author: TATUM, Judge.

text:
    STATE of Tennessee, Appellant, v. John Russell LANN, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 2, 1978.
    Certiorari Denied by Supreme Court July 10, 1978.
    Brooks McLemore, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, David C. Wade, Asst. Dist. Atty., Memphis, for appellant.
    Raymond M. Briggs, Timothy R. DiScen-za, Memphis, for appellee.
   OPINION

TATUM, Judge.

The Governor of Tennessee issued his warrant authorizing the arrest and rendition of appellee pursuant to extradition requisitions from the Governor of Alabama. Appellee filed his petition for writ of habe-as corpus in the Criminal Court of Shelby County alleging that he was illegally restrained because the request of the Governor of Alabama does not conform to the laws of Tennessee and that he was not present in the State of Alabama during the days when the crime for which he was charged was committed. The Trial Judge found that the appellee was not in the State of Alabama when the crime was committed and granted habeas corpus. The appellant has brought writ of error to this court.

The only assignment of error is that the Trial Court erred in finding that appellee had sustained the burden of proof in establishing his absence from the demanding state at the time of the commission of the crime charged to have been committed in Alabama. The assignment is well taken.

We now summarize the evidence. Lieutenant Nick Abbott testified that the Opeli-ka, Alabama Police Department received a complaint from Ms. E. G. Clark of Opelika, Alabama that she gave a check in the sum of $691.80 to one of two men who had contracted with her to repair the roof on her home. The men left after doing only a small portion of the repair work. Lieutenant Abbott examined the roof and found that only a minimal amount of work had been done. Ms. Clark was 83 years of age, had bone deterioration, and could not travel to Memphis to testify.

Lieutenant Abbott introduced the check into evidence. It was dated 8 January 1975, made payable to “John R. Land.” The endorsement bore the signature “John R. Lan —” (the last letter is not discernible). Below the endorsement was a Mississippi driver’s license number and a birthdate, 8/1/13, that had been written on the check by a teller at the bank when the check was cashed in Opelika, Alabama. The driver’s license number was that of the appellee. A photograph of the appellee obtained from the Tupelo, Mississippi Police Department was shown to Ms. Clark together with five other photographs, and Ms. Clark selected the photograph of the appellee as being the person to whom she had given the check. The endorsement signature on the check was strikingly similar to known signatures of the appellee.

Ms. Gibson testified that the appellee was at her “beer joint” in Memphis, Tennessee, practically every day, staying “pretty much all day every day,” and that on 7 January 1975, appellee gave her a receipt for a payment made on a loan.

The appellee testified that on the 6th of January, 1975, he became involved in putting a new roof on the back of his house, and garage and the work actually began on 7 January 1975. His mother died on 23 December 1975 and he did not leave Memphis for any purpose from 30 to 45 days after his mother’s death. The appellee had on his person a Mississippi driver’s license bearing number [ XXX-XX-XXXX ] which was the same number written under the endorsement on the check. It also bore the date of his birth which was 8/1/13. The appellee testified that he lost his billfold the “latter part of 1974” and when it was recovered, his driver’s license was missing. He testified that “it must have been August of 75” when the license he had on his person was issued. The photocopy of the license the appellee had at trial shows no date of issue. The appellee testified that he was a carpenter by trade and had done “a little” roofing.

Officer T. D. Rogers of the Memphis Police Department testified that he bought a shotgun from appellee on 7 January 1975 in Memphis, Tennessee, and obtained a receipt, bearing that date, for the purchase price of the shotgun. On the next day, 8 January 1975, the appellee brought the officer some shotgun shells. The officer saw appellee almost every day in Memphis in January of 1975.

Mr. Dan Parham testified that he was in the roofing business and contracted with the appellee in Memphis to do work on his garage and home on 7 January 1975, and had a written contract bearing that date. The contract showed that it was paid 7 January 1975. The witness started the job on 7 January and finished it on 8 January and knows that the appellee was not out of the city of Memphis during January 1975. The witness testified that appellee did “contracting work” — more roofing than anything else. The witness did sub-contract work for appellee because appellee was suffering with cancer.

Earl Bullock testified that he was at Mr. Lann’s home in Memphis, Tennessee on 7 January and 8 January 1975, assisting Mr. Parham with the roof work. He saw the appellee in Memphis on those days.

R. M. Bradford testified that he worked at Mr. Lann’s home on 6 January and 7 January 1975 and gave him a receipt for payment for the work on 7 January 1975.

Mr. Warren E. Gene said that he had coffee with the appellee on 7 January and 8 January 1975 at Ms. Gibson’s establishment. He could be certain of the dates because during the “last three years he hasn’t missed one day being there,” except for one day when his mother died in December, 1974. The witness testified that the appel-lee was not ill with cancer except for a skin cancer on his nose that was removed at a doctor’s office three or four months before.

Appellee’s wife testified that the appellee was in Memphis every day through the month of January, 1975.

In determining whether extradition should be denied on the ground that the accused was not in the demanding state at the time of the commission of the crime, the rule governing the courts of the asylum state (Tennessee) is set out in State v. Turner, 207 Tenn. 93, 338 S.W.2d 558 (1960):

“By reading the evidence presented herein it clearly does not appear beyond a reasonable doubt that these defendants were not in the State of Georgia at the time of the alleged crime. The fact is one could reach the conclusion from the evidence that they were there. The evidence is more or less offered to support an alibi, and, of course, as we know, such evidence is easily concocted, and it is very easy for people to mistake a time. The case just cited cites other cases of when and where, and in one it is even shown that under habeas corpus proceedings when a man was not there for some days the court has held when the Governor has issued the extradition, as he may do on evidence that is not strictly legal, then these questions are primarily for the trial court where the crime is alleged to have been committed as a defense to the commission of the crime. In other words, in these habeas corpus proceedings we do not try the case as it is tried against the accused when he is accused jof a crime. It is tried by the courts of the asylum State on the petition for habeas corpus on the theory and basis to see whether or not the men were probably in the State at the time. What is meant by the proposition ‘beyond a reasonable doubt’ is that if it is shown beyond question, while the court is trying the case on habeas corpus in the asylum State, that the man was not there, then the writ would be granted, but where there is a question the writ would be denied.” [Emphasis supplied.]

In applying the above-quoted rule from State v. Turner, supra, we find that the evidence preponderates against the findings of the Trial Judge and find a strong question as to whether the appellee was in the demanding State at the time of the crime. The endorsement signature on the check given in Alabama is strikingly similar to the genuine signature of appellee. The person who cashed the check in Alabama on January 8, 1975, was in possession of the appellee’s driver’s license. The ap-pellee was in fact in the roof repair business. The victim in Alabama identified the appellee from six photographs as the person with whom she contracted in Alabama. This evidence preponderates against the Trial Judge’s finding.

The Trial Judge, in considering whether the appellee could have been in Memphis and also in Opelika on the 7th and 8th of January, said that, “It could very well be done.” The Trial Judge declined to make á determination as to whether the signature on the check given by Ms. Clark in Alabama was the signature of the appellee because he was not “an expert.” Further, the Trial Judge did not give weight to the identification evidence of the Alabama Policeman. The learned Trial Judge overlooked the proper standards in considering the evidence. McLaughlin v. State, 512 S.W.2d 657, (Tenn.Cr.App.1974).

The principles in McLaughlin v. State, supra that rules of evidence in extradition proceedings shall not be rigidly applied, and that evidence should be construed liberally in favor of the demanding state are necessitated by Article IV, Section 2 of the United States Constitution mandating interstate extradition. The constitutional provision would be thwarted were it not for these rules. It would be extremely impracticable if not impossible, for a demanding state to meet the technical rules of evidence in a trial in the asylum state and carry on a full scale trial with witnesses brought from the demanding state to the asylum state on such an issue as alibi. We sustain the State’s assignment of error.

The judgment of the Criminal Court is reversed and we order the Governor’s rendition warrant executed.


source: Caselaw Access Project

license: Public Domain

text:
    Arch POAG, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 28, 1978.
    Certiorari Denied by Supreme Court July 10, 1978.
    Tom H. Williams, Jr., Nashville, Ray Hollis, Waynesboro, for appellant.
    Brooks McLemore, Jr., Atty. Gen., William Oscar Kelly, Asst. Atty. Gen., Nashville, Elmer D. Davies, Jr., Dist. Atty. Gen., Franklin, Douglas T. Bates, III, Asst. Dist. Atty., Centerville, for appellee.
   OPINION

TATUM, Judge.

The appellant, Arch Poag, was convicted of cutting and removing timber of another in violation of T.C.A. § 39-4521 and his punishment was fixed at eleven months and twenty-nine days in the County Jail. The appellant made three assignments of error in which he insists that the evidence was insufficient to support his conviction and preponderated against the jury verdict. He-also claims that the State failed to prove that the prosecuting witness had legal title to the land or. was in actual or constructive possession of it when the timber was cut and the Trial Judge erred in refusing certain evidence offered on his behalf. The assignments are without merit.

We will summarize the facts accredited by the jury. On 29 September 1945, two tracts of land were conveyed to Noah Wiss by warranty deeds. One tract, consisting of approximately 200 acres, was located in Hickman County. The other tract consisting of 50 acres, was located in Lewis County, but adjoined the 200-acre tract. ■ Separate deeds were given for each tract. Mr. Wiss had a residence on the 200-acre tract and much of it was suitable for cultivation and pasture and used in this manner. The 50-acre tract was unenclosed, rolling woodland.

In late August, 1974, the appellant cut and removed approximately 65 hickory, poplar and oak trees from the central portion of the 50-acre tract. He marketed the timber at Turnbow’s Sawmill for $328.00.

The appellant testified that he and his wife had searched the public records of Lewis and Hickman County and concluded that there were from 300 to 600 acres of “vacant” (unowned) land in this area. They had a surveyor plat all of the deeds that they could find from the public records and then their son-in-law signed a quitclaim deed to them to the lands that they thought were not covered by any deed. The quitclaim deed was dated 10 August 1973, and was made and accepted only for the purpose of permitting the appellant and his wife to set up a claim to the land. The appellant’s son-in-iaw did not purport to have any interest in the land. The appellant did not pay taxes on the land.

Prior to cutting the timber, the appellant requested Mr. Wiss to pay one-half the expenses of having his 50-acre tract surveyed. Mr. Wiss refused, but on 24 August 1974, had the land surveyed by a licensed survey- or of his own choice. The appellant had Mr. Wiss’s land surveyed by his wife’s nephew who was a licensed surveyor. The appellant and his son-in-law accompanied Mr. Wiss’s surveyor in running the eastern line of the 50-acre tract and were present when the southeast corner was located.

We will first address the appellant’s assignment in which he insists that the State failed to prove that Mr. Wiss was the owner of the 50-acre tract. When one acquires different tracts of land conveyed by separate deeds, or by the same deed when the tracts are defined by district boundaries, the actual possession of one of the tracts is not extended by operation of law to the other, although the two tracts adjoin. Camp v. Riddle, 128 Tenn. 294, 160 S.W. 844 (1913); Lumber & Coal Co. v. Bass, 136 Tenn. 687, 191 S.W. 341 (1916). Thus, the actual possession of the 200-acre tract did not give Mr. Wiss constructive possession of the 50-acre tract. The State insists that Mr. Wiss’s legal title does not depend upon a theory of constructive possession.

The appellant relies on Yates v. State, 206 Tenn. 118, 332 S.W.2d 186 (1960). In that case, the Tennessee Supreme Court held that: “Title must be proved either (1) by deraignment from the State, or (2) from a common source, or (3) by adverse possession under some statute of limitations, or (4) adverse possession without any assurance of title for a period of twenty years or more from which under our common law a title will be presumed.”

It is the theory of the State that there was evidence upon which the jury could find Mr. Wiss to be the presumed owner of the land under T.C.A. § 28-209:

“28-209. Presumption of ownership from payment of taxes. — Any person holding any real estate or land of any kind, or any legal or equitable interest therein, who has paid, or who and those through whom he claims have paid, the state and county taxes on the same for more than twenty (20) years continuously prior to the date when any question arises in any of the courts of this state concerning the same, and who has had, or who and those through whom he claims have had, his deed, conveyance, grant or other assurance of title recorded in the register’s office of the county in which the land lies, for said period of more than twenty (20) years, shall be presumed pri-ma facie to be the legal owner of said land.”

There was evidence that Mr. Wiss sold the merchantable timber on the 50-acre tract in 1955 and again in 1970. In addition, he sold small amounts of timber from the tract from time to time. He cut firewood for his own use from the 50-acre tract and he also cut cedar posts for his own use. He sold minerals for a minimum of a five-year period in 1947 and permitted people to hunt on the land. He paid State and County taxes on the 50-acre tract for the past thirty years. His deed was dated 29 September 1945, and has been recorded since 1 March 1947.

There was credible evidence that the land was susceptible by its nature and character as a timber farm only. In Derryberry v. Ledford, 506 S.W.2d 152, 157 (Tenn.App.1973), the Court held:

“The land in dispute is unimproved and not under cultivation but the plaintiffs and their predecessors in title have exercised such rights and claims of ownership as they were capable of exercising over land of this nature and character.
It has been held that only such use and occupation of land under claim of ownership as it is susceptible of by its nature and character is necessary for constituting adverse possession or prescription.”

Also see, Moffitt v. Meeks, (1946), 29 Tenn.App. 609, 199 S.W.2d 463; Creech v. Jones, 37 Tenn. 631 (1858).

We hold that there was evidence upon which the jury could find actual possession by Mr. Wiss of the 50-acre tract considering the situation and nature of it, the uses to which it is adapted, and the sort of possession of which it is susceptible. There was no evidence that the appellant or any other person had actual or constructive possession of the land since it was acquired by Mr. Wiss. The evidence supports the finding of the jury that Mr. Wiss was the legal owner of the land by virtue of the presumption under T.C.A. § 28-209.

The appellant next contends that the State failed to prove any of the essential elements of the offense. The crime is defined:

“39-4521. Cutting or removing timber from land of another for purpose of marketing — Penalty.—It shall be a felony for anyone knowingly, willfully, and maliciously to cut, or to remove for the purpose of marketing the same, timber from the lands of another, without the consent of the owner of the timber. Anyone convicted of a violation of the provisions of this section shall be imprisoned in the penitentiary for a period of not less than one (1) year nor more than three (3) years.”

In State v. Smith, 119 Tenn. 521, 525, 526, 105 S.W. 68, 69 (1907), the words “knowingly, willfully and maliciously” were defined as follows:

“The word ‘knowingly’ has been construed by this court as being that state of mind wherein the person charged was in possession of facts under which he was aware he could not lawfully do the act whereof he was charged; knowledge of the law being necessarily imputed to him, as in all criminal cases. This was held in a case wherein the party was indicted for illegal voting under a statute which provided that ‘any person who shall knowingly vote at any election, not being at the time a qualified voter in the county in which he so votes, shall be adjudged guilty of a misdemeanor.’ etc. McGuire v. State, 7 Humph. 54. ‘Wilfully' means intentionally; that is, that the person do ing the act intended at the time to perform that act. The word ‘maliciously, ’ in the connection in which it appears, is used in the broad, legal sense of criminal intention, or that state of mind of a person who does a wrongful act intentionally or willfully, and without legal justification or excuse. The three terms taken together contemplate a case wherein a man acts advisedly, intentionally, and with criminal intent, in the sense in which the latter expression has been just explained. The word ‘feloniously’ fully covers the meaning of the word ‘maliciously’ just indicated.” [Emphasis supplied.]

We hold that the evidence summarized above justified the jury in finding that the appellant knowingly, willfully and maliciously cut the timber. There was substantial evidence that the appellant knew that Mr. Wiss owned the land. There was abundant evidence that the appellant knew that he did not own the land or the timber. There was overwhelming evidence that the appellant actually cut the timber without the permission of the owner or anyone he thought to be the owner.

The evidence is conclusive that the appellant did, in fact, market the timber and from this circumstance, the jury was entitled to infer that the appellant had this intent when the timber was cut. The number of trees cut and the fact that they were removed from the land further evidences the appellant’s intent to market the timber. An accused’s knowledge and intent may be proved by circumstantial evidence. Bennett v. State, 530 S.W.2d 788 (Tenn.Crim.App.1975); Hall v. State, 490 S.W.2d 495 (Tenn.1973).

The appellant has failed to demonstrate that the evidence preponderates against the jury verdict of guilty as to any essential element of the crime, including the ownership of the land and timber involved, as required by the familiar rules discussed in State v. Grace, 493 S.W.2d 474 (Tenn.1973); Sikes v. State, 524 S.W.2d 483 (Tenn.1975).

Finally, the appellant urges that the Trial Court erred in refusing to allow the testimony of Nick McClain, appellant’s son-in-law, as to certain statements by Mr. Wiss. The appellant offered evidence by Mr. McClain that he (McClain) was doing dozier work for Mr. Wiss about three-fourths of a mile from where the logs were cut. Mr. McClain testified outside the presence of the jury that when he reached the point near the southwest corner of the 200-acre tract and the northwest corner of the.50acre tract, Mr. Wiss said, “I think you have gone far enough, you have crossed my boundary I am afraid now.” He testified that the logs were cut, “Straight up behind from where I stopped building the roads.”

When Mr. Wiss testified, no foundation was laid for impeachment by asking him if he had made such statement to Mr. McClain. Thus, Mr. McClain’s testimony was not admissible to impeach the testimony of Mr. Wiss. James v. State, 506 S.W.2d 797 (Tenn.Cr.App.1973). Mr. Wiss was not a “prosecutor.” or a party. He was present in the Courtroom and actually testified. Evidence of the extra-judicial declaration comes within no exception to the hearsay evidence rule. Breeden v. Independent Fire Insurance Company, 530 S.W.2d 769 (Tenn.1975).

Moreover, the evidence of this witness was extremely vague. He does not specify whether Mr. Wiss was referring to the west boundary line of both tracts, the southern boundary line of the 200-acre tract, or a boundary of the 50-acre tract. In any event, we are convinced that this testimony" was not of such magnitude when viewed in the light of all of the evidence in the case, to have affected the result of the trial. T.C.A. § 27-117.

The judgment of the Criminal Court is affirmed.

BYERS, J., and FRED GILLIAM, Special Judge, concur.

OPINION ON PETITION-TO REHEAR

The appellant has filed a respectful Petition to Rehear. However, it consists of arguments previously considered and cites no new relevant authority. The Petition does not show any relevant material fact which was overlooked by the Court. For these reasons, the Petition to Rehear must be denied. Rule 32, Rules of Supreme Court (Adopted by this Court); Everett v. State, 528 S.W.2d 25 (Tenn.1975); State v. Robbins, 512 S.W.2d 265 (Tenn.1974).

      . The jury fixed punishment at eleven months and twenty-nine days under T.C.A. § 40-2703.

      . A presentment rather than an indictment was returned in this case. T.C.A. §§ 40-1704 and 40-1705 requiring a “prosecutor” are not applicable when the Grand Jury returns a presentment. State v. Davidson, 171 Tenn. 347, 103 S.W.2d 22 (1937); Blackwood v. State, 204 Tenn. 682, 325 S.W.2d 262 (1959).


author: GREENHILL, Chief Justice. JOHNSON, Justice,

text:
    WESTHEIMER INDEPENDENT SCHOOL DISTRICT, Petitioner, v. M. L. BROCKETTE, Commissioner of Education of Texas, et al., Respondents.
    No. B-6637.
    Supreme Court of Texas.
    March 29, 1978.
    Rehearing Denied July 26, 1978.

      Ross, Griggs & Harrison, James E. Ross, William A. Harrison and Charles W. Kelly, Houston, for petitioner.
    John L. Hill, Atty. Gen., David M. Kendall, First Asst. Atty. Gen., and Lynn Taylor, Asst. Atty. Gen., Austin, Bracewell & Patterson, William Key Wilde, Kelly Freís and J. Woodfin Jones, Houston, Dixie, Wolf & Hall, Robert E. Hall, Houston, for respondents.
   GREENHILL, Chief Justice.

The court is not unmindful of the sweeping judgment of December 8, 1977, by the Federal District Court in Houston, which, in effect, wipes out the Westheimer Independent School District. The basis of that injunction order is that the creation and operation of the district interferes with the desegregation orders of the federal courts under the Fourteenth Amendment to the U.S. Constitution. As will be discussed below, the desegregation questions involving the Westheimer Independent School District have been before the federal courts since 1973, and no such problems are before this court in this case.

What is before this court is the orderly disposition of cases of administrative law. The present suit was instituted by West-heimer Independent School District to obtain an order permanently enjoining the Commissioner of Education, M. L. Brockette, from holding a hearing or taking any other action which would put into question the creation or existence of Westheimer I.S.D. The Houston Independent School District and the Houston Teachers Association intervened and aligned themselves with the Commissioner. After a hearing, the trial court entered a permanent injunction which (1) enjoined the Commissioner from holding any hearing at any time to consider the validity of the creation of Westheimer I.S.D., and (2) prohibited the Commissioner, Houston I.S.D., and the Houston Teachers Association from interfering in any way with the operation of Westheimer I.S.D., except by way of appeal of the court’s injunction. The court of civil appeals reformed the trial court judgment so as to permit the parties to file an appeal of the order creating Westheimer I.S.D. in the appropriate district court. As reformed, the trial court judgment was affirmed. 546 S.W.2d 832. We reverse that portion of the judgment of the court of civil appeals which reforms the trial court judgment, and we affirm the judgment of the district court.

FACTS

On March 21, 1972, the County School Trustees of Harris County entered their order creating Westheimer I.S.D. from the territory of the Spring Branch Independent School District and the Houston I.S.D. While the Houston I.S.D. objected to the new School District, Spring Branch I.S.D. gave its permission for the use of 0.1 of a square mile of its territory, although it has recently attempted to withdraw its consent.

Houston I.S.D. prosecuted an administrative appeal to the Commissioner. The Commissioner reversed the order of the County School Trustees of Harris County. West-heimer I.S.D. then perfected an appeal of the Commissioner’s order to the State Board of Education. After a hearing, the State Board of Education, on October 7, 1972, reversed the Commissioner’s order and affirmed the order of the County School Trustees of Harris County. Houston I.S.D. has never perfected an appeal from this order of the State Board of Education to the district court of Travis County.

After the above legal actions, the formation of Westheimer I.S.D. was challenged in the federal courts. In 1973 the plaintiffs in Delores Ross et al. v. Houston Independent School District et al., Civil Action No. 10,-444, sought an injunction prohibiting the formation of Westheimer I.S.D. as it impeded the desegregation process in Houston I.S.D. In that action, all parties signed stipulations filed with the court in which the following was represented as undisputed evidence:

“[T]he administrative procedures prescribed by the State of Texas for the establishment of the Westheimer Independent School District were exhausted and thereupon, pursuant to the statutory law of Texas, the Westheimer Independent School District became established within the following territory in Harris County, Texas. . . . ”

On April 4, 1973, the United States Court for the Southern District issued an injunction prohibiting the interim board of trustees of Westheimer I.S.D. from taking any further steps toward creation or implementation of the District until after April 4, 1976, or three years later. On September 8, 1977, the Fifth Circuit Court of Appeals reinstated the injunction for an indefinite period, holding that such action would not interfere with the state administrative and judicial proceedings involved in the instant case.

The federal lawsuit was remanded to the Federal District Court and, as noted above, on December 8, 1977, that court entered a decree which permanently enjoined any further acts relating to the creation and organization of Westheimer Independent School District.

Prior to the renewal of the injunction by the federal courts, further proceedings were being instituted in the state administrative and judicial systems. On March 29, 1976, the board of education of Houston I.S.D. adopted a resolution authorizing the attorneys for Houston I.S.D. to “take whatever steps necessary to prevent the proposed Westheimer Independent School District from being created and from being operational.” In July and August 1976, counsel for Houston I.S.D. petitioned the County School Trustees of Harris County requesting that the Trustees reverse their 1972 order creating the Westheimer I.S.D. Ten points were raised in support of the petition for reversal; namely:

1. Spring Branch I.S.D. had withdrawn its consent to the detachment of its territory.
2. Testimony at the original hearing was not offered under oath and was not subject to cross-examination.
3. The 1972 order was not supported by findings of fact.
4. The Westheimer I.S.D. “has not been established nor has it begun operation,” and a majority of persons now residing in the area have not signed a petition asking for the creation of the proposed District.
5. The County School Trustees of Harris County acted upon erroneous information regarding the boundaries of the West-heimer I.S.D. and created isolated islands of territory not contiguous to the balance of the territory of the Houston I.S.D.
6. There was no administrative or educational justification for the creation of the Westheimer I.S.D.
7. An order of the United States District Court for the Eastern District [United States v. Texas, Civil Action No. 5281] prohibited the Commissioner and others from approving changes in school boundary lines designed to maintain or encourage a dual school system based upon race.
8. The creation of the Westheimer I.S.D. would have an adverse effect on the ability of the Houston I.S.D. to operate a “unitary school system.”
9. A recent survey revealed that a part of the Katy I.S.D. is included within the boundaries of the Westheimer I.S.D.
10. There existed a conflict of interest because the same counsel represented the Spring Branch I.S:D. and the County School Trustees of Harris County.

The County School Trustees of Harris County not only refused to reverse their position, but also refused to grant the request for a rehearing of the matter. Houston I.S.D. then appealed this decision to the Commissioner.

In its appeal to the Commissioner of the denial of a hearing by the County School Trustees of Harris County, Houston I.S.D. asserted the following seven points:

1. The withdrawal of the Spring Branch 1.5.D.⅛ consent to the attachment of 0.1 of a square mile of its territory for use in the creation of the proposed Westheimer 1.5.D. renders the creation of the West-heimer I.S.D. void under Section 19.263 of the Texas Education Code.
2. The creation of the proposed West-heimer I.S.D. is impermissible because such creation would isolate portions of the Houston I.S.D. north of Buffalo Bayou, those portions becoming noncontiguous islands many miles from the boundaries of the remaining Houston I.S.D.
3. The proposed Westheimer I.S.D. cannot be allowed to become operational without establishing administrative and educational justifications for its existence. No findings have been made that the proposed Westheimer I.S.D. will be able to provide an equal or higher quality of educational opportunity than is currently being provided by the Houston I.S.D. to the residents of the Westheimer area.
4. The County School Trustees of Harris County failed to give notice of the proposed creation of the Westheimer I.S.D. to the officials and trustees of the Katy I.S.D. and this voids the creation of the proposed Westheimer I.S.D. under Section 19.263(c) of the Texas Education Code. The County School Trustees of Harris County further failed to give the officials and trustees of the Katy I.S.D. an opportunity to be heard on the proposed creation of the Westheimer I.S.D. A portion of the Katy I.S.D. is included within the boundaries of the proposed Westheimer I.S.D.
5. The use of the Spring Branch I.S.D. territory or the territory of other school districts in the creation of the proposed Westheimer I.S.D. would be in violation of a desegregation order of the United States District Court for the Eastern District [United States v. Texas, supra] applicable to the Spring Branch I.S.D., the County School Trustees of Harris County, the Commissioner, and the State Board of Education as related to the change of school boundaries.
6. It would be a violation of the order of the United States District Court for the Eastern District [United States v. Texas, supra] to allow the Spring Branch I.S.D. territory to be used in the creation of the proposed Westheimer I.S.D., which would be a virtually all-white district which was created with the intention to discriminate and has the effect of discrimination against minorities. The creation of the proposed Westheimer I.S.D. constitutes a de jure act of racial discrimination and its creation and existence violates the order of the United States district court and the Fourteenth Amendment of the United States Constitution.
7. The creation of the proposed West-heimer I.S.D. would adversely affect the desegregation efforts of the Houston I.S.D. and would impermissively take territory of the Houston I.S.D.

The Commissioner set a hearing for November 4,1976. Westheimer I.S.D. adopted the position that the Commissioner had no jurisdiction to hear the matter. By letter dated October 19, 1976, to all interested parties, the Commissioner stated: “[A]ll parties should be prepared to offer what evidence they have in respect to any issue of fact or law raised in the Petition for Review and in any answers thereto or other proper pleadings that may then be on file.”

On October 18, 1976, Westheimer I.S.D. filed its petition in the instant case in the district court of Travis County seeking a permanent injunction against the Commissioner prohibiting any hearings “related in any way to the creation or existence of the Westheimer Independent School District or otherwise doing any act or thing the effect of which would be to put into question or attempt to put into question the creation or existence of the Westheimer Independent School District.” Houston I.S.D. and Houston Teachers Association intervened. With respect to these intervenors, the Westheimer I.S.D. prayed “that the relief sought against the Original Defendant, M. L. Brockette, be extended to apply also to the Houston Independent School District [and the Houston Teachers Association], and for such purpose, the Prayer of Plaintiff’s Original Petition is incorporated herein by reference, and for such other relief as Plaintiff may show itself justly entitled to receive.”

At the hearing in the district court of Travis County, Westheimer I.S.D. introduced into evidence the 1972 order of the County School Trustees of Harris County creating Westheimer I.S.D., the 1972 order of the Commissioner reversing the 1972 order of the Trustees, and the 1972 final order of the State Board of Education affirming the Trustees’ order. Westheimer I.S.D. maintained that a hearing by the Commissioner would result in irrevocable injury to it because the hearing would prevent the District from becoming operational and exercising its rights to provide education to the children in the District. Westheimer I.S.D. argued that the Commissioner was acting outside his authority since he could not hold a hearing regarding a final order of the State Board of Education. A former attorney of record for Westheimer I.S.D. and the then-president of the interim board of trustees of the Westheimer I.S.D., testified that these administrative actions created uncertainty regarding the stability and existence of Westheimer I.S.D. and seriously impaired the District’s ability to hire personnel, to obtain credit, or to issue bonds, if such bond issuance was necessitated. He acknowledged that Westheimer I.S.D. was not currently in operation and would not be operational until the impediments of further administrative actions were removed. After the hearing, the district court of Travis County entered a permanent injunction and made the following findings of fact and conclusions of law:

“I find that the petition for review filed by the Houston Independent School District in July of 1976 comes too late, is improper, is absolutely of no effect, is null and void, confers no authority to the Commissioner to hold any hearing involving the Westheimer Independent School District.
“I find that the Westheimer Independent School District was and is legally created and is entitled to begin operations without further hindrance from anyone.
“I find that unless the Commissioner of Education is enjoined from conducting the hearing concerning Westheimer Independent School District scheduled November 4, 1976, that irreparable injury will result to Westheimer Independent School District and that there is no adequate remedy at law.
“I, therefore, make the following order: that the special exceptions, pleas of jurisdiction and the plea in abatement heretofore filed by the defendants and interve-nors in this case are overruled. I also order M. L. Brockette as State Commissioner of Education be enjoined and is enjoined from holding the scheduled hearing on November 4, 1976, involving the Westheimer Independent School District, and that he be further enjoined from holding any hearing at any time to go back into the validity of the creation of the Westheimer Independent School District.
“I enjoin M. L. Brockette, the Houston Independent School District and the Association of Houston Teachers — enjoin them to cease and desist from interfering in any way with the operation of the Westheimer Independent School District, except they may appeal, of course, from the decision of this Court, which I expect, and they may take any action they deem proper in any federal court, which I likewise expect. ...”

The Commissioner, Houston I.S.D., and Houston Teachers Association appealed the decision of the trial court. The court of civil appeals upheld the injunction issued by the trial court to the extent it prohibited any hearing by the Commissioner. However, the court of civil appeals reformed the injunction to allow a challenge by Houston I.S.D. and others of the validity of West-heimer I.S.D.’s creation in the appropriate state district court.

All parties have appealed from the judgment of the court of civil appeals. The Commissioner, the Houston I.S.D., and the Houston Teachers Association challenge the issuance of an injunction which prohibits any further administrative hearings involving the Westheimer I.S.D. before the Commissioner of Education. The Westheimer I.S.D. challenges the reformation of the injunction by the court of civil appeals which permits the filing of an additional suit to challenge the validity of the Westheimer I.S.D. in the appropriate district court of this state.

INJUNCTION PROHIBITING THE HEARING BEFORE THE COMMISSION

• It is to be recalled that the Commissioner set a hearing for November 4, 1976, and the Westheimer I.S.D. adopted the position that the Commissioner had no jurisdiction to hear the matter. Houston I.S.D., the Commissioner, and Houston Teachers Association argue that the scheduled hearing before the Commissioner was not a judicially reviewable decision as the administrative remedies had not been exhausted. Courts generally hold that administrative bodies are entitled to and should exercise the duties and functions conferred by statute without interference from the courts. Texas State Board of Examiners in Optometry v. Carp, 162 Tex. 1, 343 S.W.2d 242 (1961), citing Turner v. Bennett, 108 S.W.2d 967 (Tex.Civ.App.-Beaumont 1937, no writ). It follows, however, that intervention by the court in administrative proceedings may be permissible when an agency is exercising authority beyond its statutorily conferred powers. Specifically, it has been held that when there is an absence of jurisdiction in an administrative agency, then the doctrine of exhaustion of administrative remedies is not applicable. McFarlin v. State, 272 S.W.2d 630 (Tex.Civ.App.-Waco 1954, writ ref’d n. r. e.). In the instant case this court must determine whether the injunction issued by the trial court as reformed by the court of civil appeals constitutes a prohibited interference with the administrative process. Resolution of this issue requires determination of the jurisdiction of the Commissioner to conduct such hearings.

Alternate grounds of jurisdiction of the Commissioner are presented by the parties. First, the Commissioner asserts jurisdiction under powers delegated by statute. Second, Houston I.S.D. argues jurisdiction on the grounds that the Commissioner retains the power to rescind void orders.

On the first contention, the Commissioner asserts that the refusal of the County School Trustees of Harris County to hold a hearing to review their 1972 order creating Westheimer I.S.D. is an action reviewable by the Commissioner under Section 11.13(a) of the Texas Education Code:

“Persons having any matter of dispute among them arising under the school laws of Texas or any person aggrieved by the school laws of Texas or by actions or decisions of any board of trustees or board of education may appeal in writing to the commissioner of education, who, after due notice to the parties interested, shall hold a hearing and render a decision without cost to the parties involved, but nothing contained in this section shall deprive any party of any legal remedy.”

In the instant case, however, the State Board of Education has issued a final order affirming the order of the County School Trustees of Harris County creating West-heimer I.S.D. Westheimer I.S.D. maintains that neither the County School Trustees of Harris County nor the Commissioner have any jurisdiction to review or rescind such a final mandate of the State Board of Education. The assertion of statutory powers of review by the Commissioner are untenable under the Texas Education Code. The powers of the Commissioner are specifically limited by the actions of the State Board of Education, as provided in Section 11.52(j) of the Texas Education Code:

“The commissioner of education shall observe and execute the mandates, prohibitions, and regulations established by law or by the State Board of Education in accordance with the law.”

Moreover, the courts have consistently supported the position that the Commissioner may not review valid orders of the State Board of Education. In Bevers v. Winfrey, 260 S.W. 627, 633 (Tex.Civ.App. — Beaumont 1924, no writ), the court held:

“A final order, when made, by the state board of education is binding on all interested parties as fully and as completely as a judgment of a court of competent jurisdiction, and such order must be obeyed in all its terms, unless modified or set aside by an appeal through the courts.”

Similarly, in Lawler v. Castroville Rural High School Dist., 233 S.W.2d 613, 616 (Tex.Civ.App. — San Antonio 1950, writ ref’d), the court considered an order by the county board of trustees that changed the site of a school when the previous site had been approved by the State Board of Education:

“The decision of the State Board of Education upon the matter at issue was not subject to being countermanded or set aside by a subsequent order of the local board of trustees. Under certain circumstances, a material change of conditions, such as the destruction of a proposed site, or a substantial shift in population, or some major alteration similar thereto, might authorize a local board to designate another site after action had been taken by the State Board. Under these circumstances the order would be a new one dealing with a different matter from that passed upon by the State Board. It is well settled that in the absence of an appeal to the judiciary and a showing of an abuse of discretion on the part of the State Superintendent and the State Board, the decision of superior administrative authority must be followed.”

Herein, the hearing by the Commissioner would constitute, in effect, a review of the 1972 final order of the State Board of Education, rather than a hearing on a new matter. Therefore, a review of the case law and the Texas Education Code supports the holding that the Commissioner does not have jurisdiction to review a valid and final order of the State Board of Education.

As the second or alternative ground of jurisdiction, Houston I.S.D. argues that where the order is void, the Commissioner has jurisdiction to rescind the order. As support for the proposition, Houston I.S.D. cites Jayton Rural High Sch. Dist. v. Girard Ind. Sch. Dist., 157 Tex. 115, 301 S.W.2d 80 (1957); Magnolia Petroleum Co. v. New Process P. Co., 129 Tex. 617, 104 S.W.2d 1106 (1937); and Lawler v. Castroville Rural High School Dist., supra. Upon analysis of these cases it is evident the reasoning on which they are based does not apply to the instant case. In Jayton the local board was rescinding its own void order, rather than an allegedly void final order of the State Board of Education. Magnolia involved the right of review by the Railroad Commission of its own unappealed final order. The court held that the Railroad Commission could review its order even though there were no changed conditions. In contrast to Jayton and Magnolia, the instant case is not an attempt by a governmental agency to rescind its own final order but is an attempt by a lower administrative office, the Commissioner, to rescind an order of a superior agency, the State Board of Education.

On the other hand, the Lawler decision is more clearly in point with the instant case. In Lawler the court held that a local board of trustees could only modify or change a final order of the State Board of Education if there was a material change of conditions. The problem posed in applying the rule in Lawler is determining when allegations present a “material change of conditions.” This court holds that a “material change of conditions” shall be narrowly construed, providing a basis for review in only limited circumstances. Such a policy recognizes that there are aspects of administrative orders which must be treated with flexibility, rather than with the binding effects of traditional res judicata. Limited flexibility is necessary to effectively compensate for the summary disposition of many administrative proceedings, the shifting nature of administrative policies, and the inherent problems posed in reaching hybrid administrative-judicial rulings. However, whenever possible the courts should support the finality of administrative orders in keeping with the public policy favoring an end to litigation, whether it be in the administrative or judicial process. Continued litigation of issues or piecemeal litigation should be discouraged. Therefore, to constitute material changes of conditions, the allegations must reflect that the changes have intervened since the rendition of the order and must not constitute issues which might have been raised in the prior hearing had adequate and diligent research been conducted to discover such facts.

Herein, Houston I.S.D. argues in its petition of review filed with the Commissioner that conditions have changed. In support of this assertion, it alleges primarily: (1) that Spring Branch I.S.D. has withdrawn its consent to the creation of West-heimer I.S.D.; (2) that a new survey indicates a portion of Katy I.S.D. did not consent; and (3) that the present Westheimer I.S.D. severs a portion of Houston I.S.D. so that it is not adjacent to the remainder of the District. This court holds that all such allegations could have been discovered and presented by Houston I.S.D. at the time of the prior hearings. This holding is impliedly admitted by Houston I.S.D., as it asserts the order was void ab-initio as a result of these conditions. Thus, Houston I.S.D. is not arguing the existence of material intervening changes of conditions which originated subsequent to the rendition of the order but is asserting conditions existing at the time the order was issued. Therefore, this court holds that absent a showing of material change of conditions intervening since the rendition of the final order of the Board of Education, the Commissioner has no jurisdiction to rescind, countermand or change the order, even should such order have been void ab initio.

The issue of whether the courts may properly intervene in the administrative process herein is not completely resolved by the determination that the Commissioner did not have jurisdiction to conduct the hearing on the validity of the order. Houston I.S.D. argues that even if the Commissioner did not have the authority to rescind the final order, he did have the authority to hold a hearing to determine whether he had jurisdiction over the matter. Normally, an administrative body or court would have authority to ascertain whether it had jurisdiction over a matter. Texas State Board of Examiners in Optometry v. Carp, supra. However, there is an exception to the rule, enunciated in City of Dallas v. Dixon, 365 S.W.2d 919 (Tex.1963), rev’d sub nom., Donovan v. Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964). In Dixon the City of Dallas sought a writ of prohibition to stop proceedings in a suit which was relitigating issues resolved in a prior judgment. The Texas Supreme Court reasoned that generally the defensive plea of res judicata is an adequate remedy in a second suit which relitigates issues of the first suit. However, the court held that circumstances may arise wherein the res judicata defense is not adequate, reasoning as follows:

“We should recognize, however, that a plea of res judicata as a defense to a second suit is not an adequate remedy for one holding rights under an appellate court judgment when an actual interference with enforcement of the judgment is coupled with the second suit, or when the mere filing and prosecution of the suit destroys the efficacy of the. judgment. In such instances we conceive it to be the duty, as well as the right, of the appellate court to exercise its original jurisdiction to enforce its judgment.” 365 S.W.2d 919 at 923.

Therefore, a second suit or hearing may properly be barred where it does no more than relitigate issues and where the mere filing of the action or request for a hearing destroys the effectiveness of the prior judgment or order.

Herein, having determined Houston I.S.D. is seeking to relitigate issues which were or could have been presented during the previous hearings, this court must now determine whether the conducting of a hearing by the Commissioner to determine jurisdiction would in any manner destroy the efficacy of the prior order. The effect of the actions of the State Board of Education was to affirm the order of the Harris County Board of Trustees which authorized the creation of Westheimer I.S.D. Therefore, the order constituted the ultimate administrative step in finalizing the validity of Westheimer I.S.D. Westheimer I.S.D. alleges that the validity of its creation would be clouded by any further hearings before the Commissioner, thereby preventing it from becoming operational. In support of its position, Westheimer I.S.D. argues that in order to become operational it must hire personnel, purchase supplies, and acquire sufficient credit to maintain operating costs. The interim president of the Westheimer I.S.D. testified that these duties are effectively thwarted by the pend-ency of any administrative review. To further demonstrate how the pending administrative actions cloud the validity or effectiveness of the order of the State Board of Education, Westheimer I.S.D. offered testimony on the effect such an administrative review would have on the issuance of bonds by the District. Bond issuance requires that the bond transcript be approved by the Attorney General. In the trial court hearing an Assistant Attorney General testified that the verification of the legality and validity of the creation of the School District is central to the approval of a bond issue. As a condition of approval, the Attorney General also requires a “no-litigation” certificate. The Assistant Attorney General testified that approval would be withheld if notification was received that administrative proceedings were pending before the Commissioner which in any way involved the validity of a school district. Although the interim president of the Westheimer I.S.D. admitted that Westheimer I.S.D. had no immediate plans to issue bonds, the. evidence on bond issuance demonstrates how the validity of the order of the State Board of Education serves as an indication of stability which is relied upon by government certifying agencies, as well as creditors or potential personnel. This evidence further illustrates how pending administrative hearings concerning the order negatively affect this essential indication of operational stability.

Thus, the mere pendency of a hearing before the Commissioner would cloud the validity of Westheimer I.S.D., would impair its financial standing, and would thwart its functioning in accordance with the duties and responsibilities of a duly created school district. Accordingly, this court holds that a hearing before the Commissioner undermines the efficacy of the order of the State Board of Education. Under the rule enunciated in Dixon, it was the duty of the trial court to protect the order of the State Board of Education and to bar all further administrative hearings of any nature before the Commissioner which concern the validity of Westheimer I.S.D. as created by the order. Therefore, such actions of the trial court did not constitute wrongful interference by the courts into the administrative process.

REFORMATION OF THE INJUNCTION

In addition to enjoining the Commissioner, Houston I.S.D., and Houston Teachers Association from pursuing further administrative review of the order creating West-heimer I.S.D., the trial court judgment also enjoined the parties “from interfering in any way with the operation of the West-heimer Independent School District,” except by way of appeal of such judgment. The court of civil appeals concluded that the trial court’s order precluded the parties from challenging the validity of the school district’s creation in the appropriate district court, and the injunction was reformed so as to permit such a challenge. Westheimer I.S.D. argues to this court that the injunction should not have been so reformed, and we agree.

In'leaving open the possibility of an action in the district court, the court of civil appeals apparently relied on its determination that “the validity vel non of the October 7 order was not put in issue in the injunctive proceedings in the district court.” 546 S.W.2d at 835. The parties are in dispute before this court as to whether the issue of Westheimer I.S.D.’s validity has been tried in this case. Westheimer I.S.D. argues that the pleadings, the evidence, and the arguments of counsel show that the issue was tried and resolved in the district court. The Final Order of the district court contains the following finding:

I find that the Westheimer Independent School District was and is legally created and is entitled to begin operations without further hindrance from anyone.

While this is strong support for Westheimer’s position, it is unnecessary for this court to decide whether the issue of the school district’s validity was resolved below. Even if such issue was not resolved, we hold that it is now too late, as a matter of law, for the parties to file a suit in the district court to challenge the administrative order which created the Westheimer Independent School District.

Section 11.13(c) of the Texas Education Code is the provision giving persons aggrieved by orders of the State Board of Education the right to appeal such orders to the district court in Travis County. When administrative procedures within the state educational system have been exhausted, an appeal under this provision becomes the appropriate method of seeking further review. As discussed at length above, the administrative remedies concerning the creation of Westheimer I.S.D. were exhausted on October 7,1972, with the final order of the State Board of Education. At that time the parties could have appealed the order to the district court in Travis County. The fact is undisputed that they did not make such an appeal, and they have not done so to this day.

Section 11.13(c) of the Texas Education Code does not prescribe a time limit within which an aggrieved party must file an appeal in the district court. However, Texas law is firmly established that, when the statute fails to prescribe such a time limit, an appeal must be taken within a reasonable time. Midas Oil Co. v. Stanolind Oil & Gas Co., 142 Tex. 417, 179 S.W.2d 243 (1944); Board of Water Engineers v. Colorado Municipal Water District, 152 Tex. 77, 254 S.W.2d 369 (1953); Railroad Commission v. Aluminum Company of America, 380 S.W.2d 599 (Tex.1964); Harkness v. Hutcherson, 90 Tex. 383, 38 S.W. 1120 (1897). There is ample authority for holding that the undisputed delay in this case is unreasonable as a matter of law.

The decision most frequently cited in support of this type of holding is Board of Water Engineers v. Colorado Municipal Water District, 152 Tex. 77, 254 S.W.2d 369 (1953). That case involved a seven month delay in appealing an administrative order creating a water district. In declaring the order invalid, the trial court impliedly found that the delay in bringing the appeal was not unreasonable. This court set aside the trial court judgment and dismissed the case, holding that the facts demonstrated an unreasonable delay as a matter of law. Among the factors persuasive to the court were the fact that the parties tacitly recognized the district’s existence and the fact that the parties could have filed and prosecuted their appeal immediately after the order was entered. In the present ease, the parties’ recognition of Westheimer I.S.D.’s existence was more than tacit. Counsel for both parties represented to the Federal Court in 1973 that,

the administrative procedures for the establishment of the Westheimer Independent School District were exhausted and . . . the Westheimer Independent School District became established.

It was at least partially in reliance on this stipulation that the Federal Court issued its injunction. And, as noticed above, the parties in this suit could well have prosecuted their appeal in 1972 when the order was entered.

Another significant case is Railroad Commission v. Aluminum Company of America,. 380 S.W.2d 599 (Tex.1964), in which this court was faced with what was, in effect, an attempt in 1960 to appeal orders entered by the Railroad Commission in 1956. The trial court and the court of civil appeals had sustained the attack on the orders and enjoined their enforcement. This court reversed the judgments below and sustained the Railroad Commission’s contention that the evidence showed, as a matter of law, that the appeal was barred by unreasonable delay. The court stated the rule that one appealing from any order of the Railroad Commission must proceed with reasonable diligence, and Alcoa was held to have a right to seek revision of the orders only upon a showing of changed conditions. As this court has done earlier in the present opinion, the court in the Alcoa case determined that the allegations relating to changed conditions were matters that could have been raised at the time of the original hearing. Public policy was viewed as prohibiting judicial interference with the longstanding orders of the Railroad Commission.

A holding quite similar to that in the Alcoa case is Pan American Petroleum Corp. v. Railroad Commission, 335 S.W.2d 425 (Tex.Civ.App.—Austin 1960, writ ref’d n. r. e.). In 1959 the Railroad Commission entered an order refusing to revise certain allocation formulas that had been fixed in 1956. Upon Pan American’s appeal of the Commission’s order, the Commission argued that Pan American’s failure to take prior legal action to set aside the 1956 orders was an unreasonable delay as a matter of law. The court of civil appeals agreed, noting, “There is no dispute as to the relevant facts in the time and sequence in which the events occurred.” 335 S.W.2d at 428. Similarly, there is no dispute in the present case that the order which the parties would be attacking, if a suit were filed in the district court, was entered in October of 1972. Thus a delay of more than five years would necessarily be involved.

Other decisions which have held a delay in appealing an administrative order to be unreasonable as a matter of law include Combs v. State, 526 S.W.2d 648 (Tex.Civ.App. — Austin 1975, writ ref’d n. r. e.). The court in that case held, “Appellant’s delay of three years, three months, and eighteen days from the date of the entry of the special order to the date of filing of his petition in the.district court is, as a matter of law, unreasonable.” 526 S.W.2d at 651. Another example is Heaberlin v. Joaquin Independent School District, 95 S.W.2d 1339 (Tex.Civ.App. — Beaumont 1936, no writ), which involved an appeal to a county school superintendent from an order dismissing the appellants from their teaching positions. The court held, “The attempted appeal of appellants 150 days after the order of dismissal was, as a matter of law, an unreasonable delay, came too late, and the refusal of the county superintendent to consider same was correct.” 95 S.W.2d at 1341. Finally, the following language in the court of civil appeals’ opinion in the present case should be noted:

“Though Tex.Educ.Code Ann. § 11.13(c) fixes no time limit during which the aggrieved party must file an appeal, such an appeal must be brought within a reasonable time, [citations omitted]. The order of the State Board of Education is now final because a delay of four years is, as a matter of law, unreasonable.”

While the court’s conclusion following this holding was that further .administrative proceedings were precluded, § 11.13(e) is the provision for appeals to the courts; the holding should also preclude further judicial proceedings.

In addition to cases in which the courts have found unreasonable delays as a matter of law, there are a number of holdings which have upheld trial court findings of unreasonable delay. In Midas Oil Co. v. Stanolind Oil & Gas Co., 142 Tex. 417, 179 S.W .2d 243 (1944), this court held that, in light of a jury finding that four months was an unreasonable delay, the party had lost its right to prosecute a suit to set aside a Railroad Commission order. In Red Arrow Freight Lines v. Missouri-Pacific Freight Transportation Co., 166 S.W.2d 747 (Tex.Civ.App.—Austin 1942, writ ref’d), a trial court finding that nine months was an unreasonable delay was upheld. Similar holdings have been made in cases involving appeals from decisions of school system officials. For example, in Watkins v. Huff, 63 S.W. 922 (Tex.Civ.App.1901, writ dism’d 94 Tex. 631, 64 S.W. 682), the court sustained the trial court’s finding that a two week delay in appealing a decision of the state superintendent of public education was too long. Other cases which have given indications as to what is an unreasonable delay in appealing decisions of school system officials are Harkness v. Hutcherson, 90 Tex. 383, 38 S.W. 1120 (1897) (four months); Los Angeles Heights Independent School District v. Chestnut, 287 S.W. 693 (Tex.Civ.App.—San Antonio 1926, no writ) (two weeks); and Bear v. Donna Independent School District, 85 S.W.2d 797 (Tex. Civ.App.—San Antonio 1935, writ dism’d) (eight months).

In the present case, the trial court made the following findings with reference to the State Board of Education’s order of October 7, 1972:

I find that the order has not been appealed from within the time provided by statute and has not been appealed from under the provisions of Article 11.13 of the Education Code.
I find that the petition for review filed by the Houston Independent School District comes too late.

These holdings, though termed “findings of law,” demonstrate at least an implied finding by thé trial court that the parties had delayed unreasonably in seeking further administrative review of the order in question. The same rationale which leads to such a conclusion by the trial court also leads inevitably to the conclusion that it is now too late to bring an appeal to the courts. This result is demanded by the strong public policy favoring an end to litigation. There are rarely circumstances which would justify an appeal, in 1978 or later, from an administrative order entered in 1972; and the record before us adequately demonstrates that such circumstances are not present in this case.

The judgment of the court of civil appeals is reversed, and the judgment of the district court is affirmed.

JOHNSON, Justice,

dissenting.

This dissent is respectfully submitted. This writer has no argument with that portion of the majority opinion entitled “INJUNCTION PROHIBITING THE HEARING BEFORE THE COMMISSIONER” which holds that the administrative remedies concerning the validity of the ere-ation of Westheimer Independent School District have been exhausted.

However,- this writer disagrees with that portion of the opinion entitled “REFORMATION OF THE INJUNCTION” in the strongest possible terms. The majority states that it is “not unmindful” of the judgment of the federal district court in Ross v. Houston Independent School District. Neither should this court be unmindful that appeal might be made from the federal district court’s judgment with the ultimate result being wholly unknown. The federal district court did make certain findings, however, and among them was the determination that the “formation of WISD would be a major step towards the creation of a deteriorating central city” and that “[t]he formation of WISD and its continued existence have been motivated by and are still motivated by a demonstrated discriminatory purpose.”

The majority opinion in the instant case, coupled with a reversal of Ross v. Houston Independent School District, supra, by the Fifth Circuit Court of Appeals, would implement the results so graphically described by Federal District Judge Cowan. This court cannot blind itself to those results by asserting that the instant case presents nothing more than “the orderly disposition of cases of administrative law.”

The majority holds that Houston Independent School District may not challenge through judicial appeal the validity of the order creating Westheimer Independent School District because Houston I.S.D. has as a matter of law delayed in bringing such appeal for an unreasonable time. The majority asserts “[tjhere is ample authority for holding that the undisputed delay in this case is unreasonable as a matter of law.” This writer submits that (1) the majority opinion has no basis; it is altogether premature and unsupported; (2) all the authority, including each and every case cited by the majority, is to the contrary of the majority holding; and (3) Westheimer Independent School District brings no point of error before this court, and indeed makes no contention before this court, justifying or supporting the majority determination.

THE MAJORITY OPINION HAS NO BASIS — IS PREMATURE AND UNSUPPORTED

The majority has determined that the courts do not have jurisdiction to hear an appeal from the administrative order creating Westheimer I.S.D. because the parties have delayed their appeal for an unreasonable period of time as a matter of law. The majority holding has no basis; it is premature and unsupported for the elementary reason that this court does not have before it an appeal of the order creating West-heimer I.S.D What this court does have before it is the request that the court affirm or reverse a permanent injunction which is predicated solely on a determination that the administrative remedies have been exhausted.

In its simplest terms, the instant case was brought in the district court by Westheimer 1.5.D. to obtain an injunction prohibiting the Commissioner of Education, Houston 1.5.D., and Houston Teachers Association from conducting further hearings concerning the creation or existence of Westheimer 1.5.D. The district court issued a broad injunction prohibiting further administrative or judicial proceedings which would interfere with the operation of Westheimer I.S.D. The court of civil appeals reformed the injunction, narrowing its scope to the issues actually before the court and limiting its prohibition to administrative remedies only; by so doing, the court of civil appeals permitted a possible future appeal to the district court challenging the creation of Westheimer I.S.D. Such an appeal has not as yet been instituted. Accordingly, this court should only be considering the merits and scope of the injunctive order.

Any resolution of the jurisdictional questions that might arise if the order creating Westheimer I.S.D. were appealed is not only premature at this time, but also unsupported by the factual or legal development of the instant cause of action. There is no appeal of the order creating Westheimer I.S.D. involved in the instant cause of action. No party pleaded the issue of validity or invalidity of the order creating West-heimer I.S.D. The petition of review, which was filed with the Commissioner by Houston I.S.D., was placed into evidence in the trial court by Westheimer I.S.D., not by Houston I.S.D. or other parties opposing the creation of Westheimer I.S.D. Although such petition of review alleges possible jurisdictional deficiencies in the creation of Westheimer I.S.D., the petition was utilized by Westheimer I.S.D. to show the nature of the jurisdiction being invoked by the Commissioner, not to show the accuracy of the allegations therein. Furthermore, the issue was not tried by consent as there was no development of the evidence to prove or disprove the question of validity. For example, no party introduced evidence to document the allegation in the petition of review that Katy I.S.D. had not been given notice or that territory in Katy I.S.D. was now included in Westheimer I.S.D. In addition to the general failure to plead or to prove elements concerning the validity of Westheimer I.S.D., the absence of the issue was established by the admissions of counsel and interested witnesses that the only ruling being sought in the trial court was the determination of whether administrative remedies had been exhausted. Therefore, a review of the pleadings, evidence, testimony, and arguments of counsel clearly demonstrates that this court is not presented with an appeal to the courts of an administrative order.

Accordingly, a determination that there has been an unreasonable delay as a matter of law in bringing an appeal is a judgment which goes beyond the matter in dispute in the trial court. Furthermore, the jurisdictional issue has not been raised in this court. None of the parties ask this court to rule the delay unreasonable as a matter of law; nor do they direct this court to any of the authority relied upon by the majority in ruling the delay unreasonable as a matter of law. Therefore, by ruling on the jurisdictional issue the majority has decided an issue not asserted by any party at any time during these proceedings. More significantly, the majority would proclaim such ruling to be dispositive of this case.

For the majority to so rule is to act prematurely and to overreach this court’s authority in the instant cause of action. Oil Field Haulers Ass’n v. Railroad Commission, 381 S.W.2d 183 (Tex.1964); Radcliff v. Clemons, 265 S.W.2d 182 (Tex.Civ.App.— Galveston 1954, writ ref’d n. r. e.), citing 4 McDonald, Texas Civil Practice § 17.27; Tex.R.Civ.P. 301. The resolution of this ■ jurisdictional question should only be resolved by a state court presented with the judicial appeal of the order creating West-heimer I.S.D. after development of all the necessary issues and evidence.

THE MAJORITY OPINION IS CONTRARY TO CONTROLLING AUTHORITY

Not only has the majority made a determination without basis and prematurely considered the issue of timely appeal from an administrative order, but in so doing it has determined the issue contrary to controlling authority, including those decisions upon which the majority relies. At the outset it must be noted that this is a case for which there is no timetable for appeal or limitation period applicable by statute. In such cases the courts have refrained from imposing arbitrary time limitations and have held that such cases will be governed by the more flexible standard which sanctions appeals prosecuted within a reasonable period of time. Nevertheless, the majority adheres to the rote application of time limitations and holds that the time element is the only factor to be considered in determining whether a delay to appeal an administrative order is unreasonable. The courts of this state, however, have consistently held that the time factor is only one of the elements to be considered in determining whether the delay was unreasonable.

The supreme court in Midas Oil Co. v. Stanolind Oil & Gas Co., 142 Tex. 417, 179 S.W.2d 243 (1944), established the principle that in the absence of a specific timetable for appeal, appeals from administrative orders must be brought within a reasonable time. The court in Midas held that a determination of whether a delay is reasonable or unreasonable depends upon the circumstances of the case and is a fact question to be resolved by the jury or the trier of fact. The Midas court specifically discussed the types of circumstances that the court deemed significant in determining the reasonableness of delay in appealing an administrative order: (1) the need for immediate action or implementation by the party relying upon the order; and (2) harm to the party relying upon the order caused by the delay in appeal. Basically these guidelines establish an estoppel theory whereby facts must exist which not only constitute a delay, but also demonstrate that the party relying upon the order would be harmed by the delay in appealing the administrative order. Humble Oil & Refining Co. v. Trapp, 194 S.W.2d 781 (Tex.Civ.App.—Austin 1946, writ ref’d).

Neither the holding nor the principles established in Midas have been overruled. Quite the contrary, Midas is consistently cited as controlling and its principles were followed explicitly by the courts in Board of Water Engineers v. Colorado River M.W. Dist., 152 Tex. 77, 254 S.W.2d 369 (1953), Combs v. State, 526 S.W.2d 648 (Tex.Civ. App.—Austin 1976), cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 375 (1976), and Pan American Petroleum Corp. v. Railroad Commission, 335 S.W.2d 425 (Tex.Civ. App.—Austin 1960, writ ref’d n. r. e.). These are three of the very cases relied upon by the majority. These cases, as well as the courts in Railroad Commission v. Aluminum Company of America, 380 S.W.2d 599 (Tex.1964), and Red Arrow Freight L. v. Missouri-Pacific Fr. Transp. Co., 166 S.W.2d 747 (Tex.Civ.App. — Austin 1942, writ ref’d), have determined that a delay is unreasonable only after extensive development and consideration of all the attending facts.

As previously noted, there is no timetable for appeal or limitation period found in the statute or elsewhere which is applicable to the Commissioner of Education in this case. Nevertheless, the majority cites two cases which involve thirty-day limitation periods for appeal. Both Heaberlin v. Joaquin Independent School Dist. No. 38, 95 S.W.2d 1339 (Tex.Civ.App.—Beaumont 1936, no writ), and Bear v. Donna Independent School Dist., 85 S.W.2d 797 (Tex.Civ.App.— San Antonio 1935, writ dism’d), involved specific regulations of the superintendent of education which provide that an appeal should be brought within thirty days after the issuance of the order. It is one thing to say that a delay in appealing an administrative order is unreasonable as a matter of law when a specific thirty-day limitation period has been violated; it is another matter entirely to hold an appeal untimely as a matter of law when the uniform and consistent holding of the courts of this state, including this court, is that unreasonableness is determined as a matter of fact, by the trier of fact, and after all the facts are developed.

The majority has ruled that the delay in appealing is unreasonable as a matter of law without permitting the parties any opportunity to develop the fact questions concerning whether the order creating West-heimer I.S.D. was immediately relied upon and whether the delay to appeal would cause harm to Westheimer I.S.D. or the public. Indeed, the undeveloped record before this court raises fact questions concerning these issues which wholly preclude any ruling as a matter of law. It is to be recalled that Westheimer I.S.D. initially received a favorable ruling from the State Board of Education. Nevertheless, West-heimer I.S.D. was not in a position to act immediately upon receiving the ruling from the State Board of Education since it was faced with an injunction ordered by the federal court which prohibited the implementation of the order creating Westheimer I.S.D. for three years. It is noted, parenthetically, that Westheimer I.S.D. made no appeal from such injunction. As Westheimer I.S.D. was not and, of course, could not be operational during these three years, what possible harm was being suffered during this interim period? It is, at the very least, arguable that no additional harm would be suffered by the prosecuting of an appeal after the injunction was lifted. These circumstances unquestionably present fact issues concerning the reasonableness of the delay which should be presented to a jury or a fact finder in order to determine whether Houston I.S.D. is barred from judicially appealing the order of the State Board of Education. In the instant case this court has before it very limited evidence produced at a hearing on a permanent injunction concerning administrative remedies. Such evidence is abbreviated and in no way develops those facts essential to a determination of the estoppel principles governing whether a delay to appeal is unreasonable. Therefore, the instant record is wholly inadequate for a fair determination of the jurisdictional issues which may arise if the order creating Westheimer I.S.D. is appealed to a state court.

THE MAJORITY OPINION IS UNRELATED TO WESTHEIMER I.S.D.’s POINTS OF ERROR

The majority has reversed the court of civil appeals on grounds which were not' asserted by any party in written briefs or urged by any party during oral argument. Westheimer I.S.D. is the party objecting to the reformation of the injunction which allows future judicial appeal of the order creating the School District. In its points of error concerning the reformation of the injunction, Westheimer I.S.D. alleges several theories of error; /. e., estoppel by judgment, res judicata, collateral attack, statute of limitations,- and compulsory counterclaim. However, at no point has Westheimer I.S.D. urged this court to rule the delay to appeal unreasonable as a matter of law, nor does Westheimer I.S.D. cite any of the authorities relied upon by the majority in so ruling. The majority, therefore, in straining to reach the result herein obtained has gone beyond the points of error urged by Westheimer I.S.D. and indeed beyond the scope of any contention made by Westheimer I.S.D. in its briefs or otherwise.

The majority maintains that its decision is based upon Westheimer I.S.D.’s unbriefed argument that there should be an end to litigation and upon the “strong public policy ■ favoring an end to litigation.” Each of these theories is meritorious when utilized in a cause of action which properly develops the issues and facts to support the application of such principles. Unfortunately, this court does not have before it such development of the instant case. Public interest and public policy are not static and readily definable, but are, as a rule, relative to the issues and interest developed in a controversy. The parties herein have not been afforded an opportunity to plead or prove the harm caused by the delay in appealing, nor has there been any proof that public interest demands that this delay be held unreasonable. On the contrary, when extensive evidence was presented to the federal district court there appeared to be adequate evidence that the public interest demanded that the formation of Westheimer I.S.D. be reviewed as it constituted a serious “socio-economic threat.”

Accordingly, this writer would affirm the judgment of the court of civil appeals which permits a possible future challenge to the validity of the creation of Westheimer I.S.D. in an appropriate state district court.

Justices STEAKLEY and DENTON, join in this dissent.

      . Ross v. Houston Independent School District, Civil Action No. 10,444 in the U.S. District Court for the Southern District of Texas, Houston Division.

      . The Fifth Circuit consolidated Civil Actions Nos. 77-1069, 77-1367, 77-1843, and 77-2281 in rendering its opinion in Ross et al. v. Houston Independent School District et al., 559 F.2d 937 (5th Cir. 1977). In refusing to abstain, the Fifth Circuit made the following statement concerning the relationship between the issues presented in the federal and the state actions: “No question of comity between the court systems exists. Issues pending before state tribunals are principally, if not exclusively, issues of state law which have only the most indirect bearing on the resolution of the equitable issues governing the administration of the desegregation process. It is not the intention of this court to reach or to decide any part of these state law issues, and there will be no reason for the district court to do so on remand. The tribunals and officials of the State of Texas are completely free to proceed with the resolution of questions presented to them or to defer or dismiss those proceedings as they may see fit.”

      . The former attorney of record for the West-heimer I.S.D. and the then-president of the interim board of trustees of the Westheimer I.S.D. will be hereinafter referred to as the “interim president.”

      . Donovan v. Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964), reversed Dixon but did not affect this reasoning on relitigation of issues. The reversal in Donovan was based upon state court interference in the federal court system.

      . Ross v. Houston Independent School District, Civil Action No. 10,444, - F.Supp. - in the U.S. District Court for the Southern District of Texas, Houston Division.


author: PER CURIAM.

text:
    C. L. B. and L. J. B., Petitioners, v. STATE of Texas, Respondent.
    No. B-7417.
    Supreme Court of Texas.
    June 14, 1978.
    Rehearing Denied July 12, 1978.

      Walter W. Steele, Jr., Maxine T. McConnell and Cynthia Hollingsworth, Dallas, for petitioners.
    Henry Wade, Dist. Atty., Maridell J. Templeton, Asst. Dist. Atty., Dallas, for respondent.
   PER CURIAM.

State filed its petitions alleging that. C_ L_ B_ and L_ J_ B_ engaged in delinquent conduct by committing a theft. The juveniles filed motions for summary judgment supported by their affidavits. State did not respond to the motions. The trial court granted the motions and dismissed the State’s petitions with prejudice. The court of civil appeals held that the State had a right to appeal, but reversed and remanded the summary judgments on two grounds which we do not reach. 561 S.W.2d 547.

The court of civil appeals concluded that the State was granted a right of appeal in juvenile delinquency proceedings by Tex. Rev.Civ.Stat.Ann. art. 2249, which provides that “An appeal or Writ of Error may be taken to the Court of Civil Appeals from every final judgment of the district court in civil cases.” The court reasoned that this general right of appeal was applicable to delinquency proceedings in that .such proceedings are civil in nature.

The right of appeal in juvenile proceedings is specifically controlled by Section 56.-01 of the Texas Family Code. Section (c) thereof provides that “An appeal may be taken by or on behalf of the child” from certain enumerated orders. On the other hand, the Code does not grant the State a right of appeal. This omission is particularly significant when compared with the predecessor statute, Art. 2238-1, Sec. 21, which granted the right of appeal to “any party aggrieved”. We conclude that by this omission the legislature did not grant the State the right to appeal from adverse judgments in juvenile delinquency proceedings. See also, McKnight, Texas Family Law Symposium, 5 Tex.Tech.L.Rev. 582 (1974).

The holding of the court of civil appeals is contrary to Art. 56.01 of the Texas Family Code. Accordingly, the application for writ of error is granted, and without hearing oral argument, the judgment of the court of civil appeals is reversed and that of the trial court affirmed. Rule 483, Tex.R. Civ.Proc.


text:
    UNITED STATES of America, Petitioner, v. Dorothy M. STELTER, Respondent.
    No. B-6997.
    Supreme Court of Texas.
    June 21, 1978.
    Rehearing Denied July 19, 1978.
    Jamie C. Boyd, U. S. Atty., Hugh P. Shovlin, Asst. U. S. Atty., San Antonio, for petitioner.
    Charles A. Deason, Jr., El Paso, for respondent.
   GREENHILL, Chief Justice.

The United States, as a sovereign, cannot be sued without its consent. Unless it so consents, it is immune from suit.

The problem in this case is whether the United States has given its consent to be sued in the garnishment proceeding before us. We hold that it has not. While the result here is regrettable, it is our duty to hold that the plea of sovereign immunity made by the U. S. attorney must be sustained. Accordingly we must reverse the judgment of the court of civil appeals. 553 S.W.2d 227.

The background of the case is this: Dorothy and Robert W. Stelter, who had no children, were divorced in El Paso in 1973. Dorothy was awarded their home in El Paso which had been community property, an automobile, all of her civil service retirement benefits, her life insurance policies, her personal effects and a German Shepard dog. Robert was awarded a pickup truck and his personal effects. The balances due on certain debts were allocated between them.

Robert had been retired from the U. S. military after .twenty years of service. He was married to Dorothy during fourteen of those years. In the decree of divorce, he was ordered to pay into the registry of the court %oths of his retirement pay within five days after its receipt; and such sums were then to be paid to Dorothy. The judgment of divorce was not appealed by either party and is final.

Robert, however, has disobeyed the orders of the Texas divorce court to pay the portion of the retirement pay into the registry of the court; and he has left the State. Dorothy has, therefore, not been paid the amounts due her; and Robert is beyond the jurisdiction of. our courts to enforce the divorce decree.

Dorothy Stelter has brought this garnishment suit against the United States. Her prayer is that the United States be required to pay her directly her portion of the military retirement benefits. This brings us to the Act of Congress which she contends constitutes a consent of the government to be sued for this purpose.

The Act is found in 42 United States Code, Section 659. That law does give consent to suits for “legal obligations to provide child support or make alimony payments.”

The Act defines the word “alimony.” In so doing, it says in Section 662(c).

Such term [alimony] does not include any payment or transfer of property or its value by an individual to his spouse or former spouse in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses.

“Alimony” after divorce, as such,' is not permitted in Texas. We shall assume, however, that the payments in question are not within the Texas definition of “alimony” since at least a part of the military retirement benefits were earned by the husband and wife during marriage. Francis v. Francis, 412 S.W.2d 29 (Tex.1967); Busby v. Busby, 457 S.W.2d 551 (Tex.1970).

We shall further assume without deciding, under the logic of the cases set out just above, that the wife’s attempt to enforce her divorce decree is not a suit to make a garnishment of “current wages for personal services.”

We will also assume that Congress could have provided for consent for the United States to be sued for these military retirement benefits even if it called them “alimony.” As set out above, however, Congress excluded from the word “alimony” payments or transfers of property “in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses.”

Our statute provides that upon divorce, “the court shall order a division of the estate of the parties in' a manner that the court deems just and right, having due regard for the rights of each party . . . .” Family Code, Section 3.63.

In Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976), we held that military pension benefits earned during marriage were community property and were subject to division upon divorce even though some bene-, fits would be payable and receivable in the future.

When the military retirement benefits were not taken into account in the divorce court’s “division of the estates” of the parties, i. e., were not brought to the court’s attention when the court divided the properties of the spouses upon divorce, it was held a particular fraction of military retirement benefits should go to the spouses as earned during the community of the marriage. Busby v. Busby, 457 S.W.2d 551 (Tex.1970).

When the community military retirement benefits are before the divorce court, the .court should take them into consideration with all other of the property, subject to a “just and right” division. This court discussed this power and duty of the divorce court in McKnight v. McKnight, 543 S.W.2d 863 (Tex.1976). Our holding was that the divorce court was given broad powers under the “just and right” provisions of the statute, and that a judgment dividing the property on that basis would not be disturbed in the absence of an abuse of discretion. The McKnight and Cearley decisions are discussed in Joseph W. McKnight’s article, Division of Texas Mari tal Property in Divorce, 8 St. Mary’s Law Journal 413 (1976). At page 441, the writer states that “It is not suggested that the court should always, or even usually, divide the future payments between the spouses. An exercise of the court’s equitable judgment is always required.”

Congress has not given its consent for the United States to be sued in garnishment or otherwise when the obligations arise from “any community property settlement, an equitable distribution of property, or other division of property between spouses.” As we read Section 3.63 of the Family Code, the McKnight and Cearley cases, and others, the divorce court acted in that capacity in dividing between the spouses the home, the car, the pickup truck, the wife’s civil service retirement benefits, the military retirement benefits, and all of the other assets and liabilities of the spouses.

The Congress, therefore, has not consented for the United States to be sued in this instance; and we must so hold.

It is unfortunate that Robert Stelter is not subject to the jurisdiction of the courts •of Texas so the divorce decree can be enforced by the exercise of contempt powers. It is also unfortunate the Act of Congress is worded as it is. Texas spouses are not protected as are spouses in other states where they may bring a garnishment suit against the United States to recover alimony or support payments. But even to suggest that Texas spouses are deprived of the equal protection of the law by the Act of Congress would be of no help to Dorothy Stelter. If a court were to strike down the law as discriminatory, there would be no law left giving spouses consent to sue the United States.

The judgments of the district court and the court of civil appeals are reversed and set aside, and the cause is dismissed.

Dissenting opinion by JOHNSON, J., in which McGEE, J., joins.

JOHNSON, Justice,

dissenting.

This dissent is respectfully submitted.

This writer would adopt the judgment and opinion of the court of civil appeals, 553 S.W.2d 227, along with the well-reasoned approach in In re Nunnally, 506 F.2d 1024 (5th Cir. 1975).

McGEE, J., joins in this dissent.

      . Article 4099 prohibits such garnishment. All Texas statutory references are to Vernon Texas Civil Statutes Annotated. Emphasis throughout is ours.


text:
    TRANSAMERICAN LEASING COMPANY, Petitioner, v. THREE BEARS, INC., et al., Respondents.
    No. B-7398.
    Supreme Court of Texas.
    June 21, 1978.
    Rehearing Denied July 12, 1978.

      Daniel R. Rutherford, San Antonio, for petitioner.
    Lang, Cross, Ladon, Boldrick & Green, Paul M. Green, Lawrence H. Rubenstein, Bruce Waitz, Van H. Johnson, James N. Martin, Robert C. Patterson, San Antonio, for respondents.
   PER CURIAM.

The question presented by this appeal is whether a trial court has the plenary power to vacate a judgment while the amended motion for new trial is pending before that court. Here, the trial court vacated the original judgment more than thirty days after it was rendered but within forty-five days after the amended motion for new trial was filed. A second judgment was subsequently entered by the trial court and this appeal was perfected. The court of civil appeals held that the trial court’s plenary power over its judgment terminates thirty days after the rendition of the judgment where a motion for new trial is not overruled. It,.therefore, construed the order vacating the judgment as an order granting a new trial and it reversed the second judgment and remanded the cause for a new trial. 560 S.W.2d 183.

Rule 329b § 5 provides:
Judgments shall become final after the expiration of thirty (30) days after the date of rendition of judgment or order overruling an original or amended motion for new trial. After the expiration of thirty (30) days from the date the judgment is rendered or motion for new trial overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law. The failure of a party to file a motion for new trial within the ten (10) day period prescribed in subdivision 1 of this rule shall not deprive the court of jurisdiction to set aside a judgment rendered by it, provided such action be taken within thirty (30) days after the judgment is rendered. The filing of a motion for new trial after ten (10) days have expired and before thirty (30) days have expired since the rendition of the judgment shall not operate to extend the court’s jurisdiction over the judgment for a period of more than thirty (30) days from the date of the rendition of judgment.

Under the express provision of this rule, the trial court retains jurisdiction over the cause and, thus, plenary power over its judgment until thirty days after the original or amended motion for new trial is overruled. The original or amended motion for new trial is pending before the trial court until it is overruled either by written order or by operation of law at the expiration of forty-five days from the filing thereof. Rule 329b, § 3 and 4. During the pendency of the motion for new trial and the thirty day period following its overruling, the court has the power to vacate, modify, correct, or reform the judgment or to grant a new trial. Mathes v. Kelton, 21 Tex.Sup.Ct.J. 424 (June 17, 1978); Dubert v. Adkins, 475 S.W.2d 383 (Tex.Civ.App.—Corpus Christi 1971, no writ); Turner v. Texas Sportservice, 312 S.W.2d 388 (Tex. Civ.App.—San Antonio 1958, writ ref’d n. r. e.); McDonald, Texas Civil Practice § 18.03 (1971). Reavley and Orr, Trial Court’s Power to Amend Its Judgments, 25 Baylor L.Rev. 191, 205-206 (1973).

Here the judgment was timely vacated by the trial court while the amended motion for new trial was still pending. Therefore, the decision of the court of civil appeals that the trial court had no power to vacate the judgment is contrary to Rule 329b § 5. Accordingly, we grant Trans-american Leasing Company’s application for writ of error and without hearing oral argument, reverse the judgment of the court of civil appeals and remand this cause to the court of civil appeals for that court’s determination of the points asserted therein. Rule 483, Tex.R.Civ.Proc.; Custom Leasing, Inc. v. Texas Bank & Tr. Co. of Dallas, 491 S.W.2d 869 (Tex.1973).