ordinance used the words “working days” it meant “calendar days”.

In Section 20 of Article 1269m (disciplinary suspensions) the statute refers to 15 days. In Section 26(a) of the same Act, when applied to vacations, the Act defines a calendar day as a day in which a member would be required to work. This definition of a “day” was not used in Section 20.

In Coffman v. City of Wichita Falls, 374 S.W.2d 798 (Fort Worth Civ.App., 1964, writ ref.) the court had before it the construction of that portion of Art. 1269m, Section 26(a), concerning the meaning of 15 working days when applied to vacation pay. Also involved is a construction of Rule XVII, Section 50, of the Civil Service rules of the City of Wichita Falls which has been unchanged from date of that decision to the present time.

In that suit the statute and rules provided that employees in the classified service shall earn a minimum of 15 working days vacation with pay in each calendar year. The plaintiffs contended there is actually no time off from their normal work load and, therefore, in spite of the fact plaintiffs were actually off duty as many as 26 consecutive days at full pay because of the change in their shifts and work duties during the summer but that such time off between shifts and in the summer months was not vacation as contemplated by the statutes. All the plaintiffs were paid monthly salaries and received full salaries while off from work during the summer months.

This Court held that to allow the firemen’s contention would in effect double the firemen’s vacation pay. This Court denied the firemen’s claims, thus in effect holding that 15 working days meant 15 calendar days regardless of whether they were work days or off-duty days.

We are persuaded that the rationale of the Coffman case should also be applied to “15 day” disciplinary suspensions.

We hold that the term “15 days” as used in Section 20 of the Act means “15 successive calendar days”.

It is our opinion that the suspension of Lt. Harris for 23 calendar days was an “indefinite suspension” within the terms and meaning of Section 16, and he was denied the right of a hearing and appeal to the court under the terms and provisions of the Act referred to.

For the foregoing reasons we hold that the trial court did not err in refusing to dismiss Harris’ appeal and that the court had jurisdiction to pass upon the question of law here involved.

By its 6th point the City asserts the trial court erred in holding that the suspension of Harris was unconstitutional under both the State and Federal Constitutions for the reasons same was not pleaded.

We overrule this point.

Harris pleaded that the disciplinary suspension was invalid and was in violation “of the law” and should be set aside and held for naught. No special exceptions were filed. The trial court found that this issue was tried by consent.

It is our opinion that the pleadings when examined as a whole, together with the findings of the trial court, showed that Harris was contending and did contend that the acts affecting him were unlawful. The pleadings provided the City with fair notice and complied with Rule 45, T.R.C.P. In any event said issues were tried by consent within the meaning of Rule 67, T.R.C.P.

The City, by its 7th point of error, asserts that the trial court erred in holding that the refusal of the Civil Service Commission to grant a hearing to Harris constituted a violation of the due process clause of the United States Constitution.

We overrule this point.

Under this point the City’s sole argument is as follows: “It is conceded that a public employee with tenure has a property right in his continued employment which is within the Fourteenth Amendment’s protection, and he is entitled to procedural due process if he is discharged. However, it is urged that this rule should not be applied to a disciplinary suspension of no more than fifteen days.” The City cites no authorities.

It is our opinion that if our holding in connection with points of errors Nos. 4 and 5 did not dispose of this point, then the City waived this point of error by failing to brief it. Smith v. Davis, 453 S.W.2d 340 (Fort Worth Civ.App., 1970, ref., n. r. e.); West Texas Utilities Company v. Bergstrom, 458 S.W.2d 548 (Eastland Civ.App., 1970, ref., n. r. e.).

By its 8th point the City asserts that the trial court erred in holding that the provision of Section 5 of Art. 1269m is unconstitutionally vague and general and invalid under the Sixth Amendment to the United States Constitution and Article 1, Section 10 of the Texas Constitution.

This point is sustained. However, sustaining this point does not in this case require a reversal.

Section 5 gives the Commission power to prescribe what shall constitute cause for removal or suspension of a fireman provided the rules involve one or more of the named complaints which includes conduct prejudicial to good order. Section 16 (indefinite suspensions) provides that the cause for the suspension of a fireman shall not only point out the Civil Service rule alleged to have been violated but shall also specifically point out the act or acts complained of on the part of such employee.

The order of suspension signed by the Fire Chief alleges that Harris violated Rule XIV, Section 45, of the Civil Service Rules, as follows: “(H) Conduct unbecoming to a gentlemen and/or prejudicial to good order.” Following this general statement the order stated the hour, the date and the specific acts made the basis of the suspension.

Ordinarily these constitutional provisions referred to above prescribe the rights of a defendant in criminal prosecutions. Article 1, Section 10, of the Texas Constitution, provides that in criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation against him and to have a copy thereof. This case at bar, however, is a civil proceeding and not a criminal prosecution.

In Bolieu v. Firemen’s & Policemen’s Civil Service Com’n, 330 S.W.2d 234 (San Antonio Civ.App., 1959, ref., n. r. e.), a fireman was charged with conduct prejudicial to good order. Then in connection with this general statement he was charged with intoxication while on duty. The Civil Service Commission and the trial court upheld the order discharging the fireman. That court stated: “We do not hold that such civil service hearings are subject to the stringency of the criminal law, but only that Section 5 of Article 1269m recognizes that the general charge supported by specific acts is a suitable procedure for a profession which demands a state of readiness, strict discipline, and a measure of obedience and valor not expected in ordinary callings. 62 C.J.S. Municipal Corporations § 606a.”

Since we approve the statement quoted in the above paragraph we hold that under the facts of this ease the grounds for suspension given by the Fire Chief were not unconstitutionally vague.

Judgment of the trial court is affirmed.


author: YOUNG, Justice.

text:
    GARFIELD MUTUAL FIRE AND STORM INSURANCE ASSOCIATION, Appellant, v. Allen T. CALHOUN, Appellee.
    No. 1005.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 31, 1975.
    Rehearing Denied Jan. 30, 1976.

      Walter R. Long, Jr., Long & Whitehead, Karnes City, Crain, Crain & Sheppard, Cue-ro, for appellant.
    Nathan Hoffman, Law Office of O. F. Jones, Victoria, for appellee.
   OPINION

YOUNG, Justice.

This suit was brought by Allen T. Calhoun to recover under an alleged fire insurance policy issued by the Garfield Mutual Fire and Storm Insurance Association insuring Calhoun against loss by fire of his residence and its contents located in Goliad County, Texas.

The association in its answer generally denied any liability. Trial was before a jury and submitted on special issues. In answer to the special issues submitted, the jury in substance found that a policy of insurance issued by the association did exist with Calhoun suffering damage to his residence of $9,000.00 and to the contents of $13,250.00. Based on those jury answers, the trial court rendered judgment against the association and in favor of Calhoun for insurance benefits of $6,000.00 plus attorney’s fees of $2,125.00. From that judgment the association appeals.

Calhoun resided in his family home near Goliad, Texas, on January 6, 1972, the date of the loss. The home was purchased by him from his mother sometime prior to 1966. Calhoun’s mother at that time had a policy of fire insurance coverage on the house and its contents, which insurance Calhoun took over upon purchasing the home.

Upon the purchase and notification to the appellant, Calhoun’s name was substituted as the owner of the residence on or about September 1,1966. The policy of insurance as originally issued provided for damages arising from fire with an overall limit of $10,700.00. This included $4,000.00 on the dwelling; $4,000.00 on the rent house; $2,000.00 on the furniture; and $700.00 on the barn. The only item in controversy here is the dwelling and its contents (furniture). Calhoun testified that the premium on the policy had been paid each succeeding year and that he had paid the premium covering the period in which he alleges his damages occurred. The residence in question and its contents were destroyed in the latter part of the evening around 10:00 p. m. on January 6, 1972, by an explosion and fire. Subsequently the premises were inspected by Romeo Korth, the secretary-treasurer of appellant association. His testimony established that the damages occurring on the dwelling and furniture exceeded the coverage afforded by appellant’s insurance policy. Appellee gave the required notice and proof of loss as required by appellant. Nevertheless, liability was denied by appellant.

Calhoun then brought suit against appellant to recover under a policy of insurance allegedly issued by appellant covering the dwelling and its contents. Upon trial, it was determined that neither the appellee nor appellant had a copy of the policy originally issued to Calhoun’s mother. Calhoun testified that he never had, nor had he ever seen, that policy of insurance; he just paid the premium on it when it became due. It is undisputed, however, that there was an outstanding policy of insurance on the Calhoun residence and furniture on the date of the damage issued by appellant allowing $4,000.00 coverage on the dwelling and $2,000.00 coverage on the contents. Exactly what coverage was provided for in the absent policy was disputed; whether it was limited to fire and lightning only or whether it included explosions as well.

At the close of appellee’s evidence, appellant moved for an instructed verdict asserting as grounds, among other things: (1) that there is no evidence showing the terms of the alleged certificate of insurance which is pleaded by the plaintiff as the basis of his cause of action; and (2) that there is no evidence to indicate that the plaintiff was insured against either fire or explosion, and if there is any evidence that he was insured against fire, there certainly is no evidence that he was insured against explosion; all the evidence shows that the damages resulted from explosion and not from fire.

It was appellee’s contention that although a major portion of his losses resulted directly from the explosion, there was a fire that caused the explosion and thus he had coverage for his losses. The trial court denied appellant’s motion, and appellant tendered no evidence thereafter.

The case was then submitted to the jury on special issues. In answer to certain special issues, the jury answered: (1) that on January 6, 1972, the plaintiff Allen T. Calhoun was insured under a policy issued by the defendant Garfield Mutual Fire and Storm Insurance Association; (2) that there was no damage caused to plaintiff’s house by fire; (3) that the damage caused to plaintiff’s house by reason of fire was not a total loss; (4) that the extent of damage to the contents of plaintiff’s house caused by fire was $100.00; (5) that the extent of damage to plaintiff’s house caused by explosion was $9,000.00; (6) that the extent of damage to the contents of plaintiff’s house caused by explosion was $13,250.00; (7) and that reasonable attorney’s fees were $1,250.00 in the trial court; plus $900.00 if the case were appealed to the Court of Civil Appeals; and plus $500.00 if the case were appealed to the Supreme Court of Texas. From this verdict the trial court rendered its judgment for appellee.

It is undisputed that a policy of insurance issued by appellant on the Calhoun premises did exist and was in effect at the time of the fire and explosion. In answer to certain interrogatories, Mr. Romeo Korth, secretary-treasurer of appellant testified that, although not knowing of the exact terms of the policy between appellant and Calhoun, the appellant had outstanding a certificate of insurance that purported to afford Mr. Calhoun $4,000.00 dwelling coverage and $2,000.00 furniture coverage at the time of Calhoun’s loss. The evidence also shows that the original policy issued to Calhoun’s mother had only fire coverage and did not have extended coverage which would include losses resulting from explosion. In fact, Calhoun testified that his mother had told him that the premises were covered only for fire. There was no evidence that subsequent to purchasing the property and taking over the premises and the insurance policy thereon that Mr. Calhoun acquired any additional coverage for anything other than fire coverage.

A blank duplicate (known as the Texas Standard Form) of the policy alleged to be in effect at this time was introduced into evidence, not for the purpose of showing coverage, but for the purpose of showing the type of policy that appellant issued and which Mr. Korth testified was identical to the policy that was issued to Mrs. Calhoun and was in effect at the time of the loss. Therefore, although the insurance policy in question was not available for examination, a facsimile was provided with additional evidence going to show the extent of the coverage to be for fire only.

The extent of the coverage having been shown and established, the question next presented was whether appellee’s loss fell within such coverage, i. e., were the damages incurred by appellee the result of fire or were they the result of an explosion. If the losses were caused solely by the explosion and not by antecedent fire, then there is no coverage. It has been generally held that insurance against loss by fire includes all loss from explosion which is the direct result of an antecedent fire upon the insured premises. In such case the explosion is regarded as a mere incident of the fire and the damage sustained is the direct and proximate result of the fire. Liverpool & London & Globe Ins. Co., Limited v. Currie, 234 S.W. 232 (Tex.Civ.App.—El Paso 1921, writ ref’d); Northwestern Nat. Ins. Co. v. Westmoreland, 215 S.W. 471 (Tex.Civ.App.—El Paso 1919, no writ). See also North British & Mercantile Ins. Co., Ltd. v. Arnold, 171 S.W .2d 215 (Tex.Civ.App.—Galveston 1943, no writ).

In determining the liability of the insurer for the damage sustained, we deem it advis-able to note the distinction between fires that are hostile and those which are friendly, in view of the testimony of Calhoun that the explosion could have been caused by the pilot light of a heater or stove. The weight of authority is that as long as a fire burns in a place where it was intended to burn and ought to be, it is regarded as an agency for the accomplishment of some intended purpose, although damages may have resulted where none were intended. Thus such fire is a “friendly fire” and insurers are not liable for damages flowing therefrom; but, where a friendly fire escapes from the place where it ought to be to some place where it ought not to be, resulting in damages, such fire becomes a hostile peril for which the insurers are liable. See Reliance Ins. Co. v. Naman, 118 Tex. 21, 6 S.W.2d 743 (Tex.Com.App.1928, opinion adopted); Progress Laundry & Cleaning Co. v. Reciprocal Exchange, 109 S.W.2d 226 (Tex.Civ.App.—Dallas 1937, writ dism’d). For the appellee to recover, therefore, he must show that there was a fire and that the fire was a “hostile fire”.

In its first point of error, the association asserts that the trial court erred in overruling its motion for directed verdict inasmuch as appellee failed to sustain his burden of proof and brought forth no probative evidence to prove: (1) that the destruction of the building was caused by fire as to come within the coverage offered by any policy of insurance issued by the appellant to ap-pellee; and (2) that the destruction of the building by explosion was covered under any policy of insurance issued by appellant to appellee. So the primary question before this Court is whether there existed an issue of fact under the evidence whether the fire preceded and caused the explosion, or was subsequent to and caused by the explosion.

Since we have an instructed verdict question in this case, we must review the evidence in the most favorable light in support of appellee Calhoun’s position. Anderson v. Moore, 448 S.W.2d 105 (Tex.Sup.1969); Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.Sup.1970); T-L Drilling Company v. Northern Propane Gas Co., 516 S.W.2d 710 (Tex.Civ.App.—Corpus Christi 1974, no writ); Bass v. General Motors Corporation, 491 S.W.2d 941 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.). A proper determination of this question must be based on an acceptance of the evidence and the inferences therefrom most favorable to the plaintiff’s case, discarding contrary evidence and inferences. White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943); Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953); T-L Drilling Company v. Northern Propane Gas Co., supra. In other words, if a fact issue exists whether a fire caused the explosion or whether the explosion caused the fire, then the trial court was correct in refusing to instruct a verdict for appellant.

In order for appellant to be found liable on the policy of insurance, the appel-lee had to show that his losses were the result of a “hostile fire” caused explosion. Mr. Calhoun testified as follows:

“Q Was part of the house, as reflected in these photographs, burned or charred?
A Yes. The whole exterior at the bottom where it blew everything out of the bottom, it was very evident that the explosion occurred under the house. All the insulation was scorched on the sides. There was definite evidence of fire. I presume that the force of explosion blew the fire out and, thank God, probably saved our lives doing it.”

Although there was no direct evidence whether the explosion was caused by a “hostile fire”, an issue of fact thereof may be raised by circumstantial evidence. See 3 McDonald, Texas Civil Practice § 11.28.3 (1970). Taking the above testimony together with the facts in evidence of charred and burned wood underneath the house where the butane lines feed into the house, and the charred insulation in the house, we therefore conclude that a fact issue did exist whether the losses sustained by the plaintiff were the result of a “hostile fire” caused explosion. Appellant’s first point of error is overruled.

In appellant’s second point of error, it is contended that the trial court erred in submitting to the jury, over appellant’s objection, Special Issue No. 1, because such issue did not- ask the ultimate question about the perils covered by an alleged policy issued by appellant.

It appears, however, that appellant has failed to properly perfect this point on appeal. Appellant filed its “Defendant’s Objection and Exceptions to the Charge of the Court”. But these objections are not shown to have been presented to the Court for its ruling and endorsement thereon under Rule 272, T.R.C.P.

We hold, therefore, that the failure of appellant to obtain the trial court’s ruling and endorsement on the objections to the court’s charge as required by Rule 272 does not preserve those objections for appellate review. Coastal States Crude Gathering Company v. Williams, 476 S.W.2d 339 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.); Long v. Smith, 466 S.W.2d 32 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.); Blackmon & Associates Inc. v. Palmer Bldg. Sup. & Spec., Inc., 463 S.W.2d 228 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.); Rule 272, supra. Appellant’s second point of error is overruled.

In appellant’s third point of error, it states that the trial court erred in awarding attorney’s fees to appellee in its judgment under the terms of Texas Ins.Code Ann. articles 6.13 and 3.62 (1963). This is so, it is argued, because the loss suffered by plaintiff was not a total loss by fire of property insured, as required by article 6.13, in order for the same to be a liquidated demand; nor was the appellant a life insurance company, or accident insurance company, a life and accident insurance company, a health and accident insurance company, or a life, health or accident insurance company as required by article 3.62.

Appellee admits in his brief that his right to recover attorney’s fees is not based on Article 3.62, supra, which admittedly only applies to life, health and accident policies. Therefore the question before us is whether Article 6.13, supra affords any basis for awarding attorney’s fees to plaintiff. Article 6.13 provides in part as follows:

“A fire insurance policy, in case of a total loss by fire of property insured, shall be held and considered to be a liquidated demand against the company for the full amount of such policy. The provisions of this article shall not apply to personal property.”

This statute does not provide for attorney’s fees, but provides that a fire insurance policy will be held and considered to be a liquidated demand when there is a total loss by fire of the property insured. The jury in answer to Special Issue No. 3, of which there is no complaint by appellee, found that the damages caused to plaintiff’s house by reason of a fire was not a total loss. Because there was not a total loss, such statute has no application here. Appellee argues that this case is governed by Home Ins. Co. v. Boatner, 218 S.W. 1097 (Tex.Civ.App.—San Antonio 1920, writ dism’d). Attorney’s fees were awarded in that case on a recovery of a fire insurance policy, but the case is not in point because there was a total loss by fire of the insured premises. There is also no indication in Boatner of the basis, contract or statute, upon which the attorney’s fees were awarded. Appellant’s third point of error is sustained.

Therefore, the judgment of the trial court with respect to liability of appellant on its contract of insurance should be affirmed and the judgment with respect to attorney’s fees should be reversed and rendered. That part of the judgment of the trial court that assesses all costs against the appellant is reformed, and judgment is here rendered that 3/4ths of the costs in the trial court is hereby assessed against the appellant, and the remaining V-tth of the costs is hereby assessed against the appellee. The costs incurred in this Court are taxed in the same proportion.

The judgment of the trial court is affirmed in part and reversed and rendered in part.