author: McDONALD, Chief Justice.

text:
    Cheryl OWEN, Appellant, v. Richard M. OWEN, Sr., et ux., Appellees.
    No. 5804.
    Court of Civil Appeals of Texas, Waco.
    Oct. 27, 1977.
    Rehearing Denied Nov. 30, 1977.

      John E. Hawtrey, Seymour & Hawtrey, Bryan, for appellant.
    Michael R. Hoelscher, Goode, Hoelscher & Lipsey, College Station, Neeley C. Lewis, Lewis & Lewis, Bryan, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellant (mother) Cheryl Owen from judgment appointing ap-pellees’ (grandparents) Mary and Richard M. Owen, Sr., managing conservators of appellant’s minor child in a divorce suit between appellant and Richard M. Owen, Jr.

Cheryl and Richard, Jr., were married in October 1974. Reagan Owen was born in December 1975. Cheryl sued for divorce in August 1976, but thereafter nonsuited. In October 1976 Richard, Jr., sued for divorce and custody of the minor child. Appellees intervened seeking to be named managing conservators of the child. Final judgment July 8, 1977, granted divorce, divided property, appointed Intervenors appellees managing conservators of the child, and appointed appellant a Possessory Conservator with rights of visitation with the child Tuesday thru Thursday every other week, six weeks each summer plus Mother’s Day and Easter (every other year) plus four days each Christmas.

Appellant appeals on one point:

The district court abused its discretion under Section 14.01(b) Tex.'Family Code in granting managing conservatorship to in-tervenor since the totality of the evidence before the court did not in any way show that the appointment of a parent, the mother, would not be in the best interests of the child.

Cheryl has been married four times; has two children by prior marriages; has custody of one of the children; the father has custody of the other. On May 5,1977 while the child was in possession of appellees in College Station appellant appeared at the Owen’s residence and physically tore the child from the arms of Mrs. Owen, Sr., and took the child to Dallas. There is evidence Cheryl, while in possession of the child, left her without adequate supervision, unattended or in lack of food. Cheryl has lived in various locations and with a varying assortment of people since her divorce petition was originally filed in 1976. There is evidence Cheryl wilfully withheld visitation or access to the child from the father or grandparents during the period she had possession. Cheryl now lives in Dallas where she is a representative for a swimming pool manufacturer working five days per week; making $1200. per month plus moneys from a contract employment. She is purchasing a home and is financially able to take care of the child. ■

Appellees own their home in College Station, are in their early fifties, are well qualified to raise the small child; have assisted their son and daughter-in-law on many occasions, and had the son and daughter-in-law living in their home for some six months. Appellees are financially secure and are willing to devote their lives to raising the child, giving the mother all privileges of visitation awarded by the trial court.

Section 14.01(b) Texas Family Code provides in part:

“A parent shall be appointed managing conservator of the child unless the court finds that appointment of the parent would not be in the best interest of the child” and Section 14.07(a) provides in part: “The best interest of the child shall always be the primary consideration of the court in determining questions of managing conservator-ship, possession, and support of and access to the child”.

And in awarding custody of minor children the principal concern of the courts is the welfare and best interest of the children. Tye v. Tye, CCA (Tex.Civ.App., Corpus Christi) 532 S.W.2d 124; Ex Parte Eaton, S.Ct., 151 Tex. 581, 252 S.W.2d 557; Numma v. Aguirre, Tex., S.Ct., 364 S.W.2d 220.

And the question of resolving custody questions is addressed to the sound discretion of the trial court when it is the trier of fact. It is in a better position than an appellate court to determine what will be in the best interests of the child since the trial judge faces the parties and their witnesses, observes their demeanor, and has the opportunity to evaluate the claims made by the parties, all of which are difficult to accurately weigh and determine by mere reading of the statement of facts. In determining what is best for the minor child in a custody proceeding the trial court’s judgment will not be disturbed by an appellate court unless there has been a clear abuse of discretion. Mumma v. Aguirre, supra; Herrera v. Herrera, Tex., 409 S.W.2d 395; Tye v. Tye, supra; Smitheal v. Smitheal, Tex.Civ.App., CCA (Ft. Worth) 518 S.W.2d 842 Er.Dismd Cert, denied 96 S.Ct. 277; Gibson v. Hines, CCA, NWH (Waco) 511 S.W.2d 546.

From the record before us the trial court was authorized to believe that appel-lees’ home insures the greatest stability of the choices available; and we cannot say the trial court abused its discretion.

Appellant further asserts the judgment contrary to the great weight and preponderance of the evidence. From the record as a whole we are unable to say the judgment is against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Appellant’s point is overruled.

AFFIRMED.


source: Caselaw Access Project

author: DODSON, Justice.

license: Public Domain

text:
    Ivy WILBORN, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 8823.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 31, 1977.
    Rehearing Denied Nov. 28, 1977.

      Brown & Brown, Phil Brown, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Cecil Kuhne, Lubbock, for appellee.
   DODSON, Justice.

This is a case under the Workman’s Compensation Act to mature an award of the Industrial Accident Board.

Ivy Wilborn, the appellant-employee, brought suit in the 99th District Court of Lubbock County, Texas against Texas Employers’ Insurance Association, the appellee-insurer, to mature an award of the Industrial Accident Board while an action by the appellee-insurer to set aside the same award was pending in the 72nd District Court of Lubbock County, Texas.

The appellant-employee filed a motion for summary judgment in the action to mature the award in the 99th District Court, and likewise, the appellee-insurer filed its motion for summary judgment in the same action.

The court denied appellant-employee’s motion, sustained appellee-insurer’s motion, and entered judgment in favor of the appel-lee-insurer. From this judgment the appellant-employee appeals to this Court. We affirm the action of the trial court.

The appellant brings two points of error to this Court. In the first, he complains that the court erred in overruling his motion for summary judgment since the award of the Board was final as a matter of law. And in the second point, he complains that the court erred in granting the appel-lee’s motion for summary judgment since “a genuine issue of a material fact existed and . . . ” appellee “was not entitled to a judgment as a matter of law.” These points lead us first to determine if, as a matter of law, the appellee has complied with the applicable provision of § 5 of art. 8307 V.A.C.S. in its suit to set aside the award of the Board which is pending in the 72nd District Court of Lubbock County, Texas.

Section 5 of art. 8307 provides in part as follows:

. . Any interested party who is not willing and does not consent to abide by the final ruling and decision of said Board shall, within twenty (20) days after the rendition of said final ruling and decision by said Board, file with said Board notice that he will not abide by said final ruling and decision. And he shall within twenty (20) days after giving such notice bring suit in the county where the injury occurred to set aside said final ruling and decision, ... If any party to such final ruling and decision of the Board, after having given notice as above provided, fails within said twenty (20) days to institute and prosecute a suit to set the same aside, then said final ruling and decision shall be binding upon all parties thereto; . . . (Emphasis added.)

and § 5a of art. 8307 provides in part as follows:

In all cases where the board shall make a final order, ruling or decision as provided in the preceding section and against the association, and the association shall fail and refuse to obey or comply with the same and shall fail or refuse to bring suit to set the same aside as in said section is provided, then in that event, the claimant in addition to the rights and remedies given him and the board in said section may bring suit where the injury occurred, upon said order, ruling or decision. (Emphasis added.)

This section clearly states that a suit to mature the award of the Industrial Accident Board will lie only when the Insurer either fails to pay the award or fails to bring suit to set aside the same as provided in § 5 of art. 8307, supra.

This conclusion is supported in Fidelity Union Casualty Co. v. Klatt, 47 S.W.2d 417 (Tex.Civ.App.—El Paso 1932, writ dism’d) where the Court said at p. 419 as follows:

Section 5 and 5a of article 8307, of our statutes, makes available to a claimant the right to sue to mature the award in the event only that the insurer has not duly given the notice and filed suit to set aside the award of the board. Where the notice is given and suit was filed, a claimant’s suit to mature the award is improper and should be stricken on exception. (Emphasis added.)

Cases to the same effect are: Aetna Insurance Company v. Spradley, 446 S.W.2d 941 (Tex.Civ.App.—El Paso 1969, no writ); Hardware Mutual Casualty Co. v. Clark, 360 S.W.2d 921 (Tex.Civ.App.—Waco 1962, writ dism’d); Federal Underwriters Exchange v. Read, 138 Tex. 271, 158 S.W.2d 767 (Tex. Comm’n App. 1942, opinion adopted).

The Commission of Appeals in the early case of Ocean Accident & Guaranty Corporation v. May, 15 S.W.2d 594 (Tex. Comm’n App. 1929, jdgmt adopted) established the requirements necessary to comply with § 5 of 8307, supra. The Commission said as follows:

The Court of Civil Appeals seems to lay stress on the provision of section 5 of article 8307, R.C.S. 1925, which provides: “If any party to any such final ruling and decision of the board, after having given notice as above provided, fails within said 20 days to institute and prosecute [italics ours] a suit to set the same aside, then said final ruling and decision shall be binding upon all parties thereto,” etc.
In our opinion the filing of the petition with the clerk of the proper court, with the bona fide intention that process shall be issued and served at once, is all that is necessary to comply with the statute. It is true that the statute says that if the party fails to institute and prosecute the suit within 20 days the ruling and decision of the board shall be final; but we think that the party appealing from the rulings and decision of the board has complied with this statute when he files his petition in the proper court with the bona fide intent that citation shall issue and be served at once upon the defendants. Ricker v. Shoemaker, 81 Tex. 22,16 S.W. 645. We think further that the word prosecute used after the word institute, in the statute means nothing more than as above held by us. This interpretation is fully justified and substantiated by the provisions appearing in the same article before the above-quoted provision, to the effect, “and he shall within twenty days after giving such notice bring suit in the county where the injury occurred,” etc. In other words, the provision, “institute and prosecute,” and the words “bring suit,” as used in section 5 of article 8307, R.C.S. 1925, means the same thing. There is no showing that the Guaranty Corporation did anything to delay the issuance or service of citation herein. (Emphasis added.)

Thus, we can paraphrase the above quoted language as follows: that the appellee “appealing” from the ruling and decision of the Board has complied with this statute when it filed its petition in the 72nd District Court of Lubbock County, Texas with the bona fide intent that citation shall issue and be served at once upon the appellant. Cases to the same effect are: Traders & General Ins. Co. v. Spillers, 88 S.W.2d 738 (Tex.Civ.App.—Fort Worth 1935, writ ref’d); Roberts v. Ohio Casualty Insurance Company, 256 F.2d 35 (5th Cir. 1958); Maryland Casualty Co. v. Jones, 73 S.W.2d 668 (Tex.Civ.App.—Amarillo 1984), affirmed, 129 Tex. 392, 104 S.W.2d 847 (Tex. Comm’n App. 1937, opinion adopted); and Buffalo Insurance Company v. McLendon, 402 S.W.2d 559 (Tex.Civ.App—Texarkana 1966, no writ).

A review of the record before us reveals material and undisputed facts as follows: that the Industrial Accident Board made its final award on appellant’s claim on May 28, 1976; that within twenty days from May 28, 1976 appellee gave the Board notice of its intent to appeal the award; that the appellee filed its suit to set aside the award on June 25, 1976 which was within twenty days from the day of notice of appeal; that on June 25, 1976 such suit was filed in the 72nd District Court of Lubbock County, Texas; that appellant’s alleged injury and claim arose in such county; that appellee caused the District Clerk to issue citation for service of the appellant on the same day it filed its suit to set aside the award; that the sheriff of Lubbock County, Texas returned the citation for service on June 28, 1976 with the notation “Left Lubbock about two months ago. Destination unknown.”

These facts are sufficient, as a matter of law, for us to conclude that the appellee has complied with the requirements of § 5 of 8307, supra, to perfect its appeal to set aside the award of the Industrial Accident Board.

However, this conclusion is further supported by other undisputed facts. Before the appellee filed its suit to set aside the award, its attorneys called the attorney representing the appellant and requested waiver of citation of service. This request was refused. Then the appellee’s attorneys requested service of the appellant at a Lubbock address at the time suit was filed in the 72nd District Court. On June 17, 1976 the appellant’s attorneys filed suit in County Court at Law No. 2, in Lubbock County, Texas to appeal an award of the Industrial Accident Board on another and different claim against the appellee. The appellee answered this claim on June 28, 1976. The appellee’s attorneys arranged with appellant’s attorneys to take the deposition of appellant on July 23, 1976 and use such deposition in both cases. The appellee’s attorneys intended to again attempt service on the appellant at such deposition. However, one. of the appellant’s attorneys informed the appellee’s attorneys that he did not know the whereabouts of the appellant, so the attorneys agreed to postpone the deposition. Then, one of appellee’s attorneys served notice on appellant’s attorneys to take the oral deposition of the appellant in the cause pending in the County Court at Law No. 2. October 27, 1976 was the date set for this deposition. The appellee’s attorneys appeared for the deposition, but neither the appellant nor his attorneys appeared. The next day the appellant through the same attorneys filed this suit in the 99th District Court of Lubbock County, Texas.

These facts affirmatively establish appel-lee’s continuing intent to prosecute its suit to set aside the award.

Therefore, we determine that the appellee has complied with the applicable provisions and requirements of § 5 of art. 8307, supra, in its suit in the 72nd District Court of Lubbock County, Texas to set aside the award of the Industrial Accident Board; that appellant’s action to mature the award does not lie; that the court properly overruled appellant’s motion for summary judgment; and that appellant’s first point of error in this Court is overruled.

In appellant’s second point he complains that the trial court erred in sustaining the appellee’s motion for summary judgment because “a genuine issue of a material fact existed.” In his brief appellant contends that the appellee has not shown its use of due diligence to obtain service on the appellant.

In support of this position, he cites cases construing the general statutes of limitation; however, these cases are not applicable, similar or analogous to the facts or circumstances of this case. Maryland Casualty Company v. Jones, 129 Tex. 392, 104 S.W.2d 847, 849 (1937).

Again, in Ocean Accident & Guaranty Corporation v. May, supra, the court said: “There is no showing that the Guaranty Corporation did anything to delay the issuance or service of citation herein.” (Emphasis added.) To the same effect are Traders & General Ins. Co. v. Spillers, supra, where citation was not issued for some three and one-half months after the suit was filed; and Buffalo Insurance Company v. McLendon, supra, where citation was not issued for some 33 days after the suit was filed.

On appellee’s suit to set aside the award, there is no showing that the appellee did anything to delay the issuance of service. The facts show the contrary. Citation was issued on the day the suit was filed and returned three days later.

And, likewise, there is no showing that the appellee did anything to delay service on the appellant. Again, the facts reveal the contrary. The delay in service was occasioned by the absence of the appellant. The appellant’s attorneys said they did not know of appellant’s whereabouts. The sheriff reported he “Left Lubbock two months ago. Destination unknown.” The appellee’s attorneys made two attempts to obtain the presence of the appellant for deposition and service, the last of which was the day before this suit was filed to mature the award. There is no showing that the absence of the appellant was caused or instigated by the appellee.

The 72nd District Court of Lubbock County, Texas acquired jurisdiction of the subject matter in controversy by operation of law when appellee filed its suit to set aside the award. See: Texas Reciprocal Insurance Association v. Leger, 128 Tex. 319, 97 S.W.2d 677 (1936); Lowery v. Transport Insurance Co., 451 S.W.2d 595 (Tex. Civ.App.—Austin 1970, no writ); and the cases therein cited at page 596.

From the record before us in this case and for the reasons stated herein, we hold, as a matter of law, that the appellee has complied with the applicable provisions and requirements of § 5 of 8307, supra, in its suit in the 72nd District Court of Lubbock County, Texas to set aside the award of the Industrial Accident Board; that the appellant’s action to mature the same award does not lie; that the trial court properly overruled appellant’s motion for summary judgment and properly sustained the appellee’s motion for summary judgment and properly entered judgment in favor of appellee. Both of the appellant’s points of error are overruled and the judgment of the trial court is affirmed.


author: COULSON, Justice.

text:
    Alvin T. KIEL, Appellant-Appellee, v. CITY OF HOUSTON, Appellee-Appellant.
    No. 1554.
    Court of Civil Appeals of Texas, Houston (14th Dist).
    Oct. 31, 1977.
    Rehearing Denied Nov. 30, 1977.

      Will Sears, Sears & Burns, Houston, for appellant-appellee.
    Otis H. King, City Atty., Alan F. Levin, Senior Asst. City Atty., Dennis C. Gardner, Asst. City Atty., Houston, for appellee-ap-pellant.
   COULSON, Justice.

Alvin T. Kiel, a fireman, sued the City of Houston to compel recognition of his promotion by operation of law and to recover damages for its failure to do so. The trial court held he had been promoted, but that he held the rank for a limited time and could only recover damages for the period during which he actually held the rank. Since we agree that the promotion occurred, but find the City failed to prove he only held the rank for a limited time, we affirm in part and reverse and render in part.

Kiel became a member of the Houston Fire Department in 1956. He advanced steadily and by 1967 had achieved the rank of Chauffeur. In October, 1968 he successfully passed an examination held to establish an eligibility list for the position of Investigator in the department. His name was placed on that list and by July, 1969 he had moved from his original rank of nineteenth on the list to first.

On July 8,1969 the Houston City Council adopted an ordinance creating twenty new Investigator positions. During the next ninety days the fire chief neither promoted Kiel to one of these positions nor passed him over to promote the second or third ranked person on the list. Because of this inaction Kiel was promoted to Investigator by operation of law on the ninetieth day, October 6,1969. Tex.Rev.Civ.Stat.Ann. art. 1269m § 8 (1963). Despite this fact, Kiel continued to be assigned and paid as a Chauffeur.

On November 8, 1972 the City Council adopted an ordinance which, among other things, reduced the number of Investigator positions by fourteen.

On October 4, 1973, following an unsuccessful demand on the City, Kiel filed a suit seeking recognition of his promotion, recovery of the difference between what he received in pay as a Chauffeur and what he was entitled to as an Investigator, and interest on that amount. The trial court held that he had been promoted by operation of law on October 6, 1969, but held that the November 8, 1972 ordinance abolished his position as Investigator, operated to demote him to Chauffeur, and limited his recovery for the pay difference to the intervening period. Both parties have appealed from this judgment, the City contending that Kiel’s suit was barred by his delay in seeking recovery, and Kiel arguing that the November 8, 1972 ordinance did not abolish his position.

Kiel’s cause of action accrued on the day he was promoted, October 6, 1969; he filed suit on October 4, 1973. The City asserts that his action is basically one for indebtedness, that he can produce no writing which evidences his contract for promotion, and that the two-year statute of limitations, Tex.Rev.Civ.Stat.Ann. art. 5526 (1958), applies. Kiel, in turn, argues that he does have a contract in writing with the City, that the four-year statute of limitations, Tex.Rev.Civ.Stat.Ann. art. 5527 (1958), applies, and that he filed his suit within four years after his cause arose.

Courts are liberal in determining what constitutes a “contract in writing” within the meaning of the statute of limitations. First State Bank of Green’s Bayou v. Tanner, 495 S.W.2d 267 (Tex.Civ.App—Houston [1st Dist.] 1973, no writ); Jackson v. Paulsel Lumber Company, 461 S.W.2d 161 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n. r. e.). In light of this rule, we hold that Kiel’s civil service record and the writings which surround it, especially the eligibility list for promotion to Investigator, taken as a whole, constitute a contract in writing with the City.

It remains, however, that the critical term, the agreement to promote Kiel to Investigator, is not present in this body of papers, but is, instead, found in a statute. We deem this no bar. It is sufficient for purposes of the statute of limitation that the writing acknowledges a state of facts from which, by fair implication, an obligation or liability arises; the contract need not contain an express promise to do the thing in issue. International Printing Pressmen and Ass’ts Un. v. Smith, 145 Tex. 399, 198 S.W.2d 729 (1946). The writings, which constitute Kiel’s contract with the City, establish that on October 6, 1969 he was promoted by operation of law.

Our opinion on this matter is confirmed by the decisions in several Texas cases which held that relevant statutes are incorporated by implication into contracts made by a governmental entity. Empire Gas & Fuel Co. v. State, 121 Tex. 138, 47 S.W.2d 265 (1932); Trinity River Authority v. Boone, 454 S.W.2d 258 (Tex.Civ.App.—Houston [1st Dist.] 1970, no writ).

We hold that Kiel’s suit was not barred by the statute of limitations.

Further, we are unconvinced by the City’s argument that the doctrine of laches applies to this case. Although that doctrine is a distinct concept from statutes of limitation and is not bound by them, it remains that in the absence of some element of estoppel or extraordinary circumstance, laches will not bar a suit short of the period provided by the limitation statute. Barfield v. Howard M. Smith Company of Amarillo, 426 S.W.2d 834 (Tex.Sup.1968). We find no evidence in this case of either the elements of estoppel or any extraordinary circumstance.

All of the City’s points of error have been considered and are overruled.

It is unquestionable that the Houston City Council had the right to abolish the fourteen Investigator positions provided it did so in good faith and by a duly enacted ordinance. E. g., Michna v. City of Houston, 521 S.W.2d 331 (Tex.Civ.App—Houston [1st Dist.] 1975, no writ). However, in contrast to the presumptions in other situations, when a governmental entity seeks to abolish positions held by its employees, it has the burden of establishing that it acted in good faith. City of San Antonio v. Wallace, 161 Tex. 41, 338 S.W.2d 153 (1960). Because of this rule, the City was required to plead and prove its good faith in abolishing the Investigator positions. Our review of the record discloses only one item tending to support this burden of the City, that being the City Council’s recital in the preamble to the ordinance that the action was taken because the positions were not needed and abolition of them would promote efficiency, economy, and be in the best interests of the City.

Such a self-serving declaration does not meet the City’s burden. The supreme court’s decision in Wallace indicates that the City must produce pertinent facts relating to the economy and efficiency of the change. City of San Antonio v. Wallace, 338 S.W.2d at 158. Even if the City had produced live witnesses to state that the action was taken for proper purposes, it would not have been sufficient; the City should have proved that the jobs were unnecessary and shown why it would be more satisfactory to the public if they were abolished. Welch v. Overton, 416 S.W.2d 879 (Tex.Civ.App.—Texarkana 1967, writ ref’d n. r. e.).

Since the City failed to discharge its burden in proving the good faith enactment of the ordinance which the City contends abolished Kiel’s position, it could not set that ordinance up as a limitation on his recovery. Because of this, the trial court erred in limiting Kiel’s recovery to the period between October 6, 1969 and November 8, 1972. Kiel is entitled to recover the difference between what he was paid as a Chauffeur and what he should have been paid as an Investigator from October 6, 1969 forward, without consideration of the November 8, 1972 ordinance, together with interest on each such differential payment from the date it should have been paid.

Affirmed in part and reversed and rendered in part.


text:
    J. D. HEDLEY et al., Appellants, v. Nicholas R. duPONT et al., Appellees.
    No. 1598.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 31, 1977.
    Rehearing Denied Nov. 30, 1977.

      Sidney L. Farr, Farr & Fillion, Houston, for appellants.
    Joyce Cox, Joseph A. Kornfeld, Cox, Pak-enham & Roady, Houston, for appellees.
   COULSON, Justice.

Plaintiffs brought suit seeking specific performance of agreements to convey interests in oil and gas properties. The trial court ruled that the suit was for recovery of real estate commissions, and following the plaintiffs’ refusal to amend their petition to state they were licensed real estate brokers, dismissed the suit with prejudice. We reverse and remand, and order the plaintiffs’ suit reinstated.

Under written and oral agreements J. D. Hedley, Harry Leyendecker, and John Carter, Jr. (the plaintiffs) were to locate oil and gas drilling prospects or leases and present them to Nicholas R. duPont, Eugene du-Pont III, Ridgeley, Inc., Terra Resources, Inc., and C.R.A. International, Ltd. (the defendants). If the defendants, individually or as a group, chose to participate in a particular prospect they would acquire the prospect and drill on it. Once a well on such a prospect produced enough to equal the defendants’ costs in acquiring the property and drilling the well, the defendants became obligated to assign one-fourth of their interest in that well to the plaintiffs.

The plaintiffs believe the defendants have failed to assign them their rightful interests in certain wells. Because of this they filed a suit seeking an accounting, recovery of the proceeds from their interests, and specific performance of the defendants’ promise to convey. The defendants filed special exceptions to the plaintiffs’ petition, chief among them that the plaintiffs could not bring or maintain their action since under the Texas Securities Act, Tex.Rev.Civ.Stat.Ann. art. 581-1, et seq. (1964), it was a suit to collect securities brokerage commissions and under the Texas Real Estate License Act, Tex.Rev.Civ.Stat. Ann. art. 6573a (Supp.1976-77), it was a suit for real estate commissions, and that in each case the plaintiffs were required to have an appropriate license. The trial court overruled the exception arguing the applicability of the Securities Act, but sustained the one relating to the Real Estate License Act. Following the plaintiffs’ refusal to amend their petition to state that they were licensed real estate brokers, the trial court dismissed their suit with prejudice, holding that as a matter of law they could not recover under the allegations in their petition.

The plaintiffs appeal from the dismissal and the defendants appeal from the trial court’s action in overruling their special exceptions.

We note initially that both of the acts specifically exempt the type of transaction in issue here. Tex.Rev.Civ.Stat.Ann. art. 581-5 Q (1964) (exempts sales of interests in oil, gas, or mining leases, or contracts relating thereto, where the sales by any one owner in a single lease do not exceed thirty-five within a period of twelve consecutive months, and no advertisement or public solicitation is used); Tex.Rev.Civ. Stat.Ann. art. 6573a, § 3(h) (Supp.1976-77) (exempts transactions involving sale, lease, or transfer of any mineral or mining interest). Moreover, the oil and gas exemption under the Securities Act was in force at all times critical to this suit. As such, we hold that the trial court properly overruled the defendants’ special exception on this point.

In contrast, the exemption under the Real Estate License Act was not passed until 1975, a time considerably after the limitations period for the plaintiffs’ suit had expired. Despite this fact, we find that the amendment has controlling effect on this case.

The Real Estate License Act was drafted in broad language so as to encompass a great number of activities and evils which the Legislature sought to regulate and prevent. Although the broad language properly serves to preclude circumvention, it also serves to draw in a number of activities which the Legislature never sought to regulate.

Because of this, exemptions were created. The problem in drafting exemptions when a statute is initially created is envisioning each type of activity which should be exempted, so resort must again be to broad language. However, after an act has been in force for a number of years, and after litigation and experience reveal the precise areas affected by it, the exemptions can be drawn more precisely. When the Legislature amends an act in such a situation, it is not changing the law, it is merely clarifying it; it is replacing broad, general statements with particularized, precise ones, and the law as amended may properly be said to have always been the law. See Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269, 274 (1944); Calvert v. Marathon Oil Company, 389 S.W.2d 153, 158 (Tex.Civ.—Austin 1965, writ ref’d n. r. e.).

We believe that this is the ease with the 1975 amendments to the exemption section of the Real Estate License Act. Before 1975 the exemption section was broadly worded; now it is specific. Four general exemptions have been replaced by ten particular ones. Because this legislative action served solely to clarify the law, not to change it, we hold that the transaction in issue is not currently subject to the act and never was properly subject to it.

As the other cases dealing with this question did not have the benefit of the 1975 amendments we do not deem them controlling.

Since the Real Estate License Act has no application to the plaintiffs’ suit, the trial court erred in dismissing the suit and it should be reinstated.

The plaintiffs’ points of error one and two are sustained. Because of our holding on these points we do not reach plaintiffs’ other points of error.

Some of the prospects or leases involved in this case are located in Louisiana and Mississippi, and in cross-point one the defendants argue that the court lacks jurisdiction to hear claims to mineral interests located outside of Texas. While a court cannot directly divest or invest title in another state, a court with jurisdiction over the parties before it can compel them to execute a conveyance of lands beyond the court’s jurisdiction and such a conveyance will be upheld. Groom v. Mortimer Land Co., 192 F. 849 (5th Cir.), error denied, 225 U.S. 700, 32 S.Ct. 835, 56 L.Ed. 1264 (1912); Texas & P. Ry. Co. v. Gay, 86 Tex. 571, 26 S.W. 599, 604-05 (1894), affirmed, 167 U.S. 745, 17 S.Ct. 1000, 42 L.Ed. 1209 (1897). Crosspoint one is overruled.

The defendants’ other cross-point, that the plaintiffs must plead their case as trespass to try title, is without merit and is overruled. Such an action is only appropriate where a plaintiff has a present right of possession to the property. State v. Dayton Lumber Co., 106 Tex. 41, 155 S.W. 1178 (1913); Shell Petroleum Corporation v. State, 86 S.W.2d 245 (Tex.Civ.App.—Austin 1935, no writ). The plaintiffs here have no right of possession, but are instead seeking to create such a right.

Reversed and remanded with instructions to reinstate the plaintiffs’ suit.


text:
    Sammy L. BECKENDORFF et al., Appellants, v. HARRIS-GALVESTON COASTAL SUBSIDENCE DISTRICT, Appellee.
    No. 1716.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 31, 1977.
    Rehearing Denied Nov. 30, 1977.

      Joe G. Roady, Cox, Pakenham & Roady, Sam W. Levy, Levy & Levy, Houston, for appellants.
    John L. Hill, Atty. Gen, David M. Kendall, Jr., First Asst. Atty. Gen., Austin, Troy Webb, Chief, Environmental Protection Div., Donald W. Allee, John S. Teutsch, Linda M. Wells, Asst. Attys. Gen., Houston, Carl G. Mueller, Jr., Steven C. Oaks, Butler, Binion, Rice, Cook & Knapp, Houston, for appellee.
   COULSON, Justice.

This is an appeal from a consolidated action brought by a number of water well owners and users in western Harris County seeking a determination that the act creating the Harris-Galveston Coastal Subsidence District (the Act) is unconstitutional. The district court upheld the constitutionality of the Act. We affirm.

In April 1975, in response to the serious problems posed by subsidence in the Texas Gulf Coast area, the Texas Legislature passed an act, Tex. Laws 1975, ch. 284 at 672, creating the Harris-Galveston Coastal Subsidence District. The Act provided for the creation of a district board with full power to administer the provisions of the Act and implement its purpose, the regulation of groundwater withdrawal within the district. By the terms of the Act, regulation of such withdrawal, and hence control of subsidence, was to be accomplished by requiring the owner of any well within the district (with certain exceptions for small wells) to obtain a permit from the board before the well could be operated. These permits could incorporate whatever terms and conditions the board felt were necessary to control and prevent subsidence. Under section 37 of the Act, the board was required to collect a fee when permits were issued, the fee being based on the term of the permit and the maximum amount of groundwater the board had authorized to be withdrawn from the well.

In October 1975 the district board issued an order setting the permit fee rate at 1.2 cents for each one thousand gallons of water pumped. Two groups of plaintiffs promptly filed separate suits challenging this order. These suits were subsequently consolidated, and several months after that, a third group of plaintiffs intervened in the consolidated action. All of the plaintiffs are, by their own characterization, owners and users of water wells in the western part of Harris County, and are “essentially rice farmers.” In a nonjury trial, the district court upheld the constitutionality of the Act and sustained the validity of the district’s order.

In their presentation to this court, the appellants initially complain that article XVI section 59 of the Texas Constitution, the conservation amendment, does not authorize the creation of a conservation and reclamation district for the purpose of controlling subsidence. Article XVI section 59(a) provides:

The conservation and development of all of the natural resources of this State, including the control, storing, preservation and distribution of its storm and flood waters, the waters of its rivers and streams, for irrigation, power and all other useful purposes, the reclamation and irrigation of its arid, semi-arid and other lands needing irrigation, the reclamation and drainage of its overflowed lands, and other lands needing drainage, the conservation and development of its forests, water and hydro-electric power, the navigation of its inland and coastal waters, and the preservation and conservation of all such natural resources of the State are each and all hereby declared public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto.

Section 1(a) of the Act creating the Harris-Galveston Coastal Subsidence District states:

The purpose of this Act is to provide for the regulation of the withdrawal of groundwater within the boundaries of the district for the purpose of ending subsidence which contributes to or precipitates flooding, inundation, or overflow of any area within the district, including without limitation rising waters resulting from storms or hurricanes.

A fair reading of the Act indicates that its purpose is not the control of subsidence to that end alone, but the control of subsidence so as to control flooding and inundation. The control of flooding is prominently set out in article XVI section 59(a) as an approved form of conservation of the state’s natural resources. The constitution does not purport to define the methods by which flooding is to be controlled. That was left to subsequent legislative acts such as the one in issue.

Appellants’ points of error one and two are overruled. As a result of the express constitutional basis for the Act, we need not consider appellants’ police power arguments.

Appellants next complain that the Act is void for failure to comply with subsection (e) of article XVI section 59. The first sentence of that subsection provides that no law creating a conservation and reclamation district shall be passed unless a copy of the bill has been delivered to the governing body of each political subdivision within the proposed district. Appellants assert that such delivery was not made, and they offered evidence tending to show nondelivery. This challenge, of its nature, fails since it seeks to violate the enrolled bill rule.

The enrolled bill rule has been repeatedly stated to be that a duly authenticated, approved, and enrolled statute imports absolute verity and is conclusive that an act was passed in every respect according to constitutional requirements. E.g., Jackson v. Walker, 121 Tex. 303, 49 S.W.2d 693 (1932); Ellison v. Texas Liquor Control Board, 154 S.W.2d 322 (Tex.Civ.App.—Galveston 1941, writ ref’d). While this court believes such a statement of the rule is too broad, the dignity and weight of the decisions in which it appears convinces us that we must apply it as set forth. Appellants’ evidence of nondelivery is clearly an attempt to establish that the Act was not passed according to constitutional requirements. Such impeachment is absolutely prohibited. An authenticated statute is the best evidence that the required formalities were observed in its passage, and the courts will not exercise the power of going behind and inquiring into the manner of enactment.

Points of error six through nine are overruled.

The challenge to the constitutionality of the Act under subsection 59(e) is not limited, however, to the issue of non-delivery. Appellants also assert that the final sentence of the subsection was violated. That sentence provides that any “special law” creating a conservation and reclamation district must comply with the provisions of the “general laws then in effect” relating to consent by political subdivisions to the creation of the district and inclusion of land within it. The appellants argue that this sentence creates a requirement that special laws, such as the Act, contain the specific language found in the general laws which relate to these matters. We disagree. The constitution requires compliance with the general laws; it does not require incorporation of their provisions.

The problem in this is identifying the general laws referred to. Appellants assert that they are sections 51.035 and 51.036 of the Texas Water Code. While those laws unquestionably deal with the appropriate topics, it is not evident that they are the laws referred to.

Title Four of the Texas Water Code, “General Law Districts,” contains twelve chapters. The first of these, chapter 50, contains the provisions applicable generally to the districts; the other chapters deal with specific types of districts. The sections cited by the appellants are found in chapter 51, the Water Control and Improvement District chapter. Sections in other chapters also deal with consent by political subdivisions and inclusion of land within a district. The treatment of these matters is by no means uniform. Compare Tex. Water Code Ann. § 51.035 with Tex. Water Code Ann. § 54.016. In light of this disparity we hold that the “general laws” referred to in article XVI section 59(e) are those found in chapter 50, the laws applicable to all districts. An examination of chapter 50, however, reveals no provisions dealing with consent of political subdivisions to the creation of districts or the inclusion of land within them and, as a result, there can be no failure to comply with such provisions.

We view the language in section 59(e), “general laws then in effect,” as indirectly supporting our conclusion since it indicates that the Legislature did not necessarily intend the provision to have reference to existing laws.

Points of error four and five are overruled.

In their tenth and eleventh points of error appellants challenge the propriety of using permit fees to finance the district, arguing that they are not authorized by article XVI section 59(c) or permissible under it. Section 59(c) provides that the Legislature has the power to determine whether a conservation and reclamation district shall incur indebtedness and issue bonds to be serviced by a tax. It does not, however, compel such financing. Lower Colorado River Authority v. McCraw, 125 Tex. 268, 83 S.W.2d 629 (1935). Absent a constitutional provision prohibiting, either in express terms or by necessary implication, an act of the Legislature, that act must be held valid. Texas Nat. Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627 (1939); Lytle v. Halff, 75 Tex. 128, 12 S.W. 610 (1889). We find nothing in section 59(c) which prohibits permit fee financing.

Points of error ten and eleven are overruled.

Appellants next argue that the permit fees charged by the district are not regulatory measures, but are instead taxes, and that since they are taxes they are unconstitutional for a number of reasons.

In determining whether a statutorily created charge is a regulatory or a tax measure, the test is that of purpose. If the primary purpose of the charge is to raise revenues then it is a tax; if its primary purpose is regulation then it is a license fee. Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d 896 (1937). Since the test is purpose and not effect, a charge may have the effect of raising revenue and not be a tax. City of Fort Worth v. Gulf Refining Co., 125 Tex. 512, 83 S.W.2d 610 (1935).

The overall purpose of the act in issue here is undeniably regulatory; the Act was passed and the district created for the purpose of regulating groundwater withdrawals. The Act contemplates achieving this regulation in large part by conditioning the issuance of permits upon payment of a fee based on the amount of water to be withdrawn during the term of the permit. We believe these fees are intended to operate as an economic disincentive to groundwater withdrawal, and thereby regulate it. Particularly persuasive in this regard is the fact that the fee is based on the amount of water to be taken from the well, and is not simply a flat fee charged for each well irrespective of its production. That revenue for the district is generated by the fees does not detract from their regulatory purpose. As noted above, it is purpose and not effect or use which is the test.

Since we find that the fees are a regulatory measure and not taxes, we need not discuss their possible deficiencies as taxes. Point of error twelve is overruled.

The heart of the appellants’ attack on the Act is found in their equal protection and due process arguments. They assert that the imposition of a permit fee which is uniform throughout the district fails to account for the differing effects which groundwater withdrawal has at different places in the district, that their wells are regulated although they do not contribute to the specific type of subsidence which the Act seeks to control, and that wells outside of the district which do contribute to such subsidence are not regulated. In light of these facts, appellants argue that the Act is arbitrary and unreasonable, and therefore unconstitutional.

The cause of the appellants’ initial complaint, however, has been removed. By an amendment (House Bill No. 390) to the Act, passed by the 65th Legislature this past session, the permit fee for wells used for agricultural purposes will be the lower of either seventy percent of the regular rate established by the board or a percentage of the regular rate which directly reflects the contribution of agricultural purpose wells to subsidence as compared to the contribution of other wells. The relative contributions of the different types of wells will be established by an inquiry to be made by the United States Geological Survey. The permit fee rate change is retroactive, and the district is required to refund all excesses it collected before the amendment was passed.

Appellants are, by their own designation, farmers, using their wells for irrigation purposes. Their points of error relating to the unreasonableness of a uniform permit fee rate are now moot, since the fee rate applied to their wells will either directly reflect their contribution to subsidence or be relatively less than such contribution.

Points of error twenty one and twenty two are overruled.

It remains, however, that their wells will be subject to other forms of regulation by the district. Appellants’ wells must still have permits in order to operate and the board, under section 24 of the Act, can attach to those permits whatever terms or conditions it feels are necessary to control and prevent subsidence. Appellants argue that any regulation of their wells is improper since their wells do not contribute to the specific type of subsidence the Act seeks to control, “subsidence which contributes to or precipitates flooding, inundation, or overflow of any area within the district” (Act § 1(a)), and because other wells which do contribute to such subsidence are not controlled by the Act.

The rule is well established that legislative classifications are presumed to be constitutional (unless they involve fundamental personal rights or “suspect categories” which are clearly not present here) and will be sustained upon a simple showing of rational relation to a legitimate state interest. Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S.Ct. 1898, 52 L.Ed.2d 513 (1977); City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976). We find such a rational relationship here.

The evidence produced during the trial of this case shows that the Legislature could have properly concluded that appellants’ wells contributed to the subsidence which causes flooding. The contention that this contribution standing alone would not have caused the problem, or that the contribution was small, is not a sufficient rebuttal. An individual’s action may be lawfully regulated when it works in concert with others’ actions to produce an effect, even though the individual action of itself would be incapable of producing the effect, or is de minimus. See, e.g., Wickard v. Filburn, 317 U.S. 111, 127-28, 63 S.Ct. 82, 87 L.Ed. 122 (1942). Moreover, the gravity of the danger to be avoided directly bears on the extent of the measures which may be taken to avoid it. We believe that the seriousness of the subsidence problem in Harris and Galveston Counties justifies greater regulation than a lesser problem would, and consequently justifies regulation of appellants’ wells.

The Legislature did not, however, choose to regulate every well which contributes to the problem. The Act is limited to wells in Harris and Galveston Counties, and it is appellants’ argument that wells in surrounding counties not only contribute to subsidence, but make a much greater contribution than their own wells do.

This argument is defeated by two distinct, yet related, lines of cases. First, it is well established that constitutional equal protection relates to persons as such, and not to areas. McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Salsburg v. State of Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281 (1954). States have wide discretion in determining whether laws shall operate statewide or only in certain counties, the legislature “having in mind the needs and desires of each.” Salsburg v. State of Maryland, 346 U.S. 545, 552, 74 S.Ct. 280, 284, 98 L.Ed. 281 (1954). In light of these authorities, we see no constitutional requirement that the subsidence district extend beyond Harris and Galveston Counties, even though legitimate objects of regulation exist outside them.

The second answer to appellants’ argument is the rule that the legislature may implement their programs step by step, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations. City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966); Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). The Texas Legislature has chosen to restrict its initial effort in controlling subsidence to two counties, the two in which, undisputedly, the effects of the problem are the greatest. Section 4(b) of the Act provides a mechanism for expansion of the district into other counties, suggesting that the Legislature anticipates broader regulation in the future. Such a gradual attack on the problem is both constitutionally permissible and practically desirable.

Points of error thirteen through twenty are overruled.

In their twenty-third point of error appellants argue that the adoption of a district plan is an absolute prerequisite to the issuance of annual permits and the charging of permit fees. The district issued permits with a one year term and charged fees for them before adopting such a plan.

While it is true that section 24(b)(1) requires the board to consider the district plan in deciding whether to issue a permit, it is also true that section 18(a) authorizes the board to adopt temporary rules and regulations before adopting the district plan. Appellants seek to distinguish “temporary permits” issued under section 18(a) from “annual permits” issued under section 24 and urge that fees can only be charged for the latter. We are not convinced.

We initially note that where the meaning of the provisions of an act is unclear the interpretation given them by the administrative agency charged with its implementation is entitled to great weight. E.g., Calvert v. Kadane, 427 S.W.2d 605 (Tex. Sup. 1968). This is particularly true where the administrative action being attacked is one taken while the agency is in its infancy and is operating without the benefit of judicial constructions of its enabling statute. Power Reactor Devel. Co. v. International U., etc., 367 U.S. 396, 408, 81 S.Ct. 1529, 6 L.Ed.2d 924 (1961).

The district is required by the Act to formulate a plan, but no date is specified for its adoption. Until the plan is adopted the district is authorized to employ temporary regulatory measures. Appellants seem to admit, and we believe, that this includes regulation by permits. Since the temporary regulation period will last until a plan is adopted, and since no deadline for such adoption has been established, we find no statutory impediment to the issuance of temporary permits with a term of one year. Further, there is nothing in section 37, the section which provides for - permit fees, which limits its application to permits issued after the district is fully organized and the district plan has been adopted.

The district’s action was permissible and point of error twenty-three is overruled.

All of appellants’ other points of error have been duly considered and are overruled.

Affirmed.


author: CADENA, Chief Justice.

text:
    KEYSTONE OPERATING COMPANY, Appellant, v. RUNGE INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 15712.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 2, 1977.
    Rehearing Denied Nov. 30, 1977.

      Parker Ellzey, Alice, for appellant.
    Robert L. Busselman, Kenedy, for appel-lees.
   CADENA, Chief Justice.

Defendant, Keystone Operating Company, appeals from a judgment granting plaintiffs, Runge Independent School District, the State of Texas, and the County of Karnes, recovery for delinquent taxes assessed by the taxing agencies on defendant’s real property for the years 1969, 1970, and 1971 and ordering foreclosure of the tax liens on such property. In addition, the judgment denied defendant’s prayer that the taxing agencies by enjoined from attempting to collect the taxes for such years and that they be required to accept payment of such taxes based on a lawful evaluation of defendant’s property for tax purposes. The judgment was rendered after a trial without the intervention of a jury.

Defendant’s sole contention is that the mandate, embodied in Article 8, § 1 of the Texas Constitution, that all taxes be equal and uniform, was violated by the plan adopted by the taxing agencies in that defendant’s oil and gas properties were assigned a value, for tax purposes, based on a higher percentage of their true value than that on which other real property was valued for tax purposes.

In this case, defendant did not seek equitable relief for the purpose of preventing the taxing authorities from placing into effect an illegal plan of taxation. Instead, it waited until the plan had been put into effect and sat idly by until the taxing agencies sought, by judicial proceedings, to collect the taxes which had been assessed and remained unpaid. The rule applicable in such a situation has been stated in Bass v. Aransas County Independent School District, 389 S.W.2d 165, 170 (Tex.Civ.App.—Corpus Christi 1965, writ ref d n. r. e.), as follows:

Once [the tax] plan is put into effect, in the absence of showing, by comparison of the assessments against his property with assessments against other like property, of a gross discrimination against him, the land owner may defeat recovery of taxes only to the extent that they are excessive, and he must assume the burden of proving excessiveness. He must show that the use of such a plan worked to his substantial injury, and the extent of such injury.

The trial court found that the assessed values of defendant’s properties did not exceed their actual cash market value; that defendant had not been substantially injured by the valuations placed on its properties; that the valuations were not grossly excessive; that there was no discrimination between the assessed value of defendant’s oil and gas properties and other real property; and that defendant at no time tendered the amount which he thought to be the correct amount of taxes owed by him.

Defendant’s 9 points of error are followed by a prayer that the judgment of the trial court be reversed and judgment be rendered by this court in favor of defendant. Throughout the argument accompanying each point we find statements that certain evidence favorable to defendant was uncon-tradicted. It is apparent that the points before us are to the effect that either there is no evidence to support the judgment below or that the evidence conclusively establishes that defendant is entitled to judgment.

The taxing agencies introduced into evidence the pertinent delinquent tax records and evidence to the effect that such taxes had not been paid. Under the provisions of Article 7326, Tex.Rev.Civ.Stat.Ann. (1960), the introduction of such evidence constitutes “prima facie evidence of the true and correct amount of taxes and costs due by” defendant.

At the very least, the statutory provision assigning prima facie value to the official tax records has the effect of casting upon the taxpayer the burden of producing evidence of the existence of recognized grounds for avoiding the tax. State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, 572 (1954). The language of the cases indicates that the statutory provision goes further and places on the taxpayer the burden of persuading the trier of fact that the assessment is invalid. For example, the grounds on which a taxpayer may avoid payment of the tax are frequently referred to as “defenses.” Campbell v. City of Houston, 464 S.W.2d 372, 374 (Tex.Civ.App.—Houston [14th Dist.] 1971, no writ); 3 Tex.Jur.2d Taxation § 174 (1974). In Whelan v. State, 155 Tex. 14, 282 S.W.2d 378, 385 (1955), the Supreme Court spoke of cancellation of taxes if the jury made findings showing the existence of facts establishing the “defenses” relied on by the taxpayer. See also City of Waco v. Conlee Seed Co., 449 S.W.2d 29, 31 (Tex.1969).

The truth and the weight of the evidence offered by the defendant in this case.tending to meet and overcome the prima facie evidence offered by the taxing agencies were questions to be resolved by the trier of fact. The agencies were not bound by defendant’s evidence and had the right to have a determination of the factual issue created by proof of the facts specified in the statute as constituting prima facie evidence. Stated differently, “prima facie evidence” is evidence upon which a finding may rest. It may be overcome by evidence to the contrary, but, in reaching a conclusion, the prima facie evidence is to be considered together with the evidence introduced in an effort to overcome it. The statute means that an inference may be drawn from the existence of certain facts. This inference may be drawn even though evidence indicating the non-existence of the inferred fact has been introduced. Floeck v. State, 34 Tex.Cr.R. 314, 30 S.W. 794, 798 (1895).

Only in extremely rare cases can it be said that the evidence establishes the value of property as a matter of law. In this case, the only testimony concerning the market value of defendant’s properties came from defendant himself.

Defendant described the property involved in this case as consisting of the Robbins “A” lease, the Robbins “B” lease, the Wolters lease, and the Berkenhoff lease. He purchased the Robbins “A” and “B” leases together in 1966 for $5,650.00. The sale was by competitive bidding. In his opinion, the market value of the Robbins leases for the years 1969, 1970, and 1971 was the same as the price he paid in 1966. He testified that of the purchase price of $5,650.00, $3,766.67 represented the value of the Robbins “B” lease, while $1,883.33 represented the value of the Robbins “A” lease.

Defendant stated that he acquired the Wolters and Berkenhoff leases together in 1969 for a total purchase price of $29,747.00, and that, of this amount, $22,310.25 represented the value of the Wolters lease and $7,436.75 represented the value of the Berk-enhoff lease.

At best, the testimony of defendant concerning the market value of his property did no more than raise an issue of fact to be resolved by the fact finder, who is not bound by the opinions expressed. It cannot be said that such opinion testimony established the value of the property as a matter of law. Board of Firemen’s Relief & Retirement Fund Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181, 183 (1951).

Nor does the testimony establish as a matter of law that the taxing agencies assessed defendant’s property at a higher percentage of its market value than that at which other real property was assessed. Defendant introduced the deposition of the consultant who was retained by the agencies for the purpose of evaluating the properties in question and other mineral interests. His testimony concerning the percentage of value at which oil properties were assessed was qualified by expressions such as “I believe,” “to the best of my recollection,” and “I stand to be corrected.” With specific reference to the school district, this witness stated that he “never got out of Runge [I.S.D.] what percentage they wanted or what they were assessing.”

Such testimony falls short of establishing as a matter of law that the taxing agencies assessed oil properties at any specific percentage of market value.

As we view the evidence, it raised questions of fact which were resolved in favor of the taxing agencies.

The judgment of the trial court is affirmed.


text:
    Don F. TOBIN et al., Appellants, v. The COMMISSIONERS’ COURT OF BANDERA COUNTY, Texas, et al., Appellees.
    No. 15785.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 2, 1977.
    Rehearing Denied Nov. 30, 1977.

      William H. Ervine, Jr., Kerrville, for appellants.
    Glendon Roberts, Bandera, Oliver & Oliver, San Antonio, for appellees.
   CADENA, Chief Justice.

Plaintiffs, Don F. Tobin and wife, Margaret P. Tobin, appeal from a summary judgment denying their prayer that the Commissioners’ Court of Bandera County be enjoined from constructing two cattle guards on a road located within the boundaries of the Don F. Tobin Ranch which is owned by plaintiffs.

Defendants are the Commissioners’ Court of Bandera County, the County Judge, and the four County Commissioners. Edna Coulter intervened in the suit, alleging that the road in question furnished access to her land and that it was a public road. The summary judgment order of which plaintiffs complain also dismisses cross-actions filed by defendants and intervenor.

The road in question runs from Highway 16 across several tracts of land, including that owned by plaintiffs, to the land owned and occupied by intervenor. The road is located within Commissioner’s Precinct No. 1.

On August 26, 1974, the Commissioner of Precinct' 1 directed that cattle guards be constructed on the road, and on that date such construction began. Plaintiffs filed this suit on the same date and obtained a temporary restraining order. A temporary injunction was granted on September 10, 1974, following a hearing on September 3, 1974. Meanwhile, on August 29, 1974, the Commissioners’ Court entered an order reciting that the construction of the cattle guards had been approved at a meeting held August 12, 1974.

The motion for summary judgment was filed on August 3, 1976, and the trial court set the motion for hearing on August 30, 1976. On August 27, 1976, plaintiffs filed their first amended original petition.

The motion for summary judgment is supported by the affidavit of the County Attorney. This affidavit recites:

(1) On August 26, 1974, construction of cattle guards was begun on “a public road through the Plaintiffs’ property involved in [this] proceedings, . . . .”

(2) On the same date, plaintiffs filed this suit and obtained a temporary restraining order, followed by the issuance of a temporary injunction.

(3) On May 6, 1931, the District Court of Bandera County entered judgment in Cause No. 1028, Paul Moravietz v. Mrs. J. A. Miller et al., declaring the road in question to be a public road. A copy of this judgment is attached to the affidavit. This judgment was affirmed. Miller v. Moravietz, 59 S.W.2d 242 (Tex.Civ.App.—Beaumont 1933, no writ).

(4) Paul Moravietz, plaintiff in such suit, is plaintiff’s predecessor in title.

(5) In 1948, by order of Commissioners’ Court, the road in question was declared to be a “third class public road.” The certified' copy of this order, attached to the affidavit, declares:

[T]he section of the Moravietz Road, where it passes Don Tobin’s place from about 50 yards west of Tobin’s house, past his house to the intersection of the new road, be discontinued as a public road, and the new route as laid out by Mr. Tobin be declared as the public road, and the entire length of road with above change, from Atkins’ gate on Highway 16 to Paul Moravietz’s yard gate be and is hereby declared a third class public road,

(6) On March 12, 1973, the Commissioners’ Court entered an order in which the road in question was “found to be a Third Class Road, 30 feet in width.” A certified copy of this order is attached to the affidavit.

Plaintiffs filed no controverting affidavits, nor did they produce any summary judgment “evidence” in response to defendants’ motion and affidavit.

The judgment in the case of Miller v. Moravietz, referred to above, was based on a jury finding to the effect that the road had been used by the public generally for purposes of travel for a period of more than 10 years.

The road in question became a public road by adverse use by the public. Under these circumstances, it cannot be said that plaintiffs, or their predecessors in title, were entitled to compensation.

The Commissioners’ Court order of March 12, 1973, recites that the Court had examined the road in question and had found it to be a third class road having a width of 30 feet.

It is well settled that commissioners’ courts, when acting within the sphere of the powers conferred upon them, are acting as courts and their judgment are entitled to the same consideration as judgments of other constitutional courts. 15 Tex.Jur.2d Counties § 44 at 272-73 (1960). The findings concerning the width of the road are, therefore, findings of fact which should be given effect at least where there is no evidence tending to show that such findings are incorrect. Here, plaintiffs were content to present no evidence whatever disputing such findings and, therefore, such findings must be regarded as being true. That is, the findings are at least evidence of the existence of the facts found, and such evidence, if uncontradicted, establishes the existence of such facts.

Plaintiffs next point out that the road has “changed course” since 1933 and argue that, because of that fact, the road has never been specifically defined.

The only evidence of a change in the “course” of the road is found in the December 1948 order of Commissioners’ Court. As already noted, that order recites that the change in the route of the road was made by Don Tobin. A change of location of a road made by a landowner for his own convenience after the right of the public in the road has been established by user does not defeat the public right. Fowler v. Matthews, 204 S.W.2d 80, 86 (Tex.Civ.App.—Austin 1947, no writ).

In the absence of controverting affidavits, the affidavit filed by defendants in support of their motion for summary judgment clearly establishes the public nature of the road, its width and the right of the County, under the provisions of Art. 6704, Tex.Rev.Civ.Stat.Ann. (1960), to construct cattle guards.

The judgment of the trial court is affirmed.


author: KLINGEMAN, Justice.

text:
    Lillie VALDEZ, Appellant, v. Olga RAMIREZ and Tomas Valdez, Appellees.
    No. 15790.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 2, 1977.
    Rehearing Denied Nov. 30, 1977.
    James M. Heidelberg, San Antonio, for appellant.
    Kirk Patterson, Mitchell, Stewart & Hemmi, San Antonio, for appellees.
   KLINGEMAN, Justice.

This suit involves a division of retirement benefits under the U.S. Civil Service Retirement Act, 5 U.S.C.A. § 8331, et seq. (1967). Lillie Valdez appeals from a judgment in the District Court of Bexar County, Texas awarding appellees, Olga Ramirez and Tomas Valdez, Jr., the heirs-at-law of Tomas M. Valdez, Sr., deceased, approximately a one-half interest in civil service retirement benefits payable to Lillie Valdez after her retirement from civil service employment.

Lillie Valdez began working for civil service shortly prior to her marriage to Tomas M. Valdez, Sr., and at the time of her retirement had worked 352 months. For 340 of these months she was married to Tomas M. Valdez. Tomas M. Valdez, Sr. died intestate. Lillie Valdez was not the natural mother of appellees and appellees were children of Valdez, Sr. by a prior marriage. The District Court entered judgment October 14, 1976 ordering appellant (1) to pay appellees one-half of 34%52 of the. retirement benefits received up to that date; (2) to pay appellees one-half of 340/⅛2 of the retirement benefits to be received after October 14, 1976. The trial court made extensive findings of fact and conclusions of law.

Appellant asserted, in the trial court and here maintains that: (1) the retirement pay is a defeasible interest, contingent upon the lives of Lillie Valdez and Tomas M. Valdez, Sr., and the death of Valdez, Sr. terminated any interest that he or his children had with respect to retirement pay; (2) appellees are not entitled to any of the retirement pay because federal statutes provide these retirement benefits are not assignable or subject to legal process; (3) at the time of her retirement Lillie elected to provide sur-vivorship benefits to her husband, which constituted a partition of any community interests that her husband might have had with regard to retirement benefits. Lillie was required to take a reduced annuity in consideration for providing her husband with retirement benefits and, consequently, such election constituted a partition of the community interest in the retirement benefits.

On this appeal appellant asserts three points of error:

1. The interest, if any, of Valdez Sr. in the U.S. Civil Service Retirement benefits did not constitute a property or interest subject to alienation by will or by the State intestate succession laws.

2. The trial court award to the adult children of the deceased spouse by a former marriage contravened the purpose and intent of the federal law establishing civil service retirement benefits.

3. Such retirement benefits are not subject to assignments or legal process by express provision of federal law and, therefore, any state law regarding distribution of annuity is preempted.

This appears to be a case of first impression in this State in the type of fact situation here involved. There are numerous cases involving a division of retirement benefits in divorce actions, but the case before us involves a division of retirement benefits under our probate or intestate succession laws.

§ 45, Tex.Prob. Code Ann. (1956), provides in effect that upon dissolution of the marriage relation by death, all property of the husband and wife shall go to the surviv- or, if there be no child or children of the deceased or their descendants; but if there be a child or children of the deceased, or descendants then the survivor shall be entitled to one-half of the property and the other one-half shall pass to said child or children of the deceased.

We shall discuss appellant’s contentions separately.

I

Appellant first contends that the interest of Tomas M. Valdez, Sr. in the U.S. Civil Service Retirement benefits did not constitute a property or interest subject to alienation by will or by the State and intestate succession laws. At the outset, appellant and appellees disagree both as to the nature of such retirement benefits and as to which portion of the U.S. Civil Service Retirement Act is applicable. Appellant refers to the payments as an annuity and in particular relies strongly on the provision of § 8341, which sets forth those individuals who may be designated as survivor annuity beneficiaries in the event of the death of the federal employee annuitant. (Appellant maintains the only interest Valdez, Sr. may have had with regard to Lillie’s retirement annuity, was extinguished by his death.)

It is to be remembered that Lillie Valdez was living at the time of the death of Valdez, Sr., and is still living.

It is appellees’ contention that the benefits here involved are retirement benefits payable under §§ 8332-8336 of the U.S. Civil Service Retirement Act. It is clear from the trial court’s findings of fact and conclusions of law that the trial court regarded the benefits as retirement benefits, and as an earned property right.

§ 5.01, Tex. Family Code Ann. (1975), provides that community property consists of property, other than separate property, acquired by either spouse during their marriage.

The basic question here is whether or not the retirement benefits here involved are community property. There are a number of Texas decisions passing on and discussing the question as to whether retirement benefits are community property in this State. These decisions basically arise out of divorce actions. In the recent case of Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976), the trial court granted the wife a fractional interest in future military retirement benefits, if, as, and when received by the husband. The court of civil appeals reversed because the husband had not quite reached the 20 years required for the bene- ■ fits to become vested. The Supreme Court reversed the court of civil appeals and held that rights in retirement programs, prior to accrual and maturity, constituted a contingent interest in property and a community asset subject to consideration along with other property in the division of the estate. In such case, the Supreme Court stated:

Section 5.01 of the Family Code provides that community property consists of the property, other than separate property, acquired by either spouse during marriage. . . . Despite an earlier view that retirement and pension plans were gifts bestowed by benevolent employers on retiring employees, they are now regarded as a mode of employee compensation earned during a given period of employment. .
It is now well established that matured private retirement, annuity, and pension benefits earned by either spouse during the marital relationship are part of the community estate and thus subject to division upon dissolution of the marriage.
The same characterization of community property was first given to military retirement benefits by this court in Busby v. Busby, 457 S.W.2d 551 (Tex.1970)

The latest expression by the Supreme Court is Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977), which involved a partition of military retirement benefits that were not divided when the parties were divorced. The Supreme Court held that Cearley, supra, controlled such case also, and that the wife owned as her part of the community estate a share in the contingent right to military benefits even though the right had not matured at the time of the divorce.

Appellant also argues that the U.S. Civil Service Retirement benefits are in the nature of a gratuity granted by the federal government in appreciation for faithful services by a federal employee, and cites in support thereof Berkey v. United States, 176 Ct.Cl. 1, 361 F.2d 983 (1966). We do not regard this argument as persuasive. Our Supreme Court, in Cearley, supra, rejected this gift theory, citing with approval the following language from Lee v. Lee, 112 Tex. 392, 247 S.W. 828 at 833 (1923):

“It was in no sense a donation to the employé [sic] for individual merit, but was manifestly additional compensation for faithful and continuous service. It was as much a fruit of his labors as his regular wages or salary. It was in the strictest sense a ‘gain’ added to the common acquests of the marital partnership, as the direct result and fruit of his labor and services.”

Appellant also relies on McJunkin v. Estate of McJunkin, 492 S.W.2d 278 (Tex.Civ. App.—Dallas 1973, writ ref’d n.r.e.); Allen v. Allen, 363 S.W.2d 312 (Tex.Civ.App.—Houston 1962, no writ); Buehler v. Buehler, 323 S.W.2d 67 (Tex.Civ.App.—Texarkana 1959, writ ref’d n.r.e.). In our opinion, these cases are distinguishable and are not here controlling.

Herring v. Blakeley, 385 S.W.2d 843 (Tex.1965), is more in point. This case involved an annuity contract under which James Herring, an employee of Marathon, was entitled to a retirement annuity and certain death benefits. James had the unrestricted right to designate beneficiaries to receive the death benefits. James and Ellen were married during the course of James’ employment at Marathon, but in 1960 they were divorced. At such time, James changed the death benefit from Ellen to Blakeley. James died ten months after the divorce and the question presented was who was entitled to the death benefits. The case did not involve retirement benefits. The Supreme Court held that James’ interest in the plan was community property, and that at the date of the divorce Ellen was entitled to one-half of the value of the plan; pointing out that the plan came into existence during the marriage and contributions were made during the marriage.

II

Appellant next contends that the award to appellees of an interest in appellant’s federal retirement benefits contravened the purpose and intent of the federal law establishing the U.S. Civil Service Retirement program. She argues that the statute clearly designates persons entitled to receive employment benefits and that appellees are not included in such designation, and that to allow a “non-designated” individual to indirectly receive benefits would defeat the purpose of the Act. She asserts that the real purpose of such Retirement Act is to insure that when an employee leaves the federal service, he or she will continue to have an income as security for self and family; that it does not create an estate for the employee. In support thereof appellant relies heavily on Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962) and Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 (1950). Free v. Bland involved United States savings bonds which were issued to spouses living in Texas, designated as issuees, “Mr. or Mrs.” Free. The wife died and the husband claimed ownership based on a Treasury Regulation that provided “the survivor will be recognized as the sole and absolute owner.” A son of a deceased wife by a previous marriage claimed a one-half interest in the bonds under Texas law. The Texas courts held in favor of the son. The United States Supreme Court reversed, stating that the relative importance to the State of its own law is not material when there is a conflict with a valid federal law and that the federal law must prevail. The Court also pointed out that the State law interfered directly with a legitimate exercise of the power of the federal government to borrow money.

In Wissner, supra, the decedent named his mother as the beneficiary of his National Service Life Insurance policy, and the decedent’s widow brought suit for one-half of the proceeds, claiming that under State community property law this was what she was entitled to. The California court held in favor of the widow, but the Supreme Court reversed, stating that Congress had spoken with force and clarity in directing that the proceeds belong to the named beneficiary and no other.

We do not regard the Texas community property laws as materially conflicting with the U.S. Civil Service Retirement Act. We find no provision of such Act specifically or directly conflicting with Texas law. In this connection, military retirement benefits are also payable to certain specific individuals, but our courts do not hold that our community property laws conflict or interfere with the Military Retirement Act.

See Comment, 50 Texas L.Rev. 334 at 342 (1972), wherein it is stated:

If the assumption that the community usually may claim as an interest in retirement benefits of the employee husband is correct, one-half the value of the retirement benefits in which the community has an interest should be included in the wife’s gross estate. The estate of a wife who dies before the right to retirement benefits has vested holds no claim to any benefits. If she dies after the right has vested, however, her interest in the benefits must be considered. Federal estate tax law requires that the gross estate include the value of all property to the extent that the decedent had an interest at the time of death. When the vested property right in retirement benefits is community property, the wife’s gross estate reasonably should include one-half the value of that right. The language of the Texas inheritance tax statute, which imposes a tax on “all property” passed by the decedent, also indicates that the wife’s interest in her employee husband’s retirement benefits should be taxed at her death.

Appellant’s last contention is that the trial court’s judgment was erroneous because such retirement benefits are not subject to assignment or legal process by express provisions of federal law.

The Civil Service Retirement Act contains the following provision relating to exemptions of retirement benefits under the statute, 5 U.S.C.A. § 8346(a), as amended:

(a) The money mentioned by this sub-chapter is not assignable, either in law or equity, except under the provisions of section 8345(g) of this title, or subject to execution, levy, attachment, garnishment, or other legal process, except as otherwise may be provided by Federal laws. The IRS also considers retirement pay for members of the armed forces deferred compensation for services, which is an earned property right. The separate or community character of the benefits is governed by applicable state law. Because in Texas the retirement benefits are community property, the inclusion of the value of the wife’s share of the benefits in her gross estate need not be considered an assignment. If the community had an interest in the benefits when earned and the wife retains a vested property right in the benefits while alive, no reason appears for excluding the benefits from her estate at her death. There is no conflict with federal law. The wife actually owned a property interest in the benefits at the time of her death and it is, therefore, untenable to consider as an assignment the inclusion of that interest in her estate.

The controlling question here is whether appellees receive their interest by assignment, execution, levy, attachment, garnishment, or any other legal process. There are a number of Texas cases that are analogous. Aetna Life Insurance Co. v. Creel, 390 S.W.2d 522 (Tex.Civ.App.—Houston 1965, writ ref’d), involved a “non-assignment” clause in an annuity, which clause provided that annuity could not be assigned without the written consent of the employer, and that the benefits were exempt from the claims of creditors to the maximum extent permitted by law. The Texas Insurance Code also exempts insurance benefits and annuities from seizure under process of creditors of the insured or of the beneficiary, either before or after the benefits are paid. The Houston court held that neither the provision of the annuity contract or of the insurance code prevented the trial court from making a division of the estate in a divorce suit and from awarding the annuity to the wife.

This Court, in Webster v. Webster, 442 S.W.2d 786 (Tex.Civ.App.—San Antonio 1969, no writ), held the husband’s military retirement benefits to be in part community property, and awarded the wife a part of such retirement benefits and pointed out that no part of the benefits were assigned or transferred to the wife, and that there was no violation of any federal regulation.

A recent law review article, Dutton, The Wife’s Community Interest in Her Husband's Qualified Pension or Profit-Sharing Plan, 50 Texas L.Rev. 334 at 345-346 (1972), said:

In Webster v. Webster . . . the court awarded the wife one-half of the community interest in the military retirement benefits, holding that because that portion of the benefits was owned by the wife, no part payments were assigned or transferred. The wife could claim her interest in the benefits when the husband retired and the benefits became payable.

A federal “non-assignment” statute almost exactly like the one before us was considered by the court in Dillard v. Dillard, 341 S.W.2d 668, 678 (Tex.Civ.App.—Austin 1960, writ ref’d n.r.e.). 38 U.S.C.A. § 3101, provides that benefits due under any law administered by the Veterans Administration shall not be assignable and shall not be liable for attachment, levy, or seizure by or under any legal or equitable process whatsoever. The court found no conflict between this statutory language and the power of the divorce court to set aside a portion of the Veterans Administration’s disability pension for child support, stating that the statutory exemption was “restricted to processes brought by creditors.”

We find no conflict between the language in the “non-assignment” statute here involved and the judgment herein, recognizing ownership under the Texas community property law. Appellees take their interest by ownership, not assignment.

We have concluded that (1) the retirement benefits involved here were the community property of appellant and her husband, Tomas M. Valdez, Sr.; (2) the Texas community property laws do not so conflict or interfere with the provisions of the U.S. Civil Service Retirement Act as to prevent the retirement benefits here involved from being a part of the community estate of appellant and Tomas M. Valdez, Sr.; and (3) the trial court’s award to appellees of an interest in retirement benefits here involved is not in contravention of the “non-assignment” provisions found in the U.S. Civil Service Retirement Act.

The judgment of the trial court is affirmed.

      . Such findings of fact and conclusions of law may be summarized as follows:
      FINDINGS OF FACT
      (1) Appellant was employed by the U.S. Civil Service from January 1942 to May 1971, when she retired and began receiving monthly retirement benefits.
      (2) Lillie Valdez was married to Tomas M. Valdez, Sr. from January 1943 until November 1973, when he died.
      (3) The right to receive such retirement benefits accrued during the marriage of Lillie Valdez and Valdez, Sr., and some retirement benefits were paid during the marriage and prior to the death of Valdez, Sr.
      (4) Valdez, Sr. died on November 18, 1973, without leaving a will.
      (5) Appellees are the only children of Valdez, Sr., and are the sole heirs-at-law of his half of the community estate.
      (6) Lillie Valdez is the surviving spouse of Valdez, Sr., but she is not the natural mother of appellees, and at no time did she provide a home for appellees.
      (7) During the marriage of Lillie Valdez and Valdez, Sr., Lillie Valdez accepted the benefits of community property created through the labor and investments of Valdez, Sr., and upon the death of Valdez, Sr., she accepted the benefits of approximately one-half of the value of the community property of Valdez, Sr. and Lillie Valdez, which community estate was valued at $104,525.46. This sum does not include any portion of the civil service retirement benefits.
      (8) Lillie Valdez has refused to pay or share with appellees any portion of the retirement benefits earned by her during her marriage to Valdez, Sr., although 340/⅛52 of such retirement benefits were earned during the marriage of Lillie Valdez and Valdez, Sr.
      (9) Since December 1974 to the date of entry of judgment, Lillie Valdez has received civil service retirement benefits in the sum of $11,-909.00.
      (10) Lillie Valdez started receiving her retirement benefits approximately July 1971 and all of Lillie’s retirement contributions to the U.S. Civil Service Commission had been exhausted prior to the death of Valdez, Sr. The retirement benefits now being received are direct contributions from the government and are taxable.
      (11) No portion of the retirement benefits received by Lillie since the death of Valdez, Sr. have been paid to appellees.
      CONCLUSIONS OF LAW
      (1) The right to the civil service retirement benefits vested during the marriage of Lillie Valdez and Valdez, Sr., prior to the death of Valdez, Sr.
      (2) 340/352 of each civil service retirement benefit received and to be received by appellant is community property earned during the marriage of Valdez, Sr. and Lillie Valdez.
      (3) Valdez, Sr. died intestate and appellees are the children of Valdez, Sr. and the sole heirs of that portion of the community estate owned by Valdez, Sr.
      (4) Appellees are entitled to receive one-half of 340/352 of the civil service retirement benefits received by appellant if, when, and as received by appellant, including one-half of 340/⅛52 of all retirement benefits received from and after December 1, 1974 to the date of entry of judgment and one-half of 340/⅞52 of all civil service retirement benefits received by appellant thereafter.

      . There are a series of cases about retirement benefits, which include Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Ables v. Ables, 540 S.W.2d 769 (Tex.Civ.App.—Waco 1976, no writ); Freeman v. Freeman, 497 S.W.2d 97 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ); Miser v. Miser, 475 S.W.2d 597 (Tex.Ciy. App.—Dallas 1971, writ dism’d); Kirkham v. Kirkham, 335 S.W.2d 393 (Tex.Civ.App. —San Antonio 1960, no writ); Webster v. Webster, 442 S.W.2d 786 (Tex.Civ.App.—San Antonio 1969, no writ); Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App.—San Antonio 1968, writ dism’d).

      . An interesting case in this connection is Dominey v. Dominey, 481 S.W.2d 473 (Tex.Civ. App.—El Paso 1972, no writ), cert. denied, 409 U.S. 1028, 93 S.Ct. 462, 34 L.Ed.2d 321, which involved disability pay received by a sailor in which a wife claimed an interest. The court held for the wife and an issue presented in the case was whether Texas’ marital property laws conflicted with the U.S. law. The husband contended that the Texas law, which would include entitlement to Navy Disability Retirement Pay and Navy Retirement Pay as marital property subject to division between spouses on death or divorce, conflicted with U.S. law. The court held otherwise, stating that this issue had been previously disposed of by the Texas Supreme Court, and that the nature of the retirement is not so spelled out as to dictate who is to receive them and remove them from control by the Texas courts.


text:
    Nettie Mae WALSH, Guardian of the Person and Estate of William R. Walsh, NCM, Appellant, v. Glenda Faye WALSH, Appellee.
    No. 5777.
    Court of Civil Appeals of Texas, Waco.
    Nov. 3, 1977.
    Rehearing Denied Nov. 30, 1977.

      W. V. Dunnam, Jr., Dunnam, Dunnam & Dunnam, Waco, for appellant.
    Charles M. McDonald, W. Boyd Mangrum and George Clark; Clark, Fisher, Gorin, McDonald & Ragland, Waco, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by Nettie Mae Walsh Guardian of William Walsh NCM from judgment awarding a lump sum payment for future child support against her as Guardian of Walsh’s person and estate, attorney’s fees, and further providing it be binding on the Guardian and upon Walsh’s estate after his death.

Appellee Glenda Faye Walsh, divorced former wife of Walsh, on behalf of her and his two minor children brought this action against Nettie Mae Walsh Guardian of the person and estate of Walsh to change and modify the prior support order of August 17, 1972 because of changed circumstances of all the parties. On May 6, 1976 the trial court rendered judgment finding material and substantial change in the circumstances of all the parties and that the best interest and welfare of nine year old Julia Ann Walsh and thirteen year old Robyn Dennice Walsh would be served by the payment of the lump sums of $20,000. and $10,000. for their support until they became 18 years old, and so decreed. The judgment further awarded appellee $3,500. attorney’s fees (plus $1,500. if the case be appealed to the Court of Civil Appeals; plus $1,000. if the case be appealed to the Supreme Court); decreed that it be binding on the Guardian and Walsh’s estate; and that it be certified to the Probate Court for payment into the registry of the District Court subject to further orders of such Court.

Appellant Guardian of Walsh’s person and estate appeals on nine points contending:

1) The trial court erred (and abused his discretion) in rendering judgment for a lump sum payment of child support for the support of the minor children Julia Ann and Robyn Dennice Walsh until they reach 18 years of age.

2) The judgment for lump sum payment of $20,000. for the support of Julia Ann, and of $10,000. for the support of Robyn Denn-ice, until they are 18 years of age, is excessive.

3) The trial court erred “in adjudging William Walsh’s obligation to support said minor children shall not terminate upon his death, but shall continue to be a binding obligation upon his estate”.

4) The trial court erred in rendering judgment for appellee for attorney’s fees; and the judgment for $3,500. attorney’s fees is excessive.

Appellee Glenda Faye Walsh and William Walsh were divorced in February 1971. On August 7, 1972 the trial court set child support William Walsh be required to pay for the two minor children at $125. per month (plus the carrying of hospitalization insurance on them). On March 7, 1975 Walsh was involved in an automobile accident which critically injured him and from which injuries he has been rendered of unsound mind and he is expected to be bedridden until his death. Suits filed on behalf of Walsh on account of his injuries were settled for $352,000. of which amount a net recovery of $200,000. was made by appellant and of which some $135,000. is presently in Walsh’s guardianship. The $125. per month was paid up to the time of the accident on March 7,1975. Commencing on October 1975 Social Security payments of $252. per month were made for benefit of the children until December 1976 when such payments were reduced to $156. per month. Appellee earns $577. net. She has no savings; does not own a home, the children attend elementary and high school; and all living expenses have increased since the August 7, 1972 child support order.

Appellant Individually as Guardian of William Walsh receives $363. per month social security; lives in a $18,000. home owned by Walsh which is paid for; has no minor children; received $66,666. individually out of the $200,000. settlement and as noted the Guardianship has a $135,000. balance; and all $200,000. of which is drawing interest. William Walsh has executed a will leaving everything to appellant, his present wife, and as he is non compos men-tis he cannot alter such will. Mr. Walsh remains in critical condition is, not expected to get any better, and his death might occur at any time.

The Texas Family Code Sec. 14.05(a) Support of Child provides:

“The court may order either or both parents to make periodic payments or a lump sum payment, or both, for the support of the child until he is 18 years of age * * ”.

Prior to the Family Code Article 4639a (repealed effective January 1, 1974) provided:

“Said court may by judgment, order either parent to make periodical payments for the benefit of such child or children until same have reached the age of 18 years, or said court may enter a judgment in a fixed amount for the support of such child or children * ⅜ *

Thus the trial court had express authority to fix amounts of periodic child support payments or lump sum payments for the support of minor children until they are 18 years old. And here the trial court expressly found, based on what we deem ample evidence, that the circumstances of the children, and their father and mother had materially and substantially changed since the child support order of August 7, 1972, and that modification of such order was in the best interest and welfare of the children. And such findings have not been attacked by appellant.

And we think the trial court did not abuse its discretion in fixing a lump sum for child support of the two minors under the evidence. Page v. Sherill, Tex., 415 S.W.2d 642; Southwestern Bell Telephone Co. v. Johnson, Tex., 389 S.W.2d 645; Landry v. Travelers Ins. Co., Tex., 458 S.W.2d 649.

Moreover, under the record we cannot say that the $20,000. lump sum amount fixed for Julia Ann and the $10,000. lump sum amount fixed for Robyn Dennice are excessive. Ramey v. Ramey, Tex.Civ.App. (Eastland) 425 S.W.2d 900.

The trial court decreed that the specific provisions for child support ordered should not terminate by the death of William Walsh and should be enforceable against appellant as guardian of the person and estate of Walsh.

Prior to the Family Code, the obligation of the father to pay child support terminated at his death; unless same was provided for by contract. Hutchings v. Bates, Tex., 406 S.W.2d 419.

• But Section 14.05(d) of the Family Code expressly provides “Unless otherwise agreed to in writing, or expressly provided in the decree, provisions for the support of a child are terminated by marriage of the child, removal of the child’s disabilities for general purposes, or the death of the parent obligated to support the child.” Eggemeyer v. Eggemeyer, Tex.Civ.App. (Austin) 535 S.W.2d 425, affirmed Tex., 554 S.W.2d 137.

Finally we hold the trial court did not err in awarding attorney’s fees and that the award of $3,500. is not excessive. Section 11.18(a) Texas Family Code, In the Interest of R.V.M., Tex.Civ.App. (Waco) 530 S.W.2d 921.

All appellant’s points and contentions are overruled.

AFFIRMED.