author: CURTISS BROWN, Justice.

text:
    HOUSTON CHRONICLE PUBLISHING COMPANY, Appellant, v. CITY OF HOUSTON et al., Appellees.
    No. 1116.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 26, 1975.
    Rehearing Denied Dec. 17, 1975.

      W. Robert Brown, Robert J. King, Lid-dell, Sapp, Zivley & Brown, Houston, for appellant.
    Jonathan S. Day, Frank L. Mauro, Houston, for appellee.
    Mary Joe Carroll (Texas Daily Newspaper Assn.), Clark, Thomas, Denius, Winters & Shapiro, Austin, David M. Kendall, Asst, Atty. Gen., Austin, amicus curiae.
   CURTISS BROWN, Justice.

The City of Houston, through its police department, maintains a number of forms, records, and instruments relating to police activities, criminal investigations, and incarceration of persons in the jail facilities.

One of these records is called an “Offense Report.” This report includes: the offense committed, location, identification and description of complainant, premises, time of the occurrence, property involved, vehicles involved, identification and description of witnesses, weather, details of the offense in question, and the names of the investigating officers. Supplementary Offense Reports are frequently added, which may include such items as a synopsis of a purported confession, officers’ speculations about a suspect’s guilt, investigating officers’ views on a witness’s credibility, statements by informants, ballistics reports, fingerprint comparisons, and blood and other laboratory tests. Under the evidence, the material contained in the Offense Report is broad enough to justify the inference that it could also include matters such as the results of polygraph tests, the refusal to take such tests, paraffin test results, and spectro-graphic or other investigative reports.

The “Personal History and Arrest Record” relates to the arrests and criminal activities of individuals. It contains various identifying numbers, name, race, sex, aliases, place and date of birth, and physical description, with particular emphasis on scars and tattoos. Other personal information included relates to occupation, marital status, and relatives. A mug shot, palm prints, fingerprints, and similar information are included, along with the signature of the arrested party. The principal information maintained by this record is the chronological history of any arrests of that individual. In the event additional arrests are made, they are simply added to the record. The information shows the offense, time of arrest, booking number, location, and arresting officers. This record may or may not be updated to provide information concerning the disposition of the matter. The length of this compilation of arrests depends on the number of times the individual has been handled by the police.

Another record is the “Houston Police Blotter.” This form includes the arrestee’s social security number, name, alias, race, sex, age, occupation, address, “I.D.” number, and physical condition. The Blotter also shows by whom the arrest was made, the date and time thereof, and booking information, as well as the charge made and the court in which it was filed. Details of the arrest are also given. This record notes any release or transfer, and bonding information.

A record known as a “Show-up Sheet” is maintained for each twenty-four hour period, showing in chronological order the name of each person arrested in Houston. This record lists in numbered order the arrested individual’s name, age, and Houston identification number, the place of arrest, the officers through whom the arrest was effected, and numbers for what may be statistical purposes relating to the modus oper-andi or “M.O.” of those apprehended.

Also maintained is what is called an “Arrest Sheet,” which is somewhat similar to the Show-up Sheet. This record reflects the arrests made from 8:00 A.M. one day to the same hour the next. It simply lists in numbered order the name, race, and age of the suspect. In addition it states the place of arrest, the names of the arresting officers, and the offense for which the suspect was arrested.

For as long as veteran newspaper editors and reporters could recall, the police department had routinely given access to members of the accredited media to the Offense Reports and to the Personal History and Arrest Records. This practice had not always been followed by the Narcotics Division. However, this division was following the same practice on June 14, 1973, the effective date of Tex.Rev.Civ.Stat.Ann. art. 6252-17a (Supp.1974) (hereinafter referred to as the Open Records Act). There is some indication that in rare instances the investigating officers might deny access to the Offense Reports temporarily to avoid hindering the investigation or to facilitate the making of an arrest. Even on these occasions the Offense Report ultimately became available to the press. In the case of Personal History and Arrest Records, access was had by a limited number of persons and corporations. The access of these persons and corporations was much more restricted than that of the press. In general these persons and corporations consisted of large employers inquiring into the criminal records of prospective employees. The restrictions included the permission of the individual involved for the examination of his or her record and the agreement to hold the City harmless from liability. Certain credit agencies had such privileges under similar guidelines. Insurance companies and relatives of victims were likewise permitted to view these records under some circumstances.

With the exception of the Police Blotter, all of the records maintained by the department and outlined above were available to the press on the effective date of the Open Records Act. The importance of these records to the press for use in the reporting of crimes of interest to the public is undisputed. The record is replete with the expert opinion of highly qualified editors and criminal news reporters that reporting of crime to the interested public would be damaged, hindered, and hampered by the unavailability of these records. The two most important records, and the ones most at issue here, are the Offense Report and the Personal History and Arrest Record. The evidence is that without such records there would be “holes” in the news story. Furthermore, the press has an obligation to the public to inform them of police activities. ' In order to accomplish this it must obtain the news. When a paper can no longer obtain the news it cannot remain a successful newspaper. The Offense Reports represent a handy vehicle at a central location which enables a reporter on a criminal beat to evaluate the newsworthiness of the crime in question, the newsworthiness of the persons involved, and the effectiveness of our law enforcement agencies and ultimately our judicial processes. The usefulness of the Personal History and Arrest Record or “rap sheet” is not so clear, except as to identify notorious, flagrant, and habitual offenders. The use of this material obviously involves a weighing of conflicting valid interests. While there may have been isolated cases of abuse, the record in this case would reflect that such access to these materials has been used responsibly by the press in discharge of a high public purpose.

The practices outlined above were continued until a series of events in January of 1974. The Houston Post requested that the airport security arrest records for the year previous be made public. The City declined the request and requested an Attorney General’s opinion. In Open Records Decision No. 18 (January 15,1974) the Attorney General ruled that the information sought was protected from public disclosure because it constituted arrest records dealing with the detection and investigation of crime, and were records maintained for internal use by the agency in law enforcement. The City Attorney of Houston had issued, on the day previous, his opinion that expressed the view that arrest and offense information were rendered confidential by the provisions of the Open Records Act.

Not surprisingly, representatives of the news media were shocked to discover that legislation that was declared to be for the purpose of opening up to public scrutiny functions of government was being construed to deny access to reports previously available to the press. Following the hue and cry thus raised, the Attorney General took occasion to render his Open Records Decision No. 18A on March 25, 1974. In this decision he adhered to the opinion expressed in Open Records Decision No. 18, but expanded his opinion to include the view that the Act does not disturb the right of police agencies to continue to make available to the press factual information concerning arrests that was customarily furnished prior to the passage of the law. He further expressed the view that the custodian should cooperate in abstracting such information from records that are otherwise unavailable, so long as no confidentiality or right of privacy established by constitution, by statute, or by the courts is violated.

Responding to the second opinion of the Attorney General, the City has followed the policy of allowing media access to Offense Reports, but reserving the right to withhold them if deemed advisable. The City has continued throughout to refuse to allow inspection of Personal History and Arrest Records as permitted before January 14, 1974.

An important segment of the Houston media, the Houston Chronicle Publishing Company (the Chronicle or appellant), refused to accept the City’s posture and instituted this suit against the City of Houston (City or appellees), the Mayor, and the Chief of Police, seeking a declaratory judgment pursuant to Tex.Rev.Civ.Stat.Ann. art. 2524-1 (1965) and an injunction. The Chronicle sought a declaration that the Open Records Act established a statutory right of access to Offense Reports and Personal History and Arrest Records, and that the policies of the City of Houston in exercising discretion in the release of the former and denying access to the latter were in violation of that statute. In addition, the Chronicle prayed that it be declared that the above policies of the City of Houston violated its right to freedom of the press as guaranteed by the first amendment of the Constitution of the United States and by the Bill of Rights contained in the Constitution of the State of Texas.

Trial was to the court on the merits. In the judgment of the court below it was held that the Open Records Act did not provide a statutory right for denial of the inspection of the Offense Reports and Personal History and Arrest Records, and the City was enjoined from denying access to the records on this ground. It also declared that the Open Records Act did not provide the Chronicle any statutory right of access to such records. The trial court further found that sections 3(a)(1), 3(a)(8), 6(1), 6(15), and 14(a) of the Open Records Act, considered separately and together, are improperly overbroad, vague, in conflict with each other, an unauthorized delegation of a legislative function, discriminatory as between various areas of the state and among the agencies within the same localities, and provide no objective standards for discretionary policies. Accordingly, it was decreed that the above cited sections were void, severed, and rendered unenforceable. Finally, all relief not specifically granted or denied was denied. The Chronicle and the City duly excepted and perfected this appeal.

The Attorney General of the State of Texas was notified of the trial and sent an observer. However, the Attorney General did not intervene and did not formally participate in the trial of the case. He has filed a brief seeking to intervene on the appellate level. Our attention has not been directed to any rule or case permitting such an intervention after appeal. We, therefore, denied such motion for intervention. However, the Attorney General has filed a brief which we have fully considered as amicus curiae. We have also been favored with an excellent amicus curiae brief filed by the Texas Daily Newspaper Association.

The case presents important questions to our jurisprudence in at least three respects: (1) Constitutionality of the Open Records Act, particularly the sections declared unenforceable by the trial court; (2) Construction of the Open Records Act as it may involve records of law enforcement agencies; (3) Existence and extent of the right of the press to have access to public records under the freedom of press granted by the first amendment of the Constitution of the United States and the Bill of Rights of the Constitution of the State of Texas. We shall discuss these three important questions separately.

I. Constitutionality of the Act

In connection with the constitutionality of the Act (or certain parts thereof), it should be noted that neither the Chronicle nor the City has raised points complaining of the trial court’s ruling in this regard. However, the importance of the Open Records Act and its impact on the right to know of the citizens of this state is of sufficient public interest to justify our consideration of all of such matters as fundamental error. Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947).

The five sections of the Open Records Act which the trial court held were overbroad, vague, conflicting, unauthorized delegation of legislative function, and discriminatory as between various areas and among governmental agencies were: 3(a)(1) (exception of information being confidential by constitutional, statutory, or judicial law); 3(a)(8) (exception of records of law enforcement agencies that deal with detection and investigation of crime and the internal records and notations of such agencies which are maintained for internal use in matters relating to law enforcement); 6(1) (making specifically available reports, audits, evaluations, and investigations made of, for, or by, governmental bodies upon completion); 6(15) (making specifically public information currently regarded by agency policy as open to the public); 14(a) (allowing any governmental body to make available any of its records to the public, unless expressly prohibited by law, provided that such records shall then be available to any person).

It is appropriate that we should note at this time that neither the City nor the Chronicle pled the alleged unconstitutionality of the Open Records Act. The Chronicle has consistently maintained that it has a constitutional right under “freedom of the press” to access to the materials in question. This claim is predicated upon the first amendment to the Constitution of the United States and to the Bill of Rights of the Texas Constitution. The “unconstitutionality” of a statute is an affirmative defense which must be pled under Tex.R.Civ.P. 94. In the absence of an appropriate pleading raising the issue of unconstitutionality, the trial court was without authority to include these findings in its judgment. University of Texas System v. Robert E. McKee, Inc., 521 S.W.2d 944 (Tex.Civ.App.—Eastland 1975, writ ref’d n. r. e.); City of South Houston v. Sears, 488 S.W.2d 169 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ).

In view of the importance of the question we elect not to dispose of the issue of constitutionality on the basis of the failure to plead an affirmative defense under Rule 94. The legislation is presumptively valid, and we hold that the sections under attack here are constitutional. The judgment of the trial court might be more properly characterized as “overbroad” or “vague,” because it is impossible to ascertain whether the court intended all stated grounds to be applicable to all stated sections held to be unconstitutional, or whether some were deemed applicable to one section and another to others. These sections are understandable to a person of common intelligence, and therefore are not overbroad or vague. See State v. Spartan’s Industries, Inc., 447 S.W.2d 407 (Tex.Sup.1969), appeal dismissed, 397 U.S. 590, 90 S.Ct. 1359, 25 L.Ed.2d 596 (1970); Texas Liquor Control Board v. Attic Club, Inc., 457 S.W.2d 41 (Tex.Sup.1970), appeal dismissed, 400 U.S. 986, 91 S.Ct. 459, 27 L.Ed.2d 435 (1971). These sections are not conflicting because we interpret them in such a manner that all can stand. See Martin v. Sheppard, 129 Tex. 110, 102 S.W.2d 1036 (1937); Black v. American Bankers Insurance Co., 478 S.W.2d 434 (Tex.Sup.1972). Furthermore, we construe this statute as a whole and will give harmonious effect to all its provisions. See National Surety Corp. v. Ladd, 131 Tex. 295, 115 S.W.2d 600 (1938); Board of Ins. Com’rs v. Great Southern Life Ins. Co., 150 Tex. 258, 239 S.W.2d 803 (1951); Perkins v. State, 367 S.W.2d 140 (Tex.Sup.1963). We reverse the judgment of the trial court finding sections 3(a)(1), 3(a)(8), 6(1), 6(15), and 14(a) of Article 6252-17a to be void and unenforceable, and render judgment that they are valid and enforceable.

II. Construction of the Act

The briefs of the parties have been most helpful in directing our attention to applicable principles of statutory construction. Section 1 of the Open Records Act eloquently states the purpose of the legislation:

Pursuant to the fundamental philosophy of the American constitutional form of representative government which holds to the principle that government is the servant of the people, and not the master of them, it is hereby declared to be the public policy of the State of Texas that all persons are, unless otherwise expressly provided by law, at all times entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as pub-lie officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. To that end, the provisions of this Act shall be liberally construed with the view of carrying out the above declaration of public policy. Section 14(d) of the Act provides:
This Act shall be liberally construed in favor of the granting of any request for information.

Other rules of statutory construction are properly applicable to some aspects of this case. When two sections of an act apply, and one is general and the other is specific, then the specific controls. Lufkin v. City of Galveston, 63 Tex. 437 (1885). Legislative intent is the essence of law, and such intent should be enforced rather than thwarted. Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681 (1941); City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273 (1951); Greyhound Lines, Inc. v. Board of Equalization, 419 S.W.2d 345 (Tex.Sup.1967). In construing the civil statutes, “[t]he ordinary signification shall be applied to words . . . .” Tex.Rev.Civ.Stat. Ann. art. 10 (1969).

The fundamental rule of statutory construction perhaps was best stated in Texas Highway Commission v. El Paso Bldg. & Const. Tr. Coun., 149 Tex. 457, 234 S.W.2d 857 (1950), approved and quoted by the supreme court in Railroad Commission v. Miller, 434 S.W.2d 670, 672 (Tex.Sup.1968):

Courts must take statutes as they find them. More than that, they should be willing to take them as they find them. They should search out carefully the in-tendment of a statute, giving full effect to all of its terms. But they must find its intent in its language, and not elsewhere. They are not the lawmaking body. They are not responsible for omissions in legislation. They are responsible for a true and fair interpretation of the written law. It must be an interpretation which expresses only the will of the makers of the law, not forced nor strained, but simply such as the words of the law in their plain sense fairly sanction and will clearly sustain.

See also Texas Ind. Acc. Bd. v. Industrial Foundation, 526 S.W.2d 211 (Tex.Civ.App.—Beaumont 1975, writ granted).

As is often the case, the rules of statutory construction are more easily stated than applied. As declared in section 1, the Ppen Records Act is structured to achieve laudable public assess to government records and information concerning official activities. The second section, consisting of definitions, is not material here except that it is entirely clear that the City and the police department are subject to the Act. Section 3 makes all information public, with sixteen specific exceptions. This section is crucial to the construction of the Act here. The first exception, contained in section 3(a)(1), is “information deemed confidential by law, either Constitutional, statutory, or by judicial decision.” Section 3(a)(8) is critical, reading “records of law enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law enforcement agencies which are maintained for internal use in matters relating to law enforcement.” Also bearing on this matter is section 3(b), reading in part: “This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section.” Section 3(e) provides: “The custodian of the records may in any instance within his discretion make public any information contained within Section 3, Subsection (a) 6, 9, 11, and 15.” The significance of this latter portion of the statute is that it does not vest the custodian with discretion to release the matters contained in section 3(a)(8). Sections 4 and 5 deal with the means by which access to public information may be obtained, and have no direct bearing on this suit. Section 6 provides that certain specific information is to be made public. It contains matters bearing on this appeal. Section 6 provides: “ Without limiting the meaning of other sections of this Act, the following categories of information are specifically made public information: (1) reports, audits, evaluations, and investigations made of, for, or by, governmental bodies upon completion.” Section 6(15) specifically makes public “information currently regarded by agency policy as open to the public.”

Section 7 outlines the role of the Attorney General in enforcement of the Act and in rendering Open Records Decisions. Normally, opinions of the Attorney General are persuasive but not controlling on the courts. We consider that great weight should be given such opinions when the legislature has specifically delegated to the Attorney General the duty of interpreting the Act and aiding in its enforcement. Sections 9 through 15 of the Act relate to the right to mandamus, costs of copies of public records, prohibition of distribution of confidential information, authorization of a bond for preparation of public records or cash prepayment, penalties, procedures for inspection of public records, interpretation of the Act, and severability. Of these sections, the following have material bearing: 10(a) (“Information deemed confidential under the terms of this Act shall not be distributed,” and providing a penalty); 14(a) (“This Act does not prohibit any governmental body from voluntarily making part or all of its records available to the public, unless expressly prohibited by law.”); 14(b) (“This Act does not authorize the withholding of information or limit the availability of public records to the public, except as expressly so provided.”); and 14(d) (“This Act shall be liberally construed in favor of the granting of any request for information.”).

Taking an overview of this legislation, we conclude that with the exception of the sixteen named exceptions from disclosure the legislature expressed an intention to make all records available to the public, including, of course, the press. Texas Ind. Acc. Bd. v. Industrial Foundation, supra at 218. The crucial exception to disclosure involved in this case is section 3(a)(8): “records of law enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law enforcement agencies which are maintained for its internal use in matters relating to law enforcement.” We hold that the records designated as Houston Police Blotter, Show-up Sheet, and Arrest Sheet do not come within the exclusion and are public records available to the press and public. The Offense Report as described in this opinion is a record of a law enforcement agency that deals with the “detection and investigation of crime”. The Personal History and Arrest Record is clearly a notation “of such law enforcement agencies which are maintained for internal use in matters relating to law enforcement”. Therefore, both of these records fall within section 3(a)(8). These particular records are not made available by section 6(1) or section 6(15), for the reason that section 6 expressly states: “Without limiting the meaning of other sections of this Act . . . .” Therefore, the exclusion contained in section 3(a)(8) is unaffected by this provision. The legislature did not intend for section 6 to diminish the force of the exclusions contained in section 3. Furthermore, the section specifically dealing with records of law enforcement agencies would control over the general provisions of the Act.

III. Constitutional Right of Access

In Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626 (1972), the rule is stated:

We do not question the significance of free speech, press, or assembly to the country’s welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of press could be eviscerated.

However, it has often been said that the first amendment does not guarantee the press a constitutional right of special access to information not available to the public generally. Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974).

We hold that the press and the public have a constitutional right of access to information concerning crime in the community, and to information relating to activities of law enforcement agencies. In determining the reach of this constitutional right of access, it is necessary to weigh and evaluate legitimate competing interests. In similarly weighing competing interests, the Supreme Court reached the conclusion that newsmen were not immune from subpoena by a properly functioning grand jury. Branzburg v. Hayes, supra. Such weighing of competing interests led the Court to the conclusion that reasonable regulations denying access to individual state and federal prisoners may be sustained. Pell v. Procunier, supra; Saxbe v. Washington Post Co., supra. In both instances the Court recognized the caveat of Branzburg set out above.

As applied to this case, the competing legitimate interests are clear and important. The first legitimate interest to be considered is the people’s right to know. This interest is particularly sensitive and important as applied to police activity. The increasing crime rate is a subject of paramount importance to the public. We have, on the one hand, those who fear that the activities of the police will lead to impositions on the individual in the form of wire tapping or police brutality. Their focus of concern is on the creation of a police state. On the other hand, we have those with a legitimate fear of ever increasing criminal activity, violence, and unsafe streets.

The City and State have a legitimate interest in preserving the secrecy of their records from the eyes of defendants and their counsel in criminal actions. The trial of a criminal case is an adversary proceeding. Whatever we hold to be available to the press must also be available to the public. At the present time the records contained in the Offense Report are not available to criminal defense counsel except in cases where good cause is shown in a motion under the discovery provisions of the Code of Criminal Procedure. Tex.Code Crim.Proc.Ann. art. 39.14 (1965). Discovery of such reports has been denied. Bradshaw v. State, 482 S.W.2d 233 (Tex.Cr.App.1972).

Furthermore, the State has a legitimate interest in preventing excess publicity which might lead to a denial of due process and endanger the prosecution. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). The expense and manpower necessary for the maintenance of appropriate records available to the press and public may be a factor that should be considered, but would seem to be relatively insignificant considering the importance of the matters at issue here.

The Chronicle makes a strong case for the usefulness of the availability of Offense Reports in the discharge of its obligation to inform the public. These reports enable the reporters to evaluate the newsworthiness of the occurrence and the prominence of the victims or perpetrators, which may make the crime newsworthy.

With respect to the Offense Report, it seems to us that these legitimate competing interests can be reconciled by the finding of a constitutionally protected right of the press and public to the front page (or an exact copy thereof) of the Offense Report structured to include the offense committed, location of the crime, identification and description of the complainant, the premises involved, the time of the occurrence, property involved, vehicles involved, description of the weather, a detailed description of the offense in question, and the names of the investigating officers. The disclosure of this information, to which the press is entitled as a matter of constitutionally protected right, will not preclude the press from interviewing the investigating officers and otherwise seeking additional information concerning a newsworthy crime. Along with the other records held in this opinion to be public records under the Open Records Act, the activities of the City of Houston law enforcement agencies will be open to public scrutiny. This constitutional right of access to information should not extend to such matters as a synopsis of a purported confession, officers’ speculations of a suspect’s guilt, officers’ views as to the credibility of witnesses, statements by informants, ballistics reports, fingerprint comparisons, or blood and other laboratory tests. To open such material to the press and public in all cases might endanger the position of the State in criminal prosecutions by the use of such materials to the disadvantage of the prosecution. To have such material open to the press and public in all cases might reveal the names of informants and pose the threat of intimidation of potential prosecution witnesses. In any case, the press has available effective means of finding out most of such details through interviews with the participants, officers, and witnesses. The constitutionally protected access of the press and public to the limited Offense Report as described herein should be made immediately available at a convenient central location to meet the need of the public’s right to know.

The Personal History and Arrest Record is an entirely different matter. This record, or “rap sheet,” consists of the criminal history of the individual, insofar as it shows each previous arrest and other data relating to the individual and the crimes he has been suspected of committing. Some efforts have been made both by statute and decision to compel the purging or correction of such records. See Tarlton v. Saxbe, 165 U.S.App.D.C. 293, 507 F.2d 1116 (1974); Menard v. Mitchell, 139 U.S.App.D.C. 113, 430 F.2d 486 (1970); Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972); Eddy v. Moore, 5 Wash.App. 334, 487 P.2d 211 (1971). See also Comment, Expungment of Arrest Records of Exonerated Arrestees, 16 S.Tex.L.J. 173 (1975); Annot., 46 A.L.R.3d 900 (1972).

The importance of maintaining this record is obvious. Giving full credit to the presumption of innocence, it would be naive to assume that an individual’s arrest history is irrelevant to police activity. We cannot ignore the truth that many guilty men go free and are not even charged in some cases. Many things may contribute to this result, including lack of sufficient proof, illegality of certain seized evidence, crowded court dockets, and other things that cause or justify a failure to prosecute or to convict. It“is not unheard of to find some fire where there is much smoke.

While recognizing that law enforcement agencies may have misused these records in some cases, we think their maintenance is essential to the investigation of crime. For example, the authorities charged with the enforcement of criminal law may employ fingerprinting as an appropriate means to identify criminals and to detect crime. Hansson v. Harris, 252 S.W.2d 600 (Tex.Civ.App.—Austin 1952, writ ref’d n.r.e.).

We credit the Chronicle’s claim that the Personal History and Arrest Record is useful to reporters for “background information.” We further recognize that legitimate public inquiry into the operation of the criminal justice system includes such matters as release from jail on personal recognizance or on personal bond, bond policies with respect to repeat offenders, plea bargaining, and sentencing practices.

A holding that the Personal History and Arrest Record must be open to inspection by the press and public would contain the potential for massive and unjustified damage to the individual. The same recognition of reality that compels us to acknowledge the value of these records, despite the presumption of innocence, also compels us to note that many persons who are arrested by the police are wholly innocent. For many years Texas law failed to recognize an enforceable right of privacy. Hansson v. Harris, supra; Milner v. Red River Valley Publishing Co., 249 S.W.2d 227 (Tex.Civ.App.—Dallas 1952, no writ). However, the supreme court in Billings v. Atkinson, 489 S.W.2d 858 (Tex.Sup.1973) adopted the rule that an unwarranted invasion of the right of privacy constitutes a legal injury for which a remedy will be granted. Thus, Texas was brought in line with the vast majority of other jurisdictions in recognizing the right of privacy. The United States Supreme Court has indicated that this right may be one of constitutional dimension. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). However, the right of privacy is not an unlimited one. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). The right of free public discussion of the stewardship of public officials is a fundamental principle of the American form of government. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Also, newsworthy occurrences may justify the invasion of the lives of private citizens. Compare Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971) with Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

It is noteworthy that the rap sheet in question may or may not reflect a disposition of the charge if, indeed, charges were filed. No effort is made to “purge” inaccurate or misleading entries. While not controlling, 42 U.S.C. § 3701 (Supp.1974) and 42 U.S.C. §§ 3731(a) and 3771(b) (1973), which are part of the act known as the Crime Control Act of 1973, must be considered. It is of legitimate interest to the prevention of crime that the law enforcement agencies have available the information provided by the National Crime Information Center system, which has been partially funded by the Law Enforcement Assistance Administration system. Weighing the need of the media for background information on individuals (which may be obtained through interviews and other sources) against the legitimate competing interest of individual privacy would seem to compel the conclusion that the constitutional right of the press and public to information should not include access to the Personal History and Arrest Record.

IV. Judgment

Therefore, we reverse the judgment of the trial court that sections 3(a)(1), 3(a)(8), 6(1), 6(15), and 14(a) of Article 6252-17a are unconstitutional, void, and unenforceable, and hold that such sections are constitutional. We reverse the judgment of the trial court and hold that the records referred to as the Houston Police Blotter, Show-up Sheet, and Arrest Sheet are public records available to the press and public under the Open Records Act. We hold that the records referred to as the Offense Report and Personal History and Arrest Record are excluded by section 3(a)(8) as being records of law enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law enforcement agencies which are maintained for internal use in matters relating to law enforcement, and that this exclusion is not affected by sections 6(1) or 6(15). We reverse the judgment of the trial court and hold that there is a constitutionally protected freedom of the press and public to have access to information maintained by law enforcement agencies relating to crime and criminal activities. This right extends affirmatively to the information contained on the first page of the Offense Report, as described in this opinion.

Reversed and rendered.

      . When the word “press” is used in this opinion, it is intended to include all newspaper, radio, television, magazine, and other media, unless otherwise indicated.

      . Emphasis added unless otherwise indicated.

      . Although not contained in any pleading, the Chronicle filed a- memorandum of authorities with the trial court in which it stated:
      Altematively, the statute is constitutionally overbroad and violative of freedom of the press to gather news and the public to be informed.

      . Section 2, by definition, excludes the judiciary from the application of the Act.

      . We recognize that the suppression by the prosecution of material evidence favorable to an accused upon request violates due process. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


source: Caselaw Access Project

author: BARROW, Chief Justice.

license: Public Domain

text:
    William Leroy TRADER, Appellant, v. Roxie Ann TRADER, Appellee.
    No. 15492.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 26, 1975.
    Rehearing Denied Dec. 31, 1975.
    Royal D. Adams, Robert D. Reed, Adams & Hunter, San Antonio, for appellant.
    Marion T. Carson, San Antonio, for appel-lee.
   BARROW, Chief Justice.

This is a limited appeal by husband from a judgment dissolving the bonds of matrimony and dividing the property of the parties. No children are involved. Formal findings of fact and conclusions of law were not requested or filed. See Rule 296, Tex. R.Civ.P. (1967).

The parties were married on July 29, 1970, and separated about October 4, 1974. Most of the testimony given at the non-jury trial related to the division of the property. This issue was complicated by the fact that both parties had separate property in addition to the community estate, and there were debts against the separate estates as well as the community estate. The trial court found in the judgment that both parties had separate property and decreed that each party take same as his or her sole and separate property. It was found that appellant owned as his separate property 300 shares of common stock (out of 900 shares) in San Antonio Floor Finishers, Inc., by whom he was employed. The court concluded, however, that the value of the stock at the time of its acquisition on February 28,1973, was $21,000, and that its value had increased by the amount of $75,000 at the time of trial, which increase was declared to be a community asset and divided equally between the two parties.

Appellant expressly limited his appeal to the court’s conclusion that the increased value of this separate stock was a community asset and the court’s action in awarding appellee one-half of this increase. He further urges that, in any event, the court erred in calculating the amount of increased value. Complaint is also made of the trial court’s action in ruling before appellant had rested his case; however, there is no showing in the record that appellant desired to offer any additional evidence. See Morris v. City of Houston, 466 S.W.2d 851 (Tex.Civ.App., Houston [14th Dist.] 1971, no writ). Appellant asks that the judgment of the trial court be reformed to delete the provision awarding appellee one-half of the increased value of the stock. In the alternative, he asks that the cause be remanded to permit him to offer additional evidence relating to the value of this stock.

We must consider at the outset ap-pellee’s motion to dismiss the appeal for the reason that appellant had voluntarily accepted benefits under the judgment and therefore had waived his right to complain of only one item in the property division. As a general rule, a litigant cannot treat a judgment as both right and wrong; and if he has voluntarily accepted the benefits of a judgment, he cannot afterward prosecute an appeal therefrom. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950); Swearingen v. Swearingen, 487 S.W.2d 784 (Tex.Civ.App., San Antonio 1972, writ dism’d); Smith v. Manger, 449 S.W.2d 347 (Tex.Civ.App., San Antonio 1970, no writ); City of Mesquite v. Rawlins, 399 S.W.2d 162 (Tex.Civ.App., Tyler 1966, writ ref’d n. r. e.); Nixon v. Nixon, 348 S.W.2d 438 (Tex.Civ.App., Houston 1961, writ dism’d). There is no contention that the narrow exception to this general rule is applicable in this case.

It is well established that under Article 3.63 of the Tex.Family Code Ann. (1975), as well as the antecedent statute, the divorce court is given wide discretion in disposing of any and all property of the parties, separate or community, and the cause will be reversed only where there is a clear abuse of discretion. Bell v. Bell, 513 S.W.2d 20 (1974); Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Currie v. Currie, 518 S.W.2d 386 (Tex.Civ.App., San Antonio 1974, writ dism’d); Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App., Houston [1st Dist.] 1974, no writ); Zaruba v. Zaruba, 498 S.W.2d 695 (Tex.Civ.App., Corpus Christi 1973, writ dism’d).

While the discretion of the trial court in the division of the property is not unlimited, it is clear that the division does not have to be equal and the court may award the wife a substantial portion of the husband’s separate personal property where the circumstances make such action necessary to effect a fair and just division of the property. Therefore the trial court could have awarded appellee an interest in appellant’s stock in the San Antonio Floor Finishers irrespective of whether it was his separate property or a community asset. Bell v. Bell, supra.

We conclude that complaint may not be limited to the trial court’s action with regard to one part of property division where other parts are accepted as the property division must be considered as a whole. The soundness of this rule is well-illustrated by the facts in this case. Both parties had several checking and savings accounts, as well as other personal property, before the marriage, and there was a question of commingling during the brief marriage. The status of real estate acquired during the marriage was uncertain in that the source of the funds was in dispute. The status of several large debts was also in issue. There was even argument over some of the household furniture. Appellant’s contention was sustained by the trial court on most of the disputed points. For example, a large loan against an insurance policy on appellee’s life was held to be her separate debt; and, on another disputed item, appellant was permitted to charge against the community estate a substantial unrecorded debt owed San Antonio Floor Finishers for material used on the couple’s homestead. It is reasonable to assume that if the trial court had given appellant all interest in the stock of San Antonio Floor Finishers, Inc., appellee might have been given the benefit of other disputed items.

Since appellant accepted the benefits of the judgment, he cannot complain of that part of the property division wherein the trial court found that the increase in value of the stock was a community asset. We sustain appellee’s counter-point that appellant is estopped from asserting this limited appeal.

The appeal is dismissed.


author: ROBINSON, Justice.

text:
    Johnnie BARRIER, Individually and as Independent Executor of the Estate of George Harrell Beavers, Deceased, and Tony Dave Barrier, Appellants, v. Alice Harrell BEAVERS, Appellee.
    No. 8544.
    Court of Civil Appeals of Texas, Amarillo.
    Nov. 28, 1975.
    Rehearing Denied Dec. 29, 1975.

      Bill Neal, Ney Sheridan, Jr., Vernon, for appellants.
    Richard D. Bird, Childress, J. G. Scouris, Vernon, for appellee.
   ROBINSON, Justice.

This will contest was brought by Alice Harrell Beavers, mother of the testator, against Johnnie Barrier, independent executor, and Tony Dave Barrier, sole devisee under the will, to set aside the will and probate of the will of George Harrell Beavers. The probate court sitting without a jury entered judgment in favor of the contestant. By written findings of fact and conclusions of law, the trial court found that the testator was mentally incompetent and of unsound mind on the date that he executed the will and that he lacked testamentary capacity to execute a will. The proponents appeal, challenging the legal and factual sufficiency of the evidence to support the findings of the trial court and asserting that the trial court erred in refusing to reopen the testimony and refusing to permit proponents to make a bill of exceptions showing the nature of the testimony sought to be introduced. Affirmed.

The will involved in this suit was executed on December 20, 1972, by George Harrell Beavers, who died March 18, 1974.

The crucial question in a will contest on the ground of testamentary capacity is the condition of the testator’s mind on the day the will was executed. Lee v. Lee, 424 S.W.2d 609, 611 (Tex.1968). Lay opinion evidence of testamentary capacity based on witnesses’ observations of the testator’s conduct prior or subsequent to the date in question is admissible. However, evidence of incompetency at times other than the date of execution has probative value only when it demonstrates that the conditions persisted and had some probability of being the same condition which obtained at the time the will was made. Lee v. Lee, supra; Williford v. Masten, 521 S.W.2d 878 (Tex.Civ.App.—Amarillo 1975, writ ref’d n. r. e.).

At the hearing in the probate court, the contestant, Mrs. Beavers, and five other witnesses' who knew the testator well, testified regarding his mental competency, awareness of his business affairs, and his knowledge of the nature and extent of his property. Each of the contestant’s witnesses testified that they considered the testator mentally incompetent at various times before and after the date the will was executed, based on instances that each related. One witness testified that he would not do business with Beavers unless Johnnie Barrier, who had been a business associate of Beavers’, approved the deal so it could not be said that he took advantage of Beavers. The testator’s banker said that Beavers signed instruments without reading or understanding them, that Beavers was “slipping badly mentally” in late 1972 and early. 1973, and that he urged Beavers to commit himself to a state hospital. There is evidence that Beavers denied several times in the spring of 1973 that he had ever made a will. The testimony adduced by the contestant shows an ongoing, deteriorating condition of mental incapacity in the testator that existed before and after the date on which the will was signed.

The proponents’ only witness was the lawyer who drew the will. He was the only witness who testified to having seen the testator on the day the will was executed. He was aware of the testator’s condition, but felt that he possessed testamentary capacity on the date he executed his will.

After considering the record in the light most favorable to the findings of fact and rejecting the contrary evidence and inferences, we find that the evidence is legally sufficient to support the trial court’s findings and judgment. After considering all of the evidence, we conclude that the evidence is factually sufficient to support the. findings and that they are not against the great weight and preponderance of the evidence.

Twelve days after testimony closed and after the trial court had announced its decision, appellants presented their motion, pursuant to Rule 270, Texas Rules of Civil Procedure, to reopen testimony to introduce certain letters allegedly written by the testator, and to adduce testimony of his testamentary capacity when he executed the will. This motion was denied, and on the same day, the trial court signed the judgment in favor of the contestant, setting aside the will and its probate. On the next day, appellants filed a second motion to reopen, together with a request that the court set a hearing to adduce testimony and perfect their bill of exception. This motion was also denied.

It is within the trial court’s discretion. to permit a party to reopen a case to present additional evidence. That discretion is to be exercised liberally in the interest of justice. An improper exercise of discretion is prejudicial error. Canyon Credit Union v. Coleman, 450 S.W.2d 368, 369 (Tex.Civ.App.—Amarillo 1970, no writ) and the cases cited therein.

We may not review the trial court’s exercise of discretion in refusing appellants’ motions to reopen, unless the appellants showed or offered to show, by bill of exception or otherwise, who would testify, that the witnesses were available, and what their testimony would be. McRoy v. Riverlake Country Club, Inc., 426 S.W.2d 299, 305 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.). See also Isenberg v. Isenberg, 510 S.W.2d 364 (Tex.Civ.App.—San Antonio 1974, no writ).

Proponents’ motions to reopen show that their witnesses would testify that the testator, in their opinions, was of sound mind and mentally competent to execute the will on the date it was executed. Proponents’ assertion concerning the nature of the proposed testimony will be taken as true for the purposes of this appeal. Thus, the error, if there was error, in the trial court’s refusal to permit the bill of exceptions is harmless because it does not keep proponents from making a proper presentation on appeal of their contention that the trial court abused its discretion in refusing to reopen testimony. See Herfurth v. City of Dallas, 410 S.W.2d 453 (Tex.Civ.App.—Dallas 1966, writ ref'd n. r. e.). See also Dorn v. Cartwright, 392 S.W.2d 181 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.).

Proponents’ first motion to reopen was made after the evidence had been closed and the trial court had had the case under advisement for twelve days. They presented no explanation of why the witnesses had not been available at the time of trial. There is no showing that the witnesses were ever present and ready to testify. The proffered testimony would have been cumulative of that already presented. Proponents’ documentary evidence in the form of letters written by the testator well over a year after the will was executed are of minimal probative value because of their late date. Moreover, at least some of the letters were in the possession of the contestant’s lawyer at the time of trial and subject to a timely motion of discovery, which was never made. Proponents were not attempting to present evidence on a key element of the case which had been omitted at trial as were appellants in Russell v. Russell, 443 S.W.2d 569 (Tex.Civ.App.—El Paso 1969, no writ). Nor were they attempting to complete testimony inadvertently left incomplete as were appellants in Canyon Credit Union v. Coleman, supra. We do not find that the trial court abused its discretion in refusing to permit proponents to reopen their case.

The judgment of the trial court is affirmed.


author: REYNOLDS, Justice.

text:
    CAPROCK BEEF PACKERS CO., Appellant, v. Lewis WAGNER, Appellee.
    No. 8615.
    Court of Civil Appeals of Texas, Amarillo.
    Nov. 28, 1975.
    Rehearing Denied Dec. 29, 1975.

      Gibson, Ochsner, Adkins, Harlan & Han-kins, A. B. Hankins, Amarillo, for appellant.
    Lemon, Close, Atkinson & Shearer, Otis C. Shearer, Booker, for appellee.
   REYNOLDS, Justice.

In this action for slander, a corporation and its general manager were held jointly and severally liable for the malicious utterances of the general manager. The facts of this case show that the defamation was not referable to, nor made in the discharge of, any duty the general manager owed to the corporation so as to make the corporation liable. Affirmed in part; reversed and rendered in part.

Plaintiff Lewis Wagner sought actual and exemplary damages from defendants Caprock Beef Packers Co., a corporation, and Elmer Rabin for slander maliciously uttered by Rabin in the course and scope of his employment as general manager of Ca-prock’s facility at Booker, Texas. Wagner produced testimony that a few weeks after he had voluntarily quit his employment at Caprock’s Booker facility, Rabin, upon learning that Wagner had applied for employment at three unrelated beef packing plants, telephoned from Caprock’s premises to the personnel manager at each plant and reported that Wagner was an alcoholic, which was false. During direct examination as an adverse witness, Rabin was asked, and made the recorded responses to, these leading questions:

Q. Isn’t it true that you don’t make it a practice of calling up other Packing Companies about employees? That is not your practice?
A. That’s right.
Q. And if anyone would ever do that, that would be rather unusual in the Packing Industry, would it not?
A. Yes.

Based upon the jury’s verdict establishing Wagner’s cause of action and damages, judgment was rendered decreeing both defendants to be jointly and severally liable to Wagner for actual and exemplary damages in the sum of $36,000, plus interest from the date of defamation and costs. Caprock has appealed; Rabin has not appealed and the judgment rendered against him has become final.

Caprock asserts that there is no evidence to support the jury’s finding that Rabin was acting within the course and scope of his employment with Caprock. The parties agree that the criterion, as resolved in Texam Oil Corporation v. Poynor, 436 S.W.2d 129 (Tex.1968), is whether “the (Rabin’s) defamation is referable to the duty owing by the agent (Rabin) to the corporation (Caprock), and was made while in the discharge of that duty.” If so, the corporation is liable; otherwise, Caprock has no liability to Wagner.

Wagner submits that, under either of two theories, he met his burden to produce some evidence of probative force that Rabin made the defamation while he was discharging a duty owing to Caprock. Initially, Wagner insists that Rabin, whose authority as general manager included the hiring and firing of employees, had a duty as personnel manager to communicate with personnel directors of other corporations concerning a former Caprock employee who was applying for a job with those firms.

The record is silent about any custom of communication between personnel directors in the beef packing industry. Granting that Rabin had the right to communicate a good faith belief that Wagner was an unsuitable employee, there is nothing in this record to indicate that Rabin had an obligation to disseminate the information as there was in Missouri Pac. Ry. Co. v. Richmond, 73 Tex. 568, 11 S.W. 555 (1889), where the public interests involved in and necessary to the safe operation of railways imposed an obligation on the company to communicate to its personnel likely to employ people information about people the company believed unsuitable for employment. Nor is there any evidence that when Rabin made the calls he was discharging some duty he had been employed or directed to do as was the situation in Swift & Co. v. Gray, 101 F.2d 976 (9th Cir. 1939), and in each Texas case following that test. To the contrary, Wagner elicited the information that what Rabin did was neither his nor the practice in the beef packing industry.

Secondly, Wagner argues that, even if Rabin was not actually acting within the course and scope of his employment, Ca-prock is liable nevertheless because Rabin was a vice-principal under the definition given in Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934). There, a vice-principal was defined as one upon whom a corporation has conferred such comprehensive and general power as to make him its alter ego, thereby making his acts the acts of the corporation itself if the vice-principal acted within the limits of his authority, or in the line of duty, or in the performance of his duty. But here, there is no showing that Rabin was authorized to communicate information about an ex-employee to prospective employers, and any duty that might be inferred from Rabin’s position as general manager was completely negated when Wagner drew from Rabin the information that such communications were not the practice, and indeed that it was unusual to do so, in the beef packing industry.

It follows that there is, in legal contemplation, no evidence to support the jury’s finding that Rabin was acting within the course and scope of his employment when he slandered Wagner. Caprock’s first point of error is sustained, and its second point challenging the assessment of interest from the date of the defamation is not reached.

Wagner’s judgment against Rabin is affirmed; but the part of the judgment decreeing that Wagner recover from Caprock is reversed, and judgment is here rendered that Lewis Wagner take nothing by virtue of his cause of action alleged against Ca-prock Beef Packers Co. Rule 434, Texas Rules of Civil Procedure.


author: McCLOUD, Chief Justice.

text:
    In re D. L. E., Appellant, v. The STATE of Texas, Appellee.
    No. 4806.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 28, 1975.
    Don N. Seamster, Wagstaff, Harrell, Pope, Alvis, Dickenson & Erwin, Abilene, for appellant.

      John Weeks, Dist. Atty., Abilene, for ap-pellee.
   McCLOUD, Chief Justice.

This is an appeal from an order of the juvenile court declaring that appellant engaged in delinquent conduct and committing appellant to the custody of the Texas Youth Council.

Appellant argues the order should be reversed because the juvenile court judge failed to comply with V.T.C.A., Family Code § 54.03(b)(1) and (2) which provides:

“54.03. Adjudication Hearing
(a) A child may be found to have engaged in delinquent conduct or conduct indicating a need for supervision only after an adjudication hearing conducted in accordance with the provisions of this section.
(b) At the beginning of the adjudication hearing, the juvenile court judge shall explain to the child and his parent, guardian, or guardian ad litem:
(1) the allegations made against the child;
(2) the nature and possible consequences of the proceedings; . . .”

Appellant states in his brief that the juvenile court judge did not, at the beginning of the adjudication hearing, explain to appellant and his parents, the allegations made against appellant and the possible consequences of the proceeding. The State filed no brief on the merits and presented no oral argument. Appellant’s unchallenged statement as to the record is accepted by this court as correct. Rule 419, T.R. C.P., Franks v. State, 498 S.W.2d 516 (Tex.Civ.App.-Texarkana 1973, no writ).

We hold that the procedural requirements of 54.03(b)(1) and (2) are mandatory and must be complied with before a child may be found to have engaged in delinquent conduct. See In Re K. W. S., 521 S.W.2d 890 (Tex.Civ.App.—Beaumont 1975, no writ); R. K. M. v. State, 520 S.W.2d 878 (Tex.Civ.App.—San Antonio 1975, no writ).

The judgment of the juvenile court is reversed and the cause is remanded.


author: PER CURIAM.

text:
    Sid BURTON et al., Appellants, v. W. L. FERRILL et al., Appellees.
    No. 4831.
    Court of Civil Appeals of Texas, Eastland
    Nov. 28, 1975.

      Richard D. Coan, Coan & Allen, Stephen-ville, for appellants.
    B. Robert Baker, Saner, Jack, Sallinger & Nichols, Dallas, for appellees.
   PER CURIAM.

The opinion and judgment dated October 24, 1975, is withdrawn and the following opinion substituted therefor.

Sid Burton, W. I. Lane, Mr. and Mrs. J. L. Craig, Mr. and Mrs. J. Z. Start, A. H. Kennedy, Mr. and Mrs. Thomas W. Wilhelm, Ben Wilhelm, Mr. and Mrs. J. M. Forman, James Biggs, Mr. and Mrs. Tom Wilson and Mr. and Mrs. Garland Collins sued W. L. Ferrill, County Attorney for Comanche County, Texas, Fred Hall, County Judge of Comanche County, and Claude Jones, County Commissioner of Precinct 1, Comanche County, Sam Phifer, County Commissioner of Precinct 2, Homer Miller, County Commissioner of Precinct 3 and Frank Seckinger, County Commissioner of Precinct 4 and Betty Conway, County Clerk and Ex-Officio Clerk of the Commissioners Court of Comanche County, each official was sued in his official capacity, and Dorman Hanks, Alda Arthur, Paul B. Hornberg, Dail Steele and George Stephens, Directors of the Comanche County Hospital District, contending an election held in Comanche County on August 3, 1974, for the purpose of creating the Comanche County Hospital District was null and void. The trial court held the election valid. Plaintiffs appeal.

The Comanche Hospital District was created by a special act of the Legislature with an effective date of May 25, 1973, and codified as Texas laws 1973, ch. 202, § 4(a), at 467. Section 4(a), provides:

“Sec. 4(a) On the effective date of this Act, the Commissioners Court of Comanche County shall appoint five persons to serve as temporary directors. Each temporary director shall subscribe the constitutional oath of office within 90 days of the effective date of this Act.”

Plaintiffs contend the temporary directors were not appointed by the Commissioners Court on May 25, 1973, as required by the act; therefore, their appointment was invalid. They argue the court erred in finding Section 4a to be directory rather than mandatory. We disagree. The court in Calvert v. Texas Pipe Line Company, 517 S.W.2d 777 (Tex.1974), said:

“The fundamental and dominant rule controlling the construction of a statute is to ascertain if possible the intention of the Legislature expressed therein. Sec. 6, Article 10, Vernon’s Ann. Revised Civil Statutes. In Calvert v. British-American Oil Producing Co., 397 S.W.2d 839 (Tex.1965), at 842 this Court said:
‘Article 10, Vernon’s Annotated Civil Statutes, provides general rules for construing all civil statutory enactments. The article provides that the provisions of statutes shall be liberally construed with a view to effect their objects. The courts necessarily look diligently for the intention of the Legislature as the intention of the Legislature is the dominant consideration in construing a statute. See State v. Dyer, 145 Tex. 586, 200 S.W.2d 813 (1947); McInery v. City of Galveston, 58 Tex. 334 (1883); City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273 (1951).’ ”

In Southwestern Savings & Loan Association of Houston v. Falkner, 160 Tex. 417, 331 S.W.2d 917 (1960), the court said:

“A statute should not be shorn of its effectiveness if its purpose can be achieved by a reasonable interpretation. Huntsville Independent School Dist. v. McAdams, 148 Tex. 120, 221 S.W.2d 546; Haverbekken v. Hale, 109 Tex. 106, 204 S.W. 1162.”

Also in Austin v. Collins, 200 S.W.2d 666 (Tex.Civ.App.-Fort Worth 1947, writ ref. n. r. e.), the court said:

“. . .A construction of a legislative act should not be given that would render the act absurd or even meaningless, when a rational, expressive and wholesome meaning may be ascertained from the language used. Texas & Pacific Railway Co. v. Taylor, 54 Tex.Civ.App. 419, 118 S.W. 1097, affirmed by Supreme Court, 103 Tex. 367, 126 S.W. 1117.”

We hold Section 4a requires the Commissioners Court to appoint five persons to serve as temporary directors, but such appointments need not be made on May 25, 1973, the day the act becomes effective. This gives reasonable effect to the obvious legislative intent. As stated in Chisholm v. Bewley Mills, 287 S.W.2d 943 (Tex.1956):

“There is no absolute test by which it may be determined whether a statutory provision is mandatory or directory. The fundamental rule is to ascertain and give effect to the legislative intent. Although the word ‘shall’ is generally construed to be mandatory, it may be and frequently is held to be merely directory. In determining whether the Legislature intended the particular provision to be mandatory or merely directory, consideration should be given to the entire act, its nature and object, and the consequences that would follow from each construction. Provisions which are not of the essence of the thing to be done, but which are included for the purpose of promoting the proper, orderly and prompt conduct of business, are not generally regarded as mandatory. If the statute directs, authorizes or commands an act to be done within a certain time, the absence of words restraining the doing thereof afterwards or stating the consequences of failure to act within the time specified, may be considered as a circumstance tending to support a directory construction. See Thomas v. Groebl, 147 Tex. 70, 212 S.W.2d 625; Markowsky v. Newman, 134 Tex. 440, 136 S.W.2d 808; Sutherland, Statutory Construction, 3rd Ed. 1943, Vol. 3, p. 95, Sec. 5813 et seq.; 82 C.J.S., Statutes, § 376 et seq., p. 869.”

Plaintiffs challenge the trial court’s findings (1) the notices posted by the temporary board of directors of the hospital district substantially complied with the notice provisions of the Texas Open Meeting Law, Vernon’s Ann.Civ.Stat, Art. 6252-17, and (2) substantial compliance is all that is required under the open meeting law.

The notice provisions of Article 6252-17, provides in part:

“Sec. 3A. (a) Written notice of the date, hour, place, and subject of each meeting held by a governmental body shall be given before the meeting as prescribed by this section.”
(g) The governing body of a water district, other district, or other political subdivision, except a district or political subdivision described in Subsection (f) of this section, shall have a notice posted at a place convenient to the public in its administrative office, and shall also furnish the notice to the county clerk or clerks of the county or counties in which the district or political subdivision is located. The county clerk shall then post the notice on a bulletin board located at a place convenient to the public in the county courthouse.
(h) Notice of a meeting must be posted for at least 72 hours preceding the day of the meeting, except that in case of emergency or urgent public necessity, which shall be expressed in the notice, it shall be sufficient if notice is posted two hours before the meeting is convened. In the event of an emergency meeting, the presiding officer or the member calling such meeting shall, if request therefor containing all pertinent information has previously been filed at the headquarters of the governmental body, give notice by telephone or telegraph to any news media requesting such notice and consenting to pay any and all expenses incurred by the governmental body in providing such special notice. The notice provisions for legislative committee meetings shall be as provided by the rules of the house and senate.”

Notice was posted on June 25,1974, for a meeting to be held at 9:30 A. M., on June 29, 1974. The notice stated:

“The purpose of this meeting will be: (1) organizational procedures in order calling confirmation and tax election.”

Plaintiffs contend the notice failed to sufficiently state the subject of the meeting. The court in Lipscomb Inc. School Dist. v. County School Trustees, 498 S.W.2d 364 (Tex.Civ.App.—Amarillo 1973, writ ref. n. r. e.), stated:

“The terms of Art. 6252-17 are mandatory so as to require at least substantial compliance with its provisions in order to uphold proceedings to which the statute is applicable. Toyah Ind. Sch. Dist. v. Pecos-Barstow Ind. Sch. Dist., supra [Tex.Civ.App., 466 S.W.2d 377]; Hall v. Thomas, 474 S.W.2d 276 (Tex.Civ.App.—Texarkana 1971, writ dism’d).”

The Texas Supreme Court in upholding the sufficiency of a posted notice stated in Lower Colorado Riv. Auth. v. City of San Marcos, 523 S.W.2d 641 (Tex.1975):

“The notice of the 1973 meeting is not as clear as it might be, but it would alert a reader to the fact that some action would be considered with respect to charges for electric power sold in San Marcos. In our opinion the notice was sufficient to comply with the statute.”

In our opinion the June 25, 1974 posted notice would alert persons that action would be considered with respect to calling an election and substantially complies with the statute.

Plaintiffs next argue certain exhibits produced by defendants at trial were improperly admitted into evidence because the exhibits as public records of the hospital district were not properly maintained at an administrative office in Comanche County. Article 6252-17a, declares:

“Section 1. Pursuant to the fundamental philosophy of the American constitutional form of representative government which holds to the principle that government is the servant of the people, and not the master of them, it is hereby declared to be the public policy of the State of Texas that all persons are, unless otherwise expressly provided by law, at all times entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.”

Section 4, in part states:

“Section 4. On application for public information to the custodian of information in a governmental body by any person, the custodian shall promptly produce such information for inspection or duplication, or both, in the offices of the governmental body.”

Section 14(d) announces:

“(d) This Act shall be liberally construed in favor of the granting of any request for information.” (Emphasis added)

It is well established in this state that the proper rule of construction of statutes is to ascertain and give effect to the intention of the Legislature. Article 6252-17a is intended to afford the public an opportunity to secure and study records regarding affairs of government. Noncompliance with Article 6252-17a does not render otherwise admissible records inadmissible.

We have considered and overrule all points of error. The judgment is affirmed.


author: CHADICK, Chief Justice.

text:
    Rebecca Rose DREESEN, Appellant, v. C. E. COLEMAN, Appellee.
    No. 8307.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 2, 1975.
    Rehearing Denied Dec. 30, 1975.
    J. R. Cornelius, Jefferson, for appellant.
    Neal Birmingham, Linden, for appellee.
   CHADICK, Chief Justice.

Suit was instituted in the court below by Rebecca Rose Dreesen against Travelers Insurance Company, C. E. Coleman and Sarah Charlene Turner. The insurance company answered by pleading an action in the nature of interpleader. C. E. Coleman moved to abate and subject to his motion answered to the merits. Sarah Charlene Turner allowed a default judgment to be entered. Both C. E. Coleman and Rebecca Rose Dreesen gave notice of appeal from the final judgment entered in the trial court and the latter perfected an appeal.

Rebecca Rose Dreesen and Charles Wayne Coleman were married in December 1973. Two policies insuring his life and naming his wife Rebecca as beneficiary were issued to Charles in February 1974 by Travelers Insurance Company. The couple separated in March 1974 and divorce proceedings were instituted by the wife. Divorce was granted June 24,1974 and Rebecca’s maiden name of Dreesen was restored to her by the decree. Eight days after the divorce Charles lost his life in an automobile accident.

The trial court awarded one half of the proceeds of the policies to Rebecca and one half to Charles’ estate, less attorney fees and costs awarded the insurance company. Findings of fact and conclusions of law authorized by Tex.R.Civ.P. 296 were filed. The facts found are in harmony with the foregoing recitals but additionally show that the cash value of the two insurance policies was not partitioned in the divorce decree and that prior to his death Charles had no knowledge of the divorce decree and no reasonable opportunity after the decree was entered to change the beneficiary designated in the policies.

Though the marriage was dissolved, by statutory precept Rebecca had an insurable interest in the life of Charles. Scherer v. Wahlstrom, 318 S.W.2d 456 (Tex.Civ.App. Fort Worth 1958, writ ref’d); McCain v. Yost, 155 Tex. 174, 284 S.W.2d 898 (1955); Tex.Ins.Code Ann. art. 3.49-1. Charles’ designation of Rebecca as beneficiary was a contractual matter between him and the insurer. Scherer v. Wahlstrom, supra; Garabrant v. Burns, 130 Tex. 518, 111 S.W.2d 1100 (1938, opinion adopted). The policies permitted Charles to change beneficiaries at will by complying with policy provisions governing change, but he neither removed nor attempted to remove Rebecca as beneficiary. Since the insurance contracts did not violate public policy, they are, as contracts, enforceable as written. Pyle v. Eastern Seed Co., 145 Tex. 385, 198 S.W.2d 562 (1946); 13 Tex.Jur.2d, Contracts, Sec. 278. It follows that judgment should have been rendered that Rebecca take all proceeds of the policies except as adjudged to the insurance company on its interpleader action.

The judgment of the trial court will be reversed insofar as it awards the estate of Charles Wayne Coleman a recovery. Judgment is rendered that Rebecca Rose Dreesen recover the proceeds of the policies, together with costs, less attorney fees and costs awarded Travelers Insurance Company by the trial court, and in all other respects the judgment is affirmed.

CORNELIUS, J., not participating.


author: CADENA, Justice.

text:
    Thomas A. CASTOLDI, Appellant, v. MILLER-TALLEY ASSOCIATES, Appellee.
    No. 15414.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 3, 1975.

      R. E. Lopez, Jr., Alice, for appellant.
    Lloyd, Lloyd, Ellzey & Lloyd, Parker Ell-zey, Alice, for appellee.
   CADENA, Justice.

This is a plea of privilege ease in which defendant, Thomas A. Castoldi, appeals from the order of the District Court of Jim Wells County overruling his plea of privilege to be sued in Hays County, which latter county he asserts was the county of his residence at the time. Plaintiff, Miller-Talley Associates, a partnership composed of B. K. Miller and Dan Talley, filed this suit in Jim Wells County.

The disposition of this case does not depend on the applicability of any of the various exceptions, embodied in Article 1995, Tex.Rev.Civ.Stat.Ann., to the general rule that a defendant has the right to insist on being sued in his domiciliary county. The sole question to be determined is whether, at the time this suit was filed in Jim Wells County, defendant was in fact a resident of Hays County for venue purposes.

Plaintiff’s suit was filed at 4:00 P.M. on July 26,1974. It is undisputed that prior to July 26 defendant, a physician, had been practicing his profession in the City of Alice in Jim Wells County. In June, 1974, defendant completed negotiations with a doctor in the City of San Marcos, Hays County, looking to the sharing of offices by the two physicians in Hays County. On July 18 defendant purchased a home in Hays County and had utilities, including telephone, installed in his proposed office in Hays County. On that date he also executed a lease agreement, giving the lessee the option to purchase, of his home in Jim Wells County.

Prior to July 26 defendant had posted a sign at his office in Jim Wells County notifying his patients that he was closing his office and practice in that county as of July 24, 1974.

Defendant completed his packing and other arrangements and actually left Jim Wells County, with his family, at about 1:00 P.M. July 26, 1974, some three hours before plaintiff’s suit was filed. For the purposes of this opinion, we assume that the evidence establishes that, at the time he left Alice, he intended in good faith to establish his permanent residence, and pursue his profession, in Hays County. The evidence establishes that defendant, with his family, arrived in Hays County on July 26, 1974, but there is no indication whether he arrived in Hays County before or after 4:00 P.M., the hour at which this suit was filed.

A plea of privilege must state that the party filing the plea was not a resident of the county in which suit is filed at the institution of such suit, at the time of service of process, nor at the time of filing of the plea of privilege. Rule 86, Tex.R.Civ.P. Here, there is no contention that defendant was a resident of Jim Wells County at the time of service of process or at the time the plea of privilege was filed.

We believe the evidence supports the conclusion that on July 26,1974, defendant had his residence in Jim Wells County at least until 1:00 P.M. when he departed for Hays County. Cf. Snyder v. Pitts, 150 Tex. 407, 241 S.W.2d 136 (1951). We attach no significance to the fact that the record does not establish that he and his family actually arrived physically in Hays County prior to the time on July 26 when this suit was filed. Instead, we base our affirmance of the order below on the ground that the requirement that defendant be a resident of the county of the forum “at the institution of such suit”, is satisfied if defendant was a resident of such county on the day the suit was filed, without reference to whether he became a resident of such county after the filing of the suit or terminated in such county prior to the hour on which suit was filed. We readily concede that we have found no decision by a Texas court involving facts similar to those involved in this case, but we are convinced that our conclusion does no violence to our venue statute and that it embodies a pragmatic solution to the question presented when a defendant is a resident of one county for part of a day and of another county for the remainder of the day. Further, our conclusion, at the very least, is compatible with the rule, applied in Snyder that, for venue purposes, a defendant may have more than one residence, and with the doctrine that if a defendant’s affairs are in such a state of confusion that it is impossible to determine in which of two counties he resides, he may be sued in either county. 1 McDonald, Texas Civil Practice Sec. 4.03.3, p. 416 (1965 rev.).

We find no need to rely on the legal fiction that the law does not recognize fractions of a day. Reliance on that “rule” would have no effect other than raising the question as to which portion of July 26, 1974, we would refuse to “recognize.”

The judgment of the trial court is affirmed.


author: JAMES, Justice.

text:
    Ray MITCHELL and Max Atkins, Appellants, v. Clyde COKER, Appellee.
    No. 5491.
    Court of Civil Appeals of Texas, Waco.
    Dec. 4, 1975.
    Rehearing Denied Dec. 30, 1975.

      John M. Hand, Marlin, Robert A. Canóni-co, Waco, for appellants.
    Robert G. Carter, Marlin, for appellee.
   OPINION

JAMES, Justice.

This case involves the right of Plaintiffs to take a non-suit under Rule 164, Texas Rules of Civil Procedure. The trial court refused to allow the Plaintiffs to take a non-suit, whereupon the court granted Defendant’s motion for instructed verdict and entered judgment for Defendant, from which Plaintiffs appeal. We reverse and render.

This was a suit brought by the purchasers under a contract for sale of land against the seller to recover damages for breach of a fiduciary relationship. Trial was to a jury, and after Plaintiffs and Defendant had rested, Defendant’s attorney announced that he wished to file a motion for instructed verdict, whereupon the court called the attorneys for the parties to the bench and stated that rather than retire the jury he would hear the matter in chambers. There being no objection, the court, attorneys and court reporter retired to chambers, where the attorney for Defendant dictated his motion for instructed verdict.

The trial court heard the arguments for and opposing the motion and announced that he would grant the Defendant’s motion for an instructed verdict and dismiss the jury, whereupon the parties returned to the courtroom. The Plaintiffs’ attorney asked the Defendant’s attorney if he was abandoning his cross-action, to which Defendant’s counsel replied that he had not presented his cross-action and that he had no intention to pursue it. At this point, Plaintiffs’ attorney announced that he took a non-suit. The trial court stated that he would not be allowed to take a non-suit because the court had already announced (in chambers) that he had granted the Defendant’s motion and was going to dismiss the jury. To this Plaintiffs’ counsel duly excepted.

The trial court thereafter entered a judgment wherein it was recited that he had granted Defendant’s motion for instructed verdict and in which he entered judgment for Defendant, from which judgment Plaintiffs appeal.

Rule 164, Texas Rules of Civil Procedure, provides:

“At any time before the jury has retired, the plaintiff may take a non-suit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief. When the case is tried by the judge, such non-suit may be taken at any time before the decision is announced.”

It is well settled law in Texas that when a suit is tried before a jury and motion is made for an instructed verdict, that the rule governing non-suit is the same as that applied in a case tried before the court without a jury, that is to say, that non-suit may be taken at any time before the decision is announced in open court Texas Electric Railway Co. v. Cox (Tex.Comm.App.1932) 49 S.W.2d 725, 89 A.L.R. 11, opinion approved by our Supreme Court; Smith v. Columbian Carbon Co. (1947) 145 Tex. 478, 198 S.W.2d 727. It has generally been held that Rule 164 is to be construed liberally in favor of the right granted to take a non-suit. Smith cited above; Corder v. Corder (El Paso, Tex.Civ.App.1945) 189 S.W.2d 100, writ refused; Roberts v. Morgan (Fort Worth, Tex.Civ.App.1973) 502 S.W.2d 31, error refused NRE; volume 4, McDonald, Texas Civil Practice (1971 Revised Volume), Section 17.16.2, pages 91 et seq.

In the case at bar, although the trial court had announced to the attorneys for both sides in chambers that he intended to grant Defendant’s motion for instructed verdict, yet the court had not announced his decision in open Court at the time Plaintiffs moved for a non-suit. At this point, Plaintiffs were entitled to take a non-suit, and the trial court’s refusal to allow same was' error. For this reason we reverse the cause and hereby render judgment allowing the non-suit as prayed for by Plaintiff-Appellants.

Reversed and rendered.


author: DUNAGAN, Chief Justice.

text:
    Richard S. HARVEY, Appellant, v. Dan L. CASEBEER, Appellee.
    No. 878.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 4, 1975.
    Rehearing Denied Dec. 31, 1975.

      Jesse M. DeWare, IV, Lawrence & Lawrence, Tyler, for appellant.
    Charles H. Clark, Tyler, for appellee.
   DUNAGAN, Chief Justice.

Appellant instituted this suit on four promissory notes payable to his daughter’s trust and executed by appellee. This appeal is taken from an instructed verdict in favor of appellee. We reverse and remand.

In reviewing an instructed verdict, we view all of the evidence in the light most favorable to appellant and give him the benefit of all legitimate inferences which are to be drawn therefrom in his favor. Frazier v. Hanlon Gasoline Co., 29 S.W.2d 461, 471 (Tex.Civ.App.—Eastland 1930, writ ref’d).

Appellee executed these notes to the Prances Lynn Harvey Trust to secure loans totalling $7,596.61 made in late 1970 and early 1971. Appellant, as sole trustee, later transferred these notes to himself individually for full consideration. The amount alleged to be in default is disputed. However, appellee’s motion for instructed verdict was granted solely on the ground that the transfer of the notes violated the Texas Trust Act and therefore precluded appellant’s suit as an individual.

A trustee shall not buy or sell, directly or indirectly, any property belonging to the trust estate, from or to itself. Tex. Rev.Civ.Stat.Ann. art. 7425b-12. Self-dealing transactions may be attacked by the beneficiary even though he has suffered no damages and even though the trustee has acted in good faith. Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377, 389 (1945).

Appellant’s breach of his fiduciary duty is complained of by a person other than the beneficiary. No one except a ces-tui que trust can enforce the trust. Restatement (Second) of Trusts, Section 200. Appellee, an obligor of this trust, is at most a person incidentally benefitted by the performance of the trust and cannot enforce it. Restatement (Second) of Trusts, Section 200, comment d. The rule that “a trustee cannot purchase at his own :~\i” really means that such a sale is subject to attack by the cestui. If the cestui desires to let the sale stand, the title of the purchasing trustee is unexceptionable. Bogert, Trusts and Trustees, Section 543 at 483-484 (2d ed.).

This action was brought under the Commercial Paper chapter of the Texas Business and Commerce Code. However, the Texas Trust Act could be raised as a defense if raised by a proper party. Appellant’s possession of the promissory notes which were indorsed to him entitles him to the status of Holder. Tex.Bus. & Comm. Code Ann., Section 1.201(20). He is not a Holder in Due Course if he purchased the notes with knowledge that a fiduciary negotiated the instruments in breach of duty. Tex.Bus. & Comm. Code Ann., Sections 3.302(a)(3) and 3.304(b). Although a mere Holder takes an instrument subject to certain defenses, the party liable on the instrument cannot raise the claim of a third person as a defense to his liability. Tex.Bus. & Comm. Code Ann., Section 3.306(4). Thus, appellee cannot defend on the basis of appellant’s alleged violation of his fiduciary duty to the beneficiary.

Appellee relies on Steves v. United Services Automobile Association, 459 S.W.2d 930 (Tex.Civ.App.—Beaumont 1970, writ ref’d n. r. e.). There, a trustee, who purchased real estate from the trust estate, sought specific performance of a profitable contract of sale of that property. Although the court discussed Article 7425b-12, specific performance was denied under the equitable doctrine of unclean hands and the potential liability of the defendant purchaser to the beneficiaries if specific performance were granted. Steves v. United Services Automobile Association, supra, at 934. We find the instant suit distinguishable on both grounds.

A suit brought on promissory notes, rather than for specific performance, need not invoke the equity jurisdiction of the court and the doctrine of unclean hands is not applicable. See Birk v. Jackson, 75 S.W.2d 918, 920 (Tex.Civ.App.—Eastland 1934, writ dism’d). Also, appellee’s payment of the debt, even though made with knowledge of the Holder’s wrongful acquisition of the notes, would discharge appel-lee’s liability thereon. Tex.Bus. & Comm. Code Ann., Section 3.603(a).

We hold that appellee could not rely on Subdivision 12 of the Texas Trust Act and the instruction of a verdict in his favor on that ground was improper. The judgment of the trial court is reversed and the cause remanded for a new trial.

      . “(4) * * * The claim of any third person to the instrument is not otherwise available as a defense to any party liable thereon unless the third person himself defends the action for such party.”


author: WALTER, Justice.

text:
    GO INTERNATIONAL, INC., Appellant, v. BIG-TEX CRUDE OIL COMPANY, Appellee.
    No. 4841.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 5, 1975.

      Rutledge & Rutledge, Abilene, for appellant.
    Bradbury & Tippen, Abilene, for appellee.
   WALTER, Justice.

This is a garnishment proceeding.

On the 18th day of November, 1974, Go International, Inc. secured a judgment against G. S. & B. Oil and Gas Company for $4,225.00 plus attorneys’ fees which was a final judgment at the time this garnishment proceeding was instituted.

International filed an application for a writ of garnishment against Big-Tex Crude Oil Company, as garnishee, alleging that Big-Tex was indebted to or had effects belonging to G. S. & B. Big-Tex was served with citation on February 13, 1975.

Big-Tex answered that it was not indebted to G. S. & B. and had no effects belonging to it at the time the writ was served. This answer was controverted by International. In a non-jury trial, the court rendered judgment that Big-Tex was not indebted to G. S. & B. International has appealed.

The Court made the following findings of facts:

“FINDING OF FACT I.
That effective as of December 1st, 1974, G. S. & B. Oil and Gas Co. executed and delivered to Big-Tex Crude Oil Company nine division orders pertaining to oil and gas production in Brown County, Texas.
II.
That effective December 1st, 1974, Big-Tex Crude Oil Company began buying production from certain oil and gas leases in Brown County, Texas, operated by G. S. & B. Oil & Gas Co. and described in said division orders.
III.
That said division orders provided that Big-Tex Crude Oil Company was to pay G. S. & B. Oil & Gas Co. 100 per cent less taxes.
IV.
That said division orders were prepared to permit payment to G. S. & B. Oil & Gas Co. that in turn would distribute payment to the rightful owners.
V.
That said division orders were prepared as an accommodation to facilitate payment until current title information concerning the land covered by the leases described in the said division orders could be obtained.
VI.
That prior to the date that Go International, Inc. served its writ of garnishment on Big-Tex Crude Oil Company, Big-Tex Crude Oil Company had determined that G. S. & B. Oil & Gas Co. owned no interest in any of the production under the leases described in the subject division orders.
VII.
That as of the date that Go International, Inc. served its writ of garnishment on Big-Tex Crude Oil Company, G. S. & B. Oil & Gas Co. owned no interest in any of the production under any of the leases described in the said division orders. That as of the date that Big-Tex Crude Oil Company filed its answer to the writ of garnishment served on it by Go International, Inc., G. S. & B. Oil & Gas Co. owned no interest in any of the production under any of the leases described in the said division orders.
VIII.
That as of the hearing date of this garnishment proceeding, G. S. & B. Oil & Gas Co. owned no interest in any of the production under any of the leases described in the said division orders.
IX.
That reasonable attorneys’ fees in connection with this action would be $750.00.”

In Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164 (1948), at page 166, the court said:

“The only question over which we have jurisdiction is the same question which was before the Court of Civil Appeals: whether as a matter of law there was any evidence to sustain the judgment of the district court. In determining this question, we must presume that the evidence supports not only the express findings made by the district court, but also any omitted findings which are necessary to support the judgment.”

In Ives v. Watson, 521 S.W.2d 930 (Tex.Civ.App.-Beaumont 1975, writ ref. n. r. e.), at page 934, the court said:

“ . . . We must presume that the evidence supports not only the express findings made by the district court but also any omitted findings which are necessary to support the judgment. Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164, 166 (1948); Allied Building Credits, Inc. v. Grogan Bldrs. Sup. Co., 365 S.W.2d 692, 695 (Tex.Civ.App.-Houston 1963, writ ref’d n. r. e.); Burkhart v. Christian, 315 S.W.2d 668, 671 (Tex.Civ.App.-Waco 1958, writ ref’d n. r. e.).”

The appellant recognizes its burden in this court of establishing conclusively or as a matter of law that the evidence shows Big-Tex was indebted to G. S. & B.

In Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974), at page 265, the court said:

“When a party asserts that there is no evidence to support jury findings, we must review the evidence in its most favorable light, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings. Butler v. Hanson, 455 S.W.2d 942 (Tex.1970); Langlotz v. Citizens Fidelity Insurance Company, 505 S.W.2d 249 (Tex.1974). It would be our duty to affirm the judgment of the Court of Civil Appeals if the evidence offered to show negligence were proven to be no more than a scintilla of proof. Thus if the evidence created nothing more than a mere surmise or suspicion of the existence of negligence, such evidence would be, in legal effect, no evidence. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898). But if negligence may be reasonably inferred from direct evidence, then there is more than a scintilla of evidence. Calvert, ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error, 38 Texas Law Review 361, 363 (I960).”

In Silsbee State Bank v. French Market Grocery Co., 103 Tex. 629, 132 S.W. 465, (1910), at page 466, the court said:

“ . . . We do not think, therefore, that it is true, as broadly as it is laid down by some writers, that a garnishing creditor of the depositor is substituted in his stead and can reach the deposit merely because the bank was bound to treat him as owner. The depositor controls the fund whether he is the true owner or not. The garnishing creditor can reach it only in case he is the true owner.” (Emphasis added)

The admissible documentary evidence and the admissible testimony of Mrs. Hortense Ray, office manager for Big-Tex, constitute some evidence of probative force that Big-Tex was not indebted to G. S. & B. at the time the writ was served, or at the time Big-Tex filed its answer or at the time of trial.

International contends the court erred in awarding attorneys’ fees to the garnishee and taxing it and the cost against International.

Rule 677, T.R.C.P., (formerly Article 4100) is as follows:

“Where the garnishee is discharged upon his answer, the costs of the proceeding, including a reasonable compensation to the garnishee, shall be taxed against the plaintiff; where the answer of the garnishee has not been controverted and the garnishee is held thereon, such costs shall be taxed against the defendant and included in the execution provided for in this section; where the answer is contested, the costs shall abide the issue of such contest.”

In May v. Donalson, 141 S.W.2d 702 (Tex.Civ.App.—San Antonio 1940, no writ), at page 706, the court said:

“Article 4100, R.S.1925, provides for the taxing of costs in a garnishment proceeding and it must be followed. Where the garnishee is discharged upon his answer, the statute provides that the costs of the proceeding, including a reasonable compensation for the garnishee, shall be taxed against the plaintiff. This reasonable compensation to the garnishee includes a reasonable attorneys’ fee incurred by it in the case. In order to determine what is meant by the ‘garnishee is discharged upon his answer,’ we must look to Article 4086, R.S. 1925.”

We have examined all of appellants’ points and find no merit in them. They are overruled.

The judgment is affirmed.