text:
    Sherry Jean FOX, Appellant, v. The STATE of Texas, Appellee.
    No. 57149.
    Court of Criminal Appeals of Texas. Panel No. 2.
    Feb. 15, 1978.
    Ray R. Epps, Houston, for appellant.
    Carol S. Vance, Dist. Atty. and Bill Adkins Camp, Asst. Dist. Atty., Houston, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction under Article 667-19B(e), V.A.P.C. (the Texas Liquor Control Act), for the misdemeanor offense of solicitation to buy a drink for consumption by an employee of a beer retailer. In a trial before the court, appellant pled guilty and the judge imposed a $100 fine as punishment.

In a single ground of error, appellant argues that the information failed to allege the commission of an offense against the laws of Texas. The information contained the following:

“. . .in the County of Harris and State of Texas, one Sherry Jean Fox . on or about February 24, 1977, did then and there unlawfully being the agent, servant and employee of Vernon C. Smith, the said Vernon C. Smith, being then and there the holder of a Mixed Beverage Permit, theretofore issued by the Texas Alcoholic and Beverage Commission for the premises located at 4850 Main, Houston, Harris County, Texas, and the said defendant as such agent, servant and employee of said licensee, did then and there, while on said premises, unlawfully solicit B. R. Foster to buy drinks and beverages for consumption by the said Sherry Jean Fox. . .

Appellant claims that if such solicitation of beverages occurred on the date charged, such solicitation was for the purchase of mixed drinks in a mixed drink establishment and not for the purchase of malt liquor. Appellant notes that the Texas Liquor Control Act is divided into two sections — one for the sale of intoxicating liquor and another for the sale of malt liquor — and that Article 667-19B, supra, which describes the offense, is located in the malt liquor section of the act. Appellant argues that for a penal provision to be applied to the mixed drink portion of the act, it must be found in that portion of the act. We disagree. The information was sufficient to describe an offense; further, the operation of this penal provision does not depend on the division of the act into two sections.

It has been established that the entire Liquor Control Act should be construed as a whole and that the act must be strictly complied with due to its penal nature. Flowers v. Shearer, 107 S.W.2d 1049 (Tex.Civ.App.—Amarillo, 1937, writ dism’d.). Moreover, study of the act reveals that its internal structure is not the mutually exclusive arrangement appellant claims. There are various provisions throughout the act that are not limited to the particular section in which they are found, be it intoxicating or malt liquor. For example, the language of the following provisions apparently applies to both intoxicating and malt liquor, yet the provisions are found in the intoxicating liquor section: Art. 666-9, making it unnecessary to negative exceptions in any indictment under the act; Art. 666-26, prohibiting sale of alcoholic beverages by and to minors; Art. 666— 41, providing for penalties for violation of the act; Art. 666-50, specifying prohibitive forms of advertising; and Art. 666-52, prohibiting all permit holders from allowing offensive music, noise, etc., on their premises.

Likewise, there are provisions under the malt liquor section of the act that apparently are not limited to persons involved with only the sale of malt liquor: Art. 667-17, forbidding the erection of blinds and barriers in retail establishments selling alcoholic beverages; and Art. 667-19E, requiring all licensees to display a sign concerning the penalty for carrying weapons on the licensee’s premises. It thus appears that the Legislature’s division of the act into two primary sections was a matter of organizational convenience and that the two sections are in no way mutually exclusive.

Article 667-19B supra, describes the instant offense as follows:

“For the purposes contemplated by this Act, conduct by any person at a place of business where the sale of beer at retail is authorized that is lewd, immoral, or offensive to public decency is hereby declared to include but not be limited to the following prohibited acts; and it shall be unlawful for any person engaged in the sale of beer at retail, or any agent, servant or employee of said person, to engage in or to permit such conduct on the premises of the Retailer:
« * * *
“(e). Solicitation of any person to buy drinks or beverages for consumption by the Retailer or his employees.
U * * ⅜ ff

The information alleged that the solicitation occurred on the premises of the holder of a Mixed Beverage Permit. Article 666-15(22) of the act outlines the scope of such a permit in part as follows:

“Mixed Beverage Permit.
U * * *
“(b). Notwithstanding the limitation set out in this subsection and in Section 20e of Article I of the Texas Liquor Control Act, a Mixed Beverage Permit shall authorize the holder thereof to purchase wine, beer, and malt liquor in a container of any legal size containing alcohol of not more than twenty-one percentum (21%) by volume from the holder of any permit or license which authorizes the holder thereof to sell same for resale, and the Mixed Beverage Permit shall authorize the holder thereof to sell such wine, beer and malt liquor in a container of any legal size for consumption on the premises for which the permit is issued.
U * * * >>

We conclude that the information was sufficient to describe an offense within the scope of Article 667-19B. Page v. State, 492 S.W.2d 573 (Tex.Cr.App.1972).

Appellant also alleges that an information not specifying the type of establishment in which the offense under Article 667-19B occurred would be fundamentally defective. Although appellant correctly states the law as decided in Shane v. State, 513 S.W.2d 579 (Tex.Cr.App.1974), the information in the instant case did specify the type of establishment in which the offense occurred; i. e., the premises of a holder of a Mixed Beverage Permit.

Appellant’s ground of error is overruled.

The judgment is affirmed.

      . The Texas Liquor Control Act was repealed by the Alcoholic Beverage Code, Acts 1977, 65th Leg., ch. 194, as amended, eff. Sept. 1, 1977. § 104.01 of the Alcoholic Beverage Code preserved the offense described above.


source: Caselaw Access Project

author: BALLY, Judge.

license: Public Domain

text:
    Saul LUERA, Appellant, v. The STATE of Texas, Appellee.
    No. 57151.
    Court of Criminal Appeals of Texas. Panel No. 1.
    Feb. 15, 1978.

      Richard L. Moore, Houston, for appellant.
    Carol S. Vance, Dist. Atty., J. Richard Trevathan and Wilbur F. Roberts, Jr., Asst. Dist. Attys., Houston, for the State.
    ' Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

BALLY, Judge.

This is an appeal from an order revoking probation. The appellant, after pleading guilty, was convicted on October 18, 1976, of the offense of possession of marihuana. The court assessed punishment of imprisonment for 10 years, but suspended the imposition of sentence and granted probation.

On March 3, 1977, after hearing the State’s motion to revoke probation, the trial court found that the appellant had violated the condition of probation that he would commit no offenses against the laws of this State in that he possessed marihuana on the 4th day of November, 1976. The appellant’s probation was revoked and sentence was pronounced.

The appellant was stopped by United States Border Patrolman Robert Lasoya and his partner about three miles outside of Hebbronville, in Jim Hogg County, on November 4, 1976. The officer smelled marihuana after he approached appellant’s vehicle. Upon the officer’s request, appellant opened the trunk of the vehicle, and therein were found bricks of marihuana weighing 209 pounds which were subsequently seized by the officers.

The question raised is whether the marihuana was lawfully seized. If the officer’s initial detention was reasonably justified, the search of the automobile was proper, since probable cause existed when the odor of marihuana was discovered. See Duff v. State, 546 S.W.2d 283 (Tex.Cr.App.1976); Tardiff v. State, 548 S.W.2d 380 (Tex.Cr.App.1977); Drago v. State, 553 S.W.2d 375 (Tex.Cr.App.1977). If the detention was unjustified, then the odor of marihuana would not have been detected; thus, the validity of the search would be tainted. See Leighton v. State, 544 S.W.2d 394 (Tex.Cr.App.1976); Amorella v. State, 554 S.W.2d 700 (Tex.Cr.App.1977); Scott v. State, 549 S.W.2d 170 (Tex.Cr.App.1976). The detention, if unlawful, may also have tainted appellant’s apparent voluntary consent to search the trunk. See Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.1976); Truitt v. State, 505 S.W.2d 594 (Tex.Cr.App.1973); Evans v. State, 530 S.W.2d 932 (Tex.Cr.App.1975); McDougald v. State, 547 S.W.2d 40 (Tex.Cr.App.1977).

It is the State’s position that the Border Patrol officer had sufficient probable cause to detain appellant because: (1) appellant appeared to be of Hispanic extraction; (2) the area in question was well-known for its concentration of alien-smuggling activities; (3) appellant attempted a high speed evasion of the officers; (4) appellant’s automobile appeared to use “air shock” absorbers which were suspicious; (5) appellant’s license plates were out-of-county, Starr County, plates; (6) appellant appeared to be “suspicious” when he refused to look at the officers when he passed them, and (7) appellant apparently had triggered a sensor device on Highway 16.

In Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), the United States Supreme Court held that the Fourth Amendment prohibits the use of roving patrols to search vehicles, with neither a warrant nor probable cause, at points removed from the border and its functional equivalents. See also Tamez v. State, 534 S.W.2d 686 (Tex.Cr.App.1976). In United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the court held that Border Patrol officers may stop vehicles only if they are aware of specific articulable facts, together with rational inferences therefrom, which would reasonably warrant suspicion that vehicles are occupied by aliens who may be in the United States unlawfully. Thereafter, the officers are entitled to briefly stop the vehicle, determine the citizenship status of the occupants and ask them to explain suspicious circumstances, but further detention or search must be based upon consent or probable cause.

The court in Brignoni-Ponce, supra, went on to detail some of the factors that may be used by Border Patrol officers to justify the detention of a vehicle, with some of these factors including: (1) the characteristics of the area in which the vehicle is encountered; (2) the proximity to the border; (3) the usual patterns of traffic on a particular road; (4) previous experience by the officer with alien traffic; (5) information concerning recent unlawful border crossings; (6) the driver’s behavior, such as erratic driving or attempts to evade the officers; (7) the nature or type of vehicle itself; (8) the appearance of the vehicle as to whether or not it is heavily loaded, and (9) the appearance of the driver, such as whether or not he is of Mexican extraction, his mode of dress, his haircut, etc. These factors must be analyzed on a case-by-case basis to determine if probable cause for the initial detention has been shown. See Brignoni-Ponce, at footnote number 10.

The undisputed testimony is that Highway 16, near Hebbronville, is one of the areas in which alien-smuggling activity is concentrated. The incident in question occurred some 55 miles from the border on the highway from Zapata, Texas, to Heb-bronville. There was no testimony as to where the agent’s sensor was placed on the highway, nor was there any showing that appellant had been anywhere near the Mexican border on the date in question. See United States v. Byrd, 483 F.2d 1196 (Fifth Cir. 1973), aff’d on rehearing, 494 F.2d 1284 (Fifth Cir. 1974). There is no testimony concerning normal traffic patterns or any specific or recent unlawful alien-smuggling activity in the area. Even though we note that appellant’s name appears to be of Hispanic origin, there was no testimony by the agent to indicate that appellant readily appears to be of Hispanic extraction, or that he considered this factor in making the stop. See United States v. Brignoni-Ponce, supra. It is critical to observe that the instant case arose in broad daylight at approximately 3:20 p. m., and did not occur during the late night or early morning darkness.

Patrolman Lasoya testified that he made his decision to stop appellant’s vehicle when “we first met the car ... we made the turn to make further search of the vehicle.” The testimony reflects that this decision was made for the sole reason that appellant “looked straight ahead” and did not look at the officers when he passed them, which according to Lasoya constituted suspicious activity. Absent any showing of furtive gestures on appellant’s part, we refuse to hold that an automobile driver’s alert attention to the highway in front of him constitutes reasonable suspicion to believe that he is unlawfully carrying aliens, especially where the vehicle is traveling in broad daylight on a main highway near a populated area.

The State also argues that the physical appearance of appellant’s automobile with its “exposed air shock absorbers” could be a factor to consider, since Lasoya testified that alien smugglers often use air shocks on their automobiles. We disagree. Not only did Lasoya admit that he could not tell whether the automobile had air shocks on it without looking underneath the car, he also admitted that air shocks were used by many drivers for normal driving purposes. In view of the officer’s specific testimony that the vehicle was “riding high,” we can only conclude that the reasonable inference from this observation was that the trunk of the car was not loaded down, and therefore, reasonable suspicion to believe that the driver was transporting aliens unlawfully would seem to evaporate. There is no testimony as to whether the vehicle driven by appellant was readily capable of carrying aliens. Further, the mere fact that appellant’s vehicle had Starr County license plates appears to be irrelevant since Starr and Jim Hogg Counties are immediately adjacent, with several highways leading from Starr County to intersections on Highway 16 leading to Hebbronville.

The last factor considered important by the State, and perhaps the most difficult to analyze, is the State’s contention that the record shows that appellant attempted to evade the officers by leading them on a high speed chase. We disagree with the State’s interpretation of the facts. Laso-ya’s testimony indicated that appellant was exceeding the speed limit going through Hebbronville, apparently near a school zone. However, there is no evidence that appellant ever attempted any evasive action to elude the officers, as the record indicates that appellant maintained his same course and direction on Highway 16, and stopped at one stop sign on that route. While the officer testified that he had to speed his car up to 90 miles per hour in order to catch appellant, there was no testimony as to appellant’s speed, or any evasive tactics. It must also be observed there was no showing that the officers used red lights, sirens, or any other method in which to stop appellant. The record fails to show any attempted evasion of the officers on appellant’s part, and we decline to hold that the offense of speeding, without more, constitutes a reasonable suspicion to believe that appellant was transporting aliens unlawfully. See Fatemi v. State (Tex.Cr.App.1977) 558 S.W.2d 463.

After considering all of the factors asserted by the State, we hold that the officer’s inferences were not based upon logical or rational justification that appellant was transporting aliens unlawfully; thus, absent probable cause for appellant’s detention, the search of his automobile was unreasonable. See Almeida-Sanchez v. United States, supra; United States v. Brignoni-Ponce, supra; United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); Tamez v. State, supra.

For the reasons stated, the order revoking probation is reversed and remanded.

      . We observe that one of the authorities cited by the State, United States v. Barnard, 553 F.2d 389 (Fifth Cir. 1977), concluded that a driver’s repeated and nervous glances at a Border Patrol officer constituted a factor which could be considered by the officers in making the decision to stop the vehicle. To accept Lasoya’s concept of “suspicious looking,” every driver, whether he looks or not, would apparently be considered “suspicious.”

      . The State does not show us any authority for the proposition that an Immigration Service (Border Patrol) agent has jurisdiction to stop traffic offenders on highways in the state. Texas law does not include Border Patrol agents within its definition of a “peace officer.” See Art. 2.12, V.A.C.C.P.
      Furthermore, it does not appear that federal law gives Immigration Service officers jurisdiction to make traffic offense stops. See the United States and Nationality Act, 8 U.S.C.A., Sec. 1101(a)(18); 8 U.S.C.A., Sec. 1225(a), and 8 U.S.C.A., Sec. 1357(a)(4) and (c).

      . We have examined all the State’s authorities, and they can be differentiated on the facts, involving situations where heavily loaded vehicles were noticed, during the early morning hours, near checkpoint areas, or where the drivers’ obviously evasive or erratic conduct clearly constituted reasonable suspicion.


author: DALLY, Judge.

text:
    Frank SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 57165.
    Court of Criminal Appeals of Texas. Panel No. 1.
    Feb. 15, 1978.
    Edith Roberts, Austin, for appellant.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a final judgment forfeiting an appeal bond.

The appellee did not file a brief in this Court within 25 days after the filing of appellant’s brief as required by Tex.R. Civ.P. 414. The appellee’s motion for an extension of time was denied by this Court on February 6, 1978. The appellee’s failure to file a brief allows us to accept as true any statement made by appellant in his brief as to the facts or the record. Tex.R. Civ.P. 419; Art. 44.44, V.A.C.C.P.; Weatherly v. Byrd, 519 S.W.2d 504 (Tex.Civ.App.-Fort Worth 1975, no writ); Howard v. Pullicino, 519 S.W.2d 254 (Tex.Civ.App.—Austin 1975, no writ); Farley v. Farley, 503 S.W.2d 679 (Tex.Civ.App.-Eastland 1973, writ ref’d n. r. e.).

Appellant, who was surety on the bond, states in his brief that the principal, Audrey Mae Hemphill, was transferred to the Texas Department of Corrections on March 23, 1976, and was an inmate there when her bond was forfeited on December 9, 1976. Where the principal is confined in jail or the penitentiary by virtue of a commitment from the same court or another court in the state at the time the bond is forfeited, both the principal and his sureties are exonerated from liability. Art. 22.13, Sec. 3, V.A.C.C.P.; Sanders v. State, 166 Tex.Cr.R. 255, 312 S.W.2d 660 (1957); Woods v. State, 51 Tex.Cr.R. 595, 103 S.W. 895 (1907).

The judgment making final the forfeiture is reversed.


text:
    Frank SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 57167.
    Court of Criminal Appeals of Texas. Panel No. 1.
    Feb. 15, 1978.

      Edith Roberts, Austin, for appellant.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a final judgment forfeiting an appearance bond.

The appellee did not file a brief in this Court within 25 days after the filing of appellant’s brief as required by Tex.R. Civ.P. 414. The appellee’s motion for an extension of time was denied by this Court on February 6, 1978. The appellee’s failure to file a brief allows us to accept as true any statement made by appellant in his brief as to the facts or the record. Tex.R. Civ.P. 419; Art. 44.44, V.A.C.C.P.; Weatherly v. Byrd, 519 S.W.2d 504 (Tex.Civ.App.-Fort Worth 1975, no writ); Howard v. Pullicino, 519 S.W.2d 254 (Tex.Civ.App.—Austin 1975, no writ); Farley v. Farley, 503 S.W.2d 679 (Tex.Civ.App.—Eastland 1973, writ ref’d n. r. e.).

Appellant, surety on the bond, alleges in his brief that at the time the bond was forfeited, “the principal was under an order or commitment of some type to the Travis County Jail and not on bail bond,” and also that the principal “was in custody . and was unable to appear before the forfeiture became a final judgment.” These allegations, taken as correct, are sufficient to exonerate appellant from liability. Art. 22.13, Sec. 3, V.A.C.C.P.; Sanders v. State, 166 Tex.Cr.R. 255, 312 S.W.2d 660 (1957); Woods v. State, 51 Tex.Cr.R. 595, 103 S.W. 895 (1907).

The judgment making final the forfeiture is reversed.


text:
    Frank SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 57171.
    Court of Criminal Appeals of Texas. Panel No. 1.
    Feb. 15, 1978.

      Edith Roberts, Austin, for appellant.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a final judgment forfeiting an appearance bond.

The appellee did not file a brief in this Court within 25 days after the filing of appellant’s brief as required by Tex.R. Civ.P. 414. The appellee’s motion for an extension of time was denied by this Court on February 6,1978. The appellee’s failure to file a brief allows us to accept as true any statements in appellant’s brief as to the facts or the record. Tex.R.Civ.P. 419; Art. 44.44, V.A.C.C.P.; Weatherly v. Byrd, 519 S.W.2d 504 (Tex.Civ.App.—Fort Worth 1975, no writ); Howard v. Pullicino, 519 S.W.2d 254 (Tex.Civ.App.—Austin 1975, no writ); Farley v. Farley, 503 S.W.2d 679 (Tex.Civ.App.—Eastland 1973, writ ref’d n. r. e.).

The appellant, who was surety on the bond, makes the following statements in his brief:

“There is no order reflecting that the prosecution had the right to continue this case in the record. The offense was committed June 7, 1976. The principal was indicted during the October term of Court 1976. The principal should have been indicted at the next term of Court, July 1976.”

Art. 22.13, Sec. 4, V.A.C.C.P., provides for exoneration due to:

“Failure to present an indictment or information at the first term of the court which may be held after the principal has been admitted to bail, in case where the party was bound over before indictment or information, and the prosecution has not been continued by order of the court.”

The statements in the appellant’s brief, taken as correct, show that the principal was not indicted at the next term of the 147th District Court of Travis County after he was admitted to bail. See Art. 199, Sec. 147(5), V.A.C.S. Under these circumstances, appellant is entitled to exoneration from the forfeiture. Art. 22.13, Sec. 4, V.A.C. C.P.; Headley v. State, 58 Tex.Cr.R. 185, 125 S.W. 27 (1910); Jones v. State, 11 Tex.App. 412 (1882). Cf. Hollins v. State, 427 S.W.2d 865 (Tex.Cr.App.1968).

The judgment making final the forfeiture is reversed.


author: ONION, Presiding Judge.

text:
    Ex parte Kenneth GRANVIEL.
    No. 56267.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 1, 1978.

      Frank W. Sullivan, III, Fort Worth, for appellant.
    Tim C. Curry, Dist. Atty., Marvin Collins and Howard M. Fender, Asst. Dist. Attys., Fort Worth, for the State.
   OPINION

ONION, Presiding Judge.

This is a post-conviction habeas corpus proceeding under Article 11.07, V.A.C.C.P., in which petitioner seeks to set aside his death sentence and to have Article 43.14, V.A.C.C.P., establishing a new method of execution, declared unconstitutional., We stayed petitioner’s execution scheduled for September 16, 1977, pending disposition of these proceedings. Petitioner’s conviction for capital murder, wherein the death penalty was assessed, was affirmed by this court in Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976), cert. den. 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977).

Petitioner contends the new method of execution would subject him to cruel and unusual punishment prohibited by the Eighth Amendment, United States Constitution. See also Article I, § 13, Texas Constitution. He further urges said Article 43.14 is unconstitutionally infirm for vagueness for its failure to specify what substance or substances shall be used in the injection to execute a condemned prisoner, that it results in an improper delegation of legislative authority to the Director of the Department of Corrections and is in irreconcilable conflict with Article 6166j, V.A. C.S. He further attacks the constitutionality of Article 37.071, V.A.C.C.P.

With the enactment of the amendment to Article 43.14, supra, on May 11,1977, Texas became the second jurisdiction to provide statutorily for the execution of capital felony offenders by the intravenous injection of a lethal substance. A similar law was enacted in Oklahoma one day earlier. See 1977 Okla.Sess.Law Serv., ch. 41, § 1, at pp. 89-90, amending 22 O.S.1971, § 1014.

The amendment to said Article 43.14 reads:

“Whenever the sentence of death is pronounced against a convict, the sentence shall be executed at any time before the hour of sunrise on the day set for the execution not less than thirty days from the day of sentence, as the court may adjudge, by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such convict is dead, such execution procedure to be determined and supervised by the Director of the Department of Corrections.” Acts 1977, 65th Leg., ch. 138, p. 287.

At the same time Article 43.18, V.A.C. C.P., was amended to permit the Director of the Department of Corrections to designate an executioner rather than serving as executioner. Acts 1977, 65th Leg., ch. 138, p. 288.

Thus, the Legislature sought to change the method of execution in this state from electrocution as formerly provided in said Article 43.14 and which has been the method of execution since 1923.

At the post-conviction habeas corpus hearing in the trial court, the State introduced into evidence the affidavit of W. J. Estelle, Jr., Director of the Department of Corrections:

“September 7, 1977
“Mr. Howard Fender
Assistant District Attorney
200 W. Belknap
Fort Worth, Texas
“Dear Mr. Fender:
“In response to your request, please be advised that pursuant to Vernon’s Annotated Criminal Code of Procedure, Article 43.14, provides that the execution procedure will be determined by the Director of the Texas Department of Corrections. Your specific question of me asked ‘What specific substance will be used in carrying out executions?’
“After considerable consultation with people familiar with lethal substances, the decision has been made to use sodium thiopentol in lethal doses. It will be administered by medical technicians knowledgeable in such procedure and a medical doctor will be present, but will not participate in any aspect of the execution other than to pronounce death.
“Very truly yours,
‘7s/ W. J. Estelle, Jr.
SWORN TO AND SUBSCRIBED BEFORE ME by the said W. J. Estelle, Jr., this 7th day of September, 1977.
“/s/ Dorothy Coleman
NOTARY PUBLIC in and for Walker County, Texas”

The petitioner and the State jointly called as a witness Dr. Gary Harold Wimbish, a toxicologist with ten years’ experience. Wimbish, an assistant professor of pathology at the Texas College of Osteopathic Medicine, testified he was certified by education and experience to determine what substance would be lethal to a human being. He explained that the drug sodium thiopental was a paralytic agent, a rapidly acting barbiturate commonly used in preoperative anesthesia. He stated a massive dosage of the drug would be calculated to kill any human if properly administered, and that records showed a lethal dosage of the drug ranges from two to five grams. He explained that a solution of sodium thio-pental in sterile water was commonly administered with syringe and needle and injected intravenously and that the only expected pain would be from the insertion of the needle. Wimbish further related that the drug is commonly administered by an anesthesiologist, who is a physician, but it could be administered by a registered nurse, L.V.N., medical technician or any person trained in intravenous injections. His conservative estimate was that unconsciousness would ensue within fifteen seconds after injection, the time it takes the blood of an individual to reach the brain from the elbow or site of injection, and if a lethal dosage was administered, death would occur within approximately thirty seconds, a virtually painless death consistent with the intent of Article 43.14, supra. Dr. Wimbish noted a wide variety of poisons that could potentially cause death if injected into a human’s bloodstream, but he indicated that sodium thiopental was a drug unique in its effect and onset of action, and if he had been consulted by Director Estelle he would not have advised against its use in executions but would have given it high priority in consideration. There was no other proof offered at the habeas corpus hearing.

Appellant urges the new method of execution provided by Article 43.14, supra, violates the Eighth Amendment provision against cruel and unusual punishment. See also Article I, § 13, Texas Constitution. The United States Supreme Court has always held that the imposition of the death penalty is not cruel and unusual punishment per se, Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 2954, 49 L.Ed.2d 929, 936 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859, 882-883 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 2964, 49 L.Ed.2d 913, 920 (1976); In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 34 L.Ed. 519 (1890); Wilkerson y. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879), and the Court of Criminal Appeals has been in accord with such position. See, e. g., Livingston v. State, 542 S.W.2d 655, 662 (Tex.Cr.App.1976); Gholson and Ross y. State, 542 S.W.2d 395 (Tex.Cr.App.1976); Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975); Cherry v. State, 488 S.W.2d 744, 755 (Tex.Cr.App.1972), cert. den. 411 U.S. 909, 93 S.Ct. 1538, 36 L.Ed.2d 199 (1972); Tezeno v. State, 484 S.W.2d 374 (Tex.Cr.App.1972); David v. State, 453 S.W.2d 172, 179 (Tex.Cr.App.1970).

It is observed that the constitutionality of executions by hanging or firing squad [Wilkerson v. Utah, supra], by electrocution [In re Kemmler, supra] and by lethal gas [State v. Gee Jon, 46 Nev. 418, 211 P. 676, 682 (1923); People v. Daugherty, 40 Cal.2d 876, 256 P.2d 911, 922-923 (1953), cert. den. 346 U.S. 827, 74 S.Ct. 47, 98 L.Ed. 352 (1953); In re Anderson, 69 Cal.2d 613, 73 Cal.Rptr. 21, 34, 447 P.2d 117, 130 (1968), cert. den. 406 U.S. 971, 92 S.Ct. 2415, 32 L.Ed.2d 671 (1972)] have been upheld.

In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 376, 91 L.Ed. 422 (1947), it was held:

“. . . [t]he cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.”

In 30 A.L.R. 1452 it is stated:

“The punishment of death is not in violation of the constitutional prohibition of cruel or unusual punishments unless it is so inflicted that it involves lingering death, torture, or such practices as disgraced the civilization of former ages. So long as the death inflicted is speedy, and without undue pain or torture, the provision is not violated.”

In State v. Woodward, 68 W.Va. 66, 69 S.E. 385 (1910), the court wrote:

“. . . This interdict applies to such punishment as amounts to torture, like drawing, quartering, burning at stake, cutting off nose, arms, or limbs, starving to death, or such as were inflicted by the act of Parliament in 22 Henry VIII, whereby the prisoner was ordered to be thrown into boiling water and boiled to death for poisoning . . . The word ‘cruel,’ as used in the Constitution, was intended to prohibit torture, agonizing punishment, but never intended to ‘abridge the selection of the lawmaking power of such kind of punishment as was deemed most effective in the suppression of crime’. . . .” See also State v. Williams, 77 Mo. 310, 312-313 (1883); In re Calhoun, 87 Ohio App. 193, 94 N.E.2d 388 (1949); Hart v. Commonwealth, 131 Va. 726, 109 S.E. 582, 587 (1921).

The intravenous injection of a lethal substance as a means of execution has not been heretofore utilized in this nation and is now authorized in only two states. The fact that it is new and innovative would not, however, make it cruel and unusual. What is cruel and unusual “is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice” and “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). See also Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 290, 50 L.Ed.2d 251, 258-259 (1976).

“When . . . the means adopted (to administer the death) are chosen with . intent and are devised for the purpose of reaching the end proposed as swiftly and painlessly as possible . they are not forbidden by the constitution, although they should be discoveries of recent science, and never should have been heard of before . . . the word ‘unusual’ . . . cannot be taken so broadly as to prohibit every humane improvement not previously known . . .” In re Storti, 178 Mass. 549, 60 N.E. 210, 211, 52 L.R.A. 520 (1901).

In 9 ST. MARY’S LAW JOURNAL, Statute Note, “Capital Punishment — Texas Statutes Amended to Provide for Execution by Intravenous Injection of a Lethal Substance,” 359 (1977), an excellent note on the 1977 amendment to Article 43.14, supra, it is stated at p. 363:

“Although intravenous injection of a lethal substance has never been authorized as a means of execution in the United States, it does not appear that this method will be deemed violative of the eighth amendment merely because it is new and unusual. Previous changes in the mode of execution have been evaluated by an ‘evolving standard of decency’ in light of public opinion and social progress. So long as the manner of execution is not deemed inhumane and barbarous, the fact that it has never been used before does not make it ‘unusual’ as forbidden by the Constitution.”

Petitioner, who had the burden of proof at the habeas corpus hearing, offered no persuasive proof that execution by intravenous injection of a lethal substance is inherently cruel and inhumane. He now argues, however, that possible complications in the intravenous injection procedure might cause additional pain to the condemned prisoner. We conclude that that possibility, should it arise, does not make the means of inflicting death inherently cruel. Rather, it could be characterized as a possible discomfort or suffering necessary to a method of extinguishing life humanely. See Louisiana ex rel. Francis v. Resweber, supra.

We cannot conclude that said Article 43.14, as amended, constitutes cruel and unusual punishment in violation of either the federal or state constitutes or that it is disproportionate to the offense of capital murder, which is the only offense in Texas for which the supreme penalty may be imposed. Y.T.C.A., Penal Code, § 12.31. See and cf. Gregg v. Georgia, supra.

In his argument petitioner has urged that execution by electrocution is far more humane than the execution by injection of a lethal substance. Thus implicit in petitioner’s argument that death by injection of a lethal substance or substances is more barbarous than execution by electrocution is the claim that said Article 43.14 violates the constitutional prohibition against ex post facto legislation. Article I, § 10, United States Constitution; Article I, § 16, Texas Constitution.

In Malloy v. South Carolina, 237 U.S. 180, 35 S.Ct. 507, 59 L.Ed. 905 (1915), the court held that prohibition against ex post facto legislation does not apply to the “mere alteration in conditions deemed necessary for the orderly infliction of humane punishment,” and observed that producing death by electrocution rather than by hanging did not increase the punishment and did not violate the federal constitutional prohibition against ex post facto legislation.

In Ex parte Johnson, 96 Tex.Cr.R. 473, 258 S.W. 473 (1924), this court, citing Malloy, held that a defendant sentenced to die by hanging could instead be electrocuted (in view of the change in the law relating to the mode of execution) without violating the constitutional prohibition against ex post facto legislation. We conclude in light of these holdings that execution by lethal injection may be imposed upon a defendant even though death by electrocution was the mode of execution authorized by law at the time of the commission of capital murder, at the time of his trial, and even if he had been previously sentenced to die by electrocution. The statute under consideration did not change the penalty— death — for capital murder, but only the mode of imposing such penalty. The punishment was not increased, only some of the odious features incident to the former method of electrocution were abated.

Whenever an attack upon the constitutionality of a statute is presented for determination, we commence with the presumption that such statute is valid and that the Legislature had not acted unreasonably or arbitrarily in enacting the statute. See Ex parte Smith, 441 S.W.2d 544 (Tex.Cr.App.1969); Smith v. Davis, 426 S.W.2d 827 (Tex.Sup.Ct.1968). See also 58 Tex.Jur.2d, Statutes, § 158, p. 225. The burden rests upon the individual who challenges the act to establish its unconstitutionality. Robinson v. Hill, 507 S.W.2d 521 (Tex.Sup.Ct.1974), and if a statute is capable of two constructions, one of which sustains its validity, the courts will give to it the interpretation that sustains its validity. Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968); Newsom v. State, 372 S.W.2d 681 (Tex.Cr.App.1963); Baldridge v. State, 167 Tex.Cr.R. 519, 321 S.W.2d 309 (1959); Lockhart v. State, 150 Tex.Cr.R. 230, 200 S.W.2d 164 (1947). See also State v. Shoppers World, Inc., 380 S.W.2d 107 (Tex.Sup.Ct.1964); Alobaidi v. State, 433 S.W.2d 440 (Tex.Cr.App.1968), cert. den. 393 U.S. 943, 89 S.Ct. 313, 21 L.Ed.2d 281 (1968).

As stated in 53 Tex.Jur.2d, Statutes, § 184, p. 277:

“Every reasonable intendment and presumption will be made in favor of the constitutionality and validity of a statute, until the contrary is clearly shown. The legislature is presumed to have regarded constitutional limitations or requirements in enacting laws, as assiduously as the courts do in construing and applying them. And before a legislative act will be set aside, it must clearly appear that its validity cannot be supported by any reasonable intendment or allowable presumption.” See also Alobaidi v. State, supra.

With this background, we now consider petitioner’s attack upon the 1977 amendment to Article 43.14, supra, as being constitutionally infirm for indefiniteness and vagueness for its failure to specify what lethal substance or substances shall be used in the injection to execute condemned prisoners.

It is, of course, true that a “law must be sufficiently definite that its terms and provisions may be known, understood, and applied. An Act of the legislature which violates either of said Constitutions [Federal or Texas], or an Act that is so vague, indefinite, and uncertain as to be incapable of being understood, is void and unenforcible.” Ex parte Halsted, 147 Tex.Cr.R. 453, 182 S.W.2d 479, 482 (1944).

Appellant argues it cannot be ascertained from the statute what substance or substances can be used in the injection and that the statute fails to offer any hint as to which substance or substances would be permissible. The State points out that the petitioner has cited no authority for his contention; that the electrocution statutes throughout the United States have not prescribed the use of a chair, the amount of voltage, the volume of amperage, the place of attachment of electrodes, or whether or not AC or DC current shall be used. The earlier hanging statutes did not, the State argues, prescribe the type of gallows, the height of fall, the type of rope or type of knot used, etc. Likewise, the State says, the laws relating to execution by firing squads did not specify the number of executioners, the muzzle velocity of the rifles, the type of bullets, or the distance of the guns to the condemned. The State urges the earlier execution statutes were never in any greater detail than the statute under attack and that none of them had been declared unconstitutional on the basis of being vague.

It appears the United States Supreme Court has been unwilling to invalidate on the grounds of vagueness a statute so general that it failed to specify a manner of execution. In Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1830), the Court upheld a Utah territorial statute containing the direction that “every person guilty of murder shall suffer death,” without providing for a mode of execution. Earlier territorial law provided that a person convicted of a capital offense should suffer death by being shot, hanged or beheaded as the court should direct. Upon amendment, reference to the modes of execution were eliminated. Upon Wilkerson’s conviction, the trial judge ordered him to suffer death by shooting. Noting the code did not provide for a mode of execution, the Supreme Court observed that § 10 of the Revised Penal Code did provide:

“. . . the several sections of this Code which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence to determine and impose the punishment prescribed.” Comp.L.Utah 1876, p. 567.

The Court then concluded:

“Statutory directions being given that the prisoner when duly convicted shall suffer death, without any statutory regulation specifically pointing out the mode of executing the command of the law, it must be that the duty is devolved upon the court authorized to pass the sentence to determine the mode of execution and to impose the sentence prescribed. . . ” 99 U.S. at 137.

In State v. Gee Jon, 46 Nev. 418, 211 P. 676, 682, 30 A.L.R. 1443 (1923), attack was made upon the statute providing for death by a lethal gas on the grounds that the statute was indefinite and uncertain as to the mode of execution. There, the court wrote:

“. . . Nor do we find any merit in the contention that the act is indefinite and uncertain. It is certainly no more so than the act which it purports to amend. Rev.Laws 1912, § 7281. That statute simply said that the punishment of death should be inflicted by hanging the defendant by the neck until he is dead, or by shooting him, at his election. The present statute provides that the judgment of death shall be inflicted by the administration of lethal gas, and that a suitable and efficient inclosure and proper means for the administration of such gas for the purpose shall be provided. We cannot see that any useful purpose would be served by requiring greater detail. Certainly, the statute infringes no provision of the Constitution.”

§ 36.04 of the California Penal Code simply provides: “The judgment of death shall be inflicted by the administration of [a] lethal gas.” Faced with a constitutional challenge of vagueness similar to the one in the instant case, the California Supreme Court upheld the statute, citing Gee Jon v. State, supra. See People v. Daugherty, supra; In re Anderson, supra. Our review of statutes from other jurisdictions specifying the mode of execution fails to reveal any that set forth a detailed blueprint for inflicting the death penalty. And we have not found a case which has declared any such statute unconstitutionally vague.

While neither the exact substance to be injected nor the procedure surrounding the execution is expressly set forth in Article 43.14, supra, we cannot conclude that failure to specify the exact substances and the procedures to be used render the statute unconstitutionally vague. The statute here, unlike penal statutes, was not intended to give fair notice of what specific behavior or elements constitutes a criminal offense. As in Langford v. State, 532 S.W.2d 91, 94 (Tex.Cr.App.1976), “. . . the question before us is not the definition of what constitutes an offense.” The context of the statute is a public statement of the general manner of execution. In this sense the statute is sufficiently definite.

Appellant argues that since the lethal substance to be used is not specifically set forth in the statute, the Director could choose a substance which would cause an agonizing death and result in the imposition of cruel and unusual punishment. In State v. Gee Jon, supra, where the Nevada statute only specified the use of a lethal gas without stating what kind of gas, the court wrote:

“No doubt gas may be administered so as to produce intense suffering. It is also true that one may be executed by hanging, shooting, or electrocution in such a bungling fashion as to produce the same result. But this is no argument against execution by either method We must presume that the officials intrusted with the infliction of the death penalty by the use of gas will administer a gas which will produce no such results, and will carefully avoid inflicting cruel punishment. That they may not do so is no argument against the law.”

It will not be presumed that the Director will act in an arbitrary manner. See and cf. Nichols v. Dallas, 347 S.W.2d 326 (Tex.Civ.App.—Dallas, 1961).

Obviously the Texas Legislature substituted death by lethal injection as a means of execution in lieu of electrocution for the reason it would be a more humane and less spectacular form of execution. Like the Nevada court, we must presume that the Director of the Department of Corrections and the executioner will administer a lethal substance that will avoid inflicting cruel and unusual punishment. The evidence produced indicated that the Director has taken steps to insure that death by injection will be as painless as possible.

The Eighth Amendment to the United States Constitution and Article I, § 13 of the Texas Constitution require the Director and executioner to act in a manner to avoid cruel and unusual punishment. Appellant’s contention as to the vagueness and uncertainty of the lethal substance to be used is overruled. In passing upon this, it is not our place to determine if a more precise statute could have been drafted or whether the Legislature should give further consideration to the matter. Our duty is only to determine if the current statute can pass constitutional muster. We conclude that it does.

In a related question petitioner also urges that said Article 43.14 constitutes an improper delegation of legislative power to the Director of the Department of Corrections. He argues that the statute permits the Director to determine the lethal substance to be used and thus allows him legislative authority in violation of the State Constitution.

“It is a well recognized rule that the legislature may not delegate its legislative powers, except as expressly permitted in the constitution, and any attempt to commit those powers to another agency is invalid. But it is also established that the legislature possesses many powers that may be exercised by it either directly or through the agency of another body. And it is difficult to define clearly the line between an unlawful delegation of legislative power and a proper grant of authority to perform acts not strictly legislative . . . ” 12 Tex.Jur.2d, Constitutional Law, § 62, pp. 406-407.

Despite the general rule against the delegation of the power of general legislation, there are many powers that may be delegated by the Legislature. When the Legislature itself cannot practically or efficiently perform the functions required, it has the authority to designate some agency to carry out the purposes of such legislation. The trend of modern decisions is to uphold such laws. See 12 Tex.Jur.2d, Constitutional Law, § 65, pp. 409-410; Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070 (1927); Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100 (Tex.Civ.App. — Amarillo, 1971, writ ref’d., n. r. e.).

Generally, a legislative body, after declaring a policy and fixing a primary standard, may delegate to the administrative tribunal or officer power to prescribe details, Margolin v. State, 151 Tex.Cr.R. 132, 205 S.W.2d 775 (1947); Williams v. State, 146 Tex.Cr.R. 430, 176 S.W.2d 177 (1943), such as to establish rules, regulations or minimum standards reasonably necessary to carry out the expressed purpose of the act. Beall Medical Surgical Clinic and Hospital, Inc. v. State Board of Health, 364 S.W.2d 755 (Tex.Civ.App. — Dallas, 1963), and cases there cited.

Thus, the existence of an area for exercise of discretion by an administrative officer under delegation of authority does not render delegation unlawful where standards formulated for guidance and limited discretion, though general, are capable of reasonable application. Nichols v. Dallas, supra, and cases there cited. So long as the statute is sufficiently complete to accomplish the regulation of the particular matters falling within the Legislature’s jurisdiction, the matters of detail that are reasonably necessary for the ultimate application, operation and enforcement of the law may be expressly delegated to the authority charged with the administration of the statute. Commissioners Court of Lubbock v. Martin, supra.

In Langford v. State, supra, this court decided that Article 6701/-5, V.A.C.S., did not contain an unconstitutional delegation of legislative powers to the Texas Department of Public Safety in allowing said department to approve methods of breath testing nor in authorizing said department to ascertain the qualifications and competence of individuals who conduct breath testing. See and cf. Ex parte Smith, 441 S.W.2d 544 (Tex.Cr.App.1969).

The Legislature has determined that the penalty for capital murder should be death or life imprisonment. V.T.C.A., Penal Code, § 12.31. This is within the constitutional power vested in the Legislature to enact laws which include the right to define crimes and the punishment therefor. Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269 (1944). By the amendment to said Article 43.14, the Legislature changed the mode of execution when the death penalty is imposed. It provided that the new mode of execution shall be by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death. The Legislature placed a time limitation on the date of execution following sentence and provided for the time of day when the execution shall take place and provided the execution procedure was to be determined and then supervised by the Director of the Department of Corrections.

It appears that the Legislature has declared a policy and fixed a primary standard and delegated to the said Director power to determine details so as to carry out the legislative purpose which the Legislature cannot practically or efficiently perform itself. The statute is sufficiently complete to accomplish the regulation of the particular matters falling within the Legislature’s jurisdiction.

While the power to determine the validity of a statute rests with the courts, Ex parte Halsted, supra, as noted earlier, there is a presumption of validity when such question is to be passed upon. See Smith v. Davis, supra. And such presumption obtains until the contrary is shown beyond a reasonable doubt. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1946); Williams v. State, 514 S.W.2d 772 (Tex.Civ.App. — Beaumont, 1974). An act will not be declared unconstitutional unless the Legislature has clearly exceeded its powers. Lyle v. State, 80 Tex.Cr.R. 606, 193 S.W. 680 (1917). Statutes should not be annulled by the courts merely because doubts may be suggested as to their constitutionality. Lawson v. Baker, 220 S.W. 260 (Tex.Civ.App. — Austin, 1920); King v. Terrell, 218 S.W. 42 (Tex.Civ.App. — Austin, 1920).

We reject petitioner’s contention that said Article 43.14 violated the constitutional prohibition by an unauthorized delegation of legislative power.

Petitioner also asserts that said Article 43.14 allows the Director to act arbitrarily in choosing a lethal substance to be injected without a public notice, a hearing and a procedure for review of his choice of such substance. He contends that due process is violated by failure to provide for such procedure. We are not cited to nor have we found any authority to support the assertion that due process requires such notice, hearing and review in this context. Nonetheless, it appears from Director Estelle’s affidavit in the record that his choice of sodium thiopental was an informed one and that in selecting the lethal substance to be used he complied with a basic principle of administrative law by first ascertaining facts to support the final choice of the substance. See Texas Motor Coaches v. Railroad Commission, 41 S.W.2d 1074 (Tex.Civ.App. — Austin, 1931, no writ history).

Petitioner also urges that the said Article 43.14 is in irreconcilable conflict with Article 6166j, V.A.C.S., which provides in part:

“The Texas Department of Corrections shall employ a director, who shall possess qualifications and training which suit him to manage the affairs of a modern correctional institution, and it shall be his duty to carry out the policies of the Texas •Department of Corrections The director, with the consent of the Texas Department of Corrections, shall have power to prescribe reasonable rules and regulations governing the humane treatment, training, education, rehabilitation and discipline of prisoners, and to make provision for the separation and classification of prisoners according to sex, age, health, corrigibility, and character of offense upon which the conviction of the prisoner was secured. Neither the Department of Corrections nor the director may discriminate against a prisoner on the basis of sex, race, color, creed or national origin.” (Emphasis added.)

The Texas Board of Corrections (Articles 6166a and 6166b, V.A.C.S.) has the responsibility for the management of the Department of Corrections (Article 6166g, Y.A.C. S.), and it is this Board which has the power to select and remove the Director (Article 6166j and Article 6166k, V.A.C.S.) and prescribe the reasonable rules and regulations mentioned above.

We find no conflict between the two statutes as urged by petitioner. There is no requirement that the selection of a lethal substance for use in inflicting death by injection must be approved by the Board before it can be used. The infliction of death does not fall under any of the items concerning which the Board has the authority to make rules and regulations. We know of no just reason why the Legislature does not have the power to impose on the Director the authority to select the lethal substance to cause death independent of the said Board’s approval. If the Legislature had wanted to so provide for prior approval by the Board, it could have so provided. In the absence of such provision, we do not construe said Article 6166j as being in conflict with said Article 43.14.

Petitioner lastly claims that Article 37.071(a), V.A.C.C.P., as applied is unconstitutional because it prevents the jury from considering a defendant’s mental condition as a mitigating factor in relation to the two or possibly three statutory special issues to be submitted to the jury at the penalty stage of a capital murder trial. This court in construing Article 37.071, supra, has never limited admissible evidence to solely aggravating or mitigating circumstances. The phrase “any matter that the court deems relevant to sentence” in Article 37.071(a), supra, refers to virtually any type of probative matter. The only limitation is that the trial court in its discretion must consider the evidence to be relevant to punishment. See Robinson v. State, 548 S.W.2d 63 (Tex.Cr.App.1977), and the cases cited therein. Moreover, the jury in answering the special issues may properly consider all the evidence adduced during both the guilt and punishment phases of the trial. This could include evidence of a defendant’s mental condition — whether such evidence be characterized as an “aggravating” or “mitigating” factor. Thus, Article 37.-071(b), supra, does not prevent the jury from considering a defendant’s mental condition as a mitigating factor.

The relief prayed for is denied.

YOLLERS, J., not participating.

      . There are four other contentions urged, but these were adequately addressed on direct appeal in Granviel v. State, supra, and we decline to further discuss those matters.

      . Said § 1014, as amended, provides:
      “A. The punishment of death must be inflicted by continuous, intravenous administration of a lethal quantity of an ultrashort-acting barbiturate in combination with a chemical paralytic agent until death is pronounced by a licensed physician according to accepted standards of medical practice.
      “B. If the execution of the sentence of death as provided in subsection A of this section is held unconstitutional by an appellate court of competent jurisdiction, then the sentence of death shall be carried out by electrocution.
      “C. If the execution of the sentence of death as provided in subsections A and B of this section is held unconstitutional by an appellate court of competent jurisdiction, then the sentence of death shall be carried out by firing squad.”

      . Prior to the 1977 amendment, Article 43.14, V.A.C.C.P. (Execution of Convict) read:
      “Whenever the sentence of death is pronounced against a convict, the sentence shall be executed at any time before the hour of sunrise on the day set for the execution not less than thirty days from the day of sentence, as the court may adjudge, by causing to pass through the body of the convict a current of electricity of sufficient intensity to cause death, and the application and continuance of such current through the body of such convict until he is dead.” Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

      . Prior to the 1977 amendment, Article 43.14, V.A.C.C.P., was former Article 798, V.A.C.C.P., 1925, unchanged. The original act (changing the mode of execution from hanging to electrocution) was Acts 1923, 38th Leg., 2nd C.S., p. 111. It was common knowledge that prior to 1923 all legal executions were had by means of hanging. (Singleton v. State, 139 Tex.Cr.R. 28, 138 S.W.2d 100 (Tex.Cr.App.1940)).

      . The witness stated another acceptable spelling of the drug’s name was sodium thiopento 1, and that its trade name was sodium pentothal.

      . He explained that tolerance of the drug varied from individual to individual and that a lethal dosage depended in part on the weight of the individual.

      . Compare ROYAL COMMISSION ON CAPITAL PUNISHMENT REPORT, 1949-1953, London, at 257:
      “The drug, probably a barbiturate, such as hexobarbitone or thiopentone, would be injected into á vein, preferably at the bend of the elbow or the wrist. In about twenty or thirty seconds, perhaps before the dose was completed, the drug would reach the brain. The prisoner would then become unconscious and die a minute or two later. There would be no danger of failure if a large enough dose were given, and the prisoner would feel nothing after the prick of the needle.”
      Compare also 9 ST. MARY’S LAW JOURNAL, Statute Note, “Capital Punishment — Texas Statutes Amended to Provide for Execution by Intravenous Injection of a Lethal Substance,” 359, 364, footnotes 52 and 54.

      . Petitioner cites the following text on the nature of sodium thiopental:
      “As described in the PHYSICIANS DESK REFERENCE, 534 (1977) adverse reactions to sodium thiopental (trade name Penthothal) include, ‘respiratory depression, myocardial depression, cardiac arrhythmias . . . sneezing, coughing, bronchospasm, largngos-pasm and shivering.’ The P.D.R. also states that, ‘individual response to the drug is so varied that there can be no fixed dosage.’ ”
      The ROYAL COMMISSION REPORT cited in footnote # 7 above contains a more complete discussion of possible complications in administering such an injection. See particularly paragraphs 740-742, p. 258.
      See also 9 ST. MARY’S LAW JOURNAL, 359, 365, footnotes # 55 and # 56.

      . There is a good discussion of this question in 9 ST. MARY’S UNIVERSITY LAW JOURNAL 359, 361-362 (1977).

        In Attorney General’s opinion 0-5765 (1944), it was held that a defendant who was convicted of murder and sentenced to death by hanging but who escaped before execution could be electrocuted under current statute if apprehended and returned to Texas.

      . See:

        Alabama: Code of Alabama, Title 15, § 343.
      Arkansas: Arkansas Statutes Annotated, § 43-2611.
      Colorado: Colorado Revised Statutes 1973, § 16-11-402.

        Connecticut-. Connecticut General Statutes Annotated, § 54-100.

        Delaware: Delaware Code Annotated, Title 11, § 4209.

        District of Columbia: District of Columbia Code Encyclopedia, Chapter 7, § 23-701.

        Florida: West’s Florida Statutes Annotated, § 922.10.

        Idaho: Idaho Code, § 19-2717.
      Illinois: Smith-Hurd Illinois Annotated Statutes, Code of Criminal Procedure, ch. 38, § 119-5.

        Kentucky: Kentucky Revised Statutes, § 431.220.

        Louisiana: Louisiana Revised Statutes, § 15:569.

        Maryland: Annotated Code of Maryland 1957, Article 27, § 73.
      Massachusetts: Massachusetts General Laws Annotated, Chapter 279, § 46.

        Mississippi: Mississippi Code 1972, Annotated, § 99-19-51.

        Missouri: Vernon’s Annotated Missouri Statutes, § 546.720.

        Montana: Revised Codes of Montana 1947, § 95-23-3.

        Nevada: Nevada Revised Statutes, Vol. VI, § 176.355.

        New Mexico: New Mexico Statutes, § 41-14-11.1 et seq.

        New Jersey: New Jersey Statutes Annotated, Chapter 165, § 2A:165-1.

        New York: 10B McKinney’s Consolidated Laws of New York, Correction Law, § 112 and § 662.

        North Carolina: General Statutes of North Carolina § 15-188.

        Ohio: 29 Page’s Ohio Revised Code Annotated, § 2949.22.

        Pennsylvania: 19 Purdon’s Pennsylvania Statutes Annotated, § 1121.

        South Carolina: South Carolina Code of Laws of South Carolina, § 55-373.
      Tennessee: Tennessee Code Annotated, § 40-3117.
      Vermont: Vermont Statutes Annotated, Chapter 221, T. 13, § 7106.

        Washington: Revised Code of Washington Annotated, § 10.70.090.

        Wyoming: Statutes 1957, § 7-391 and 392.

      . See Statute Note, “Capital Punishment— Texas Statutes Amended to Provide for Execution by Intravenous Injection of a Lethal Substance,” 9 ST. MARY’S LAW JOURNAL 359, 363, footnote # 41 (1977).

      . See Statute Note, “Capital Punishment— Texas Statutes Amended to Provide for Execution by Intravenous Injection of a Lethal Substance,” 9 ST. MARY’S LAW JOURNAL 359, 361, footnote # 22 (1977). See and cf. Acts 1923, 38th Leg., 2nd C.S., ch. 51, p. Ill, § 14 (statute authorizing electrocution in lieu of hanging as a means of imposing the death sentence).
      We believe that the Legislature’s judgment in amending Article 43.14, supra, is consistent with the often quoted expression from Trop v. Dulles, supra, that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” 356 U.S. at 101, 78 S.Ct. at 598.

      . Article II, § 1 of the Texas Constitution is the separation of powers clause which prohibits any of the three branches of government from exercising any power properly attached to the other branches of government. Said clause provides:
      “Section 1. The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.”

      . The word “sentence” is obviously used as being synonymous with punishment.


text:
    Robert BURNS, Appellant, v. The STATE of Texas, Appellee.
    No. 57249.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Feb. 15, 1978.

      Alan Brown, San Antonio, for appellant.
    Bill M. White, Dist. Atty.s Sharon S. Ma-cRae and Marcelo R. Montemayor, Asst. Dist. Attys., San Antonio, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

DALLY, Judge.

Appellant waived his right to a trial by jury and pled guilty to the offense of aggravated assault with a deadly weapon; punishment was assessed at imprisonment for 5 years.

Appellant’s sole contention, that the court abused its discretion in denying appellant’s application for probation, is without merit. Whether a defendant is entitled to probation is for the trial court, in its discretion, to decide. Cantu v. State, 546 S.W.2d 621 (Tex.Cr.App.1977); Herrera v. State, 513 S.W.2d 71 (Tex.Cr.App.1974); Balderas v. State, 497 S.W.2d 298 (Tex.Cr.App.1973); McNeese v. State, 468 S.W.2d 800 (Tex.Cr.App.1971).

Under this ground of error appellant also complains that the court denied him access to the presentence report upon which the decision to deny appellant’s application for probation was based. Art. 42.12, Sec. 4, V.A.C.C.P., as amended effective April 5, 1977, provides as follows:

“When directed by the court, a probation officer shall fully investigate and report to the court in writing the circumstances of the offense, criminal record, social history and present condition of the defendant. Whenever practicable, such investigation shall include a physical and mental examination of the defendant. Defendant, if not represented by counsel, counsel for defendant and counsel for the state shall be afforded an opportunity to see a copy of the report upon request. If a defendant is committed to any institution the probation officer shall send a report of such investigation to the institution at the time of commitment.” (Emphasis added.)

Appellant was found guilty on March 7, 1977, and sentenced on April 14, 1977. The record does not reflect that appellant, before punishment was assessed and before he was sentenced, requested an opportunity to see the presentence report, which is included in the record before us. See Lopez v. State, 556 S.W.2d 821 (Tex.Cr.App.1977). No error has been shown.

The judgment is affirmed.


author: RAY, Justice.

text:
    GOVERNING BOARD, the DAR House, the Freeman Plantation, the Texas Society Daughters of the American Revolution, et al., Appellants, v. Mrs. F. Hastings PANNILL, State Regent, the Texas Society, Daughters of the American Revolution, Inc., et al., Appellees.
    No. 8469.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 29, 1977.
    Rehearing Denied Jan. 31, 1978.

      Jeffrey H. Hubbard, Houston, J. R. Cornelius, Jefferson, for appellants.
    C. Leland Hamel, F. Hastings Pannill, Houston, Jesse M. DeWare, IV, Tyler, for appellees.
   RAY, Justice.

This is a trespass to try title case. Originally The Governing Board, The DAR House-The Freeman Plantation, The Texas Society, Daughters of The American Revolution (Governing Board) and various chapters of the National Society of The Daughters of The American Revolution located in Texas and numerous individuals brought suit against Mrs. F. Hastings Pannill, State Regent, The Texas Society, Daughters of The American Revolution, Inc.; Mrs. Jesse M. DeWare, III, who is one and the same as Virginia Battle DeWare; Jesse M. DeWare, IV and Diane Ellen DeWare, appellees (defendants), seeking cancellation of a deed and possession of certain properties. When plaintiffs’ fourth amended original petition was filed and its first amended supplemental petition related thereto was filed, the Governing Board, the DAR House-the Freeman Plantation, the Texas Society, Daughters of the American Revolution was dropped as a party-plaintiff and the John Davis Chapter, of the National Society of The Daughters of The American Revolution, of Abilene was the first named party-plaintiff. In the amended motion for new trial, the motion was styled such that it showed the plaintiffs to be, “John Davis Chapter, the National Society of the Daughters of American Revolution, Et Al.”

The threshold question presented to this Court is whether or not it has acquired jurisdiction of the purported appeal. Ap-pellees have filed motions to dismiss this appeal for lack of jurisdiction. The motions will be denied.

The cost bond shows the appellant and principal to be the Governing Board, the DAR House, the Freeman Plantation, the Texas Society, the Daughters of the American Revolution, et al., and the bond is signed for “The Governing Board, the DAR House, the Freeman Plantation, the Texas Society, Daughters of the American Revolution, et "al” by “Julia J. Hubbard, Chairman” as principal. The judgment of the trial court recites that the party-plaintiffs were the John Davis Chapter and twenty-four other chapters and does not mention the Governing Board as a party-plaintiff.

Rule 356, Tex.R.Civ.P., requires that the bond for costs on appeal be filed with the clerk of the trial court within thirty days after rendition of judgment or order overruling motion for new trial. It is now well settled that the requirement that the bond be filed within thirty days is mandatory and jurisdictional. Roth v. Maryland American General Insurance Co., 454 S.W.2d 779 (Tex.Civ.App. San Antonio 1970, writ ref’d). Rule 354, Tex.R.Civ.P., requires that a cost bond be filed unless excused by law.

Where there are several appellants, appellate jurisdiction is acquired only as to the appeal of those appellants who have timely filed an appeal bond. Elliott v. San Benito Bank & Trust Co., 137 S.W.2d 1070, 1071 (Tex.Civ.App. San Antonio 1940, no writ). While an appellant’s brief might appear to be on behalf of all appellants, the court of civil appeals acquires no jurisdiction over the judgment as'it relates to those who did not perfect their appeal by filing an appeal bond. Atterbury v. Bowman, 186 S.W.2d 283 (Tex.Civ.App. Eastland 1945, no writ).

Rule 404, Tex.R.Civ.P., provides the following:

“All motions relating to informalities in the manner of bringing a case into court shall be filed and entered by the clerk on the motion docket within thirty days after the filing of the transcript in the Court of Civil Appeals, otherwise the objection shall be considered as waived, if it can be waived by the party.”

Rule 430, Tex.R.Civ.P., provides that:

“When there is a defect of substance or form in any appeal or writ of error bond, then on motion to dismiss the same for such defect, the appellate court may allow the same to be amended by filing in such appellate court a new bond, on such terms as the court may prescribe.”

Rule 437, Tex.R.Civ.P., provides in pertinent part the following:

“A judgment shall not be affirmed . or an appeal dismissed for defects or irregularities in appellate procedure, either of form or of substance, without allowing a reasonable time to correct or amend such defects or irregularities, . . .”

The Governing Board of which Mrs. Julia Hubbard is chairperson was not a party-plaintiff in the fourth amended original petition nor in the supplement thereto. The Governing Board was not named in the final judgment as a party-plaintiff and it was not mentioned in the style or body of the amended motion for new trial. No relief was sought on behalf of the Governing Board in the plaintiffs’ fourth amended original petition and the supplement thereto.

The Governing Board is not an entity in itself, but is only a standing committee of appellee, the Texas Society, Daughters of the American Revolution, Inc. The only authority vested in the Governing Board is that provided by the by-laws of appellee, Texas Society (Tr. 534). That authority does not include the capacity to sue or be sued or to make bond. Only chapters of the National Society of the Daughters of the American Revolution located in Texas can be members of the Texas Society, not individuals. Mrs. Hubbard purported to act, in signing the bond, as the chairperson of the Governing Board. Since we have concluded that the Governing Board was not a party to the suit at the time of its final rendition, it had no authority to act through its chairperson in attempting the appeal for itself.

A party-appellant has been defined as a “person seeking to establish a right or on whom it is sought to impose a corresponding duty or liability.” 44 Tex.Jur.2d, Parties, Sec. 1, p. 126; Rule 352, Tex.R. Civ.P. The party taking an appeal is the appellant. The Governing Board qualifies for neither party nor appellant since it did not seek any relief in the trial court or give any notice of appeal or file a motion for new trial. Butman v. Jones, 24 S.W.2d 796, 798 (Tex.Civ.App. Eastland 1930, no writ).

The Governing Board contends that by failure to file the motions to dismiss the appeal within thirty days after the filing of the transcript the appellees have waived any objections contained therein under Rules 404 and 405, Tex.R.Civ.P. The con-tentipn is without merit. Buchele v. Woods, 528 S.W.2d 95 (Tex.Civ.App. Tyler 1975, no writ). The failure to file a motion to dismiss for want of jurisdiction within thirty days after the filing of the record is not fatal. Walker v. Cleere, 141 Tex. 550, 174 S.W.2d 956, 958 (1943); Valdez v. Gill, 537 S.W.2d 477, 479 (Tex.Civ.App. San Antonio 1976, writ ref’d n. r. e.). The timely filing of a cost bond is jurisdictional and cannot be waived.

We have examined the record, including the affidavit of Julia Hubbard and the thirty affidavits filed on behalf of various Texas chapters of the National Society Daughters of the American Revolution who were party-plaintiffs, and under our very liberal construction of the rules relating to cost bonds, have concluded that Mrs. Hubbard was not only attempting to act for the Governing Board, but was acting in behalf of the chapters who were party-plaintiffs. Under Rule 406, Tex.R.Civ.P., this Court may look to affidavits to determine whether it has jurisdiction when the facts are not apparent in the record. Also, under Rule 14, Tex.R.Civ.P., affidavits may be made by the party or his agent.

While we are aware that some cases have held that the signature of the principal obligor is not necessary to the validity of an appeal bond signed by the sureties, we think it is not very good practice. 3 Tex. Jur.2d, Appeal and Error-Civil, Sec. 324, p. 581. In the instant case, the bond states that the undersigned Appellant has taken an appeal to the Court of Civil Appeals and further states:

“NOW THEREFORE, we said Appellant The Govering (sic) Board, The DAR House, The Freeman Plantation, The Texas Society, The Daughters of the American Revolution, et al as Principal, and LAWYERS SURETY CORPORATION as Surety, acknowledge ourselves bound to pay to Mrs. S. Hastings Pannill, State Regent, Texas Society, Daughters of the American Revolution, et al Appel-lee . . .” (Emphasis added.)

The bond is signed for “The Govering (sic) Board, The DAR House, The Freeman Plantation, The Texas Society, Daughters of the American Revolution, et al, by Julia J. Hubbard, Chmn., Principal.” It would not have taken much time or effort to have prepared a bond naming the parties who were appealing and to have shown that one person was signing the bond in an authorized capacity as principal, for all the appellants. The filing of affidavits to support the contention that all of the parties-plaintiff have appealed, after what appears to be a cost bond filed by a stranger or non-party to the case and after the jurisdictional question has been raised by appellees, leaves wide room for a losing party to perfect his appeal or losing parties to perfect their appeals after the thirty days have elapsed for filing the cost bond required by Rules 354 and 356, Tex.R.Civ.P.

A bond executed by a mere nominal party, stranger or non-party to the suit is insufficient to invoke the jurisdiction of the appellate court when filed on the behalf of another who is a party to the suit. Hawley v. Whitaker, 33 S.W. 688 (Tex.Civ.App.1895, no writ); 3 Tex.Jur.2d, Appeal and Error-Civil, Sec. 195, p. 467; Sec. 196, p. 468; Sec. 199, p. 471; Sec. 316, p. 574.

This is a complex case in which there has been developed a voluminous record after which the trial court entered summary judgment in favor of the appellees. Our review of the record indicates there are material fact issues which must be determined by a jury or the trial court as the trier of the facts.

SUMMARY OF THE FACTS

This controversy has its roots in the sale of the Austin headquarters property owned by the Texas Society, Daughters of the American Revolution (Society). The sale was a forced one because the property was within the boundaries of an urban renewal project. After this sale in 1971, Mrs. Ford Hubbard, then State Regent of the Society, began searching for a suitable replacement for the Austin headquarters. The search and acquisition of a new headquarters was one of Mrs. Hubbard’s projects for 1971 when she was State Regent, and culminated in the purchase of the Freeman Plantation in Jefferson. The Plantation was purchased from Mr. and Mrs. Palmer Haworth at a cost of $61,000.00 which included the house, furnishings and surrounding acreage.

In 1972, Article IX establishing a governing board to oversee the Freeman Plantation was added to the Society By-Laws. Five members were elected to the Governing Board in March 1973. It soon became apparent that the Governing Board and the Executive Board of the Society held widely divergent views as to the powers and responsibilities of each. The Governing Board, chaired by Mrs. Hubbard (now an ex-State Regent) believed that it should be in complete charge of the affairs of the plantation which would include the finances surrounding the plantation. The Executive Board of the Society headed by the new State Regent, Mrs. F. Hastings Pannill, however, felt that no permanent committee, such as the Governing Board, could be allowed to handle any finances of the Society. This conflict may have wholly or partially been responsible for the loss of a Moody Foundation Grant of $25,000.00. The Moody Foundation Grant was initially negotiated by Mrs. Hubbard while still State Regent. The grant was conditioned upon the Society providing matching funds. Funds to match the grant were apparently available, but were not released because of the conflict over whether the Governing Board or the Executive Board had jurisdiction over the Freeman Plantation finances.

One proposed solution to the continuing dispute which was having a debilitating effect on the Society was to remove Article IX from the By-Laws. The By-Laws provision was submitted to the full membership of the Society at the 1974 state conference and it was defeated. The proposal was resubmitted at the 1975 state conference and was again defeated. Upon the second failure, Mrs. Marguerite Daniel, a delegate from Kerrville, moved that

“In order to end this controversy which is destructive to the Texas Organization and distasteful to the individual chapters, it is moved that the Freeman Plantation be appraised and sold at fair market value. The State Regent is authorized to sign the papers.”

Mrs. Stanley A. Schmidt seconded the motion and after a short debate, the motion carried by a majority of 158 to 142.

Mrs. Jesse M. DeWare, III, was told of the proposed sale and began negotiations to purchase the plantation along with her son and daughter. The resolution to sell the plantation was passed on March 20, 1975, and on March 23, 1975, Mrs. DeWare and her husband signed a contract of sale in which they agreed to buy the plantation. Mrs. Nell Evans, a Jefferson realtor, handled the negotiations for the Society.

The Freeman Plantation was conveyed from the Society to the DeWares by general warranty deed on April 26,1975. However, during the period from March 23 to April 26, 1975, the Governing Board and several individual members of the various chapters filed an application for injunction to enjoin the proposed sale. The alleged grounds for an injunction were based on claims that the Governing Board was responsible for the long-term plans of the plantation and the vote to sell the plantation should have been by two-thirds of the membership rather than a simple majority. A notice of lis pendens was filed with the Marion County clerk. By order of the trial court on July 14,1975, the DeWares and the Society were temporarily enjoined from “disposing of, hypothecating, or damaging in any manner . . . ” the Freeman Plantation.

Mrs. Pannill filed a plea of privilege to be sued in her home county of Midland. This plea was denied by the trial court but was granted by this Court insofar as the case relates to her individually, and that part of the suit was ordered transferred to Midland County. Subsequently, Mrs. Pannill’s term as State Regent expired and she has requested to be dismissed as a party in her capacity as State Regent and we initially granted the motion.

Appellants went to trial on their fourth amended original petition. The DeWares, appellees (defendants), filed a cross-action against the Society seeking to recover certain expenditures should the deed be rescinded. Numerous motions for summary judgment were filed by both sides. The trial court denied all appellants’ (plaintiffs’) motions for summary judgment and granted each of the appellees’ (defendants’) motions for summary judgment. The temporary injunction granted on July 14, 1975, was dissolved when the final judgment was rendered on September 17, 1976.

The amended motion for new trial was overruled by the court on November 18, 1976, and the cost bond was filed on November 29, 1976. We have concluded that the losing parties (plaintiffs) named in the trial court’s judgment have perfected their appeal. The appellants submit thirteen points of error for our consideration.

MATERIAL FACT ISSUES

In determining whether or not there are any material fact issues which are disputed and which require this Court to overturn the summary judgment of the trial court, we are required to review the evidence in the light most favorable to the party opposing the motion for summary judgment. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 562 (1962). We must accept as true all evidence of the party opposing the motion which tends to support his contentions. All doubts are to be resolved against the movant. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233, 235 (1956).

A defendant moving for summary judgment assumes a negative burden of showing as a matter of law that the plaintiff had no cause of action against the defendant and that no material fact issues remains. Neigut v. McFadden, 257 S.W.2d 864, 868 (Tex.Civ.App. El Paso 1953, writ ref’d n. r. e.).

In review of the record in this case, we cannot say that appellees have established as a matter of law that no false representations were made which induced members to sell the Freeman Plantation. There are fact issues concerning the representations and a fact issue exists as to the worth of the plantation at the time that it was sold. There is a fact issue as to whether or not the Executive Board of the Society authorized the sale of the Freeman Plantation.

The appellees state that appellants should not be permitted to bring this suit because such cause of action is statutorily precluded by Article 1396-2.03(A), Tex.Rev. Civ.Stat.Ann., Texas Non-Profit Corporation Act, which provides, “Lack of capacity of a corporation shall never be made the basis of any claim or defense at law or in equity.” Appellees further contend that the cause of action is not brought under any of the exceptions listed in Article 1396-2.-03(B), supra. The defense of ultra vires for a non-profit corporation (Article 1396-2.03, supra) is the same as that of a corporation for profit (Tex.Bus.Corp. Act Ann. art. 2.04).

That a corporate act is invalid because it was beyond the authority of officers or directors may be asserted by a member in an action against the corporation to enjoin the activity. An action may also be asserted by the corporation acting directly or through members in a representative suit if the action is against incumbent or former officers or directors of the corporation for exceeding their authority. Article 1396-2.-03(B)(1) and (2), supra. Throughout their petition and summary judgment, proof, the appellants have sought to show that Mrs. Pannill in her capacity as State Regent (analogous to a corporate president or the chairman of the board of directors) exceeded her authority granted by the corporation’s by-laws. Article 1396-2.03(B)(2), supra, allows such an action be maintained by the corporation or through members in a representative suit “. . . against the incumbent or former officers or directors of the corporation for exceeding their authority. . . . ” if all procedural prerequisites are properly met. See Ford v. Bimbo Corporation, 512 S.W.2d 793, 795 (Tex.Civ.App. Houston-14th Dist. 1974, no writ), where the court states that all derivative suits brought on behalf of other shareholders similarly situated must meet the test of Rule 42, Tex.R.Civ.P., dealing with class actions. The representative must also show that the corporation has refused to bring such suit itself or cannot be expected to bring the action because the very person whose conduct is subject to complaint controls the corporation.

In order that the suit be shown to be justified, plaintiffs must allege actions of the board of directors or officers which are beyond their charter or by-law powers or a fraudulent transaction among themselves or with third persons such as will result in serious injury to the members or shareholders. Cates v. Sparkman, 73 Tex. 619, 11 S.W. 846 (1889). The comment in 40 Texas L.Rev. 677 (1962), “Ultra Vires Under The Texas Business Corporation Act” uses the Sparkman case to demonstrate the underlying principles of derivative suits. The writer states, at page 693, that Article 2.04(B)(2) of the Texas Business Corporation Act which is the same as Article 1396-2.03(B)(2) of the Texas NonProfit Corporation Act codified the case law then in effect. The author also lists some considerations when determining whether or not to enjoin the activity complained of which are: (1) knowledge by the outsiders that the corporation was exceeding its authority, (2) authorization or acquiescence by the shareholders in the act, and (3) extent of performance at the time the injunction proceedings were commenced. We conclude that the suit brought by the member chapters of the Society is sanctioned by Article 1396-2.03(B)(2), supra; that demand on the corporation to bring suit would have been futile because the parties complained of controlled the Society; and that the ap-pellees have not shown as a matter of law that the appellants are not entitled to maintain the suit. Appellees’ proof merely establishes that an issue does exist as to the propriety of such an action.

The Order of this Court entered on April 12, 1977, dismissing Mrs. F. Hastings Pan-nill as an appellee is rescinded. Appellants’ “Motion for Rehearing of Motion to Dismiss of Mrs. F. Hastings Pannill” is granted and she is reinstated as a party-appellee in her capacity as a former State Regent of the Society. In an unpublished opinion delivered by this Court on May 4, 1976, we transferred the case as it applies to Mrs. Pannill individually to Midland County when we decided her plea of privilege should have been granted by the trial court as it related to her in her individual capacity.

A fact issue exists as to whether Mrs. Pannill exceeded her authority while acting in her capacity as State Regent. Suit is authorized against her under Article 1396-2.03(B)(2), supra.

The record demonstrates that a material fact issue exists as to whether or not the DeWares had notice of the claim of appellants such that the DeWares could not be bona fide purchasers of the property. Much is made about the effect of the lis pendens notice and the original suit as not being notice to the DeWares, but Mrs. De-Wares’ deposition statements, her affidavit and the letter she signed on the date of the conveyance are contradictory and raise a question of fact to be resolved by the trier of fact regarding whether Mrs. DeWare had sufficient knowledge of the controversy as to be on actual notice of the claims of the appellants.

Material fact issues exist concerning ratification of the sale at the 1976 state conference. Full knowledge of all the facts and circumstances is necessary if there is to be a ratification. Leonard v. Hare, 161 Tex. 28, 336 S.W.2d 619 (1960); McCleskey v. McCleskey, 7 S.W.2d 657 (Tex.Civ.App. Amarillo 1928, no writ). Whether or not the delegates voted with full knowledge of the facts surrounding the conflict is in question, therefore ratification was not established as a matter of law.

The valuation of the Freeman Plantation is disputed by all sides. The value placed upon the plantation has a dramatic effect on the percentage of assets disposed of by the sale to the DeWares. The appellees contend that even if the plantation is given a value as urged by appellants, its sale would only constitute a disposal of 53% of the Society’s assets which is not substantially all its assets; whereas, appellants claim the Freeman Plantation is necessary to the function of the Society and without it the Society cannot continue its charter purposes.

Article 1396-5.09 requires that a two-thirds vote of all qualified voting members is necessary in order to dispose of all or substantially all of a non-profit corporation’s assets. The test to be applied when ascertaining whether all or substantially all assets are about to be sold is not the amount or value of the assets disposed of, but rather the nature of the transaction, that is, is the sale in furtherance of the express object of the corporation. Good v. Lackawanna Leather Co., 96 N.J.Super. 439, 233 A.2d 201, 210 (N.J.Sup.Ct.Ch.1967); Eisen v. Post, 3 N.Y.2d 518, 169 N.Y.S.2d 15, 18, 146 N.E.2d 779, 780 (N.Y.Ct.App.1957); In Re Timmis, 200 N.Y. 177, 93 N.E. 522 (N.Y.Ct.App.1910). See Stiles v. Aluminum Products Co., 338 Ill.App. 48, 86 N.E.2d 887, 889 (1st Dist. 1949); Annot., 9 A.L.R.2d 1306, 1309 (1950).

Whether or not the sale is in furtherance of the corporation’s stated purpose can only be determined after a more detailed development of the facts. Under the present state of the record, the issue is in dispute, and the dispute may only be settled by a trier of fact. If the trier of fact finds that the Freeman Plantation comprised substantially all the assets of the Society, then the vote on the resolution was insufficient because it was by a majority rather than by two-thirds of the voting members.

There is a material fact issue as to whether or not the motion to sell the Freeman Plantation included the furnishings. The motion is ambiguous and the disputed should be settled by the trier of fact.

There is a material fact issue related to the fair market value of the Freeman Plantation. The motion states that the Freeman Plantation be appraised and sold at its fair market value. Appellants rely upon testimony elicited at an earlier hearing which would set the fair market value much higher than the sale price. Appellees dispute this through affidavit and deposition testimony. Thus, the trier of fact must resolve the issue as to the fair market value.

The Attorney General has not been served with process, and has not made an appearance so as to become a party in this proceeding. He has, however, filed an ami-cus curiae brief.

Appellants state there are two reasons why the Attorney General should have been made a party to this suit. First, they contend that inasmuch as the Society is organized for charitable purposes, it is to be regarded as a charitable trust, and Article 4412, Tex.Rev.Civ.Stat.Ann., requires join-der of the Attorney General.

It is not disputed that the Society is in some sense a charitable trust, but it is immaterial to the question before the Court. The judgment of the court below is rendered void for failure to make the Attorney General a party only in situations specifically described in Article 4412a(2). These four situations are: (a) To terminate the charitable trust or to distribute its assets to others than charitable donees, or (b) To depart from the objects of a charitable trust as they are set forth in the instrument creating the trust, or (c) To construe, nullify or impair the provisions of any instrument creating or affecting a charitable trust, or (d) To contest the probate of any alleged will through which money or property is given for charitable purposes.

The fact that one party to the suit is a charitable trust or is organized for charitable purposes does not by itself bring into play the mandatory requirements of Article 4412a(2), supra, the failure to comply with which would render the judgment invalid. Article 4412a, supra, must be read to mean that the requirement of the joinder of the Attorney General exists only in the circumstances specifically enumerated.

. [23] The object of the present suit is the recovery of property. It is not a suit for construction of any document. That appellants in a trial on the merits might argue for a particular interpretation of the Society’s By-Laws, Charter or internal rules in order to establish a basis for cancellation of the deed is incidental to the object of this suit. We hold that the Attorney General of the State of Texas is not a necessary party to this suit under Article 4412a(2), supra.

The summary judgment entered by the trial court is reversed and the cause remanded for further proceedings.

CORNELIUS, C. J., not participating.