author: WALKER, Presiding Judge.

text:
    Daniel A. STANFORD, Jr., Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    July 15, 1976.
    Certiorari Denied by Supreme Court Sept. 7, 1976.
    Ronald D. Krelstein, Memphis, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Robert H. Roberts, Advocate Gen., Nashville, Waymon Fred Axley, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

WALKER, Presiding Judge.

The appellant, Daniel A. Stanford, Jr., appeals in error from his conviction in his non jury trial December 12,1975, for possession of a controlled substance, marijuana. The trial judge imposed punishment of a fine of $50 and ten days in jail. The sole assignment of error contends the court erred in overruling the appellant’s plea in abatement. By this he urges that the entry of an order nolle prosequi in the municipal court of the City of Memphis and his subsequent indictment and trial were unlawful.

The facts for the trial judge’s consideration on the plea in abatement were stipulated. The appellant was arrested September 24, 1974, for unlawful possession of marijuana. He was arraigned in municipal court and his case was set for trial February 5, 1975. His attorney notified the prosecutor that there would be a trial on the merits. He appeared that day with his witnesses and executed a written waiver of his rights, waiving indictment and jury trial. At that time the city prosecutor moved the court to enter an order nolle prosequi without stating his reasons for it. The appellant objected and asked the court to require the prosecutor to state his reasons for entering the order nolle prosequi.

The city judge granted the request for a nolle prosequi without any proof being heard and without any witnesses being sworn. (The stipulation does not say whether or not the prosecutor in fact gave any reasons before the court granted his motion.)

The stipulation continues to show that on March 21, 1975, the grand jury returned an indictment for unlawful possession of a controlled substance which indictment arose out of the arrest of September 24,1974, and was for the same offense for which the nolle prosequi was entered.

The plea in abatement charges that the dismissal of the municipal court prosecution and the subsequent indictment deprived the appellant of his right to a speedy trial and to due process.of law under Article I, Section 9 of the Tennessee Constitution, and the sixth and 14th amendments to the United States Constitution.

In his contention that his right to a speedy trial was denied, the appellant relies on Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). There a nolle prosequi was entered over Klopfer’s objection with leave to reinstate the prosecution. He had been indicted, a mistrial had resulted and the case had been continued another term. Eighteen months after indictment the prosecutor entered a nolle prosequi the effect of which was to place Klopfer in legal limbo unable to obtain a dismissal or to have the case restored to the calendar for trial.

In the case before us, the length of delay between the initial arrest and the entry of the nolle prosequi was approximately five months. The appellant was promptly indicted within six weeks after the dismissal. There was no suspension of proceedings as a result of the nolle prosequi as in Klopfer. The prompt indictment distinguishes this case from Klopfer. The appellant’s right to a speedy trial was not denied him.

Although the plea in abatement does not raise the question of double jeopardy, the appellant’s brief urges it. The witnesses were not sworn and jeopardy had not attached in the municipal court. State v. Daniels, Tenn.Cr.App., 531 S.W.2d 795 (1975).

The plea in abatement and the stipulations do not set out grounds for due process violations.

Chapter 62, Public Acts of 1971, confers jurisdiction on municipal courts in counties having a population over 600,000 to try misdemeanors on pleas of guilty and on waiver of indictment or presentment.

After an indictment is found, no criminal prosecution can be dismissed, discontinued or abandoned without leave of the court. TCA 40—2101. Although the statute is directed to cases after indictment, in State v. D’Anna, Tenn.Cr.App., 506 S.W.2d 200, we considered the dismissal of an arrest warrant by entry of an order nolle prosequi in the general sessions court on application of the district attorney general. We held that whether to enter an order nolle prosequi and dismiss a criminal case was up to the district attorney general and the court. After such an order, the state, acting through its district attorney general, had the unquestioned right to commence new prosecutions.

Here the municipal judge by granting the motion assented to the dismissal of the prosecution in his court. The record shows no error in his dismissal or the subsequent prosecution.

The appellant argues that the prosecutor was unethical and violated American Bar Association Standards Relating to the Prosecution Function in dismissing the municipal court prosecution and indicting the appellant. The record does not sustain these claims.

The trial court did not err in dismissing the plea in abatement.

Affirmed.

DWYER and O’BRIEN, JJ., concur.


source: Caselaw Access Project

author: DWYER, Judge.

license: Public Domain

text:
    Mark Allen DEAL, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    July 27, 1976.
    Certiorari Denied by Supreme Court Sept. 7, 1976.
    Robert Payne Cave, Greeneville, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., Etrula R. Trotter, Asst. Atty. Gen., Nashville; Heis-kell H. Winstead, Dist. Atty. Gen., Rogers-ville, for defendant in error.
   OPINION

DWYER, Judge.

The sufficiency of the evidence and the court’s failure to charge as requested on circumstantial evidence are the questions presented in this appeal from a conviction for committing the offense of burglary in the third degree, T.C.A. 39-904, with resulting punishment of confinement for not less than three years nor more than six.

The Ratcliff Pharmacy in the City of Greeneville was burglarized in the early morning hours of April 8, 1975. The burglary of the store was accomplished by two male whites who were observed by a still-watch officer getting out of a dark green Mustang, approaching the pharmacy, and breaking out the glass door with tire tools. The officer observed the Mustang occupied by two other individuals drive off and before they proceeded to the store, they broadcast a description of the car and requested arrest of the two occupants.

The observing officer then entered the store and apprehended two male whites identified as Randy Whitehead and Kail Hazelwood. They both were crouching behind a counter in the store and had both suffered cuts on their hands. A pillowcase-type bag was on the floor almost full with drugs. The plaintiff-in-error here was arrested a few blocks from the store in the Mustang. He was accompanied by a Terry Guy.

In a statement admitted into evidence the plaintiff-in-error acknowledged being with Whitehead and Hazelwood; that they had arrived in Greeneville on the way to Knoxville; that they decided to hit a drug store in Greeneville; that they drove around a while and picked one out (Ratcliff); that he was driving his mother’s Mustang; that when the other two got out with tire tools and the bag, he was to await around back for them.

The plaintiff-in-error, testifying in his own behalf, acknowledged all of the above to be true except he maintained he had no choice but to drive them; that he would not have left them because they were friends and that he stayed there to help them if he could.

We think under the narration of the facts as outlined the evidence is sufficient to sustain this verdict without any extensive elaboration. It is obvious that the jury felt from the facts he was an active participant in the burglary. He has not shown here that the evidence preponderates against his guilt and in favor of his innocence. Yearwood v. State, 2 Tenn.Cr.App. 552, 455 S.W.2d 612, 614 (1970). The assignment as to the evidence is accordingly overruled.

With the evidence here, as in most all cases, both direct and circumstantial, the court erred in not charging the law on circumstantial evidence when requested. State v. Thompson, Tenn., 519 S.W.2d 789, 792 (1975). Under the facts here, however, where the plaintiff-in-error, through testimony, inculpates himself in the burglary, we find the error to be harmless. T.C.A. 27 — 117. The deducible fact to have been determined by the secondary facts was his participation. This was conveniently made directly evident by his testimony. The only element left for the jury was his intent under these facts. To have given the charge would not have been of any necessary aid to the jury in evaluating the evidence in view of the testimony as given by the plaintiff-in-error. This assignment is overruled.

The judgment is affirmed.

GALBREATH, J., and SAM L. LEWIS, Special Judge, concur.


author: SAM D. JOHNSON, Justice. POPE, Justice REAVLEY, Justice.

text:
    John E. FOSTER, Petitioner, v. LAREDO NEWSPAPERS, INC., Respondent.
    No. B-5747.
    Supreme Court of Texas.
    July 14, 1976.

      Jacob G. Hornberger, Laredo, for petitioner.
    Mann, Castillon, Freed & Kazen, George P. Kazen, Laredo, for respondent.
   SAM D. JOHNSON, Justice.

This libel action instituted by John E. Foster against Laredo Newspapers, Inc. affords this court an opportunity to interpret recent rulings of the United States Supreme Court that establish differing standards of care applicable to various classes of defamation plaintiffs. The trial court rendered a take-nothing summary judgment in favor of the defendant Newspaper and the court of civil appeals affirmed. 530 S.W.2d 611. We reverse and remand the case for trial.

The plaintiff Foster is a licensed civil engineer engaged in private engineering practice in Laredo, Texas. Additionally, Foster is the duly elected county surveyor of Webb County. He also has been regularly hired by the County as a private consulting engineer to perform specific projects. One such private consulting project involved the investigation by Foster of a flooding problem in a subdivision known as Del Mar Hills. On June 17, 1973 an article printed in the Laredo Times newspaper in connection with the flooding problem made the following references to Foster:

“The Rice development official said the flooded area in question was platted by Jack Foster, who doubles as a consultant engineer for Webb County.
“Foster has been handling numerous engineering jobs for the Commissioners Court on a consultant basis involving road improvements, some paving, park recreational work and drainage problems in Del Mar Hills.”

The article resulted from a recent flooding incident and an appearance before the commissioner’s court of Webb County by a resident of Del Mar Hills complaining of the flooding problem in his subdivision. Following the meeting of the commissioner’s court an initial article appeared in the Laredo Times covering the court hearing on the flooding problem. One week later the Newspaper published a follow-up article on the flooding problem, and it was this second article which contained the allegedly libelous statements upon which this action is based. The second article was prompted by a contractor engaged in development of the subdivision who complained to the Newspaper that the first article left a misleading impression that the flooding problem existed throughout Del Mar Hills. The article quoted the contractor’s statements at length with regard to the nature of the flooding and his opinion that the County should solve the flooding problem. The statement in the article that Foster platted the flooded area was false.

Foster filed this action against Laredo Newspapers, Inc. alleging that the article was libelous because (1) it attributed to him “direct responsibility for the severe flooding of homes located in said Del Mar Hills, thereby indicating that [Foster’s] work was of inferior and unsatisfactory quality,” and (2) the phrase “who doubles as consultant engineer for Webb County” used in the article indicated that Foster “was performing services for the County of Webb and other parties when a direct conflict of interest between the said County and other said parties existed, and that therefore [Foster] was guilty of unethical and illegal conduct.” Foster sought $250,000 as damages for the allegedly libelous statements and an additional $125,000 punitive damages.

The Newspaper filed a motion for summary judgment on the grounds that Foster is either a “public official” or “public figure” as defined by the Supreme Court of the United States in the line of decisions beginning with New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and consequently there could be no liability without a showing of “actual malice.” The Newspaper further contended that the undisputed evidence in the record negated a finding of “actual malice.”

The trial court sustained the Newspaper’s motion for summary judgment and the court of civil appeals affirmed holding that “Foster clearly falls within the most restrictive definition of a ‘public official’ or a ‘public figure,’ and we hold that he was both a public official and a public figure as those terms are defined by the courts of this state and of the United States.” 530 S.W.2d 611 at 616. The court further held that the summary judgment proof “establishes as a matter of law that such publication was not made with malice as that term is defined in the applicable state and federal court decisions.” 530 S.W.2d 611 at 619.

Foster’s principal points of error attack the holding of the court of civil appeals (1) that he was either a “public official” or “public figure,” and (2) that the summary judgment proof negated the existence of a fact issue with respect to the question of malice. The initial and crucial question is whether the court of civil appeals correctly classified Foster as a “public official” or “public figure.”

I. PUBLIC OFFICIAL

In New York Times Co. v. Sullivan, supra, the Supreme Court of the United States, for the first time, considered the extent to which the constitutional protections for speech and press limit recovery in a libel action brought by a public official against critics of his official conduct. The plaintiff, an elected city commissioner whose duties included supervision of the city’s police department, brought suit in a state court alleging that he had been libeled by an advertisement printed in the New York Times newspaper. The advertisement included statements, some of which were false, about action by the city police directed against students who participated in a civil rights demonstration and against a leader of the civil rights movement. Following a jury verdict for the plaintiff and affirmance by the state supreme court, the case was reviewed by the Supreme Court of the United States which reversed and remanded holding that the constitutional guarantees of the First and Fourteenth Amendments require “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” [Emphasis added.] 376 U.S. 254 at 279-80, 84 S.Ct. 710 at 726. In so holding the Court recognized “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” 376 U.S. 254 at 270, 84 S.Ct. 710 at 721. The Court further reasoned that “[a] rule compelling the critic of official conduct to guarantee the truth of all his factual assertions — and to do so on pain of libel judgments virtually unlimited in amount — leads to ‘self-censorship.’ ” 376 U.S. 254 at 279, 84 S.Ct. 710 at 725.

In New York Times the Court did not attempt to define the “public official” and “official conduct” concepts, but left determination of the scope of these concepts for future cases. Further explanation of the “public official” concept was then provided by the United States Supreme Court in Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966). The plaintiff in Rosenblatt was not an elected official but, rather, a former supervisor of a county recreation area who was employed by and directly responsible to the county commissioners. His libel action was brought against a local newspaper for publication of a column that allegedly criticized the financial management of the recreation area while it was under the plaintiff’s supervision. In deciding whether to classify the plaintiff as a public official, the Court set forth the competing values that must be weighed and formulated a broad definition of the “public official” concept. First, the Court emphasized that there is a strong interest in debate on public issues and about persons who are in a position to influence the resolution of those issues.

“Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized.” 383 U.S. 75 at 85, 86 S.Ct. 669 at 676.

Secondly, the Court recognized that “[sjociety has a pervasive and strong interest in preventing and redressing attacks upon reputation.” In balancing society’s interest in protecting the reputations of its citizens and the constitutional values of free speech and press, the Court unmistakably concluded that the “public official” designation does not apply to all government employees. Rather, the designation applies “[wjhere a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees.” [Emphasis added.] 383 U.S. 75 at 86, 86 S.Ct. 669 at 676.

In determining whether Foster was a “public official” for purposes of the New York Times rule, two aspects of Foster’s relationship with the county government must be examined. Foster was, first, a private consulting engineer who was from time to time employed by the County and, second, he was the duly elected county surveyor.

The Newspaper contends that the New York Times rule is applicable because Foster was a “public official” in his capacity as a private consulting engineer employed by the County. The summary judgment proof shows that Foster was employed by the County as a private consulting engineer for numerous projects and, according to the county judge, Foster performed the large majority of the County’s engineering jobs. Nevertheless, Foster had no permanent engineering position with the County and it was undisputed that the County also hired other consulting engineers. Therefore, Foster must be treated as a temporary employee of the County and the applicability of the New York Times rule must be determined with reference to the particular engineering project discussed in the allegedly libelous article.

Foster’s involvement with the flooding problems in Del Mar Hills as a consulting engineer for the County dated back to April 1971 when he was employed by the commissioner’s court to conduct an inspection of the newly constructed streets and storm drainage system in Del Mar Hills. Subsequently, in May and June 1972 when residents of the subdivision complained to the commissioner’s court about recent flooding of their homes, Foster was employed to study the drainage problem and determine the availability of a federal grant to remedy the flooding problem. Finally, in June 1973 when a resident of Del Mar Hills again complained to the commissioner’s court about the recent flooding of his home, the court summoned Foster to appear before the court and advise it about the drainage problem.

We hold that the summary judgment proof failed to establish that Foster’s position as a consulting engineer possessed “such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees.” Rosenblatt v. Baer, supra, at 86, 86 S.Ct. at 676. The summary judgment proof showed that whatever public interest the flooding aroused was focused primarily on the commissioner’s court which was attempting to determine the County’s responsibility for the flooding problem. Although Foster occasionally reported his findings to the commissioner’s court at public meetings, the record fails to show that the presentation of his reports stirred up any significant, public interest. The apparent lack of public interest in Foster’s activities was undoubtedly attributable to the fact that Foster had little if any authority to exercise on behalf of the County. The commissioner’s court assigned Foster specific tasks, such as conducting a drainage study and determining the availability of a federal grant to solve the flooding problem, but the nature of these tasks, as described in the summary judgment proof, did not require that Foster exercise a significant amount of discretion. Furthermore, it does not appear that Foster could personally authorize the expenditure of public funds to solve the flooding problem, nor did he supervise any other employees of the County. Another fact that probably explains the lack of public interest in Foster’s activities was that Foster had very little public contact. There was apparently no public input with regard to Foster’s employment by the commissioner’s court to study the flooding problem. In addition, the tasks assigned to Foster did not require that he act in a representative capacity for the County or have any direct dealings with the public.

The Newspaper also urges that Foster was a “public official” under the New York Times rule in his capacity as elected county surveyor and that the allegedly libelous statements in the newspaper article were relevant to his fitness for that elected position. On the other hand, Foster points to the summary judgment proof which indicates that the office of county surveyor entails minimal responsibilities and has become virtually obsolete in recent years. According to Foster, he occupied the office as a matter of convenience to the County because the County was required by statute to elect a surveyor. Furthermore, Foster was paid no salary as county surveyor, and he had no staff provided by the County. During the seven and one-half years that he held the position Foster made an occasional patent survey for the County, but he performed no other duties in his official capacity-

Although the summary judgment proof certainly established that Foster was a member of the lower echelons of the County government, we note that the United States Supreme Court has not reserved the “public official” designation for high-level public officers alone. Time v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971) (deputy chief of detectives); St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968) (deputy sheriff); Beckley Newspapers v. Hanks, 389 U.S. 81, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967) (elected clerk of county criminal and circuit courts); Henry v. Collins, 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892 (1965) (county attorney). More important, the definition of “public official” in Rosenblatt v. Baer, supra, is keyed to the apparent importance of the official position and the public interest in such position. It may be presumed that a certain amount of public interest exists with regard to any governmental position if the general public selects the person who holds the position through the election process. In recognition of the special public interest in elected officials, the Supreme Court has held that the constitutional guarantees of free speech and press have their “fullest and most urgent application” to the election process. Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971). Finally, it cannot be doubted that the New York Times rule applies to any candidate for public office, even a candidate for a position such as county surveyor, at least during the course of the election campaign. It would be somewhat incongruous to hold that a candidate for public office is a public person during the campaign but loses that status upon taking office. We therefore conclude that Foster was a “public official” for purposes of the New York Times rule.

We hold, however, that the summary judgment evidence failed to establish the applicability of the New York Times rule because the allegedly libelous statements in the newspaper article did not clearly relate to Foster’s “official conduct” as county surveyor. It is undoubtedly true that the United States Supreme Court has interpreted the “official conduct” concept very broadly, but all of the public official defamation cases considered by the Court, except one, involved statements that referred to performance of official duties or fitness for office of government officials. In the instant case, however, the newspaper article containing the allegedly libelous statements made no express reference to Foster’s fitness for the office of county surveyor, nor was it concerned with Foster’s performance of his official duties. Instead, the article discussed Foster’s activities as “consultant engineer for Webb County.”

Nevertheless, the Newspaper seeks to invoke the New York Times rule on the grounds that the allegedly libelous statements in the article were germane to Foster’s fitness for the office of county survey- or. However, if the article contained no reference, implied or otherwise, to Foster’s position as county surveyor, it could not be said that the article related to his fitness for the office. If such is the instance, the allegedly libelous statements did not concern Foster's “official conduct” and the New York Times rule would not be applicable. The “public official” rule set forth in the New York Times case was not meant to protect reporting of matters that have at best a coincidental bearing on governmental affairs. Of course, there may be instances where the absence of an express reference to an individual’s official capacity is unimportant. Many public officials are so well-known in their communities that the general public automatically associates them with their official positions. In such instances an express reference in a newspaper article to the individual’s official capacity is unnecessary and the reference is implied. Based upon the summary judgment evidence presented we cannot conclude that the article in question contained any implied reference to Foster’s position as county surveyor. In particular, Foster has shown that the duties and responsibilities of the county surveyor were minimal and that he was not opposed in any election for the position.

Thus, a fact issue was raised as to whether the allegedly libelous statements in the newspaper article referred to Foster’s position as county surveyor. In order to establish the applicability of the New York Times rule the Newspaper must at least prove upon the trial of this case that the article impliedly referred thereto.

II. PUBLIC FIGURE

The New York Times rule, which previously had been restricted in application to “public officials,” was extended to cover “public figures” in Curtis Publishing Company v. Butts, and its companion case, Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). Butts involved publication of an article charging a well-known athletic director of a major university with having “fixed” a football game. Although the plaintiff was the university’s athletic director at the time the article was published, he was employed by a private corporation and not by the state itself. In Walker the allegedly libelous article charged the plaintiff with encouraging and leading rioters on a university campus in connection with a racial controversy. The Court stated that the plaintiff, who was a retired army general, “could fairly be deemed a man of some political prominence.” Although the Court could not agree upon an opinion in Butts and its companion, Walker, a majority of the Court held that the plaintiffs in both cases were “public figures,” and further held, through Mr. Chief Justice Warren’s concurring opinion, that the New York Times rule applies to “public figures” as well as “public officials.” Mr. Chief Justice Warren wrote:

“. . . it is plain that although they are not subject to the restraints of the political process, ‘public figures,’ like ‘public officials,’ often play an influential role in ordering society. And surely as a class these ‘public figures’ have as ready access as ‘public officials’ to mass media communication, both to influence policy and to counter criticism of their views and activities.” 388 U.S. 130 at 164, 87 S.Ct. 1975 at 1996.

Further elaboration of the public figure concept was provided by the Court in Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). The plaintiff in Gertz was an attorney representing a murder victim’s family in a civil suit against a police officer who was convicted for the murder. The basis for the libel suit was a magazine article in connection with the murder incident which falsely (1) implied that the plaintiff had a criminal record, (2) charged that the plaintiff was a “Leninist” or a “Communist-fronter,” and (3) identified the plaintiff as a former official of a Marxist organization. In determining whether Gertz possessed the necessary characteristics of a “public figure,” the Court observed that “public figures” fall into two general categories:

“In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.” [Emphasis added.] 418 U.S. 323 at 351, 94 S.Ct. 2997 at 3013.

The Court first concluded that the plaintiff did not fit within the category of individuals who are “public figures” for all purposes and in all contexts. The Court then turned to the question whether the plaintiff was a public figure with respect to the particular controversy giving rise to the defamation, and concluded:

“In this context it is plain that petitioner was not a public figure. . . . He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public’s attention in an attempt to influence its outcome.” [Emphasis added.] 418 U.S. 323 at 352, 94 S.Ct. 2997 at 3013.

There is nothing in the summary judgment evidence to indicate that Foster achieved pervasive fame or notoriety in the community. It appears that Foster certainly did not possess any greater fame or notoriety in his community than the plaintiff in Gertz who “served as an officer of local civic groups and of various professional organizations, and . . . published several books and articles on legal subjects.” 418 U.S. 323 at 351, 94 S.Ct. 2997 at 3013. We therefore hold, as did the Court in Gertz, that Foster did not achieve the status of “a public figure for all purposes and in all contexts.”

With regard to Foster’s status as a “public figure” within the context of the controversy over the flooding problem, our previous discussion of his role as a consulting engineer made clear that Foster did not assume a special prominence in the resolution of this controversy. Foster is clearly distinguishable from the plaintiff in Walker who, according to the Court, made a number of strong public statements related to federal intervention in racial matters and obtained wide publicity of his views. In addition, there is little resemblance between Foster and the plaintiff in Butts who was described by the Court as “a well-known and respected figure in coaching ranks” who may have attained “public figure” status by virtue of his position alone.

The summary judgment record does not indicate that Foster had any personal interest in the resolution of the flooding problem, and he remained strictly within his role as an adviser to the commissioner’s court. Consistent with his role as a private consulting engineer employed by the commissioner’s court, Foster did not attempt to influence the outcome of the flooding controversy through exposure of his personal opinions in the media. Similar considerations influenced the United States Supreme Court to hold that the plaintiff in Gertz was not a “public figure” within the context of that particular controversy:

“He [the plaintiff] played a minimal role at the coroner’s inquest, and his participation related solely to his representation of a private client. He took no part in the criminal prosecution of Officer Nuccio. Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so.” 418 U.S. 323 at 352, 94 S.Ct. 2997 at 3013.

In view of Foster’s limited participation in the controversy giving rise to the allegedly libelous newspaper article, we consider it evident that he “did not thrust himself into the vortex of this public issue, nor did he engage the public’s attention in an attempt to influence its outcome.” 418 U.S. 323 at 352, 94 S.Ct. 2997 at 3013. We therefore hold that the summary judgment evidence failed to establish that Foster achieved the status of a public figure within the context of the local controversy over the flooding in Del Mar Hills.

III. STANDARD OF CARE

Having held that the summary judgment proof failed to establish that Foster was a “public figure” or that the allegedly libelous statements related to his official conduct, we must now determine whether Foster’s right of recovery against the Newspaper as a private individual nevertheless depends upon the New York Times standard — knowledge of falsity or reckless disregard for the truth. The question whether the New York Times standard applies to private individuals such as Foster was first considered by the Supreme Court in Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). Although the majority of the Court could not agree upon an opinion in Rosenbloom, Mr. Justice Brennan’s plurality opinion did conclude that the New York Times standard applies in a libel action by a private individual against a licensed radio station for a defamatory falsehood relating to a matter of public or general concern.

Subsequently, in Gertz v. Welch, supra, a majority of the Court rejected the approach of the plurality opinion in Rosenbloom and held that states may define for themselves the appropriate standard of liability for a publisher or broadcaster of a defamatory falsehood injurious to a private individual “so long as they do not impose liability without fault.” 418 U.S. 323 at 347, 94 S.Ct. 2997 at 3010. The Court reasoned that “[t]his approach provides a more equitable boundary between the competing concerns involved,” and “recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation.” 418 U.S. 323 at 347-48, 94 S.Ct. 2997 at 3010. The effect of the Court’s holding that states may not impose liability without fault on publishers and broadcasters of defamatory falsehoods is to sanction a simple negligence standard as complying with the minimum requirements of the First and Fourteenth Amendments.

As a further limitation upon the right of private individuals to recover in libel actions against publishers or broadcasters of defamatory falsehoods, the Court held in Gertz that a private individual “who establishes liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury.” 418 U.S. 323 at 350, 94 S.Ct. 2997 at 3012. In so holding, the Court explained that the states’ interest in protecting the reputation of their citizens becomes more attenuated in the field of presumed and punitive damages, and the discretion of juries to award substantial sums as punitive damages poses a serious threat to the constitutional values of free speech and press.

The limitations imposed in Gertz upon the states’ right to secure compensation for injuries to reputation represent a minimum standard which the states are constitutionally bound to adopt. However, states retain the right to provide additional safeguards for the constitutional guarantees of free speech and press. Since Gertz was decided, two states have extended the New York Times standard to cover private individuals involved in matters of public concern. Walker v. Colorado Springs Sun, Inc., Colo., 538 P.2d 450 (1975), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1976) (adopting a slightly modified version of the New York Times standard); Aafco Heating & Air Con. Co. v. Northwest Pub., Inc., 321 N.E.2d 580 (Ind.App.1974), cert. denied, 423 U.S. 1025, 96 U.S. 1112, 47 L.Ed.2d 318 (1976). With respect to defamatory falsehoods about private individuals and relating to matters of legitimate public concern New York has adopted a “grossly irresponsible conduct” standard of liability. Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 379 N.Y.S.2d 61, 341 N.E.2d 569 (1975). However, the majority of courts in other jurisdictions where the question has been decided have adopted negligence as the standard of liability in defamation actions by all private individuals. Thomas H. Maloney & Sons, Inc. v. E. W. Scripps Co., 43 Ohio App.2d 105, 334 N.E.2d 494 (1974), cert. denied, 423 U.S. 883, 423 U.S. 883, 96 S.Ct. 151, 46 L.Ed.2d 111 (1975); Cahill v. Hawaiian Paradise Park Corporation, 543 P.2d 1356 (Haw.1975); Troman v. Wood, 62 Ill.2d 184, 340 N.E.2d 292 (1975); Gobin v. Globe Publishing Company, 216 Kan. 223, 531 P.2d 76 (1975); Jacron Sales Co., Inc. v. Sindorf, 276 Md. 580, 350 A.2d 688 (1976); Stone v. Essex County Newspapers, Inc., Mass., 330 N.E.2d 161 (1975); Taskett v. King Broadcasting Company, 86 Wash.2d 439, 546 P.2d 81 (1976).

The shortcomings of the New York Times standard are widely recognized. In order to recover in a defamation action under the New York Times standard a plaintiff must produce “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, supra, 390 U.S. at 731, 88 S.Ct. at 1325. The Supreme Court has noted the deficiencies of this strict standard:

“It may be said that such a test puts a premium on ignorance, encourages the irresponsible publisher not to inquire, and permits the issue to be determined by the defendant’s testimony that he published the statement in good faith and unaware of its probable falsity.” 390 U.S. 727 at 731, 88 S.Ct. 1323 at 1326.

The New York Times standard, of course, relates only to “public officials” and “public figures.” Private individuals, on the other hand, whether engaged in matters of public concern or not, involve quite different considerations. The First Amendment interest in vigorous reporting of the activities of “public officials” is clearly more compelling than the interest in reporting activities of private individuals because “[cjriticism of government is at the very center of the constitutionally protected area of free discussion.” Rosenblatt v. Baer, supra, 383 U.S. at 85, 86 S.Ct. at 675. Furthermore, application of the New York Times standard to “public figures” may be justified on the grounds that the state has a less substantial interest in protecting persons who have voluntarily exposed themselves to increased risk of injury from defamatory falsehoods. In contrast, private individuals are more deserving of protection because, as a class, they are less likely to seek public attention and comment. We therefore decline to extend the New York Times standard to actions by private individuals seeking to recover compensation for actual injuries.

We also decline to adopt an intermediate standard of liability such as gross negligence because it would not provide demonstrably greater protection to the media from self-censorship than a standard of ordinary negligence. The distinction between ordinary negligence and gross negligence in the defamation context is not entirely clear, and it is doubtful that the choice of one label rather than the other will significantly affect the evolution of constitutional defamation law. Limitations upon the right of recovery in defamation actions that are deemed necessary to protect publishers and broadcasters from an unreasonable degree of liability will undoubtedly be adopted by the courts regardless which label is used.

We hold that a private individual may recover damages from a publisher or broadcaster of a defamatory falsehood as compensation for actual injury upon a showing that the publisher or broadcaster knew or should have known that the defamatory statement was false. In addition, the liability of a publisher or broadcaster of a defamatory falsehood about a private individual may not be predicated upon “a factual misstatement whose content [would] not warn a reasonably prudent editor or broadcaster of its defamatory potential.” Gertz v. Welch, supra, at 348, 94 S.Ct. at 3011.

The negligence standard of liability coupled with the “actual injury” requirement established in Gertz provides a useful beginning point for the development of constitutional defamation law and has the capability of achieving a fair balance between the competing interests at stake. In light of our adoption of a negligence standard in defamation actions instituted by private individuals such as Foster, the summary judgment rendered in favor of the Newspaper must be reversed. The Newspaper’s motion for summary judgment sought to establish the applicability of the New York Times standard to Foster as a “public official” or “public figure” and then to negate the existence of any fact issue with respect to the New York Times standard. The Newspaper has not asserted a right to summary judgment upon a negligence standard. We therefore find it unnecessary to determine whether the summary judgment proof negated the existence of any fact issues with regard to negligence or to further elaborate upon the negligence standard adopted today.

The judgments of the trial court and of the court of civil appeals are reversed and the cause is remanded for trial.

POPE, Justice

(dissenting).

I respectfully dissent. John Foster was a public official when the article in question was published and actual malice was an essential element of the libel action. I cannot improve upon these reasons which are expressed by the opinion in the court of civil appeals:

It is undisputed from the record that (a) Foster is the public surveyor of Webb County, (b) such office is an elective office provided for under the laws of this state, (e) Foster’s name has appeared on the public ballot in Webb County on numerous occasions, and he has been elected to such office by the voters of Webb County on numerous occasions, (d) at the time of the alleged libel and for many years before, Foster was the county surveyor of Webb County.
It is also undisputed that Foster, over a period of years, had been employed by Webb County as the consultant engineer on various public projects, including construction of county swimming pools, development of recreational areas, drainage problems in the Del Mar Hills Subdivision, road improvements, jail house improvements, design of a children’s park, and work at a county dam. There is testimony that these projects covered the vast majority of all the major county projects during the last ten years and that Foster was the engineer in charge of such projects. It is clear from the record that Foster was hired by Webb County for these projects and was paid out of public funds for such work.
It is also clear that Foster had taken an active part in the particular activities giving rise to the defamation. The newspaper article in which the alleged libelous statement was made involved the problem of flooding in the Del Mar Hills Subdivision, which was a matter of considerable public interest in Laredo and in Webb County, and had resulted in citizen’s complaints and public meetings in Laredo. Such flooding problems had been the subject of a previous article in the Laredo Times which covered a public meeting of the Commissioner’s Court on June 11, 1973, at which time, a private citizen, Mr. Anderson, a resident of the Del Mar Hills Subdivision had complained about the flooding problem. This same citizen had previously complained to the Commissioner’s Court in 1972 about such floods and, as a result of such complaint, Foster was called in by the Commissioner’s Court to investigate and make a study of the drainage problem. Such study was made by Foster and he reported to the Commissioner’s Court in this regard. Foster was paid for such services by Webb County. When Anderson returned to the Commissioner’s Court a second time in June, 1973, Foster was again called by the Commissioner’s Court because of his familiarity with the problem and participated in the public meeting.
It would appear that Foster was not only involved in the particular controversy giving rise to the suit here involved but that his participation and involvement was connected with and arose out of his official duties and services for Webb County, either as a public official of Webb County or as a paid consultant engineer for such county.
In our opinion, Foster clearly falls within the most restrictive definition of a “public official” or a “public figure,” and we hold that he was both a public official and a public figure as those terms are defined by the courts of this state and of the United States. 530 S.W.2d 611, 615-616.

ON MOTION FOR REHEARING

REAVLEY, Justice.

I would affirm the judgment of the lower courts. The Constitution of Texas provides that the Legislature shall “prescribe the duties and provide for the election” of a County Surveyor “who shall have an office at the county seat . . .. ” Article 16, Section 44. Plaintiff is a public official as the elected County Surveyor of Webb County and the newspaper article, to the extent that it could be said to be defamatory, bears upon the plaintiff’s fitness for that office. I find no basis for our holding that the newspaper article itself must give notice of the office or performance of official duties of the plaintiff. Can it be the law that the Sullivan rule applies to the publication of a news article about an officeholder whose identity and office is not familiar to the general public — if, but Only if, the article itself reveals that the defamed person is an elected official? I regard this rule as contrary to the decisions of the United States Supreme Court.

GREENHILL, C. J., joins in this dissenting opinion.

      . Hereinafter referred to as the New York Times rule.

      . The Court stated: “We have no occasion here to determine how far down into the lower ranks of government employees the ‘public official’ designation would extend for purposes of this rule, or otherwise to specify categories of persons who would or would not be included. Nor need we here determine the boundaries of the ‘official conduct’ concept.” 376 U.S. 254 at 283 n. 23, 84 S.Ct. 710 at 727.

      .In Rosenblatt the Court left open the possibility that on remand the plaintiff could adduce proofs that he was not a “public official.”

      . Foster’s status as a temporary employee of the County is supported by two additional considerations: (1) it appears that Foster’s duties and responsibilities as a county employee varied considerably from one project to another; and (2) if there was any public interest in Foster’s employment with the County it would naturally tend to focus on Foster’s involvement in each particular engineering project.

      . It appears that Foster was not employed by the County on the date that the allegedly libelous newspaper article was printed. In Rosenblatt v. Baer, supra, the Court recognized that “there may be cases where a person is so far removed from a former position of authority that comment on the manner in which he performed his responsibilities no longer has the interest necessary to justify the New York Times rule.’’ 383 U.S. 75 at 87 n. 14, 86 S.Ct. 669 at 677. We deem it evident that Foster was not so far removed from his former position as a consulting engineer for the County with regard to the flooding problem as to render the New York Times rule inapplicable.

      . Tex.Rev.Civ.Stat.Ann. art. 5283.

      . In Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), the Court stated:
      “The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official’s fitness for office is relevant.” 379 U.S. 64 at 77, 85 S.Ct. 209 at 217. Also, in Patriot Co. v. Roy, supra, the Court suggested that the “official conduct” concept has been substantially diluted: “Indeed, whatever vitality the ‘official conduct’ concept may retain with regard to occupants of public office, cf. Garrison, supra, 379 U.S., at 72 n. 8, 85 S.Ct., at 215 [13 L.Ed.2d at 131], it is clearly of little applicability in the context of an election campaign.” 401 U.S. 265 at 274, 91 S.Ct. 621 at 626.

      . In Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 91 S.Ct. 628, 28 L.Ed.2d 57 (1971), the plaintiff, who was a mayor and candidate for county tax assessor, filed a libel action against a local newspaper as a result of an article which mistakenly stated that he had been indicted on perjury charges in a federal court. The article referred to the plaintiff as “local garage owner Leonard Damron” but did not mention that Damron was a mayor or a candidate for county tax assessor. The Court held that the New York Times rule was applicable but noted: “Both the trial judge on motion for new trial and the District Court of Appeal rested their conclusion that New York Times did not apply partly on the ground that the defamatory article nowhere mentioned the respondent’s status as mayor of Crystal River or as a candidate for county tax assessor. The respondent has not pursued that theory here.” 401 U.S. 295 at 300 n. 4, 91 S.Ct. 628 at 633.

      . The deposition testimony of the Newspaper’s city editor who wrote the article in question indicates that he did not associate the statements in the article with Foster’s qualifications for the office of county surveyor. According to the city editor, the sole purpose of the reference to Foster was to show that the County was aware of the flooding problem through Foster’s activities as a consulting engineer. The city editor made the following response to a question by plaintiffs counsel:
      “Q. In making the statement in the only daily newspaper published in this area that Mr. Jack Foster, whom you know to be a professional engineer, had so platted an area that it was subject to severe flooding, didn’t you realize, Mr. Arambula, that this would hurt his reputation and that it would mark his work as being inferior and unsatisfactory?
      “A. I would answer that negative, sir. The conversation here had nothing to do with Jack Foster. He [Mr. Rice, the contractor who was being interviewed] injected Jack into the conversation when this matter of the County being responsible and who should look out there and see what’s wrong and who should take action to provide a remedy for these people because as X recall in the conversation I asked Mr. Rice — I suggested to him that he should pose this problem to the Commissioner’s Court and again here he said, ‘well, you know, they know about these problems, they’re aware. . . . ’ ”

      . Although it is the task of the trial judge in the first instance to determine the existence of the privilege under the New York Times rule, Rosenblatt v. Baer, supra, 383 U.S. at 88, 86 S.Ct. 669, the trial court may submit to the jury fact issues relating to the existence of the privilege.

      . A quite different situation was presented in Greenbelt Pub. Ass’n v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970), where it was conceded that the plaintiff was a public figure in the community. The Court stated that “[t]his concession was clearly correct,” emphasizing the following factors: “Bresler was deeply involved in the future development of the city of Greenbelt. He had entered into agreements with the city for zoning variances in the past, and was again seeking such favors to permit the construction of housing units of a type not contemplated in the original city plan. At the same time the city was trying to obtain a tract of land owned by Bresler for the purpose of building a school. Negotiations of significant public concern were in progress, both with school officials and the city council. Bres-ler’s status thus clearly fell within even the most restrictive definition of a ‘public figure.’ ” 398 U.S. 6 at 9-10, 90 S.Ct. 1537 at 1539.

      . We use the term “private individual” as encompassing “public officials” whose official conduct is not the subject of the allegedly libelous statement.

      . Mr. Justice Blackmun’s concurring opinion in Gertz v. Welch, supra, stated that “the Court now conditions a libel action by a private person upon a showing of negligence, as contrasted with a showing of willful or reckless disregard.” 418 U.S. 323 at 353, 94 S.Ct. 2997 at 3014. Also, Mr. Justice Powell’s concurring opinion in Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 970, 47 L.Ed.2d 154 (1976), clearly implied that proof of simple negligence satisfies the minimal constitutional requirements: “Thus, while a State may elect to hold a publisher to a lesser duty of care, there is no First Amendment constraint against allowing recovery upon proof of negligence.”

      . “Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare.” Gertz v. Welch, supra, 418 U.S. at 345, 94 S.Ct. at 3009.

      . The Court added the following caveat in Gertz: “Our inquiry would involve considerations somewhat different from those discussed above if a State purported to condition civil liability on a factual misstatement whose content did not warn a reasonably prudent editor or broadcaster of its defamatory potential.” 418 U.S. 323 at 348, 94 S.Ct. 2997 at 3011. We interpret the caveat to mean that no liability may be predicated upon a statement whose content would not warn a reasonably prudent editor or broadcaster of its defamatory potential. See RESTATEMENT (Second) OF TORTS, § 580B, comment c at 28-9 (Tent.Draft No. 21, 1975). An editor or broadcaster who has taken reasonable precautions to assure that his statements wall not be injurious to reputation is no less deserving of protection from libel actions than one who has made a reasonable inquiry to determine the truth of his statements. With respect to the instant case, the summary judgment proof fails to establish that the allegedly libelous statements were insufficient to warn a reasonably prudent editor or broadcaster of their defamatory potential.


author: REAVLEY, Justice.

text:
    AMDEL PIPELINE INC., Petitioner, v. The STATE of Texas, Respondent.
    No. B-5767.
    Supreme Court of Texas.
    July 21, 1976.
    Rehearing Denied Sept. 29, 1976.

      Orgain, Bell & Tucker, John G. Tucker, Beaumont, Kleberg, Mobley, Lockett & Weil, M. Harvey Weil, Corpus Christi, for petitioner.
    John L. Hill, Atty. Gen., Austin, Robert R. Jespersen, Asst. Atty. Gen., Houston, for respondent.
   REAVLEY, Justice.

This case presents a question of the statutory authority of the State Parks and Wildlife Department to require those persons dredging materials from state owned tidal lands to obtain permits and to pay for spoil removed by the dredging.

Amdel Pipeline Inc. (Amdel), acting pursuant to a permit from the United States Army Corps of Engineers, removed materials which had silted into and filled the bottom of the approaches to its loading docks on the Neches River; the dredged material was deposited upon land owned by Amdel but subject to a perpetual spoil disposal easement of the United States. Am-del contends that existing statutes do not require it to obtain a permit from the State Parks and Wildlife Department (Department) to perform this work under these circumstances. Amdel further contends that it owes nothing to the Department or to the State for the spoil removed from the river bottom. The Department contends that Amdel may remove no material from these submerged lands except by approval of the Department and, in this case, by the payment of 25$ per cubic yard for the materials removed. The trial court sustained the position of the Department and rendered judgment that the State recover $28,-865.72 from Amdel. The Court of Civil Appeals held that the disposition of the cause depends upon the amount of certain elements in the dredged materials and, because that proof is absent from the present record, the case was remanded to the trial court for further development. 530 S.W.2d 647. We sustain Amdel’s position and render judgment in its favor.

Amdel owns and operates oil storage and ship terminal facilities on the Neches River near Port Neches and adjacent to the refinery of American Petrofina Company. The ship terminal facilities consist of three wharves or docks, one of which can accommodate large tankers. Tankers reach these docks through the Neches River Channel.

The Neches River Channel is a federal navigation project, approximately 40 feet deep and 400 feet wide, providing deep draft ship navigation from the Gulf of Mexico as far inland as the Port of Beaumont. Maintenance of this channel and project is the responsibility of the United States Army Corps of Engineers. In order to provide the local contribution and assure maintenance of the federal project, the Beaumont Navigation District has obligated itself to the United States to provide all easements for spoil disposal, to provide and maintain levees on all spoil disposal areas, and to provide “depths in berthing areas and local access channels serving the terminals commensurate with depths in related project areas.”

Amdel’s ship terminal facilities are located adjacent to the Neches River Channel at a sufficient distance to insure that ships moored to its docks do not obstruct navigation in the channel. The use of these dock facilities requires deep water between the channel and the dock. When Amdel acquired these facilities on July 1, 1973, it discovered that the water approach areas had become filled to an extent that blocked the movement of deep draft vessels. The Corps of Engineers was then engaged in a maintenance program to clear the Neches River Channel, which afforded Amdel the opportunity to engage the services of the dredging contractor when the operations reached the site of Amdel’s facilities.

When the Neches River Channel is dredged by the Corps of Engineers, the material dredged from the river bottom is placed on land near the river. There is no location in the river suitable for this material to be placed. The United States has been given permanent easement rights in areas along the river for spoil disposal in this manner. One of these spoil disposal areas of approximately 435 acres is located on a tract of land owned by Amdel and adjacent to its ship facilities. Under its easement the United States has the perpetual right to deposit spoil and other excavated matter from the channel. This spoil disposal area has been used for nothing except disposal of dredged material since December 23, 1935. Material dredged from the river bottom between Amdel’s docks and the Neches River Channel has on all occasions been placed in the same disposal area used by the Corps of Engineers.

In 1973 Amdel applied for and received a dredging permit from the Corps of Engineers to conduct the maintenance dredging of the area adjacent to its dock facilities. The dredging has been completed under the permit which was conditioned upon Amdel obtaining such permits as might be required under state law. The Texas Parks and Wildlife Department required Amdel to obtain a permit conditioned upon Amdel’s payment of 25<p per cubic yard for the spoil material removed from the river bottom. Amdel objected to the requirement that payment be made and insisted that the spoil material was worthless to Amdel and was no more than a nuisance to be removed.

Amdel desires to do additional dredging in the same area to open the sides of approach from the channel and permit ships to be moved toward its docks at an oblique angle rather than being brought abreast of the docks and shoved in at a 90 degree angle. The parties have agreed that the decision as to the authorization and consequence of the completed dredging will govern the proposed enlargement.

When the results of the 1973 dredging showed that 111,022 cubic yards of material had been dredged and placed on the spoil disposal easement, the Department billed Amdel for $28,865.72 (25<t per cubic yard plus sales tax). Amdel refused to pay and then filed this suit seeking a declaratory judgment that it is not obligated to pay the Department for the spoil under these circumstances. The State answered and filed a counterclaim for the above amount. The facts were stipulated, and both parties moved for summary judgment. The trial court granted the motion of the State and rendered judgment that Amdel pay to the Department the stated amount.

The Court of Civil Appeals held that Am-del could be charged for the removal of any gravel, shell or mudshell, as well as for any marl or sand of commercial value. Since the record does not show the amount of the several enumerated materials within the conglomerate spoil dredged from the river by Amdel, the cause was remanded for a new trial in order that this proof could be made. We respectfully disagree. The rules of the Department for the issuance of marl, sand and gravel permits define “fill materials” as “a conglomerate mixture of sand, shell, gravel and marl of such consistency and quality as to make it impractical to separate into any one or more of the above-named materials and which has a primary use and value as a fill material to increase the level of land area.” Amdel has made no objection and has raised no question about the particular contents of the dredged material. Amdel insists that it owes nothing— regardless of how many yards of marl or sand or mudshell might be in the spoil. We see no reason why the Department cannot sell the conglomerate mixture without separating the various materials. The difficulty we find with the Department’s position is more fundamental: it has no statutory authority to require Amdel to obtain a permit for the taking of these materials from the bottom of the Neches River under these circumstances.

The relevant statutes are now to be found in Chapter 86 of the Parks and Wildlife Code (Acts 1975, 64th Leg., Ch. 545, p. 1405). At the time this controversy and litigation were initiated, the statutes were codified as Vernon’s Ann.Civ.St. arts. 4051, 4052, 4053, 4053d, and art. 976 of the Penal Code. For purposes of our inquiry the legislative direction and authorization has not changed since 1911. The relevant portions of that 1911 Act are set forth in the margin. Various amendments were made subsequently: Acts 1911, 32nd Leg., 1st C.S., Ch. 7, p. 78; Acts 1919, 36th Leg., 2nd C.S., Ch. 74, p. 215; Acts 1925, 39th Leg., Ch. 183, p. 452; Acts 1963, 58th Leg., Ch. 248, p. 674. Over these years the previous authority of the Game, Fish and Oyster Commissioner was given to the Game, Fish and Oyster Commission in 1929, then to the Game and Fish Commission in 1951, and then to the Parks and Wildlife Department under the policy direction of the Parks and Wildlife Commission in 1963.

The statute has provided, as in Sec. 9 of the 1911 Act, that anyone who shall take or carry away” marl or sand, etc., or who “shall disturb” the same shall first obtain a written permit — unless the taking or disturbing is for a purpose “necessary or incident to navigation or dredging under state or federal authority . . . .” Sec. 86.002 of the Texas Parks and Wildlife Code now provides that no person may disturb or take marl or sand, etc., “for any purpose other than that necessary or incidental to navigation or dredging under state or federal authority . . . ” without first having acquired a permit. We must construe the sections of this legislation together and attempt to give full effect to all of its terms. Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66 (1920); Indemnity Ins. Co. of North America v. South Texas Lumber Co., 29 S.W.2d 1009 (Tex.Comm.App.1930); Columbia-Southern Chemical Corp. v. Corpus Christi Shell Co., 297 S.W.2d 191 (Tex.Civ.App.1956, writ ref’d n. r. e.).

We do not construe Sec. 9 of the original Act, where the exception for navigation or dredging appears, as being directed solely at the requirement of a permit to operate in these areas. The exception to the permit requirement expressly applies even though materials are removed by the operator. Nor do we construe the section to have the isolated effect of telling us whom shall suffer penal sanctions. The caption of the 1911 Act refers to “penalties for the violation of this Act” — indicating that there is no violation of any part of the Act where one, who removes marl and sand, does so in the course of operations that are necessary or incident to navigation or dredging under state or federal authority. Other sections of the 1911 Act make reference to limitations on the permit requirement. For example, See. 3 gives the Commissioner full charge pertaining to the sale or taking or disturbing of marl or sand, etc., “with such exceptions and under such restrictions and limitations as may be provided herein.”

We note that Attorney General’s Opinion WW-150, issued July 3, 1957, advised: “A permit from the Game and Fish Commission to dredge shell on lands heretofore patented to the Nueces County Navigation District is not a prerequisite to the removal of shell commercially from said lands so long as such removal is incidental to authorized navigational purposes.” The Commission was further advised that it had authority to issue permits for commercial shell dredging on lands patented to the Navigation District so long as the dredging did not interfere with the paramount use of the land for navigation purposes. On June 5, 1967 the Attorney General issued Opinion M-84 which advised the Parks and Wildlife Department that it had authority and duty to manage these elements “except the marl, sand, shells, mudshell, gravel, fish hatcheries and oyster beds that are disturbed for an authorized navigational purpose, and such purpose is incidental to and reasonably necessary in carrying out such navigation, or being disturbed by a lessee of the School Land Board in carrying out the purpose of the lease (whether for oil or gas production or other commercial or industrial use) and which disturbance of the marl, etc., is incidental to such purposes and reasonably necessary in carrying out such purposes.”

It is agreed in this case that Amdel’s operations were both necessary and incidental to navigation and were done under federal authority. The Department was entitled to be assured that Amdel’s operations met these statutory requirements. Having been given that assurance, the Department could impose no condition on its permit that was inconsistent with the statutory provision. It follows that the State has no claim against Amdel for the spoil material which has been dredged from the Neches River. Nothing that is said herein is intended to suggest any restriction upon the Department’s authority to protect oyster beds and fishing areas, as well as state owned property, from unnecessary harm.

The judgment of the Court of Civil Appeals is reversed. Judgment is here rendered declaring that Amdel Pipeline Inc. is not obligated to pay the Texas Parks and Wildlife Department for the spoil which was dredged from its slip and placed within the boundaries of Permanent Spoil Disposal Easement No. 2. Judgment is further rendered that the State of Texas recover nothing upon its counterclaim against Amdel Pipeline Inc.

      . The caption and named sections of Acts 1911, 32nd Leg., Ch. 68, p. 118, are as follows:
      An Act to provide for the protection of the fish and oysters within tide water limits along the Gulf coast of this State from the most interior point of tidewater seaward coextensive with the jurisdiction of the State and the fish in such fresh water lakes inland as may be owned by the State; and to provide for the sale and protection of all marl and sand of commercial value and all shells or mudshell that may be in or upon the bottoms of any lake, bay and shallow water, and in or upon all islands, reefs and bars that may be within the limits herein defined; and the placing of said islands, lakes and bays, and the shells, or mudshell, sand and marl that may be in or upon the said bottoms or in or upon the said islands, lakes, bays, reefs and bars under the jurisdiction and control of the Game, Fish and Oyster Commissioner for the purpose of selling and protecting the said shells, or mudshell, marl and sand; and providing that the proceeds arising from the sale of said shells, or mudshell, marl and sand, shall be credited to the Fish and Oyster Fund and be expended in the execution of this Act and in establishing fish hatcheries on the coast or elsewhere and in locating oyster beds, and reserving fresh water lakes from sale; and providing penalties for the violation of this Act, and appropriating to certain funds the proceeds from sale and fines arising under this Act, and declaring an emergency.

        Be it enacted by the Legislature of the State of Texas:

      SECTION 1. All of the islands, reefs, bars, lakes and bays within tidewater limits from the most interior point seaward coextensive with the jurisdiction of this State and such of the fresh water lakes within the interior of this State as may not be embraced in any survey of private land, together with all the marl and sand of commercial value, and all the shells or mudshell, of whatsoever kind that may be in or upon any island, reef or bar, and in or upon the bottoms of any lake, bay or shallow water, and also all fishing waters, fish hatcheries and oyster beds, within the jurisdiction and territory herein defined, are included within the provisions of this Act, and all such islands, reefs, bars, lakes, bays, shallow waters, and the marl, sand, shells, or mudshell and oyster beds and fishing waters and fish hatcheries, located as herein defined, are, for the purpose of this Act, hereby placed under the management, control and protection of the Game, Fish and Oyster Commissioner.
      * * * * * *
      SEC. 3. The Game, Fish and Oyster Commissioner is hereby invested with all the power and authority necessary to carry into effect the provisions of this Act, and shall have full charge and discretion over all matters pertaining to the sale, the taking, carrying away or disturbing of all marl or sand of commercial value, and all shells or mudshell and oyster beds and fishing waters, and their protection from free use and unawful (sic) disturbing or appropriation of same, with such exceptions and under such restrictions and limitations as may be provided herein.
      SEC. 4. None of the marl or sand or shells or mudshell included within the preceding sections of this Act shall be purchased, taken, carried away or disturbed except as provided in this Act, nor shall any oyster beds, fishing waters or fish hatcheries within the territory included in this Act be disturbed except as herein provided.
      SEC. 5. Any one desiring to purchase any of the marl and sand of commercial value and any of the shells or mudshell included within the provisions of this Act, or otherwise operate in any of the waters or upon any island, reef, bar, lake or bay included in this Act, shall first make written application therefor to the Game, Fish and Oyster Commissioner, designating the limits of the territory in which such person desires to operate. If the Game, Fish and Oyster Commissioner is satisfied the taking, carrying away or disturbing of the marl, sand or shells or mud-shell in the designated territory would not damage or injuriously affect any oysters, oyster bed, fish inhabiting the waters thereof or adjacent thereto, and that such operation would not damage or injuriously affect any island, reef, bar, channel used for frequent or occasional navigation nor change or otherwise injuriously affect any current that would affect navigation, he may issue a permit to such person after such applicant shall have complied with all regulations and requirements prescribed by said Commissioner. The permit shall authorize the applicant to take, carry away, or otherwise operate within the limits of such territory as may be designated therein, and for such substance or purposes only as may be named in the permit and upon the terms and conditions therein. No permit shall be assignable, and a failure or refusal of the holder to comply with the terms and conditions of the permit shall operate as an immediate termination and revocation of all rights conferred therein or claimed thereunder. No special privilege or exclusive right shall be granted to any person, association of persons, corporate or otherwise, to take or carry away any marl, sand or shell or mudshell from any territory nor to otherwise operate in or upon any island, reef, bar, lake, or bay included in this Act.
      SEC. 6. The Game, Fish and Oyster Commissioner, by and with the approval of the Governor, may sell the marl, sand and shells or mudshell included within this Act upon such terms and conditions as he may deem proper, but for not less than ten cents per cubic yard, and payment therefor shall be made to said Commissioner. The proceeds arising from such sale shall be transmitted to the State Treasurer and be credited to the fish and oyster fund, and may be expended by the said Commissioner upon itemized accounts sworn to by those performing the service or furnishing the material and approved by said Commissioner. The said accounts shall be filed with the Comptroller of Public Accounts, and he shall draw a warrant therefor upon the State Treasurer.
      * * * * * *
      SEC. 9. If any person, association of persons, corporate or otherwise, shall, for himself or itself, or for or on behalf of or under the direction of another person, association of persons, corporate or otherwise, take or carry away any of the marl, sand or shells or mudshell included in this Act, or shall disturb any of said marl, sand shells or mudshell or oyster beds or fishing waters, or shall fish in any fresh water lake or shall operate in or upon any of said places for any purpose other than that necessary or incident to navigation or dredging under State or Federal authority, without having first obtained a written permit from the Game, Fish and Oyster Commissioner for the territory in which such operation is carried on, such person, association of persons, corporate or otherwise, shall be deemed guilty of a misdemean- or, and upon conviction shall be fined in a sum of money not less than ten dollars nor more than two hundred dollars, and one-half of the proceeds arising from such fines shall be appropriated to the road and bridge fund of the county in which the conviction is had and one-half shall be appropriated to the fish and oyster fund.


author: POPE, Justice.

text:
    A. Donald DAVIES, Petitioners, v. Milton MEYER et al., Respondents.
    No. B-5687.
    Supreme Court of Texas.
    Sept. 29, 1976.
    Rehearing Denied Nov. 3, 1976.

      Golden, Potts, Boeckman & Wilson, Claude R. Wilson, Jr., and H. David Hern-don, Dallas, Texas, for petitioners.
    McCreary & Huey, Robert M. Huey, Austin, for respondents.
   POPE, Justice.

The single question presented by this appeal is whether under the factual development of this case, a church camp is exempt from ad valorem taxation as an “actual place of religious worship,” as that phrase is used in section 2, article VIII of the Texas Constitution and sections l, la, and 2a, article 7150, Texas Revised Civil Statutes. A. Donald Davies, Bishop of the Episcopal Diocese of North Texas, filed this suit to obtain a declaratory judgment that Camp Crucis, a one hundred fifty-five acre church camp, was exempt from taxation. The trial court after a non-jury trial, rendered judgment that the open-air chapel and an acre surrounding it as well as the minister’s residence with its surrounding acre of land were the only parts of the camp that were exempt. The basis for the judgment was that the plaintiff, who was charged with the burden of proof, failed to prove entitlement to an exemption to the remaining one hundred fifty-three acres. The court of civil appeals refused to hold that the evidence established as a matter of law that the entire tract was “an actual place of religious worship.” 528 S.W.2d 864. We affirm the judgments of the courts below.

The trial judge filed findings of fact and conclusions of law at the conclusion of the trial. The findings and record show that the petitioner A. Donald Davies is the Bishop of the Episcopal Diocese of North Texas; and in that capacity he is the record title owner of Camp Crucis. The camp consists of about one hundred fifty-five acres in Hood County, part of which has been developed into living, dining, educational and recreational areas. It has an open air chapel where church services are held during the camp sessions. The recreational facilities include a large athletic field, a swimming pool, tennis, volleyball and basketball courts. For sixty days during the summer months, wholesome church camp programs for various age groups are conducted on the property. The summer program includes daily religious services, religious education, crafts and recreation. During other times of the year the camp is used as a meeting and recreational facility for church groups, for leadership training, women’s retreats, couples retreats, clergy conferences, and for church picnics. Occasionally it is used by a local service club and a square-dance group. From a map introduced at the trial, it appears that approximately two-thirds of the acreage consists of natural vacant land.

The trial court’s conclusions include one which states that the burden of proof rests upon the claimant for an exemption from ad valorem taxes, that the open-air chapel is an actual place of worship, the minister’s residence is exempt and that the remaining one hundred fifty-three acres, after setting aside one acre around the two exempt places, are not exempt.

The court of civil appeals correctly held that claims for tax exemptions are strictly and narrowly construed. Hilltop Village, Inc. v. Kerrville Ind. Sch. Dist., 426 S.W.2d 943 (Tex.1968); River Oaks Garden Club v. City of Houston, 370 S.W.2d 851 (Tex.1963); City of Houston v. South Park Baptist Church, 393 S.W.2d 354 (Tex.Civ.App.1965, writ ref'd); City of Dallas v. Cochran, 166 S.W. 32 (Tex.Civ.App.1914, writ ref’d). The court of civil appeals also correctly ruled that the area of an acre around and including the chapel and the minister’s residence should be exempt. Our central question is whether the claimant proved as a matter of law that all one hundred fifty-five acres should be exempt.

What constitutes an actual place of religious worship as those words are used in the Constitution and statutes is a fact issue which the claimant has the burden to prove. In the case before us, the claimant failed to convince the fact finder that one hundred fifty-three acres of the camp were entitled to an exemption. We are unable to conclude that the entire camp from the undisputed evidence and as a matter of law should be exempt.

The term, worship, is defined in Webster’s New International Dictionary, 2d ed., as:

Act of paying divine honors to a deity; religious reverence and homage. Adoration or reverence paid to God, a being viewed as God, or something held sacred from a reputed connection with God.

That definition, and perhaps any definition may be inadequate to embrace all of what is meant by the word, “worship.” Certainly inspiration and a spirit or renewal may be captured by experiences with nature and the wilderness, but those experiences can also qualify as wholesome recreation which falls short of religious worship.

In a different context, but relevant to the definition of the constitutional and statutory phrase, this court wrote in Church v. Bullock, 104 Tex. 1, 109 S.W. 115 (1908):

As used in the Constitution the phrase “place of worship” specifically means a place where a number of persons meet together for the purpose of worshiping God. State v. Swink, 20 N.C. 492. The Century Dictionary gives this definition: “A building or part of a building set apart for any purpose — as a place of worship.” The worship of God is not prohibited in any place, but we are of the opinion that the spirit of the Constitution would include any place at which the worship might be indulged in so continuously and in such a manner as to give it the character of “a place of worship.”

There is a difference between a place which is used for religious purposes and a place of actual worship. It was held in Radio Bible Hour, Inc. v. Hurst-Euless Ind. Sch. Dist., 341 S.W.2d 467 (Tex.Civ.App.1960, writ ref’d n. r. e.) that the full time use of a building for the preparation of religious sermons, programs and the publication of a religious newspaper while religious in its purpose did not qualify the premises for exemption as a place of worship. A similar distinction was recognized in City of San Antonio v. Young Men's Christian Association, 285 S.W. 844 (Tex.Civ.App.1926, writ ref’d); see also, In re Walker, 200 Ill. 566, 66 N.E. 144, 147 (1902).

The Georgia ease of Leggett v. Macon Baptist Association, Inc., 232 Ga. 27, 205 S.E.2d 197 (1974), makes this distinction between religious uses and worship. The property that was the subject of that lawsuit was used as coordinating headquarters for forty-seven congregations which comprised the Macon Baptist Association. The property was used for administrative work, pastors’ conferences, seminars and regular religious services. The fact that religious work was conducted on the premises was not sufficient to entitle the property to a tax exemption as a place of worship.

Bishop Davies testified that the basic objective for Camp Crucis was to furnish religious education to children, but he went on to explain that the camp serves as a facility to nurture children as well as adults in the faith through study and worship. The rector of the camp said that the camp program included teaching, catechetical teaching, and the creation of a religious atmosphere in which unity and fellowship in the faith are incorporated into all activities of the camp. Upon the basis of that and similar evidence, the trial court could reasonably conclude that Camp Crucis instead of being used as an actual place of religious worship was used as a place for religious education. While worship includes teaching and education; education, even religious education, does not necessarily include worship.

The distinction between religious worship and religious education is recognized in Flathead Lake Methodist Camp v. Webb, 144 Mont. 565, 399 P.2d 90 (1965). The Montana Constitution exempted property used “for education purposes, places of actual religious worship . . . .” The basis for the exemption of the twenty-two acre church camp was that the property was used for educational purposes. The exemption was not granted because the camp was a place for religious worship.

It is not our holding that any program which is collateral to religious worship will defeat an exemption which would otherwise be allowed. Section 1 of article 7150 does not require that the place of worship be exclusively so used. Davis v. Congregation Agudas Achim, 456 S.W.2d 459 (Tex.Civ.App.1970, no writ). We only hold that the fact finder in this case was supported by evidence in the conclusion that the greater part of Camp Crucis was used for purposes other than religious worship. See North Idaho Jurisdiction of Episcopal Churches, Inc. v. Kootenai County, 94 Idaho 644, 496 P.2d 105 (1972).

Our petitioner Bishop Davies strongly relies upon the case of Morning Cheer, Inc. v. Board of County Commissioners of Cecil County, 194 Md. 441, 71 A.2d 255 (1950), in which an exemption from ad valorem taxes was allowed on thirty-five acres of land that was used for a religious retreat. The Maryland statutory exemption extended not only to the “House and buildings used exclusively for public worship,” but also to “the grounds appurtenant to such houses, buildings and parsonages and necessary for the respective uses thereof.” Section 1, article 7150, is not so broad. The Maryland statute also differed from the Texas statute in that it expressly limited the exemption to forty acres. The court, however, allowed the exemption to only thirty-five acres of cleared lands near the buildings. There are other differences between the facts in Morning Cheer and this ease. There is also the difference in the law of Texas with the limitation which the Texas Constitution and the Texas statute impose by the words “actual place” upon the phrase “of religious worship.”

Section la of article 7150 does not entitle Camp Crucis to an exemption. That section is a non-exclusive expression of what the term “actual places of religious worship” includes. It has several requirements and then adds this as an additional one: “and to effect accompanying religious, charitable, benevolent and educational purposes by the dissemination of information on a religious faith through radio, television and similar media of communication.” Camp Crucis is not used for that purpose. There has been no contention in the trial court or on appeal that Camp Crucis would be entitled to an exemption under the provisions of section 2a of article 7150, and we express no opinion concerning an exemption under that statute.

The judgments of the courts below are affirmed.

      . Sec. 2. All occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax; but the legislature may, by general laws, exempt from taxation public property used for public purposes; actual places or [of] religious worship, also any property owned by a church or by a strictly religious society for the exclusive use as a dwelling place for the ministry of such church or religious society, and which yields no revenue whatever to such church or religious society; provided that such exemption shall not extend to more property than is reasonably necessary for a dwelling place and in no event more than one acre of land;

      . The following property shall be exempt from taxation, to-wit:
      1. Schools and Churches — Public school houses and actual places of religious worship, also any property owned by a church or by a strictly religious society, for the exclusive use as a dwelling place for the ministers of such church or religious society, the books and furniture therein and the grounds attached to such buildings necessary for the proper occupancy, use and enjoyment of the same, and which yields no revenue whatever to such church or religious society; provided that such exemption as to the dwelling place for the ministers shall not extend to more property than is reasonably necessary for a dwelling place and in no event more than one acre of land.

      . 1(a). The term “actual places of religious worship” shall include property owned by a church or by a strictly religious institution or organization, including the personal property therein and the grounds attached to such buildings necessary for the proper use and enjoyment of same, used exclusively to support and serve the spread of a religious faith, and to effect accompanying religious, charitable, benevolent and educational purposes by the dissemination of information on a religious faith through radio, television and similar media of communication.

      .2a. Religious, educational and physical development associations. — That all property owned or used exclusively and reasonably necessary, in conducting any association engaged in the joint and threefold religious, educational and physical development of boys and girls, young men and young women, operating under a State or National Organization of like character, and not leased or otherwise used with a view to profit other than for the purpose of maintaining the buildings and Association, and all endowment funds of the above mentioned religious institutions, not used with a view to profit but for the purpose of maintaining the Association and buildings in doing religious work and for the educational or physical development of boys and girls, young men and young women, shall be exempt from taxation; provided that land property received by said institutions in payment and satisfaction of endowment fund loans or investments shall be exempt for two years only after foreclosure purchase of said land, and no longer.