author: JAMES, Justice.

text:
    ALLIED VAN LINES, INC., et al., Appellants, v. CENTRAL FORWARDING, INC., et al., Appellees.
    No. 5515.
    Court of Civil Appeals of Texas, Waco.
    March 25, 1976.
    Rehearing Denied April 15, 1976.

      Doherty, Robertson & Maxwell, Pat H. Robertson, Austin, for appellants.
    Robinson, Felts, Starnes & Nations, Mert Starnes, Austin, for appellees.
   OPINION

JAMES, Justice.

This case involves the interpretation of the meaning of the motor carrier authority contained in a Specialized Motor Carrier Certificate issued by the Railroad Commission of Texas. The trial court sustained the plea in abatement filed by Defendant-Ap-pellees and dismissed the suit of Plaintiff-Appellants Allied Van Lines, Inc., et al. We affirm.

Plaintiff-Appellants Allied Van Lines, Inc., and seven other motor carriers filed this suit against Defendant-Appellees Central Forwarding, Inc., and Public Service Movers, Inc., seeking a declaratory judgment to interpret the meaning of the motor carrier authority contained in Specialized Motor Carrier Certificate No. 31166 which was under lease from Public Service to Central Forwarding, Appellees herein. The suit also sought injunctive relief against Appellees. The certificate in issue conferring the intrastate right to haul for hire reads as follows:

“Household goods from Dallas, Texas, to and from all points in Texas.”

Appellants sought in the trial court a declaratory judgment interpreting the motor carrier authority in issue as authorizing Appellees to transport:

“Household goods from Dallas to all points in Texas, and from all points in Texas to Dallas.”

Appellants Allied Van Lines, Inc., et al., are all holders of authority authorizing the transportation of household goods to, from, or between specified points in Texas, are competitors of Appellees, and by said suit sought to protect their vested property rights in their existing motor carrier operating authorities.

Appellees Central Forwarding et al., filed a plea in abatement to Appellants’ suit alleging in effect that Appellants were barred from bringing the instant suit because the same issues were litigated prior thereto in the case of The State of Texas v. Central Forwarding, Inc., Cause No. 198, 083, in the 200th District Court of Travis County, Texas, which last-named cause resulted in a final judgment dated December 28, 1972.

On June 8, 1972, while the certificate in issue was owned by Central Forwarding, the Attorney General of Texas, at the request and on behalf of the Department of Public Safety, and in the name of The State of Texas, pursuant to Article 911b, Vernon’s Texas Civil Statutes, Article 1690b of Vernon’s Penal Code (now Section 16, Article 911b, V.T.C.S.), and Article 2524-1, V.T. C.S., brought an action for declaratory judgment and injunctive relief, which cause was styled, “The State of Texas v. Central Forwarding Inc.,” No. 198,083, in the 200th District Court of Travis County, Texas. As stated above, this last-named suit resulted in a judgment dated December 28, 1972, in which judgment the trial court was called upon to construe the identical Specialized Motor Carrier Certificate as the same trial court was called upon to construe in the case at bar. In State v. Central, the judgment construed the certificate to authorize Central Forwarding to transport “household goods to and from all points in Texas,” without reference to the words “from Dallas, Texas”; in fact, it held the words “from Dallas, Texas,” to be mere surplusage. The judgment in State v. Central was not appealed, and same became a final judgment.

Thereafter, and after the judgment in State v. Central had become a final judgment, on April 8, 1974, Plaintiff-Appellants Allied Van Lines, et al., filed the instant suit against Appellees Central Forwarding, et al., for declaratory judgment and injunc-tive relief, seeking to obtain a construction of the motor carrier’s certificate contrary to the construction placed on same by the judgment of the court in State v. Central.

As stated, Defendant-Appellees filed a plea in abatement in the case at bar, which was sustained by the trial court, resulting in a dismissal of Plaintiff-Appellants’ suit.

The trial court filed findings of fact and conclusions of law. We herewith quote pertinent portions of the conclusions of law:

“2. Plaintiffs are precluded from maintaining this suit by virtue of this court’s prior Final Judgment in Cause No. 198,083, State of Texas v. Central Forwarding, Inc., because the subject matter and issues involved in this suit, and the relief sought herein, are precisely the same subject matter, issues and relief involved and sought in State of Texas v. Central Forwarding, Inc., and Section 16 of Article 911b (formerly Article 1690b of the Penal Code) authorizes and empowers the State of Texas, on behalf of the Department of Public Safety, by and through the Attorney General, to enforce the Motor Carrier Law, Art. 911b, V.A.T.S., and to represent all citizens and entities of the state which are interested therein, and judgments rendered in Section 16 proceedings are binding upon all persons.

“3. The judgment of this Court in State of Texas v. Central Forwarding, Inc., is a judgment in rem, declaring the meaning, status and scope of that authority now contained in Specialized Motor Carrier Certificate No. 31166, and is binding upon all the world, including these Plaintiffs.

“4. Plaintiffs are bound by this Court’s prior judgment in Cause No. 198,083 under the doctrines of res judicata and collateral estoppel because the necessary identity of parties between that prior suit and this suit is established under Art. 1690b of the Penal Code (and now under Section 16 of Article 911b), as in suits instituted under such statute the State and its Departments represent all persons interested in the subject matter of such proceedings, and because the matters adjudicated in State of Texas v. Central Forwarding, Inc., were necessarily matters affecting the public interest, and the State of Texas therefore virtually represented all its citizens interested in the subject matter thereof, including these Plaintiffs.”

Appellants among other things assert error of the trial court in holding:

(1) that Section 16 of Article 911b, V.T. C.S., authorizes and empowers the State of Texas, on behalf of the Department of Public Safety, by and through the Attorney General, to enforce the Motor Carrier Law (Article 911b, V.T.C.S.) and to represent all citizens and entities of the State which are interested therein, and judgments rendered in Section 16 proceedings are binding upon all persons.

(2) That the prior decision in State of Texas v. Central Forwarding Inc., is a judgment in rem and binding against Appellants.

(3) That the matters adjudicated in State of Texas v. Central Forwarding, Inc., were matters affecting the public interest, and that Appellants were virtually represented by the State of Texas in the prior suit.

Since we are of the opinion that the prior judgment is a judgment in rem; and further, that in the case at bar the doctrine of virtual representation applies, we overrule the above-mentioned points of error asserted by Appellants and affirm the judgment of the trial court.

At the outset, let us say that there is no question but that the matter of construction of the Specialized Motor Carrier Certificate in question, and the business of operating as a motor carrier of property for hire along the highways of this State are matters affected with the public interest. Section 22b, Article 911b, Vernon’s Texas Civil Statutes; State of Texas v. Refrigerated Transport, Inc., (Austin CA 1961) 348 S.W.2d 241, 243, NRE.

The precise question that we are obliged to answer is this: Is this final judgment (in State v. Central) wherein suit was brought by the State of Texas (by and through the Attorney General in behalf of the Department of Public Safety) pursuant to Section 16 of Article 911b, binding upon private persons (such as these Plaintiff-Appellants) who later determine that they have a competitive interest in a different result? In the light of existing authorities, we answer this question, “yes” and thereby affirm the trial court’s judgment.

Without detailing the provisions of Section 16 of Article 911b, V.T.C.S., suffice it to say that the Attorney General of Texas and the State Department of Public Safety are charged by said statute with the responsibility of enforcing the Motor Carrier Act (Art. 911b). The Attorney General has the authority and power to bring suits in the name of the State of Texas in order to enforce and prevent violations of said Act. In State v. Central, the State of Texas brought such an action against Central Forwarding pursuant to the Uniform Declaratory Judgments Act, Art. 2524-1, V.T.C.S., to construe the identical Specialized Motor Carrier Certificate now in question in the instant suit, and for injunction to prohibit Central Forwarding from hauling household goods to and from all points in Texas. In other words, the State sought to limit Central’s operations under that authority to operations to and from Dallas. The State in said suit was seeking to get the court to construe the certificate in substantially the same manner as Plaintiff-Appellants were trying to get the trial court to construe it in the instant case.

The State lost its lawsuit in State v. Central, since the court held by said judgment that under said certificate Central Forwarding was authorized to transport household goods to and from all points in Texas, and that the language “from Dallas, Texas,” was mere surplusage. As heretofore stated, this was and is a final judgment.

The rule which in our opinion is determinative of the case at bar is stated in Cochran County v. Boyd (Amarillo CA 1930) 26 S.W.2d 364, writ refused, as follows:

“The general rule is that, in the absence of fraud and collusion, a judgment for or against a county or other municipality is binding and conclusive upon all residents, citizens, and taxpayers, in respect to the matters adjudicated which are of general and public interest, and that all other citizens and taxpayers similarly situated are virtually represented in the litigation and bound by the judgment * *

“The reason for this rule is * * * as follows: If this were not so, each citizen, and perhaps each citizen of each generation of citizens, would be at liberty to commence an action and to litigate the question for himself. * * * If a judgment against the county in its corporate capacity does not bind the taxpayers composing the county, then it would be difficult to imagine what efficacy could be given to such judgment.” Also see Hovey v. Shepherd (Tex.1912) 105 Tex. 237, 147 S.W. 224, 225, wherein our Supreme Court said: “The intervenors were not parties to the suit of the City of Sweetwater v. Kansas City, Mexico & Orient Railroad Company [62 Tex.Civ.App. 242, 131 S.W. 251] (citation) at the time the judgment of this court was entered, but they were citizens of that municipal corporation, and the important question in the case is reached by the announcement of the well-settled proposition of law that, if the matter adjudicated affected the interest of the public as distinguished from the private interest of the citizens of the city, although not parties to the suit, all citizens are concluded thereby.” (emphasis supplied). Also see Maddrey v. Cox (1889) 73 Tex. 538, 11. S.W. 541; City of Palestine v. City of Houston (Texarkana CA 1924) 262 S.W. 215, writ of error dismissed for want of jurisdiction by our Supreme Court in 267 S.W. 663. In said last-named cause it was held that the people of the State, as well as of the city, were bound by the former judgment. Also see Williams v. White (San Antonio CA 1949) 233 S.W.2d 278, writ refused; Hodgkins v. Sansom (Fort Worth CA 1939) 135 S.W.2d 759, writ dismissed, judgment correct; Arneson v. Shary (San Antonio CA 1930) 32 S.W.2d 907, appeal dismissed for want of a substantial federal question by the U. S. Supreme Court in 284 U.S. 592, 52 S.Ct. 202, 76 L.Ed. 5Í0. Also as illustrative of the application of the doctrine of virtual representation wherein the citizens of an entire state were bound by a former judgment, see City of Tacoma v. Taxpayers of Tacoma (U.S.Sup.Ct.1958) 357 U.S. 320, 78 S.Ct. 1209, 2 L.Ed.2d 1345.

It should further be pointed out that the judgment in State v. Central is a judgment in rem, because it declared and determined the status of a thing, to wit, the Specialized Motor Carrier Certificate in question. 34 T.J.2d, “Judgments,” par. 360, p. 374. This being so, said judgment was and is binding on all parties who have an interest in the subject matter of the suit, whether they were parties to the former suit or not, particularly since the former judgment adjudicated matters of public interest. McCamant v. Roberts (Tex.1886) 66 Tex. 260, 1 S.W. 260. Also see State v. McMurrey Petroleum Corp. (Texarkana CA 1943) 168 S.W.2d 504, 506, and the cases therein cited; 34 T.J.2d, “Judgments,” par. 364, p. 378.

In the light of the foregoing authorities, we hold that Plaintiff-Appellants Allied Van Lines, et al., although they were not formal parties in State v. Central, were nevertheless bound by the judgment in said cause and are thereby barred from reliti-gating the issues determined by said judgment. Accordingly, the trial court properly sustained Appellees’ plea in abatement and dismissed Plaintiff-Appellants’ cause. Judgment of the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    TWIN CITY FIRE INSURANCE COMPANY, Appellant, v. Bernard DODD, Appellee.
    No. 894.
    Court of Civil Appeals of Texas, Tyler.
    March 25, 1976.
    Rehearing Denied April 15, 1976.

      William Drew Perkins, Lufkin, for appellant.
    Larry Daves, Tyler, for appellee.
   DUNAGAN, Chief Justice.

This is a workmen’s compensation case. This suit was instituted by Bernard Dodd in the District Court of Nacogdoches County, Texas, against Twin City Fire Insurance Company and Texas Farm Products Company for an accidental injury received in the course and scope of his employment as an employee of the Lone Star Phosphate Company or a special or borrowed employee of Texas Farm Products Company. It is alleged that Bernard Dodd, while working on the job and at the premises of the Texas Farm Products Company, sustained serious injuries to his back, legs and body in general; further, that such injuries were a producing cause of total and permanent incapacity of the employee Dodd.

Based upon the verdict of the jury the trial court rendered judgment for the ap-pellee, Bernard Dodd, and against the appellant, Twin City Fire Insurance Company, in the sum of $10,203.67. It is from this judgment that appellant has appealed to this court.

For convenience, Texas Farm Products Company will hereinafter be referred to as “Texas Farm” and Lone Star Phosphate Company as “Lone Star.”

This case involves a determination of whether Lone Star, insured by appellant, Twin City Fire Insurance Company, or Texas Farm, a nonsubscriber to the Workmen’s Compensation Act, was the employer of ap-pellee at the time of his injury. The jury found that Dodd was employed by Lone Star and that he had not been loaned to Texas Farm on the occasion in question. Appellant attacks the legal and factual sufficiency of the evidence to support the findings of the jury in response to special issues one, two and three. In deciding whether there is evidence to support the findings of the jury, here complained of, we view the evidence in its most favorable light in support of such findings, and look to the entire record in passing upon the insufficiency of the evidence and great weight and preponderance of the evidence points. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Lone Star and Texas Farm are located on adjacent lots in Nacogdoches. They have common, although not identical, owners, directors and officers. Dodd was normally an employee of Lone Star but occasionally worked at Texas Farm. Dodd’s contract was with Lone Star. When he worked on premises owned by Texas Farm he marked his time cards indicating that he was employed by Lone Star. On occasions Dodd would work at Texas Farm’s manufacturing plant or feed mill, but he would continue to receive his payroll check from Lone Star. Texas Farm, however, would reimburse Lone Star for wages Dodd earned when working at Texas Farm. Apparently this was done to simplify the bookkeeping.

On the day of his injury, Dodd began work at Lone Star and was later taken by Jerry McShan to the fertilizer plant of Texas Farm to remove some phosphate, where he was injured. The injury occurred while he was operating a payloader under the supervision of Jerry McShan.

Appellant argues that Dodd was injured when he was on the premises and under the supervision of Texas Farm and that Dodd’s wages, medical expenses and some compensation were paid by Texas Farm. Appellant concludes that there was no evidence or insufficient evidence to support the jury’s findings.

Dodd argues that the evidence was sufficient because he was under the supervision of, had contracted with, and was on the payroll of Lone Star. Dodd also contends that Lone Star was a subsidiary of Texas Farm.

The crucial question in this case is whether at the time of his injury Dodd was working in the course of his employment for his general employer, Lone Star, or whether at such time he was a borrowed employee of Texas Farm.

As additional facts to those above stated, the evidence shows that Lone Star operates a phosphate plant. Texas Farm, at its plant here involved, makes fertilizer. It buys phosphate from Lone Star. Phosphate is only one of the ingredients it uses to make fertilizer. Dodd was a general employee of Lone Star. However, Dodd, on occasions, worked at Texas Farm’s fertilizer plant. On each of these occasions he knew he was working for Texas Farm. Dodd testified that at the time of his injury he knew he was working for Texas Farm; that Texas Farm had borrowed him; that he was borrowed by Jerry McShan and Clarence Riddle. The evidence shows that Riddle, McShan’s father-in-law, was employed by Texas Farm in some capacity. Dodd also testified that at the time of his injury McShan was his supervisor and directed him what to do and how to do it. Mr. McShan testified that on the day Dodd was injured he (McShan) was employed by Texas Farm. Mr. Dement Beard, who at the time of the injury was Texas Farm’s personnel director, also testified that at the time in question McShan was employed by Texas Farm. This testimony was undisputed except for the testimony of appellee, Bernard Dodd, that on the day of the accident Jerry McShan was working for Lone Star and he assumed that he was paid by Lone Star. Such testimony by Dodd was merely a conclusion on his part and had no probative force even though it was not objected to. His testimony that he was on Lone Star’s time while doing work for Texas Farm at the time of the accident, and he so marked his time card, was also his conclusion. F. B. McIntire Equipment Company v. Henderson, 472 S.W .2d 566, 576 (Tex. Civ.App.-Fort Worth 1971, writ ref’d n. r. e.); Bradford v. Magnolia Pipe Line Co., 262 S.W.2d 242, 247-48 (Tex.Civ.App.-Eastland 1953, n. w. h.); Latta v. Texas Employers’ Ins. Ass’n., 243 S.W.2d 949, 951 (Tex. Civ.App.-Austin 1951, writ ref’d n. r. e.); Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97,99 (1939); Webb v. Reynolds, 207 S.W. 914, 916 (Tex.Comm.App. 1919, jdgmt. adopted). The evidence shows that during a four-week period, which included the day of the accident in question, McShan was paid by Texas Farm.

The only factor which might indicate that Dodd was an employee of Lone Star is the fact he was carried on the payroll of Lone Star. This is not a controlling factor. Employers Casualty Company v. American Employers Insurance Company, 397 S.W.2d 292, 296 (Tex.Civ.App.-Amarillo 1965, writ ref’d n. r. e.); and Magnolia Petroleum Co. v. Francis, 169 S.W .2d 286 (Tex.Civ.App.-Beaumont 1943, writ ref’d).

It is undisputed, by any legal and competent evidence, that Texas Farm had the right or power to control and direct Dodd in the performance of the details of the work that he was performing at the very time in question; that at the time of his injury he was performing services solely for, and on the premises of, Texas Farm; that Dodd knew he was working for Texas Farm; and that Texas Farm paid Dodd’s medical bills and voluntary compensation until the doctor indicated that he was able to return to work. There is no evidence that Dodd was sent by Lone Star to perform any service for Texas Farm at the time of his injury or that he was performing any work or services on the occasion in question for Lone Star. Dodd himself testified that McShan came down to where he was working for Lone Star and told him, “that he (McShan) and Mr. Riddle wanted us to (go) back up to Texas Farm and move some potash and asked me would I do it, and I told him yes.”

Whether, in respect of a particular act, a servant in the general employment of one person, who has been loaned to another, is the servant of the original employer or of the person to whom he has been loaned, is usually determined by deciding who has the right or power to control and direct the servant in the performance of the details of his work at the very time in question. F. B. McIntire Equipment Co. v. Henderson, supra; J. A. Robinson Sons, Inc. v. Wigart, 431 S.W.2d 327 (Tex.1968); Employers Casualty Company v. American Employers Insurance Company, supra; Producers Chemical Co. v. McKay, 366 S.W.2d 220, 225 (Tex.1963); Hilgenberg v. Elam, 145 Tex. 437, 198 S.W.2d 94 (1946); Shannon v. Western Indemnity Co., 257 S.W. 522 (Tex.Comm. App.1924, jdgmt. adopted).

Whether an employee, borrowed from another, was doing something within the normal scope of business of the general employer, or of such special employer, is an important factor in determining which of such employers is liable for resulting injury. Hilgenberg v. Elam, supra.

Dodd’s own testimony brings him within the rule of law enunciated in Mercury Life and Health Company v. DeLeon, 314 S.W.2d 402, 405 (Tex.Civ.App.-Eastland 1958, writ ref’d n. r. e.) “that in order to establish an employer-employee relationship between an employee and a borrowing employer that the employee must know or be charged with knowledge of the lending agreement.”

When these rules of law are applied to the undisputed facts of this case, it is apparent to us that the appellee Dodd, as a matter of law, at the time of injury, was an employee borrowed by Texas Farm. Therefore, the findings of the jury in response to special issues one, two and three are not supported by any evidence of probative force. We sustain appellant’s “no evidence” points of error.

We have not discussed appellant’s points relating to the insufficiency of the evidence to support the jury’s answers to Special Issues Nos. 1, 2 and 3 but if these points should be reached, we would hold that the evidence is insufficient to support such answers.

We notice that Texas Farm was also named as a party defendant. Dodd alleged that he was “entitled to general common law damages” from Texas Farm. No special issues were submitted to the jury on this phase of the case. There is no mention in the judgment of defendant Texas Farm and no disposition is made therein of the cause of action against it. It appears from the record that the judgment herein was rendered and entered in a case regularly set for conventional trial on the merits and no order for separate trial of issues was entered pursuant to Rule 174, T.R.C.P.; therefore, it will be presumed for appeal purposes that the trial court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties. North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966).

The judgment of the trial court is reversed and judgment is here rendered that appellee, Bernard Dodd, take nothing by his cause of action against appellant, Twin City Fire Insurance Company.

      . “ISSUE NO. 1: Do you find from a preponderance of the evidence that at the time of receiving such injury plaintiff was an employee of Lone Star Phosphate Company?
      (definition of the word ‘Employee’)
      “Answer: ‘We do’ or ‘We do not.’
      “Answer: ‘We do.’
      “ISSUE NO. 2: Do you find from a preponderance of the evidence that at the time Bernard Dodd was injured he was an employee loaned to Texas Farm Products Company? (definition of ‘loaned employee’)
      “Answer: ‘We do’ or ‘We do not.’
      “Answer: ‘We do not.’
      “ISSUE NO. 3: Do you find from a preponderance of the evidence that such injury was sustained in the course of employment, if any, with plaintiff’s employer Lone Star Phosphate Company?
      (definition of ‘sustained in the course of employment’)
      “Answer: ‘We do’ or ‘We do not.’
      “Answer: “We do.’ ”


author: DIES, Chief Justice. STEPHENSON, Justice

text:
    The CITY OF BEAUMONT, Appellant, v. BRYANT, BYRAM & SWAIN, Appellee.
    No. 7793.
    Court of Civil Appeals of Texas, Beaumont.
    March 25, 1976.

      Lavon Jones, Asst. City Atty., Beaumont, for appellant.
    Anthony G. Brocato, Beaumont, for ap-pellee.
   DIES, Chief Justice.

This is a condemnation case brought by the City of Beaumont, appellant, to acquire a sewer easement from the appellee, Bryant, Byram & Swain, a partnership. The sole question involves the admissibility of one comparable sale. Appellant in its brief challenged two sales, but on oral argument conceded that one (Cicero to McGoni-gle) was not assigned as error in its motion for new trial. We therefore cannot consider that sale. See Tex.R.Civ.P. 321; Meyer v. Great American Indemnity Company, 154 Tex. 408, 279 S.W.2d 575, 579 (1955).

The one comparable sale we review is that sale in 1973 from Walton to Nichols.

In a well-written opinion Judge Stephenson clearly set forth the rules governing comparability in Texas. (Trinity River Authority v. Hutchings, 437 S.W.2d 383, 385 (Tex.Civ.App.—Beaumont 1969, no writ).

“A complete review of the Texas decisions as to the question of comparability has led us to conclude these three simple rules: (1) It is sufficient [if] it can be shown as a predicate that the lands involved in prior sales are similar to those taken. (2) The trial court has great discretion in determining whether sales offered in evidence are comparable to the land being taken. (3) A trial court’s decision that a prior sale is sufficiently similar to be considered comparable cannot be reviewed except to determine whether there has been an abuse of discretion.”

See also Trinity River Authority v. McMurrey, 439 S.W.2d 887 (Tex.Civ.App.— Beaumont 1969, no writ); Crouch v. State, 413 S.W.2d 141 (Tex.Civ.App.—Houston 1967, no writ).

Appellee’s land before the taking contained 6.716 acres or 292,549 square feet. It fronted on College Street in Beaumont 572.9 feet. It was zoned for industrial uses and described as “industrial complex for users that have a small distributive type business with a warehouse and office space in front.” There were three warehouses— office metal buildings on the property.

The comparable sale challenged was on April 25, 1973. It contained 150,484 square feet. It fronted 317 feet on College and was immediately west of appellee’s tract. It was likewise zoned industrially. It had a frame residence and a garage apartment on it. A real estate appraiser testified it was comparable to appellee’s land because of “location, because of zoning, because of access, and in my judgment the highest and best use of this property is industrial.”

While as stated there was an apartment and frame residence on the property the appraiser opined this to have only “interim” value. He testified the house and garage contributed “little or no value” to the land.

Because of this testimony, appellant contends the admission of this sale as a comparable violates the rule of Westmoreland v. Beaumont Ind. School District, 524 S.W.2d 323 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.), viz.: comparing unimproved land with improved land.

We have concluded that the admission of this sale was not an abuse of discretion by the trial court. The appraiser considered the land “improved land.” A house and garage apartment certainly must be considered as improvements.

The judgment of the trial court is affirmed.

AFFIRMED.

STEPHENSON, Justice

(concurring).

I concur in the result reached by the majority; however, it is my feeling that further explanation is called for.

Appellant would have this court extend the rule stated in Westmoreland, supra, so that a tract of land would be considered unimproved if the value of the improvements is so small that a prospective purchaser would place no value on the improvements. This we have refused to do.

There is an additional reason that it was not error on the part of the trial court in admitting evidence as to the sale from Walton to Nichols. In this suit the appellant was taking a permanent easement 20' wide, located upon vacant land, and a 50' wide temporary working easement also located upon vacant land. The court admitted evidence as to the diminution in value of the remainder which was improved and also as to the diminution in value of the 50' wide vacant tract. Six issues then submitted to the jury inquiring as to the before and after values of the 20' wide tract, the 50' wide tract, and the remainder. If the sale from Walton to Nichols was to be considered vacant land, it was still admissible to prove the before and after value of the 50' wide tract. See Harris County Flood Control District v. Hill, 348 S.W.2d 806 (Tex.Civ. App.—Houston 1961, writ ref’d n. r. e.), and Gulf & Interstate Ry. Co. of Texas v. Stephenson, 212 S.W. 215 (Tex.Civ.App.—Galveston 1919, no writ).


author: KEITH, Justice.

text:
    TRINITY RIVER AUTHORITY OF TEXAS, Appellant, v. SAN JACINTO COUNTY, Appellee.
    No. 7809.
    Court of Civil Appeals of Texas, Beaumont.
    March 25, 1976.
    Rehearing Denied April 15, 1976.

      James A. Bannerot, Austin, for appellant.
    Robert F. Atkins, Coldspring, for appel-lee.
   KEITH, Justice.

The appeal is from an order overruling the defendant’s plea of privilege to be sued in Tarrant County. San Jacinto County (hereinafter “County”) brought this suit seeking a declaratory judgment. The only defendant, our appellant, is Trinity River Authority of Texas (hereinafter “TRA”), created by Acts 1955, 53rd Leg., Ch. 518, p. 1314, under Texas Const., Art. XVI, § 59.

Pursuant to authorization conferred in the Act, TRA erected a dam across the Trinity River between San Jacinto and Polk Counties. When the gates of the dam were closed several years ago, the waters of Lake Livingston rose and covered what County claimed was a public road known as “People’s Road” (hereinafter simply “road”).

In this suit, County sought a declaratory judgment that the road was a public road located on ground necessary for Lake Livingston, formed by the construction by TRA of the dam. County sought a declaration that TRA was required to pay the expense of moving the roadway. Tex.Water Code Ann. § 5.044(b) (1972). TRA filed a plea of privilege which, in addition to the usual allegations, averred that it was a governmental agency of the State and a body politic and corporate which could only be sued in Tarrant County “the residence and domicile and seat of government of [TRA], notwithstanding any statute which might otherwise appear to establish venue in a county other than the residence of the defendant.” TRA also claimed governmental immunity as an agent of the State.

County duly controverted the plea by invoking subdivisions 14 and 23, Art. 1995, Tex.Rev.Civ.Stat.Ann. (1964). It further pleaded, in the controverting plea, that TRA had denied that the road was a public road; had denied liability for damages because of the inundation and destruction thereof; and that these acts of TRA were in violation of Texas Const. Art. I, § 17.

Upon the hearing, County offered correspondence between the County Judge and officers of TRA whereby TRA denied that the road in question was a public road, TRA contending in essence that it had acquired the tract of land over which the road was situated in an eminent domain proceeding (to which County was not a party) and that it had thereby acquired the title to the entire tract, including the road. County also offered oral testimony from persons familiar with the road to the effect that it was recognized by the County and the public generally as a public road; that it was improved and maintained by the County, and that since the flooding, they could reach their lands only by sufferance of other individual landowners.

TRA established that its principal office had been established by its Board of Directors as being in Arlington, Tarrant County, where all of the business affairs of TRA were conducted and its officers resided. County established that there was a park superintendent and several minor employees maintaining an office in San Jacin-to County where the park facilities of Lake Livingston were located.

Although findings of fact and conclusions of law are not required in venue appeals, such were filed in this cause and there are two which are material: (a) that TRA having denied that the road in question was a public road, the County must prove such fact, hence “[t]he title to the road in question is an issue in this lawsuit” and venue was properly shown to be in San Jacinto County under subdivision 14; and, (b) notwithstanding that TRA is not a privately owned entity but is a governmental agency of the State of Texas and a body politic and corporate, and although TRA’s principal place of business is in Tarrant County; nevertheless the cause of action arose in San Jacinto County where TRA had an agency or representative, so that venue was properly maintained under subdivision 23.

We have a complete record consisting of a statement of facts supported by several written exhibits; consequently, the findings of fact are not conclusive upon appeal. Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156, 158 (1950); Anderson v. Anderson, 503 S.W.2d 124, 125 (Tex.Civ. App.—Corpus Christi 1973, no writ). However, there is little, if any, dispute in the facts as shown by our present record.

TRA makes three basic attacks upon the order:

(1) The principal purpose of the suit is to determine rights and obligations under Tex. Water Code Ann. § 5.044(b), and thus is not a suit to establish title to or to recover damages to land within the purview of subdivision 14, Art. 1995, Tex.Rev.Civ.Stat. Ann. It also argues its immunity from suit by County.

(2) TRA is not a privately owned entity and is not subject to the provisions of subdivision 23, Art. 1995, Tex.Rev.Civ.Stat.Ann.; and,

(3) TRA is a resident only of Tarrant County and may be sued only in that county-

TRA had the right and power to inundate public roads as an incident to the construction of Lake Livingston. Water Code § 5.044(b), quoted in the margin, specifically provided such power, making it the duty of the commissioners to change the road when such occurred. However, the same statute placed upon TRA the obligation to “pay the expense of moving the bridge or roadway.”

TRA argues that the case of Live Oak County v. Lower Nueces River Water S. Dist., 352 S.W.2d 139 (Tex.Civ.App.—San Antonio 1961, writ dism’d), is dispositive. We disagree. There are many points of similarity in the two cases; but, there is one important point of difference. In Live Oak County, it was undisputed that the Lagarto Road and Bridge were a public road and bridge within contemplation of the statute (then known as Art. 7585, Tex.Rev.Civ.Stat. Ann., and now found and cited as Tex. Water Code Ann. § 5.044 [1972]). Here defendant denies that the road was a “Public” road; it insists that it acquired the road in the eminent domain proceedings to which the County was not a party; it refuses to pay the cost of relocating such road; and, it contends that it is immune from suit.

TRA argues, mistakenly, that the court in the Live Oak County Case did not mention the fact that there was no dispute over the fact that the Lagarto Road was a public road. In Live Oak, the court noted that the district had “notified” the county to remove the bridge and relocate Lagarto Road, but that the county had refused to do so. A cursory examination of the opinion reveals that the Lagarto Road was a public road.

Here, TRA uses the statute as a one-way street; it contends that it had the right to inundate and destroy the county road; but, it refuses to accept the burden incident to the use of the statute: to pay the cost of its relocation.

The trial court did not err in determining that a question of title to the road was involved in the litigation. It was and is incumbent upon County, if it is to prevail in the litigation, to establish the road as a public road. Had TRA conceded this fact, the case would be controlled by Live Oak County, supra. For, in such instance, the only question for determination would be the cost of relocating the road. See the fourth Live Oak County Case, 446 S.W.2d at 27.

The short answer to TRA’s contention that County may not prosecute its suit without pleading and proving legislative consent to bring the suit is to be found in Tex. Water Code Ann. § 51.099, which reads: See also, Missouri Pacific R. Co. v. Brownsville Nav. Dist., 453 S.W.2d 812 (Tex.1970).

“A district may sue and be sued in the courts of this state in the name of the district by and through its board. All courts shall take judicial notice of the creation of the district and of its boundaries.”

Points one and two are overruled.

Since we are of the opinion that County was entitled to bring and maintain the suit under the provisions of subdivision 14, Art. 1995, Tex.Rev.Civ.Stat.Ann., it is unnecessary for us to determine whether such suit could also be maintained under the provisions of subdivision 28 of the statute.

The judgment of the trial court is AFFIRMED.

      . Section 1 of the Act reads: “By virtue of Article XVI, Section 59 of the Texas Constitution, there is hereby created a conservation and reclamation district to be known as Trinity River Authority of Texas (hereinafter sometimes called the ‘Authority’) which shall be a governmental agency of the State of Texas and a body politic and corporate.” The Act is codified as Tex.Rev.Civ.Stat.Ann. Art. 8280-188 (1959).

      . See: Tex.R.Civ.P. 385(e); Kroger Company v. Warren, 420 S.W.2d 218, 221 (Tex.Civ.App.— Houston [1st Dist.] 1967, no writ); Bryant v. Kimmons, 430 S.W.2d 73, 75 (Tex.Civ.App.— Austin 1968, no writ).

      . Section 5.044(b) reads: “If any public road, highway, or public bridge is ■ located on the ground necessary for a dam-site, reservoir, or lake, the commissioners court shall change the road and remove the bridge so that it does not interfere with the construction of the proposed dam, reservoir, or lake. The party desiring to construct the dam, reservoir, or lake shall pay the expense of moving the bridge or roadway.”

      All emphasis has been supplied unless otherwise indicated.

      . The history of the dispute and final ending of the case involving the Lagarto Road is to be found in Live Oak County v. Lower Nueces River Water Sup. Dist., 446 S.W.2d 14 (Tex.Civ.App.—Beaumont 1969, writ ref’d n. r. e.). A careful study of the four appellate decisions involving the Lagarto Road shows that there was no dispute between the parties as to the public nature of the road.

      . We do not reach the question of TRA’s liability for torts not within the coverage of the Texas Tort Claims Act, Art. 6252-19, Tex.Rev. Civ.Stat.Ann. (1970), and express no opinion thereon.


author: SHANNON, Justice.

text:
    Homer Joseph EGGEMEYER, Appellant, v. Virginia EGGEMEYER, Appellee.
    No. 12384.
    Court of Civil Appeals of Texas, Austin.
    March 31, 1976.
    Rehearing Denied April 14, 1976.

      Marvin C. Hanz, San Angelo, for appellant.
    Bradley C. Miles, San Angelo, for appel-lee.
   SHANNON, Justice.

Appellee, Virginia Eggemeyer, filed suit for divorce against appellant, Homer Joseph Eggemeyer, in the district court of Runnels County. Appellee also sought custody of the children, a division of the property, and an order that appellant make child support payments.

The parties were married in 1954 and they had six children. At trial time four of the children were under eighteen years of age. Before suit was filed the parties owned and operated a farm of about 202 acres in Runnels County. It was stipulated that appellant owned an undivided one-third interest in the farm as his separate property and the remaining two-thirds interest was community property.

After trial to the court, judgment was entered granting the divorce. In the judgment the district court appointed appellee managing conservator of the four minor children: Tyrone, age sixteen; Rebecca, age thirteen; Bonnie Susanne, age twelve; and Gena Beth, age ten. The judgment provided further that appellant pay one hundred dollars each month for each child until the respective child reached the age of eighteen years.

The judgment also vested the title to the farm in appellee subject to the first lien in favor of the Federal Land Bank of Houston in the sum of $20,101.80 and subject to a second lien in favor of appellant’s sister in the sum of $5,200.00. The farm was also burdened with a $10,000 lien imposed by the court in favor of appellant. Such lien presumably represented the value of appellant’s one-third separate property in the farm. In addition, appellee received one-half of the one-fourth nonparticipating royalty interest reserved by the parties in the sale in 1966 of a 328.7-acre tract of land located in Runnels County. Appellee received the usual household furniture, and, as well, a flat-bed trailer, stock trailer, a 1973 Pontiac automobile, and some stock in the Federal Land Bank of Houston. The judgment further provided that appellee pay a $3,000 note in favor of her father.

Appellant received the $10,000.00 lien on the farm, one-half of the one-fourth nonparticipating royalty interest already described, certain automobiles, and all equipment, tools, implements, and machinery in his possession and on the farm. The judgment provided that other than the $3,000.00 note to appellee’s father, appellant was to pay all other community debts.

Appellant does not question that part of the judgment ordering the divorce and naming appellee managing conservator of the minor children. Appellant attacks the balance of the judgment by several points of error, one of which is that the part of the judgment ordering child support in the indicated sum was beyond his “. . . physical and mental ability and capacity . to provide and maintain . . . ” Appellant also claims that the district court erred in the division of the property in that “. it was inequitable and clearly an abuse of discretion . . . ”

A judgment ordering child support will not be disturbed unless the trial court has abused its discretion. The amount of child support payments awarded by the judgment will not be revised merely because the reviewing court considers those payments too high or too low. Ramey v. Ramey, 425 S.W.2d 900 (Tex.Civ.App.1968, writ dism’d), Hobdy v. Lewis, 409 S.W.2d 428 (Tex.Civ.App.1966, no writ). The duty of a parent to support his children, after divorce, corresponds in large measure to his financial ability, Madden v. Madden, 365 S.W.2d 427 (Tex.Civ.App.1963, no writ), and his earning potential. Wetzel v. Wetzel, 514 S.W.2d 283 (Tex.Civ.App.1974, no writ).

Since August, 1973, when the suit was filed, appellant has contributed little or nothing to the support of his children. Ap-pellee has worked in the lunchroom at Paint Rock High School and has earned about $250.00 each month. Appellee’s mother has purchased clothing for the children. Appel-lee has been able to feed the family by purchasing food stamps. Appellee and the children have incurred $1,500.00 in medical bills since the filing of the divorce suit. Appellant has paid none of those bills. Ap-pellee testified that Gena Beth needs glasses and corrective nose surgery, but that appellee is unable to pay for the glasses and the surgery.

Appellant earned more than $14,000.00 in 1973. In that year appellant sold twenty-six bales of cotton for over $7,000.00, and he earned $7,000.00 in spraying Johnson grass and in defoliating cotton.

Though appellant had no job at trial time, he had been employed, on occasion, after the suit was filed and until the time of trial. Appellant was forty-five years of age at trial and he is possessed of general skills and experience which qualifies him for agricultural work. Appellant stated that he was well qualified to run spraying rigs. Although appellant testified that his “nerves aren’t too good” and that his back was “no good at all,” he did not support those subjective complaints with any character of medical proof. The district court could well have believed that appellant, like Mr. Micawber, instead of bestirring himself to earn a living, seemed more interested in waiting around “in case anything turned up.”

Appellant’s child support payment will be reduced twenty-five percent in the immediate future as Tyrone will be eighteen in April, 1976. We have concluded that appellant has the financial ability and earning potential to support his children in the sums ordered by the district court.

The trial court has wide discretion in determining the proper division of the community estate of the parties to a divorce action. The court is not required to divide that estate equally among them. Tex.Family Code § 3.63 (1975), Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950). An unequal division is permissible if not so disproportionate as to be inequitable, and if the circumstances justify awarding more than one-half to one party. Bowling v. Bowling, 373 S.W.2d 829 (Tex.Civ.App.1963, no writ),. Edwards v. Edwards, 534 S.W.2d 740, Tex. Civ.App.—Austin, 1976 (not yet reported).

The division of the community property by the judgment was not equal and was weighted in favor of appellee. Under the circumstances, some of which have been set out, the trial court was justified in awarding more than one-half of the community estate to appellee.

Appellant complains in his fifth point of error that the court erred in entering judgment divesting him of his separate interest in the farm. The authority for the division of the property in a divorce action is found in Tex. Family Code § 3.63 (1975). That statute provides, “In a decree of divorce or annulment 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 and any children of the marriage.”

The predecessor of § 3.63 was Tex.Rev. Civ.Stat. Art. 4638 which provided, “The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate.” (Emphasis added). The emphasized language was omitted from § 3.63.

The issue raised by point of error five is whether the law now empowers the trial court to divest a person of his or her separate real property in a divorce action. The exact issue was considered in Ramirez v. Ramirez, 524 S.W.2d 767 (Tex.Civ.App.1975, no writ). In a scholarly opinion Chief Justice Nye examined the authorities and concluded that § 3.63 does not authorize the trial court to divest one of separate real property in a divorce action. We follow that opinion, and will sustain point of error five. Nevertheless, we are of the view that the trial court is empowered to set aside either spouse’s separate real property, its income, rents, or revenues for the support of the minor children. Fitts v. Fitts, 14 Tex. 443 (1855), Rice v. Rice, 21 Tex. 58 (1858), Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923). See: Tex. Family Code § 14.05(a) (1975).

By point of error two appellant maintains that the court erred in entering judgment providing that the child support payments were binding upon appellant “and his estate.”

Probably the provision in the judgment providing that the child support payments were binding upon appellant “and his estate” referred to Tex. Family Code § 14.-05(d). Section 14.05(d) provides that, “Unless otherwise agreed to in writing or expressly provided in the decree, provisions for the support of a child are terminated by the marriage of the child, the removal of the child’s disabilities for general purposes, or the death of a parent obligated to support the child.” (Emphasis added). The emphasized portion of § 14.05(d) empowered the court to bind appellant’s estate for payment of child support. We overrule point of error two.

We reverse that part of the judgment divesting appellant of title to his separate interest in the farm and imposing a $10,-000.00 lien in appellant’s favor on the farm. That part of the cause of action will be remanded for further proceedings to determine whether or not the appellant’s separate interest in the farm shall be set aside to be administered for the support of appellant’s minor children. In all other things, the judgment is affirmed.

Reversed and Remanded in Part and Affirmed in Part.

      . Dickens, David Copperfield, Chap. 11.


author: YOUNG, Justice.

text:
    CORPUS CHRISTI CLASSROOM TEACHERS ASSOCIATION et al., Appellants, v. CORPUS CHRISTI INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 1035.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 31, 1976.

      David L. Perry, Corpus Christi, for appellants.
    Richard Hall, Gary, Thomasson, Hall & Marks, Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

Because the trial court refused to temporarily enjoin a school district and its board of trustees from future violations of the Open Meetings Law while conducting hearings about the discharge of teachers, a teacher and a classroom teachers association appeal.

Appellants were plaintiffs in the trial court. Plaintiffs included the Corpus Christi Classroom Teachers Association, two of its officers, suing individually and as representatives of a class of school teachers, and L. D. Rumfield, an individual school teacher.

Appellees were defendants in the trial court. Defendants included the Corpus Christi Independent School District and its board of trustees.

The Open Meetings Law, in general, prohibits governmental bodies, such as school boards of trustees, from holding any closed meetings or executive sessions, with certain exceptions. Tex.Rev.Civ.Stat.Ann. art. 6252-17 (Supp.1975). The statute allows governmental bodies to close disciplinary and discharge hearings, unless the employee involved requests a public hearing. The appropriate portion of the statute reads as follows:

Sec. 2.
“(g) Nothing in this Act shall be construed to require governmental bodies to hold meetings open to the public in cases involving the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee or to hear complaints or charges against such officer or employee, unless such officer or employee requests a public hearing.” (Emphasis supplied.)

In other portions of the statute, meetings and deliberations are defined:

“Sec. 1. As used in this Act:
(a) ‘Meeting’ means any deliberation between a quorum of members of a governmental body at which any public business or public policy over which the governmental body has supervision or control is discussed or considered, or at which any formal action is taken .
(b) ‘Deliberation’ means a verbal exchange between a quorum of members of a governmental body attempting to arrive at a decision on any public business.”

A fair summary of the relevant facts shows these events and circumstances. Rumfield had been employed as a teacher by the school district for the 1974-75 school year under a first year probationary contract. This type of contract is automatically renewed at the end of each school year unless the district acts to terminate it; in which case the teacher, after other preliminary steps, is entitled to a hearing before the board. Tex.Educ.Code Ann. § 13.103 et seq. (1972).

In March of 1975 the district gave notice of its intention to terminate Rumfield’s contract. Whereupon Rumfield timely requested a hearing on the termination before the board. These actions culminated in a hearing before the board on May 19, 1975, at which hearing Rumfield was represented by counsel and by a representative of the classroom teachers association.

Before the hearing began, Rumfield exercised his right to request a public hearing under Sec. 2(g) of the Open Meetings Law, supra. Evidence was then presented on Rumfield’s behalf and on behalf of the district.

At or near the end of the presentation of the evidence, one or more of the board members inquired about whether it was permissible for the board to go into a closed session. The board’s attorney then advised the board that the law was not clear whether a closed session was permissible or not. The school district’s superintendent then advised the members of the board that they did have a right to go into closed session. Then the board did, in fact, proceed to a closed session, over the objections of Rum-field’s attorney. The general public, including Rumfield, his attorney, and the other appellants were excluded. The record is silent about the subjects that were discussed during the closed session.

After about fifteen minutes in closed session, the members of the board reopened the meeting and they voted to terminate Rumfield’s contract at the end of the 1974-75 year.

Thereafter, on August 1, 1975, Rumfield and the other appellants filed this suit from which their appeal arose. After receiving a copy of plaintiffs’ petition, the district’s superintendent sent a letter (undated) to Rumfield’s attorney tendering Rumfield a new and complete board hearing. The attorney received the letter on August 7, 1975, which was before the injunctive hearing started in the trial court, on August 14, 1975. There is nothing in the record about the results of the new hearing or whether it was held.

Evidence was presented at the hearing before the trial court on the matter of the appellants’ request for a temporary injunction. After the conclusion of the hearing, the trial court rendered and signed its order, on August 15,1975, denying the temporary injunction. From that order the appellants bring this appeal.

The appellants, in one point of error, contend that the trial court erred by refusing to grant a temporary injunction against future specific violations of the Open Meetings Law, where appellees’ violation of that statute was proven as a matter of law.

The first rule governing our review of this case is set out in Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460, 462 (1952). There our Supreme Court said that a trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction to preserve the rights of the parties preceding a final trial of the case, and when that discretion is exercised its order should not be overturned unless the record discloses a clear abuse of discretion. Further, we are required to review the evidence, and to draw legitimate inferences from the facts in evidence, in the light most favorable to the trial court’s judgment. Erickson v. Rocco, 433 S.W.2d 746, 750 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.). And the applicant bears the burden of establishing facts entitling him to an injunction. See 31 Tex.Jur.2d Injunctions § 150 (1962) and cases therein cited.

We will consider first the appellants’ contention that they have proven as a matter of law the appellees’ violation of the Open Meetings Law. As we have stated, the board did proceed into a closed session at Rumfield’s hearing before a final decision was subsequently made in open meeting. And if the members of the board, in the closed session, deliberated about or discussed Rumfield’s “evaluation, reassignment, duties, discipline, or dismissal”, it is clear to us they did so in contravention of the Open Meetings Law. Section 1(a) and (b), supra; Sec. 2(g), supra. Those sections unqualifiedly prohibit the board’s discussion, over a teacher’s objection, of that teacher’s dismissal or termination in closed session.

In our case, the record is silent about what was discussed, if anything, while the board was in closed session. The trial court, therefore, was entitled to decide that the appellants failed in their burden to show a violation by the board of the Open Meetings Law. If there was no violation, then it is our duty to uphold the trial court’s order denying the temporary injunction.

But it is not necessary for us to affirm or reverse the trial court’s judgment based upon whether or not the appellees violated the Open Meetings Law. Even if we assume that the appellees did violate the law by the closed session that was objected to, and that the trial court believed that the violation occurred, we would still be required to affirm the trial court for the reasons that follow about the probability of future violations.

As we have noted, we must review the evidence and draw inferences in the light most favorable to the trial court’s judgment. Which brings us to an examination of the favorable evidence the trial court could have considered about the probability of future violations of the Open Meetings Law by the board in the conduct of its meetings.

When the matter of a closed session by the board arose at Rumfield’s termination hearing, the board’s attorney advised, in substance, that the propriety of a closed session was not clear under the law. Subsequently, after the appellants filed suit, the district’s superintendent tendered Rumfield a new and complete hearing.

From that evidence the trial court could have reasonably inferred that the board, because of the advice of its attorney, did not intentionally violate the Open Meetings Law; that, thereafter, the board reconsidered the propriety of its engaging in a closed session; and that to show good faith, the tender was made to Rumfield of the new hearing. Thus, the trial court could have reasoned that the violation was hot likely to recur.

In that regard, we approve of the reasoning set out in Spears v. City of South Houston, 136 Tex. 218, 150 S.W.2d 74 (Tex.Com. App.1941, opinion adopted) and Panola County Commissioners Court v. Bagley, 380 S.W.2d 878 (Tex.Civ.App.—Texarkana 1964, writ ref’d n. r. e.).

From Spears, at page 77, we quote: “The mere belief of plaintiffs, unless predicated upon something more than the acts of the officials for the one year just ended, is but a circumstance tending to show the officials would probably expend the funds in the same general manner (illegally) as in the preceding year; and is not sufficient to create more than - a vague apprehension of injury on the part of plaintiffs. It was not sufficient to constitute a threatened irreparable injury to the plaintiffs, and for this reason was not sufficient to warrant the trial court in granting the temporary writ applied for. ...”
And from Bagley, at page 884, we find: “The alleged improper and claimed illegal acts complained of by plaintiffs-appellees were all past and completed acts. It is well settled law that in the absence of a showing that they probably will recur, past acts and practices will not furnish a basis for injunctive relief. . . . ”

In further support of the trial court’s judgment is the existing presumption that public officials will do their duty in a legal manner. See 47 Tex.Jur.2d Public Officers § 118 (1963).

Considering that presumption and those facts and inferences we have discussed, we hold that the trial court did not abuse its discretion by denying the appellants’ request for a temporary injunction. Appellants’ point of error is overruled.

The judgment of the trial court is therefore affirmed.


author: BISSETT, Justice.

text:
    EDINBURG MEAT PRODUCTS COMPANY, Appellant, v. The VERNON COMPANY, Appellee.
    No. 1030.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 31, 1976.

      Alfonso Ibanez, Pena, McDonald, Prestía & Zipp, Edinburg, for appellant.
    Kelley, Looney, Alexander & Hiester, Ed-inburg, for appellee.
   OPINION

BISSETT, Justice.

This is an appeal from a judgment for plaintiff on the pleadings in a suit on sworn account. In the trial court, the Vernon Company was plaintiff and Edinburg Meat Company was defendant. The original petition and the account statements thereto attached, duly verified in accordance with the requirements of Rule 185, T.R.C.P., was filed on December 3, 1974. The petition sets out a cause of action based on an account with defendant for the sale of some calendars to defendant by plaintiff.

Defendant filed an unsworn original answer on December 5, 1974, which consisted of a general denial. On January 25, 1975, defendant filed a pleading entitled “Denial of Sworn Account”, which reads, as follows:

“DENIAL OF SWORN ACCOUNT TO THE HONORABLE JUDGE OF SAID COURT:
Again comes Defendant, EDINBURG MEAT PRODUCTS CO., and shows the Court that the claim alleged in Plaintiff’s Original Petition which is the foundation of its action herein, including the exhibits therein, are not just or true in the following particulars:
(a) In that the invoices designated as Exhibit ‘A’ are duplication orders, erroneously shipped by Plaintiff to Defendant herein and the merchandise therein is priced at an excessive price not agreed upon by Defendant herein.
(b) In that similar merchandise required one year prior was missent to another company in California, and credited therefore was to be given Defendant herein on any new purchases. Therefore, legal offsets and credits are not shown or given on said account.
WHEREFORE, PREMISES CONSIDERED, Defendant prays that Plaintiff take nother by its suit and that Defendant go hence with his costs without day.
EDINBURG MEATS PRODUCTS CO.
BY /s/ A. J. Vale_ A. J. Vale, President”

The jurat attached thereto is in the language:

“SUBSCRIBED AND SWORN to before me by the said Arturo J. Vale, on this the 23rd day of January, 1975.
Pattilee Beutnagal
Notary Public, Hidalgo County,
Texas”

Plaintiff, on May 13, 1975, filed its first supplemental petition, which alleged an alternative cause of action against defendant based on breach of contract. It was asserted therein that defendant entered into written contracts with plaintiff, whereby plaintiff was to furnish calendars to defendant as set out in the contracts, and defendant was to pay plaintiff the agreed price for same, which promise to pay was breached by defendant.

On May 19,1975, defendant filed a pleading which was also entitled “Denial of Sworn Account”. It reads, as follows:

“DENIAL OF SWORN ACCOUNT TO THE HONORABLE JUDGE OF SAID COURT:
Now Comes Edinburg Meat Products Company, Defendant in the above numbered and styled cause, and shows the Court that each and every item in Plaintiff’s Petition which is the foundation of Plaintiff’s action, including the attached exhibits, is not just and true. And of this he prays judgment that Plaintiff take nothing by his suit and that Defendant go hence with his costs without day.
THE STATE OF TEXAS ] COUNTY OF HIDALGO J
BEFORE ME, the undersigned authority, A Notary Public in and for said County and State, on this day personally appeared Alfonso Ibanez, to me well known to be a credible person and qualified in all respects to make this affidavit, who being by me duly sworn, upon oath states that he has read the foregoing Denial of Sworn Account designed to be used in the cause of The Vernon Co. vs. Edinburg Meat Products Co. in the County Court at Law in Hidalgo County, Texas, and knows the contents thereof, that he is the attorney of record of the Defendant in such cause and that such Denial of Sworn Account is in every respect true and correct.
/s/ Alfonso Ibanez_ Alfonso Ibanez
SUBSCRIBED AND SWORN TO before me by the said Alfonso Ibanez on this the 19th day of May, A.D., 1975, to certify which witness my hand and seal of office.
/s/ Yolanda D. Garcia_ Notary Public in and for
Hidalgo County, Texas”

The case was set for trial before the court without a jury. Plaintiff, when the case was called for trial on May 22, 1975, announced “ready”, and then moved for judgment on the pleadings on the ground that its cause of action based on sworn account had not been controverted by a legally sufficient sworn denial. At the conclusion of argument on the motion, judgment was rendered for plaintiff. No evidence was introduced by plaintiff. The judgment, in part, recites:

“. . . The Court, after having heard the evidence and argument of counsel on Plaintiff’s Motion, is of the opinion that Defendant’s operative answer is insufficient as a matter of law and therefore Plaintiff should have Judgment as plead for in its Original Petition herein, to-wit: for $757.53, plus interest on its Judgment at the rate of 6% per annum, plus $200.00 in reasonable attorney’s fees, and its costs of suit.
THEREFORE, it is ORDERED, ADJUDGED AND DECREED that Plaintiff recover of Defendant and Defendant pay to Plaintiff its damages in the amount of $757.53, plus interest on that amount at the rate of 6% per annum from the date of Judgment, attorney’s fees in the amount of $200.00, and costs of suit, for which let execution issue.”

Defendant has duly perfected an appeal from that judgment.

Defendant, in points of error 1 and 2, contends that the trial court erred in rendering judgment for plaintiff on the pleadings because its defensive pleadings were sufficient to controvert the action brought against it by plaintiff. It argues that the first “Denial of Sworn Account” was sufficient to put the matters raised in plaintiff’s original petition in issue, and that the second “Denial of Sworn Account” was, in fact, a supplemental answer to plaintiff’s unverified supplemental petition, which put in issue the allegations made in the supplemental petition. •

Rule 185, T.R.C.P., insofar as the same is applicable to this appeal, states that a proper pleading based on a sworn account:

“. . . shall be taken as prima facie evidence thereof, unless the party resisting such claim shall, before an announcement of ready for trial in said cause, file a written denial, under oath, stating that each and every item is not just or true, or that some specified item or items are not just and true; . . .”

Rule 93(k), T.R.C.P., provides, in part, that the following matters, unless the truth of such matters appears of record, shall be verified by affidavit:

* * * * * *
“(k) That an account which is the foundation of the plaintiff’s action, and supported by the affidavit, is not just; and, in such case, the answer shall state that each and every item is not just or true, or that some specified item or items are not just and true. (Emphasis supplied).”

Plaintiff claims that defendant’s “Second Denial of Sworn Account” is, in fact, an amended pleading which completely replaced the first “Denial of Sworn Account”. It further claims that even though it be held that the “Second Denial” is merely a supplemental answer in response to plaintiff’s first supplemental petition, or even if the two denials are considered together, that the requirements of Rules 185 and 93(k), T.R.C.P., have not been met in connection with its cause of action based on sworn account, as alleged in its original petition.

The cases which have interpreted Rules 185 and 93(k) have uniformly required strict adherence to the requirements of the rules. Goodman v. Art Reproductions Corporation, 502 S.W.2d 592 (Tex.Civ. App.—Dallas 1973, writ ref’d n. r. e.); Oliver Bass Lumber Co., Inc. v. Kay & Herring Butane Gas Co., Inc., 524 S.W.2d 600 (Tex. Civ.App—Tyler 1975, no writ). A denial of a sworn account must be in compliance with those rules, and if it is not, the defendant will not be permitted to deny the plaintiff’s claim or any item included therein. Wilson v. Browning Arms Company, 501 S.W.2d 705 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ ref’d).

Rule 185 is a rule of evidence. In the absence of a sworn denial in compliance with the requirements of the Rule, the sworn account is received as prima facie evidence as against the defendant sued thereon, and the defendant may not dispute the receipt of the items or services, or the correctness of the stated charges. 2 McDonald, Texas Civil . Practice, § 7.31 (1970).

It is not necessary for this Court to decide whether the “Second Denial of Sworn Account” is an amended pleading that replaced the first “Denial of Sworn Account”. Neither the first nor the second denial is in substantial compliance with Rules 185 and 93(k), T.R.C.P. Whether the second denial is, in effect, an answer in response to plaintiff’s first supplemental petition is immaterial to the disposition of this appeal. Judgment was not rendered on the basis of a breach of contract. Plaintiffs motion for judgment on the pleadings was directed to its action on sworn account. It was stated in the judgment: “Plaintiff should have judgment as plead for in its Original Petition” ; judgment was rendered on that basis.

Even if we were to consider the first denial as a live pleading, it does not meet all of the mandatory requirements of the Rules. It is a partial denial only and does not constitute a denial which states that “each and every item is not just or true, or that some specified item or items are not just and true (emphasis supplied)”, as required by the Rules. Moreover, there is no showing that A. J. Vale, who signed the pleading and made the jurat affixed thereto, had any personal knowledge of the facts stated in the body of the pleading. Without such assertion of personal knowledge by the affiant, the requirements of a verified denial are not met.

The second denial purports to deny the entire claim. It is also fatally defective. It is couched in terms of “each and every item” in plaintiff’s claim, but goes on to state that the claim “is not just and true (emphasis supplied)”, while the Rules require that a denial of the whole claim state that each and every item of the claim is not just or true. Furthermore, there is no showing in the affidavit to the second denial that Mr. Ibanez, the attorney for defendant, who made the affidavit attached to the pleading, had any personal knowledge of the facts set out in the body of the pleading.

In the state of the record here presented, plaintiff was not required to put on any proof of the facts alleged by it in its petition on sworn account beyond the facts alleged in its sworn petition. Collins v. Kent-Coffey Manufacturing Company, 380 S.W.2d 59 (Tex.Civ.App.—Eastland 1964, writ ref’d); Wilson v. Browning Arms Company, supra; Glasco v. Frazer, 225 S.W.2d 633 (Tex.Civ.App. — Dallas 1949, writ dism’d). Plaintiff was entitled to judgment on his sworn account pleadings in the amount of $757.53, plus interest thereon as provided in the judgment. Defendant’s points 1 and 2 are overruled.

Defendant, in point 3, asserts that the trial court erred in awarding $200.00 to plaintiff as attorney’s fees because there is no evidence to support such an award. We agree. Plaintiff argues that the judgment with respect to attorney’s fees was proper because Tex.Rev.Civ.Stat.Ann. Art. 2226 (1971), provides that the trial court may take judicial knowledge of the current State Bar Minimum Fee Schedule and the contents of the case file in determining a reasonable attorney’s fee without the necessity of hearing further evidence. No evidence was offered on the issue of reasonable attorney’s fees.

The original answer filed by defendant, although legally insufficient to put in issue the matters relating to the action on sworn account, was legally sufficient to controvert plaintiff’s action to recover reasonable attorney’s fees. The filing of the first and second denials had no effect upon the general denial insofar as the issue on attorney’s fees is concerned. Plaintiff’s motion for judgment on the pleadings invoked the judgment of the trial court on questions of law as applied to the pleaded facts.

Plaintiff, in its original petition, with respect to the issue of attorney’s fees, alleged:

“That though demand has been made upon the Defendant to pay said account, more than 30 days prior heretofore, said account remains unpaid and the Plaintiff has, therefore, found it necessary to employ the undersigned attorneys to represent it herein and has promised to pay said attorneys a reasonable attorney’s fee in the amount of $200.00, plus costs.”

The allegation that plaintiff was entitled to recover attorney’s fees was contested by defendant’s general denial, a proper pleading. Therefore, the burden was on plaintiff not only to allege presentment of its claim but to also prove presentment of such claim to defendant more than 30 days prior to the date judgment was rendered. Gateley v. Humphrey, 151 Tex. 588, 254 S.W.2d 98 (1952); El Paso Mid. & Mfg. Co., Inc. v. Southwest For. Ind., Inc., 492 S.W.2d 331 (Tex.Civ.App.—El Paso 1973, writ ref’d n. r. e.); Stafford v. Brennan, 498 S.W.2d 703 (Tex.Civ.App.—Corpus Christi 1973, no writ); G & W Marine, Inc. v. Morris, 471 S.W.2d 644 (Tex.Civ.App.—Beaumont 1971, no writ).

There is no evidence of any presentment by plaintiff of its claim. The “no evidence” point must be sustained.

The issue of reasonableness of attorney’s fees is a question of fact, not of law. Article 2226 contemplates that in a trial before a court without a jury, the State Bar Minimum Fee Schedule shall be prima facie evidence of reasonable attorney’s fees. Thus, in a non-jury case, where there is a trial, the court may take judicial knowledge of the minimum fee schedule as to the reasonableness of the attorney’s fees for the legal services rendered. In this case, however, the judgment was not rendered following a non-jury trial. There was no trial on any contested issue of fact. The reasonableness of attorney’s fees, as well as the issue of sworn account, was decided as a matter of law. Under the record here presented, the trial court had no evidence before it that could furnish a basis for awarding reasonable attorney’s fees, a controverted issue of fact. Since the judgment which was rendered, a judgment on the pleadings, could only resolve questions of law, the portion of the statute which provides that the minimum fee schedule in an action on sworn account shall be prima fa-cie evidence of reasonable attorney’s fees has no application to this appeal.

The Supreme Court, in Coward v. Gateway Nat. Bank of Beaumont, 525 S.W.2d 857 (Tex.Sup.1975), said that in a summary judgment proceeding, the minimum fee schedule, without more, was not conclusive on the issue of reasonableness of attorney’s fees. There is no reason why that rule should not be applied to a case where there is no trial before the court, but judgment on the pleadings is rendered in advance of a trial. Plaintiff’s right to an attorney’s fee of $200.00 was not established as a matter of law. Defendant’s point 3 is sustained.

That portion of the judgment which awarded plaintiff a recovery of $757.53, plus interest on that amount at 6% per annum from date of judgment, is affirmed. That portion of the judgment which assessed all of the court costs against defendant is reformed, and judgment is here rendered that ½ of such costs be and the same is hereby assessed against defendant and the remaining V2 be and the same is hereby assessed against plaintiff. That portion of the judgment which awarded plaintiff a recovery of $200.00, as attorney’s fees, is reversed, and judgment is here rendered that plaintiff take nothing in its action to recover attorney’s fees. Costs incurred in this Court are taxed ½ to defendant and ½ to plaintiff.

AFFIRMED IN PART, REFORMED IN PART, AND REVERSED AND RENDERED IN PART.

      . The statute, as now amended, in part, provides:
      “Any person, . . . having a valid claim against a person or corporation for services rendered, labor done, material furnished, or suits founded upon a sworn account or accounts, may present the same to such persons or corporation or to any duly authorized agent thereof; and if . . .he should finally obtain judgment for any amount thereof ... he may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees. The amount prescribed in the current State Bar Minimum Fee Schedule shall be prima facie evidence of reasonable attorney’s fees. The court, in non-jury cases, may take judicial knowledge of such schedule and of the contents of the case file in determining the amount of attorney’s fees without the necessity of hearing further evidence.”


author: HOLMAN, Judge.

text:
    Theodore Lafayette EWING, Petitioner, v. Donald W. WYRICK, Respondent.
    No. 59237.
    Supreme Court of Missouri, En Banc.
    April 14, 1976.
    Lee M. Nation and Thomas M. Larson, Kansas City, for petitioner.
    John C. Danforth, Atty. Gen., by Paul Robert Otto, Asst. Atty. Gen., for respondent.
   HOLMAN, Judge.

Habeas corpus proceeding wherein the petitioner asserts that he is being unlawfully confined in the penitentiary by reason of an order and judgment of the Circuit Court of Jackson County, Missouri, which revoked his probation.

On August 18, 1970, petitioner entered a plea of guilty on two counts of first degree robbery in the Circuit Court of Jackson County, Missouri. On November 6, 1970, after a pre-sentence investigation, petitioner was, in each case, sentenced to ten years in the Missouri Department of Corrections, the sentences to run consecutively. Execution of the sentences was stayed and petitioner was placed on probation under the supervision of the Missouri State Board of Probation and Parole for a period of five years in each case. With the permission of the probation department petitioner began service of his probationary period in St. Louis, Missouri.

On August 29, 1972, petitioner was arrested in East St. Louis, Illinois, for the armed robbery of a Hill Brother’s Shoe Store. On February 12, 1973, petitioner was also arrested by Brentwood, Missouri police for the armed robbery of a Schnuck’s supermarket (hereinafter Brentwood robbery). After arraignment and having failed to post bond, petitioner was confined in the St. Louis County jail on February 13, 1973, to await the preliminary hearing on the charge of armed robbery arising from the Brentwood robbery. On February 21, 1973, the Circuit Court of Jackson County issued a capias warrant for the petitioner’s arrest based on probation violations. Counsel was appointed to represent petitioner in the proceedings on the Brentwood robbery. A preliminary hearing on the Brentwood charge was held on March 6, 1973, in the Magistrate Court of the First District in St. Louis County. The Magistrate found there was probable cause and ordered petitioner bound over to the circuit court.

On April 16, 1973, petitioner appeared before the Circuit Court of Jackson County and counsel was appointed to represent him in the revocation proceedings. At that time petitioner was given written notice of the probation violations with which he was charged.

Petitioner applied for bail in the Circuit Court of Jackson County on May 8, 1973, which application was denied. Sometime in May, 1973, petitioner was returned to the St. Louis County jail to await trial on the Brentwood robbery charge. Prior to August 20, 1973, petitioner was returned to Jackson County for probation revocation proceedings. On August 20, 1973, petitioner, in the presence of his counsel and a probation officer, made a written request to the Missouri Board of Probation and Parole that a preliminary revocation hearing be held. The following day, August 21,1973, a revocation hearing was held in the Circuit Court of Jackson County. At the conclusion of that hearing the trial judge revoked petitioner’s probation. Petitioner’s motion for reconsideration of probation revocation was denied on August 30, 1973.

On October 13, 1975, upon the petition of Ewing this court issued its writ of habeas corpus in this cause. Respondent timely filed his return. The case was subsequently briefed, argued and submitted.

We will first consider the question as to whether there was sufficient evidence presented at the revocation hearing to support a revocation of petitioner’s probation. The probation reports submitted by petitioner’s probation officer specified two violations of the conditions of probation which had been imposed. The two named violations were: “Failure to obtain advance permission before leaving the state, or the area in which [petitioner] was living” and “Failure to obtain advance permission from the probation officer regarding ownership or possession of a firearm.” At the revocation hearing the supervising probation officer testified that petitioner’s probation officer had given petitioner permission to travel in Illinois only while he was engaged in his occupation as a cab driver. The petitioner testified at the hearing that he had gone to East St. Louis to apply for employment as a janitor with the 189th School District on the day that he was arrested for the Hill Brother’s Shoe Store robbery. A police officer from the Brentwood Police Department also testified as to the circumstances surrounding petitioner’s arrest for the Brent-wood robbery. He stated that he arrested petitioner a short distance from Schnuck’s supermarket approximately five minutes after receiving a report of the robbery and that at the time of the arrest petitioner was holding a pistol and had another pistol tucked in the waistband of his trousers. The officer further testified that a brown paper sack which was recovered from underneath the car in which petitioner was riding contained $909.03 in cash which was the exact amount of money taken in the Schnuck’s robbery. Petitioner denied possession of a gun and any knowledge concerning the money under the car.

The degree of proof for a probation revocation is less than that required to sustain a criminal conviction. The hearing judge need only be reasonably satisfied that the terms of the probation have been violated. State v. Wilhite, 492 S.W.2d 397 (Mo.App.1973). The trial judge concluded that petitioner violated both of the conditions named by the petitioner’s probation officer. We find the above evidence sufficient to support revocation.

Petitioner contends that he was denied procedural due process because of an unreasonable delay in holding a preliminary hearing to determine if there was probable cause to believe petitioner had violated the conditions of his probation. The petitioner relies on Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) to support his contention that a reasonably prompt hearing must be held to determine if there is probable cause to believe that the probationer has violated his probation.

In Morrissey, supra, the United States Supreme Court dealt with the procedure to be followed in administrative parole revocations. In Gagnon the court extended the minimum due process requirements set forth in Morrissey to administrative probation revocations. In Missouri probation is controlled by the judiciary. See Section 549.071, Moore v. Stamps, 507 S.W.2d 939 (Mo.App.1974).

While neither Morrissey nor Gagnon apply directly to judicial probation the general thrust of the decisions is to require that certain minimum standards in probation revocations be followed to satisfy due process.

In Moore v. Stamps, supra, the court discussed Morrissey and Gagnon in some detail and specified the minimum due process requirements applicable to revocation proceedings. Among other requirements, the cases state that probation should not ordinarily be revoked until after a two-stage hearing, i. e., (1) a preliminary hearing for the determination of probable cause to be held before some impartial hearing officer shortly after arrest and (2) a more formal final revocation hearing within a reasonable time thereafter.

Petitioner contends that in this case the minimum due process requirements set forth in Morrissey and Gagnon were not met because there was no probable cause hearing. As pointed out in Moore it is possible in this state to satisfy the due process requirements of Gagnon in one judicial proceeding if all the requirements of due process for the final hearing as outlined in the cases, are afforded and the hearing is held within a reasonable time after the probationer’s arrest. We have decided that we need not determine whether the hearing in this case was held within a reasonable time after arrest.

There is some question as to whether any probable cause hearing was held in this case. In one place the record indicates that the trial court considered a conference which took place the day before the final hearing as a preliminary or probable cause hearing. In another place the court indicated that the hearing which was held would be considered both the preliminary and revocation hearing. For the purposes of this case we will assume that no separate probable cause hearing was held.

The respondent contends that under the facts of this case no probable cause hearing was required. This for the reason that the prompt preliminary hearing accorded petitioner on the robbery charge should be considered a compliance with or substitute for a preliminary hearing in the probation matter. Although the revocation sought was not based upon a subsequent violation of law it was closely related to the robbery charge pending in St. Louis County. It was primarily based upon possession of a firearm on the date of the robbery. The robbery was alleged to have been committed by use of a gun. A preliminary hearing on that charge and a finding of probable cause that petitioner was guilty thereof necessarily amounts to a finding of probable cause that petitioner possessed a gun on that date. In view of that hearing at which petitioner was present and represented by counsel it would seem wholly unnecessary to have a separate preliminary or probable cause hearing in the probation revocation matter. We are supported in this view by Commonwealth v. Davis, 336 A.2d 616[12] (Pa. Super.1975) and People v. Andre, 37 Cal.App.3d 516, 112 Cal.Rptr. 438[4, 5] (1974). Other cases, however, indicate that due process would require that for a hearing to serve that dual purpose the probationer should have notice of the intended nature and effect of the hearing. In Re Law, 10 Cal.3d 21, 109 Cal.Rptr. 573, 513 P.2d 621[7] (Cal.Sup.1973). We agree with that requirement. In the case at bar there is nothing to indicate that petitioner received any notice that the preliminary hearing was to also serve as the probable cause hearing in the revocation matter.

In any event petitioner is not entitled to relief by reason of the failure to hold a probable cause hearing and any delay in holding the final revocation hearing unless he was prejudiced thereby. And the burden is upon him to make such a showing. People v. Hunt, 29 Ill.App.3d 416, 330 N.E.2d 883 (1975), State v. Gideon, 510 S.W.2d 190[6] (Mo.App.1974), State v. Gibson, 502 S.W.2d 310 (Mo.1973) and State v. Crider, 451 S.W.2d 825[2] (Mo.App.1970).

Petitioner first contends that the delay was prejudicial because the arresting officer’s testimony at the revocation hearing placed a gun in petitioner’s hand rather than underneath the car as stated in the arrest report. There is no merit in that suggestion. The officer testified at the hearing that he was the author of the report and that the report was in error. There is nothing to indicate that his testimony would have been any different if the hearing had been held soon after the arrest. It is reasonable to assume that the officer would give the true version of the event and thus correct the error in the report regardless of when the hearing was held.

It is also stated that, “Although the alleged violations occurred in St. Louis, petitioner was confined in Kansas City for such a lengthy period and denied access to possible favorable evidence and witnesses.” This contention is not factually correct. The evidence indicates that the major portion of the period of his confinement was in St. Louis County. He had ample opportunity to seek favorable witnesses.

Petitioner also says that, “An important issue to be proved would be the probationer’s acceptance of the conditions of his release and his demonstrated responsibility while on probation. This important evidence is simply impossible of proof if the probationer has spent the last six months incarcerated. Clearly, prejudice can be implied from the delay.” We see no merit in that argument. Petitioner had an opportunity to demonstrate that he was a good probation risk from the time probation was granted until his arrest. It was proper that he be confined during the period between arrest and hearing. He was not entitled to be released and given a second opportunity to demonstrate good conduct during that period of time.

Finally, it should be noted that subsequent to the probation revocation petitioner entered a plea of guilty to the Brentwood robbery charge and was sentenced thereon. That procedure should be considered conclusive evidence that petitioner possessed a gun on the date in question and was guilty of committing a felony while on probation. In view of that development it seems quite clear that petitioner could not have been prejudiced by any delay or other procedural irregularity in the revocation proceedings.

The writ of habeas corpus should accordingly be quashed and petitioner remanded to the custody of respondent.

All concur.

      . All statutory references are to V.A.M.S.