text:
    TEXAS WATER RIGHTS COMMISSION et al., Appellants, v. CITY OF DALLAS, Texas, Appellee.
    No. 12982.
    Court of Civil Appeals of Texas, Austin.
    Dec. 5, 1979.
    Rehearing Denied Jan. 2, 1980.
    Mark White, Atty. Gen., Sam Graham, Asst. Atty. Gen., Austin, for Texas Water Rights Commission.
    Frank R. Booth, Booth, Lloyd & Simmons, Austin, for City of Farmers Branch.
    Lee E. Holt, City Atty., Carroll R. Graham, Asst. City Atty., Dallas, and James W. Wilson, Stubbeman, McRae, Sealy, Laugh-lin & Browder, Austin, for appellee.
   O’QUINN, Justice.

The controlling issue in this lawsuit is whether the Texas Water Rights Commission has jurisdiction to determine rates charged for water supplied, absent any contract, by a municipality, in this case the City of Dallas, when engaged in selling water beyond its corporate limits to another municipality.

Beginning sometime after 1950, the City of Dallas entered into contracts with certain municipalities, suburbs of Dallas, under which Dallas agreed to supply the cities from its reservoirs with treated water which was surplus to the then current needs of the City of Dallas. Such contracts were made with the City of Farmers Branch, in January of 1951, and with the City of Grand Prairie, in January of 1955. The original contracts and their extensions expired, after which Dallas and the two cities named failed to reach agreements as to rates to be charged. No contractual relationship exists at present between Dallas and either of the two ;cities for supply of municipal water.

After the parties failed to reach an agreement by which Dallas would supply water, the City of Farmers Branch, in April of 1973, filed a petition with the Texas Water Rights Commission, seeking to invoke the Commission’s jurisdiction under Sections 5.041 and 6.056 of the Texas Water Code. The Farmers Branch petition alleged that the contract tendered by Dallas to Farmers Branch, and the rates demanded under it, were unreasonable, unjust, and discriminatory, and sought an order from the Water Rights Commission fixing rates and prescribing contract terms. Thereafter, in October of 1973, Grand Prairie filed its petition with the Commission to intervene and obtain similar relief.

The Water Rights Commission retained jurisdiction, over objection from the City of Dallas, and after hearings, entered its final order in April of 1977. The Commission ordered Dallas to supply the contesting municipalities with water, and established water rates for the years 1973 and 1974, with rates for 1975 and 1976 to be determined after further hearings. Subsequent to entry of the order, the Commission proceeded to hear further rate controversies, arising between the parties, for the years 1977, 1978, and beyond. At the present time Dallas continues to supply Farmers Branch and Grand Prairie with water service, but without contract.

From the Commission’s order, the City of Dallas appealed to district court pursuant to Section 19, Article 6252-13a (Texas Administrative Procedure Act) and Section 6.101, Texas Water Code. The principal contentions made by Dallas under its pleadings in district court were that (1) the Commission lacked jurisdiction of the parties and the subject matter; (2) the Commission erred in holding that the rates charged were unreasonable and unjust; (3) the order of the Commission would divest property and contract rights belonging to Dallas, in violation of Section 19 of Article I, Texas Constitution; (4) the order violated constitutional and statutory provisions; (5) the order was not reasonably supported by substantial evidence; and (6) the order was arbitrary and capricious. In addition, Dallas made numerous objections to procedural propriety of the order.

The trial court consolidated the appeal by the City of Dallas with an appeal from the Commission’s order by Farmers Branch. Thereafter, in May of 1978, the City of Dallas filed motion for summary judgment on the grounds that (1) the Commission lacked jurisdiction, under Sections 5.041 and 6.056 of the Water Code, to compel service or fix rates for service from a city’s municipal water system and (2) the Commission had jurisdiction, if any, only to fix rates prospectively, and could not order rebates or refunds.

The trial court sustained the motion for summary judgment and entered judgment setting aside the order of the Texas Water Rights Commission relating to rates for water service by the City of Dallas, as being beyond the Commission’s statutory jurisdiction, and ordered the petitions of Farmers Branch and Grand Prairie dismissed. We will reverse the judgment of the trial court and remand the cause for trial on the merits.

The record shows that for many years the City of Dallas has owned and operated a municipal water system for the purpose of providing a water supply to its inhabitants, and since about 1880 Dallas has utilized surface water sources for this purpose. At all periods pertinent to this suit the entire municipal water supply of Dallas has consisted of surface water appropriated by the City and diverted under permits granted by the Commission or by its predecessor State agencies.

Over the challenge of the City of Dallas to the Commission’s jurisdiction, the Commission issued its final order in April of 1977. There the Commission found that Farmers Branch and Grand Prairie were members of a group of eighteen cities, situated in Dallas County, which purchase water from the City .of Dallas. Dallas holds permits to use the waters of the State by and through the authority of the Texas Water Rights Commission, or its predecessors, and has represented in obtaining some of such permits that Dallas would supply water to municipalities located in Dallas County. The Commission expressly found that “Permits have been granted to Dallas based upon this representation.” The record shows that the City of Dallas has water available to supply its own inhabitants and all of its customer cities at least until the year 1995.

The City of Dallas represented to the Commission that it would provide water to Dallas County cities at its cost. In 1972 Dallas realized a return of 7.20 percent of the fair value of plant devoted to the service of its customer cities. The Commission found that the realized return was unreasonable to the extent that the return exceeded six percent of the fair value rate base.

The Commission reached a conclusion of law that the Commission had jurisdiction, under Sections 5.041 and 6.056 of the Code, “. . .to determine the reasonableness of rates and to fix the rates for any purposes mentioned in Chapters 5 and 6 of the Water Code. By its acceptance of permits for the use of the State’s water, Dallas has subjected itself to the jurisdiction of the Commission and all of the powers granted to it by the legislature and the Constitution.”

Conclusions of law 4 and 5 of the Commission were:

“4. Farmers Branch and Grand Prairie are persons entitled to receive water within the meaning of Section 5.041, Texas Water Code, and are entitled to receive water based upon representations made by Dallas to the Commission prior to the granting of certain permits to appropriate waters of the State. These representations are binding upon the water supplies held under permits previously granted to Dallas by this Commission.
“5. Dallas has conserved or stored water in reservoirs under permits issued by the Commission and its predecessors which is in excess of Dallas’ projected use in the year 2050, which is not contracted to others and which is available for . use.”

Farmers Branch as appellant brings three points of error asserting the trial court erred in granting summary judgment because (1) the Commission had jurisdiction to set rates for uncontracted water service under authority of Section 5.036 of the Code; (2) Sections 5.041 and 6.056 of the Code provide statutory grounds for the Commission to exercise authority over water sales by Dallas outside its corporate boundaries; and (3) the Commission maintains jurisdiction to compel service and set reasonable rates for water service by Dallas to Farmers Branch under permits issued to Dallas under the Texas Water Code “due to Dallas’ public utility status and Farmers Branch’s entitlement to Dallas water service at reasonable, non-discriminatory rates.”

The Commission as appellant brings similar points of error. By counterpoints the City of Dallas as appellee urges that the Commission lacked jurisdiction to entertain the petitions for fixing of rates and “the only effect of the order [of the Commission] is to order rebates, and the Commission did not have rate rebate jurisdiction.” By reply the appellants join issue on both counterpoints brought by appellee.

Both appellants urge that the Commission had jurisdiction under Section 5.036 of the Code to set rates for uncontracted water service by Dallas to its customer cities. Dallas argues in reply that Section 5.036 is “. . . part of a series of obscure statutory provisions governing water use which had their origin in the 1913 Irrigation Act,” and is not applicable to the kind of water service supplied by the City of Dallas.

Section 5.036 provides that persons, corporations, or districts “. . . having in possession and control any storm water, floodwater, or rainwater that is conserved or stored as authorized by this chapter may contract to supply the water to any person, association of persons, corporation, or water improvement or irrigation district having the right to acquire use of the water.” The statute provides in subsection (b): “If any person uses the stored or conserved water without first entering into a contract with the party that conserved or stored it, the user shall pay for the use at a rate determined by the commission to be just and reasonable, subject to court review as in other cases.”

In the trial court Dallas directed its attack on jurisdiction with reliance upon Sections 5.041 and 6.056, without mention of Section 5.036, and the trial court’s grant of motion for summary judgment was effected without mention of Section 5.036. Dallas concedes that the issue as to application of Section 5.036 was before the trial court in the statement: “The question was the subject of oral argument before the trial court, and it is met in the trial court’s letter opinion.”

Although we are aware of the provisions of Rule 166-A(c) that “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,” (emphasis added) we conclude that this Court may consider the points of error under which the issue is raised on appeal.

As pointed out earlier, both appellants also contend that Sections 5.041 and 6.056 of the Water Code provide statutory grounds for the Commission to exercise authority over water sales by the City of Dallas outside its corporate limits. Section 5.041 authorizes “[a]ny person entitled to receive or use water from any canal, ditch, flume, lateral, dam, reservoir, or lake, or from any conserved or stored supply may present to the commission a written petition . . ” (Emphasis added). Section 6.056 plainly provides that “The commission shall fix reasonable rates for the furnishing of water for any purpose mentioned in Chapter 5 or 6 of this code.” (Emphasis added). The purposes for which State water may be appropriated, stored, or diverted includes, at the outset, water for “domestic and municipal uses, including water for sustaining human life . . . ” Section 5.023, Texas Water Code.

Against the position of appellants that Sections 5.041 and 6.056 are controlling, the City of Dallas argues that the only persons entitled to invoke Section 5.041 are those who are entitled to receive or use water from canals, ditches, flumes, lakes and other open means of conserving and storing waters, which would not find application to pipelines maintained by Dallas to effect distribution of water.

In this connection Dallas urges that the provisions of Section 5.041 are the “vestigal remains” of “an ancient irrigation law” applying only to open waterways, and, under the principle of “expression of one thing is exclusion of another,” the enumeration of open facilities, suitable to convey or hold raw water, would exclude enclosed pipes delivering treated potable water, such as the Dallas distribution system. The argument appears to be grounded mainly on the contention that the statutes are limited to irrigation waters and do not affect domestic water. We find the contention without merit.

Although at some stages in the evolution of the statutes the laws have been referred to as irrigation laws, it cannot be said that the statutes do not concern subjects other than irrigation. In 1913 the Legislature repealed earlier water laws, primarily applicable to the arid regions of Texas, and adopted a uniform system of water laws for the entire state. In essence the Act of 1913 (Acts 1913, 33rd Leg., ch. 171, p. 358) declared all waters within Texas to be the property of the State, and provided means by which upon application the waters could be appropriated for designated purposes, including “waterworks for cities and towns.” (Secs. 2 and 4).

One of the active sponsors of the Act of 1913, Representative D. W. Glasscock, whose district comprised Hidalgo, Starr, and Brooks Counties, in addressing the House in behalf of the measure, clearly stated:

“While known as the ‘Irrigation Bill,’ it is in fact much more extensive in scope than this term would indicate, and is an effort to form a comprehensive system of statutory ‘Water Law’ for this State. It deals, not only with the important question of irrigation, in which millions of capital is now invested in this State and upon which many thousands of people are dependent; but also with every right to the use of water; from the primary use for drinking and domestic purposes, the supply of cities and towns, the natural use for stock raising, the uses for mining, the development power, and other purposes; up to the problem of conservation of this great natural resource, and its control, application and use, to the benefit of all people of this State.” (Emphasis added). (House Journal, 1913, pp. 949-950).

Sections 60 through 63 of the Act of 1913, dealing with “Regulation of Rates,” are the obvious early forebears of Section 5.041 of the present Water Code. The relevant substantive portions of the Act of 1913 were carried forward in the Act of 1917 (Acts 1917, 35th Leg., ch. 88, p. 211) in Sections 2 and 59. In 1918 the Legislature amended the Act of 1917 to provide, among other amendments, in clear language the extent of the power of the Board of Water Engineers (predecessor of the Water Rights Commission) in rate making:

“The said Board shall have power and authority and it shall be its duty to fix reasonable rates for the furnishing of water for the purposes or any purpose mentioned in this Chapter [referring to Chapter 88, the Act of 1917].” (Acts 1918, 35th Leg., 4th C.S., ch. 55, p. 129, adding Sec. 61 — A in Sec. 1).

The addition of Section 61-A in 1918 to the Act of 1917 was placed in the Revised Statutes of 1925 as Article 7563, from which Section 6.056 of the Water Code derives.

Rate making by the Commission and its predecessors has been recognized in Knight v. Oldham, 210 S.W. 567 (Tex.Civ.App. El Paso 1919, writ ref’d); Kohler v. United Irrigation Company, 222 S.W. 337 (Tex.Civ.App. San Antonio 1920, no writ); and more recently by this Court in Trinity River Authority v. Texas Water Rights Commission, 481 S.W.2d 192, 195 (Tex.Civ.App. Austin 1972, writ ref’d n.r.e.). The Supreme Court treated rate making in a controversy involving water for municipal purposes in City of San Antonio v. Texas Water Rights Commission, 407 S.W.2d 752 (Tex.1966). In that case the Guadalupe-Bianco River Authority, referred to by the Court as GBRA, held a permit granting it “. . . authority to appropriate, divert and use certain waters of the State as may be necessary when beneficially used for the purpose of municipal use.”

There the Supreme Court declared:

“GBRA cannot legally refuse to sell municipal water to any particular municipality. The GBRA is under a duty to serve the public without discrimination. See Allen v. Park Place Water, Light & Power Co., (Tex.Civ.App.1925, err. ref.), 266 S.W. 219. The Texas Statutes, herein discussed, specifically entitled the Water Rights Commission to compel GBRA to furnish municipal water without discrimination. Article 7560 provides that any person entitled to use water from any reservoir can present a petition to the Commission showing that GBRA has a supply of water not contracted to others and available for his use. Upon such showing and upon the further showing that GBRA has failed and refused to supply such water to him, GBRA can be compelled to deliver such water in accordance with the Commission’s order. Not only that, safeguards are statutorily provided in the event GBRA should seek to supply an unreasonable amount of water to any particular municipality, or should seek to fix an unreasonable price for municipal water. The Water Rights Commission .is entitled under Article 7563 to fix reasonable rates to be charged by GBRA for furnishing the water for all purposes. . . .” (407 S.W.2d 752, 768).

This Court subsequently, in Trinity River Authority, stated the statutory development and present authority of the Commission to fix reasonable rates for furnishing water for any purpose mentioned in Chapters 5 and 6 of the Water Code:

“The rate making authority of the Commission began with its predecessor agency, the State Board of Water Engineers, in 1913 with enactment of Articles 7560, 7561, and 7562, Revised Civil Statutes of 1925, (Acts 1913, 33rd Leg., p. 358, ch. 171, secs. 60, 61, 62) brought forward as Section 5.041 of the Texas Water Code (Acts 1971, 62nd Leg., ch. 58), effective August 30,1971, V.T.C.A. The rate making jurisdiction was expanded in 1918 when the antecedent statute of Article 7563 was enacted to cover furnishing water for any purpose mentioned in the Irrigation Act of 1917. (Acts 1918, 35th Leg., 4th C.S., p. 129, ch. 55). As brought forward in the Texas Water Code (Sec. 6.056) the statute empowers the Commission to ‘. . .fix reasonable rates for the furnishing of water for any purpose mentioned in Chapter 5 or 6 of this code.’ ” (481 S.W.2d 192, 195).

The argument of Dallas that the Commission’s rate fixing authority extends only to sales of water by a canal company or irrigation district in supplying water for city waterworks, and does not extend to sales by a city to its customers, fails to take into .account the fact that the Dallas customers are themselves municipalities purchasing water for waterworks. Dallas enjoys a substantial monopoly closely resembling that of canal and irrigation entities occupying a monopolistic position. Dallas over a long period of time has secured permits to appropriate State waters which are so extensive as to afford Dallas control of substantially all municipal water supplies in Dallas County-

We find it reasonable to conclude that Dallas has become subject to the statutes, just as the laws apply to irrigation and canal entities, since Dallas furnishes water from “any conserved or stored supply” for the operation of municipal waterworks.

We find the contention of the City of Dallas, alternatively, that the order of the Commission was invalid, as one seeking to exercise authority retroactively, without merit. This Court disposed of a similar contention in United Gas Public Service Company v. State, 89 S.W.2d 1094 (Tex.Civ.App. Austin 1935, writ ref’d; affirmed, 303 U.S. 123, 58 S.Ct. 483, 82 L.Ed. 702). The essentials of the holding are found in the statement: “The rule is settled that a public utility commission has the power to make its rate order retroactively effective as of any date after it has actually acquired jurisdiction of the cause, and, in consequence, may order the refund of excessive rates paid from and after the retroactively effective date of the order.” (89 S.W.2d 1094, 1104, col. 1). The refund order of the Commission was in conformity with this rule.

For the reasons stated, we reverse the judgment of the trial court granting motion of the City of Dallas for summary judgment and dismissing the petitions of appellants. We remand the cause to the district court for trial on the merits.

Reversed and Remanded.


source: Caselaw Access Project

author: OSBORN, Justice.

license: Public Domain

text:
    CUPPLES COILED PIPE, INC., and Cupples Company, Manufacturers, Appellants-Appellees, v. ESCO SUPPLY COMPANY, Appellee-Appellant.
    No. 6877.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 5, 1979.
    Rehearing Denied Dec. 31, 1979.
    Kendall, Randle, Finch & Osborn, Terrence Kendall, Austin, for appellants-appel-lees.
    Philip E. Hamner, San Antonio, for ap-pellee-appellant.
   OPINION

OSBORN, Justice.

Based upon a jury verdict, Esco Supply Company (Esco) recovered judgment against Cupples Coiled Pipe, Inc. (CCP) and Cupples Company, Manufacturers (CCM) for damages resulting from the manufacture and sale of defective pipe. Recovery was denied to Esco for attorney fees and litigation expense incurred in litigating claims of third parties. All parties have perfected an appeal from that part of the judgment which was adverse to them. We affirm.

This case involves three basic issues. The first is with regard to what caused the pipe to fail. The second is whether CCM is liable for damages resulting from the manufacture and sale of pipe by CCP. The third is whether Esco may recover litigation expense it incurred in defending the third party claims made against it by those who purchased pipe. In answer to special issues, the jury found (1) the pipe manufactured by CCP was defective; (2) the defective condition was a producing cause of the failure of the pipe; (3) the manner in which the pipe was utilized did not exceed the operating temperature and pressure for the pipe; (4) unanswered; (5) the percentage of failure from defective pipe was 100% and from utilization was 0%; (6) CCP was in effect the servant of CCM; and (7) the cost to repair or replace the defective pipe was $52,098.10.

DEFECTIVE PIPE

In 1967, CCP began production of poly vinyl chloride pipe (PVC) which was used primarily for cold water plumbing systems. Several years later, CCP began production of chlorinated poly vinyl chloride pipe (CPVC) which could be used in hot water plumbing systems. In 1974, CCP filled an order from Esco and shipped to it approximately $10,000.00 worth of various sizes of CP VC Schedule 40 and Schedule 80 pipe. Esco, a wholesale plumbing supply company, sold part of such pipe to various plumbing contractors in San Antonio including C. R. Blank Plumbing Company and Gibson Plumbing Company. These contractors installed the pipe in the plumbing system in several apartment complexes in San Antonio. For a period of about two years thereafter, Esco received numerous complaints about breaks and leaks in this pipe, and much of it had to be replaced. Esco eventually paid C. R. Blank Plumbing Company $26,000.00 and Gibson Plumbing Company $26,098.10 to settle their claims against Esco for the cost of replacing pipe manufactured by CCP which was claimed to have been defective.

By two points of error, it is asserted that the jury’s answers to special issues 3 and 5 are against the great weight and preponderance of the evidence and such answers are manifestly wrong. First, we must note that there is substantial evidence that the pipe was defective and the Appellants CCP and CCM do not attack the jury answer to special issue 1 which found that the pipe was defective.

Earl Doyle, a plastics consultant, testified concerning the operating pressure for Schedule 40 CP VC pipe at various temperatures and noted a safety factor of over 300%. At a temperature of 150° the maximum operating pressure would be 131.6 psi, at 160° it would be 112 psi and at 170° it would be 89.6 psi. There was evidence that the thermostats at the apartment complexes had been set at from 145 to 160 or 170°. Tests at the various complexes indicated a water pressure from around 65 to 70 psi. Calculations by the City Director of Engineering indicated slightly higher pressures in some instances, but no actual tests were conducted by him. One professional engineer indicated that there should be no failure in this pipe at 70 psi and at temperatures less than 180°. Applying the test in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), and considering all the evidence on the issue, we conclude that the jury findings in answer to special issues 3 and 5 are not against the great weight of the evidence. Points of error VI and VII are overruled.

PARENT COMPANY LIABILITY

Cupples Company, Manufacturers (CCM) was organized in 1882. In 1965, it owned a substantial amount of stock in American Polystyrene Corporation (APC) and Precision and Scientific Industries, Inc. (PSI). In January, 1965, CCM caused Cupples Container Company (CCC) to be formed and about the same time an agreement was entered into whereby CCC would acquire the assets of Universal Container Corporation. In 1966, CCC acquired the remaining stock in APC and PSI. The following year, CCC acquired all of the outstanding stock of MagiCup Corporation. By the end of 1967, CCM had advanced funds to CCC totaling more than two million dollars.

CCP was incorporated as a Texas corporation in 1968. Its initial capitalization was $100,000.00 and CCC owned 85% of the stock. From 1966 through 1969, APC lost $1,929,650.00. From 1966 through 1970, PSI lost $376,754.00. During the period from 1967 through 1970, MagiCup Corporation lost $259,922.00.. From 1968 to 1976, CCP lost $2,585,959.00. By the end of 1974, CCC had cumulative losses of $7,798,514.00. At that time it was liquidated and its assets transferred to CCM, including the shares which it was holding of CCP. By the end of 1974, CCM had paid for stock and contributed to the capital of CCC the sum of $2,783,525.00 and in addition had loaned or advanced to that corporation the sum of $7,526,848.00. Almost one-third of those sums ended up in CCP. The total sum advanced to CCP was $1,305,897.00 and in addition another $1,600,000.00 in advances was converted to common stock and additional paid-in capital.

At the time the pipe yvas sold by CCP in 1974, Marion Stuhl was president of CCM and CCP. Allán Barton, financial vice president of CCM, was also secretary-treasurer of CCP. At the time of its organization in 1968, three of the six board members of CCP were also CCM representatives and by 1974 all of the directors were representatives of CCM. When CCP went out of business at the end of 1975, its remaining assets were sold for $329,228.00 evidenced by a promissory note which was assigned by CCP to CCM as a credit on the debt owed to it by CCP. Thus, this suit ended up being against only a corporate shell and the parent company which had received the only valuable asset of the defunct pipe manufacturer.

An accountant who examined the financial statements of the various corporations testified that their relationship was more than just a stockholder relationship. He described it as a home office-branch warehouse operation whereby one spoon-fed the other to keep it alive. He said CCC and CCP were not adequately capitalized. He concluded the financial operations and the advancing of funds were not consistent with independent corporate entities. He also testified that the advance of money as accounts rather than loans adequately secured did not reflect a true stockholder relationship.

The Court in State v. Swift & Co., 187 S.W.2d 127 (Tex.Civ.App.—Austin 1945, writ ref’d), said:

The general rule seems to-be that courts will not because of stock ownership or interlocking directorship disregard the separate legal identities of corporations, unless such relationship is used to defeat public convenience, justify wrongs, such as violation of the anti-trust laws, protect fraud, or defend crime. State v. Humble Oil & Refining Co., Tex.Civ.App., 263 S.W. 319 (writ ref.); Berkey v. Third Avenue Ry. Co., 244 N.Y. 84, 155 N.E. 58, 50 A.L.R. 599; Cannon Manufacturing Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634; . . .

That decision was cited with approval in Bell Oil & Gas Company v. Allied Chemical Corporation, 431 S.W.2d 336 (Tex.1968), where the Court discussed the issue of holding a parent corporation liable for a contract with a subsidiary. In recognizing the problem involved, Justice Norvell wrote:

Dean Hildebrand has observed that, ‘What circumstances will be required in order to make one corporation a mere agent or tool in the hand of another so that the corporate entity will be disregarded, is difficult to determine.’ 1 Hildebrand, Texas Corporations 43 (1942). It seems reasonably certain, however, that the corporate arrangement must be one which is likely to be employed in achieving an inequitable result by bringing into operation a basically unfair device which in all probability will result in prejudice to those dealing with one or more of the units making up the corporate arrangement, or one which has actually resulted in the complaining party’s having been placed in a position of disadvantage by the exercise of inequitable means, of which the corporate arrangement is a part.

In 1975, the Texas Supreme Court in Gentry v. Credit Plan Corporation of Houston, 528 S.W.2d 571 (1975), recognized again the general rule noted above, but sought to relax the rule in tort cases. In its opinion, the Court said:

Unlike a suit for breach of contract, the plaintiff in a tort case does not have the burden of justifying a recovery against the parent when he willingly contracted with the subsidiary. The problem in such a case is essentially one of allocating the loss. It is not necessary to establish fraud, and the financial strength or weakness of the subsidiary is an important consideration. .

Our problem is we are involved in a tort case (strict liability for a defective product) but one which arose out of a contractual arrangement whereby the purchaser chose the seller and dealt with it alone and not the parent company. If the problem be one of allocating the loss, and the financial weakness of the subsidiary is an important consideration, then the answer is relatively simple. The subsidiary is for all practicable purposes broke, it is out of business, and the loss can only be allocated to the parent company. But, in this case, there is more. Obviously, CCP was under-capitalized for the operations it was going to conduct. It could not have continued doing business except for the continual influx of substantial amounts of cash from CCM. Even its payroll was dependent upon weekly deposits of money supplied by both CCM and CCC and most, if not all, of the sums were made available upon a telephone call making known a need, not a negotiated loan with security to protect the party advancing the money. And, when the end came, what assets remained were funneled back to the parent corporation. We conclude Esco was “placed in a position of disadvantage by the exercise of inequitable means, of which the corporate arrangement is a part.” This arrangement was grossly unfair and could be labeled constructive fraud. Tigrett v. Pointer, 580 S.W.2d 375 (Tex.Civ.App.—Dallas 1978, writ ref’d n. r. e.). Also see 1 Fletcher, Cyclopedia of the Law of Private Corporations, sec. 43 at 212 (1974). Points of error I, II and V are overruled.

A more difficult problem is presented as to whether special issue 6 is sufficient to support a verdict for the Appellee. That issue inquires:

Do you find from a preponderance of the evidence that at the time the CPVC pipe in question was sold Defendant Cup-ples Company Manufacturers so dominated and controlled the business of Defendant Cupples Coiled Pipe, Inc., that Defendant Cupples Coiled Pipe, Inc., was not a separate and distinct entity in the conduct of its own business but was in effect the servant of Defendant Cupples Company Manufacturers in selling the CPVC pipe in question?
As used herein, ‘Servant,’ means one who acts not for himself but on behalf of or in the interest of one other than himself.
Answer ‘We do,’ or ‘We do not.’
Wé, the Jury, answer We do_.

The objections to the form of the issue were primarily that it did not submit all of the necessary elements to establish that one corporation was the alter ego of the other. But, objections were also made that:

F. Such issue does not establish criteria by which the jury is to determine whether or not a relationship of ‘alter ego’ or ‘agency’ is to be established, but, in effect, leaves it up to the jury to determine what those criteria are.
G. Fails to establish a basis upon which the jury can measure the extent to which dominion and control could make one corporation the servant of another.

We are inclined to agree that the issue might be defective if liability is to be based solely upon an alter ego claim. But, it appears to us, the issue was framed so as to submit to the jury the issue of liability based upon an agency theory. See: Corporate Liability-Subsidiary, 38 A.L.R.3d 1102 see. 4 at 1116 (1971). We conclude the issue is sufficient for that purpose and the objections made are too general and do not show reversible error. Points of error III and IV are overruled.

LITIGATION EXPENSE

Esco has appealed from that part of the judgment which denied it recovery, of third party litigation expense which was incurred in defending claims made by those to whom the defective pipe was furnished. The parties stipulated and the Court found that $22,167.95 was the amount of litigation expense necessarily and reasonably incurred by Esco as a result of third party claims arising out of the sale of the defective pipe. However, the trial Court denied Esco recovery for such litigation expense.

After Esco filed the original suit against the manufacturer of the pipe, the two plumbing contractors, Blank and Gibson, both intervened suing Esco and the manufacturer. Also, an owner of one of the apartment complexes also intervened suing Esco and others. All of these claims were eventually settled and it was agreed that the claim of Esco for recovery of its litigation expense would be heard by the Court without a jury. Of the total expense incurred, $21,292.00 was for attorney fees and $875.95 for other litigation expense.

Esco does not cite any Texas authorities to support its position. It relies upon several text book statements with regard to litigation expenses arising out of a breach of contract. See Restatement of the Law, Contracts sec. 334 (1932); 22 Am.Jur.2d Damages sec. 166 at 235 (1965); 5 Corbin on Contracts sec. 1037 at 225 and 228 (1964). It also relies upon the holding in De La Hoya v. Slim’s Gun Shop, 80 Cal.App.3d Supp. 6, 146 Cal.Rptr. 68 (1978), and the cases cited in that opinion.

First, we must note that Esco’s recovery in this case is based upon strict liability and is a tort theory of recovery. This is not a case for breach of contract. In Wm. Cameron & Co. v. American Surety Co. of New York, 55 S.W.2d 1032 (Tex.Com.App.1932), the Court considered the question of a right to attorney fees as a result of litigation by third parties. In denying recovery, the Court said:

It is settled law in this state that, unless provided for by statute or by contract between the parties, attorneys’ fees incurred by a party to litigation are not recoverable against his adversary either in an action in tort or a suit upon a contract. 13 Tex.Jur. p. 196; 11 Tex.Jur. p. 302. Counsel fees incurred in prosecuting a suit for or defending against a wrong are not ordinarily recoverable as actual damages. Closner v. Chapin (Tex.Civ.App.) 168 S.W. 370.
This is in harmony with the general rule in most of the states. 15 C.J. p. 114; Union Ind. Co. v. Vetter (C.C.A.) 40 F.2d 606.

That rule has continued to be followed in this State. Mundy v. Knutson Construction Company, 156 Tex. 211, 294 S.W.2d 371 (1956); New Amsterdam Casualty Company v. Texas Industries, Inc., 414 S.W.2d 914 (1967); Mays v. Witt, 387 S.W.2d 688 (Tex.Civ.App.—Amarillo 1965, no writ).

We recognize that there are cases which have made exceptions and have permitted such recovery. See Modine Manufacturing Company v. North East Independent School District, 503 S.W.2d 833 (Tex.Civ.App.—Beaumont 1973, writ ref’d n. r. e.); Fisher Construction Company v. Riggs, 320 S.W.2d 200 (Tex.Civ.App.—Houston 1959) rev’d on other grounds, 160 Tex. 23, 325 S.W.2d 126. But, this case does not come within those exceptions. Inequitable as it may be, the law does not provide for the recovery of litigation expense in this case. Esco’s points of error 1 and 2 are overruled. The judgment of the trial Court is affirmed.


author: PHILLIPS, Chief Justice.

text:
    Glen A. FRENCH, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    No. 13004.
    Court of Civil Appeals of Texas, Austin.
    Dec. 5, 1979.
    Richard F. Jacobs, Hall, Laden & Jacobs, P. C., Austin, for appellant.
    Mary Joe Carroll, David C. Duggins, Clark, Thomas, Winters & Shapiro, Austin, for appellee.
   PHILLIPS, Chief Justice.

This is an appeal from a summary judgment in favor of the appellee, Insurance Company of North America. The insurance' company issued a policy of automobile insurance to appellant on May 29, 1977. This policy provided comprehensive-liability coverage. It also provided uninsured motorist protection for bodily injury, pursuant to Tex.Ins.Code Ann. art. 5.06-1, but did not provide uninsured motorist coverage for property damage, which was not required by Art. 5.06-1 when the policy was issued.

Effective August 29, 1977, the Legislature of the State of Texas amended Art. 5.06-1 (1977) to provide coverage for property damage caused by uninsured motorists in all automobile liability insurance policies delivered or issued for delivery after the effective date of the amendment. On December 15, 1977, the appellant obtained an additional car, a Chevrolet, and the parties agreed to insure this car by amended declaration of the policy previously issued.

On April 18, 1978, the Chevrolet was involved in an accident with an uninsured motorist. Appellant made demand upon appellee for payment of property damage pursuant to the coverage added on December 15,1977. The insurance company refused the claim on the basis that the policy issued on May 29, 1977, and amended by amended declaration to include coverage of the Chevrolet, did not include coverage for property damage resulting from a collision with an uninsured motorist.

The question for our determination is whether the amended declaration made on December 15, 1977, included as a matter of law coverage for property damage resulting from a collision with an uninsured motorist. Appellant contends that this additional coverage, issued subsequent to the date on which the Legislature amended Art. 5.06-1, constituted a separate and distinct policy, and required that the insurance company include this coverage unless rejected in writing by the insured.

Both parties filed motions for summary judgment. The trial court granted appel-lee’s motion and denied appellant’s. Appellant’s sole point of error is that the trial court erred in denying his motion for summary judgment and granting appellee’s motion.

The general rule is that a rider attached to an insurance policy merges into the insurance policy to which it is attached. Glens Falls Insurance Company v. Manning, 362 S.W.2d 385 (Tex.Civ.App.—Texarkana 1962, no writ). The rider thus is treated as a part of the insurance contract with which it merges. Dunn v. Traders and General Insurance Company, 287 S.W.2d 682 (Tex.Civ.App.—Dallas 1956, writ ref’d n. r. e.). It is also settled law that contracts of insurance are to be construed as other contracts, and all parts of the contract are to be taken together, and such meaning shall be given to them as will carry out and effectuate to the fullest extent the intention of the parties. Republic National Life Insurance Company v. Spillars, 368 S.W.2d 92 (Tex.1963).

There is no question but that the coverage of the Chevrolet by endorsement was in effect pursuant to the original insurance policy issued on May 29, 1977. Appellant has so admitted in response to “Defendant’s [Appellee’s] Request for Admissions.” This matter is thus conclusively established against appellant. Rule 169, Texas Rules of Civil Procedure.

Appellant cites the case of Cockrum v. Traveler’s Indemnity Company, 420 S.W.2d 230 (Tex.Civ.App.—Dallas 1967, no writ), for the proposition that an automobile insurance policy must be regarded as being separate and distinct as to each automobile insured. We disagree with appellant’s interpretation, as the Cockrum case merely holds that an insured may contract for different coverage for each automobile covered, and that the liability of an insurer in a particular case depends upon the coverage applicable to the automobile in question. Thus, the coverage on each automobile may be separate and distinct, but the contract of insurance is nevertheless indivisible.

We hold in accordance with the settled law that the amended declaration made on December 15, 1977, did not create a new contract of insurance, and that we must view this contract of insurance in its entirety as of the date of issue, May 29, 1977.

To hold that the amended version of Art. 5.06-1 should be read to compel its inclusion in a subsequent amendment of an insurance contract would be inconsistent with Tex. Const. Art. I, § 16, which prohibits both retroactive laws and laws impairing the obligation of contracts. Although no Texas court has faced the specific issue whether uninsured motorist coverage is included as a matter of law in amendments to an automobile insurance policy made after the enactment of the statute, the Court of Appeals of Michigan in Wells v. Detroit Automobile Inter-Insurance Exchange, 29 Mich.App. 235, 185 N.W.2d 147 (1971), held that such a reading violated the Michigan constitutional provisions prohibiting a law impairing the obligation of contracts. We agree with this holding for the reasons set forth below.

A statute is retroactive, and prohibited by the Constitution, if it takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or adopts a new disability in respect to transactions or considerations already passed. International Life Insurance Co. v. Maas, 458 S.W.2d 484 (Tex.Civ.App.—Houston [1st Dist.] 1970, writ ref’d n. r. e.).

The insurance contract issued on May 29, 1977, created the obligations of the parties of this suit. Since we have held that the amended declaration did not create a new policy, but merged with the original policy, it would be contrary to Art. I, § 16, of our Constitution to hold that the amended uninsured motorist statute imposed a new duty upon the parties. To do so would impair vested rights acquired under existing laws.

We are further guided by the rule that statutes are held to operate prospectively unless the contrary construction is required by the language of the Article. Tex.Rev.Civ.Stat.Ann. art. 5429b—2, § 3.02 (Supp.1978); Cox v. Robinson, 105 Tex. 426, 150 S.W. 1149 (1912). The same legislature which amended Art. 5.06-1 also passed another amendment to the Insurance Code which has now been codified as Article 21.-35A (Acts 1977, 65th Leg., Ch. 556, p. 1389):

“Any person who is covered by a policy, contract, or certificate of group insurance or of a group hospital plan including but not limited to coverage issued by a company operating under Chapter 20, Insurance Code, as amended, and whose policy, contract, or certificate provides for services or partial or total reimbursement for services that are within the scope of practice of a licensed psychologist, is entitled to obtain these services or receive reimbursement for these services regardless of whether the services are performed by a licensed doctor of medicine or a licensed psychologist. This article applies to all policies, contracts, and certificates issued, renewed, modified, altered, amended, or reissued on or after the effective date of this article.” (Emphasis added).

The use of the words “modified, altered, amended” indicates that the Legislature was aware of the language necessary to'cause the amended statute to apply to endorsements or riders to insurance policies. Since no such language was used in the amended version of Art. 5.06-1, we conclude that the Legislature did not intend that the amendment apply to policies issued before the date of the amendment.

Accordingly, the judgment of the trial court is affirmed.

      . Mich.Const.1963, Art. I, § 10. The Texas constitutional provision is identical except that it also prohibits a retroactive law.


author: SHANNON, Justice.

text:
    Glennetta SANDERSON, Independent Executrix of the Estate of John Turner Sanderson, Deceased et al., Appellants, v. George Shelby SANDERSON, Individually and as Administrator of the Estate of Ivan Glenn Sanderson, Deceased et al., Appellees.
    No. 12974.
    Court of Civil Appeals of Texas, Austin.
    Dec. 5, 1979.
    Rehearing Denied Dec. 5, 1979.
    William E. Adams, Richard T. Miller, Senterfitt, Adams, Miller & Childress, San Saba, for appellants.
    William W. Bell, Brownwood, for appel-lees.
   SHANNON, Justice.

The opinion of this Court handed down on November 14, 1979, is withdrawn, and the following opinion replaces it.

Appellees filed suit in the district court of San Saba County seeking judgment for damages for the wrongful death of Ivan Glenn Sanderson and for the imposition of a constructive trust upon that part of the estate of Glenn that would have passed to appellants by the law of descent and distribution. After trial to a jury, the district court entered judgment imposing the constructive'trust. We will reverse the judgment and remand the cause for a new trial.

Glenn Sanderson and John Turner Sand-erson were half-brothers. Both men died in San Saba County of gunshot wounds on January 23, 1976. Glenn died intestate and John Turner died testate. The parties are accounted for in the margin.

Appellee’s contention was that John Turner rose up against Glenn his brother and slew him with two shotgun blasts. John Turner was discovered the same day in his house, dead from a rifle shot that passed under the chin and through the head. Appellees claimed that John Turner, in a fit of remorse, took his own life.

Because John Turner’s right to share in Glenn’s estate was allegedly burdened by the primal curse, appellees argued that equity should not permit title to pass to John Turner, his heirs, legatees or beneficiaries. Instead, appellees contended that the court should impress upon that share a constructive trust for the benefit of the other heirs of Glenn Sanderson, namely themselves.

The court’s charge contained four special issues. The jury answered the initial issue that on January 23, 1976, John Turner wrongfully shot and killed Glenn. By their answers to the other issues the jury refused to find compensatory damages and refused to assess exemplary damages. Appellees filed no cross-points challenging the jury’s refusal to find damages.

The district court’s judgment imposed a constructive trust upon the estate of Glenn to the extent of the interest that passed to John Turner “. . . and/or his heirs at law and next of kin . . . ” The judgment further directed Glennetta Sanderson, individually and in her capacity as independent executrix of the estate of John Turner, and her children to convey to appellees and Wilma Lou Smith their interest in the estate of Glenn.

Appellants attack the judgment by several points of error. Three points attack the factual cornerstone of the judgment, the jury’s finding that John Turner killed his brother. Appellants claim that the finding is supported by no evidence or, alternatively, by insufficient evidence.

By entry of the judgment the district court necessarily must have concluded that because neither the slayer nor his heirs, legatees, or beneficiaries might profit by fratricide, a constructive trust should be imposed upon their interest in the estate of the fallen brother. Should there be no support or insufficient support in the evidence for the jury’s finding, the judgment must fall without regard to the law questions concerning the imposition of the constructive trust.

In considering a “no evidence” point, the reviewing court must reject all evidence contrary to the jury’s finding and consider only the facts and circumstances that tend to support those findings. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914). In reviewing factual sufficiency points of error, the court considers all of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.1951).

The district court included the following instruction in the charge: “A fact may be established by direct evidence or by circumstantial evidence or both. A fact is established by direct evidence when proved by witnesses who saw the act done or heard the words spoken or by documentary evidence. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved.” There was no objection to the instruction.

The body of Glenn Sanderson was found face-down in his field alongside a line of open post holes during the late afternoon of January 23, 1976. The scalp, skull, and brain exhibited massive injuries caused by two shotgun blasts. Two shotgun shells and wadding were found at the scene of the shooting. There was testimony that the second blast was made at close range. There was no direct evidence as to the identity of the assassin.

Earlier in the same afternoon, the corpse of John Turner Sanderson was discovered in the washroom of his house, lying on the right side with a rifle to the side. The entry point of the bullet was under the chin. There was gunpowder about the edges of the wound under the chin. The testimony was that the character of gunshot wound involved was consistent with suicide.

George Shelby Sanderson testified that John Turner and his brother Glenn “. . . did not get along all right.” Harvey Reeves, a justice of the peace of San Saba County, testified that John Turner’s son, Thomas, told him that his father and his uncle Glenn had disagreed recently and may have traded “a lick or two.” Because Thomas was a party to the suit, his statement to the justice of the peace was admissible as an admission against interest, an exception to the hearsay rule. II McCormick and Ray, Evidence, § 1121 (2nd Ed., 1956).

Appellees attempted to prove that Glenn was slain with a shotgun owned by John Turner. Sheriff Brantley Barker testified that someone brought him a twelve gauge shotgun, said to have been found in John Turner’s pickup truck. Barker did not identify who delivered the firearm to him.

The sheriff took the shotgun to a hardware store in San Saba where John Turner reportedly had taken his shotgun for repairs in the past. The sheriff testified that the serial number of the shotgun in his possession corresponded with the serial number in the records of the hardware store. Appel-lees called no one from the hardware store to prove up the store records and to prove that in the past John Turner had brought in the shotgun for repairs.

Appellees proved that the shotgun, together with the shells and wadding found near Glenn Sanderson’s corpse, was delivered by the sheriff to a Texas Ranger who took those items for testing to the Ballistics Crime Laboratory of the Department of Public Safety in Austin. After the usual tests and comparisons were made at the laboratory, the supervisor of the laboratory, Fred Reimer, testified that he was of the opinion the shells found near Glenn Sander-son’s corpse were fired from the shotgun allegedly owned by John Turner Sanderson.

After the shotgun was returned from Austin to San Saba, the sheriff testified that he “gave it to the family.” As to the identity of the recipient of the shotgun the sheriff testified only that, “I’m not sure which one [of the Sandersons] but it was some of the family that pickup (sic) them up.”

One problem with appellees’ proof is that the sheriff’s testimony concerning the discovery of the shotgun in John Turner’s pickup truck is hearsay evidence of no probative force or effect. Also hearsay is the sheriff’s evidence that John Turner had previously taken his shotgun to the hardware store for repairs. An employee of the store could have been called to prove up that fact and also prove up the records showing the serial number of the weapon repaired. No objection was made to the admission of the hearsay evidence, but’none was necessary since hearsay evidence is without probative value whether objected to or not. Aetna Insurance Company v. Klein, 160 Tex. 61, 325 S.W.2d 376 (1959); Henry v. Phillips, 105 Tex. 459, 151 S.W. 533 (Tex.1912); Knapik v. Edison Bros., Inc., 313 S.W.2d 335 (Tex.Civ.App.1958, writ ref’d).

Because there was no probative evidence that the shotgun submitted for testing at the ballistics laboratory was owned by John Turner, the opinions of Fred Reimer were of no probative value in connecting John Turner with the slaying.

Texas Ranger Bob Favor was permitted to testify without objection that based upon his “investigation” he was of the opinion that “. . . Ivan Glenn Sanderson met his death at the hands of John Turner Sanderson.” Likewise, Sheriff Barker testified without objection that premised upon his investigation he had formed the opinion that the death of Glenn Sanderson was caused by a gunshot wound from a shotgun owned by John Turner Sanderson.

Appellants urge that we give no effect to Favor’s and Barker’s opinion evidence in our review of the record because unsupported conclusions of a witness do not constitute evidence of probative force and will not support a jury finding even when admitted without objection. Dallas Railway & Terminal Company v. Gossett, 156 Tex. 252, 294 S.W.2d 377 (1956). We agree.

If appellants had objected, the witnesses’ opinions would not have been admitted. Favor and Barker were not in any better position than were the jurors to draw inferences and conclusions from the facts presented. None of the admissible facts presented by Favor and Barker tended to prove that John Turner killed Glenn, and, accordingly, their opinions based upon these facts do not constitute probative evidence. See Sinclair Oil & Gas Company v. Adams, 392 S.W.2d 721 (Tex.Civ.App.1965, writ ref’d n. r. e.).

Considering only the evidence most favorable to the jury’s finding and disregarding entirely what is opposed to it or is contradictory, Renfro Drug Co. v. Lewis, supra, we have concluded that the jury’s answer was supported by the following evidence: Relations between John Turner and his brother Glenn were not amicable. In fact, they had “traded licks” a few days before January 23, 1976. Both men were found dead on January 23,1976. Glenn had been shot twice with a twelve gauge shotgun. The shotgun was given back to some member of the Sanderson family. John Turner was shot with his rifle under conditions consistent with suicide.

Although we acknowledge that the question poses some difficulty, we have concluded that the jury’s answer that John Turner killed his brother is at least supported by some evidence. Accordingly, appellants’ “no evidence” point of error is overruled.

In considering the insufficient point of error this Court has reviewed the entire record, In Re King’s Estate, supra, and this Court is of the opinion that the evidence is insufficient to support that answer. Appellants’ “insufficient evidence” point of error is granted.

Appellees filed no cross-points with respect to the failure of the jury to answer favorably the special issues submitting damages pursuant to their wrongful death theory. Accordingly, that part of the judgment was not appealed to this Court and, of course, is now final. The judgment imposing the constructive trust is reversed and the cause is remanded for new trial.

      . Appellees are George Shelby Sanderson, Janet Leigh Jones and Marshall Lin Jones by their next friend Marshall Jones, Susan Arin Jones and Wilma Jean Myers. George Shelby Sand-erson was a full brother to Glenn Sanderson. Glenn Sanderson died a single man and was not survived by his mother or father. Appellants are Glennetta Sanderson, individually and in her capacity as Independent Executrix of the Estate of John Turner Sanderson, Wilma Lou Smith, Sandra Kay Parks, and Thomas Arlin Sanderson. Glennetta Sander-son was the wife of John Turner Sanderson, and Sandra Kay Parks and Thomas Arlin Sand-erson are their children. Wilma Lou Smith was a full sister to John Turner Sanderson.


author: DODSON, Justice.

text:
    In the Interest of L. L. K., Jr., a Child.
    No. 9013.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 5, 1979.

      Thomas Giovannitti, Legal Aid Society of Lubbock, Inc., Lubbock, for appellant. .
    A. W. Salyars, Lubbock, for appellee.
   DODSON, Justice.

In this appeal, we determine that the grandparents may not maintain an independent suit for access to their grandchild under section 14.03(d) of the Texas Family Code, unless a managing conservator is appointed for the child under section 14.03(a) of the Code.

Willis T. Winton, the step-grandfather, and Jean Winton, the maternal grandmother, instituted this independent action seeking appointment as possessory conservators of and for access to their grandchild. Dre-na Jean Nail, the natural mother of the child, answered by a motion to dismiss alleging, inter alia, that the petition failed to state a cause of action under section 14.03 of the Texas Family Code. After a hearing on the motion, the trial court dismissed the action. The Wintons appeal from the order of dismissal. We affirm.

On appeal, the Wintons maintain the trial court erroneously dismissed their petition because it states a cause of action under section 14.03(d). Drena Nail says the judgment is correct, because the grandparents have no right of access to the child under 14.03(d) if no managing conservator is appointed under 14.03(a) of the Code.

Before the legislature enacted section 14.03 of the Texas Family Code, effective January 1, 1974, grandparents had no legal right of access to their grandchildren. Barrientos v. Garza, 559 S.W.2d 399, 400 (Tex.Civ.App.—Dallas 1977, no writ). Presently, section 14.03 of the Code provides that:

(a) If a managing conservator is appointed, the court may appoint one or more possessory conservators and set the time and conditions .for possession of or access to the child by the possessory conservators and others.
(b) On the appointment of a possessory conservator, the court shall prescribe the rights, privileges, duties, and powers of the possessory conservator.
(c) The court may not deny possession of or access to a child to either or both parents unless it finds that parental possession or access is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child.
(d) If the court finds that it is in the best interests of the child as provided in Section 14.07 of this code, the court may grant reasonable access rights to either the maternal or paternal grandparents of the child; and to either the natural maternal or paternal grandparents of a child whose parent-child relationship has been terminated or who has been adopted before or after the effective date of this code. Such relief shall not be granted unless one of the child’s legal parents at the time the relief is requested is the child’s natural parent. The court may issue any necessary orders to enforce said decree.

Tex.Fam.Code Ann. § 14.03 (Vernon 1975 & Vernon Supp. 1978-1979).

The Wintons did not plead for an appointment of a managing conservator for the child and no such appointment was made by the court. Thus, the precise question is whether the condition expressed in subdivision (a), i. e., “If a managing conservator is appointed,” applies to the subsequent subdivisions of section 14.03. We conclude that it does.

By the express provisions of subdivision (a), unless a managing conservator is appointed, then, no possessory conservator may be appointed. The same condition precedent necessarily applies to subdivision (b). Also, subdivision (c) concerning the limitation or denial of possession or access of parents, can have no application unless a managing conservator is appointed under subdivision (a). In subdivision (d), the connecting phrase, “If the court finds,” serves to relate this subdivision to the previous subdivisions and to integrate the four subdivisions into a pragmatic and workable unit.

When construing the original provisions of section 14.03, the Dallas Court of Civil Appeals reached a similar result in Barrientos v. Garza, 559 S.W.2d 399 (Tex.Civ.App.—Dallas 1977, no writ). In Barrientos, the maternal grandmother brought an independent action against her son-in-law for access to her grandchildren under section 14.-03(d), as originally enacted. The court held that the condition expressed in subdivision (a), “If a managing conservator is appointed,” applies to the subsequent subdivisions. Id. at 400.

The Dallas court acknowledged that section 14.03(d) changed the common law rule of no access by extending authority to the courts to grant grandparents rights of access in some circumstances. Interpreting the four subdivisions of section 14.03 in their proper context, however, the court concluded that the legislature intended to limit potential litigation to situations in which the court appoints a managing conservator under 14.03(a) rather than creating an independent action for each disagreement occurring between the grandparents and the custodial parents concerning the grandparents’ access to the grandchildren. Id. at 401.

The court’s interpretation of section 14.03 is further supported by the policy of judicial non-interference with the custodial parent’s authority and control over his or her children, and the pragmatic policy of protecting the children from the potentially harmful effects of frequently bitter and emotionally charged litigation over rights of visitation.

The effect of the decision in Barrientos is

that if a child is in the custody of a parent whose rights and responsibilities do not depend on his appointment as managing conservator, that parent has responsibility and authority to determine what persons may have access to the child, and the terms and conditions of their access, and no order by the court is appropriate or authorized.

Id. at 400.

The Wintons rely on Goolsbee v. Heft, 549 S.W.2d 34 (Tex.Civ.App.—Tyler 1977, no writ) to support their position. In Gools-bee, the maternal grandparents brought an independent action against their son-in-law for access to their grandson under the original provisions of section 14.03(d). The appointment of a managing conservator was not requested nor made by the trial court. The Tyler court determined that subdivision (d) “clearly gives the grandparents the right to judicially seek visitation rights to the child, and the court has the authority to order such visitation rights in favor of the grandparents.” Id. at 35.

In distinguishing Goolsbee, the Dallas court stated:

That opinion, however, bears no evidence that the contentions raised were the same as those presented here. Thus, the Tyler court does not seem to have considered the language of subdivision (d) in the light of the preceding subdivisions of section 14.03, and neither does it discuss the possibility that the court’s authority to grant rights of access to grandparents may be limited to cases in which a managing conservator has been appointed. Consequently, we do not consider that decision persuasive in the present case.

Barrientos, supra, at 401.

We agree with the Dallas court’s interpretation of the original subdivisions of section 14.03 in Barrientos, and the rationale and the effect of its decision. We are further persuaded that the connecting phrase, “If the court finds,” expressed in the 1977 amendment to subdivision (d), serves to reinforce our interpretation.

In summary, we overrule the Wintons’ point of error. Accordingly, the trial court’s judgment of dismissal is affirmed.

      . The present language of subdivision (d) became effective August 29, 1977. As originally enacted by the legislature, subdivision (d) provided: “The court may grant reasonable visitation rights to either the maternal or paternal grandparents of the child and issue any necessary orders to enforce said decree.” The legislature has not amended the other subdivisions of section 14.03.

      . See footnote one for the original provisions of subdivision (d).


author: CARVER, Justice.

text:
    Louis E. HARPER et al., Appellant, v. Merlin SWOVELAND, and wife, D’Ann Swoveland, Appellees.
    No. 20090.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 5, 1979.
    Al Emerson, Shwiff, Caraway & Emerson, Dallas, for appellant.
    W. Edward Walts, Dallas, for appellees.
    Before GUITTARD, C. J., and ROBERTSON and CARVER, JJ.
   CARVER, Justice.

This is an appeal from a summary judgment in a trespass to try title case. Appellants claimed the property as specific devi-sees under the probated will of their father, Kirby O. Harper, Sr. Appellees claimed the property as subsequent grantees under a chain of title resting upon a deed from the executrix of the will of Kirby O. Harper, Sr., to Armstrong-Hutson, Inc., made pursuant to a power of sale given in the will. We affirm the judgment in favor of the subsequent grantees because the testator subjected the estate devised to appellants to the unconditional power of sale given to the executrix.

Kirby 0. Harper, Sr., owned the property in question at his death. Harper’s will was duly probated on May 9, 1977, and his wife qualified as executrix. On July 1,1977, the executrix deeded the property to Armstrong-Hutson, Inc. The appellees are remote grantees under this deed. In early 1978, appellants filed their suit against the executrix and the appellees; however, the trial court severed all issues between appellants and the executrix, and we do not address the issues in the severed cause. Appellants and appellees each filed motions for summary judgment, and the trial court sustained appellee’s motion and overruled appellants’ motion. There is no factual dispute urged by either party, and the sole question presented is whether the specific devise to appellants in the will may be divested by exercise of the power of sale given to the executrix.

The will of Kirby 0. Harper, Sr., provides for an administration independent of the probate court. The specific powers granted the named independent executrix are broad and include the power “to sell, for any reason, upon such terms, cash or credit, as she shall deem in the best interest of my estate, all, or any part, of my property [emphasis added]. The specific devise relied upon by the appellants states:

3.1(a) I devise and bequeath to my children, KIRBY 0. HARPER, JR., LOUIE E. HARPER and MARY JANE HARPER HARDAWAY, share and share alike, the following property:
(1) the real property with improvements located at 1452 Maple, Garland, Texas, more particularly described in that deed recorded in Volume 2742, page 157, of the Dallas County Deed Records.

Appellants urge that the specific devise to them in the will is both the source of their title and sufficient notice to a purchaser from the executrix to prevent the original purchaser from being an “innocent purchaser” protected in his title by Tex. Prob.Code Ann. § 188 (Vernon 1955). That section provides as follows:

When an executor or administrator, legally qualified as such, has performed any acts as such executor or administrator in conformity with his authority and the law, such acts shall continue to be valid to all intents and purposes, so far as regards the rights of innocent purchasers of any of the property of the estate from such executor or administrator, for a valuable consideration, in good faith, and without notice of any illegality in the title to the same, notwithstanding such acts or the authority under which they were performed may afterward be set aside, annulled, and declared invalid.

The appellants specifically urge that the purchaser from the executrix, as well as any subsequent purchaser, being charged with notice of this will and its specific devise, have “notice of any illegality in the title.” Appellees respond that the power of sale in the executrix is also in the will and that a purchaser, or subsequent purchaser, relying upon the power is “without notice of any illegality in the title.”

While it is true that property devised under a will, duly probated, is deemed to vest title in the devisee as of the moment of death of the testator, this title is subject to administration. Tex.Prob.Code Ann. § 37 (Vernon Supp.1978-1979); see Laas v. Seidel, 95 Tex. 442, 67 S.W. 1015 (1902); Morris v. Ratliff, 291 S.W.2d 418 (Tex.Civ.App.—Dallas 1956, writ ref’d n. r. e.); Freeman v. Banks, 91 S.W.2d 1078 (Tex.Civ.App.—Ft. Worth 1936, writ ref’d). In Freeman the court stated:

It is elementary that the executor has the right of possession of the estate. If, after the payment of all just debts owing by the estate, any . property remains that has been specially devised to some person, or institution, it would be the duty of the executor to then deliver such property to the named devisee; or, if sold, to give so much of the proceeds of the sale of such devised property to the devisee as was not needed to pay the debts and costs of administration.

91 S.W.2d at 1080. Freeman did not involve an executor with a power of sale provided in the will, but the executor showed unpaid claims to justify his prayer for a declaration of his right to sell.

Harper, by his will, provided his executrix with the power to sell “for any reason.” Our courts have considered similar powers and have held that the exercise of that power was valid as against a specific devi-see of the property sold. In Nations v. Neighbors, 201 S.W. 691 (Tex.Civ.App.—El Paso 1918, writ ref’d), the court held valid a deed of property specifically devised in a will but sold by the executor whose power to sell in the will was “to take charge of and manage and control, investing the proceeds of sales and rents all the rest of [my] property just as if it was his own.” Id. at 693. In Ingrum v. Ingrum, 520 S.W.2d 535 (Tex.Civ.App.—San Antonio 1975, writ ref’d n. r. e.), the court affirmed a declaratory judgment that the executor was entitled to sell property, specifically devised, under a power in the will summarized by the court as one that “specifically authorizes and empowers the executor to dispose of, sell, or mortgage any property the decedent may die possessed of, as such executor may deem necessary. This power of sale contains no limitation as to when this can be done.” Id. at 537.

We conclude, therefore, that the probated will of Harper, containing a specific devise to appellants of the property in question but also containing a power of sale “for any reason ... all or any part of my property” in the executrix, could be relied upon by the purchaser and subsequent grantees, as the legal authority for sale of the property in question. On the record before us, the deed from the executrix to Armstrong-Hutson, Inc. was valid because, under section 188 of the Texas Probate Code, the executrix’s deed was in conformity with her authority. Consequently, appel-lee’s title deranging from the executrix’s deed to Armstrong-Hutson, Inc. is valid as against appellants.

Affirmed.


author: RALEIGH BROWN, Justice.

text:
    PRIDE TRANSPORT CO., INC., et al., Appellant, v. Donald R. HUGHES, Appellee.
    No. 5377.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 6, 1979.
    Rehearing Denied Jan. 3, 1980.

      David F. Farris, Maynard & Farris, Fort Worth, for appellant.
    Lance C. Hall, Moore, Dickson, Roberts & Hall, Inc., Sweetwater, for appellee.
   RALEIGH BROWN, Justice.

This is a suit for damages for personal injuries sustained in a collision involving two large trucks. Donald R. Hughes, a passenger in one truck, sued Pride Transport Company, owner of the other truck. A jury found Pride’s driver negligent in several respects and awarded Hughes $329,200.00 in damages. Judgment for such damages was rendered against Pride, which now appeals. We affirm.

Pride argues that the trial court erred in overruling its motions for mistrial after “insurance” was mentioned on two occasions. Pride also contends that the evidence was legally and factually insufficient to support the findings that Hughes suffered loss of future earning capacity of $144,000.00 and would incur reasonable medical and hospital care in the future of $38,000.00.

Hughes was a truck driver employed by Blaine Distributing Company driving a truck between California and the East coast. At the time of the collision, Hughes was in the truck “sleeper” and his co-driver, James Brown, was driving. Hughes was forty-two years old and had an eighth grade education. The parties stipulated that at the time of the accident, Hughes’ life expectancy was 31.87 years, and the parties agreed that Hughes earned about $1,300.00 per month.

Two doctors testified that Hughes could no longer drive a truck or do heavy lifting. One testified that he could not think of a job Hughes could now perform. There was testimony that if Hughes did not have an operation, his medical expenses would include: $40.00 to $150.00 monthly for physician; $180.00 yearly for x-rays and reading x-rays, $180.00 to $240.00 yearly for medicine; and $20.00 weekly for physical therapy. Hughes testified he was unwilling to submit to surgery.

Hughes testified that his efforts to return to work were unsuccessful and that he cannot now drive a truck or do heavy lifting. Hughes testified he could not perform the usual and customary tasks of a workman at time of trial and did not believe he would be able to any time in the future without significant changes.

The court in McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710 (1943), discussing an award for loss of future earning capacity, said:

In a personal injury suit the amount which the plaintiff might have earned in the future is always uncertain, and must be left largely to the sound judgment and discretion of the jury. However, the verdict must be based on something more than mere conjecture. It must be an intelligent judgment, based upon such facts as are available. Even where the injury is of such a serious and permanent nature that loss of earning capacity is the necessary result, proof is required to show the extent and amount of the damages. International & G. N. R. Co. v. Simcock, 81 Tex. 503, 17 S.W. 47. No general rule can be laid down, except that each case must be judged upon its peculiar facts, and the damages proved with that degree of certainty of which the case is susceptible. Dallas Consolidated Electric St. R. Co. v. Motwiller, 101 Tex. 515, 109 S.W. 918. Under this rule the required certainty of the proof will necessarily vary. Where the plaintiff is a child, who has never earned any money, the jury must determine the value of its lost earning capacity altogether from their common knowledge and sense of justice. Texas & P. R. Co. v. O’Donnell, 58 Tex. 27; Missouri, K. & T. R. Co. v. Johnson, Tex.Civ.App., 37 S.W. 771, writ refused; 13 Tex.Jur. 400. Likewise, where plaintiff is a housewife, the actual money value of her services need not be proved. Gainesville, H. & W. R. Co. v. Lacy, 86 Tex. 244, 24 S.W. 269; 13 Tex. Jur. 402. On the other hand, where plaintiff is employed at a fixed wage or salary, the amount of his previous earnings ordinarily must be shown. Northern Texas Traction Co. v. Brannon, Tex.Civ. App., 61 S.W.2d 156; and see Dallas Consolidated Electric St. R. Co. v. Motwiller, supra.

As an award of future medical expenses, the court in City of Houston v. Moore, 389 S.W.2d 545 (Tex.Civ.App.—Houston 1965, writ ref’d n. r. e.), said:

The award of future medical expenses is a matter about which no precise evidence is required, it being a matter peculiarly for the jury, and one upon which the jury may make its award based upon the nature of the injuries, the medical care rendered before the trial, and the condition of the injured party. Edens-Birch Lumber Co. v. Wood, Tex.Civ.App., 139 S.W.2d 881, Dism., judg. cor., and authorities cited.

We have reviewed the evidence in its most favorable light considering only the evidence and inferences which support the findings and rejecting the evidence contrary to the findings and conclude the evidence to be legally sufficient to support the findings as to loss of future earning capacity and future medical expenses. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974). We have examined the entire record and conclude the evidence to be factually sufficient to support such findings. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Pride’s evidentiary challenges are overruled.

Pride also contends that the trial court erred in overruling its motion for mistrial when the suggestion of insurance was injected into the trial. Insurance was originally mentioned when one of Hughes’ attorneys asked the following question of a plaintiff’s witness:

“All right. And by the time you were ready to leave the hospital, was the Pride insurance man in town?”

Pride objected to this question, requested an instruction to disregard, and moved for a mistrial. The objection was sustained and the instruction given, but the motion for mistrial was overruled. Hughes’ attorney admitted to the judge, out of the presence of the jury, that he had made a mistake, and explained that he intended to say “Pride Company safety man.”

Insurance was again mentioned by the investigating highway patrolman as he was being cross-examined by Hughes’ other attorney with regard to some markings on a photograph which was being introduced into evidence.

Q . (the marks on the photographs) were made a few months ago, and at the request of the defendant?
A No, sir. Nobody requested me to do it.
Q All right, Pride Transport asked you to do it?
A No, sir.
Q Well, how come you to do it?
A For my information.
Q Well, who was asking you information about it?
A Pride. The insurance company.

Pride again objected, requested an instruction to disregard, and moved for a mistrial. The instruction was given and the motion for mistrial overruled.

It is well settled in this jurisdiction that it is error to inform the jury that the defendant in an action for damages is protected by liability insurance. Finck Cigar Co. v. Campbell, 134 Tex. 250, 133 S.W.2d 759 (1939). However, the mention of insurance does not always require reversal. St. Louis Southwestern Ry. Co. v. Gregory, 387 S.W.2d 27 (Tex.1965); Dennis v. Hulse, 362 S.W.2d 308 (Tex.1962).

We must determine whether “the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment.” Dennis v. Hulse, supra; Walker v. Texas Employers’ Insurance Assoc., 155 Tex. 617, 291 S.W.2d 298 (1956); Tex.R. Civ.P. 434. The complainant must show that the probability that the mention of insurance caused harm is greater than the probability that the verdict was grounded on proper proceedings and evidence. Standard Fire Insurance Company v. Reese, 584 S.W.2d 835 (Tex.1979); Tex.R.Civ.P. 434. We have examined the entire record and conclude that Pride has not shown reversible error.

The mention of insurance is not incurable error in every case. Dennis v. Hulse, supra. In the instant case, the trial judge instructed the jury to disregard the mention of insurance “for any purpose whatsoever.” In addition, immediately after the jurors were sworn, the judge instructed the jurors not to “consider, discuss or speculate whether or not any party is or is not protected in whole or in part by insurance of any kind.” Tex.R.Civ.P. 226a.

The jury must be presumed to have obeyed the instruction of the trial court and to have disregarded the existence of insurance. Duncan v. Smith, 393 S.W.2d 798 (Tex.1965); Walker v. Texas Employers Insurance Association, supra; Patranella v. Scott, 370 S.W.2d 922 (Tex.Civ.App.—Waco 1963, no writ). We do not regard the improper statements made in this case as being beyond correction by means of a proper instruction. Younger Brothers, Inc. v. Myers, 159 Tex. 585, 324 S.W.2d 546, 550 (1959). St. Louis Southwestern Railway Company v. Gregory, supra; Dennis v. Hulse, supra; Rodman Supply Company v. Jones, 370 S.W.2d 951 (Tex.Civ.App.—Amarillo 1963, no writ). There is nothing in the record to indicate, nor is there any claim, that the jurors disobeyed the court’s instructions and discussed or considered the probability that the defendant was insured. Thus, Pride has not shown that the mention of insurance tainted the jury’s minds and caused the rendition of an improper judgment. Lemaster v. Chaney & Son Gas Company, 532 S.W.2d 720 (Tex.Civ.App.—Eastland 1976, writ ref’d n. r. e.); South Austin Drive-In Theatre v. Thomison, 421 S.W.2d 933 (Tex.Civ.App.—Austin 1967, writ ref’d n. r. e.); Meyers v. Searcy, 488 S.W.2d 509 (Tex.Civ.App.—San Antonio 1972, no writ).

The theory behind the rule which excludes evidence of liability insurance is that a jury is more apt to render a judgment against a defendant, and for a larger amount, if it knows that the defendant is protected by insurance. Barrington v. Dun can, 140 Tex. 510, 169 S.W.2d 462 (1943); M. J. Construction Company v. Deatherage, 231 S.W.2d 501 (Tex.Civ.App.—Eastland 1950, no writ). The logic behind this rule is sound, and we adhere to it. However, in the present case, Pride’s attorney qualified the jury that Pride Transport was a large corporation with a large fleet of trucks and offices all over the state. We do not believe from the record that the jury rendered a larger verdict against Pride because of the mention of insurance. Tex.R.Civ.P. 434.

There is no showing that Hughes’ attorneys intentionally injected insurance into the trial. In this regard we note that there is no showing that the jury was actually informed that the defendant carried liability insurance. Both statements concerning insurance were vague references to “the insurance man” or “the insurance company.” No reference was made as to what type of insurance was involved or whether Pride was covered by liability insurance.

The evidence in this case amply supports the jury’s finding of negligence and their determination of damages. Pride has not met its burden of showing harmful error. We therefore overrule all points of error. The judgment of the trial court is affirmed.


author: HUMPHREYS, Justice.

text:
    George Arthur HENDERSON, Jr., Appellant, v. William Isaac PRIEST, Jr. et al., Appellees.
    No. 20049.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 12, 1979.
    Robert W. McLaughlin, Dallas, for appellant.
    Larry F. Amerine, Jeffrey A. Hage, Big-gers, Beasley, Amerine & Earle, Dallas, for appellees.
    Before GUITTARD, C. J., and CARVER and HUMPHREYS, JJ.
   HUMPHREYS, Justice.

Appellant sued to recover one-half interest in realty conveyed to appellees by his former wife after their divorce decree became final. Appellant’s single point of error is “the trial court committed reversible error in finding that appellees Priest are the owners in fee of all the property subject of this lawsuit.” He argues that the divorce decree in question did not divest him of his one-half interest because the description of the property is indefinite, and therefore his ex-wife’s warranty deed to appellee Priest conveyed only one-half interest in the subject property. We disagree and affirm.

The realty in question was community property of appellant and his former wife. The divorce decree recited:

Petitioner is awarded the following as her sole and separate property, and Respondent is hereby divested of all right, title and interest in and to such property: (1) .; (2) House and lot at 1308 Seminole, Richardson, Texas’; (3) All household furniture, furnishings and appliances situated in the parties’ home at 1308 Seminole, Richardson, Texas, . . . .” [Emphasis added.]

Appellant did not appeal from the divorce decree but accepted all of the other property awarded him. After his former wife delivered to the Priests her warranty deed describing this property with particularity, appellant brought this action. Appellant relies on several cases to support his contention that the decree is without a definite description and therefore void as a conveyance of the property in controversy. E. g., Bingham v. Boies, 458 S.W.2d 99 (Tex.Civ.App.—El Paso 1970, writ ref’d n. r. e.); Burrage v. Hunt Production Co., 114 S.W.2d 1228 (Tex.Civ.App.—Dallas 1938, writ dism’d). In our case, unlike those cited, the decree has been shown by extrinsic evidence to apply to a definite tract of land.

Appellant argues that a divorce decree which describes real estate by street name and number only is legally inadequate to pass title and is ineffective as a conveyance. We disagree because the divorce decree also refers to 1308 Seminole, Richardson, Texas, as “the parties’ home.” This description is sufficient, when it is shown by extrinsic evidence that only one tract of land can meet the description. Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222, 224 (1949); Wolfe v. Brown, 340 S.W.2d 851, 854 (Tex.Civ.App. —Waco 1960, no writ). See Butler v. Benefield, 589 S.W.2d 778 (Tex.Civ.App.—Dallas 1979, no writ). In Pickett the court stated, at page 224,

The stated ownership of the property is in itself a matter of description which leads to the certain identification of the property and brings the description within the terms of the rule that “the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty.” [Emphasis added;] Wilson v. Fisher, 144 Tex. 53, 56-57, 188 S.W.2d 150, 152.

Evidence presented at this trial consisted of appellant’s Exhibit 3, a deed of trust which describes the property at 1308 Seminole, Richardson, Texas, by lot, block, and reference to map records of Dallas County, Texas. Moreover, appellant’s former wife testified that she and appellant have only owned one piece of property, their home at 1308 Seminole, Richardson, Texas. Appel-lees also introduced appellant’s answers to requests for admission of facts which establish that the subject property was the only real property owned by him and his wife at the time of the decree.

Appellant argues that an uncertain description of property cannot be cured by extrinsic evidence offered in a subsequent proceeding in a different court. He contends the pleadings and evidence in the divorce proceeding must provide the extrinsic evidence to make the description definite, or the conveyance in the divorce decree is void and cannot be made valid in a subsequent proceeding. We agree that a void instrument is not made valid by extrinsic evidence in a subsequent proceeding such as this one. We hold, however, this divorce decree is not void as a conveyance as it contains within itself the means or data, by which the particular real property conveyed was subsequently identified with reasonable certainty.

Our former opinion is withdrawn and this opinion is substituted. The motion for rehearing is overruled and the judgment is affirmed.


text:
    In the Interest of S.D.H., a Child.
    No. 5353.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 13, 1979.
    Rehearing Denied Jan. 3, 1980.
    Curtis C. Mason, Staff Counsel for Inmates, Texas Dept, of Corrections, Huntsville, for appellant.
    Mike Siebert, Emory C. Walton, Dist. Atty., Saul Pullman, Eastland, for appellee.
   RALEIGH BROWN, Justice.

This is a suit to terminate the parental rights of the parents of S.D.H. Following a nonjury trial, judgment was entered terminating the parental rights of both parents and naming Brenda Steinman as managing conservator of the child. Only the father, James L. Hicks, appeals.' We reverse and remand in part and affirm in part.

The issue for determination is whether a parent’s imprisonment, prior to the birth of a child, permits termination of his parental rights, under Tex.Fam. Code Ann. § 15.02, Subsections (1)(A) and (B) (Vernon 1975).

The trial court found (1) the parents voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return; and (2) voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months. The father contends there is no evidence or factual insufficient evidence to support such findings.

In reviewing the no evidence point, we must review the evidence in its most favorable light, considering only the evidence and inferences which support the findings and rejecting the evidence and inferences contrary to the findings. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974). We must consider all the evidence, in deciding the factually insufficient point. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

At the time of S.D.H.’s birth, James L. Hicks was incarcerated in the Texas Department of Corrections serving sentences for convictions of rape and statutory rape. There is no showing of Hick’s conduct subsequent to S.D.H.’s birth.

Under Tex.Fam. Code Ann. § 15.02 (Vernon 1975), a court is not empowered to enter a judgment of termination in face of a parent’s objection simply on the ground that the child’s welfare warrants the termination. Judicial inquiry as to the child’s welfare and best interest must be deferred pending a satisfactory showing of the preliminary and fundamental fact concerning the nonconsenting parent’s conduct.

The court in H.W.J. v. State Department of Public Welfare, 543 S.W.2d 9 (Tex.Civ.App.—Texarkana 1976, no writ) noted at 32 Sw.L.J. 158 (1978), said:

The mere imprisonment of a parent, of and by itself, does not constitute intentional abandonment of his children. Jordan v. Hancock, 508 S.W.2d 878 (Tex.Civ.App.—Houston (14th Dist.) 1974, writ ref’d n.r.e.); Hutson v. Haggard, 475 S.W.2d 330 (Tex.Civ.App.—Beaumont 1971, no writ). See also In Re K, [520 S.W.2d 424 (Tex.Civ.App.—Corpus Christi 1975) affirmed, 535 S.W.2d 168 (Tex.1976). Neither would imprisonment, of and by itself, constitute the conduct described by subparagraphs (C), (D) or (E) of Sec. 15.02(1). But if such imprisonment is the result of, or is coupled with, a voluntary, deliberate and conscious course of conduct which has the effect of placing or allowing the children to remain in conditions which endanger their physical or emotional well-being, a finding under subparagraphs (D) and (E) may be justified.

In Elliott v. Maddox, 510 S.W.2d 105 (Tex.Civ.App.—Fort Worth 1974, no writ), noted at 78 A.L.R.3d 712, the court said:

Since the criminal offense for which Elliott was convicted and incarcerated occurred prior to the birth of the child such, even if it were possible that commission of the offense be deemed a voluntary act of abandonment of some person, assuredly could not have been an act of abandonment of anyone then not yet born.

Since events which occurred prior to the birth of a child could not constitute abandonment, such events cannot constitute the voluntary leaving of a child alone or in the possession of another not the parent. The trial court, therefore, erred in granting termination based on Tex.Fam. Code Ann. § 15.02 (1975) subsections (1)(A) and (B). The cause must, therefore, be reversed. The findings in the instant case, however, could arguably support termination under other subsections of Tex.Fam. Code Ann. § 15.02. We, therefore, remand the cause in the interest of justice. United States Fire Insurance Company v. Carter, 473 S.W.2d 3 (Tex.1971). That portion of the judgment that terminates the parental rights of the mother and names Brenda Steinman as managing conservator of the child. S.D.H., is affirmed. In all other matters, the judgment is reversed and the cause remanded.

      . A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
      (1) the parent has:
      (A) voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return; or
      (B) voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months; or
      (C) voluntarily left the child alone or in the possession of another not the parent and, although expressing an intent to return, failed to do so without providing adequate support of the child and remained away for a period of at least six months; or
      (D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; or
      (E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; or
      (F) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition; or
      (G) abandoned the child without identifying the child or furnishing means of identification, and the child’s identity cannot be ascertained by the exercise of reasonable diligence; or
      (H) voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since the birth; or
      (I) contumaciously refused to submit to a reasonable and lawful order of a court under Section 34.05 of this code; or
      (J) been the major cause of:
      (i) the failure of the child to be enrolled in school as required by the Texas Education Code; or
      (ii) the child’s absence from his home without the consent of his parents or guardian for a substantial length of time or without the intent to return; or
      (K)executed before or after the suit is filed an unrevoked cr irrevocable affidavit of relinquishment of parental rights as provided by Section 15.03 of this code; and in addition, the court further finds that
      (2) termination is in the best interest of the child.