author: CARNEY, Presiding Judge.

text:
    Boyce Thomas McCALL, Plaintiff-Appellant, v. Kenneth L. PENEGAR and Donald S. Cohen, Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    July 11, 1975.
    Certiorari Denied by Supreme Court Oct. 6, 1975.
    Petition to Rehear Denied by Supreme Court Nov. 3, 1975.
    Boyce Thomas McCall, pro se.
    Foster D. Arnett, Arnett, Draper & Ha-good, Knoxville, for defendants-appellees.
   CARNEY, Presiding Judge.

Plaintiff Boyce Thomas McCall brought suit against the Defendant Kenneth L. Pen-egar, Dean of the College of Law of the University of Tennessee, and Donald S. Cohen, Assistant Dean of the College of Law of the University of Tennessee, seeking punitive damages in the sum of $500,000 because they rejected his application for admission to the College of Law. Mr. McCall is a member of the Police Force of the City of Knoxville. The Circuit Court granted summary judgment in favor of the Defendants. Plaintiff appealed insisting that he was entitled to a jury trial.

Mr. McCall, age 44, does not have a high school diploma.

In Mr. McCall’s written application for admission to the University of Tennessee College of Law, he gave as his reason for seeking to pursue a legal education: “It is my desire to pursue a legal education for the expressed purpose of pursuing a successful cause of action against the American Bar Association. The Bar in my opinion represents a criminal conspiracy of Judges and Lawyers without the necessary restraints as required by society.”

Mr. McCall argued this appeal before this Court and gave as his reason for wanting to study law that he thought it would help him as a citizen. He stated that he did not intend or desire to practice law.

In their affidavits in support of the motion for summary judgment, Dean Penegar and Dean Cohen stated that the Appellant failed to qualify for admission to the College of Law as follows:

“4. That by reference to that application, it appeared clear that the applicant (plaintiff) did not and had not minimum standards for admission duly and regularly prescribed by the Board of Trustees, University of Tennessee, by Rule 37 of the Tennessee Supreme Court, by the American Bar Association, and by the Association of American Law Schools, each of said entities having supervisory and/or accrediting authority over the University of Tennessee, College of Law.
5. Specifically, by reference to Exhibit 1, the following appeared:
(a) that plaintiff had no earned college credits, and he did not possess a Bachelor’s or Baccalaureate Degree;
(b) That plaintiff does not possess a high school diploma;
(c) that plaintiff had not taken the Law School Admission Test (LSAT), a prerequisite for admission;
(d) that plaintiff had not registered with the Law School Data Assembly Service (LSDAS) as required for admission to the law school.
(e) That plaintiff had not supplied the names and addresses of two references as required, by the College of Law application for admission form.”

Dean Penegar and Dean Cohen also made affidavit that the total capacity of the school for the first year law class was 259 students to be selected from 1,290 persons applying and that in 1973 the school was limited to 270 freshmen out of a total of 1,300 applications for admission.

The Appellant contends that by his being denied his application to enter the College of Law of the University of Tennessee he is being denied his rights under the Constitution of the State of Tennessee and under the Constitution of the United States. We respectfully disagree. The lower Court correctly held that the Defendants Dean Pene-gar and Dean Cohen did not violate any constitutional rights of the Appellant McCall when they denied his application for admission to the College of Law; that they were not liable in damages to him for any amount; that there was no matter to be submitted to a jury and that His Honor the Trial Judge properly granted summary judgment.

The assignment of error is respectfully overruled. The costs of this appeal are taxed to the Appellant and the appeal is dismissed.

MATHERNE, J., and McAMIS, Special Judge, concur.


source: Caselaw Access Project

author: WALKER, Presiding Judge.

license: Public Domain

text:
    Jeffry CHEAIRS et al., Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    May 10, 1976.
    Certiorari Denied by Supreme Court Oct. 4, 1976.

      Albert P. Marks, Clarksville, for Cheairs.
    Collier Goodlett, Jr., Clarksville, for Mar-cheterre.
    Laurence McMillan, Clarksville, for Burch.
    Frank J. Runyon, Clarksville, for Un-thank.
    Hugh R. Poland, Jr., Clarksville, for Couey.
    Paul D. Welker, Clarksville, for Gillmore.
    R. A. Ashley, Jr., Atty. Gen., R. Jackson Rose, Asst. Atty. Gen., Nashville, Noel R. Bagwell, Dist. Atty. Gen., John J. Hestle, Asst. Dist. Atty. Gen., Clarksville, for defendant-in-error.
   OPINION

WALKER, Presiding Judge.

Jeffry Cheairs, Daniel Marcheterre, Jerry Burch, Robert Unthank and Paul Couey were convicted in Montgomery County of first degree murder of Kaoru Y. Smith and sentenced to life imprisonment. Michael Gillmore was convicted of being an accessory before the fact of first degree murder and was also sentenced to life imprisonment. All six appeal in error.

Marcheterre says the trial court erred in refusing to grant a change of venue. He contends newspaper publicity was so inflammatory as to deprive him of a fair trial. He cites no authority in support of his claim. Four months intervened between the principal publicity he claims damaged him and his trial. No abuse of discretion appears in this record. See Broz v. State, 4 Tenn.Cr.App. 457, 472 S.W.2d 907.

All defendants complain that they did not receive a preliminary hearing and that their motions to dismiss the indictment for that reason should have been sustained.

The defendants were arrested on warrants charging that they murdered Smith on September 7, 1973. On September 10 the general sessions judge fixed bail, appointed attorneys for a number of them and set a preliminary hearing for September 28. In the meantime the trial judge, on application of the district attorney general, called the grand jury of the regular August term back into session and it indicted these defendants September 20. The defendants argue that they were entitled to a preliminary hearing under TCA 40-1131.

The indictment was returned prior to the 1974 amendment, the effective date of which was April 4, 1974. Following this indictment there was no right to a preliminary hearing. Shadden v. State, Tenn.Cr. App., 488 S.W.2d 54; McCracken v. State, Tenn.Cr.App., 529 S.W.2d 724. The trial judge properly reconvened the grand jury under TCA 40-1515 to consider criminal offenses committed in his jurisdiction and it was not necessary to await a preliminary hearing. The trial judge correctly denied the motions to dismiss the indictment.

All defendants except Marcheterre say the court erred in limiting them to eight peremptory challenges rather than 15 provided for capital cases.

The death penalty was not in effect at the time of this trial in April 1974 and, of course, the trial judge did not instruct the jury on the death penalty. The defendants were entitled to only eight peremptory challenges. Jenkins v. State, Tenn.Cr.App., 509 S.W.2d 240.

The same defendants complain that the trial judge refused to accept their challenges for cause and erred in taking over the questioning of jurors.

In its brief the state says that the defendants did not exhaust their peremptory challenges and are therefore precluded from complaining. We find from our examination of the record that each defendant used his eight peremptory challenges, making a total of 48, and that in addition each used all his peremptory challenges permitted on the alternate juror.

Selection of the jury took six days trial time and covers 1314 pages of the record. The trial judge properly took part in the examination, particularly when jurors did not understand their duties. This is part of the function of a judge. State v. Jefferson, Tenn., 529 S.W.2d 674, 684 (1975). TCA 40-2507 contemplates the trial judge’s inquiry to determine if a juror may be fair.

None of the prospective jurors complained of were seated; challenges were exercised against them. The defendants all had a fair jury and accepted it. They do not claim any prejudiced juror was seated nor that any juror was anything but fair. From our study of the jurors on their voir dire, all who were finally accepted were fair and impartial. The defendants cite no authority on their contention. We find no prejudice on the jury selection and these assignments are overruled. See Layman v. State, 1 Tenn.Cr.App. 83, 429 S.W.2d 832.

Each defendant contends the evidence is insufficient to support the verdict against him.

The state’s evidence shows that Gillmore is president of the Aliens Motorcycle Club, generally referred to as a gang, and the other defendants are members or closely associated with it. On September 7, 1973, some trouble developed at the Palms nightclub between Couey and the deceased, after which the club members forced Smith to go to their clubhouse where he undertook to fight the entire group. Smith was a karate expert and was having success with them when one Robert Williams struck him in the back of the head with a chain he called a medium-sized dog chain and which is otherwise described in the record as a log chain. Burch also struck him with a chain. Smith tried to escape from the group but was pursued and returned. He had kicked Trunk, one of his attackers, in the ribs, sending him to the hospital. This caused resentment on the part of the members and Gillmore ordered his execution.

The evidence shows that Gillmore ordered Smith killed and that the other five defendants, armed with a .22 rifle, a sawed-off shotgun and a bowie knife, took Smith in his own car to the country where Cheairs shot him with the others aiding and abetting in the murder. They then returned and reported to Gillmore that they had carried out his orders.

None of the defendants testified. Cheairs offered two character witnesses.

Gillmore joined in the fight with Smith at the clubhouse. Candy Lott, Vickie Cox, and Mike Lowrie heard him tell the club members that he did not want Smith seen any more. He pointed at those he expected to act. When Candy Lott asked him why Smith had to be shot, he replied that Smith would bring 50 karate experts and beat them. He refused her entreaty to spare Smith.

Cheairs was at the fight and in the car that took Smith to his death. Randolph Payne and Williams heard him admit that he shot Smith. He gave the murder weapon to Richard Stone to hide.

Burch was one of the combatants in the gang fight and threatened to kill Smith with a shotgun. He said that the gang should not release Smith because he had injured Trunk badly. He was in the car that took Smith away. Candy Lott, then his girl friend, saw him return with the group that reported to Gillmore that the job was done. He admitted his participation to her. He told her she would not think he was a man if he did not go and he told her Smith was shot 19 times.

Unthank had a bowie knife and was in the car. He admitted to Williams that he was at the scene of the murder and that someone told the person with the rifle to shoot Smith in the head. The jury did not believe his statement to Williams that he thought they were taking Smith to the hospital and that he tried to walk away from the killing.

Steve Sabo said that Couey was badly beaten by Smith at the fight. Lowrie saw him in the car taking Smith away and he was in the group reporting to Gillmore on their return.

Marcheterre was present when the fight occurred and was one of those receiving Gillmore’s orders. Gillmore told him and other club members that “We have to get it done” and some of them went for the gun to kill Smith. Vickie Cox then saw Mar-cheterre leave the building with Smith on the way to the car although she did not see the car actually leave. Six men including Smith left in Smith’s car where Lowrie says Cheairs, Unthank, Couey and Burch were waiting. He did not name the sixth person he says was in the car but Marcheterre was in the group who, on the return, went to Gillmore to report that his orders had been obeyed. Candy Lott said five men (Mar-cheterre, Burch, Couey, Cheairs and another) went together to tell Gillmore that the job was done. The circumstantial evidence shows that Marcheterre was the sixth person in the car and that he was aiding and abetting Cheairs in the killing.

The evidence supports the verdict of guilty against each of the defendants and does not preponderate against it and in favor of their innocence. The assignments on the weight of the evidence are overruled as are those of Cheairs, Marcheterre and Couey saying that the verdicts show passion, prejudice and caprice.

All but Marcheterre complain that there are omissions and inaccuracies in the transcript. In this 2000-page record there are some places where the court reporter found the recording inaudible. Wit-' nesses at trials are sometimes inaudible whether the record is taken by machine or shorthand reporter. We find no prejudice here and this assignment is overruled. See Phipps v. State, 3 Tenn.Cr.App. 574, 464 S.W.2d 341. The trial judge gave frequent instructions limiting evidence and we find no merit in the contention that any defendant was prejudiced by any evidence. We also find no error in the admission of photographs into evidence.

Unthank says the trial judge should have granted a mistrial when the prosecutor commented on his failure to testify.

Unthank’s counsel in argument told the jury that he was present in the car and at the scene of the killing and contended he thought they were taking Smith to the hospital. The district attorney general’s argument was in reply to this argument and was not a comment on Unthank’s failure to testify. The assignment is without merit.

We find no prejudice in the defendants’ failure to have a transcript of the testimony within 15 days after the trial and before their motions for new trial were heard.

We likewise find no merit in Cheairs’ claim that he should have been given an examination by two licensed physicians as to whether he was mentally ill and in need of care and treatment. He cites no authority. The court considered this motion and denied it with an order giving his reasons. There is no claim that this defendant was insane at the time of the homicide or at the time of the trial.

All assignments are overruled and the judgment is affirmed as to all defendants.

RUSSELL and DAUGHTREY, JJ., concur.


author: SAM D. JOHNSON, Justice. POPE, Justice

text:
    Audrey Mae ROBERTS et vir., Petitioners, v. HALTOM CITY, Respondent.
    No. B-5716.
    Supreme Court of Texas.
    July 21, 1976.
    Rehearing Denied Sept. 29, 1976.
    George C. Thompson, Jr., David R. Sweat, Fort Worth, for petitioners.
    Crumley, Murphy & Shrull, Franklin Moore, Fort Worth, for respondent.
   SAM D. JOHNSON, Justice.

Audrey Mae Roberts instituted this action against the City of Haltom City for injuries sustained as a result of a fall on a street maintained by the City. The City filed a motion for summary judgment asserting that Mrs. Roberts failed to give the designated city officials written notice of her claim within thirty days of the occurrence as required by the city charter. The trial court granted the City’s motion for summary judgment and the court of civil appeals affirmed. 529 S.W.2d 296. We reverse the judgments of the courts below and remand the case for trial.

The City’s motion for summary judgment was based on Article X, Section 10.09, of the Haltom City charter, which provides in part:

“Before the City shall be liable to damage claim or suit for personal injury or damage to property, the person who is injured or whose property is damaged, or someone in his behalf, shall give the Mayor or the City Secretary notice in writing duly verified within thirty days after the occurring of the alleged injury or damage, stating specifically in such notice when, where and how the injury or damage was sustained, and setting forth the extent of the injury or damage as accurately as possible, and giving the names and addresses of all witnesses and upon whose testimony such person is relying to establish the injury or damage.”

Both the city secretary and mayor filed affidavits in support of the City’s motion for summary judgment stating that they did not receive the required notice of claim from Mrs. Roberts.

Mrs. Roberts’ contention is that the City was estopped by the conduct of its agents from demanding compliance with the charter provision. The actions of the City’s agents forming the basis for Mrs. Roberts’ claim of estoppel were summarized in her affidavit in opposition to the City’s motion for summary judgment:

“On May 3, 1973, I was injured in a fall which occurred in the 5100 block of Nadine Street in Haltom City. On the evening of May 3, 1973, I was admitted to Harris Hospital where I remained for ten (10) days. After my release from the hospital, I called the offices of the following persons at Haltom City:
"Mr. Lloyd Nivens Superintendent of Public Works, Haltom City
"Mr. John Massey Assistant to City Manager for Haltom City
"Mr. James McGuire Police Chief for Haltom City on May 3, 1973
"Mr. Roger Prater Building Inspector for Haltom City
“Mr. Rex McEntlre City Attorney for Haltom City
“I spoke with Mr. James McGuire, Chief of Police over the telephone. I explained to him that I had been injured in a fall and was making a claim against Haltom City. I also spoke with Mr. John Massey over the telephone and explained to him that I had been injured in a fall and was making a claim against Haltom City. This telephone conversation took place within thirty (30) days after the date of my injuries. Mr. Massey told me that Haltom City was not responsible and that the condition of the road was the responsibility of some contractors. He gave me a list of contractors to contact. He led me to believe that THE CITY OF HAL-TOM CITY was not responsible and that, therefore, I had no claim against it. I was unable to contact the contractors until after thirty (30) days after my injuries. Police Chief James McGuire told me that ‘everything would be taken care of’ and that the City Attorney’s Office would let me know who was responsible for the condition of the street.
“THE CITY OF HALTOM CITY, by and through its agents, led me to believe that THE CITY OF HALTOM CITY was not the responsible party for my injuries. If I had known or if I had been informed by the agents and employees of Haltom City that no contractor was working on the street at the time of my injuries, I would have filed the required notice within thirty (30) days after the date of my injuries.”

Upon Mrs. Roberts’ release from the hospital following her fall, she contacted the contractors named by the assistant to the city manager. The contractors investigated and then reported to Mrs. Roberts that they were not performing any repair or construction work on the portion of the street where Mrs. Roberts was injured. The contractors, of course, denied liability. After so learning that the contractors were not engaged in any construction on the portion of the street where she fell, Mrs. Roberts filed this suit against the City seeking damages in the amount of $13,156.37.

In affirming the trial court’s summary judgment for Haltom City the court of civil appeals held that Mrs. Roberts failed to demonstrate any evidence raising the issue of estoppel. Mrs. Roberts contends that the summary judgment proof raised two genuine issues of fact: (1) whether the conduct of Haltom City’s agents was sufficient to estop the City from asserting the notice of claim requirement; and (2) whether the agents of Haltom City had sufficient authority to estop the City from requiring a written notice of claim.

At the outset the City contends there are no pleadings to support Mrs. Roberts’ claim of estoppel. The claim of estop-pel was specifically stated for the first time in Mrs. Roberts’ motion for new trial. A similar contention was made in “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934 (Tex.1972), where the defendants pleaded the statute of frauds in a suit to enforce a lease agreement and the plaintiff attempted to avoid the statute of frauds defense on the legal theory of promissory estoppel. The defendants insisted that the plaintiff was not entitled to claim promissory estoppel because this theory was neither pleaded in the trial court nor presented in the court of civil appeals. In response to this contention the court held that it had jurisdiction to determine the applicability of the promissory estoppel theory, and that the burden was on the plaintiff to adduce summary judgment evidence raising a fact issue concerning its promissory estoppel theory. In so holding the court relied upon Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233, 237 (1956), where this court held “that when the affidavits or other summary judgment ‘evidence’ disclose facts which render the position of the moving party untenable, summary judgment should be denied regardless of defects which may exist in the pleading of the opposite party.” We hold, therefore, that the summary judgment for the City must be reversed if the evidence raised a genuine fact issue as to estoppel regardless of Mrs. Roberts’ failure to specifically plead this theory.

The initial substantive issue is whether the conduct of the city officials, as presented in Mrs. Roberts’ summary judgment proof, was sufficient to estop the City from asserting the notice of claim requirement. The charter provision clearly required written notice of claims. It has been held that compliance with such charter provisions is mandatory and that filing of a written notice of claim is a condition precedent to maintenance of a suit against a city for injuries. City of Terrell v. Howard, 130 Tex. 459, 111 S.W.2d 692 (1938); Phillips v. City of Abilene, 195 S.W.2d 147 (Tex.Civ.App.—Eastland 1946, writ ref’d). However, in several cases Texas courts have held that a city may be estopped to demand compliance with a charter provision requiring written notice of claims, and the rule that municipalities may be estopped from asserting failure of compliance with notice of claim provisions is now well established in this state. Cawthorn v. City of Houston, 231 S.W. 701 (Tex.Com.App.1921, jdgmt. adopted); Dias v. City of San Antonio, 488 S.W.2d 522 (Tex.Civ.App.—San Antonio 1972, writ ref’d n.r.e.); City of Denison v. Fulce, 437 S.W.2d 277 (Tex.Civ.App.—Texarkana 1969, writ ref’d n.r.e.); City of Waco v. Thralls, 172 S.W.2d 142 (Tex.Civ.App.—Waco 1943, writ ref’d w.o.m.).

Mrs. Roberts’ summary judgment affidavit stated that the assistant to the city manager informed her that the City was not responsible for the condition of the street but that others, private contractors, were responsible; she was thereby led to believe that she possessed no claim against the City. We hold that this summary judgment evidence raised a fact issue as to the existence of the necessary elements of es-toppel. The City may be estopped if the assistant to the city manager falsely represented that the City was not responsible for. the condition of the street and if Mrs. Roberts relied on such representation to her detriment. A mere denial of the City’s liability by the assistant to the city manager .would not, of course, estop the City from demanding compliance with the charter provision. An estoppel will arise against the City only if the assistant to the city manager reported information to Mrs. Roberts that he knew or should have known was false. This estoppel is based upon the principle that a party may not profit by his own or his agent’s wrongful act.

Courts in other jurisdictions have recognized the applicability of the doctrine of estoppel in cases where a false representation by a city’s agent prevented a claimant from filing a required written notice. In Fredrichsen v. City of Lakewood, 6 Cal.3d 353, 99 Cal.Rptr. 13, 491 P.2d 805 (1971), a case very closely in point, the claimant was injured by a fall on a defectively maintained city sidewalk. She contacted the city shortly after her accident and requested that it supply her with the necessary claim form. Instead of sending a claim form the city clerk sent a letter to the claimant stating that the city was not responsible for maintenance of the defective sidewalk. After the period for filing written notice of claims had passed the claimant’s attorney discovered that the defective sidewalk was maintained by the city, and the claimant then filed her suit against the city. In rejecting the city’s contention that the claimant was precluded by failing to file the required notice, the California supreme court held that “[t]he city cannot frustrate plaintiff’s attempt to comply with a statute enacted for its benefit and then assert noncompliance as a defense.” 99 Cal. Rptr. 13 at 17, 491 P.2d 805 at 809.

The Florida supreme court reached a similar conclusion in Rabinowitz v. Town of Bay Harbor Islands, 178 So.2d 9 (Fla.1965). In that case the claimant was injured when his car struck a partially open drawbridge owned by the town. During an investigation of the accident the town’s insurance investigator informed the claimant that the bridge was not owned by the town but, rather, was owned by a private corporation. After the expiration of the period for filing written notice of claims the claimant discovered that the bridge was owned by the town and thereafter filed suit against it. The court held that the conduct of the town’s insurance investigator was sufficient to estop the town from asserting the claimant’s failure to submit a written notice of claim.

The City may also be estopped from asserting noncompliance with the filing requirement if it led Mrs. Roberts to believe that the filing requirement was waived. The holding in Cawthorn v. City of Houston, supra, was based on this form of estop-pel and subsequent Texas cases have consistently adopted the elements of estoppel set forth in Cawthorn:

“If, from the allegations of Cawthorn, the mayor and commissioners, through their agent, Drennan, so conducted themselves as to lull the claimant into a sense of security, causing him to think they were waiving said charter provisions, and if an ordinarily prudent person, under the same or similar circumstances, would have so concluded, then the city is es-topped to demand strict compliance with the charter provisions.” 231 S.W. 701 at 706.

We hold that the summary judgment proof raised a fact issue as to whether the City, through the statements and conduct of its officials, led Mrs. Roberts to believe that the filing requirement was waived, thus estopping the City from asserting the notice requirement as a bar to her suit. Our holding rests on the alleged statement by the City’s police chief to Mrs. Roberts that “everything would be taken care of” and that the city attorney’s office would let her know who was responsible for the condition of the street. This statement may have been sufficient to lead a reasonably prudent person to conclude that the City was adequately notified and that no further steps needed to be taken until the City completed its investigation. In this respect the instant case is quite similar to Dias v. City of San Antonio, supra, where an investigator for the city’s transit system told the claimant that the city would pay her medical bills and “take care of the matter.” Based on the investigator’s statements the court held that fact issues of waiver and estoppel were presented and that the summary judgment for the city was in error. In a similar holding the supreme court of Wisconsin found a city estopped from demanding a written notice of claim where the claimant reported the accident to the city’s police chief who indicated that no further action would be necessary. Harte v. City of Eagle River, 45 Wis.2d 513, 173 N.W.2d 683 (1970).

The City contends, however, that it cannot be estopped by the conduct of its officials unless such conduct was expressly authorized. The City’s contention finds support in the leading case, Hallman v. City of Pampa, 147 S.W.2d 543 (Tex.Civ.App.—Amarillo 1941, writ ref’d). In Hallman the claimant contended that the city was es-topped to demand compliance with a charter provision requiring written notice of claims within thirty days because the city manager told the claimant that “it did not make any difference whether any claim was filed within thirty days but that the appellant could make out the claim later and go before the city commission.” 147 S.W.2d 543 at 544. The charter provision in question required the filing of notice of claims with the mayor or city commissioners. The court stated:

“Under such charter the notice was not required to be filed with him [the city manager] but with the city commission, which body was the only authority which could take cognizance of such claims and act thereon. The city manager possessed only such authority as might be given him by the charter or by the governing body of the city.” 147 S.W.2d 543 at 546. The court concluded that the city could not be estopped by the statements of the city manager because he was not expressly authorized, stating:
“We think it would be a hazardous doctrine of far-reaching effects to announce the rule that any officer or employee of a city, not expressly so authorized, could bind or estop the city in matters of this kind which are placed exclusively within the authority of the city commission.” [Emphasis added.] 147 S.W.2d 543 at 546.

The holding in Hallman that a city may not be estopped by the conduct of its officials and agents unless expressly authorized has been consistently followed by other Texas cases, including City of Houston v. Hruska, 155 Tex. 139, 283 S.W.2d 739 (1955), and Phillips v. City of Abilene, supra. Phillips involved a claim of estoppel against a city based on conduct of its mayor and an individual city commissioner which allegedly led the claimant to believe that the notice of claim requirement was waived. The court held that the city was not estopped despite the conduct of its individual officials because an ordinance provided that the notice requirement could be waived only by a resolution of the city’s board of commissioners. In Hruska this court held that the unauthorized paymeht of sick leave benefits to an injured city employee, which allegedly led the employee to believe that the notice of claim requirement was waived, did not raise an estoppel against the city.

Compelling reasons now argue for reconsideration of the rule that a city may not be estopped from defending on the grounds of lack of notice unless the conduct of its officials was expressly authorized. This rule has frequently transformed notice requirements into traps for the unwary and, as the circumstances in the instant case illustrate, the rule often produces unjustifiably harsh results. According to Mrs. Roberts’ summary judgment proof, she was given the “runaround” when she called city hall inquiring whom she should talk to about the accident. An unnamed city employee instructed her to call five different city officials, including the city attorney, none of whom had authority under the city charter to receive notice of claims. Mrs. Roberts contacted the offices of each of the five named officials. She was unable to speak with three of the officials but left messages with the persons who answered the telephones requesting that her calls be returned and informing them of her intent to file a claim. None of the three officials returned her calls. The two city officials with whom Mrs. Roberts was able to speak gave her misleading information. The police chief told her that “everything would be taken care of,” and the assistant to the city manager stated that the City was not responsible and that the condition of the street was the responsibility of certain contractors.

Although Mrs. Roberts was not successful in filing her claim with the proper city officials, her telephone call to the city attorney’s office resulted in an investigation of the accident by the City’s chief building and construction inspector. On May 23, 1973, twenty days after the accident, the chief inspector sent a memorandum to the City’s superintendent of public works which described Mrs. Roberts’ accident and included a photograph of the street where she fell. The memorandum stated: “She [Mrs. Roberts] called the City Attorney’s office and said she had broken her shoulder when she fell in the street, and wanted the city to pay her hospital bill.”

The City now contends that Mrs. Roberts should not have relied upon the statements of the police chief or the assistant to the city manager because they were not expressly authorized. The City further urges that Mrs. Roberts should be deemed to have knowledge of the city charter provision which authorized only the mayor and the city secretary to receive notice of claims. However, it cannot be doubted that Mrs. Roberts’ ignorance of the charter provision was primarily attributable to the actions of the city officials. While it is settled law that ignorance of a charter provision does not excuse compliance therewith, this court in exercising its equitable powers under the doctrine of estoppel cannot ignore the practical effect of the conduct of the city officials. The purpose of estoppels is to prevent injustice and protect those who have been misled. Kuehne v. Denson, 148 Tex. 54, 219 S.W.2d 1006 (1949). The court’s equitable power to prevent injustice may not be frustrated by rules of law that limit or preclude the responsibility of the City for the conduct of its officials.

We hold that the City may be es-topped by the conduct of its officials if Mrs. Roberts relied upon such conduct in failing to file a notice of claim and if a reasonably prudent person would have so relied. Expressions to the contrary in Hallman, Phillips, Hruska, and other Texas cases are disapproved. Our holding should not, however, be construed as announcing a new rule of general application with regard to estoppel of municipalities or authority of municipal officials. We do not abandon the established rule against estoppel of cities as to governmental functions. City of Hutchins v. Prasifka, 450 S.W.2d 829 (Tex.1970). Even if the defense of damage claims by the City is deemed a governmental function, this court has recognized that exceptions to this general rule may exist where justice requires it and where no governmental function is impaired. City of Hutchins v. Prasifka, supra, at 836. Assuming the truth of Mrs. Roberts’ factual allegations, this is an appropriate instance to recognize such an exception.

With regard to the instant case, we hold that the summary judgment proof raised a fact issue as to whether Mrs. Roberts relied upon the statements of the police chief and the city manager and whether a reasonably prudent person would have relied upon such statements.

The requirement that city officials be expressly authorized in order for their conduct to estop the city from defending on the grounds of lack of notice has created substantial obstacles to the assertion of damage claims against cities. These obstacles cannot be justified by the purposes that notice of claim requirements are intended to serve. Moreover, misleading conduct by city officials, whether expressly authorized or not, should not be sanctioned. Yet, the rule followed by this court in Hallman, Phillips, and Hruska has permitted cities to benefit by the misconduct of their officials. The rule now adopted by this court will permit a broader application of the equitable rule of estoppel and thereby curtail misuse of notice of claim requirements.

The judgments of the trial court and of the court of civil appeals are reversed and the cause is remanded for trial.

Dissenting opinion by POPE, J.

POPE, Justice

(dissenting).

Today’s decision judicially invests scores of municipal personnel with powers to transcend the law which requires the filing of a timely notice of a claim. The decision empowers those persons to handle claims for cities whether they possess any authority to do so or not. The majority also holds that written notice of a claim which is required by the city charter is no longer necessary.

Mrs. Roberts gave nobody written notice of her claim until seven months after the accident. The majority says that a telephone call will do. The charter requirement that the notice state “when, where and how the injury or damage was sustained” is also nullified. Mrs. Roberts’ summary judgment affidavit is silent about her timely furnishing those facts to anyone even by telephone. It is no longer necessary to set “forth the extent of the injury or damage” or to give “the names and addresses of all witnesses upon whose testimony such person is relying to establish the injury or damage.” And finally, the majority holds that the person whom a claimant calls needs to possess no authority to deal with the subject, and authority to act for and bind a city will now be determined by the ordinary prudent man test.

It would be a mistake to think that today’s opinion is an adoption of principles of estoppel as a means to avoid injustice. Texas has long recognized that an authorized agent for a city can bind a city on principles of estoppel. That was the reason that the estoppel operated in Cawthorn v. City of Houston, 231 S.W. 701 (Tex.Comm’n App.1921, jdgmt adopted); City of Waco v. Thralls, 172 S.W.2d 142 (Tex.Civ.App.1943, writ ref’d w. o. m.), and Dias v. City of San Antonio, 488 S.W.2d 522 (Tex.Civ.App.1972, writ ref’d n. r. e.) relied upon by the majority. But in each of those instances, the agent who acted for the city in creating the estoppel possessed the authority to act. I am in accord with those principles.

I disagree with a rule which permits an interloper, one who has no authorization from a city, to bind a city upon principles of estoppel. We have overruled an unbroken, settled, and so far as I have been able to detect in the legal literature, an uncriticized line of cases which say that it must be an authorized agent who works an estoppel upon the city. These are some of the cases: City of Houston v. Hruska, 155 Tex. 139, 283 S.W.2d 739 (1955); Phillips v. City of Abilene, 195 S.W.2d 147 (Tex.Civ.App.1946, writ ref’d); Hallman v. City of Pampa, 147 S.W.2d 543 (Tex.Civ.App.1941, writ ref’d). The new rule finds sparse support anywhere, and it means that oral notice to random persons in scattered municipal departments can keep claims afloat for indeterminate periods, whether the designated and authorized municipal agent ever gets the word or not.

The majority trades our settled law for a rule which is supposed to be espoused by Rabinowitz v. Town of Bay Harbor Islands, 178 So.2d 9 (Fla.1965), and by Fredrichsen v. City of Lakewood, 6 Cal.3d 353, 99 Cal. Rptr. 13, 491 P.2d 805 (1971). Rabinowitz is a case in which the legally designated agent for receipt of notice, the Town Attorney, was “fully informed of the entire situation by the Town manager.” Fredrichsen was an instance of misleading information which a City Clerk supplied a claimant. It was the City Clerk, the very person who possessed the authorization to receive the notice of claim, who frustrated the timely filing of the claim. Those eases are slight support for a rule which excuses a late filing of a claim by reason of conduct of an unauthorized agent.

Our Texas rule which has today been overruled comes from charter provisions which authorize cities by section 6 of article 1175:

6. To provide for the exemption from liability on account of any claim for any damages to any person or property, or to fix such rules and regulations governing the city’s liability as may be deemed advisable.

Since the notice rules find their origin in legislative acts to begin with, I would think that the Legislature would have been the more appropriate body to set aside this court’s clear rulings.

I respectfully dissent.


author:
POPE, Justice.
      DANIEL, Justice

text:
    Ex parte Ernest J. BROWNE, Sr., et al.
    No. B-5937.
    Supreme Court of Texas.
    Oct. 27, 1976.
    Rehearing Denied Dec. 1, 1976.

      Adams & Browne, Gilbert T. Adams, Beaumont, for relators.
    Mehaffy, Weber, Keith & Gonsoulin, Robert Q. Keith, Beaumont, for respondent.
   POPE, Justice.

Ernest J. Browne, Sr. and Robert Thomas were held in contempt for the violation of an injunction order of the 60th Judicial District Court of Jefferson County. Each was fined $100.00 by the special judge assigned to hear the contempt complaint and upon their refusal to pay the fines, they were taken into custody by the sheriff. This court ordered their release pending our decision in this habeas corpus proceeding. The questions presented are whether Mr. Browne and Mr. Thomas in fact violated the order of the court, whether the order itself was a void one, and whether the rela-tors were accorded due process. We hold that Mr. Browne violated the order, that it was not void, and he was accorded due process. There was no proof that Mr. Thomas violated the order.

On April 18, 1975, Gloria Austin filed a suit in the 60th Judicial District Court against Robert Thomas. She alleged that she had employed Thomas as her attorney in a divorce action but that the contract should be canceled and she should be awarded damages for breach of a fiduciary relationship. That cause was set for trial on October 6, 1975.

On September 5, 1975, John Paul Crain and A. H. Crain filed a separate suit in the 58th Judicial District Court naming as defendants, Gloria Austin, her husband H. E. Austin, Robert Thomas, H. E. Investments and the Texas Bank of Beaumont. That was an interpleader suit by which the Crains sought to tender into court the sum of money they owed on a note secured by property in which the Austins and others had some interest. As security for the payment of his fee in the divorce ease, Thomas had taken a collateral assignment of the note. The purpose of the Crain suit was to assure the timely payment of their obligation so they would be protected against the conflicting claims to the funds which might be asserted by the Austins, Thomas, and the other defendants. They also asked for an order to invest the funds properly pending the litigation.

On September 18,1975, Browne, as attorney for Thomas, filed in the Crain case that was pending in the 58th District Court a motion to consolidate the prior Austin case that was pending in the 60th Judicial District Court. The motion was set for hearing on September 30. At that time neither Gloria Austin nor Thomas had yet been served with process as defendants in the Crain case which had been filed after the Austin suit.

On September 26, Gloria Austin filed in the 60th District Court her petition for injunction seeking to prohibit Thomas from taking action to consolidate the Austin case with the Crain case. On September 29, the judge of the 60th District Court granted an injunction in the Austin case which prohibited Thomas from:

(a) taking any steps whatsoever to consolidate the captioned cause into Cause No. A-102,383 in the 58th District Court of Jefferson County, Texas
(b) taking any step whatsoever to oust this Court of its lawful jurisdiction in the cause of Austin v. Thomas, No. B-101,640.

On September 29, Thomas gave notice of appeal and filed his appeal bond, but he did not file the record in the court of civil appeals until October 20. On September 30, relator Browne appeared at the consolidation hearing and explained to the judge of the 58th District Court that his client, Mr. Thomas, had been enjoined. The special judge who heard this contempt matter found as a fact, however, that relator Browne did something more; he voiced his views and opinions about the merits of the motion to consolidate and told the court that the motion to consolidate was a good one after which the judge of the 58th District Court ordered the consolidation of the Austin case with the Crain case. Thereafter all parties agreed to a settlement of both suits. The Crain case was settled and judgment was rendered by the 58th District Court, but the Austin case remained pending on the docket of the 60th District Court. In January these contempt proceedings were instituted upon the complaint that Browne and Thomas had violated the order. The record in this contempt proceeding supports the trial judge’s finding that relator Browne violated the order against taking steps to consolidate the two cases or to oust the 60th Judicial District Court of its prior jurisdiction over the first-filed cause.

Relator Browne was bound by the injunction as the attorney for Mr. Thomas. Rule 683. There was no proof, however, that Thomas himself did anything to violate the order. He did not appear or participate in the hearing; he gave no instructions to his attorney.

The injunction order was not a void one. The 60th Judicial District’s jurisdiction over the Austin case ordinarily could have been protected by filing a plea to abate any subsequently filed suit between the same parties concerning the same subject matter. Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303 (1956); Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951 (1935); Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926).

Our decision in Lancaster, as well as the several precedents discussed in that case, show, however, that a court may protect its jurisdiction by injunction when there is no adequate remedy available such as a plea to abate the second-filed case and when special circumstances justify the injunction. 6 Texas Practice, Remedies, § 75 at p. 119 (1973). It is our opinion that those circumstances exist in this case.

The Austin case had been on file in the 60th Judicial District since April, 1975, some four and one-half months before the Crain case was filed. Extensive discovery proceedings prior to trial had been completed in the Austin case, and it was set for trial for October 6. The Austin case was one in which Gloria Austin was the only plaintiff and Thomas was the only defendant. It was a suit grounded upon breach of a fiduciary relationship and sought the cancellation of a contract and damages. The Crain case, on the other hand, was an inter-pleader action. There was no issuance of citation in that case until after the hearing on the motion to consolidate. Mrs. Austin was dismissed from the Crain case as a party prior to the consolidation hearing, so at that time, she was the only plaintiff in the action pending in the 60th District Court and she was not a party to the inter-pleader action pending in the 58th Judicial District. Robert Thomas was the only party common to both actions. The subject matter in the two actions was wholly different, the parties were different and the remedies were different, so a plea in abatement by reason of a prior pending action would not lie. See Gratehouse v. Gratehouse, 417 S.W.2d 592 (Tex.Civ.App.1967, no writ).

The purpose of the injunction by the 60th Judicial District Court was to avoid the disruption of the setting and trial of the Austin case. The order in no way interfered with the trial of the Crain case, since the injunction was addressed to Thomas and not to the 58th District Court. See 43 C.J.S. Injunctions § 50. We hold that the injunction by the first court was not a void act because the first court had the power to protect its jurisdiction from disruption by a later-filed suit between different parties, concerning different subject matter. Art. 1911a, Tex.Rev.Stat.Ann. (Supp.1975). To excuse relator Browne’s violation of the order, he had to prove that the order was absolutely void, not that it was merely invalid. Ex parte Kimberlin, 126 Tex. 60, 86 S.W.2d 717 (1935); Ex parte Olson, 111 Tex. 601, 243 S.W. 773 (1922); Ex parte Smith, 110 Tex. 55, 214 S.W. 320 (1919). In our opinion, relator has not shown that the order was void.

Relator Browne makes the further contention that he was denied due process, because the injunctive order was vague and uncertain. We think otherwise. In Ex parte Slavin, 412 S.W.2d 43 (Tex.1967), we wrote that “the decree must spell out the details of compliance in clear, specific and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him.” The order, which enjoined “taking any steps whatsoever to consolidate the captioned cause into” the 58th District Court clearly prohibited relator Browne from making arguments before the 58th District Court that the motion to consolidate should be granted.

Relator Browne makes the further argument that he was denied due process since Rule 692 limits contempt actions to violations of orders in pending cases and this case was settled long prior to the commencement of the contempt action. Mootness of the merits does not wash away one’s prior contemptuous conduct toward the court. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 451-452, 31 S.Ct. 492, 55 L.Ed. 797 (1911).

The power to punish for contempt is an inherent power of a court. It is an essential element of judicial independence and authority. As expressed in Gompers, supra, “If a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the courts impotent . .” Gompers, supra, was a case in which there was a contemptuous act followed by a settlement of the entire cause. The Supreme Court stated:

When the main case was settled, every proceeding which was dependent on it, or a part of it, was also necessarily settled—■ of course, without prejudice to the power and right of the court to punish for contempt by proper proceedings. Worden v. Searls, 121 U.S. [14] 27, 7 S.Ct. 814, 30 L.Ed. [853] 858. If this had been a separate and independent proceeding at law for criminal contempt, to vindicate the authority of the court, with the public on one side and the defendants on the other, it could not, in any way, have been affected by any settlement which the parties to the equity cause made in their private litigation.

Finally, we find no merit in rela-tors’ contention that the trial court lost jurisdiction to proceed by way of contempt because the appeal from the trial court ousted the trial court of jurisdiction over the contempt. The chronology of relevant events was: On September 29, the 60th Judicial District Court made its injunction order. On that same date Thomas gave notice of appeal and filed his appeal bond. On September 30, relator Browne did the acts which the trial court found were contemptuous. On October 20, Thomas filed the transcript with the court of civil appeals, and on November 4, that court dismissed the appeal upon motion of appellant, Thomas. In Ex parte Werblud, 536 S.W.2d 542 (Tex.1976), we held that the court of civil appeals is the one charged with the trial and disposition of contempt proceedings for violations of orders during an appeal to that court. This court has also held, however, that jurisdiction over interlocutory orders was not vested in the court of civil appeals until (a) an appeal bond was filed and (b) the record was timely filed. Houston Compressed Steel Corp. v. State, 456 S.W.2d 768, 772-773 (Tex.Civ.App.1970, no writ); Walker v. Cleere, 141 Tex. 550, 174 S.W.2d 956 (1943); Rule 385, Tex.R. Civ.P. The trial court had jurisdiction of this case when the injunction order was violated on September 30; it had jurisdiction after the appeal was dismissed and the contempt action was tried.

Relator Ernest J. Browne, Sr. is remanded to the custody of the Sheriff of Jefferson County. It is ordered that the order holding relator Robert Thomas in contempt be set aside and that he be discharged.

Dissenting Opinion by DANIEL, J., joined by McGEE and DENTON, JJ.

DANIEL, Justice

(dissenting).

I concur in that part of this Court’s judgment discharging the relator, Robert Thomas. I would enter the same judgment of discharge as to Robert Thomas’ attorney, Ernest J. Browne, Sr., and therefore dissent from that portion of the Court’s opinion and judgment which reaches a contrary result as to him.

The injunction of the 60th District Court, which was alleged by the complainant (Mrs. Austin’s attorney) to have been violated, named only Thomas. He was enjoined from “taking any steps whatsoever” to consolidate the Austin case pending in the 60th District Court with the Crain case pending in the 58th District Court, or to oust the 60th Court of its jurisdiction in the Austin case. Browne was bound thereby only as Thomas’ attorney by reason of Rule 683, Texas Rules of Civil Procedure.

Whether the injunction was valid or invalid, it cannot be denied that Thomas and Browne had a right to appeal therefrom before being charged by opposing counsel with a disobedience under Rule 692, Texas Rules of Civil Procedure. Any denial of that right would be a denial of due process. On the same day the injunction was entered by the 60th Court, September - 29, 1975, Thomas and Browne gave notice of appeal from the injunction and filed an appeal bond. The transcript was duly filed with the Court of Civil Appeals on October 20, 1975.

In the meantime, while the appeal from the injunction was pending, all parties made a complete settlement of both lawsuits shortly before October 31, 1975, evidenced by written memoranda and agreed judgments to be entered in each case. The settlement provided that, in consideration of Mrs. Austin taking a nonsuit or a “take nothing” judgment in the 60th Court and paying Thomas a cash settlement, the parties would mutually release each other of all claims pending in both cases. The $154,-000 and accrued interest in the registry of the 58th Court was to be awarded by judgment of that court to H. E. Investments, less certain attorney fees awarded to the attorney for the Crains, whose property was to be released from all liens. Judgments carrying out the settlement were prepared and signed by the attorneys for all parties on or about October 31, 1975, with the attorneys for Mrs. Austin agreeing to get the judgments signed by the respective courts. The 58th Court judgment was signed on October 31, 1975, and the 60th Court judgment was delivered by the Austin attorneys to the judge of that court on or about the same date. Whereupon, the appeal from the injunction of the 60th Court was dismissed by Thomas and Browne on November 4 as being moot.

It was not until nearly three months later that Thomas and Browne learned that the final judgment had not been signed by the 60th Court prior to the dismissal of their appeal from the injunction. This knowledge came when they were served with a show cause order issued upon a complaint filed by Mrs. Austin’s attorney on January 20, 1976, asserting that on September 30th Thomas and Browne had violated the 60th Court’s injunction of September 29, 1975. The complaint was filed by the same attorney whose responsibility it was for having the final judgment signed by the 60th Court on or about October 31, 1975.

Relators contend they were denied due process when Mrs. Austin’s attorney failed to obtain entry of the final judgment in the 60th Court as agreed upon and waited until after relators had dismissed their appeal from the injunction before advising relators that the judgment had not been signed. Under the circumstances, I agree that this argument has merit insofar as the parties and their attorneys are concerned. This contempt proceeding was not initiated by the judge of the 60th District Court under his general power to punish for contempt. Rather, the complaint in this proceeding was filed by Mrs. Austin’s attorney under Rule 692, which applies to injunctions in pending cases. If the final judgment had been entered as agreed upon on or about October 31, 1975, there would have been no case, controversy, or ancillary injunction pending in the 60th Court when the complaint was filed against relators on January 20, 1976. It was stipulated by the parties that relators’ appeal from the injunction was dismissed because of the settlement. Mrs. Austin’s attorney testified: “We contemplated a take nothing judgment would be entered by Judge Combs [60th Court] .. I presented, directly or indirectly, that proposed judgment to Judge Combs . on or about November 1, 1975.” Judge Combs testified that he would have signed the judgment if he had been asked to do so. Failure of complainant to ask for the judgment to be signed, or to notify relators that it was not signed, prior to relators’ dismissal of their appeal from the injunction obviously resulted in a denial to relators of the due process of law to which they were entitled both as to their appeal and the contempt proceeding.

While circumstances of this nature resulting from a settlement by the parties may not prejudice the power and right of a court to initiate its own independent proceeding for criminal contempt, they should positively foreclose and estop the parties to the settlement and their attorneys from initiating a contempt proceeding for their own vindication or punishment of the opposing parties. This was the effect of the holding in Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911), which is cited by the majority. In that case the Court held that as far as the parties were concerned, settlement of the main case necessarily settled every proceeding which was dependent on it, stating:

“ . . . when the main cause was terminated by a settlement of all differences between the parties, the complainant did not require, and was not entitled to, any compensation or relief of any other character. The present proceeding [contempt] necessarily ended with the settlement of the main cause of which it is a part. Bessette v. W. B. Conkey Co., 194 U.S. [324] 328, 333, 24 S.Ct. 665, 48 L.Ed. [997] 1002, 1004; Worden v. Searls, 121 U.S. [14] 27, 7 S.Ct. 814, 30 L.Ed. [853] 858; State v. Nathans, 49 S.C. [199] 207, 27 S.E. 52. The criminal sentences imposed in the civil case, therefore, should be set aside.” (Pp. 451-452, 31 S.Ct. at 502.)

Relators also assert that there was a lack of due process because the affidavit and show cause order did not describe or notify them of the specific acts of contempt on which they were to be tried. The affidavit and the subsequent show cause order merely alleged that “in disobedience of such temporary injunction, at 1:30 o’clock p. m., on September 30, 1975, the said Ernest J. Browne and Robert L. Thomas appeared for and on behalf of the Motion to Consolidate the two cases into the case pending in the 58th District Court . . . .” This complaint was wholly insufficient to constitute a basis on which to predicate a prosecution for contempt based upon disobedience of the terms of injunction. The injunction did not enjoin Thomas or Browne from appearing at the hearing on the motion to consolidate. It prohibited only the taking of any future steps to consolidate the causes. No such steps constituting disobedience of the injunction were specifically described in the complaining affidavit as provided in Rule 692. The affidavit that Thomas and Browne “appeared for and on behalf” of the motion to consolidate was a mere conclusion. It failed to specify how or by what means, either in words or actions, that rela-tors had disobeyed the terms of the injunction.

Constructive contempt being in the nature of a criminal proceeding, it has been repeatedly held that due process demands notice of the specific violation charged. In holding a contempt judgment void in Ex Parte Edgerly, 441 S.W.2d 514 (Tex.1969), this Court said:

“ . . . Due process of law demands that before a Court can punish for a contempt not committed in its presence, the accused must have full and complete notification of the subject matter, and the show cause order or other means of notification must state when, how and by what means the defendant has been guilty of the alleged contempt. 12 Tex. Jur.2d Contempt § 48 (1960). See also Ex parte Ratliff, 117 Tex. 325, 3 S.W.2d 406, 57 A.L.R. 541 (1928); Ex parte White, 149 Tex. 155, 229 S.W.2d 1002 (1950); Ex parte Winfree, 153 Tex. 12, 263 S.W.2d 154, 41 A.L.R.2d 1259 (1954); Ex parte Hardin, 161 Tex. 567, 344 S.W.2d 152 (1961); Ex parte Cardwell, 416 S.W.2d 382 (Tex.Sup.1967). ...”

Since the affidavit and show cause order did not describe or specify the actions or words for which relator Browne has been held in contempt, they did not afford him the due process to which he was entitled under Rule 692 and the above cited authorities.

Accordingly, I would hold the contempt order invalid and discharge both of the rela-tors.

McGEE and DENTON, JJ., join.

      . The record made at the contempt hearing shows that Mr. Browne appeared at the consolidation hearing and argued:
      “Now, in my personal opinion, I think that the order is void. I don’t think where one court sets something for a hearing, I don’t think another court, unless it’s the appellate court, can in effect enjoin that hearing— Your Honor, I owe a duty to my client, Robert Thomas to not be doing anything to place him in jeopardy. I think, as far as the power of the Court, my personal opinion, I think that everybody knows the law, the courts can consolidate cases on their own motion. I can point out similarities and so forth, instances, and so forth, but I don’t want to do anything that would place my client in jeopardy, Your Honor or being held in contempt of court because he comes down here to this court to urge a motion that he has filed in this court in good faith, and this court has set it for a hearing, in good faith, and I don’t know of anybody that has filed any objections to the consolidation. It’s my understanding that they are all in favor of the consolidation, except maybe Mr. Keith’s client.”

      In answer to a question from the judge about the applicability of Rule 174(a) to the consolidation question, Mr. Browne responded:
      “ . . . I have to agree that is the Rule, and I think it’s applicable, but I’ll say to the Court I do not want to be in position of endangering my client, Robert Thomas, because he is enjoined from urging his motion to consolidate. No one has filed any objections and this is a court of record and if anybody is going to object to it, they should file a plea and there haven’t been any filed. So I think it should be taken as true, and it should be entered, and I don’t want to take the position of my client violating Judge Combs’ order.”
      There was then extended colloquy between the court and counsel for Mrs. Austin. This included discussions about Rule 174 concerning consolidations, the posture of the parties in the two suits which disclosed that Thomas was the only party common to both actions at the time of the consolidation hearing, the local rule which called for consolidations to be made in the first-filed cause instead of the last-filed one, Rule 330(e), Rule 43 concerning interpleaders, cases construing the interpleader rule. At the conclusion of that discussion, counsel for Mrs. Austin stated that Mr. Browne’s presentation and discussion of the motion to consolidate “constitutes a direct violation of the injunction that was issued yesterday.” To that comment, Mr. Browne responded, “You mean by discussing the law?”

      . This is true regardless of the merits of the appeal. It should be observed, however, that relators’ appeal was not frivolous. From the record in this proceeding it is apparent that Mrs. Austin had neither allegations nor proof that she had resorted or attempted to resort to any remedy at law or that such remedy would be inadequate, all of which is essential in this type of injunction suit. Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303 (1956); Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951 (1935). The judge of the 60th Court testified that he recommended to Mrs. Austin’s attorney that he not file the injunction because of local rules by which the consolidation in the 58th Court could be avoided. The existence of that adequate remedy was effectively demonstrated on the day after the consolidation, when the presiding judge of the Jefferson County District Courts set aside the consolidation order and restored the Austin case to the 60th Court.

      . He explained his failure to sign it as follows: “One reason I did not know what effect it might have on the show cause to hold in contempt. However, regardless of that facet, I would have gone ahead and signed it had anyone talked to me about it and told me that it was holding up anything, or that anyone was concerned about it.”

      . Mrs. Austin’s application for injunction had an additional prayer that Thomas be restrained “from proceeding with a Motion to Consolidate, or consenting to the consolidation ■ . . . but this portion of her prayer was not included in the injunction as issued by the 60th Court.


author: PER CURIAM.

text:
    VETERANS’ LAND BOARD of the State of Texas et al., Petitioners, v. Gertrude WILLIAMS et al., Respondents.
    No. B-6052.
    Supreme Court of Texas.
    Oct. 27, 1976.
    Brown, Maroney, Rose, Baker & Barber, Robert L. Davis, Austin, for petitioners.
    John G. Angelí, Seguin, for respondents.
   PER CURIAM.

This case involves a question of abuse of discretion in dismissal for want of prosecution. The plaintiffs, Gertrude Williams, et al., brought a trespass to try title suit against the defendant, Veterans’ Land Board in April 1968. An answer was filed, but the plaintiffs made no effort during the succeeding seven and one-half years to bring this suit to trial. During the summer of 1975, the District Court, on its own accord, set three “show cause” hearings during which the seven-year delay could have been explained. Plaintiffs requested postponements in regard to each of the first two hearings. The District Court dismissed the case for want of prosecution when, on September 5, 1975, plaintiffs’ attorney failed to attend the third hearing scheduled on the matter. Plaintiffs were present in the court but declined to proceed and offered no explanation for the seven-year delay. Plaintiffs stated only that their attorney had called them the day before to say he could not be present.

Plaintiffs filed a motion for reinstatement, but failed to request a hearing on the motion. No reasons have been tendered to the trial court, to the Court of Civil Appeals, or to this Court for the attorney’s failure to attend the hearing, or for the seven-year delay.

The Court of Civil Appeals reversed the judgment of the trial court and remanded the cause. 535 S.W.2d 209. The Court stated that:

The authority to dismiss for want of prosecution is found in Tex.R.Civ.P. 165a. That rule provides in part that, “A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief or his attorney to appear for any hearing or trial [docket call] of which he had notice . . . ” As previously mentioned, the appellants were present for the hearing.
* * * * * *
We also appreciate the difficulties of the district court in attempting to bring the case to trial. Nevertheless, the parties were present at trial, and according to their motion to reinstate, the absence of their counsel was not at their choice. Under these circumstances, Rule 165a did not authorize a dismissal for want of prosecution.

Rule 165a is not the exclusive authority by which the trial court derives its authority or discretion to dismiss a cause Tor want of prosecution. Rule 165a provides in the last paragraph that: \

“This dismissal and reinstatement procedure shall be cumulative, independent of, and unaffected by the rules and laws governing any other procedures available to the parties in such cases.”

We have held that a court has the inherent power to dismiss a suit for failure to prosecute it with due diligence even without statutory or rule authority. Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85 (1957); First National Bank of Houston v. Fox, 121 Tex. 7, 39 S.W.2d 1085 (1931). The First Court of Civil Appeals, in a case handed down since Rule 165a became effective, correctly cited Bevil v. Johnson, supra, as authority for holding that a trial court has the inherent right to dismiss a suit for want of prosecution, such matter being within its judicial discretion, subject to review only upon a clear showing of abuse. Sandstrum v. Magruder, 510 S.W.2d 388 (Tex.Civ.App.—Houston [1st] 1974), writ ref’d n. r. e.

In Bevil v. Johnson, there was no abuse of discretion in dismissing a case which had remained on the docket for eight years without satisfactory explanation from plaintiff as to the delay.

This Court, in Bevil, commented as to the diligence required, “Where the defendant in a suit is called to answer and has responded to the call, the duty devolves on the plaintiff to proceed in prosecuting the suit to a conclusion with reasonable diligence . .” [Emphasis ours.]

In the present case there has been a seven and one-half year delay with no explanation. Plaintiff has not satisfied the requirement of “reasonable diligence.” There has been no abuse of discretion in the trial court.

We regard the holding of the Court of Civil Appeals as being in conflict with Rule 165a and Bevil v. Johnson, supra. Pursuant to Rule 483, Texas Rules of Civil Procedure, the application for writ of error of Veterans’ Land Board is granted; and, without hearing argument, the judgment of the Court of Civil Appeals is reversed, and the judgment of the trial court is affirmed.


author: ODOM, Judge. ROBERTS, Judge.

text:
    Walter W. BATTEE, Appellant, v. The STATE of Texas, Appellee.
    No. 50850.
    Court of Criminal Appeals of Texas.
    Jan. 28, 1976.
    On Rehearing Oct. 20, 1976.
    Weldon Holcomb, Tyler, for appellant.
    Curtis Owen, Dist. Atty., and Frank McClendon, III, Asst. Dist. Atty., Tyler, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This appeal is from a conviction for sale of marihuana. A jury assessed punishment at five years.

Appellant contends that the trial court erred in admitting into evidence over objection an evidence envelope on which appeared the following (handwritten portions emphasized):

“CITY OF TYLER POLICE DEPT.

REPORTING OFFICE: Vice

EXHIBIT NO.: 1

CASE NUMBER: C-59

NAME: Walter Wavne Battee

ALIAS:

ADDRESS: 215 West Harpole. Tvler. Texas

EVIDENCE: Four (4) plastic bags containing green plant material

HOW OBTAINED:

PURCHASED BY: O. Salazar

SEIZED BY:

COLLECTED BY:

WHERE OBTAINED: 215 West Harnole. Tvler. Texas

DATE: 5-8-73

TIME: 2038

AMOUNT PAID: 844.00

WITNESSES:

PERSON REPORTING CASE: W. Hardv

REMARKS: Sale of marihuana”

Appellant properly objected when the envelope was introduced into evidence. The objection sufficiently apprised the trial court that the written notations constituted inadmissible hearsay. The trial court in overruling the objection committed reversible error under Coulter v. State, Tex.Cr.App., 494 S.W.2d 876, and the authorities there cited.

The State in its brief by various arguments attempts to evade the holding of Coulter v. State, supra. All such arguments misapprehend the extent of the harm to a defendant that results from admission of such evidence. As the Seventh Circuit has reasoned in United States v. Ware, 247 F.2d 698, 700-701 (7th Cir. 1957):

“The jury thus had before it a neat condensation of the government’s whole case against the defendant. The government’s witnesses in effect accompanied the jury into the jury room. In these circumstances we cannot say that the error did not influence the jury, to the defendant’s detriment, or had but very slight effect.”

The judgment is reversed and the cause remanded.

OPINION

ON STATE’S MOTION FOR REHEARING

ROBERTS, Judge.

The State makes a strenuous effort to distinguish Coulter v. State, 494 S.W.2d 876 (Tex.Cr.App.1973), upon which the reversal in this case was based. The primary contention is that both the witness who provided the information that appeared on the envelope (Salazar) and the witness who recorded the information on the envelope (Hardy) were present and subject to cross-examination by the appellant. Hardy made it clear that he simply recorded the information given him by Salazar without regard to its truthfulness and' Salazar himself gave the same evidence in his direct testimony that appeared on the envelope. These facts do indeed distinguish this case from Coulter, supra, but they do not dissuade us from our conclusion on original submission.

Coulter, supra, made it clear that the evidence envelope was objectionable hearsay not only because the proper predicate had not been laid for its introduction under the Business Records Act, Art. 3737e, V.A. C.C.P., but also because it lacked sufficient additional indicia of reliability. Certainly cross-examination of the chemists who had made the entries on the envelope would have gone a long way toward providing that additional indicia of reliability, but it would not necessarily have been sufficient. Wood v. State, 511 S.W.2d 37, 49 (Tex.Cr.App.1974) (concurring opinion).

The evidence envelope introduced at appellant’s trial was almost identical to that condemned in Coulter, and both were prepared not in the regular course of business but with a specific view toward prosecution in mind. Such records should not be admissible under the business records exception when offered by the party responsible for making the record. Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943). The Palmer doctrine has been applied to the use of police records such as the one involved here in those federal courts that have considered the subject. United States v. Smith, 172 U.S.App.D.C. 297, 521 F.2d 957 (1975); United States v. Brown, 451 F.2d 1231 (5th Cir. 1971), and United States v. Ware, 247 F.2d 698 (7th Cir. 1957). The last two cited cases were quoted with approval by this Court in Coulter. The additional indicia of reliability and trustworthiness was found to be lacking in the cases, even though there was cross-examination of the makers of the records. See also United States v. Frattini, 501 F.2d 1234 (2d Cir. 1974); United States v. Adams, 385 F.2d 548 (2d Cir. 1967); and Sanchez v. United States, 293 F.2d 260 (8th Cir. 1961) for other reversals on the authority of Ware, supra. Cf. United States v. Parker, 491 F.2d 517 and United States v. Jones, 491 F.2d 526 (8th Cir. 1973).

By its quotation from Ware, supra, in the opinion on original submission, the Court has also indicated its decision to base this reversal on the independent ground adopted by the 7th, 8th and District of Columbia Circuits in Ware, supra; Sanchez, supra; and Smith, supra, respectively. Those courts condemned the introduction of concise summaries of the government’s cases against the defendants since they had the effect of permitting the government’s witnesses to accompany the jury during its deliberations.

For the foregoing reasons, we reject the arguments offered in the State’s Motion for Rehearing.

      . The objectionable exhibit in this case also suffers from this defect inasmuch as there does not appear to have been any attempt to lay a predicate for it under the act.

      . See also Rodriquez v. State, 494 S.W.2d 864 (Tex.Cr.App.1973) and Nelson v. State, 507 S.W.2d 565 (Tex.Cr.App.1974).


author: ODOM, Judge. DOUGLAS, Judge ROBERTS, Judge. DOUGLAS, Judge

text:
    Jose MONTEMAYOR, Appellant, v. The STATE of Texas, Appellee.
    No. 50732.
    Court of Criminal Appeals of Texas.
    March 10, 1976.
    On Rehearing Oct. 27, 1976.

      W. J. Sames, Eagle Pass, for appellant.
    John F. Pettit, Dist. Atty. and Benjamin A. Martinez, Asst. Dist. Atty., Del Rio, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This appeal is from a conviction for aggravated assault upon a peace officer, V.T. C.A. Penal Code Sec. 22.02(a)(2). Punishment was assessed by the court at confinement for two years and a fine of one thousand dollars.

The judgment must be reversed because the trial court erroneously excluded rebuttal evidence offered by the appellant.

A lengthy recitation of the facts is not necessary. This prosecution arose out of two fights between appellant and the complaining witness, Deputy Sheriff Alfredo Menchaca. Both occurred during booking procedures at the Maverick County jail.

There were four witnesses to the outbreak of hostilities. Menchaca and another deputy sheriff testified that appellant without provocation attacked Menchaca. Appellant and his mother testified that Men-chaca without provocation or warning suddenly charged appellant in an attacking manner, and that appellant swung at the officer in self-defense. The record is in similar dispute as to the identity of the aggressor in a second fight occurring a few minutes later.

Appellant’s defense was predicated upon a theory of self-defense codified in the new Penal Code. V.T.C.A. Penal Code Sec. 9.81(a).

Appellant testified that he had known Menchaca for about four years and that there was ill will between the two. He said he feared Menchaca, and that he was afraid Menchaca would beat him. His fears were justified, he said, when Menchaca twice assaulted him on the day of the alleged offense.

Appellant’s attorney tried to elicit evidence supportive of his theory of the case while cross-examining Menchaca. In the course of this cross-examination Menchaca admitted that he knew one Oscar Antu, but categorically denied that he had ever been involved in any fight with Antu.

Later, appellant’s attorney called Antu to testify. The record reflects by examination of the witness outside the presence of the jury that Antu would have testified that deputy Menchaca without provocation had beaten him in the Maverick County jail.

The trial court erred in excluding this testimony. It is fundamental that when a witness in a criminal case testifies about a specific fact or event, and that fact or event is more than a very minor detail of his testimony, then the opposing side may present evidence to rebut the testimony. Such impeachment goes directly to the credibility of the witness, a factor that in many cases may critically affect the outcome of the prosecution. E. g., Daley v. State, Tex.Cr.App., 491 S.W.2d 932; Simons v. State, 167 Tex.Cr.R. 15, 317 S.W.2d 740; Freeman v. State, 166 Tex.Cr.R. 626, 317 S.W.2d 726; Redding v. State, 161 Tex.Cr.R. 53, 274 S.W.2d 712 (on motion for rehearing). The right to impeach the prosecution’s witnesses is also one aspect of the Sixth Amendment right of confrontation. See, e. g., Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).

Nor can we conclude that the error was harmless. The question of guilt was fiercely contested and hinged primarily upon the relative credibility of the witnesses. Moreover, the point upon which appellant sought to impeach the complaining witness was critical to his entire defense.

For failure of the trial court to allow appellant to impeach the testimony of the complaining witness, the judgment is reversed and the cause is remanded.

DOUGLAS, Judge

(dissenting).

The majority reverses this conviction because the trial court excluded the testimony by defense witness Oscar Antu on the ground “. . . that when a witness in a criminal case testifies about a specific fact or event, and that fact or event is more than a very minor detail of his testimony, then the opposing side may present evidence to rebut the testimony. Such impeachment goes directly to the credibility of the witness, a factor that in many cases may critically affect the outcome of the prosecution.”

Appellant was taken to jail because a federal warrant had been issued for his arrest. He was at the jail when he hit the officer. On cross-examination defense counsel asked Deputy Menchaca if he had beaten Antu. The court excluded Antu’s testimony on the basis that it was not relevant nor did it have any connection with the case at bar. Appellant, outside the presence of the jury, then developed the following bill of exception:

“Q. (Mr. Sames, Defense Counsel): I’ll start from the beginning. State your name.
“A. Oscar Antu.
“Q. Mr. Antu, have you ever been beaten in the Maverick County Jail?
“A. Yes, sir.
“Q. Have you ever been beaten by Deputy Sheriff Santoya in the Maverick County Jail?
“A. No, sir.
“Q. Was Deputy Santoya present when you were beaten by Deputy Sheriff Menchaca in the Maverick County Jail?
“A. Yes, sir.
“Q. Did you do anything to provoke this beating, that you know of?
“A. No, sir.
“MR. SAMES: No further questions.
“THE COURT: All right. The Court’s ruling will stand; this testimony will be excluded. You have your Bill. This is all you have from this witness?
“MR. SAMES: Yes.”

As pointed out in the majority’s opinion, appellant’s defense was predicated upon a theory of self-defense. The only evidence in this record to support this theory is the testimony of the appellant and his mother, Blanco Montemayor, and that of the mother is less than supportive of appellant’s theory. In fact, appellant’s own testimony disproves his own theory of self-defense as he admits that he struck Deputy Menchaca first and, from the evidence, without provocation. Deputy Menchaca did not threaten to hit nor hit the appellant. Appellant testified on direct examination:

“Q. All right. What was the nature of the conversation you had immediately after all of you got inside the jail?
“A. They said they had an order for arrest for me, and they were looking all in the drawers for it, I guess. I don’t know what they were looking for. Then they told me they didn’t have that order for arrest, and they had to call San Antonio. And at that time, that’s when Deputy Menchaca started yelling at me.
“Q. What was he yelling at you, Joe?
“A. I can’t remember. I heard him yelling at me, you know.
“Q. Did you say anything back to him, Joe?
“A. All I said was, you know I talked, but I didn’t finish saying anything when he came right at me. I don’t know if he was going to hit me, but he was charging me, and that's when I hit him. (Emphasis supplied)
“Q. You hit him?
“A. Once.
“Q. Did you feel he was going to attack • you at that time?
“A. Yes, sir. He did attack me. He was coming at me, and I don’t know for what other reason he was. He was not walking, he was charging at me.
“Q. Did your mother do anything about this?
“A. I don’t think she had time to react or anything.
“Q. Was Mr. Menchaca on the other side of your mother from you?
“A. Yes, sir.
“Q. In other words this is where you were; this is where your mother was, and this is where Mr. Mencha-ca was? (Indicating)
“A. Yes, sir.
“Q. And when you were in those positions there, would you describe again what happened?
“A. That’s when Menchaca came at me. I saw him coming and that’s when I hit him, because I thought he was ' going to hit me. After that, Cortez grabbed me and Menchaca was going for the hair, and my mother was trying to get Menchaca off me. Then they put me in the cell, and after that they told my mother she had to leave.”

He further testified that he was not injured during the first fracas that occurred:

“Q. Were you injured in that fracas, or that fight?
“A. No, sir.
“Q. You were not injured?
“A. No.”

With regard to the second fight, it is evident again that the appellant struck the first blow. As the appellant continued on direct as follows:

“Q. How long did you stay in that cell, Joe?
“A. For about 20 minutes.
“Q. Then what happened after this 20 minutes?
“A. Then they called me out and gave me the order of arrest, the number for the order of arrest, and told me what the bond was. This was Cortez. Cortez was telling me this; telling me to take everything out of my pockets. I took everything out of my pockets and put it on the table, the desk, and then Menchaca —well, after this I asked ‘What are the charges?’, and at the same time Menchaca asked me to take off my belt. I said ‘First, let Cortez tell me the charges’. That’s when he came at me and I hit him. I was going to hit him again, but Cortez grabbed me. He was hitting me there and —” (Emphasis supplied)

Nowhere does the appellant use the words “attacking manner”; he simply states that Menchaca was “charging” at him without clarification. When his attorney questioned him as to his reason for believing he might be attacked, the following transpired:

“Q. Joe, you mentioned you were trying to defend yourself. Did you have any reason to believe that Mr. Men-chaca might try to attack you while you were there?
“A. Yes, sir.
“Q. Could you tell me what that reason is?
“A. Because I had heard how he—
“THE COURT: No, now let’s not get into that—
“BY MR. SAMES:
“Q. Joe, were you afraid of Mr. Mencha-ca at that time?
“A. No, sir. (Emphasis Supplied)
“Q. Was there anything about the way he came after you that gave you reason to believe he might hurt you?
“A. Yes, sir. The first time he attacked me, so I thought he would do the same thing.
“Q. So then they let you sit down. Did you sit down in a chair there?
“A. Yes, sir.
“Q. Was there any more fighting after that?
“A. No, sir.”

From an analysis of the foregoing portions of the appellant’s testimony, it is apparent that appellant hit Deputy Menchaca without provocation during the first fight and then attempts to justify his hitting of the deputy during the second fight by stating that Deputy Menchaca had attacked him the first time and he expected the same the second time the deputy came toward him. A direct contradiction to his testimony concerning the first fight wherein he stated he was not afraid of Deputy Mencha-. ca at that time, but afraid only the second time.

Mrs. Montemayor, the appellant’s mother, was even less precise in her testimony. After drawing a diagram on the blackboard showing the location of Deputy Menchaca and Cortez and the appellant when she arrived at the jail, she testified:

“Q. (By Mr. Sames): Were the three people talking when you came into the office there?
“A. My son was asking questions.
“Q. What was he asking about?
“A. Why he was being placed under arrest.
“Q. Did anyone else say anything about that time?
“A. Not at that time. Mr. Cortez only opened a drawer.
“Q. What was Mr. Menchaca doing then?
“A. He was standing on one side.
“Q. What happened immediately after that time?
“A. Mr. Menchaca told my son that there was nothing he should be asking about.
“Q. What did you (sic) son say?
“A. Well, at the moment when Mr. Men-chaca said that, then he advanced toward my son.
“Q. Was your son talking at that time?
“A. No.
“Q. I want to know what happened before Mr. Menchaca charged at him, if he charged at him?
“A. Only why was he being held; why was he being placed under arrest.
“Q. Was anyone talking in a loud voice?
“A. No.
“Q. What did Mr. Menchaca do then?
“A. He went behind me, and over to my son.
“Q. Would you describe exactly what Mr. Menchaca did?
“A. Well, certain parts, because I got very nervous. When he said some bad words to my son that he didn’t have to say, and when he charged toward my son, then I got very nervous. Because he had made an attempt to reach for his gun too.
“Q. Did he draw his gun?
“A. No.
“Q. Did Joe hit Mr. Menchaca?
“A. I didn’t see that.
“Q. Were you facing in such a position that it is possible that Joe may have hit Mr. Menchaca without your seeing it?
“A. Yes, without seeing him.
“Q. Did Mr. Menchaca and Joe get into a fight?
“A. Yes, well, when he defended himself.
“Q. What did Mr. Menchaca do?
“A. By the time I realized it they were already, and then Mr. Cortez got up.
“Q. What did Mr. Cortez do?
“A. He grabbed him from right here with the arm.
“Q. Was anyone else in the room at this time?
“A. At that time, no.”

Then, on cross-examination, she stated that she watched Deputy Menchaca charge her son, did not see what happened when he reached her son, and then saw her son defend himself.

The record in this cause is lengthy; there is a lot of testimony, much of which is conflicting. Yet, there remains no justification for allowing the appellant to attempt to impeach Deputy Menchaca for prior acts of misconduct in the case at bar. It is well established that evidence of specific acts of misconduct against an accused or a witness is not admissible for impeachment purposes. 1 Branch’s Ann.P.C.2d, Section 190, page 209; Garcia v. State, 454 S.W.2d 400 (Tex.Cr.App.1970); Tomlinson v. State, 163 Tex.Cr.R. 44, 289 S.W.2d 267 (1956); Hunter v. State, 168 Tex.Cr.R. 160, 324 S.W.2d 17 (1959).

The Uniform Rules of Evidence, Rule 22(d), prohibit use of particular acts of misconduct for the purpose of impeachment as stated in Texas Practice, Evidence, McCormick & Ray, Section 656, page 497:

“The rule has long been established and is now universally recognized that such specific acts may not be proved by the testimony of other witnesses. This rule rests upon two reasons of policy: (1) The admission of such evidence would tend to confuse the issues; (2) It would unfairly surprise the witness. He cannot be expected to come prepared to disprove every act of his life which may be alleged by the opposing party.”

It should also be noted that appellant did not show by his Bill of Exception whether or not the alleged beatings of Antu occurred years before or sometime after the incident in question.

This was a collateral matter not in issue in the case. Does the majority intend to hold that this is a good rule of evidence for defense witnesses including the accused? A good rule of evidence applies to any witness. Under this rule a prosecutor on cross-examination may ask the accused in an assault case if he has beaten up another person without mentioning the time in an unrelated matter. If he answers that he has not, the State then can bring in the person asked about and offer testimony that he was beaten up by the defendant. This would apply to any witness either for the prosecution or the defense to show credibility.

No error is shown. The judgment should be affirmed.

ON STATE’S MOTION FOR REHEARING

ROBERTS, Judge.

The State contends that our holding is in conflict with our recent decision in Hatley v. State, 533 S.W.2d 27 (Tex.Cr.App.1976). We disagree.

In Hatley, we rejected the State’s contention that its cross-examination of a defense witness opened the door to proof of the good reputation of the deceased because the State could not rely on its own questioning as an invitation to rebuttal. Furthermore, we held in that case that the defendant’s testimony did not constitute proof of the deceased’s reputation. Therefore, the only basis for rebuttal was the State’s cross-examination.

In the case at bar, appellant’s defense of self-defense was not fully developed because the trial court did not allow the appellant to testify about his knowledge of the fight between Deputy Menchaca and the witness Antu. As stated in the majority opinion on original submission, the appellant should have been allowed to testify as to this knowledge in order to show that he reasonably believed that force was immediately necessary to protect himself from Deputy Menchaca. If this had been permitted, the issue of Menchaca’s fight with Antu would not have been injected solely by the appellant's cross-examination of Menchaca. Consequently, Hatley is not applicable.

Furthermore, the State’s contention that the impeachment was on a collateral matter is based on the fact that there was no proof offered that the appellant knew of Mencha-ca’s assault upon Antu. If the appellant had been permitted to testify as to his knowledge of such assault, then it would have been put in issue by his testimony that it was a part of the basis for his belief that force was immediately necessary. Consequently, it would not have been a collateral matter.

For the reasons stated, the State’s contentions on rehearing are overruled.

DOUGLAS, Judge

(dissenting).

On original submission, the majority held that proffered testimony of an alleged isolated attack by Officer Menchaca upon Oscar Antu at some undesignated time which had no connection with the present case was admissible to effect the credibility of the officer. The majority now, on motion for rehearing, in an attempt to justify that erroneous holding, relies heavily upon self-defense.

There was no self-defense in the case. There was no testimony that Officer Men-cliaea was striking at or attacking appellant. Appellant testified that he was not afraid of Menchaca.

In McFarlane v. State, 159 Tex.Cr.R. 658, 266 S.W.2d 138 (1954), the conviction was for aggravated assault and this Court held that there is no right of self-defense against a mere appearance of a lesser attack but only against an actual attack. There is no testimony by any witness that Menchaca used or attempted to use unlawful force.

A good rule of evidence works both ways. If the majority follows its holding in future assault cases, the prosecution will be allowed to introduce evidence that a testifying defendant assaulted another at some unknown time even if such an assault would be collateral and have nothing in connection with the case on trial. This has not been the rule until today. There is no proffered testimony that this alleged attack was unprovoked and not in self-defense or as some of the majority sometimes write, there is no showing how the attacks were similar in nature. There is no showing how remote the alleged attack was. It appears that the majority is allowing the defense to try Officer Menchaca as a criminal generally-

No error has been shown. The State’s motion for rehearing should be granted and the judgment should be affirmed.

      . “(a) ... a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.”
      We note that appellant several times tried to testify as to all the circumstances contributing to his alleged reasonable belief that force was immediately necessary to protect himself against Menchaca’s use or attempted use of unlawful force. Without reaching the merits of a ground of error predicated upon the exclusion of such testimony by the trial court, we feel constrained to state our opinion that under the above quoted statute a defendant is entitled to present evidence relevant to such belief.