author: SUMMERS, Chief Justice.

text:
    Barbara MINZE, d/b/a Big Sur Recreational Vehicle Manufacturing & Supply Company, Appellant, v. S. M. COON et ux., Appellees.
    No. 1237.
    Court of Civil Appeals of Texas, Tyler.
    June 14, 1979.

      Dennis A. Large, Houston, for appellant.
    William L. Schroeder, New Braunfels, for appellees.
   SUMMERS, Chief Justice.

Appellant, Barbara Minze, d/b/a Big Sur Recreational Vehicle Mfg. & Supply Co., instituted this suit against appellees, S. M. Coon and wife, Mrs. S. M. Coon, upon a sworn account for services rendered and performed and for goods, wares and merchandise sold and delivered; in the alternative, appellant sought recovery against ap-pellees upon quantum meruit. Both appel-lees, Mr. and Mrs. Coon, joined in filing an original answer, being an unsworn general denial. Appellee, S. M. Coon (without the joinder of appellee, Mrs. S. M. Coon), filed the following additional pleadings: (1) a first amended answer consisting of a written denial under oath that each and every item of the account is just or true; and (2) a counterclaim, entitled by appellee as “Original Cross-action,” against appellant, under Sections 17.41, 17.46 and 17.50, Texas Deceptive Trade Practices — Consumer Protection Act, Texas Bus. & Com.Code Ann. (1973).

On November 21,1977, the following proceedings were had in a trial before the court sitting without a jury: Trial was commenced with appellant putting on plaintiff’s evidence; upon appellant resting plaintiff’s case, appellees moved the court for a directed verdict; whereupon, the court answered he would give an opportunity for counsel to brief and submit authorities on this point and carry along the motion with the case. In response to the court’s inquiry, appellees’ counsel stated that he did not want to put on any other defensive matter as to plaintiff’s items, that appellant’s counsel had not had a chance to answer appellee S. M. Coon’s counterclaim and that any further testimony would come through in the counterclaim hearing at a subsequent date. Thereupon, the court gave 30 days for counsel to submit matters upon appellees’ motion and recessed the case to Tuesday, January 3, 1978, for consideration of matters raised in appellee S. M. Coon’s counterclaim. The record (as shown by the Statement of Facts) reflects this action by the court as follows:

“THE COURT: I would suggest then, Gentlemen, that subject to the ruling of the Court on Defendants’ Motion, and with the understanding that you will have thirty days to get in anything that you want the Court to consider, we will then recess this matter to consider the matters raised in the cross-petition, and this court will be in session in Comal County for non-jury matters on Tuesday, January 3rd, 1978. As far as I know you should be number one on the docket on that date. Get your pleadings in shape, whatever needs to be filed in response to the cross-action, and submit any cases to me, send me a Xerox copy of any ease you want me to consider on his motion.”

Although no further trial proceedings are shown by the statement of facts or transcript, the trial court on December 30, 1977 (without awaiting the recessed setting of the case on January 3, 1978) signed and entered the following judgment that appellant take nothing by her suit against defendant S. M. Coon:

“NO. 10,876
JUDGMENT
This the 21st day of December, 1977, in the above entitled and numbered cause, wherein BARBARA MINZE, D/B/A BIG SUR REC V. MFG. & SUPPLY CO. is Plaintiff and S. M. COON, is Defendant, came the parties by their attorneys, and submitted the matters in controversy, as well of fact as of law, to the court, without the intervention of a jury, and the pleadings, the evidence and the argument of counsel having been heard and fully understood, it is the opinion of the court that the plaintiff should, and it is therefore ordered, adjudged and decreed that the plaintiff take nothing by his suit, that the defendant go hence with his costs without day and that execution issue in his behalf for his said costs.
Signed and Entered this the 30th day of Dec., 1977.
/s/ ROBERT T. PFEUFFER
Judge Presiding”

Appellant has appealed from this judgment asserting three points of error. We do not, however, reach these points in view of the disposition we are compelled to make of the appeal.

For this court to accept this appeal, the court must of necessity have jurisdiction. Lack of jurisdiction is considered to be fundamental error with or without motion or assignment of error. Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 892 (1956); County of Harris v. Black, 448 S.W.2d 859, 860 (Tex.Civ.App.—Houston [14th] 1969, no writ); Plaster v. Texas City, 380 S.W.2d 137, 138 (Tex.Civ.App.—Tyler 1964, no writ).

In general, an appeal may be prosecuted only from a final judgment of the trial court. Art. 2249, Tex.Rev.Civ.Stat. Ann. For a judgment to be final, it must determine the rights of the parties and dispose of all issues involved so that no future action by the court will be necessary to settle and determine the entire controversy. Wagner v. Warnasch, supra. A judgment which does not dispose of all parties and issues in the pending suit is interlocutory and not appealable unless a severance of that phase of the case is ordered by the trial court. Stalco, Inc. v. Zero Refrigerated Lines, Inc., 390 S.W.2d 476, 477 (Tex.Civ.App.—San Antonio 1965, writ ref’d.); 4 McDonald, Texas Civil Practice, sec. 17.03.1 (1971).

An examination of the record shows that all of the parties and issues were not disposed of in the trial court’s judgment of December 30, 1977. No disposition was made of appellant’s claim against appellee, Mrs. S. M. Coon, and no disposition was made of appellee S. M. Coon’s counterclaim against appellant under the provisions of the Texas Deceptive Trade Practices — Consumer Protection Act, supra. Also, there is no severance order of record regarding these matters. Furthermore, the presumption of finality announced in North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.Sup.1966) is not applicable to the case at bar. The court in that case applied the presumption of finality “in the absence of a contrary showing in the record.” (Supra at 898). In the instant case, there is a contrary showing in the record that the judgment of December 30, 1977, did not dispose of appellee S. M. Coon’s counterclaim since the record shows that the court on November 21, 1977, recessed the hearing on same to January 3, 1978, and the record is devoid of any showing that such hearing was ever held or cancelled. In addition, under North East Independent School District v. Aldridge, supra at 897, the presumption of finality does not apply when the judgment is “intrinsically interlocutory in character” as in the instant case. Here, the judgment shows on its face that it does not dispose of appellant’s suit against appellee, Mrs. S. M. Coon, who failed to deny the sworn account pursuant to Rule 185, T.R.C.P.

Since the court’s judgment of December 30, 1977, was not a final judgment, this court is without jurisdiction to hear this appeal.

The appeal is accordingly dismissed.


source: Caselaw Access Project

author: GUITTARD, Chief Justice.

license: Public Domain

text:
    Raymond Burly COMBS et al., Appellants, v. FANTASTIC HOMES, INC., Appellee.
    No. 19839.
    Court of Civil Appeals of Texas, Dallas.
    June 14, 1979.
    Rehearing Denied July 11, 1979.

      Ted B. Lyon, Jr., Mesquite, for appellants.

      Molly Steele, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   GUITTARD, Chief Justice.

In this suit for treble damages under the Deceptive Trade Practices Act, Tex.Bus. & Comm.Code §§ 17.46 and 17.50 (Vernon Supp.1978), defendant’s motion for summary judgment was granted on the ground that plaintiffs’ own testimony by deposition showed that any representations to plaintiffs by defendant’s agents were not made with intent to deceive. The principal question before us is whether in view of the 1978 amendment to Rule 166-A(c) of the Texas Rules of Civil Procedure, plaintiffs’ failure to file any answer or other response to the motion in the trial court precludes our consideration of the question of sufficiency of the summary-judgment proof to support the judgment. We hold that under the amended rule we may consider the sufficiency of the proof to support the specific grounds of summary judgment stated in defendant’s motion, but may not consider plaintiffs’ contention that the summary-judgment proof raises other fact issues not pointed out to the trial court. On review of the depositions, we conclude that plaintiffs’ testimony does not conclusively negate defendant’s intent to deceive. Consequently, we reverse and remand.

The petition alleges that plaintiffs bought new homes from defendant in reliance on representations by defendant’s salesmen and officers that other houses built in the neighborhood would be of like kind and quality according to a general scheme of development, but that the value of plaintiffs’ homes decreased because defendant subsequently built houses of a substantially different character and lower value. Plaintiffs averred that defendant’s actions were “false, misleading, and deceptive” within Section 17.46(a) of the Deceptive Trade Practices Act and were also “unconscionable” within Section 17.50(a)(3) of the Act.

Defendant’s motion for summary judgment asserted that both of these sections of the Act apply only to misrepresentations made with intent to deceive and that such intent was conclusively negated by plaintiffs’ own depositions, which are quoted in the motion. Plaintiffs filed no answer or other response. The trial court granted the motion, and plaintiffs contend here that the depositions raise only a fact issue concerning defendant’s intent. Plaintiffs contend also that the record raises a fact issue of negligent representations, which is not negated by the motion for summary judgment. Defendant challenges our consideration of any of these issues on the ground that plaintiffs failed to point these out to the trial court by written answer or other response, as now required by Rule 166-A(e).

1. Consideration of Issues on Appeal

In this state of the record, we must first determine the effect of the 1978 amendment to Rule 166-A(c). Before that amendment, the party opposing a motion for summary judgment had no duty to respond to the motion or point out deficiencies in the summary-judgment proof. Without filing any response or even appearing at the hearing, the opposing party could raise on appeal the question of insufficiency of the summary-judgment proof to negate any material fact issue to be found in the record. Swilley v. Hughes, 488 S.W.2d 64, 67-68 (Tex.1972); Habern v. Commonwealth Nat’l Bank, 479 S.W.2d 99, 101 (Tex.Civ.App.—Dallas 1972, no writ). The opposing party could also present on appeal for the first time fact issues beyond the scope of the pleadings, but found by the appellate court to be raised by the summary-judgment proof. Womack v. Allstate Ins. Co., 156 Tex. 467, 296 S.W.2d 233, 237 (1956).

The evident purpose of the 1978 amendment was to preclude appellate consideration of questions not presented in the trial court. The pertinent provisions are found in the following two sentences of subdivision (c), in which we have emphasized the language added by the amendment:

The motion for summary judgment shall state the specific grounds therefor. Except on leave of court, the motion shall be served at least twenty-one days before the time specified for the hearing. .
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues as expressly set out in the motion or in an answer or any other response. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.

This amendment does not provide, as defendant would interpret it, that no issues shall be considered on appeal other than those presented to the trial court by the opposing party in his written answer or other response. It provides rather that only those issues shall be considered which were expressly set out “in the motion ” or in the answer or other response. “The motion” necessarily means the motion for summary judgment, because the same phrase is so used earlier in the second sentence of subdivision (c). Consequently, we interpret the amendment to mean that an issue may be considered on appeal if it was presented to the trial court either by the moving party in his motion or by the opposing party in a written answer or other response, but not otherwise.

Our difficulty in interpreting the amendment arises from the circumstance that a movant never asserts in his motion for summary judgment that an issue of fact exists because the very purpose of the motion is to negate the existence of any such issue. Then how can the rule be taken as meaning that an “issue” may be presented in the motion?

In our opinion the problem can be resolved only by interpreting “issue,” as used in the amendment, as having a broader meaning than the phrase “genuine issue as to any material fact,” used in that part of the original rule quoted above. . It must necessarily include a ground of summary judgment asserted by the moving party, that is, an “issue” presented negatively by the moving party as well as one presented positively by the opposing party. This interpretation is in harmony with the first sentence of subdivision (c), which provides: “The motion for summary judgment shall state the specific grounds therefor.” Consequently, we interpret the amended rule to mean that a summary judgment cannot be attacked on appeal on a question not presented to the trial court, either as a specific ground stated in the motion or as a fact issue presented by the opposing party in a written answer or other response. Accordingly, we hold that the opposing party, without filing an answer or other response, may raise for consideration on appeal the insufficiency of the summary-judgment proof to support the specific grounds stated in the motion, but that he may not, in the absence of such an answer or other response, raise any other “genuine issue of material fact” as a ground for reversal. In other words, the opposing party may challenge the grounds asserted by the movant, but he may not assert the existence of “issues” not presented to the trial court by either party. Of course the only prudent course for the opposing party, in any summary-judgment case, is to file a response specifying the fact issues to be tried, so as to leave no uncertainty in this respect.

This interpretation, in our opinion, is in harmony with the evident purpose of the amendment to limit questions on appeal to those presented to the trial court. It would not, however, authorize the trial court to grant a summary judgment by default for lack of a response in a case where summary-judgment proof is obviously insufficient to support the motion. Certainly, the Supreme Court did not intend this drastic a change in the established policy of confining the function of summary judgment to elimination of patently unmeritorious claims and untenable defenses. See Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex.1972); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952).

When this construction of the amendment is applied in the present case, it is clear that the motion for summary judgment did not attempt to negate the issue of negligent misrepresentation asserted in plaintiffs’ brief on this appeal, and, since plaintiffs did not present it to the trial court by written answer or other response to the motion, it cannot be considered here as a ground of reversal. On the other hand, defendant’s motion expressly undertook to negate any issue of intent to deceive. Consequently, we may consider plaintiffs’ challenge to the sufficiency of the summary-judgment proof to negate a fact issue in that respect, and we now turn our attention to that challenge.

2. Defendant’s Intent to Deceive

Defendant argues here, as it asserted in its motion for summary judgment, that plaintiffs have admitted in their respective depositions that defendant’s salesmen and officers did not intend to deceive them, and, therefore, that no genuine issue exists' with respect to any “false, misleading, or deceptive” act or practice within Section 17.46(a) or any “unconscionable conduct” within Section 17.50(a)(3) of the Deceptive Trade Practices Act. We conclude that the depositions do not establish lack of such intent as a matter of law. Each of the plaintiffs testified, in response to questions by defendant’s counsel, that they did not know what was in the minds of defendant’s representatives. They testified further that they did not think, either at the time they bought their homes or at the time they testified, that defendant’s salesmen and officers were attempting to deceive them concerning the understanding of those representatives of defendant’s plans for developing the neighborhood. Plaintiffs were not qualified to testify concerning defendant’s intent, since they could not know the state of mind of the persons with whom they dealt. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex.Civ.App.—Amarillo 1977, no writ); Medina v. Sherrod, 391 S.W.2d 66, 69 (Tex.Civ.App.—San Antonio 1965, no writ); 2 C. McCormick and R. Ray, Texas Law of Evidence, § 1428 (2d ed. 1956). Testimony concerning the intent of another is at best an opinion, and is not admissible in evidence. Graves v. Campbell, 74 Tex. 576, 12 S.W. 238, 239—40 (1889). A party is not necessarily bound to a fact which he admits only by way of opinion. De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95, 99 (1955) (point of impact of collision); Petit v. Klinke, 152 Tex. 142, 254 S.W.2d 769, 772 (1953) (accuracy of scales); McMath Co. v. Staten, 42 S.W.2d 649, 652 (Tex.Civ.App. — El Paso 1931, writ dism’d) (speed of vehicle). . As a general rule, the testimonial declaration of a party will not be given the force of a judicial admission and will not be held to bind him unless the statement is deliberate, clear, and unequivocal, and the hypothesis of a mistake is eliminated. Tex-Wis Co. v. Johnson, 534 S.W.2d 895, 901 (Tex.) (that party moved away from property claimed by adverse possession “about twenty or thirty years ago”).

In the light of these authorities we hold that the supposed admissions by plaintiffs in their depositions do not negate a fact issue concerning defendant’s intent to deceive them. So far as defendant’s brief shows, other evidence may have been available tending to show that plaintiffs were mistaken concerning such intent. Consequently, the trial court erred in granting the motion for summary judgment.

Judgment

For the reasons stated, plaintiffs’ motion for rehearing is granted, our former opinion is withdrawn, the judgment of the trial court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

      . A difficulty may arise with respect to a motion that fails to state specific grounds in view of holdings that such a motion may be sufficient in the absence of exceptions. Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 771 (Tex.1978). We need not determine how this difficulty should be resolved, but suggest that perhaps a motion in general terms allows the appellate court to consider any issue that would be negated by the general language asserted in the motion. Such an interpretation would encourage movants to comply with the requirement of specificity in Rule 166-A(c).

      . In support of the contention that intent to deceive is required by Sections 17.46(a) and 17.50(a)(3), defendant relies on our opinion in Singleton v. Pennington, 568 S.W.2d 367 (Tex.Civ.App.—Dallas 1977, writ filed). We assume for the purpose of this opinion that this contention is correct, since the summary judgment here cannot be supported if such intent is not required. Of course, further proceedings in this case will be governed by any decision of the Supreme Court on this question.


author: McCLOUD, Chief Justice.

text:
    FIRST NATIONAL BANK IN DALLAS, Appellant, v. P. John LOVE et al., Appellees.
    No. 5253.
    Court of Civil Appeals of Texas, Eastland.
    June 14, 1979.
    Rehearing Denied July 12, 1979.

      John M. Skrhak, Jr., Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellant.
    Dan W. Shieder, Jr., Dallas, Henry W. Simon, Jr., Fort Worth, Thomas A. Melody, Dallas, for appellees.
   McCLOUD, Chief Justice.

Plaintiff, First National Bank in Dallas, sued defendants, P. John Love, George Richard Holmes, and Elva J. Gant, as guarantors, pursuant to a written guaranty agreement, of a $50,000 indebtedness owed by a third party, Metroplex Properties, Inc. The three defendants, all officers of Metro-plex, executed identical individual guaranty agreements in connection with the $50,000 loan. Metroplex was placed in bankruptcy, and the $50,000 note was not paid. Based on the jury’s answer to a single special issue, the trial court rendered judgment relieving the guarantors of any liability. The Bank has appealed. We reverse and render.

The jury found that the Bank, at or prior to the time of the execution of the guaranty agreements, agreed to secure or provide long-term financing which would include the $50,000 note executed by Metroplex. The Bank did not secure or provide “long-term financing,” and the trial court found, based upon the jury’s verdict, a failure of consideration which induced defendants to enter into the guaranty contracts.

The written guaranty agreements unconditionally provided that guarantors would pay the Bank the “Guaranteed Indebtedness” (limited to $50,000 plus interest and attorney’s fees) in the event Metropolex defaulted.

Defendants introduced parol testimony, over the objection of plaintiff, that the Bank agreed to: (1) loan Metroplex $50,000 working capital, (2) loan additional funds needed to complete an unfinished building owned by the Bank following a foreclosure, which was encroaching on Metropolex’s property, and which would be sold to Metro-plex by the Bank and (3) provide or secure long-term mortgage financing for the loans made. Defendants testified that the parties agreed that after the loans were “wrapped” together in one mortgage, the individual guarantors would be released from the obligations imposed by the guaranty contracts.

Plaintiff contends there is no evidence to support the jury’s finding because the evidence admitted and relied upon by defendants violated the parol evidence rule. We agree. The questionable evidence is that prior to or contemporaneously with the execution of the guaranty agreements, the Bank agreed to secure or obtain long-term financing sufficient to include the $50,000 loan, and that at such time the defendants would be released from their obligations. The effect of the parol agreement is that defendants would never be liable on the written guaranty agreements, because no liability would attach until the Bank obtained or secured long-term financing, and once this condition was met, the guarantors would be released.

Defendants first argue the extrinsic evidence was admissible as a collateral agreement which was not inconsistent with and did not vary or contradict the express or implied terms or obligations of the written agreements. We disagree. The extrinsic evidence is inconsistent with the unconditional obligation to pay, in the event of default by Metroplex, expressed in the written agreements. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30 (1958).

Next, defendants contend the evidence was admissible under the exception which permits, under certain conditions, extrinsic evidence to show the real consideration for a written agreement. This exception to the parol evidence rule is not applicable when the recited consideration is contractual. The written agreements expressly state:

WHEREAS, Metroplex Properties, .Inc., hereinafter called Borrower, may from time to time become indebted to FIRST NATIONAL BANK IN DALLAS, a national banking association of the.City of Dallas, Texas, hereinafter called Bank:
NOW, THEREFORE, for a valuable consideration, receipt of which is hereby acknowledged, the undersigned, hereinafter, whether one or more, called Guarantors, jointly and severally, hereby guarantee to Bank the prompt payment at maturity of the Guaranteed Indebtedness, as that term is herein defined, this guaranty being upon the following terms and conditions: .

The instruments recite a contractual consideration, and that consideration cannot be varied or contradicted by extrinsic evidence. The actual lending of funds to Metroplex by the Bank constituted a contractual consideration. In a similar case, Frank L. Smith Tire Store v. Firestone Tire & Rubber Co., 68 S.W.2d 577 (Tex.Civ.App.—Austin 1934, writ ref’d), the guaranty agreement provided that Firestone would extend credit to a third party “from time to time in such amounts and upon such terms of credit as shall, in the judgment” of Firestone be determined to be proper. In a suit by Firestone against the guarantors, they contended there was a failure of consideration because Firestone also orally agreed to establish a warehouse and place the third party in charge. The court held the oral evidence was inadmissible because the recited consideration was contractual and could not be varied or contradicted. On motion for rehearing, the guarantors urged the court erred because under the written agreement the extension of credit to the third party was at the will of Firestone, and therefore, the contract was lacking in mutuality. The court stated that the actual extension of credit by Firestone, while the guaranty agreement was in force and effect, “clearly was a contractual obligation,” even though conditioned upon the will both of Firestone and the third party.

The written agreements in the instant case are continuing guaranty agreements and became binding upon the lending of the $50,000 by the Bank to Metroplex. The extrinsic evidence was not admissible. See also: Kane v. Union State Bank, 384 S.W.2d 358 (Tex.Civ.App.—Eastland 1964, writ ref’d n. r. e.); Saunders v. Alamo Soil Conservation District, 545 S.W.2d 249 (Tex.Civ.App.—San Antonio 1976, writ ref’d n. r. e.); Crompton-Richmond Co., Inc.—Factors v. Smith, 253 F.Supp. 980 (E.D.Penn.1966), aff’d 392 F.2d 577 (3 Cir. 1967); 33 A.L.R.2d 961 (1954); 23 Tex.Jur.2d, Evidence § 370; McCormick & Ray, Texas Evidence § 1613 (2d ed. 1956).

The trial court erred in admitting the extrinsic evidence. There is no competent evidence to support the jury’s finding.

The $50,000 note executed by Metro- ' plex provided for interest at a “fluctuating” rate of 1% per annum “above the base commercial rate of interest. . . . ” Plaintiff failed to properly prove its claim for interest.

Judgment is reversed and rendered in favor of plaintiff, First National Bank in Dallas, against defendants, P. John Love, George Richard Holmes, and Elva J. Gant, jointly and severally, for $50,000, the principal amount of the note, plus attorney’s fees of $5,000, being the amount of the “Guaranteed Indebtedness” under the guaranty agreements signed by the defendants.


author: RALEIGH BROWN, Justice.

text:
    Robert D. GEISER, Appellant, v. David LAWSON, Trustee, Appellee.
    No. 5296.
    Court of Civil Appeals of Texas, Eastland.
    June 14, 1979.
    Rehearing Denied July 19, 1979.

      James A. Moore, Houston, for appellant.
    Will G. Dickey, Little & Dickey, Houston, for appellee.
   RALEIGH BROWN, Justice.

This is a summary judgment case. David Lawson filed a trespass to try title suit against Robert D. Geiser to recover title and possession of property purchased at an execution sale. Summary judgment was rendered for Lawson. Geiser appeals. We affirm.

After defaulting on the payments of a promissory note, Geiser had a final judgment rendered against him. The judgment creditor obtained a writ of execution and a constable of Harris County levied on and sold four condominium units owned by Geiser, being units 4, 5, 7 and 15. At the sale, pursuant to the judgment, writ of execution and levy, Lawson, being the highest bidder, purchased the four condominium units. The constable executed a deed to units 4, 5, 7 and 15 to Lawson and because Geiser remained in possession, Lawson filed the instant suit.

Geiser answered this trespass to try title suit with only a general denial and no allegation that units 4, 5, and 6 were his homestead. Unit 6 is not involved in this suit. Geiser also failed to respond to Lawson’s notice of demand of abstract of title. Geiser neither answered nor filed any controverting affidavits in response to Lawson’s motion for summary judgment. Lawson’s motion was supported by affidavit to which was attached certified copies of (1) judgment upon which the writ of execution was issued; (2) writ of execution, levy and return; and (3) the constable’s deed.

By suing in trespass to try title, Lawson assumed the burden of proving title in himself to the property in question. It was incumbent upon him to recover on the strength of his own title and not on the weakness of Geiser’s title. Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226 (1961). To establish title, Lawson could (1) prove a regular chain of conveyances from sovereignty, (2) prove the superior title out of a common source, (3) prove title by limitation, or (4) prove prior possession and that possession had not been abandoned. Land v. Turner, 377 S.W.2d 181 (Tex.1964). His effort was to prove the superior title out of a common source, Geiser. Pearson v. Flanagan, 52 Tex. 266 (Tex.1879); Pullin v. Funderburg, 342 S.W.2d 63 (Tex.Civ.App.—San Antonio 1961, no writ).

The court in Atkinson v. Dailey, 238 S.W.2d 584 (Tex.Civ.App.—Amarillo 1951, no writ), discussing the passage of title at a sheriff’s sale, said:

Our courts have held that without proof of his power to sell, a sheriff’s or constable’s deed must be treated as a nullity. Leland v. Wilson, 34 Tex. 79; Kruegel v. Cobb, 58 Tex.Civ.App. 449, 124 S.W. 723, 727. In the case of Mills v. Pitts, 121 Tex. 196, 48 S.W.2d 941, 942, 84 A.L.R. 319, the Supreme Court said: “Nothing is better settled than that the authority of the sheriff to pass the judgment defendant’s title at a sale under foreclosure by decree of court rests upon the decree and the order of sale. It is for this reason that the purchaser must introduce in evidence the decree of foreclosure and the order of sale in order to establish a valid divestiture of title out of the judgment defendant through a judicial foreclosure and sheriff’s sale.

A summary judgment should only be granted when it clearly appears that a question of law is involved and there is no genuine issue of fact. Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972). The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952).

The summary judgment proof established the constable’s authority to pass Geiser’s title at the sale and established a valid divestiture of title out of Geiser into Lawson. As a matter of law, therefore, Lawson established his title.

Geiser contends that there was at least an issue of fact as to his homestead claim and argues that the court erred in recognizing Lawson’s title claimed by virtue of levy and execution on appellant’s homestead. Geiser also urges that the trial court erred in finding that Tex.R.Civ.P. 792 was mandatory and precluded him from an evidentiary hearing on the issue of homestead.

The instant case was tried after the effective date of the amended Tex.R.Civ.P. 166-A which states in part: “Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal . . .

The duty of the trial court, considering a summáry judgment matter and the review of its ruling by an appellate court, was stated to be in Dorbandt v. Bailey, 453 S.W.2d 205 (Tex.Civ.App.—Tyler 1970, writ ref’d n. r. e.):

[T]he trial court is charged with the duty of considering only the record as it appears before the court at the time of the hearing of the motion for summary judgment. Rule 166-A Texas Rules of Civil Procedure; Dipp v. Rio Grande Produce, Inc., 330 S.W.2d 700, 702 (Tex.Civ.App., El Paso, 1959, writ ref. n. r. e.) and cases cited therein; Womack v. I. & H. Development Company, Inc., 433 S.W.2d 937, 940 (Tex.Civ.App., Amarillo, 1968, n. w. h.).
The review of the ruling of a trial court, by an appellate court, will be made on the record that was before said court at the time the ruling was made, and will not, as a rule, consider matters outside of the record. 4 Tex.Jur.2d, p. 237, Sec. 743.

In the case at bar, the issue of the homestead character of the property was not expressly raised and presented to the trial court prior to the granting of the summary judgment. A person desiring to establish his right to a homestead must plead the existence of the homestead right. Campbell v. First Nat. Bank in Lubbock, 88 S.W.2d 1084 (Tex.Civ.App.—Amarillo 1935, writ ref’d). Geiser’s general denial did not put the homestead character of the property in issue. Under a plea of not guilty and without special pleading, Geiser could have interposed the defense of the homestead claim. Smith v. Simpson, 97 S.W.2d 522 (Tex.Civ.App.—Eastland 1936, writ ref’d).

As stated by the court in Brinkley v. Brinkley, 381 S.W.2d 725 (Tex.Civ.App.—Houston 1964, no writ):

Rule 789, T.R.C.P., provides: “Under such plea of ‘not guilty’ the defendant may give in evidence any lawful defense to the action except the defense of limitations, which shall be specially pleaded.”
Rule 788 merely provides that the defendant may file a plea of not guilty. The rule operates in the interest of the defendant, since it relieves him from pleading specially his various defenses, and under such plea he is given the right to give in evidence any lawful defense except the defense of limitations which must be pled specially. .

See also Cox v. Olivard, 482 S.W.2d 682 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.).

Whether the trial court erred in holding Tex.R.Civ.P. 792 was mandatory and precluded Geiser from an evidentiary hearing on the issue of homestead is immaterial.

Geiser having entered only a general denial to Lawson’s trespass to try title suit and not having answered nor filed any controverting affidavits in response to the motion for summary judgment cannot now complain that the court erred in failing to give consideration to a homestead claim. See Rose v. Carney’s Lumber Co., 565 S.W.2d 571 (Tex.Civ.App.—Tyler 1978, no writ); Tex.R.Civ.P. 166-A.

The court in Corder v. Foster, 505 S.W.2d 645 (Tex.Civ.App.—Houston (1st Dist.) 1973, writ ref’d n. r. e.), discussing the purpose of Tex.R.Civ.P. 791 and 792, said:

The purpose of Rules 791 and 792 of the Texas Rules of Civil Procedure, which specify the procedure for obtaining an abstract in writing of the claim or title upon which the opposing party relies, is to enable the person demanding such abstract to investigate the records and thereby determine the character of the instruments upon which the opposing party relies, so that an informed defense. may be prepared. Texas Company v. Lee, Tex.Civ.App., 135 S.W.2d 180, modified on other grounds, 138 Tex. 167, 157 S.W.2d 628. .. .

See also Davis v. Dowlen, 136 S.W.2d 900 (Tex.Civ.App.—Beaumont 1939, writ dism. jdgmt. cor.); Farhart v. Blackshear, 434 S.W.2d 395 (Tex.Civ.App.—Houston (1st Dist.) 1968, writ ref’d n. r. e.).

Geiser, by his pleadings, had failed to raise an issue as to a homestead claim at the time of the hearing on Lawson’s motion for summary judgment. Exclusion of such evidence at any subsequent hearing would be immaterial and thus harmless. Tex.R. Civ.P. 434.

We have considered and overrule all points of error. The judgment of the trial court is affirmed.


author: CORNELIUS, Chief Justice.

text:
    Henry E. GERDES, Jr., Appellant, v. Howard V. TYGRETT, Jr., Appellee.
    No. 8650.
    Court of Civil Appeals of Texas, Texarkana.
    June 19, 1979.

      Henry E. Gerdes, pro se.
    R. Gregory Lamb, Dallas, for appellee.-
   CORNELIUS, Chief Justice.

Howard V. Tygrett, Jr., an attorney, filed this suit against Henry E. Gerdes, Jr. for the recovery of attorney’s fees. The suit was filed as an action on sworn account for personal services, as authorized by Tex.R. Civ.P. 185. Attached to the verified petition was an itemized account of the services and the charges therefor, which after offsets and payments, totaled $750.35. Gerdes did not file a sworn denial of the account as provided by Rule 185, but filed only a general denial. Almost a year later Tygrett filed a motion for summary judgment. The motion asserted that summary judgment was authorized because Gerdes had failed to properly deny the sworn account, and further because, after this suit was filed, the parties had submitted their dispute to arbitration by the Fee Disputes Committee of the Dallas County Bar Association which had awarded Tygrett the full amount of the fees he claimed. Tygrett attached to his motion an affidavit supporting his claim, as well as copies of the arbitration agreement and the award. Gerdes did not file opposing affidavits but did file a “First Amended Answer” which contained general and specific denials together with a verification which asserted that the statements in the answer were true, and also that “. the allegations of Plaintiff’s Original Petition and attached account are false.” The trial court granted Tygrett’s motion for summary judgment based upon both the sworn account and the arbitration award. On appeal Gerdes contends only that the arbitration award is not binding upon him because the agreement to submit the dispute to arbitration was not signed by the attorneys for both parties as is required by Tex.Rev.Civ.Stat.Ann. art. 224.

The validity of the judgment need not rest upon the arbitration award. Ty-grett’s petition stated a cause of action on sworn account and complied fully with Rule 185. Gerdes did not deny the amount under oath and in the particular manner required by the rule, but filed only a general denial. In those circumstances he is not permitted to deny the plaintiff’s claim or any item included therein, and no genuine issue of fact remains as to the plaintiff’s right to recover. Aztec Pipe & Supply Co. v. Sundance Oil Co., 568 S.W.2d 401 (Tex.Civ.App. Houston-1st Dist. 1978), writ ref’d n. r. e. per curiam, 576 S.W.2d 780 (Tex.1978); Leyendecker v. Santa Rosa Medical Center, 533 S.W.2d 868 (Tex.Civ.App. Tyler 1976, no writ); Collins v. Ivey, 531 S.W.2d 357 (Tex.Civ.App. El Paso 1975, writ ref’d n. r. e.); Wilson v. Browning Arms Company, 501 S.W.2d 705 (Tex.Civ.App. Houston-14th Dist. 1973, writ ref’d).

The judgment, however, may also be supported on the basis of the arbitration award. Where the formal requirements of a binding statutory arbitration are not met, the settlement of the disputed claim by common law arbitration may still be effected where an appropriate agreement to submit the issue to arbitration is shown. L. H. Lacy Co. v. City of Lubbock, 559 S.W.2d 348 (Tex.1977); Aguilar v. Abraham, Docket No. 6775 (Tex.Civ.App. El Paso, April 4, 1979) (not yet reported); Carpenter v. North River Insurance Company, 436 S.W.2d 549 (Tex.Civ.App. Houston-14th Dist. 1968, writ ref’d n. r. e.). In this case Tygrett’s motion for summary judgment and the attached arbitration agreement and award were sufficient, absent any opposing summary judgment evidence, to authorize the entry of summary judgment as prayed for. 4 McDonald’s, Texas Civil Practice, § 17.26.8, pp. 156, 157. Gerdes’ amended petition, even though verified, did not constitute summary judgment evidence. Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.1971).

The judgment is affirmed.


author: PHILLIPS, Chief Justice.

text:
    STARR COUNTY, Appellant, v. STARR INDUSTRIAL SERVICES, INC., Appellee.
    No. 12899.
    Court of Civil Appeals of Texas, Austin.
    June 20, 1979.

      Robert Wilson, McGinnis, Lochridge & Kilgore, Austin, for appellant.
    Edward C. Small, Dennis R. Reese, Small, Craig & Werkenthin, Austin, for appellee.
   PHILLIPS, Chief Justice.

Appellee filed an application with the Texas Water Quality Board requesting approval for a Class I industrial solid waste permit for a landfill to be located in Starr County, Texas. The Board denied the application after a hearing. Appellee appealed the denial of the order to the district court wherein Starr County intervened.

The trial court reviewed the order and rendered judgment setting aside and vacating the Board’s order and remanding the cause to its successor, Texas Water Commission, for further proceedings. Interve-nor, Starr County, subsequently perfected its appeal from the judgment.

We affirm.

I.

Hearing was held on September 29, 1976, in Rio Grande City and testimony was concluded on that same day. The record was held open twenty days for certain supplemental information which was supplied and the record was then closed.

On January 7, 1977, the Board considered the application and the hearing examiner’s report in connection with the application. On that same day the Board voted to deny the application and a written order was prepared in which the reasons for the denial of the permit were stated. The order was entered February 3, 1977.

The administrative record in this case is extensive and highly detailed. Appellee requested a permit to operate a commercial industrial solid waste management site to be located approximately nine miles northwest of Rio Grande City in Starr County, Texas. The site was to consist of a landfill type operation on an 81-acre tract leased by appellee wherein certain stabilized and neutralized industrial wastes would be buried in trenches and surrounded and covered with clay-rich soil. The anticipated active life of the site was three to four years, and the permit sought provided for various safeguards and monitoring of the site, both during its active life and for a period of time after closure.

The original application contained extensive and détailed information concerning the character of the wastes, operations and closing of the facility. The details of many aspects of the application were modified and supplemented by additional information and specifications subsequently submitted as a result of conferences with, and requests by, the Board’s staff.

The Board’s technical staff, using the application and information supplied by appel-lee, along with its own information resources, drafted a proposed permit which it felt would include all of the provisions necessary for the protection of ground and surface waters, public and private property and the general health and public welfare. The provisions of the proposed permit were explained by the staff and fully discussed at the public hearing which was held at Rio Grande City.

The principal opposition to the permit came from the county judge of Starr County, the Rio Grande City Chamber of Commerce, and from a state senator. The general tenor of the objections was that the opponents were totally against any Class I toxic waste dump in Starr County.

Consequently, in a letter from the Board’s executive director, Hugh Yantis, Jr., who was a member of the hearing commission, it was stated: “It appears that the site and the technical factors surrounding it are sustainable as permitting an industrial solid waste disposal operation,” but concluded that the application could be denied “on the basis of the express views of the people within the county.” At the hearing of the Board on January 7, 1977, a Board member moved that the permit be denied for the reason that:

“I likewise am reluctant to imply that we have veto power over the local government and I must conclude, all the arguments possibly to the contrary, that there is considerable local opposition on the part of the local governments, more than just one, and I’m inclined to agree with Mr. Yantis.”

The motion carried and the permit was denied.

A written order, denying the application, was entered on February 3, 1977, and included the following pertinent findings and conclusions.

“FINDINGS OF FACT

. 1. The construction and management of the industrial solid waste disposal site as proposed is inadequate to prevent or minimize adverse public health and environmental impact from accidents resulting from the transportation, processing, and disposal of industrial solid waste, which includes hazardous and toxic materials, because of the following:

(a) the proposed staffing pattern at the site would allow for extended periods of time during which no one would be at the site; and
(b) the lack of resources or necessary equipment in Starr County to adequately handle the possibility of accidents from fire, explosions, or traffic mishaps.

2. The lease agreement for a term of only five years will not allow for adequate supervision, control or monitoring of the site after it is closed.

3. The operation of an industrial solid waste management site in Starr County at the location proposed is inconsistent with the future land use and development in the area.

4. The adamant local opposition to the application for a proposed industrial solid waste management site evidences that the granting of a permit would be contrary to the welfare of the people in the area.

* * * * * *

CONCLUSIONS OF LAW

Based on all findings of fact, the following conclusions of law are made:

* * * * * *

3. There has been full compliance with all applicable provisions of Chapter 21 of the Texas Water Code and Section 4 of the Solid Waste Disposal Act and the accompanying Rules of Practice and Procedure of the Texas Water Quality Board concerning the application for a permit.”

In its motion for rehearing, appellee offered to comply with some of the new requirements, but the Board simply overruled the motion.

II.

The Administrative Procedure and Texas Register Act (APA) provides that the courts shall remand the case for further proceedings “. . .if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) in violation of constitutional or statutory provisions;
(2) in excess of the statutory authority of the agency;
(3) made upon unlawful procedure;
(4) affected by other error of law;
(5) not reasonably supported by substantial evidence in view of the reliable and probative evidence in the record as a whole; or
(6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” (Emphasis added). Tex.Rev.Civ.Stat.Ann. art. 6252-13a, § 19(e) (Supp.1978).

In distinguishing between paragraphs five and six, the legislature has decided that arbitrary and capricious action or abuse of discretion by an administrative board is of equal proscription as that action “not reasonably supported by substantial evidence.” In other words, subsection six sets out a basis for invalidation of an agency order in addition to and distinct from subsection five.

This conclusion is more difficult than would appear merely from reading section 19(e). The well recognized explanation of the substantial evidence rule has blended the two concepts, substantial evidence and arbitrary or capricious, into one standard of review. The substantial evidence rule is generally described as a limitation on the power of the courts to overturn a decision by an administrative agency in that there must be a showing “. . . the administrative decision is illegal, arbitrary, or capricious; that is, that it is not reasonably supported by substantial evidence.” Board of Firemen’s Relief and Retirement Fund Trustees v. Marks, 150 Tex. 433, 242 S.W.2d 181, 182-83 (1951). Accord, e. g., Gerst v. Cain, 388 S.W.2d 168 (Tex.1965); Chemical Bank and Trust Co. v. Falkner, 369 S.W.2d 427 (Tex.1963); Industrial Accident Board v. O’Dowd, 157 Tex. 432, 303 S.W.2d 763 (1957). Stated in even stronger language, “. . .an arbitrary action cannot stand and the test generally applied by the courts in determining the issue of arbitrariness is whether or not the administrative order is reasonably supported by substantial evidence.” Gerst v. Nixon, 411 S.W.2d 350, 354 (Tex.1966).

The Texas Supreme Court has expressly qualified the language of Gerst v. Nixon, supra, in Lewis v. Metropolitan Savings and Loan Association, 550 S.W.2d 11 (Tex.1977). There the Court made it clear that an order may be supported by substantial evidence and yet be invalid for arbitrariness. “[Arbitrary action of an administrative agency cannot stand. There is arbitrariness where the treatment accorded parties in the administrative process denies them due process of law.” Id. at 16.

In determining whether an agency has acted arbitrarily or capriciously the reviewing court must decide whether the agency order was based on a consideration of all relevant factors. The reviewing court may not substitute its judgment for that of the agency. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). There must appear a rational connection between the facts and the decision of the agency. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); 5 B. Mezines, J. Stein and J. Gruff, Administrative Law § 51.03, at 51-33 (1979). Stated differently, the reviewing court must remand “. . . if it concludes that the agency has not actually taken a hard look at the salient problems and has not genuinely engaged in reasoned decision-making.” Texas Medical Association v. Mathews, 408 F.Supp. 303, 305 (W.D.Tex.1976). That court set aside an order because the agency had been subjected to pressure from congressional sources.

The major factor that runs throughout arbitrary-capricious review cases is that parties must be able to know what is expected of them in the administrative process. We believe this notice was lacking in the present case.

As we stated above, the appellee worked quite closely with the Board’s staff, and, apparently, had complied with all of the staff’s requirements for a permit when, to its surprise, the Board denied the permit citing additional requirements that had neither been expected by appellee nor proposed by the Board’s staff. In addition, the Board found: “The adamant local opposition to the application for a proposed industrial solid waste management site evidences that the granting of a permit would be contrary to the welfare of the people in the area.” Nowhere in the Act is local opposition mentioned for consideration as a standard to govern the Board’s decision and such opposition, standing alone, should have no part in the Board’s decision-making process. Yet obviously it did.

Inasmuch as we find that a significant part of the Board’s action herein was arbitrary and capricious under Section 19(e)(6) of the Administrative Procedure Act, we need not reach the substantial evidence question raised by appellant. Because appellee’s substantial rights were prejudiced by entry of the agency order, the district court correctly set aside the order and remanded the cause to the agency for further proceedings.

The judgment is affirmed.

      . Now consolidated into the Texas Department of Water Resources.

      . Section 19(e) (and its subsections) is applicable where the relevant statute “. authorizes review under the substantial evidence rule, or where the law does not define the scope of judicial review.” The Solid Waste Disposal Act is silent as to the scope of judicial review; therefore, section 19(e) applies to this case.


author: McKAY, Justice.

text:
    Herbert CROOK, Receiver of American Insurance Management Service, Inc., Appellant, v. Lewis Z. TEITLER, Appellee.
    No. 1266.
    Court of Civil Appeals of Texas, Tyler.
    June 21, 1979.

      A. M. LeCroix, Christopher M. Maisel, Austin, for appellant.
    James M. Steed, Chevy Chase, III, Austin, for appellee.
   McKAY, Justice.

This appeal is a petition for writ of error to set aside a default judgment rendered against appellant.

Appellee brought suit against appellant, in his representative capacity as Receiver for American Insurance Management Services, Inc., alleging that appellee had sold goods and services to the company in receivership and that a balance of $2,015.60 was due and unpaid. Appellee also sought attorney’s fees in the amount of $700.00. It appearing to the court below that appellant had not appeared or answered, the court granted appellee’s motion for default judgment for the principal amount alleged and $300.00 in attorney’s fees.

Appellant brings a single point of error, contending that the district court erred in asserting personal jurisdiction over appellant by rendering the default judgment. His argument thereunder is twofold: first, that appellant was not properly served with process under Rule 106, and second, appellant made no appearance nor was there a waiver or acceptance of service of citation under Rule 119. Appellee has filed no brief in this court. The citation and officer’s return are a part of the record before us, and the latter shows that the citation was executed “on the 16 day of Nov., 1977, by delivering to the within named Herbert Crook, Receiver of American Ins. Management Service, Inc. By delivering to L. V. bi Donato . . . ” (appellant refers in his briéf to the person served as “L. V. di Donato”).

Since this appeal by writ of error constitutes a direct attack on the default judgment, the question presented is whether there is a lack of jurisdiction apparent on the face of the record which would invalidate the judgment of the trial court. McKanna v. Edgar, 388 S.W.2d 927, 928 (Tex.1965). Under this direct attack the judgment must be reversed unless jurisdiction does so appear on the face of the record. Hanover Modular Homes of Taft, Inc. v. Corpus Christi Bank & Trust, 476 S.W.2d 97, 99 (Tex.Civ.App.—Corpus Christi 1972, no writ). The law is well settled that in order to uphold a default judgment against attack based upon a claim of invalid service of process, it is essential that the record affirmatively show a strict compliance with the provided manner and mode of service of process. Hanover Modular Homes of Taft, Inc. v. Corpus Christi Bank & Trust, supra; Charles Cohen, Inc. v. Adams, 516 S.W.2d 464, 465 (Tex.Civ.App.— Tyler 1974, no writ). As a rule, presumptions are made in support of a judgment (including presumptions of due service of citation when the judgment so recites), but no such presumptions are made in a direct attack upon a default judgment. McKanna v. Edgar, supra at 929.

Rule 106, thereafter amended, provided at the time pertinent to the instant case:

“Unless it otherwise directs, the citation shall be served by the officer delivering to each defendant, in person, a true copy of the citation with the date of delivery endorsed thereon and with a copy of the petition attached thereto. Where it is impractical to secure personal service, as above directed, the court, upon motion, may authorize service by leaving a copy of the citation, with petition attached, at the usual place of business of the party to be served, or by delivering same to anyone over sixteen years of age at the party’s usual place of abode, by registered or certified mail, or in any other manner which will be reasonably effective to give the defendant notice of the suit.”

In the instant case it is apparent on the face of the officer’s return that service was not made upon appellant personally, but rather that it was delivered to one L. V. di Donato. Appellant states in oral argument before this court that di Donato is a staff attorney for appellant, but this does not appear in the record. Moreover, there is no indication in the record of an authorization by the court below for any manner of substitute or constructive service.

Neither is there any indication in the record that appellant made an appearance in the court below nor that he waived or accepted service of citation by a written, sworn memorandum filed among the papers of the case, as required by Rule 119.

The record in the case at bar will not support a default judgment. Brown v. Robertson, 28 Tex. 55, 557 (1866); Vidauri v. State, 3 S.W. 347 (Tex.App.1887); Sindorf v. Cen-Tex Supply Co., 172 S.W.2d 775, 776 (Tex.Civ.App.—El Paso 1943, no writ); Delgado v. Delgado, 253 S.W.2d 708, 709 (Tex.Civ.App.—San Antonio 1952, writ dism’d).

The judgment of the trial court is reversed, and the cause is remanded for further proceedings.

      . All references are to the Texas Rules of Civil Procedure.


text:
    Eugene BARTEK, Appellant, v. FIREMEN’S AND POLICEMEN’S CIVIL SERVICE COMMISSION OF TEMPLE, Texas, et al., Appellees.
    No. 1262.
    Court of Civil Appeals of Texas, Tyler.
    June 21, 1979.

      R. C. Joe Mikeska, Jr., Mikeska & Francis, Temple, for appellant.
    Gary F. Chatham, City Atty., City of Temple, Temple, for appellees.
   McKAY, Justice.

Appellant brought this suit as an appeal from a decision of the Civil Service Commission of Temple denying his request for a voluntary demotion from “operator of E.M.T. 124” to fire truck driver. The motion to dismiss the appeal for want of jurisdiction filed by the City of Temple (City) was granted by the trial court.

Appellant made a request to the Fire Chief for a voluntary demotion from the position of E.M.T. driver (ambulance) to that of fire truck driver “because of the offensive nature of E.M.T. driver.” That request was denied. Appellant then requested a hearing before the Civil Service Commission (Commission) of the City; such request was granted, and after the hearing appellant’s request for demotion was denied. The order of the Commission contained the language “. . this Commission . . . does hereby find that the substantial evidence presented supports the decision of the Fire Chief not to demote Eugene Bartek and that said decision based on the substantial evidence presented is reasonable . . .” This suit was then filed in the district court as an appeal from the decision of the Commission. The trial court dismissed the appeal for want of jurisdiction. We affirm.

The one point of error presented by appellant complains that the trial court erred in sustaining the plea to the jurisdiction under the provisions of Article 1269m, Section 18, Tex.Rev.Civ.Stat.Ann., as amended, which reads:

“Sec. 18. In the event any Fireman or Policeman is dissatisfied with any decision of the Commission, he may, within ten (10) days after the rendition of such final decision, file a petition in the District Court, asking that the decision be set aside, and such case shall be tried de novo. Such cases shall be advanced on the docket of the District Court, and shall be given a preference setting over all other cases. The court in such actions may grant such legal or equitable relief as may be appropriate to effectuate the purposes of this Act, including reinstatement or promotion with back pay where an order of suspension, dismissal, or demotion is set aside. The court may award reasonable attorney’s fees to the prevailing party and assess court costs against the nonprevailing party. If the court finds for the fireman or policeman, the court shall order the city to pay lost wages to the fireman or policeman.”

The civil service rules (Section 70) adopted by the Commission provide that an employee may voluntarily request a demotion to a lower rank or classification, but no provision is made therein for appeal to the Commission in case the request is denied, nor does such section grant an employee the right to a demotion. It reads as follows:

“Section 70. Voluntary Demotion. When an employee voluntarily requests from his Department Head a demotion to a lower rank or classification, and such request is granted, the employee can not be reinstated to his former rank or classification except by promotion. No provision shall be made for re-instatement except those provided for under Rule XX of these Rules.”

Appellant argues that when the Legislature amended Sec. 18 of Art. 1269m in 1977, and changed the language therein, the correct interpretation of Sec. 18 now is that any fireman or policeman who is dissatisfied with any decision of the Commission has a right to appeal to the District Court to set aside such decision in a trial de novo. We do not agree.

It has long been held that judicial review of administrative agencies may be specifically provided, or specifically denied by the Legislature; however, even where such review is specifically provided it will be denied if the Legislature requires the court to substitute itself for the administrative body and perform purely administrative acts. City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788, 790 (1951). Even where the Legislature specifically denies review, administrative agency decisions may be challenged in court if they violate some provision of the State or U. S. Constitution, but all other decisions of administrative agencies which do not affect vested property rights or violate some constitutional provision are valid, and they are not made invalid by the mere fact the Legislature has denied judicial review. City of Amarillo v. Hancock, supra; Fox v. Carr, 552 S.W.2d 885, 887 (Tex.Civ.App.—Texarkana 1977, no writ).

The Legislative history of Section 18 indicates that the Legislature was attempting to deal with situations where disciplinary action had been taken against a fireman or policeman. Section 18 formerly provided for appeal “asking that his order of suspension or dismissal or demotion be set aside.” While Section 18 was amended in 1977, and some changes were made in the language used, the named reasons set out for appeal to the courts from a decision of the Commission remain the same, i. e., an order of suspension, dismissal or demotion. In our view the language of the court in Cash v. City of Houston, 426 S.W.2d 624, 628 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.), is applicable here:

“A subsequent amendment specifically provided for appeal where demotion occurs and amended Section 18 of the Statute now provides, ‘in the event any Fireman or Policeman is dissatisfied with the decision of the Commission, he may . file a petition in the District Court, asking that his order of suspension or dismissal or demotion be set aside. . . . ’
The statutory authority refers to ‘suspension or dismissal or demotion,’ and does not refer to the situation here presented, that is, a failure to promote. The statutory authority for appeal does not appear in such instance.”

Prior to the 1977 amendment Section 18 of Art. 1269m provided in part:

“In the event any Fireman or Policeman is dissatisfied with the decision of the Commission, he may, within ten (10) days after the rendition of such final decision, file 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 or Police Department, and such case shall be tried de novo.” [Emphasis added.]

Appellant argues that because the 1977 amendment changed “the decision” to “any decision,” and added “The court in such actions may grant such legal or equitable relief as may be appropriate to effectuate the purposes of this Act, including reinstatement or promotion with back pay where an order of suspension, dismissal, or demotion is set aside,” he now has a statutory right of appeal from the decision of the Commission. We do not agree. Section 17 of Art. 1269m provides in part: “In order for a Fireman or Policeman to appeal to the Commission from any action for which an appeal or review is provided under the terms of this Act, it shall only be necessary for him to file within ten (10) days with the Commission an appeal setting forth the basis of his appeal . . . .” [Emphasis added.] We have not found in the record any provision in the statute or in the City’s civil service rules for an appeal to the Commission of a denial of a request for voluntary demotion by the Fire Chief. It follows that if appellant had no right to appeal to the Commission he would have no right to appeal to the court even though the' Commission may have voluntarily heard his appeal.

We quote from Firemen’s and Policemen’s Civil Service Commission of City of Fort Worth v. Kennedy, 514 S.W.2d 237, 239 (Tex.1974):

“It was held [City of Amarillo v. Hancock, supra] that the statute did not authorize an appeal from an order of demotion and that the district court had no jurisdiction of the suit. The latter holding was based on the rule that an inherent right of appeal from an administrative body created by an act silent on the question will be recognized only where the administrative action complained of violates a constitutional provision. This is the settled law in Texas.” [Emphasis added.]

In the instant case there was no order or suspension, dismissal or demotion; there was only a denial of a request for voluntary demotion. It appears the fact situation here presents a stronger case for lack of jurisdiction by the District Court taking into consideration the change in the language by the 1977 amendment of Section 18.

It is our view that is was not the intention of the Legislature by the 1977 Amendment to Section 18, Article 1269m, to provide that every act of the Commission is subject to judicial review, nor do we find in the record any inherent right to judicial review. City of Amarillo v. Hancock, supra; Lee v. Firemen’s and Policemen’s Civil Service Commission of San Antonio, 526 S.W.2d 553, 555-7 (Tex.Civ.App.—San Antonio 1975, writ ref’d n. r. e.); Heard v. City of Houston, 529 S.W.2d 560, 563 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ); Smith v. City of Houston, 552 S.W.2d 945, 947 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ).

Not every act of the Commission is subject to judicial review. Firemen’s and Policemen’s Civil Service Commission of City of Fort Worth v. Blanchard, 582 S.W.2d 778 (Tex.1979); Firemen’s and Policemen’s Civil Service Commission of City of Fort Worth v. Kennedy, supra. If any decision of the Commission may be appealed to the District Court then the court is required to substitute itself for the administrative body and perform purely administrative acts. We feel that the Legislature was mindful of the decision and the language of City of Amarillo v. Hancock, supra, 239 S.W.2d p. 790. The court there held that judicial review will be denied where the court is required to substitute itself for the administrative body unless there is a denial of a constitutional or vested right. There being no such denial here we hold the District Court was without jurisdiction to hear an appeal from the decision of the Commission approving the denial of a voluntary demotion of appellant.

Accordingly, the judgment of the trial court is affirmed.


author: REYNOLDS, Chief Justice.

text:
    SOUTHWESTERN NEWSPAPERS CORPORATION, Appellant, v. Tom CURTIS, Appellee.
    No. 8995.
    Court of Civil Appeals of Texas, Amarillo.
    June 22, 1979.
    Rehearing Denied July 18, 1979.

      Gibson, Ochsner & Adkins, Joe Harlan, Amarillo, for appellant.
    Tom A. Curtis, Dist. Atty., Amarillo, pro se.
   REYNOLDS, Chief Justice.

May a district attorney be temporarily enjoined from requiring a newspaper publisher and its reporters to make appointments for access to official news sources available in the district attorney’s office to, and without the requirement of appointments by, representatives of other news media? Answering the question in the affirmative, we reverse the trial court’s judgment denying a temporary injunction on the record before us, and remand the cause with instructions.

Southwestern Newspapers Corporation, publisher of the Amarillo Daily News, Amarillo Globe-Times and Amarillo Sunday News-Globe, brought this action against Tom Curtis, the 47th Judicial District Attorney, seeking consecutive orders to temporarily restrain, temporarily enjoin and permanently enjoin the district attorney. The publisher sought to temporarily restrain and temporarily enjoin the district attorney from enforcing a rule denying the publisher and its reporters access to official news sources in the office of the district attorney without an appointment, which is not required of other news media personnel. On a final hearing, the publisher seeks, in addition to the enjoinment of the appointment requirement, an order “to accord to Plaintiff [Southwestern Newspapers Corporation] and its reporters and representatives all rights, privileges, and courtesies given to another member of the news media.”

As the basis for relief, the publisher plead this sequence of events: its publication of a news report concerning, and two editorials commenting on, a statement by a county commissioner that, contrary to what he favored, he voted for a proposed budget for the district attorney’s office out of fear of lawsuits threatened by the district attorney; the publisher’s refusal of retractions requested by the district attorney; and the district attorney’s retaliatory imposition of discriminatory restrictions against the publisher by denying its reporters access to official news in his office by refusing to see them or answer their questions without an appointment, which is not required of other news media personnel. The district attorney responded with an exception to the publisher’s petition on the ground that it failed to state a cause of action, a challenge to the standing of the publisher to sue, and a specific answer denying that the restrictions alleged by the publisher were occasioned by, or were in retaliation for, the publications of the news report and editorials.

The trial court refused the issuance of a temporary restraining order and set a hearing on the matter of the temporary injunction. Following the hearing, the court— gratuitously stating, as reasons for the judgment to be rendered, that all prerequisites for the granting of a temporary injunction, except that of irreparable injury, has been shown- — denied a temporary injunction. Written findings of fact or conclusions of law were neither requested nor filed.

The publisher has appealed. The appeal, flowing from the premise that the district attorney’s actions abridged freedoms guaranteed the publisher by the First Amendment and protected by the Fourteenth Amendment, entails several disputations, some of which reach constitutional dimensions.

Commanding first attention is the district attorney’s challenge to the standing of the publisher to sue. The district attorney cites, among other authority, Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), for the principle that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the general public. The principle applies, so the district attorney reasons, to deny the publisher standing to maintain this action in the same way the principle was applied to the factual situation in City of Abilene v. Shackelford, 572 S.W.2d 742 (Tex.Civ.App.—Eastland 1978), writ granted, Tex., 585 S.W.2d 665 (1979), to deny standing to news media to challenge, by injunctive and declaratory proceedings, a closed meeting by a governmental body. We do not agree. Our concept of the law is that neither the principle itself, nor its application to deny some news media standing to challenge a closed meeting from which all news media are denied access, answers the inquiry into standing if, in fact, unequal access to official news is accorded the publisher.

Evident from the record is the fact that, although the district attorney’s office is not a repository for public records which are open to the public, the personnel of the office customarily are sources of official news provided to the news media. While public officials need not furnish information, other than public records, to any news agency, a public official may not constitutionally deny to one media access that is enjoyed by other media, because one media is entitled to the same right of access as any other. Quad-City Community News Service, Inc. v. Jebens, 334 F.Supp. 8, 13-16 (S.D.Iowa 1971). Moreover and in the absence of some compelling government interest to the contrary, all representatives of news organizations must not only be given equal access, but within reasonable limits, access with equal convenience to official news sources. Westinghouse Broadcasting Co., Inc. v. Dukakis, 409 F.Supp. 895, 896 (D.C.Mass.1976). The district attorney has not interposed any plea of a compelling government interest presenting a procedural confrontation of a First Amendment right with a legitimate government interest. Thus, although a corporation, the publisher, being engaged in an activity claimed to be constitutionally protected from the infringement alleged, has standing to seek legal redress for the alleged abridgment of a constitutionally guaranteed right. N. A. A. C. P. v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 9 L.Ed.2d 405, 415 (1963). The legal redress may be by way of injunction. Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966). Accord, McCoy v. Providence Journal Co., 190 F.2d 760, 764 (1st Cir. 1951), affirming the permanent enjoinment of a public official from refusing one newspaper access to public records made available to a competing newspaper.

Next addressed are the diverse contentions of the parties concerning the matter of irreparable injury. The district attorney asserts that, because the publisher’s own testimony shows no more than a possibility of future damage or loss, injunctive relief was correctly denied upon the publisher’s failure to prove injury, harm or damage. Notwithstanding the testimony, the publisher submits that the court erroneously required an evidential showing of irreparable injury as a prerequisite to injunctive relief to protect First Amendment freedoms.

In the classical sense, the granting of a temporary injunction is not warranted in the absence of some evidence establishing probable injury if the temporary injunction is not granted. Armendariz v. Mora, 526 S.W.2d 542, 543 (Tex.1975). But the legal•ism Has no efficacy if there is a deprivation of a First Amendment freedom, for any significant denigration of First Amendment rights inflicts irreparable injury, Fernandes v. Limmer, 465 F.Supp. 493, 498 (N.D.Tex. 1979), and constitutes irreparable harm. Westinghouse Broadcasting Co., Inc. v. Dukakis, supra, at 896; Borreca v. Fasi, 369 F.Supp. 906, 911 (D.Haw.1974). In brief, “any delay in the exercise of First Amendment rights constitutes an irreparable injury to those seeking such exercise.” A Quaker Action Group v. Hickel, 137 U.S. App.D.C. 176, 181, 421 F.2d 1111, 1116 (1969).

Given an irreparable injury resulting from deprivation of First Amendment freedoms, we reach the publisher’s contention that the court’s misconception of the law deprived the publisher of relief. The publisher recites the trial court’s oral statements, to-wit:

Prerequisites for granting a temporary injunction are these: (a) A substantial likelihood that the Plaintiff will prevail on the merits, (b) Substantial threat that the Plaintiff will suffer irreparable injury if the injunction is not granted, (c) A determination that the threatened injury to the Plaintiff outweighs the threatened harm to the Defendant by the injunction, (d) A determination that granting the temporary injunction will not disserve the public interest.
* * * * * *
The Court is not concerned with A, C, or D of the prerequisites for granting the temporary injunction, because I think these have been shown, but the Court is concerned about B, which deals with irreparable injury, a definition of which say [sic], “An irreparable injury must be imminently threatened and may not be speculative or conjectural. Mere uncertainty or apprehension of injury is not sufficient as a matter of law,” and for these reasons I am granting the district attorney’s motion for a directed verdict.

Tacitly adopting the expressions favorable to its position, the publisher argues that the statements demonstrate the order denying the injunction is based on an erroneous conception of the law relating to irreparable injury. The illation is that, with the court’s oral concession that the publisher will prevail on its claim of denial of a First Amendment freedom, the law establishes irreparable injury, and the court’s judgment should be reversed and judgment should be rendered.

Logical though the argument seems, it does not accurately chart the course for appellate review. As noted, written findings of fact and conclusions of law were neither properly requested of nor filed by the trial court. Oral pronouncements of the basis for the judgment to be rendered cannot be substituted for written findings of fact and conclusions of law provided for by the rules, Gasperson v. Madill National Bank, 455 S.W.2d 381, 387 (Tex.Civ.App.— Fort Worth 1970, writ ref’d n. r. e.); and, hence, oral statements made by the judge at the time judgment was rendered may not be considered. Kinney v. Shugart, 234 S.W.2d 451, 452 (Tex.Civ.App.—Eastland 1950, writ ref’d). This situation invokes the rule, however seemingly anomalous in its application here, that “[wjhere findings of fact and conclusions of law are not properly requested and none are filed, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence.” Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex. 1978). And this rule appertains regardless of whether or not the trial court gives the correct reason for the judgment entered. Gulf Land Co. v. Atlantic Refining Co.,, 134 Tex. 59, 131 S.W.2d 73, 84 (1939).

This state of the record leads to an inquiry into and a determination of the focal point of these proceedings. The publisher has pleaded that the district attorney imposed restrictions denying the publisher and its reporters access to the district attorney’s office without an appointment. On appeal, the district attorney tenders “as a stipulation or admission” this statement: “[H]e [the district attorney] has enforced a rule conditioning (or restricting, if you will) the access of Appellant [Southwestern Newspapers Corporation] and its reporters to the offices of the District Attorney and his staff to occasions when said reporters have arranged an appointment time with the District Attorney or a designated member of his staff, identifying the subject matter about which the interview is sought.” He represents that he enforced the rule after Bill Cox, one of the publisher’s reporters, had first announced, in a conversation which began informally, that everything he heard thereafter would be considered “on the record” and subject to publication.

Understandable and protectible is the district attorney’s concern that “confidential” matters in the office — i. e., identity of sex crimes victims, trial strategy and plans, which are given as examples — may be discovered without the exercise of some restrictions. The publisher judicially disclaims it is seeking access to confidential information. But aside from that and in any event, at the point of restriction of access by the requirement of an appointment, there undoubtedly is an inhibition of action. Still, the mere refusal of entry without an appointment does not, without more, violate a First Amendment right, because the right to publish does not carry with it the unrestrained right to gather information. Zemel v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 14 L.Ed.2d 179, 190, reh. denied, 382 U.S. 873, 86 S.Ct. 17, 15 L.Ed.2d 114 (1965).

However, the Zemel holding neither answers nor forecloses the inquiry, for the joinder on the issue of restriction-of-access-by-appointment-only is but a prelude to the publisher’s claim of a constitutional right violated by the restriction. The publisher has further alleged, without special exception having been taken in this regard, that the restriction denies the publisher and its reporters access to news sources made available to other news media personnel without the restriction of appointments, thereby hampering the publisher’s activities in gathering the news and in informing the public. As mentioned, the district attorney did not interpose a plea of any compelling government interest which would call for a balancing of First Amendment freedoms against legitimate government interests. In this posture, the publisher’s allegations express a violation of the command, previously stated, that all representatives of new organizations must not only be given equal access, but within reasonable limits, access with equal convenience to official news sources.

So, the determinative matter becomes whether the publisher has shown that the requirement of appointments imposed on it constitutes a denial of its right of equal access to official news sources. The parties dispute the evidential force of the record in this respect, and an examination of the record is necessary.

Reporter Bill Cox testified to a conversation he had with the district attorney. A portion of that conversation is recorded thusly:

A ... He [the district attorney] said that the restrictions he imposed or would impose would apply specifically to the Globe News. That he in no manner intended to penalize the other news media or interfere with their ability to get information from his office, because of the Globe News. * * * * * *
Q Did he say anything about whether or not the Globe News reporters would be welcome or unwelcome at the district attorney’s office?
A He said they would not be welcome. Q State whether or not he emphasized that these restrictions applied to the newspaper only.
A Yes, he did. He stressed that point.
Q State whether or not he made the statement that he was making it clear that he was not doing anything to penalize or make things difficult for any other news media.
A Yes.
* * * * * *
Q . [S]tate whether or not you had another telephone conversation with Mr. Curtis.
A Yes . . . and it was at that time he said he had decided the restrictions he had set as tentative would be definite and in effect immediately.

On the day following the conversation, Cox returned to the district attorney’s office. When Cox asked to see the district attorney and an assistant district attorney, he was told he would need an appointment. Cox left when he was told, “Goodby.”

James L. Whyte, general manager of the Amarillo Globe News Division of Southwestern Newspapers Corporation, testified that he saw a television interview of the district attorney relating to the restrictions placed on the publisher’s reporters. When asked if he heard the district attorney state that the restrictions applied to the Globe News only and not other media, Whyte answered:

Yes, it was made clear in that interview that the restrictions applied only to the Globe News.

Whyte also testified that being under restrictions which do not apply to other media would handicap news gathering and the publisher could not present the same news coverage as competitors.

Whyte’s cross-examination by the district attorney adduced the following:

Q Now do you know what the rights, privileges, and access to be that is accorded to the other media?
* * * * * *
A The opportunity to see you and members of your staff without making an appointment, which is essentially all we are asking.
Q How do you know that to be true?
A Because that was your statement made in public .

This evidence is undisputed. It shows that the requirement of appointment for access is imposed solely on the publisher and its reporters, and that the imposition not only is a denial of equal access, but is a denial of access with equal convenience to official news sources available to representatives of other news media without appointments. And although the trial court’s comments are not to be considered as factual findings or legal conclusions, the testimony no doubt explains why the court stated that all requirements, except for proof of irreparable injury, has been shown.

The order granting or denying a writ of temporary injunction will be reversed only on a showing of a clear abuse of the broad discretion granted the trial court in determining whether to issue the writ. In these proceedings, the only question before the trial court was the right of the publisher to a preservation of the status quo — i. e., the peaceful noncontested status as it existed before the imposition of the appointment restriction — pending a final trial on the merits. To warrant the issuance of a writ of temporary injunction, the publisher was required to plead and show a probable right and a probable injury. See Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 552-54 (1953).

The publisher has plead and shown by nonconflicting evidence the denial of a constitutionally guaranteed right which, as a matter of law, inflicts an irreparable injury. Upon the pleadings and proof, the publisher established its entitlement to a preservation of the status quo pending a trial on the merits of the right to a permanent injunction. Accordingly and absent some other legal ground for the refusal of relief to the publisher, it was a clear abuse of discretion for the trial court to deny a writ of temporary injunction. Cf. Henry v. Greenville Airport Commission, 284 F.2d 631, 633 (4th Cir. 1960), holding that a court has no discretion to deny relief by a temporary injunction where a violation of a constitutional right is clearly established.

A final ground advanced for refusing the publisher relief is the district attorney’s vigorous protestation that no temporary injunction can be drafted under the pleadings and evidence which meets the specificity requirements of Tex.R.Civ.P. 683, or which can be obeyed in good faith. We are cognizant, as the district attorney emphasizes, that significant and inherent differences exist in the news gathering and dissemination procedures of the various media receiving official news from the district attorney’s office, and that it would be impossible to treat every media reporter with absolute equality. But the protest is unavailing for two reasons. First, courts cannot abdicate their constitutional responsibility to delineate and protect fundamental liberties, Pell v. Procunier, supra, 417 U.S. at 827, 94 S.Ct. 2800, and difficulty in forming and enforcing an injunction should not bar the issuance of an injunction which is necessary to protect constitutional rights. Lankford v. Schmidt, 240 F.Supp. 550, 551 (D.C.Md.1965), rev’d and remanded on other grounds, 364 F.2d 197 (4th Cir. 1966). Second, the relief sought and to be granted is not so broad, nor the articulation and obedience so difficult, as to give validity to the protest. The only relief pleaded for and merited by the evidence is simply the temporary enjoinment of the district attorney, until a final hearing is held, from requiring the publisher and its reporters to make appointments for access to official news sources available in the district attorney’s office to representatives of other news media without the requirement of appointments.

In summary, the law mandates that, absent some compelling government interest to the contrary, the publisher and its reporters are entitled to the same access and, within reasonable limits, access with equal convenience to the official news sources in the district attorney’s office as are accorded to representatives of other news organizations. Such access has been denied to the publisher and its reporters by the district attorney’s imposition of the requirement of appointments, which are not required of representatives of other news organizations. Under this record, the evidence does not support any legal theory upon which the trial court’s judgment denying a writ of temporary injunction can be upheld and, consequently, the court abused its discretion by denying a writ of temporary injunction.

Nothing we have written should be taken as indicating an opinion on the unresolved matter of a permanent injunction. The merits of that matter are not presented for review in this proceeding and, of course, we may not assume that the evidence adduced in this proceeding will be the same as the evidence developed at the hearing for a permanent injunction. See Brooks v. Expo Chemical Company, 576 S.W.2d 369, 370 (Tex.1979).

The trial court’s judgment denying a temporary injunction is reversed. The cause is remanded to the trial court with instructions to proceed with the issuance of the writ of temporary injunction, to be effective until a final hearing, in accordance with this opinion.

COUNTISS, J., not participating.

      . The judgment denying a temporary injunction is an interlocutory order, Spence v. Fenchler, 107 Tex. 443, 180 S.W. 597, 600 (1915), which is appealable. Tex.Rev.Civ.Stat.Ann. art. 4662; Tex.R.Civ.P. 385.

      . In appeals from appealable interlocutory orders, the trial judge need not file findings of fact or conclusions of law, but it is permissible to do so. Tex.R.Civ.P. 385(e).

      . U.S.Const. amend. I, which, as material here, states: “Congress shall make no law . abridging the freedom of the press.”

      . U.S.Const. amend. XIV, § 1, reading in part:
      . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

      . If detailed findings of fact and conclusions of law underlying an appealable interlocutory order are desired, they should be requested under the provisions of Tex.R.Civ.P. 296 and 385(e). Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 553 (1953).

      . We are not unmindful that, on appeal, the district attorney does state the publisher’s “on the record” position could lead to a disregard of the confidentiality often implicit in information furnished by the district attorney’s office and could seriously impede the work of the district attorney and his staff. However, these are unpleaded matters which are also undeveloped in the present state of the record.

      . Tex.R.Civ.P. 683 reads: “Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.”