author: GREEN, Commissioner.

text:
    Henry Wade CLANTON, Appellant, v. The STATE of Texas, Appellee.
    No. 50093.
    Court of Criminal Appeals of Texas.
    Oct. 15, 1975.

      Gary L. Watkins, Odessa, for appellant.
    John H. Green, Dist. Atty., and Dennis Cadra, Asst. Dist. Atty., Odessa, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

This appeal is from a conviction for murder with malice, in which punishment was assessed at life.

The record reflects that on December 22, 1973, appellant shot and killed his ex-wife in a lounge in Odessa. According to appellant’s testimony, the shooting was accidental.

In his first ground of error, appellant contends that the trial court erred in overruling his motion for a mistrial when the State, in its jury argument at the punishment stage, invited the jury to consider the length of time appellant would have to serve under the parole law.

The record reflects that during the final argument of the prosecuting attorney at the punishment stage the following remarks and the following objections and court rulings were made:

“[MR. GREEN]: .... I know if you give him life or if you give him two hundred and fifty years, do you realize this, I want to read you this little thing right here and this is all I can say about this particular paragraph, I am not allowed to comment any more. In determining the punishment in this case, you are instructed that you are not to discuss among yourselves how long the Defendant will be required to serve any sentence you decide to impose.
“What that is saying, if you give him life or one hundred and two or two hundred and fifty years, if you know or think he will just be there eight years, you can’t discuss that and I can’t discuss it, I can’t tell you, but you can, if you know yourselves, base your decision, your verdict upon that.
“MR. WATKINS: Your Honor, he is just saying he can’t say something about it and he said it in the next sentence.
“THE COURT: The jury won’t consider the last argument of the District Attorney for any purpose.
“MR. GREEN: If you do know the law, you can’t discuss it with another juror but you yourselves can consider it.
“Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas and are of no concern of yours.
“That no concern of yours is what bothers me in that particular paragraph, you are instructed it is of no concern of yours if you give somebody twenty years if they are out in two years, they tell you it is no concern of yours, you give somebody life and they are out — It is no concern of yours, but it is a concern of yours because you can expect certain things of your verdicts. That is all I can say about that particular paragraph, but it is there.
“THE COURT: I want to stop you right there, Mr. Green.
“It is no concern of yours, Ladies and Gentlemen, as you are charged there, you will follow the Court’s Charge exactly the way it is in that paragraph, contrary to the argument of the District Attorney that was just made. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas and are of no concern of yours and they are also not a proper subject for argument at this stage of the trial. .
“MR. WATKINS: Your Honor, I would like to move for a mistrial because I believe any instruction to the Jury for them to disregard that last argument is still too prejudicial and I would like to move for a mistrial.
“THE COURT: Overruled.
“MR. GREEN: Thank you, Judge.
“That is what I just got through telling you, see.
“Now, let’s go on after we covered that little tender spot, let’s go on to something else because that is behind us now. That is why sometimes we base our decision upon facts as we see them in a case and ask for large verdicts and that is why citizens give them sometimes, because the facts of a case warrant it .” (Emphasis added)

It is a matter of common knowledge that inmates are released from the Texas Department of Corrections, but a jury in a felony case is not authorized to consider or apply the parole law in assessing punishment. Argument urging them to do so is very improper, and constitutes error. Jones v. State, Tex.Cr.App., 522 S.W.2d 225; Hartman v. State, Tex.Cr.App., 496 S.W.2d 582; Graham v. State, Tex.Cr.App., 422 S.W.2d 922.

Recently, in Marshburn v. State, Tex.Cr.App., 522 S.W.2d 900, in reversing the judgment because of argument at the punishment stage inviting the jury to apply the parole law in assessing punishment, we said:

“It was stated in Alejandro v. State, Tex.Cr.App., 493 S.W.2d 230 at 231 that to be approved by this Court, ‘[J]ury arguments need to be within the areas of (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement.’ (Citations omitted from text). The arguments of the prosecutor do not come within any of the permissible areas of jury argument. On the contrary, the prosecutor’s arguments were calculated to introduce prejudice into the mind of the jurors. Cf. Hernandez v. State, Tex.Cr.App., 366 S.W.2d 575 at 576. The prejudice introduced by the prosecutor operates by urging the jury to impose an excessive prison term to compensate for or protect against the action of the Board of Pardons and Paroles.
“The prosecutor said, in relation to the term of years prisoners were required to serve by the Board of Pardons and Paroles, ‘and you [the jury] say five years and two years later they [the defendants] are out committing another offense.’ This argument demonstrated the operation of the parole laws by inviting the jury to look at records of prior offenses which had been introduced into evidence to see how long it would take for a defendant to be released by the Board of Pardons and Paroles as compared to the length of the sentence originally assessed. The effect of this argument is to demonstrate past applications of the parole law, asking the jury to increase the punishment which would otherwise be assessed, in the ratio of five to two, so that the defendants will actually stay in prison for the length of time desired by the jury.”

See also Jones v. State, supra.

In the instant case, the court included in its charge to the jury the following instruction:

“In determining the punishment in this case you are instructed that you are not to discuss among yourselves how long the defendant will be required to serve any sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas and are no concern of yours.”

The State’s argument was clearly an attempt to get around the court’s instructions. Notwithstanding the court’s instructions to the contrary, the prosecuting attorney told the jurors that it was a concern of theirs how long appellant would actually serve before being released from the penitentiary. After reading to the jury the court’s instructions on the subject, supra, he expressly argued that while the jurors could not discuss how long appellant will be required to serve any sentence they might impose, they could consider this in assessing punishment. Cf. Jones v. State, supra; Hartman v. State, supra, holding to the contrary. Even after the court had, sua sponte, stopped the argument to orally instruct the jury as it had previously done in the charge, and had overruled appellant’s motion for a mistrial, the prosecutor continued to refer to the matter as “that little tender spot,” etc. as shown in the quote from his argument, supra. The argument of the State hereinabove quoted did not recommend life as a proper punishment based on the evidence, but was strictly an appeal to the jury to disregard its responsibility under the law to determine the appropriate punishment for the offense, and to consider “how long the defendant will be required to serve any sentence” the jury might decide to impose. See Jones v. State, supra.

The State in its brief questions the sufficiency of the objections to the quoted argument. The record reflects that when the prosecutor first told the jurors that they could “base your decision, your verdict, upon that,” i. e., the length of time appellant would be required to serve his sentence, the court, on appellant’s objection, instructed the jury to disregard the argument. However, counsel continued to argue that the jurors could consider that matter, and that they were concerned as to how long appellant would be required to serve. After the court had properly intervened, and given proper oral instructions to the jury, a motion for mistrial based on the contention that the argument was too prejudicial to be cured by the court’s instruction was overruled. Under these circumstances, we find inapplicable the doctrine of Vela v. State, Tex.Cr.App., 516 S.W.2d 176, which held that without a timely and specific objection being made in addition to the motion for mistrial, error is. not preserved. See Clayton v. State, Tex.Cr.App., 502 S.W.2d 755.

The State also contends that the oral instructions of the court made when it interrupted the State’s argument cured the error, if any, in the prosecutor’s remarks. It is true that usually the court’s instruction to the jury that it should not consider an argument of the State has been held to cure error in the argument. Graham v. State, Tex.Cr.App., 422 S.W.2d 922; Pringle v. State, Tex.Cr.App., 511 S.W.2d 35 (see, however, dissenting opinion of Judge Roberts, joined in by Presiding Judge Onion); Hughes v. State, Tex.Cr.App., 493 S.W.2d 166; Horner v. State, Tex.Cr.App., 508 S.W.2d 371.

However, in the instant case we find the quoted argument to be clearly and grossly improper and prejudicial. The implications to disregard the instructions of the court on the applicable law, made after the court had sustained an objection and withdrawn similar argument from the jury, and the argument that the matter of parole was a concern of the jurors, made despite the explicit instructions of the court in its charge to the contrary, were of such a prejudicial nature that we are unable to find them to be harmless. Hernandez v. State, Tex.Cr.App., 366 S.W.2d 595. We cannot say with reasonable certainty that this argument did not affect the jury’s verdict in assessing punishment at life.

Additionally, the State on appeal says that the subject of the application of the parole law and the length of time appellant would be incarcerated if assessed a life term or a term of a lengthy period of years was first broached by appellant. See Parish v. State, Tex.Cr.App., 523 S.W.2d 665; Alejandro v. State, Tex.Cr.App., 493 S.W.2d 230; Graham v. State, supra; Hartman v. State, Tex.Cr.App., 496 S.W.2d 582. The State refers us to the following remarks of defense counsel made in his opening argument at the punishment stage:

“MR. WATKINS: He testified that he had never been convicted of a felony. You just have to think, so he made one mistake, should he be punished for the rest of his life for one single mistake.
“This is a young man, twenty-six years old, he has a whole life ahead of him.
“A lengthy period of incarceration is going to do nothing but take one member from society forever or as long as you decide.
“Your job right now is to assess the punishment. Each person has a role in this judicial system, the police officers investigate it and arrest the offender, the prosecutors prosecute, the Jury assess the punishment and the parole system, tries to get these people back out into society and make worthwhile citizens out of them.
“. . . His fate is in your hands. I wouldn’t want that burden myself because it is kind of like playing God with the rest of his life.”

In the above argument, defense counsel improperly suggested that appellant would be incarcerated for as long as the jury decided, or, in case of a life sentence, “for the rest of his life” or “forever.” The State was entitled to reply to this argument by referring to the court’s charge and by an explanatory statement showing the inaccuracy of the remarks of defense counsel. See Parish v. State, supra.

However, the State’s quoted argument went much further than to merely respond to the remarks of defense counsel. As heretofore stated, it amounted to a direct attack upon the court’s instructions and constituted an affirmative appeal for the jury to consider the parole law in reaching a verdict.

The trial court committed reversible error in overruling appellant’s motion for a mistrial.

The judgment is reversed, and the cause is remanded.

Opinion approved by the Court.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Billy Joe POOL, Appellant, v. The STATE of Texas, Appellee.
    No. 50168.
    Court of Criminal Appeals of Texas.
    Oct. 15, 1975.
    Gene A. Garcia, Court appointed, Rock-port, for appellant.
    John H. Flinn, Dist. Atty., Sinton, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for theft. Punishment enhanced under the provisions of V.T.C.A. Penal Code, Sec. 12.-42(d) was assessed at life.

The indictment alleged the primary offense occurred on or about the 2nd day of April, 1974, and the record reflects that trial was in July, 1974.

Appellant challenges the sufficiency of the evidence to support the conviction.

The pertinent portion of the indictment alleging the primary offense recites that appellant

“ . . . did then and there unlawfully exercise control over property, other than real property, to wit, one radar, one radio receiving set and one tape recording player of the value of more than $200.00 and less than $10,000.00 said property having been stolen in Aransas County, Texas the said Billy Joe Pool knowing said property to be stolen, without the effective consent of Robert Coaker, the owner thereof, and with intent to deprive Robert Coaker of said property.”

Robert Coaker testified that the items in question were removed from his shrimp boat on April 2, 1974, without his consent.

Sheriff Hewes of Aransas County testified that he took a written confession from one David Hale regarding the offense. A portion of said confession was admitted into evidence reflecting that Hale and one John Peoples entered the Coaker boat during the early morning of April 2,1974, and took the equipment in question.

Sheriff Hewes further testified that he and Ranger Peters went to Brownsville on April 5, 1974, and recovered a part of a radar set, a light, a stereo, a radio and a transmitter from one Gilbert Cortez and delivered these items to Coaker. Coaker identified the articles as being the equipment stolen from his boat on April 2, 1974.

Gilbert Cortez, operator of the Siesta Lounge in Brownsville, testified that appellant lived next door to his lounge. On April 2, 1974, appellant asked Cortez if he had a place to store some equipment and Cortez allowed appellant to place same in the trunk of Cortez’ car. Cortez stated that this was the same equipment he turned over to Sheriff Hewes and Ranger Peters.

An essential element of the offense alleged is knowledge on the part of the accused that the property over which he exercised control was stolen.

The State urges that the evidence showing appellant in unexplained possession of recently stolen property is sufficient to support the conviction.

The offense charged in the instant case is similar to the offense denounced under Art. 1430, V.A.P.C., providing:

“Whoever shall receive or conceal property which has been acquired by another in such manner as that the acquisition comes within the meaning of the term theft, knowing the same to have been so acquired, shall be punished in the same manner as if he had stolen the property. O.C. 745a; Acts 1858, p. 180; Acts 1897, p. 26.”

In Bradshaw v. State, Tex.Cr.App., 482 S.W.2d 233, this Court said:

“An essential element of the crime of receiving or the crime of concealing stolen property is knowledge on the part of the accused that the property received or concealed by him is stolen. See 5 Branch’s Ann.P.C.2d, Section 2724, page 168.
“In the present ease appellant was arrested while possessing without explanation recently stolen property. This alone is not sufficient to show that he knew it was stolen. Hochman v. State, 146 Tex.Cr.R. 23, 170 S.W.2d 756. It is a circumstance which must be coupled with other significant circumstances to justify an inference of knowledge that the property was stolen. Pollan v. State, 157 Tex.Cr.R. 178, 247 S.W.2d 889; Grant v. State, 87 Tex.Cr.R. 19, 218 S.W. 1062.”

Clearly, the quantum of proof in showing knowledge on the part of the accused that the property over which he exercised control was stolen is no less under the offense alleged under Y.T.C.A. Penal Code, Sec. 31.03 in the instant case.

We conclude that the State did not sustain its burden in proving an essential element of the offense, knowledge on the part of appellant that the property over which he exercised control was stolen.

In view of our disposition of this case, we do not pass upon appellant’s other contentions, including the contention that proof of sequence of prior convictions was not properly proved.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . In the event of retrial, we call attention to that portion of Art. 36.01, V.A.C.C.P. which requires, “When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.”

      . V.T.C.A. Penal Code, 12.42(d) provides:
      “If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.”

      . The indictment is under the following Section of V.T.C.A. Penal Code (effective Jan. 1, 1974):
      “Sec. 31.03. Theft
      (a) A person commits an offense if, with intent to deprive the owner of property:
      (1) he obtains the property unlawfully; or
      (2) he exercises control over the property, other than real property, unlawfully.

      (b) Obtaining or exercising control over property is unlawful if:
      (1) the actor obtains or exercises control-over the property without the owner’s effective consent; or
      (2) The property is stolen and the actor obtains it from another or exercises control over the property obtained by another knowing it was stolen.” (Emphasis supplied)


author: DALLY, Commissioner.

text:
    Ex parte Morris RALEY.
    No. 50394.
    Court of Criminal Appeals of Texas.
    Oct. 15, 1975.
    See also Tex.Cr., 528 S.W.2d 259.

      John T. Montford, Lubbock, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is a post conviction habeas corpus proceeding. Seé Article 11.07, V.A.C.C.P., and Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967).

Petitioner was convicted after a jury trial for the offense of embezzlement; the jury set punishment at imprisonment for 2 years, but recommended that probation be granted.

Petitioner is seeking an out-of-time appeal; he contends that he was denied a meaningful appeal by the fraud and deceit of his attorney. Petitioner was represented by retained counsel of his own choice. Notice of appeal was given by retained counsel. Thereafter the appeal reached this Court without a brief having been filed. The judgment was affirmed in our Cause No. 46,123, by a Per Curiam opinion, the Court finding that (1) the petitioner had been represented by counsel, (2) there was no indication of indigency, and (3) there was nothing in the record to consider as unassigned error in the interest of justice.

A hearing was held on petitioner’s application before the Honorable George Rodriguez, in the 168th District Court of El Paso County. A summary of the evidence adduced at the hearing is necessary.

It was found that petitioner did not waive his right to an appeal and indicated his desire to exercise that right at every opportunity. It was further found that petitioner was led to believe, at all times, that his conviction was being appealed to this Court. A letter from retained counsel to the petitioner indicated that all necessary steps in the appellate process had been taken and that counsel would himself present oral argument before this Court. However, the record reflects that retained counsel did not render the services that he led petitioner to believe had been performed. Petitioner paid for the preparation of the transcript of the court reporter’s notes, and thereafter notice of completion of the record was mailed to retained counsel on May 2, 1972. The record was approved on June 22, 1972. Thereafter, on June 24, 1972, counsel for petitioner filed a motion to set aside approval of the record, alleging that a “Motion for Mistrial” on grounds of prosecutorial misconduct had been omitted. After petitioner’s motion had been granted the state filed a motion to reinstate approval of the record. The state’s motion was granted and the previously approved record was reinstated because counsel for petitioner had not filed the motion to set aside approval of the record in a timely fashion. The habeas corpus hearing court made further findings that: (1) no appellate brief was ever filed, either in the trial court or in this Court; (2) petitioner’s counsel did not appear to argue this case before this Court; and (3) petitioner’s counsel never withdrew from representation of petitioner on appeal. It should further be noted that the attorney of whose conduct petitioner complains appeared as a witness at the habeas corpus hearing and did not deny any of the allegations against him.

On the record now before us it appears that the petitioner’s contention that he was deprived of a meaningful appeal by the fraud and deceit of his retained counsel is well founded. The inexplicable conduct of retained counsel in this case deprived the petitioner of his right to effective assistance of counsel. The result is the same as no assistance at all, whether counsel is appointed or retained.

This Court has held that willful misconduct by employed counsel without the appellant’s knowledge which amounts to a breach of the legal duty of an attorney denies a defendant effective assistance of counsel. Steel v. State, 453 S.W.2d 486 (Tex.Cr.App.1970). See also Lawson v. State, 467 S.W.2d 486 (Tex.Cr.App.1971); Walsh v. State, 468 S.W.2d 453 (Tex.Cr.App.1971); Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.1972); White v. State, 487 S.W.2d 104 (Tex.Cr.App.1972). Cf. Ex parte Kallie, 475 S.W.2d 784 (Tex.Cr.App.1972). In other jurisdictions see Erb v. State, 332 A.2d 137 (Del.Supr.1974); State v. Scott, 492 S.W.2d 168 (Mo.App.1973); State ex rel. Bratcher v. Cooke, 188 S.E.2d 769 (W.Va.1972); Shipman v. Gladden, 253 Or. 192, 453 P.2d 921 (1969); People v. Brown, 39 Ill.2d 307, 235 N.E.2d 562 (1968); McAuliffe v. Rutledge, 231 Ga. 745, 204 S.E.2d 141 (1974).

The petitioner has shown that retained counsel failed to diligently prosecute his appeal after representing that he would do so. This is conduct amounting to breach of a legal duty of an attorney.

The proper remedy would be to return the petitioner to the point at which he gave notice of appeal. He may then, with the aid of counsel, follow the procedures outlined in Article 40.09, V.A.C.C.P., in order that a meaningful appeal from his conviction be taken.

It is so ordered.

Opinion approved by the Court.

      . The letter, in pertinent part, reads:
      “The appeal situation has been completed and forwarded to the Appellate Court. The Court is on vacation at this time and will be considered no earlier than October. They will give me the opportunity to appear personally before the Court which we will discuss when I get the notice.”
      This letter was dated August 3, 1972; this was ten days subsequent to the date on which petitioner’s appellate brief had been due in the trial court.


text:
    Ex parte Herbert Ray HILL. Ex parte Ray MARTINEZ, Jr. Ex parte Billy McDANIEL.
    Nos. 50654 to 50656.
    Court of Criminal Appeals of Texas.
    Oct. 15, 1975.

      Royce Coleman, Denton, for Hill.
    Michael J. Whitten, Denton, for Martinez.
    Gary Tim Banks, Denton, for McDaniel.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

These are post conviction habeas corpus proceedings. See Article 11.07, V.A.C.C.P., and Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967).

Hill was convicted after a jury trial for the offense of robbery; the jury assessed punishment at imprisonment for 5 years.

Martinez was convicted after a jury trial for the offense of sale of marihuana; the court assessed punishment at imprisonment for 5 years.

McDaniel entered a plea of guilty before a jury and was convicted for the offense of sale of marihuana; the jury set punishment at imprisonment for 7 years.

Each petitioner is seeking an out-of-time appeal; each contends that he was denied a meaningful appeal by the fraud and deceit of his attorney. None of the petitioners were indigent at the time of trial and each was represented by retained counsel of his own choice; all three petitioners were represented by the same attorney. Each petitioner desired to appeal his conviction and to that end gave notice of appeal through retained counsel. The record in McDaniel’s appeal contained a portion of the statement of facts as well as the transcript. The records in Hill’s and Martinez’s appeals contained only the transcripts. No briefs were filed in any of the three appeals. In each appeal this Court affirmed the conviction, finding that (1) the petitioner had been represented by counsel, (2) there was no indication of indigency, and (3) there was nothing in the record to consider as unassigned error in the interest of justice.

The habeas corpus hearing court has found the facts to be substantially the same in each case:

1. Counsel represented that he would diligently prosecute an appeal.

2. Petitioner wished to appeal his conviction and made that fact known to counsel and the court.

3. Counsel did not withdraw on appeal.

4. Counsel failed to designate any material to be included in the record.

5. Counsel repeatedly assured the petitioner that he was diligently prosecuting the appeal (it was further found in Martinez’s case that counsel assured his client that he would eventually arrange to have the sentence probated).

6. Counsel failed to file an appellate brief.

7. Petitioner was at all times unaware that counsel had not taken the steps necessary for the prosecution of a meaningful appeal.

On the records now before us it appears that the petitioners’ contentions that they were deprived of meaningful appeals by the fraud and deceit of their respective retained counsel are well founded. The habeas corpus hearing court in each instance has found that the petitioner is entitled to the relief requested. The record in each case supports these findings.

The inexplicable conduct of retained counsel in these cases deprived the petitioners of their right to effective assistance of counsel. The result is the same as no assistance at all, whether counsel is appointed or retained.

This Court has held that willful misconduct by employed counsel without the appellant’s knowledge which amounts to a breach of the legal duty of an attorney denies a defendant effective assistance of counsel. Steel v. State, 453 S.W.2d 486 (Tex.Cr.App.1970). That principle was reaffirmed in Ex parte Raley, 528 S.W.2d 257 (Tex.Cr.App., delivered Oct. 15, 1975).

In each of the cases at bar the petitioner has shown that retained counsel failed to diligently prosecute the appeal after representing that he would do so. This is conduct amounting to breach of a legal duty of an attorney.

The proper remedy would be to return each petitioner to the point at which he gave notice of appeal. Each petitioner may then, with the aid of counsel, follow the procedures outlined in Article 40.09, Y.A.C.C.P., in order that a meaningful appeal from his conviction be taken.

It is so ordered.

Opinion approved by the Court.


author: DOUGLAS, Judge.

text:
    Leslie FIGGINS, Appellant, v. The STATE of Texas, Appellee.
    No. 50722.
    Court of Criminal Appeals of Texas.
    Oct. 15, 1975.

      Ronald E. Walker, Jr., Amarillo, for appellant.
    Tom Curtis, Dist. Atty. and Bruce Sadler, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from an order revoking probation.

Appellant pled guilty to burglary with intent to commit theft on October 17, 1974, for an offense committed July 26, 1974. His punishment was assessed at four years, probated. One of the terms of his probation was that he “voluntarily commit himself to Vernon State Drug Center for a period of time not less than six (6) months nor more than eighteen (18) months” and that he “be released only by the staff of said facility.”

A motion to revoke probation was filed on January 29, 1975. This motion was amended on February 3,1975. The amended motion alleged that the appellant did not “voluntarily participate in the Vernon Drug Center Program for a period of time not less than six (6) months” and that “the said Leslie Figgins while at the Vernon State Drug Center engaged in disruptive behavior and failed to voluntarily participate in the Vernon Drug Center Program for a period of time not less than six (6) months.” A hearing on the motion to revoke was held February 12, 1975.

The appellant urges that there is a variance between the language of the motion to revoke and the language of the original condition of probation which was allegedly violated; that the motion to revoke was so vague and ambiguous as to be invalid, and that there was insufficient evidence to show that the appellant violated the terms of the probation.

Appellant first contends that because of the variance between the condition of probation and the motion to revoke probation, the State did not prove that the appellant violated any condition of probation. One condition of the appellant’s probation was that he “voluntarily commit” himself to the Vernon Drug Center for a minimum period of six months. The revocation motion alleged that the appellant had violated the above condition by not voluntarily participating in the Vernon Drug Center program for a minimum of six months. The revocation motion also alleged that he did not participate because he had engaged in disruptive behavior while at the center.

We find that there is no variance between the conditions of probation and the motion to revoke. When the condition that the appellant “voluntarily commit” himself to the drug center is construed as a whole, it means that the appellant will not only commit himself to the center in the sense of placing himself in the custody of the center, but also that he will commit himself in the sense of taking part in the programs offered by the center. The probation condition would have been meaningless had it only meant that the appellant stay within the confines of the drug center for a period of six months; the court could well have committed him to the confines of his own home. If the condition is to have any relevance to the appellant’s probation, it must have meant that the appellant was to have participated in the drug related programs which were unique to the center.

The appellant’s second contention is that the motion to revoke probation was so vague and ambiguous as to be invalid. The pleading of a motion to revoke probation need not meet the requirements of an indictment. It is enough that the pleadings give the defendant fair notice of allegations against him so that he may prepare a defense. Fowler v. State, 509 S.W.2d 871 (Tex.Cr.App.1974).

The motion meets the above requirements by specifically pointing out that the appellant did not participate in the program because he engaged in disruptive behavior and because he left the drug center before his minimum six month stay was finished.

The appellant’s third contention is that, even given the sufficiency of the motion to revoke, there was not sufficient evidence to support the revocation.

During the revocation hearing, both the appellant and Dr. Frankie E. Williams, Superintendent of the Vernon Drug Center, testified with regard to the participation of the appellant in the programs given at the Vernon Drug Center. Dr. Williams testified as to the nature of the drug program offered by the center and the course of the appellant’s conduct there. According to Dr. Williams’ testimony, the center engaged in psychotherapy, educational therapy, occupational therapy and chemo-therapy with the goal of redirecting the participants to a drug-free life.

Appellant testified and admitted that he engaged in disruptive activity of both a physical and a verbal nature and had done so only because of considerable pressure from his peers. The appellant testified that he had taken part in an incident in which some patients had torn a screen off a window and had broken the window to enable a boy to escape from the center. The appellant also testified that he had taken part in a wrestling match in the center’s day room and was involved in throwing chairs. The appellant’s testimony also indicated that he had set fire to a blanket while in seclusion. Given the overall goal of the program at the center, such behavior was contrary to voluntary participation in the program. It was undisputed that the appellant had been discharged from the center because of his lack of cooperation before his minimum six month term had ended. The trial judge is the sole trier of facts, the credibility of the witnesses and the weight to be given the testimony. Ross v. State, 523 S.W.2d 402 (Tex.Cr.App.1975).

We conclude that the evidence is sufficient to support the order revoking probation.

No abuse of discretion is shown. The judgment is affirmed.


author: ODOM, Judge.

text:
    Stephen Wayne FAURIE, Appellant, v. The STATE of Texas, Appellee.
    No. 50860.
    Court of Criminal Appeals of Texas.
    Oct. 15, 1975.

      Patrick Roland Ganne, Austin, for appellant.
    Robert 0. Smith, Dist. Atty., and Charles D. Craig, Asst. Dist. Atty., Austin, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for forgery following a plea of guilty. The court assessed punishment at five years.

At the outset we are confronted with a jurisdictional problem. The record reflects that on September 23, 1974, the appellant pled guilty to three charges: forgery of a negotiable instrument, burglary of a habitation, and burglary of a building. The court found him guilty of all three charges. Sentencing was set for October 10, 1974, so that the court might consider appellant’s application for probation in light of a pre-sentence investigation.

On October 10 the court addressed appellant as follows:

“THE COURT: I’ll tell you what I’m going to do. I’m going to sentence you in one case and give you probation in that one case. I’m going to hold the other two, which you’ve already entered a plea of guilty to, and that means if anybody is unhappy with your operation on probation, all I have to do is call you in and sentence you on the other two cases. Do you understand?
“THE DEFENDANT: Yes, sir.
“THE COURT: I don’t even have to revoke your probation; just call you in and sentence you. Do you understand?
“THE DEFENDANT: Yes, sir.”

The court proceeded to assess punishment at ten years upon the conviction of burglary of a building. Imposition of the sentence was suspended and probation granted. The court then warned the appellant that if he were to “get back with some people that are involved in violating the law and you cause anybody any trouble, I’ll just call up the other cases and sentence you to five years in the penitentiary on both of those cases.”

Apparently appellant did not behave, for on December 18,1974, the trial court called the cases again and for the first time assessed punishment, setting it at five years each upon the convictions for burglary of a habitation and forgery, and then sentenced him. Notice of appeal was given five days later.

Article 42.03(1), V.A.C.C.P., provides in part:

“If a new trial is not granted, nor judgment arrested in felony and misdemeanor cases, the sentence shall be pronounced ... at any time after the expiration of the time allowed for making the motion for a new trial or the motion in arrest of judgment.”

Article 40.05, V.A.C.C.P., provides in part:

“A motion for new trial shall be filed within ten days after conviction as evidenced by the verdict of the jury

Finally, Art. 41.02, V.A.C.C.P., states that a motion in arrest of judgment “must be made within ten days after conviction.”

Within the meaning of these statutes, an adjudication of guilt does not amount to a “conviction.” A conviction for the purposes of these statutes is an adjudication of guilt plus an assessment of punishment. The reason is that a defendant can make no intelligent decision as to whether to file a motion for new trial or motion in arrest of judgment until he knows the punishment that he faces. Hence, the ten-day waiting period following conviction before which sentence may not be pronounced, absent a waiver by the defendant, commences to run when punishment is assessed subsequent to a finding of guilt.

In the instant case, it is obvious that punishment was assessed and sentence pronounced the same day, December 18, 1974. Separate documents noting each event appear in the record and are each dated December 18, 1974. The judge’s declaration in open court on October 10, 1974, was not an assessment of punishment. No waiver of the waiting period established in Art. 42.03, Y.A.C.C.P., affirmatively appears in the record. Therefore, the imposition of sentence on December 18 was premature and we are without jurisdiction to entertain this appeal. Matheson v. State, Tex.Cr.App., 492 S.W.2d 273; James v. State, Tex.Cr.App., 480 S.W.2d 690; Payne v. State, Tex.Cr.App., 477 S.W.2d 581; Payne v. State, Tex.Cr.App., 471 S.W.2d 815; Bedell v. State, Tex.Cr.App., 443 S.W.2d 850; Adams v. State, Tex.Cr.App., 440 S.W.2d 844.

Article 37.07(3)(d), V.A.C.C.P., provides:

“(d) When the judge assesses the punishment and after the hearing of the evidence hereinabove provided for, he shall forthwith announce his decision in open court as to the punishment to be assessed.”

We note that the failure of the trial court to comply with this admonition is the cause of the present problem.

Sentence may now be pronounced and appellant may give notice of appeal, if he so desires. Should notice of appeal be given, proceedings may be had in the trial court pursuant to Art. 40.09, V.A.C.C.P.

The appeal is dismissed.

      . The form sentence of the court and a printed form notation on the docket sheet recite that defendant “waives time.” Such recitals are insufficient to show waiver of this right in the record on appeal. Art. 1.14, V.A.C.C.P.


author: CADENA, Justice.

text:
    SAN ANTONIO RIVER AUTHORITY et al., Appellants, v. GARRETT BROTHERS, Appellee.
    No. 15343.
    Court of Civil Appeals of Texas, San Antonio.
    April 23, 1975.
    Rehearing Denied Oct. 8, 1975.

      Harvey L. Hardy, Ralph Brown, Jackson C. Hubbard, Asst. City Atty., San Antonio, for appellants.
    Paul M. Green, Lang, Cross, Ladon, Bol-drick & Green, San Antonio, for appellee.
   CADENA, Justice.

This is an appeal by defendant governmental agencies, San Antonio River Authority (referred to in this opinion as “SARA”) and the City of San Antonio (identified in this opinion as “City”,), from a judgment based on a jury verdict, awarding plaintiff, Garrett Brothers, a partnership consisting of Charles E. Garrett and Thomas S. Garrett, III, recovery of actual and exemplary damages as a result of the action of City officials, allegedly acting in pursuance of a joint venture with SARA, in halting development of plaintiff’s subdivision.

Plaintiff owns approximately 100 acres of land in Bexar County which it acquired for the purpose of subdividing into residential and commercial lots. After plaintiff had obtained appropriate zoning of the land, it submitted the plat and master plan of the proposed subdivision to City’s planning Commission, as required by Articles 970a and 974a.

For some time prior to the date on which plaintiff submitted its plat for approval, SARA, in conjunction with other governmental agencies, had been engaged in the execution of a watershed protection and flood control project which called for the erection of some 15 dams. According to the plans, one of the dam sites, referred to in the record as site 15, was to be located on the land which plaintiff was proposing to subdivide. There had been discussions between officials of SARA and City concerning this particular dam, since, in connection with the construction of the dam, it was proposed to create a reservoir or lake, and City intended to use the lake as a part of the recreational facilities in a City park which adjoined, or was near to, plaintiff’s proposed subdivision. Because of the plans for construction of the dam and lake, consideration was given by City officials to rejection of the proposed plat and master plan in order to prevent development would increase the cost of acquisition of the land required for the project. However, City’s legal department advised the planning officials that the fact that it was proposed to acquire plaintiff’s land at some future date and that development of the land by plaintiff would increase the cost of such acquisition was not a valid reason for withholding approval of the plat. As a result, the Planning Commission, on August 11, 1971, approved the plat and master plan of the proposed subdivision.

Plaintiff then entered into contracts with various persons, including the municipally-owned utilities, for development of its property in accordance with the plat and master plan. After final engineering work was completed, equipment required for the construction of subdivision improvements, including the construction of street, the installation of sanitary sewers, and the laying of electric, gas and water lines, was moved onto the subdivision site, and construction of the streets called for by the approved plat was begun.

Meanwhile, discussions between SARA and City officials continued in connection with the construction of the proposed dam and lake. The purpose of these discussions was to achieve cooperation between SARA and City in the acquisition of the land required for the public improvement. One of the problems discussed was the increase in land acquisition costs which would result from plaintiff’s development of the subdivision, and there was expressed concern that continued development of plaintiff’s land might increase the value of such land to the extent that construction of the dam and lake would become economically unfeasible. These discussions were had between administrative or executive officials of the two agencies, and there is no evidence to indicate that, prior to October 20, 1971, the attention of the governing body of either agency was directed to the site 15 project as presenting a special problem.

On October 20,1971, SARA officials communicated their concern to SARA’s governing body and recommended, for the purpose of accelerating acquisition of the required land, the execution of a cooperation agreement between SARA and City. On that date, SARA’s governing body authorized the execution of the cooperation agreement.

On October 28, 1971, some members of City’s governing body met in what the record discloses was an informal session. City’s governing body consists of nine members, but the record does not disclose how many were present at this gathering, although the evidence does disclose the presence of three members. SARA’s chief executive officer explained the entire watershed protection and flood control project, and stated that much of the land required for the proposed dams had been acquired by SARA. He then directed attention to the proposed site for dam 15 and the lake and, after pointing out that plaintiff had already begun development of the subdivision, urged that City enter into the cooperation agreement with SARA as soon as possible, since delay would mean that the price of the required land would increase as a result of plaintiff’s development and there was a danger that, because of such enhancement in the value of the land, the entire project would “go out the window.” City’s chief executive officer also stressed the need for prompt action in order to prevent further development of plaintiff’s land. At the conclusion of the discussion, a member of City’s governing body instructed City’s chief executive officer to “prepare whatever is necessary for this and let’s go.”

One week later, on November 4, 1971, City’s governing body, meeting in formal session, adopted an ordinance authorizing execution of the cooperation agreement on behalf of City.

On November 18, 1971, City’s director of planning, in writing, informed various municipal departments and agencies, including the gas and electric and water utilities, of the proposed project and requested that the installation of utilities in the subdivision be discontinued. At the time he took this action, the director of planning knew that the city attorney had given an opinion to the effect that City had no authority to halt further development of plaintiff’s subdivision merely because continued development would result in an increase in the cost of acquiring the land in the future.

As a result of the action of City’s planning director, plaintiff was told to halt installation of utility lines in the subdivision, and City’s director of public works refused to issue permits authorizing plaintiff to install sanitary sewers.

Plaintiff discontinued further development and sought information from SARA concerning the exact location of the proposed dam and reservoir. It was not until some time in December, 1971, that SARA officials were able to furnish this information to plaintiff. Plaintiff’s engineers determined that the site chosen for the dam was not the best available site in the area, due to the contours of the land. Plaintiff made the decision of its engineers known to SARA and urged reconsideration of the decision establishing the location of the dam. A re-study of the project by SARA resulted in a modification of the plans for the project, including a relocation of the dam site. On May 22, 1971, SARA informed City officials of the modification and stated that, in view of the change in plans, the continued development of plaintiff’s subdivision presented no problem. Plaintiff was then allowed to resume development, although the change in plans did require some modification of plaintiff’s planned development.

Neither SARA nor City challenges the sufficiency of the evidence to support the jury’s finding relating to actual damages suffered by plaintiff as a result of the interruption of plaintiff’s development of its land.

SARA’s brief contains 25 points of error, while City’s brief contains 19 points. Some points are common to both briefs. City’s points are grouped under various headings for the purpose of argument, and plaintiff’s brief is substantially similar in organization. To a substantial degree, in discussing the points, we will adopt the same general format, although the points are not necessarily discussed in the order in which they are presented in the briefs.

I.

The Question of Liability

Under this heading we will consider City’s contentions that it is not liable because (1) the acts of which plaintiff complains were ultra vires as far as City is concerned; (2) the acts of the various municipal officials were neither authorized nor ratified by the city council, City’s governing body; (3) the acts of which plaintiff complains were performed in the exercise of a governmental function and, therefore, in no event can City be held liable for the injury suffered by plaintiff; and (4) plaintiff’s suit cannot be maintained because plaintiff failed to give the written notice of his claim which is required by City’s charter. Since SARA also invokes the doctrine of ultra vires, this point will be discussed first.

(1). Ultra vires. Sometimes, the term “ultra vires” is used in a broad sense including not only an act which is not within the power of a municipal corporation to perform, but also an act which is within the powers of the governmental agency but which is done by its officials or employees who were not authorized to engage in such conduct. See City of Waco v. Thompson, 127 S.W.2d 223 (Tex.Civ.App.—Waco 1939, writ dism’d jdgmt. cor.). This extended meaning of the term can only result in confusing questions of governmental power with questions of an agent’s authority. We will restrict use of the term to its strict and primary meaning, that is, an act which is beyond the power of a municipality to perform under any circumstances and for any purpose. 10 McQuillin, Municipal Corporations § 29.10, p. 250 (3d rev. ed. 1966).

Under Article 970a, § 4, and Article 974a, City has the power to control the subdivision of land within its corporate limits and within that area beyond the corporate limits which lies within City’s “extraterritorial jurisdiction.” This includes the power to control extensions of its water and sewer lines. Under Articles 1015a, 1109b, 1109c and 6081e, City has the right to acquire land, by condemnation or otherwise, for park and recreational purposes. The cooperation agreement between City and SARA is authorized by Article 4413(32e).

City has chosen to assume control and regulation of the development of subdivisions, including the installation of water and sewer lines, as authorized by statute. This control is exercised not only by giving or withholding of plats and master plans for proposed subdivisions, but also by issuing or refusing permits required for the installation of such lines and their connection to existing lines. Necessarily, City is obligated to permit development of subdivisions and to issue the required permits if the person desiring such development and applying for the necessary permits complies with applicable rules and regulations. Similarly, in the absence of such compliance by the developer, City is authorized to refuse to permit such development, including the installation of utility lines if such proposed development and installations do not comply with applicable regulations.

Under these circumstances, it cannot be said that the acts of which plaintiff complains were acts which City lacked the power to perform under any circumstances and for any purpose. The terms “ultra vires” and “illegal” are not synonymous. The two terms represent distinct ideas, just as do the terms “absence of power” and “abuse of power.” While an act may be both ultra vires and illegal, it may be illegal without being ultra vires. To equate illegal conduct with the absence of power would completely immunize municipal corporations from liability in damages for an illegal act or wrongful exercise of existing power.

The harsh results flowing from the doctrine of ultra vires are manifest. There is no compelling reason for extending the doctrine to protect cities from liability for damage inflicted while acting within their general or specific powers. 1A Antieau, Municipal Corporation Law § 11.01 (1974).

City’s defense of ultra vires must be rejected.

However, SARA’s plea of ultra vires must be sustained. SARA’s powers are enumerated in Article 8280-119. It is a special purpose governmental agency and does not possess the broad powers generally exercised by cities, towns, and villages. Specifically, SARA wholly lacks authority to regulate the development of subdivisions. It completely lacks control over the construction of streets, installation of water mains, installation of sanitary sewer lines or the issuance or withholding of permits to engage in such construction and installation. It has no control of the city-owned utilities. Even if it be assumed that City’s actions in this case were engaged in at the request of SARA’s executive officers, and ignore the fact that there is no evidence that SARA’s governing body knew of, authorized, acquiesced in or ratified the acts of its executive and administrative personnel, the conclusion is inescapable that the conduct of SARA’s executive officers was in relation to matters wholly beyond the ambit of SARA’s powers. SARA wholly lacked the authority to interfere with plaintiff’s development of the subdivision under any circumstances. The acts of which plaintiff complains could not have been undertaken by SARA for any purpose. There is, therefore, no basis for imposing liability on SARA.

In view of our holding that the judgment against SARA cannot stand, we will not consider any of the other points contained in SARA’s brief, except insofar as the same points are relied on by City.

(2). Authority of City officials. By assuming control and regulation of subdivisions and of the installation of water and sanitary sewer mains, City became liable for the acts of its officers and employs to whom the day-to-day execution of such powers was delegated. Article V, § 61, of City’s charter charges the department of public works, of which the director of public works is the chief administrator, with the duty of issuing plumbing permits. One of the duties of municipal officers, in exercising municipal powers, is to permit parties to develop their land, to permit the installation of water and sewer lines, and to permit such lines to be connected to existing lines if there has been compliance with applicable regulations and, in the absence of such compliance, to refuse to permit such development, installation and connection. It seems clear that if a municipal official or employee, charged with the duty of granting or withholding the required permission, wrongfully deprives a person of the right to develop his land, install water and sewer lines, and connect such lines to existing facilities, the action of the official or employee is within the course of his employment and within the scope of his duty and, therefore, City is liable for such wrongful act. City of Ysleta v. Babbitt, 8 Tex.Civ.App. 432, 28 S.W. 702, 703-04 (Tex.Civ.App.—San Antonio 1894, no writ). This follows from application of elementary rules of the doctrine of respondeat superior. Restatement, Agency 2d §§ 212 et seq. (1958); 3 Am.Jur.2d, Agency § 267 (1962).

(3). The “governmental function” defense. City insists that in regulating the development of land in general and particularly in refusing to issue permits it is exercising a governmental function and is, therefore, immune from liability. Kirschke v. City of Houston, 330 S.W.2d 629 (Tex.Civ.App.—Houston 1959, writ ref’d n. r. e.); Anno: 37 A.L.R.2d 694 (1954).

In order to dispose of this point we must consider the nature of plaintiff’s complaint. Plaintiff alleged that the actions of City deprived it of the use and enjoyment of its property, albeit for a temporary period, and constituted a “taking” or “damaging” of its property for which, under the provisions of Article I, § 17 of the Texas Constitution, it was entitled to compensation. It is settled that the defense of governmental function is not available where the conduct of the municipality amounted to a taking or damaging within the constitutional prohibition. Article I, § 17, of the state constitution does not limit the requirement of payment of compensation to cases where the taking or damaging results from the exercise of “proprietary” functions. Every power of government is subordinate to the requirement that compensation be paid. Stockwell v. State, 110 Tex. 550, 221 S.W. 932 (1920); 18 McQuillin, op. cit. § 53.-24b, p. 182.

City contends that, under the Kirschke decision, even if it be assumed that its acts were illegal, the interference with plaintiff’s use, enjoyment and development of its lands does not constitute a taking or damaging within the constitutional provision in question.

In Kirschke, plaintiff applied for a building permit. The permit was denied because “it appeared that [the] said property would be needed for highway purposes.” 330 S.W.2d at 630. The court held that there had been no taking or damaging of plaintiff’s property. Cases such as State v. Hale, 136 Tex. 29, 146 S.W.2d 731 (1941), where, in the process of constructing a public improvement, the governmental agency caused the flooding of plaintiff’s land and the deposit of sand and other materials on such land, were distinguished by pointing out that in such cases the damage resulted from a physical invasion of the land as the result of the construction of a public improvement. Insofar as the distinction is based on the presence or absence of a physical invasion, it is manifestly untenable. Despite the fact that the crazy-quilt pattern of judicial doctrine in this area has not yet yielded a principle upon which the cases can be rationalized, it is now universally recognized that acts short of actual physical invasion, appropriation or occupation can amount to a compensable taking, and that governmental restrictions on the use of property can be so burdensome as to constitute a compensable taking. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922); Allen v. City of Corpus Christi, 247 S.W.2d 130 (Tex.Civ.App.—San Antonio 1952), aff’d., 152 Tex. 137, 254 S.W.2d 759 (1953).

An unreasonable interference with the right of access to one’s property is recognized as a compensable taking. DuPuy v. City of Waco, 396 S.W.2d 103 (Tex.1965). Our courts have adopted the view that interference with the right of access is not rendered uncompensable merely because the interference is temporary. City of La-Grange v. Pieratt, 142 Tex. 23, 175 S.W.2d 243 (1943); Hart Bros. v. Dallas County, 279 S.W. 1111 (Tex.Com.App.1926, jdgmt. adopted). No valid reason exists for holding that unreasonable interference with the right to use property should not be regarded as a compensable taking.

It is true that in cases such as DuPuy and Pieratt, the damage, permanent or temporary, resulted from the construction of a public improvement, while in the case before us, as in Kirschke, the governmental interference with the right of the landowner resulted from the fact that the construction of a public improvement was contemplated. While recognizing the validity of the dictum by Justice Holmes that “government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law,” we must not lose sight of the fact that by express constitutional provision government must pay in certain cases. The question before us is whether prohibitions on use of property which have as their purpose the prevention of private development that would increase the cost of planned future acquisition of such property by the government is the type of case in which payment of compensation is required.

The dismal picture which Mr. Justice Holmes painted with such broad strokes is but a version of the traditional police power-eminent domain dichotomy which lies at the root of the doctrine that compensation is not required to be made for losses occasioned by the proper exercise of the police power, but must be made for losses resulting from an exercise of the power of eminent domain. City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218 (1958).

The attempted distinction is, at best, illusory. If there is a taking the constitution requires payment, even though the taking be for the purpose of promoting the public health, safety, morals or welfare and, therefore, involves an exercise of the police power. Brazos River Authority v. City of Graham, 335 S.W.2d 247, 251 (Tex.Civ.App.—Fort Worth 1960), aff’d, 163 Tex. 167, 354 S.W.2d 99 (1961). The empty formalism of “police power” cannot be made the basis for denying compensation, and the Texas Supreme Court has expressly refused to “compartmentalize an exercise of sovereignty as either police power or eminent domain for the resolution of problems arising under Article I, Sec. 17, of the Constitution . .” DuPuy v. City of Waco, 396 S.W.2d at 107.

It is clear that in exercising the police power, the governmental agency is acting as an arbiter of disputes among groups and individuals for the purpose of resolving eon-flicts among competing interests. This is the role in which government acts when it adopts zoning ordinances, enacts health measures, adopts building codes, abates nuisances, or adopts a host of other regulations. When government, in its role as neutral arbiter, adopts measures for the protection of the public health, safety, morals or welfare, and such regulations result in economic loss to a citizen, a rule shielding the agency from liability for such loss can be persuasively defended, since the threat of liability in such cases could well have the effect of deterring the adoption of measures necessary for the attainment of proper police power objectives, with the result that only completely safe, and probably ineffective, regulatory measures would be adopted. But where the purpose of the governmental action is the prevention of development of land that would increase the cost of a planned future acquisition of such land by government, the situation is patently different. Where government acts in this context, it can no longer pretend to be acting as a neutral arbiter. It is no longer an impartial weigher of the merits of competing interest among its citizens. Instead, it has placed a heavy governmental thumb on the scales to insure that in the forthcoming dispute between it and one, or more, of its citizens, the scales will tip in its own favor. The social desirability of leaving government free to seek its own enrichment at the expense of those whom it governs under the guise that it has the power to regulate harmful conduct is not readily apparent. See Sax, Takings and the Police Power, 74 Yale L.J. 36 (1964). To permit government, as a prospective purchaser of land, to give itself such an advantage is clearly inconsistent with the doctrine that the cost of community benefits should be distributed impartially among members of the community. The prohibition against uncompensated takings was “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960).

To hold a governmental agency liable under the facts of this case will not cause the heavens to fall, nor will it transform government into a giant shackled into inactivity by the fear of potential liability. It will still be free to enact zoning ordinances, building codes, health regulations, traffic laws, etc. In brief, it will still be able to “govern” without fear of financial disaster. The only result will be that it will not be able to “rig” the market in its favor. That is, government will merely be discouraged from giving itself, under the guise of governing, an economic advantage over those whom it is pretending to govern.

We decline to follow Kirschke. See, generally Van Alstyne, Taking or Damaging by Police Power: The Search for Inverse Condemnation Criteria, 44 So.La.L.Rev. 1 (1971); Beuscher & Wright, Cases and Materials on Land Use 722 (1969); Dunham, From Rural Enclosure to Reenclosure of Urban Land, 35 N.Y.U.L.Rev. 1238, 1253 et seq. (1960). Cf. Campbell, The Limited Access Highway — Some Aspects of Compensation, 8 Utah L.Rev. 12, 16-19 (1962); Clarke, The Limited Access Highway, 27 Wash.L.Rev. Ill, 119-22 (1952); Comment, 14 Baylor L.Rev. 70 (1962).

In this case plaintiff recovered the expenses which it necessarily incurred as a result of the temporary interference with the development and use of its land. Where there has been a temporary taking or damaging, the landowner is entitled to recover such sum as would compensate for loss of profits and necessary expenditures. Hart Bros. v. Dallas County, supra.

(4). Notice of Claim. The charter provision requiring the giving of notice of a claim of injury is not applicable to a case of this nature. 40 Tex.Jur.2d, Municipal Corporations § 652 (1962).

City’s points 1, 2, 11, and 12 are overruled.

II.

Points Relating to Charge

By its third point City complains of the refusal of the trial court to submit an issue inquiring whether the acts of City’s officers, agents, servants or employees were the cause or the proximate cause of plaintiff’s damages.

Special issue 7, relating to actual damages suffered by plaintiff, asked the jury to determine the sum of money which would reasonably compensate plaintiff for “damages proximately caused by the actions taken by the officers, agents, servants and employees” of City. The issue was accompanied by a definition of the term “proximate cause.”

The fact that plaintiff had suffered loss was undisputed. Special issue 7, by its very terms, limited the jury’s consideration to those losses “proximately caused” by City’s actions. Particularly in view of the amendment to Rule 277, Tex.R.Civ.P. (1967), which became effective prior to the trial of this case, there was no error in submitting, in one issue, the two elements, proximate cause and damages, of plaintiff’s cause of action. In any event, City does not object to the form of special issue 7.

City’s point 3 is without merit.

By its fourth point City complains of the submission of special issue 5, on the ground that there was no evidence to support the submission of such issue. Point 5 asserts that the evidence is insufficient to support the jury’s affirmative answer to such issue.

There is no evidence to suggest that City’s governing body authorized the city manager and his staff to take such action as might be necessary to halt further development of plaintiff’s land. The, evidence clearly establishes -that- the ■ October 28, 1971, meeting was not a formal meeting of-the city council. There is no.showing that a quorum was present. No vote was taken. At best, the evidence establishes that one member of the governing body instructed the city manager to “prepare whatever is necessary,” and that this instruction was, perhaps, tacitly acquiesced in by the two other members of the council who were shown to be present. The city council consists of 9 members, and City’s charter provides that a majority of the members shall constitute a quorum and that, with certain exceptions not here applicable, measures can be adopted only by the affirmative vote of 5 members.

Individual members of a municipal governing body have no authority to bind the corporation by their actions. City of San Antonio v. Guido Bros. Construction Co., 460 S.W.2d 155 (Tex.Civ.App.—Beaumont 1970, writ ref’d n. r. e.). There is no basis for holding that the councilmen who were present at the October 28, 1971, gathering were acting as a body in its official capacity.

Further, it is patent that the attention of the councilmen present at the unofficial session was directed to the execution of the cooperation agreement between City and SARA. The discussion was aimed at the desirability or necessity of entering into such agreement at the earliest possible moment. No mention was made of the possibility of imposing a “freeze” on development of plaintiff’s land by administrative fiat or otherwise. No one mentioned the possibility of preventing further development prior to the acquisition of the land. In fact, the comment of the city manager was to the effect that if the city council authorized the execution of the agreement, the land would be acquired and development stopped. In this context, the instruction to “prepare whatever is necessary” is unmistakably referable to the preparation of whatever might be necessary to enable the city council to authorize execution, on behalf of City, of the agreement. An ordinance authorizing execution of such agreement was, in fact, the only thing “prepared,” and this ordinance was presented to, and adopted by, the city council at a formal meeting, following a vote of the council members, one week later.

However, the lack of evidence to show that the course of conduct engaged in by City officials was not expressly authorized by the city council does not relieve City of liability for the actual damages suffered by plaintiff since, as has been pointed out, in pursuing such conduct the officials were acting within the scope of their employment. The effect of the absence of express authorization on the award of exemplary damages will be discussed later.

III.

Waiver and Laches

Point 9 asserts that, despite the jury’s finding to the contrary in answer to special issue 12, the evidence establishes as a matter of law that plaintiff had waived any cause of action he might have had against City. Point 10 embodies the contention that plaintiff was guilty of laches as a matter of law.

(1). Waiver. The testimony shows that a member of plaintiff partnership knew that he had an existing right to disregard City’s attempts to halt further development of the subdivision and to proceed with such development without the required permits, but that he had “elected not to do so.” Instead, as the evidence shows, negotiations were entered into with SARA for the purpose of determining the exact location of the proposed dam and reservoir, in order to determine the effect it would have on the subdivision, and, after plaintiff was informed of such proposed location, plaintiff continued discussions with the end in view of convincing SARA that the proposed site was not the best site.

“Waiver” is an amorphous term. The various definitions of the term differ to some extent insofar as terminology is concerned, but it appears that the basic notion of intentional relinquishment of a known right lies at the core of all attempted definitions. 60 Tex.Jur.2d, Waiver § 1 (1964). To the extent that the numerous definitions imply that every intentional relinquishment of a known right results in the loss of that right, they are clearly defective. The attempted definitions are also unsatisfactory in that they are of no help in determining the boundaries of conduct which will be recognized as an effective relinquishment of a right in the absence of consideration for such relinquishment, or in the absence of the elements necessary to the finding of an estoppel or an election of remedies. See 5 Williston, Contracts § 679, pp. 248-56 (3d ed. by Jaeger 1961).

City’s answer alleged that plaintiff had waived its right to proceed with the development of its property. The evidence discloses that plaintiff’s decision not to continue development when informed of City’s actions was based on a reluctance to build homes and attempt to sell them when plaintiff knew, or, at least, had good reason to believe, that such homes would soon be at the bottom of a lake. We refuse to hold that plaintiff’s refusal to engage in such economically wasteful conduct and to seek, instead, a lifting of the ban on development constitutes, as a matter of law, and intentional relinquishment of its right to develop its property. At best, from City’s viewpoint, plaintiff’s conduct was ambiguous, and the factual issue was resolved against City by the jury.

(2). Laches. No issue on laches was submitted to the jury and, in view of the circumstances, it cannot be said that plaintiff was guilty of unconscionable delay as a matter of law. It is the policy of the law to encourage negotiations between disputants. Consequently, delay resulting from efforts to obtain a settlement, particularly where the circumstances, as here, give rise to a reasonable hope of successful negotiations which will, at least, decrease the extent of injury, delay resulting from a willingness to explore the possibilities of adjustment of differences will be excused. Shepherd v. Kendrick, 236 Ala. 289, 181 So. 782 (1938); Kindsfater v. Mechalke, 480 P.2d 862 (Colo.App.1970, cert. den.).

Further, in this case the evidence establishes that the actions taken by City were known by City officials to be in violation of plaintiff’s rights and that, despite such knowledge and knowledge that a halt in development would result in loss to plaintiff, City officials deliberately proceed to halt development. It is well settled that under such circumstances utmost diligence by the injured party in asserting his rights is not required. Allen v. Winner, 389 S.W.2d 599 (Tex.Civ.App.—Houston 1965, writ ref’d n. r. e.).

City, in effect, is saying that a disregard of duty by City officials cast upon plaintiff the duty to disobey municipal regulations, ostensibly enacted for the public good, requiring plaintiff to secure permits. We see no reason to uphold this contention. See City of Montpelier v. Mills, 171 Ind. 175, 85 N.E. 6 (1908). According to City, it was incumbent on plaintiff to demand that the third party with whom plaintiff had entered into a contract for the installation of the utility lines, proceed with the work without the necessary permits. Further, plaintiff would, according to City, be under a duty to proceed with such work despite municipal regulations which required municipal approval before new installations could be connected to the existing systems and before municipal service would be extended to the subdivision. The evidence is clear that, in the absence of the required permits, municipal officials would not inspect the work as it progressed and, therefore, plaintiff would be undertaking a risk that he would be denied the right to connect and the right to service because of the absence of the required approval. A rule of law which permits a wrongdoer to insist that his victim subject himself to such expenditures and risks has little to recommend it.

Nor does the evidence establish as a matter of law that the delay of which City complains, involving a period of 7 months, worked any disadvantage to City. In this connection City points out that by delaying its resort to the courts plaintiff allowed an enhancement of the damages suffered by it. True, the remedy of mandamus was available to plaintiff. But there is no reason to believe that the mandamus litigation would have been finally resolved in less than 7 months. Nor can it be said that the filing of a mandamus suit would, in some manner, have prevented the accrual of damages while the suit was pending. What the doctrine of laches condemns is not mere delay, but delay that works injury to the opposing party. City of Fort Worth v. Johnson, 388 S.W.2d 400 (Tex.1964).

We cannot say that the evidence in this case does more than a question of fact relating to the reasonableness of plaintiff’s delay. This disputed fact issue was not submitted to the jury and, even if the facts were such as to allow us to presume that the trial court resolved the factual issue, the fact that judgment was rendered for plaintiff precludes our finding that the implied finding was in favor of defendant.

IV.

Admission of Evidence

City’s point 6 complains of the admission into evidence of a newspaper article concerning the informal meeting of October 28, 1971. Point 7 asserts that the trial court erred in admitting into evidence a taped recording of the discussion at such meeting. Point 8 complains of the fact that plaintiff was allowed to read into evidence, under the adverse witness rule, the deposition of Gerald Henckel, who was city manager at the time relevant to this litigation.

We see no cause for reversal in the admission of the newspaper article and the tape. As far as the tape is concerned, there is no contention that it was not properly authenticated, nor does City suggest that it is not an accurate reproduction of the discussions at the meeting. As City so convincingly points out in its brief, the tape tends to support City’s contention that the actions of which plaintiff complains were not expressly authorized by City’s governing body. As we have already held, the tape furnishes no evidence of such authorization. We predicated this holding on the contents of the tape itself. It cannot be said that City was in any way prejudiced by the admission of this evidence. We are not persuaded by City’s argument that, because of recent sensational stories concerning activities in our nation’s capital involving the use of tape recordings, the mention of “tape” or the admission of any taped recordings would, ipso facto, be harmful to City.

The newspaper article, which was clearly hearsay, indicated that formal council approval of the cooperation agreement had been given at the informal session, when, as we have held, in fact no such formal approval of the agreement took place until one week later, and no such formal approval could have been given at the October 28 session. However, we cannot discern how the erroneous indication of earlier council approval in any way prejudiced City. Insofar as the article might have influenced the jury in returning an affirmative answer to issue 5, concerning authorization, our holding that such answer is without support in the evidence eliminates the possibility of prejudicial effect insofar as the judgment in this case is concerned.

The article contains a conclusionary reference to a “joint venture” between City and SARA. However, plaintiff did not rely, in its suit against City, on any theory based on the existence of a joint venture between the two governmental agencies. That is, plaintiff does not contend that City’s liability is a vicarious liability in the sense that City is liable, because of the existence of a joint venture, for SARA’s acts. City’s liability is based on its own acts. The joint venture issue was relevant only to the question of SARA’s liability.

Although the deposition witness, Gerald Henckel, was city manager at the time of the occurrence of the acts of which plaintiff complains, his deposition was taken after he had relinquished that position and had severed all connection with City. The deposition was introduced into evidence by plaintiff, and, in answer to some questions which may fairly be categorized as “leading”, the witness testified that, as a result of the discussion at the October 28, 1971, informal meeting, there “was no doubt” in his mind that the actions taken by City staff members to halt development of plaintiff’s land were necessary in order to protect the “mutual interests” of City and SARA; that he considered the actions of City officials to be within the scope of “Council’s directions” to him; that he acquiesced in the actions of his subordinate officials “to protect the City’s interest to see that cost of land acquisition was kept to a minimum”; that his purpose was “communicated” to him “as the reason for the Council’s authorization of this action”; and that he felt that, as a result of consideration “of this matter” on October 28, he was authorized to take the measures of which plaintiff complains.

The error, if any, in permitting this witness to be treated as an “adverse” witness and sanctioning the use of leading questions is not shown to be prejudicial error requiring reversal. There is an abundance of testimony from other sources to the effect that development of the land was stopped in order to save money in the proposed acquisition of the land. In fact, the existence of this purpose was conclusively established by such other testimony. There is no contention that the portions of Henckel’s testimony concerning his interpretation of the discussion at the informal meeting influenced the jury other than in their affirmative answer to special issue 5, which inquired whether the city council had authorized, at the October 28, 1971, get-together, the actions of which plaintiff complains. The question of counsel authorization, at the October 28 meeting, should not, for the reasons already given, have been submitted to the jury, and we have concluded that there is no evidence to uphold such affirmative finding. The elimination of the jury’s finding to special issue 5 necessarily eliminates any possibility of prejudice to City resulting from Henckel’s testimony.

V.

Joint Venture

Points 13,14 and 15 assert that the issues relating to the existence of a joint venture between SARA and City should not have been submitted, since there was no evidence of such joint venture; that the jury’s findings of joint venture are against the great weight and preponderance of the evidence; and that, in any event, the trial court erred in entering judgment for plaintiff based on the existence of a joint venture because §§52 and 53 of Article III of the Texas Constitution, as well as Article XI, § 5 of that constitution, prohibit the existence of such a relationship between the two governmental agencies.

We need not decide the questions raised by these points. Even if it be held that, as a matter of law, no joint venture existed between SARA and City, such conclusion would not require a reversal of the judgment against City. As already pointed out, the judgment against City rests on the acts of City’s officials, agents, servants and employees, and not on the existence of any relationship between SARA and City. Since we have held that SARA is not liable to plaintiff in any event, nothing would be gained by discussing the question of joint venture.

VI.

Exemplary Damages

Points 16, 17, 18 and 19 challenge the award of exemplary damages against City.

The undoubted general rule in this country is that exemplary damages are not recoverable against a municipality in the absence of express statutory authority for the award of such damages. Anno: 19 A.L.R.2d 903 (1951). Plaintiff states that only two cases allowing recovery of exemplary damages against a municipality have been found, City of Miami v. McCorkle, 145 Fla. 109, 199 So. 575 (1940), and Kelly v. City of Cape Girardeau, 338 Mo. 103, 89 S.W.2d 41 (1945), and that the holding in Kelly was subsequently disapproved in Chappell v. City of Springfield, 423 S.W.2d 810 (Mo.1968). In fact, a reading of the McCorkle opinion reveals that no exemplary damages were awarded by the jury in that case.

Plaintiff admits that no Texas case has allowed recovery of punitive damages against a municipality, but points to Peace v. City of Center, Texas, 372 F.2d 649, 650-51 (5th Cir. 1967), where it was said that under Texas law exemplary damages are recoverable against a municipality only where it is pleaded and proved that the acts giving rise to plaintiff’s claim “where committed with . . . malice or evil intent, or such gross negligence as to be equivalent to such intent.” In support of this statement, the Federal court cited Bassham v. Evans, 216 S.W. 446 (Tex.Civ.App.—Amarillo 1919, no writ); Town of Jacksonville v. Pinkard, 40 S.W.2d 841 (Tex.Civ.App.—Texarkana 1931, writ dism’d), and Ostrom v. City of San Antonio, 33 Tex.Civ.App. 683, 77 S.W. 829 (Tex.Civ.App.—San Antonio 1903, writ ref’d).

Bassham was not a suit against a municipality and, in fact, plaintiff there did not seek recovery of exemplary damages. The issue in Bassham was whether mental anguish suffered by plaintiff as a result of being deprived of the use of his property was a proper element of actual damages. Insofar as the opinion refers to the rules applicable to recovery of exemplary damages, the court’s attention was clearly focused on a suit against a private individual.

In Pinkard the court merely held that the fact that the City’s acts had made it necessary for plaintiff to retain lawyers and that the trespass by the city had worried and vexed plaintiffs, such circumstances would not support the award of exemplary damages against the municipality. This tells us nothing about the circumstances under which punitive damages might be assessed against a city.

In Ostrom this Court said, “[T]he case would be exceptional, indeed, when vindictive or more than compensatory damages can be recovered against a municipal corporation.” The actual holding in the case was to the effect that vexation, humiliation and annoyance cannot be taken as elements of damages against a city for trespass upon land. 77 S.W. at 829.

Recovery of exemplary damages against a municipality was also denied in Cole v. City of Houston, 442 S.W.2d 445 (Tex.Civ.App.—Houston [14th District] 1969, no writ). However, the court merely stated that “as a general rule” neither exemplary damages nor attorney’s fees “can be recovered against a municipal corporation . . . .” 442 S.W.2d at 451.

The Texas decisions, then, do not support the statement by the Fifth Circuit insofar as that statement implies that punitive damages against a municipality are recoverable upon a showing that a city is liable for punitive damages if the acts of which plaintiff complains were committed with malice, evil intent or negligence so gross as to be equivalent to evil intent. Insofar as Bass-ham spoke of such malice, evil intent or gross negligence, it was speaking of the showing required to render a private individual liable for exemplary damages. The statement in Ostrom to the effect that it would be an “exceptional” case in which a municipality would be liable for exemplary damages was made immediately after the observation that in a proper case exemplary damages would be recoverable for an injury to land. The use of “exceptional” in connection with the liability of municipalities for such damages must be understood as distinguishing cases involving cities from cases not involving cities.

We need not here hold that an award of exemplary damages is proper only when authorized by statute. We go no further than to hold that, absent a showing of concurrence in, or ratification of, the acts of the municipal officers by the governing body, an award of exemplary damages against a municipality is not warranted by Texas law.

That portion of the trial court’s judgment granting plaintiff recovery against San Antonio River Authority is reversed and judgment is here rendered that plaintiff take nothing by its suit against San Antonio River Authority. That portion of the judgment awarding plaintiff recovery against the City of San Antonio is reformed by deleting therefrom the award of $25,000.00 as exemplary damages and, as so modified, that portion of the judgment is affirmed.

Plaintiff, Garrett Brothers, shall pay ¾ of the cost of this appeal. The remaining ¼ of the costs of this appeal shall be paid by the City of San Antonio.

      . All.statutory references, unless otherwise indicated, are to Tex.Rev.Civ.Stat.Ann.

      . Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S.Ct. 158, 159, 67 L.Ed. 322 (1922).