author: STEAKLEY, Justice.

text:
    Mrs. Leora Kay BARKER, Individually and in representative capacities, Relator, v. Honorable Walter DUNHAM, Jr., Respondent.
    No. B-6510.
    Supreme Court of Texas.
    April 27, 1977.

      William R. Edwards, Corpus Christi, for relator.
    Kleberg, Mobley, Lockett & Weil, Lev Hunt, James W. Wray, Jr., Corpus Christi, for respondent.
   STEAKLEY, Justice.

This is an original mandamus proceeding instituted by Mrs. Leora Kay Barker, individually and in representative capacities, as Relator, against Respondent, Honorable Walter Dunham, Jr., the presiding judge of the 28th Judicial District Court of Nueces County, Texas. Relator seeks a writ of mandamus requiring Judge Dunham to vacate his order of November 23, 1976, an order which denied the motion of Relator to require the completion of the deposition of James L. Montgomery and to discover various writings, memoranda, calculations, formulas, equations, or methods of calculations used by James L. Montgomery.

Mrs. Leora Kay Barker, individually and in representative capacities, has sued American Hoist and Derrick Company to recover damages for the death of Gale Floyd Barker. Mr. Barker was killed in an accident involving a crane boom designed and manufactured by American Hoist and Derrick Company and leased to Barker’s employer. On September 22, 1976, Mrs. Barker attempted to take the deposition of James L. Montgomery, Vice President in charge of engineering of American Hoist. In the course of the deposition Montgomery, upon direction of counsel for American Hoist, refused to answer certain questions as to his opinions, mental impressions, and conclusions relating to the cause of the failure of the crane boom in question. Thereupon Mrs. Barker filed her motion to require the deponent to answer the questions and to complete the deposition and to order the production of all writings, memoranda, calculations, formulas, equations or methods of calculation used by Montgomery in analyzing the causes of the collapse of the boom. The motions of Mrs. Barker were heard by Judge Dunham on October 26, 1976, and at the hearing counsel for American Hoist stated under oath that he did “not know yet” if Montgomery would appear as a witness in the case but that he “might use” Montgomery. Approximately one month after the hearing, in an order dated November 23, 1976, Judge Dunham denied the motions of Mrs. Barker.

The instant petition for writ of mandamus was filed in this Court under date of January 20, 1977. In brief, Mrs. Barker contends that Montgomery is an expert witness within the provisions of Rule 167 and Rule 186a and that his reports, factual observations, and opinions are discoverable since American Hoist has stated that he may be called as a witness. In support of Judge Dunham’s order it is argued that the terms “expert” and “factual observations” are ambiguous and should be interpreted narrowly and that the meaning of these terms in a given context is a matter addressed to the discretion of the trial court, the exercise of which discretion is not subject to supervision by writ of mandamus. It is settled that the writ of mandamus may issue in a discovery proceeding to correct a clear abuse of discretion by a trial judge. Houdaille Industries, Inc. v. Cunningham, 502 S.W.2d 544 (Tex.1973); Maresca v. Marks, 362 S.W.2d 299 (Tex.1962); Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959). The question here is whether such an abuse has been shown.

The propriety of Judge Dunham’s action in denying the motions of Mrs. Barker is to be determined by application of the following provisions of Rule 167 and Rule 186a of the Texas Rules of Civil Procedure to the record before us:

Rule 167:
Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to such limitations of the kind provided in Rule 186b as the court may impose, the court in which an action is pending may order any party:
(1) To produce and permit the inspection and copying or photographing by or on behalf of the moving party of any of the following which are in his possession, custody or control: (a) any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain, or are reasonably calculated to lead to the discovery of, evidence material to any matter involved in the action; .
. any party may be required to produce and permit the inspection and copying of the reports, including factual observations and opinions, of an expert who will be called as a witness. Rule 186a:

Any party may take the testimony of any person, including a party, by deposition upon oral examination or written questions for the purpose of discovery or for use as evidence in the action or for both purposes. . . . Provided, however, that subject to the provisions of the succeeding sentence, the rights herein granted shall not extend to the work product of an attorney or to communications passing between agents or representatives or the employees of either party to the suit, or communications between any party and his agents, representatives, or their employees, where made subsequent to the occurrence or transaction upon which the suit is based, and made in connection with the prosecution, investigation, or defense of such claim, or the circumstances out of which same has arisen, and shall not require the production of written statements of witnesses or disclosure of the mental impressions and opinions of experts used solely for consultation and who will not be witnesses in the case or information obtained in the course of an investigation of a claim or defense by a person employed to make such investigation. Provided, further, that information relating to the identity and location of any potential party and of persons, including experts, having knowledge of relevant facts, and the reports, factual observations and opinions of an expert who will be called as a witness, are discoverable.

Rule 186a as amended in 1973 retains the work product restriction on discoverable information subject, however, “to the provisions of the succeeding sentence.” The exception sentence provides: “information relating to the identity and location of any potential party and of persons, including experts, having knowledge of relevant facts, and the reports, factual observations and opinions of an expert who will be called as a witness, are discoverable.”

In Houdaille Industries, Inc. v. Cunningham, supra, we recognized the provisions of Rules 167 and 186a that restrict the discovery of certain work products. We there wrote that “[Tjhese limitations upon discovery which had been carried forward in succeeding amendments to Rule 167 were modified by the 1973 amendments to the extent of providing that ‘any party may be required to produce and permit the inspection and copying of the reports, including factual observations and opinions, of an expert who will be called as a witness.’ In correlation to these provisions in Rule 167, a coincident amendment to Rule 186a provided that the reports, factual observations and opinions of an expert who will be called as a witness are discoverable. Also, Rule 186a was further amended to provide that the right to depose a person, otherwise authorized by the rule, ‘shall not require the written statements of witnesses or disclosure of the mental impressions and opinions of experts used solely for consultation and who will not be witnesses in the case.’ ” Id. at 548.

The initial question here is whether the authorized discovery procedures apply to the witness Montgomery, an officer and regular employee of American Hoist and therefore not an “expert” specially employed for consultation. The rules draw no distinction between an expert who is a regular employee and one who is temporarily employed to aid in the preparation of a claim or defense, and we thus hold the procedures authorized by the Texas Rules of Civil Procedure apply to Montgomery. If he is an “expert” within the meaning of Rules 167 and 186a, he may be deposed under the provisions of Rule 186a and in the manner sought here because American Hoist has neither disclaimed an intention to call him as a witness nor asserted that he will be “used solely for consultation.” Where a party does not positively aver that the expert in question will be “used solely for consultation” and will not be called as a witness at the trial, the policy of allowing broad discovery in civil cases is furthered by permitting discovery of that expert’s reports, factual observations, and opinions.

We have written that a witness is generally permitted to testify only to facts within his personal knowledge but that an exception to this is the testimony of a qualified expert in the expression of an opinion in the field of his qualifications. We said that this is permitted because experts are considered to have a special knowledge not generally possessed by jurors and are better able to draw conclusions from the facts than the jurors. Loper v. Andrews, 404 S.W.2d 300 (Tex.1966). As Dean McCormick has written,

“The expert has something different [from first-hand knowledge] to contribute. This is a power to draw inferences from the facts which a jury would not be competent to draw. To warrant the use of expert testimony, then, two elements are required. First, the subject of the inference must be distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman, and, second, the witness must have such skill, knowledge or experience in that field or calling as to make it appear that his opinion or inference will probably aid the. trier in his search for truth.”

McCormick, Some Observations Upon the Opinion Buie and Expert Testimony, 23 Texas L.Rev. 109,121 (1945). See also Federal Underwriters Exchange v. Cost, 132 Tex. 299,123 S.W.2d 332 (1938); Houston & T.C.R. Co. v. Roberts, 101 Tex. 418, 108 S.W. 808 (1908); and Scalf v. Collin County, 80 Tex. 514, 16 S.W. 314 (1891).

During his deposition, Montgomery testified as follows:

Q. All right, sir. Let me back up, then, for just a minute.
For the record, will you state what your occupation is, please, sir?
A. I am vice-president of engineering for American Hoist & Derrick Company.
Q. And how long have you been employed by them?
A. I have been employed by American Hoist and Derrick for twenty years.
Q. All right, sir. And what is your educational background, please, sir?
A. I have a Bachelor of Science Degree in Mechanical Engineering from Purdue University.
Q. Are you a member of the Society of Automotive Engineers?
A. Not a member.
Q. I see. Do you serve on any committee?
A. Until recently I did serve on one committee.
Q. And what was that committee, please, sir?
A. Subcommittee 17 which is a committee which writes the standards for mobile cranes.
Q. All right. Would that include the standards, the Society of Automotive Engineer standards for the 4460 crane?
A. Yes.
Q. Manufactured by American Hoist?
A. Yes.
Q. And, of course, the boom that is part of that crane, is that correct?
A. Correct.
Q. And in particular, the 37H type boom we are talking about here, is that right, sir?
A. Yes.
Q. I see. How long did you serve on that committee?
A. For several years. I don’t know the exact dates.
Q. All right. Up until just recently?
A. Until this past year, yes.
Q. Let me ask you this, Mr. Montgomery: Have you been asked to give any consideration to what caused the failure of the boom in question in this lawsuit?
A. I have discussed it.
Q. All right, sir. Have you made calculations in that regard?
A. Yes. I have not personally made calculations in that regard.
Q. All right. Who has?
A. Members of our structural group.
Q. All right. People that work under you?
A. Yes.
Q. All right, sir. In your opinion, was the cause of the failure of the boom due to any other than the strength of the boom itself?
MR. HUNT: I believe that is going to call for matters pertaining to the investigation of the accident and we’ll instruct Mr. Montgomery not to answer that.
Q. Mr. Montgomery, have you been advised whether or not you should be available to testify at the trial of this case?
A. I have not.
Q. All right. Do you expect to testify at this trial?
A. An assumption on my part.
Q. That you would?
A. If so required.
Q. All right, sir. I take it from what you have told us that you have been given certain facts regarding the incident in question in this lawsuit, is that correct?
A. That’s right.
Q. All right, sir. And based on those facts that you have been given, you have reached certain conclusions as to what caused the failure of the boom in question, is that correct?
A. Yes.
Q.
All right, sir. I will ask you at this time to enumerate for me the factors that you were given to consider in order to form that opinion.
MR. HUNT: That is one that I will instruct you not to answer.
Q. All right.
Q. Based on those factors, did you form a conclusion as to what caused the boom to fail?
A. Yes.
Q. All right, sir. And I will ask you what that conclusion is?
MR. HUNT: Same instruction as before.
Q. Mr. Montgomery, other than yourself, is there any one person with American Hoist and Derrick that is more knowledgeable or expert in the over-all boom design in the crane that we have been talking about?
A. Oh, yes.
Q. Who is that?
A. Well, Mr. Ron Kohner, Mr. Eugene Lit-kowitsch are both more competent in structural boom design than I am.
Q. All right. Other than yourself, is there anyone with American Hoist that is more knowledgeable and expert regarding the structural capacity of that boom?
A. I would say yes, that those same people would be more expert on structural capacity.
Q. All right, sir. Other than yourself, is there any one person in American Hoist and Derrick which would be more knowledgeable and better able to determine why this particular boom failed?
A. Well, I would assume that the specific detail calculations could be better done by structural engineers than by myself. Whether on the basis of experience they would have any better opinion of why the boom failed than I is doubtful.
Q. All right, sir. So, given the circumstances and the calculation, there is no one more expert than you are as to have an opinion as to why the boom failed?
A. I think that is true.
This testimony establishes that Montgomery is an expert subject to being deposed in the manner sought by Relator. In refusing to order Montgomery to answer the questions put to him by Mrs. Barker’s attorney, Judge Dunham abused his discretion.
We anticipate that Judge Dunham will vacate his order denying discovery of the information in question and will enter an order consistent with this opinion. Should he fail to do so, the Clerk of the Supreme Court will be instructed to issue the writ of mandamus.


source: Caselaw Access Project

author: SAM D. JOHNSON, Justice.

license: Public Domain

text:
    Arthur HOLLEN, Petitioner, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. B-6456.
    Supreme Court of Texas.
    April 27, 1977.
    Rehearing Denied May 25, 1977.
    Lorance, Thompson & Wittig, Frank B. Stahl, Jr. and Larry W. Hohle, Houston, for petitioner.

      Marc S. Flatow; Foster & Lueders, Tom W. Foster, Houston, for respondent.
   SAM D. JOHNSON, Justice.

As a result of an automobile accident in February 1974 Juan Hernandez, individually and as next friend of Janet Hernandez, and Doris Barclay, individually and as next friend of Dona Barclay, sued State Farm Mutual Automobile Insurance Company asserting a claim under policies issued to Juan Hernandez, Janet’s father, and to Doris Barclay, Dona’s mother, which contained provisions insuring Janet and Dona in the event they were involved in an accident caused by an uninsured motor vehicle. State Farm filed a cross action against the operator of the vehicle, Jack Hollen, and his father, Arthur Hollen, seeking indemnity. Janet and Dona then amended their petition to sue Jack and Arthur Hollen. The trial court severed the claims made against Arthur Hollen, the father, and rendered a summary judgment that Janet and Dona and State Farm take nothing against Arthur Hollen. The court of civil appeals reversed on the ground that there existed a question of fact as to whether Arthur Hol-len negligently entrusted the motor vehicle to his minor son and remanded the cause for trial. 543 S.W.2d 178. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

On February 1, 1974 Jack Hollen, then age 17, was driving a 1965 Chevrolet Impala with Janet Hernandez and Dona Barclay as passengers. Apparently one of the wheels struck a curb and the car flipped over, injuring Janet and Dona. At his deposition, Jack Hollen testified that his father knew he was driving the 1965 Chevrolet Impala without a license and without insurance. Furthermore, Jack acknowledged that he was living with his parents and that his father told him what he could and could not do. While Arthur Hollen asked his son, Jack, not to drive the automobile, he did not forbid Jack to drive it and did not take it away. However, Jack had purchased the car with his own money and, apparently, title to the car was not in Arthur Hollen’s name.

Arthur Hollen’s motion for summary judgment was styled, “JUAN HERNANDEZ, INDIVIDUALLY A/N/F JANETE [sic] HERNANDEZ AND DORIS BARCLAY, INDIVIDUALLY A/N/F DONA BARCLAY VS. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,” and was entitled “MOTION FOR SUMMARY JUDGMENT.” It stated in pertinent part:

“COMES NOW, DEFENDANT, ARTHUR HOLLEN, and moves the Court for a Summary Judgment, and would show the Court that there is no material issue of fact to be tried in this ease and that this Defendant is entitled to Judgment; that the Third Party Plaintiff, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, take nothing by this suit against him, and as grounds therefore, would respectfully show the Court as follows:
“Defendant would show that there is no material issue of fact between the Third Party Plaintiff, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, and this Defendant and, as evidenced by this Motion, the pleadings on file, and the deposition of Jack Arthur Hollen [the son], this Defendant [the father], in terms of law, can in no manner be held legally responsible for the actions of Jack Arthur Hollen as they pertain to this accident.
“WHEREFORE, PREMISES CONSIDERED, Defendant, ARTHUR HOL-LEN, prays that this Motion for Summary Judgment be in all things granted and that a Judgment that the Third Party Plaintiff, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, take nothing against the Defendant, ARTHUR HOLLEN, be entered and that this Defendant be discharged and for costs.”

Subsequently, Arthur Hollen moved to enter an order sustaining his motion for summary judgment. This motion recited:

“I. On March 8, 1976, this Honorable Court heard the Motion of Defendant, ARTHUR HOLLEN, for Summary Judgment. After approximately 30 minutes of argument from counsel representing ARTHUR HOLLEN and counsel representing STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and after reviewing authorities presented by counsel this Honorable Court granted, ARTHUR HOLLEN’S Motion for Summary Judgment and made an appropriate docket sheet entry. The Court further requested counsel representing ARTHUR HOLLEN to prepare an appropriate Order.
“II. Attached hereto and marked as Movant’s Exhibit 1 is ‘Order Sustaining Defendant Arthur Hollen’s Motion for Summary Judgment.’ The aforementioned Order was forwarded to the attorney representing the Plaintiffs [Janet and Dona] on March 9, 1976. The Order was approved as to form and substance by Plaintiff’s [sic] attorney Marc Flatow on or about March 16, 1976, and forwarded to STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY’S attorney, David Lueders, for approval as to form.” [Emphasis added.]

The trial court then entered the following order entitled “ORDER SUSTAINING DEFENDANT AND CROSS-DEFENDANT ARTHUR HOLLEN’S MOTION FOR SUMMARY JUDGMENT AND SEVERANCE”:

“BE IT REMEMBERED that on this 8 day of March, 1976, after due notice, the Motion for Summary Judgment of the Defendant and Cross-Defendant, ARTHUR HOLLEN, was regularly presented to the Court for determination. The Court, upon consideration of the record on file, the pleadings, the deposition of Jack Hollen, and the argument of counsel, determined that the Motion was in all things good and should be granted.
“IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that as to the Defendant and Cross-Defendant, ARTHUR HOLLEN, this cause be severed and dismissed, and that Summary Judgment issue as to said Defendant and Cross-Defendant, ARTHUR HOLLEN. The remaining case of JUAN HERNANDEZ, INDIVIDUALLY A/N/F JANET HERNANDEZ AND DORIS BARCLAY, INDIVIDUALLY A/N/F DONA BARCLAY vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and JACK HOL-LEN shall remain pending under Cause Number 1,021,766.
“The cause of action of Plaintiffs’ JUAN HERNANDEZ, INDIVIDUALLY and JANET HERNANDEZ, A MINOR, BY AND THROUGH HER NEXT FRIEND JUAN HERNANDEZ, and DORIS BARCLAY, INDIVIDUALLY and DONA BARCLAY, A MINOR, BY AND THROUGH HER NEXT FRIEND DORIS BARCLAY, and that of Cross-Plaintiff, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, is now and hereby severed from the original suit, and the Clerk of this Court is hereby ORDERED and directed to:
“(a) Docket the severed cause under the number ‘1,021,766-A’ with JUAN HERNANDEZ, INDIVIDUALLY A/N/F JANET HERNANDEZ AND DORIS BARCLAY, INDIVIDUALLY A/N/F DONA BARCLAY as Plaintiffs, and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY as Cross-Plaintiff, and ARTHUR HOLLEN, as Defendant;
“APPROVED AS TO FORM AND SUBSTANCE:
“LORANCE, THOMPSON & WITTIG “BY: /s/ Frank B. Stahl Jr.
FRANK B. STAHL, JR.
ATTORNEY FOR DEFENDANT AND CROSS-DEFENDANT ARTHUR HOLLEN
“FLATOW & HINOJOSA
“BY: /s/ Marc Flatow MARC FLATOW ATTORNEY FOR PLAINTIFFS
/s/ Signed by Frank B. Stahl Jr. with express permission of Marc Fla-tow"

Subsequently, State Farm filed an appeal bond listing itself as appellant and Janet Hernandez, Dona Barclay, and Arthur Hol-len as appellees. Neither Janet Hernandez nor Dona Barclay appealed the judgment rendered in favor of Arthur Hollen. It is undisputed that State Farm has made no payments to Janet or Dona.

Arthur Hollen contends that the summary judgment rendered by the trial court in his favor with respect to plaintiffs Janet Hernandez and Dona Barclay has become final thereby destroying the subrogation rights of State Farm. He notes that Janet and Dona were listed on the appeal bond only as appellees and that they did not perfect any appeal from the summary judgment rendered against them and concludes that the summary judgment has become final.

Though not presented in its brief, State Farm, however, contended during oral argument before this court that no final judgment had been rendered as to Janet’s and Dona’s causes of action against Arthur- Hollen. State Farm notes that numerous decisions by Texas courts have established that in order for a court to render a summary judgment pursuant to Rule 166-A of the Texas Rules of Civil Procedure, there must be a motion for summary judgment. Cowan v. Woodrum, 472 S.W.2d 749 (Tex. 1971); Hinojosa v. Edgerton, 447 S.W.2d 670 (Tex.1969); Hudgens v. Texas Casualty Insurance Company, 465 S.W.2d 832 (Tex.Civ.App. — Amarillo 1971, writ ref’d n. r. e.); Republic Nat. Bank of Dallas v. Southern Brokerage Co., 338 S.W.2d 295 (Tex.Civ.App. — San Antonio 1960, writ ref’d n. r. e.). It is true that in the instant case the summary judgment motion made by Arthur Hollen requests only a judgment that State Farm take nothing against Arthur Hollen and refers to Janet and Dona only in the style of the cause. However, the order entered by the trial court, entitled “summary judgment,” does indeed dispose of the causes of action filed by Janet and Dona against Arthur Hollen. While the order may have been styled “summary judgment,” the court should look beyond that title to determine whether it was in fact a “summary judgment.” It appears from the order actually entered that the attorney for Janet and Dona approved the order as to form and substance. Such approval thus makes this order in reality an order entered by agreement with respect to the plaintiffs Janet and Dona rather than a summary judgment. Therefore the cases relied upon by State Farm are inapplicable. It is clear, then, that a judgment was rendered against Janet and Dona and, since they did not perfect any appeal from such judgment, it has become final. Rule 329b, Texas Rules of Civil Procedure.

Since there does exist a final judgment with respect to the causes of action of Janet and Dona against Arthur Hollen which releases Hollen from any liability to those plaintiffs, then the subrogation rights of State Farm are destroyed by that final judgment. As stated in Williams v. Advanced Technology Ctr., Inc., 537 S.W.2d 531, 533 (Tex.Civ.App. — Eastland 1976, writ ref’d n. r. e.), “where an insured settles with or releases a wrongdoer from liability for a loss before payment of the loss has been made by the insurance company, the latter’s right of subrogation is thereby destroyed.” Accord, Grove Mfg. Co. v. Cardinal Const. Co., 534 S.W.2d 153 (Tex.Civ.App. — Houston [14th Dist.] 1976, writ ref’d n. r. e.). Accordingly, the question of whether there was any question of fact as to whether Arthur Hollen negligently entrusted the automobile to Jack Hollen is not reached.

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

      . It should be noted that the names “Janet Hernandez” and “Dona Barclay” did not appear in this motion by Arthur Hollen for summary judgment, except in the style of the case.

      . It was this severed cause of action which was dismissed.


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

text:
    Raymond G. CENICEROS, Appellant, v. The STATE of Texas, Appellee.
    No. 52528.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1977.
    On Rehearing May 18, 1977.
    Bruce J. Ponder, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and William J. Ellis, Thomas C. Roepke, Asst. Dist. Attys., El Paso, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury appellant was convicted of possession of heroin. Punishment was assessed at five years.

In appellant’s sole ground of error he contends that the trial court erred in overruling his motion to suppress evidence “because there was not sufficient probable cause on the part of the arresting officer to stop and investigate the appellant.”

Prior to the introduction of evidence of the heroin, the court conducted a hearing in the absence of the jury on appellant’s motion to suppress such evidence. Officer Nunez of El Paso Police Department testified substantially as follows:

About 10:20 a.m. on June 19, 1975, while Nunez was on regular patrol duty in his police car in El Paso, he noticed four men standing together on the sidewalk at the intersection of Missouri and Randolf Streets, a residential area in El Paso. Due to a number of recent burglaries in the neighborhood, Nunez, after passing the men, turned his car around, stopped it, and approached the men. He started talking to them “to see if they had any business in the area.” Noting that one of the men, identified as appellant, appeared to be shaking and nervous, he asked for identification of each of them. The men “started to pull out their wallets to get some ID.” As appellant was “thumbing” through his wallet, a piece of tin foil and a pawn shop ticket fell from it to the sidewalk. Nunez knew from his experience as a policeman that heroin was frequently packaged in this manner. He picked up the foil, opened it, and found a brown powdery substance which appeared to him, based on his experience, to be heroin. He then arrested appellant and the other men. Examination by a chemist proved this powder to be heroin.

Testimony of one of the men with appellant conflicted with that of Nunez. Victor Rodriquez, who at the time was a resident of a “halfway” house on parole from a federal narcotic conviction, testified that when the officer approached them he immediately ordered them to place whatever was in their pockets on the top of the police car. He stated that he did not see anything fall from appellant’s wallet, and did not see Nunez reach down and get anything from the sidewalk.

The court, who at the hearing was the trier of facts, overruled the motion to suppress, and permitted the officer to testify before the jury of finding the heroin as above stated.

In Baity v. State, Tex.Cr.App., 455 S.W.2d 305, we quoted as follows from the majority opinion and Justice White’s concurring opinion in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889:

“The majority opinion stated:
“ ‘One general interest is of course that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest, (emphasis supplied)’
U ⅜: * ⅜
“ ‘And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.’ “Mr. Justice Harlan, concurring, wrote:
“ ‘Officer McFadden had no probable cause to arrest Terry for anything, but he had observed circumstances that would reasonably lead an experienced, prudent policeman to suspect that Terry was about to engage in burglary or robbery.
His justifiable suspicion afforded a proper constitutional basis for accosting Terry, restraining his liberty of movement briefly, and addressing questions to him, and Officer McFadden did so.’
“And Mr. Justice White in his concurrence said:
“ ‘There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for his arrest, although it may alert the officer to the need for continued observation.’ ”

In the instant case, Nunez, acting from his experience as a police officer and from his knowledge that a number of recent burglaries had occurred in the area, violated no constitutional rights of appellant in approaching and engaging in conversation. Appellant and his companions were not stopped by the officer; they were standing still when he first saw them, and when he approached them. When Nunez noticed that appellant appeared nervous as he approached, the evidence does not disclose that he placed appellant or his companions in any kind of restraint or detention. As Justice White stated in Terry v. Ohio, supra, appellant could “refuse to cooperate and go on his way.” However, when the wrapped foil paper fell from appellant’s wallet, and the officer recognized it as the type of wrapper often used to contain heroin, he was justified in securing it and making further investigation. See Art. 14.-03, V.A.C.C.P. It is a well recognized rule that when contraband is thrown, dropped, or placed away from the person of accused in a public place, the recovery thereof does not constitute a search and the evidence is admissible. Tatum v. State, Tex.Cr.App., 505 S.W.2d 548; Gomez v. State, Tex.Cr. App., 486 S.W.2d 338 and authorities there cited; Baity v. State, supra.

The court did not err in overruling the motion to suppress and admitting the evidence relative to the seizure of the heroin.

The judgment is affirmed.

Opinion approved by the Court.

ROBERTS, Judge,

dissenting.

The facts are sufficiently stated by the majority, but I further note the following: that the “experience” of the arresting officer was of some seven months; that one of the appellant’s companion’s parents lived in the neighborhood where they were questioned; that the arresting officer’s testimony was contradictory as to when the appellant became nervous, as the officer approached him or only after he asked for his identification; that the fact that the officer approached appellant because of recent burglaries in the area was brought out by the trial court’s examination of the officer at the motion to suppress; that the officer testified that the appellant and his companions were not holding any tools, ropes or crowbars, and were, in fact, empty-handed; that the arresting officer testified that he did not suspect the appellant and his companions to have committed a crime; that the arresting officer stated unequivocally at least four times that the appellant and his companions were doing nothing suspicious.

This case presents the question of whether the reasonableness of a temporary detention for investigative purposes, what we have formerly denominated as a “lesser intrusion upon the personal security of an individual,” should be tested by the application of Fourth Amendment principles and Article I, Section 9 of the Constitution of this State when such investigation is merely a request for identification. I would hold that it should be so tested; that the instant investigative detention was unreasonable in light of the facts; and that the evidentiary fruit obtained from such unreasonable investigative detention was improperly admitted into evidence.

A recent federal decision focuses on the exact problem that we face in the case at bar: the reasonableness of the request for identification. In United States v. Salter, 521 F.2d 1326 (2nd Cir. 1975), Judge Friendly, speaking for a unanimous court, stated that a routine request for identification is allowable once an otherwise lawful stop for investigative purposes has taken place.

“Once a lawful stop for investigative purposes is under way, it is mere routine for an officer to ask for identification, see United States v. Lincoln, 494 F.2d 833, 838 (9th Cir. 1974). . . . Such a request is relatively non-intrusive, and there are important reasons why an officer needs to obtain a correct identification. ... an officer may need to know a person’s identity so as to be able to contact him at a later date. (Citation). Naturally, there is a possibility of harassment in even routine requests for identification, but there are too many legitimate uses not to allow it once an otherwise lawful stop has taken place. (Citation)” (Emphasis added).

This is a reasonable view. Part and parcel of practically every temporary detention for investigation is the request for identification. It serves many purposes, and efficient law enforcement requires it. However, we should require that quantum of justification necessary for a lawful investigative detention before we should sanction any of its incidents.

In Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972), we stated that:

“The basic purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by government officials. (Citations). Such an intrusion may be justified upon a showing that the facts of a case presented any one of three classes of probable cause. These are probable cause to arrest, probable cause to search and probable cause to investigate. ******
“. . . Probable cause for an officer to detain a person temporarily for investigative purposes exists where the circumstances reasonably indicate that that particular person either has or is preparing to commit a crime. (Citations).
“The inarticulate hunch, suspicion, or good faith of an arresting officer is insufficient to constitute probable cause under any of the three above named classes. (Citations). For ‘[i]f subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be “secure in their persons, houses, papers, and effects,” only in the discretion of the police.’ ” (Citation). (Emphasis added).

In the case at bar, we do not have circumstances which reasonably indicate that the appellant had committed or was preparing to commit a crime. The officer testified that he did not suspect the appellant and his companions to have committed a crime. Indeed, we do not even have the insufficient “inarticulate hunch, suspicion, or good faith” of the arresting officer because he stated unequivocally at least four times that appellant and his companions were doing nothing suspicious.

The record does not reflect how many recent burglaries had been committed in the neighborhood. Even so, the fact that criminal activity is more likely in one geographical area than another does not by itself satisfy the standards required for an interrogatory stop. United States v. Brignoni-Ponce, 422 U.S. 878, 882-886, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); United States v. Nicholas, 448 F.2d 622, 624 (8th Cir. 1971); United States v. Davis, 147 U.S.App. D.C. 400, 458 F.2d 819, 822 (1972); People v. Oden, 36 N.Y.2d 382, 385, 368 N.Y.S.2d 508, 329 N.E.2d 188 (1974).

In Thompson v. State, 533 S.W.2d 825 (Tex.Cr.App.1976), we quoted from Wood v. State, 515 S.W.2d ,300 (Tex.Cr.App.1974), and held that:

“. . .A brief stop of a suspicious individual in order to determine his identity or to maintain status quo momentarily while obtaining more information may be reasonable in light of facts known to the officer at the time.” Thompson, at 827.

In the case at bar, the officer testified that the appellant was not a suspicious individual. The only fact known to the officer at the time was that there had been several recent burglaries in the neighborhood. In Thompson, the facts were that the defendant was walking at 1 a.m. in a high crime area and carrying something which bore obvious evidence that it belonged to someone other than the defendant. In the case at bar, the appellant was standing empty-handed at 10:20 a.m. in the neighborhood where one of his companion’s parents lived.

In Hernandez v. State, 523 S.W.2d 410 (Tex.Cr.App.1975), we stated that an “inarticulate hunch” is not sufficient to permit an officer to stop and detain a person for investigation. As noted, we do not even have the “inarticulate hunch” in the instant case. However, we further held in Hernandez that:

“So there will be no misunderstanding, we are not holding that a police officer has the right to stop for investigation any person . . .. (Citation). This Court will not, nor should any court, tolerate unfounded detention or harassment of citizens.” Id., at 412.

I can see how some would view the request for identification as a relatively minor intrusion into the personal freedom of an individual. However, I cannot accept the reasoning that the individual can remedy an unjustified request by simply denying the request and walking away. See, Nicholas, supra, at 624. To so hold would be to belie the fact that most ordinary citizens feel they must act with respect for the color of the law. Unjustified requests for individuals to produce their identification should not take place.

Because there was no shred of justification for the arresting officer’s demand that the appellant produce his identification, I would hold that this action was unreasonable within the meaning of the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Constitution of this State. The evidence obtained as a result of this unreasonable intrusion should not have been admitted into evidence.

I am as much for effective law enforcement as anyone. However, I am compelled to reason that police intrusions which have no basis other than the unfettered exercise of police discretion are exactly what the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Constitution of this State were designed to protect against. Our streets are traversed not only by the criminal minority but also by the law-abiding majority. The housewife scurrying down the sidewalk to get inside the grocery store before it closes should not have to stop and produce her identification at the whim of an officer; the elderly citizen nervously awaiting the walk-signal in order to cross the street and attend a religious service for which he is already late should not be similarly hampered by the hunch of a patrolman; the couple on a Sunday stroll should not have their conversation interrupted by a policeman who arbitrarily wants them to prove who they are. We are inched closer to the horizon of these occurrences by the decision of the majority today. That is why I respectfully dissent.

PHILLIPS, J., joins in this dissent.

OPINION ON APPELLANT’S MOTION FOR REHEARING

ODOM, Judge.

On rehearing the appellant argues that our opinion on original submission is in conflict with Leighton v. State, Tex.Cr.App., 544 S.W.2d 394; Smith v. State, Tex.Cr. App., 542 S.W.2d 420; and Brown v. State, Tex.Cr.App., 481 S.W.2d 106. After a review of the facts of this case, we now conclude that the dissenting opinion was correct on original submission.

This Court has consistently followed the rule that when a person is stopped on an inarticulate hunch, the resulting discovery of contraband is inadmissible. Hinson v. State, Tex.Cr.App., 547 S.W.2d 277 (1977); Faulkner v. State, Tex.Cr.App., 549 S.W.2d 1 (1976); Scott v. State, Tex.Cr.App., 549 S.W.2d 170 (1976); Armstrong v. State, Tex.Cr.App., 550 S.W.2d 25 (1976); Leighton v. State, supra; Smith v. State, supra; Brown v. State, supra. The only differences in the above-cited cases and the instant case are that all those cases involve the stopping of an automobile and in the instant case the appellant was not stopped and was not in an automobile but rather standing on the street. However, these are differences without a distinction.

The officer here, acting under his badge of authority, approached the appellant and his companions specifically for investigative purposes to secure information and-“to see if they had any business in the area.” Such investigations should be initiated only if the officer can give “specific reasonable inferences which he is entitled to draw from the facts in light of his experience,” Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, quoted in opinion on original submission, emphasis added. The only facts the officer had at the initiation of his investigation were (1) a number of recent burglaries in the area and (2) four men standing together on a sidewalk at an intersection at 10:20 in the morning. It appears the officer initiated his investigation on “his inchoate and unparticularized suspicion” (Terry v. Ohio, supra) that appellant and his companions might in some way be connected with the recent burglaries. If such a suspicion were a reasonable inference from standing on a street corner in this neighborhood, all citizens passing through victimized neighborhoods would be suspects, and pedestrian checkpoints could be set up to monitor their comings and goings. Practices of this kind are repugnant to a free society. If victimization by crime becomes the justification for indiscriminate intrusion by the state, then we forfeit the security of our persons and privacy from invasion by the police on a hope of future security from the criminal, and ultimately find ourselves the displaced refugees in a raging war on crime.

The officer’s investigative action in this case was unreasonable under the Fourth Amendment to the United States Constitution and Article 1, Section 9 of the Constitution of Texas. The evidence should have been suppressed.

Appellant’s motion for rehearing is granted. Our prior judgment affirming the conviction is set aside. The judgment of the trial court is reversed and the cause remanded.

DISSENTING OPINION ON APPELLANT’S MOTION FOR REHEARING

DOUGLAS, Judge.

Judge Green for the Court correctly disposed of this case on original submission. On rehearing, a majority of this Court now holds without any evidence to support it that appellant and three other men were stopped by the officer. There is no evidence that the officer stopped them because they were already stopped and standing at the intersection of a residential area in El Paso at 10:20 in the morning. Several recent burglaries had been committed in that area.

All the officer did was ask for identification when the heroin from appellant’s pocket fell to the ground.

The language of Mr. Justice White in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, cited in the original opinion, fits this case. He wrote as follows:

“There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked, but may refuse to cooperate and go on his way. . . .”

In the present case appellant was neither stopped nor detained by the officer. The officer merely asked for identification. He did not ask for incriminating evidence. One’s identification would rarely, if ever, be incriminating. There was no frisk and no search by the officer. He made the arrest after he saw the heroin.

The asking of identification was not unreasonable or unconstitutional. The heroin picked up by the officer was admissible. The cases relied upon by the majority are not in point.

The motion for rehearing should be denied.

Onion, P. J., joins in this dissent.

      . At the motion hearing, when both sides had initially finished questioning the arresting officer who had alluded to “burglaries in the area,” the following occurred:
      “THE COURT: The Court has some questions.
      * # * * * *
      “THE COURT: Did I understand you to say there was a rash of burglaries in that neighborhood?
      “[OFFICER]: Yes, sir.
      “THE COURT: Is that the reason you went over to these men?
      “[OFFICER]: Yes, sir.
      “THE COURT: You didn’t tell the attorney that see.”

      . Ablon v. State, 537 S.W.2d 267, 269 (Tex.Cr.App. 1976) (and cases there cited).

      . We have recently reiterated this rule concerning the requisite justification for a temporary investigative detention. Leighton v. State, 544 S.W.2d 394, 397 (Tex.Cr.App.1976, On Appellant’s Motion for Rehearing).

      . Terry, supra, and Baity, supra, relied on by the majority, are also distinguishable as follows:
      In Terry, the officer observed the defendant and a companion pace back and forth along an identical route, pausing to stare in the same store window, which they did for a total of about 24 times. Each completion of the route was followed by a conference between the two on a comer, at one of which they were joined by a third man who left swiftly. Because of these facts, the officer testified that he suspected the two men of “casing a job, a stick-up.”
      In Baity, the officer, in early morning hours, observed the defendant who he knew had a record of many arrests for theft and burglary, enter an alley where the officer was patrolling. He then observed the defendant suddenly turn back out of the alley and walk away rapidly with his coat pulled up tight around him. The officer observed a crowbar and some other object under the defendant’s coat.

      . “A ruling admitting evidence in a criminal trial, we recognize, has the necessary effect of legitimizing the conduct which produced the evidence, while an application of the exclusionary rule withholds the constitutional imprimatur.” Terry, supra, 392 U.S. at 13, 88 S.Ct. at 1875.
      “Under our decision, courts still retain their traditional responsibility to guard against police conduct which is overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials.” Id., at 15, 88 S.Ct. at 1876.


author: PHILLIPS, Judge.

text:
    Herbert Sherril WASHINGTON, Appellant, v. The STATE of Texas, Appellee.
    Nos. 54570, 54571.
    Court of Criminal Appeals of Texas.
    June 1, 1977.
    Jack J. Rawitscher, Houston, for appellant.
    Carol S. Vance, Dist. Atty. James C. Brough and Charles C. Cate, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

Appellant waived trial by jury and entered pleas of guilty before the court to the offenses of aggravated robbery (Cause No. 54,570) and attempted capital murder (Cause No. 54,571). The punishment in Cause No. 54,570, enhanced under the provisions of V.T.C.A. Penal Code, Sec. 12.42(c), was assessed at fifty years’ confinement in the Department of Corrections. The punishment assessed in Cause No. 54,571 was twenty-five years’ confinement in the Department of Corrections. The sentences in each case were to run concurrently.

Appellant has filed his personal affidavit in this Court requesting that his appeal be dismissed in each cause. The State has filed a reply asking this Court to deny appellant’s motion to dismiss alleging dismissal will serve no useful purpose since the issue raised on appeal, that appellant’s pleas of guilty were not voluntarily and knowingly made, could be raised by writ of habeas corpus. The State cites no authority for the proposition that this Court may deny an accused’s motion to dismiss an appeal when the State opposes it.

The right of appeal is a personal one and an appeal will be dismissed only upon sworn affidavit of the appellant. Page v. State, Tex.Cr.App., 532 S.W.2d 341; McDonald v. State, 118 Tex.Cr.R. 10, 37 S.W.2d 1018; Rivera v. State, Tex.Cr.App., 105 S.W. 193. A request to dismiss is granted by this Court without regard to the issues presented. Prater v. State, Tex.Cr.App., 219 S.W. 1096. The exceptions lie when the motion to dismiss is filed in this Court after an opinion has been written and filed, see Toney v. State, Tex.Cr.App., 534 S.W.2d 141, and where there is a defect apparent from the face of the record, Adcock v. State, 152 Tex.Cr.R. 194, 212 S.W.2d 175 (the defendant was convicted of a misdemeanor upon complaint only, no information having been filed), Gaines v. State, 155 Tex.Cr.R. 79, 231 S.W.2d 429 (the judgment was reformed to comply with the jury’s verdict), Lowe v. State, Tex.Cr.App., 427 S.W.2d 867 (the judgment and sentence adjudged the accused guilty of two separate offenses and were reformed to adjudge the defendant guilty of forgery as alleged in the first count of the indictment).

The instant case does not fall within any of the previously recognized exceptions, and, in accordance with the request of appellant, the appeals are dismissed.

It is so ordered.


author: EVANS, Justice.

text:
    BANK OF NORTH AMERICA, Appellant, v. Morris KRUGER, Appellee.
    No. 16816.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 17, 1977.
    Rehearing Denied April 7, 1977.

      Thomas W. Moore, Houston, for appellant.
    Brochstein & Slobin, Harry H. Broeh-stein, Houston, for appellee.
   EVANS, Justice.

The basic question in this casé is whether the contractual and statutory liens asserted by a landlord in the personal property of his lessee should be accorded priority over the perfected security interest of a lending bank in the same property.

On June 23, 1967, the landlord Morris Kruger leased certain premises to National Motors, Inc., the lessee’s performance being individually guaranteed by its president, Harry Hartley. The lease contained a provision expressly granting a lien to the lessor on all of the lessee’s personal property to secure the lessee’s performance under the lease, but the lessor did not perfect its lien as a security interest by filing a statement under Chapter 9, Texas Business and Commerce Code. On September 1, 1968, the lease term was extended from June 30,1970 to August 31, 1971.

On November 24, 1970, National Motors, Inc. obtained from the Bank of North America a $100,000 Small Business Administration loan which was secured by a lien on all of the borrower’s machinery, equipment, motors and other personal property. On August 9,1971, the Bank made an additional loan of $20,000 to National Motors, Inc. and Harry Hartley, which was also secured by a lien on the personal property of National Motors, Inc. The liens securing both such loans were duly perfected by the Bank’s filing of financing statements in accordance with Chapter 9, Texas Business and Commerce Code.

On January 5, 1972, both notes being in default, the Bank brought suit against National Motors, Inc. and Harry Hartley to recover its debt and foreclose its security interest. It also made application for a writ of sequestration and the following day the sheriff levied on the personal property constituting the collateral for the loans.

On January 17, 1972, Morris Kruger, the landlord, subsequently brought this suit against National Motors, Inc., Harry Hart-ley and the Bank of North America, asserting that the Bank had wrongfully converted the personal property which was subject to his landlord’s liens. After a jury trial, the trial court entered judgment in favor of Morris Kruger against the Bank of North America, National Motors, Inc., and Harry Hartley, jointly and severally, in the amount of $23,612.02, representing the rentals, interest and attorney’s fees owing to the landlord under the terms of the lease agreement and under the guarantee agreement executed by Hartley. This portion of the trial court’s judgment must be reversed.

In its first three points of error, the Bank of North America contends that its perfected security interest in the leased collateral was superior to any liens, contractual or statutory, which the landlord may have had in the same property. The landlord, Morris Kruger, responds by contending, first, that his liens are excluded from the application of Chapter 9, Texas Business and Commerce Code; second, that the Bank did not act in good faith and is therefore estopped to assert that its security interest is superi- or to the landlord’s contractual lien in the same property; and third, that the statutory landlord’s lien was entitled to priority over the Bank’s security interest.

The landlord’s contractual lien has been held to be a chattel mortgage which must be perfected by filing under the registration statutes. Shwiff v. City of Dallas, 327 S.W.2d 598 (Tex.Civ.App. — Dallas 1959, writ ref’d n. r. e.). The Shwiff decision was rendered prior to the enactment of the Texas Business and Commerce Code, but its rationale is applicable to the case at bar.

The Code expressly provides that Article 9 shall not be applicable to a landlord’s lien. Section 9.104(2), Tex.Bus. & Com.Code. On the basis of this exclusionary provision a landlord’s lien was held to be superior to a perfected security interest. Associates Financial Services of Texas, Inc. v. Solomon, 523 S.W.2d 722 (Tex.Civ.App.— Waco 1975, no writ). However, the lien involved in the Solomon case was apparently statutory, rather than contractual. A review of decisions in other jurisdictions involving similarly worded provisions indicates that only statutory liens are excluded from the Code. In re King Furniture City, Inc., 240 F.Supp. 453, 456 (E.D.Ark.1965); In re Leckie Freeburn Coal Co., 6 Cir., 405 F.2d 1043, cert. den., 395 U.S. 960, 89 S.Ct. 2101, 23 L.Ed.2d 746. It is accordingly this court’s ruling that the Bank’s perfected security interest was superior to the prior unrecorded contractual lien of the landlord in the same property.

It is further this court’s ruling that the Bank is not precluded by its actions from asserting that its perfected security interest has priority over the landlord’s contractual lien. Although the Bank had actual knowledge of the landlord’s interest in the same property at the time it extended credit and perfected its security interest, the evidence does not indicate the Bank lacked good faith as that term is defined in Section 1.201(19) of the Texas Business and Commerce Code.

Although we have not been referred to a Texas case on this point, a Minnesota Code provision containing substantially the same language as Section 9.312(e)(1), Tex.Bus. & Com.Code, has been held to establish the priority of a perfected security interest notwithstanding the holder’s actual knowledge of a prior unperfected interest in the same property. In re Smith, 326 F.Supp. 1311 (D.C.Minn.1971). In the case at bar the landlord was notified of the Bank’s impending loan and was requested by the Bank to subrogate his interest to its loan. The landlord could then have perfected his contractual lien in the property by filing a financing statement in accordance with the Code.

This leaves the question of whether the Bank’s perfected security interest should be accorded priority over the statutory lien asserted by the landlord. The applicable part of the statute creating the landlord’s statutory lien provides as follows:

“All persons leasing or renting any residence, storehouse or other building, shall have a preference lien upon all property of the tenant or of any subtenant of such tenant in such residence, storehouse or other building, for the payment of rents due and to become due provided that in order to secure the lien for rents that are more than six (6) months due, it shall be necessary for the person leasing or renting any storehouse or other building which is used for commercial purposes, to file in the office of the county clerk of the county in which such storehouse or such other building is situated, a sworn statement of the amount of rent due, itemized as to the months for which it is claimed to be due, together with the name and address of the tenant and/or subtenant, a description of the rented premises, the date on which the rental contract began and that on which it is to terminate, verified by the person claiming such lien, his agent or attorney, and such statement when so verified shall be recorded by the county clerk in a book to be provided for such purpose. No lien for rent more than six (6) months past due upon any storehouse or other building rented for commercial purposes shall be valid as against bona fide purchasers or unsecured or lien creditors of said tenant and/or subtenant, unless said statement shall be verified, filed and recorded as above provided.
“Each county clerk shall keep an alphabetical index for the purpose of recording the rental liens above described. The lien for rents to become due shall not continue or be enforced for a longer period than the current contract years, it being intended by the term ‘current contract years’ to embrace a period of twelve (12) months, reckoning from the beginning of the lease or rental contract, whether the same be in the first or any other year of such lease or rental contract. . . . ”
Article 5238, Tex.Rev.Civ.Stat.Ann.

Under this statute a landlord is granted a preference lien on rents accruing during the contract year on the lessee’s property placed upon the leased premises, but in order to preserve its priority against intervening creditors with respect to rentals which are more than six months past due, the landlord must file an appropriate affidavit with the county clerk as provided by the statute. Industrial State Bank v. Oldham, 148 Tex. 126, 221 S.W.2d 912, 913 (1949).

In the case at bar the Bank first perfected its security interest in the collateral on November 27, 1970. At that time, and also in August 1971, when it made the additional loan to National Motors, Inc., its security interest was subordinate to the landlord’s statutory lien for the contract year beginning September 1,1970, and ending August 31, 1971. However, at the beginning of the next contract year, September 1, 1971, the Bank’s prior perfected security interest became superior to the landlord’s statutory lien in the same property. Radford v. Bacon Securities Co., 18 S.W.2d 848 (Tex.Civ.App. — Eastland 1929, no writ).

It is contended by the landlord that there is apparent conflict between the decision in the Radford case and the holding of the Solomon case. The cases may be distinguished. In Solomon it is clear that the security interest lien was perfected during the “current contract year” of the lease. In Radford, as in the case at bar, the security interest lien had been perfected prior to the beginning of the “contract year” of the lease.

“Article 5238 (5490), Revised Civil Statutes 1925, provides that all persons leasing or renting any residence, storehouse, or other building shall have a preference lien upon all property of the tenant in such residence, storehouse, or other building for the payment of rents, due and to become due, etc., and further provides that the rent to become due shall not continue or be enforced for a longer period than the current contract years, it being intended by the term ‘current contract years’ to embrace a period of twelve months reckoning from the beginning of the lease or rental contract, whether the same be in the first or any other year of such lease or rental contract. Appellants’ lease with Gray began, according to its terms, February 1, 1924, and was for two years, expiring January 31, 1926. The rent from February 1, 1924, the beginning of the lease period, up to and including February, 1925, thirteen months, had been paid. The chattel mortgage of ap-pellee was placed of record May 14, 1924. The rent for the first year having been paid and the chattel mortgage having been placed of record before the beginning of the second year of the lease period, the chattel mortgage of appellee was superior to the landlord’s lien of appellants for rent accruing in the second year.” Gray v. McFaddin, 8 S.W.2d 293 (Tex.Civ.App. — Beaumont 1928, writ dism’d).

It is, therefore, this court’s ruling that at the time of the lessee’s default in the payment of lease rentals, December 1,1971, the Bank held a perfected security interest in the chattels which was entitled to priority over the statutory lien asserted by the landlord in the same property. Radford v. Bacon Securities Co., supra; Gray v. McFaddin, supra; West Development Co. v. Crown Bottling Co., 90 S.W.2d 887, 889 (Tex.Civ.App. — Waco 1936, writ dism'd); McKeever v. Brooks-Davis Chevrolet Co., 74 S.W.2d 311, 313 (Tex.Civ.App. — Eastland 1934, writ dism’d).

In a suit for conversion the rights of the parties are determined as of the date of the- alleged conversion. Industrial State Bank v. Oldham, 148 Tex. 126, 221 S.W.2d 912, 914 (1949). At the time the levy occurred under the writ of sequestration, January 6, 1972, the landlord held no rights in the chattels which were superior to the Bank’s perfected security interest. Thus, there was no wrongful conversion of the property subject to the Bank’s security interest. McKeever v. Brooks-Davis Chevrolet Co., supra.

The disposition of the Bank’s first three points of error renders it unnecessary to consider its remaining points. It is, however, necessary to consider the landlord’s cross-points.

The landlord contends that the court erred in failing to award damages in the amount of $9,000 for injuries to the leased premises occasioned during the removal of the chattels under the writ of sequestration. He claims that the Bank is liable with the sheriff executing the writ, both as a joint tort-feasor and under an agency theory, for damages caused by the sheriff’s negligence acting under the writ of sequestration. In response to special issues the jury found that the leased premises had been damaged during the seizure of the property as the result of negligence and that the sum of $9,000 was required to restore the premises.

The trial court properly refused to enter judgment for this sum in favor of the landlord. There was evidence that during the removal of the property Bank representatives were present for the purpose of checking serial numbers so that only equipment subject to the Bank’s security interest would be removed. There was no evidence, however, that the Bank’s representatives actually participated in the removal of the chattels, or that they exercised any control or direction over the sheriff’s deputies or the mover employed by the sheriff to remove the property. No issue was submitted to the jury with respect to the Bank’s participation and this omitted issue must be deemed to have been found by the trial court in a manner favorable to the Bank. Rule 279, Texas Rules of Civil Procedure, If the Bank did not participate in the negligent acts of the officer levying the writ of sequestration, it is not liable for damages caused by the officers’ negligence while acting under the writ. Kanaman v. Hubbard, 110 Tex. 560, 222 S.W. 151 (1920).

The trial court’s judgment in favor of Morris Kruger against the Bank of North America in the amount of $23,612.02 is reversed and judgment is rendered that the said Morris Kruger take nothing with respect to his action for conversion against the said Bank of North America. The trial court’s judgment denying the claim of the said Morris Kruger for damages to the leased premises is affirmed.

All costs of appeal are taxed against the appellee, Morris Kruger.


author: COLEMAN, Chief Justice.

text:
    SELECT INSURANCE CO., Appellant, v. Thomas Earl BOUCHER, Appellee.
    No. 16808.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 10, 1977.
    Rehearing Denied April 7, 1977.

      Boswell, O’Toole, Davis & Pickering, Robert G. Taylor, II, Susan E. Crowley, Mike Phillips, Houston, for appellant.
    Miller, Gann & Perdue, Gerald H. Butt-rill, Houston, for appellee.
   COLEMAN, Chief Justice.

Select Insurance Co., defendant in the trial court, appeals from a judgment entered on a jury verdict awarding the plaintiff workmen’s compensation based on the finding of six and three-fourths years total incapacity. The defendant plead that the injuries suffered by the plaintiff, if any, resulted in partial disability for only a very short period of time, that the plaintiff’s earning capacity was and has been as much or more per week as it was before the date of the alleged injury and that there was no reduction or decrease in his wage earning capacity since that time. Since the plaintiff had not sought recovery for any period of partial incapacity, the trial court refused issues requested by the defendant submitting partial incapacity as a defense. The court also refused to submit a requested instruction defining the term “partial incapacity.”

A question arises as to whether the trial court properly submitted the case to the jury as required by Rule 277, Vernon’s Annotated Rules of Civil Procedure, which prohibits the submission of inferential rebuttal issues. The same rule, however, requires that the court submit such explanatory instructions and definitions as shall be proper to enable the jury to render a verdict.

Prior to September 1, 1973, when the amended version of Rule 277, Vernon’s Annotated Rules of Civil Procedure, went into effect, it was well established that partial incapacity was a defense to a claim for total incapacity. Where such a defense was raised by the evidence the defendant was entitled to an affirmative submission of the issue. Wright v. Traders & General Ins. Co., 132 Tex. 172, 128 S.W.2d 314 (1989). In the ease above cited the court said:

“It is true that a finding of total incapacity excludes the converse of partial incapacity, and vice versa. In that sense converse issues are involved. The issues submitting the two inquiries as to the result of the injuries, — one whether total and the other whether partial, — are converse, but not opposite . . . It is necessary in cases involving converse issues to submit both, notwithstanding partial duplication may result; . . .”

An inferential rebuttal issue, which should not be submitted under Rule 277, T.R.C.P., is one which disproves the existence of an essential element submitted in another issue. Wirtz v. Orr, 533 S.W.2d 468 (Tex.Civ.App. — Eastland 1976, writ ref’d n. r. e.). Where an issue is submitted on partial incapacity merely to rebut plaintiffs claim that he is totally incapacitated, it is an inferential rebuttal issue. Hodges, Special Issue Submission in Texas, Section 16, p. 44.

The plaintiff did not seek compensation for partial incapacity in this case. The defendant plead partial incapacity as a defense. The trial court properly refused the issues requested by the defendant presenting its defense of partial incapacity because they were inferential rebuttal issues.

Rule 277, supra, requires the trial court to submit such explanatory instructions and definitions as shall be proper to enable the jury to render a verdict. Inferential rebuttal matters should be submitted to the jury by way of instructions. Gulf Insurance Co. v. Hodges, 513 S.W.2d 267 (Tex.Civ.App.—Amarillo 1974, no writ history). Rule 279, Texas Rules of Civil Procedure, provides that the failure to submit a definition or explanatory instruction shall not be deemed a ground for reversal unless a substantially correct definition or explanatory instruction has been requested in writing and tendered by the party complaining of the judgment.

The defendant requested that the trial court submit the following definition of partial incapacity:

“ ‘PARTIAL INCAPACITY’ means any degree of incapacity less than total incapacity; or, whereby a person suffers a reduction in earning capacity. A person cannot have both total and partial incapacity at the same time.”

The definition requested is not in substantially correct form. The insertion of the word “or” following the words “total incapacity” renders the definition confusing. The term “earning capacity” is not defined. A proper definition of the term “partial incapacity” which eliminates the need for a definition of the term “earning capacity” is found in Texas Pattern Jury Charges, Vol. 2, Section 22.02. This definition reads:

“Partial incapacity is any degree of incapacity less than total incapacity, and means that a person’s earning capacity is reduced because he can perform only part of the usual task of a workman or can only do lower paying work than he could do before his injury, but can get and keep employment suitable to his condition.”

See Southern Underwriters v. Schoolcraft, 138 Tex. 323, 158 S.W.2d 991 (1942).- Whaley v. Angelina Casualty Co., 423 S.W.2d 448 (Tex.Civ.App.—Dallas 1967, writ ref’d n. r. e.). The failure of the trial court to incorporate in its charge a proper definition of the term “partial disability” is not reversible error.

Appellant asserts error on part of the trial court in admitting deposition testimony of Dr. Belz, a psychiatrist, because his opinion testimony was based on hearsay. The record reflects that Dr. Belz first saw appellee on March 11, 1974. At that time he conducted a verbal interview. He later obtained a history of appellee taken by the case worker in the social service department of Jeff Davis Hospital who had talked with appellee’s parents. Appellee was admitted to Jefferson Davis Hospital on March 11, 1974, and remained there until discharged on April 19, 1974. Dr. Belz was his treating physician. He testified that after the initial interview on March 11, 1974, “there were sufficient symptoms of a thought disorder at that time without any supporting history to make a tentative diagnosis of schizophrenia.” He stated, “After putting together the history with the mental status findings the final diagnosis that I made was gross stress reaction manifested by psychotic decompensation.” He further testified that, based upon the history he obtained, his own examination and tests and his training and experience, the problems the plaintiff suffered were caused by the back injury and would prevent ap-pellee from obtaining employment which would require him to perform the usual tasks of a workman.

Dr. Belz was a treating doctor, and his testimony was predicated both upon his personal knowledge and upon hearsay. This testimony was admissible. Combined Ins. Co. of America v. Kennedy, 495 S.W.2d 306 (Tex.Civ.App.—Eastland 1973, writ ref’d n. r. e.); Texas Employers Ins. Association v. Rogers, 368 S.W.2d 21 (Tex.Civ.App.—Amarillo 1963, writ ref’d n. r. e.); Gray v. Bird, 380 S.W.2d 908 (Tex.Civ.App. —Tyler 1964, writ ref’d n. r. e.).

The insurance company also asserts that the trial court erred in admitting certain testimony by plaintiff’s father stating his opinion as to the future duration of appel-lee’s disability. There was testimony that Mr. Boucher was a carpenter and that his son, the plaintiff, worked with him as a carpenter’s helper on a job with the Cre-chett Company. Mr. Boucher was asked whether he thought that his son could go back to a company such as Crechett and hold a job, and answered “No, sir.” There was no objection to this question. He was then asked whether he thought his son could go back to a company such as R. D. A. C. Company. This was another company where they had both worked previously. The answer given was, “No, sir.” An objection was made on the ground that the witness was not qualified to answer whether someone else may or may not hire his son. It was overruled. A number of objections made on the ground that the question called for hearsay were sustained by the trial court. No objections based on hearsay were overruled.

The only mention of any error in relation to Mr. Boucher’s testimony in appellant’s motion for new trial was:

“The court erred in admitting into evidence the hearsay testimony of plaintiff’s father over the strenuous objection of counsel for the defendant.”

This ground for a new trial was untenable. An assignment of error in a motion for new trial which does not embody the complaint raised on appeal is not sufficient to preserve error. Royal Indemnity Co. v. Hume, All S.W.2d 683 (Tex.Civ.App. — San Antonio 1972, no writ history).

The jury found that the plaintiff was totally incapacitated for six and three-fourths years. The insurance company contends that this finding is contrary to the great weight and preponderance of the evidence. This assignment of error requires that we consider the entire record.

Thomas Earl Boucher graduated from high school in 1972. After graduation he worked as a carpenter’s helper for three different companies. In November of 1973 Thomas went to work for New Process Steel Corporation as an assistant steel slitter. His duties consisted of picking up scraps of steel that were left on the machine after the cutting process. On January 15, 1974, while in the course of his employment, Thomas was struck in the back by a hook attached to an overhead crane.

The next morning he went to work and was sent to Dr. Pena, the company doctor. Dr. Pena’s records for that visit carried a notion, “given slip for employer to return to work tomorrow.” Thomas did not return to work but saw Dr. Pena again on six occasions, the last being February 13. The doctor noted improvement and recommended that Thomas return to work. He went back to work for only one day. After the last visit, Dr. Pena referred Thomas to Dr. Whitsell, an orthopedic surgeon, who suggested a muscle relaxer and exercise program.

In March, 1974, Thomas became quiet and noncommunicative. At one point he started wearing his brother’s Air Force uniforms and told his father he was in the Air Force. As a result of this behavior, Mr. Boucher took Thomas to Ben Taub Hospital where he was examined by a psychiatrist. The psychiatrist recommended Thomas be admitted for psychiatric analysis and treatment. A few days later Thomas was committed to Jeff Davis Hospital where he remained for four to five weeks. When released from Jeff Davis, Thomas went to Bartlett House, a halfway house for people with emotional problems. He remained at Bartlett House for three to four months undergoing therapy. Thomas is presently seeing a psychiatrist every six months.

In addition to the testimony previously recounted Dr. Belz testified that he felt that there “was still sufficient disability where it would be unlikely to expect him (plaintiff) to be fully functional or as functional as he was in job sense prior to his injury. His emotional state is such that he can probably only tolerate minimal amounts of stress ... I would hope that with all conditions being optimal perhaps in three to five years he might again reach a fully functional state.” The doctor also testified that after several years appellee might be recovered to the extent that he could get a job with a moderate degree of challenge and have the strength to perform in such a way as to keep it. He said: “I don’t think he is going to have that capacity for several years, though.”

The plaintiff’s father testified that Thomas “has lost his mechanical aptitude and his knowledge of mechanical work such as carpentry or even working with small hand tools.” He said that Thomas could be told and shown what to do but can’t take any responsibility on his own.

The plaintiff has had five jobs since the injury and was earning more money at the time of the trial than he did prior to the injury. When plaintiff applied for a job at the Museum of Fine Arts as a watchman he stated in his application that he had no physical handicaps and had missed only four days of work in the past twelve months due to illness. Dr. Belz wrote a letter to the director of dietary division, Methodist Hospital, recommending appellee for a position. The letter stated that with training and supervision appellee would be a suitable employee.

The term “total incapacity” does not imply an absolute disability to perform any kind of labor. A person disqualified from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment is considered totally disabled. The term implies disability to perform the usual tasks of a workman and not merely the usual tasks of any particular trade or occupation. Texas Employers Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000 (1944). A finding of total incapacity is not precluded merely because the claimant has worke'd subsequent to the injury. This merely presents a fact to be considered by the jury in passing upon the extent and duration of the injury. Texas Employers Ins. Ass’n v. Evers, 242 S.W.2d 906 (Tex.Civ.App. — Amarillo 1951, writ ref’d n. r. e.); Texas Employers Ins. Ass’n v. Hawkins, 387 S.W.2d 469 (Tex.Civ. App. — Amarillo 1965, writ ref’d n. r. e.).

Since his release to the halfway house the plaintiff has held five jobs. The first job was temporary help at the hospital. The second job required that he do light yard work and assist with maintenance on air conditioning equipment. He had secured a position at the Museum as an unarmed guard. Finally he was able to obtain work with two different companies shampooing carpets. A reasonable man might question whether these jobs demonstrated that the plaintiff was able to procure and retain employment. The medical evidence presented by the insurance company related to the plaintiff’s physical condition. The testimony concerning plaintiff’s mental condition constituted a sound basis for a finding that the plaintiff would be unable to secure and retain employment. Dr. Belz’ testimony was sufficient to authorize the finding of six and three-fourths years’ duration of disability. The finding of the jury was not contrary to the great weight and preponderance of the evidence.

The insurance company’s final point urges that the trial court erred in referring to Dr. Belz as an expert in the presence of the jury. The company objected at the time and the trial court instructed the jury to disregard this statement that he made in error. The evidence shows that Dr. Belz was a fully qualified expert in psychiatry. This mishap upon the part of the trial court was not such an error as was calculated to and did result in the entry of an improper judgment.

The judgment is affirmed.


author: PEDEN, Justice.

text:
    Judy DAVIS, Appellant, v. OUTDOOR EQUIPMENT COMPANY, a partnership, Appellee.
    No. 16852.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 24, 1977.

      Gripp, Walden & McClure, John A. Barker, Houston, for appellant.
    Edward L. Lasof, Houston, for appellee.
   PEDEN, Justice.

Judy Davis, plaintiff in a personal injury suit, appeals from the granting of a directed verdict to defendant Outdoor Equipment Company, a partnership, based on its limitations plea. The plaintiff sued Outdoor Equipment Company, a corporation, and took a default judgment against it. The partnership was never named or served, and first became a party when it voluntarily entered an appearance 56 days after the two-year statute of limitations had run. The trial court made an unchallenged finding that the two companies have no relationship with each other.

The only legal issue presented by this appeal is whether the statute of limitations was tolled as to the partnership by appellant’s original filing of suit against the corporation and the partnership’s subsequent voluntary appearance. The general rule on the interruption of the statute of limitations is that a party must file suit and use diligence in procuring the issuance and service of citation. Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180 (Tex.1970). Appellant filed suit against an existing entity and tolled the running of the statute against that corporation; however, she never did sue the partnership, and it did not become a party to this action until it voluntarily answered after limitations had run. The date of the original filing does not toll the statute as to a new and different party. First State Bank & Trust Co. of Rio Grande City v. Ramirez, 133 Tex. 178, 126 S.W.2d 16, 18 (1939); Callan v. Bartlett Electric Cooperative, Inc., 423 S.W.2d 149,156 (Tex.Civ.App. 1968, writ ref., n.r.e.); 37 Tex.Jur.2d 278, Limitation of Actions § 118.

Appellant contends that Texas Rules of Civil Procedure 120 and 121, which provide that a defendant’s voluntary appearance dispenses with the need for service of process, bring the partnership within the original filing date. These rules, however, do not correct the appellant’s initial failure to make the partnership a party defendant.

The three cases cited in appellant’s brief are inapplicable in this fact situation. Hallaway v. Thompson, 148 Tex. 471, 226 S.W.2d 816 (1950), involved a single defendant who was sued in two separate capacities. The other two cases are misnomer situations in which the plaintiffs brought actions against the true defendants but used incorrect names. Callan v. Bartlett Electric Cooperative, Inc., 423 S.W.2d 149 (Tex.Civ.App.1968, writ ref., n.r.e.); Pickering Mfg. Co. v. Gordon, 168 S.W. 14 (Tex.Civ.App.1914, no writ).

Affirmed.


text:
    William V. BERRY, Appellant, v. Edwin A. RILEY, Appellee.
    No. 16850.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 31, 1977.
    Rehearing Denied April 28, 1977.
    W. W. Kilgarlin, Kilgarlin, Dixon & Hancock, Houston, for appellant.
    James B. Manley, Pasadena, Manley, Hes-son & Kuhlmann, Pasadena, of counsel, for appellee.
   COLEMAN, Chief Justice.

This suit was filed by Edwin A. Riley for the purpose of obtaining possession of certain items of personal property being held by William V. Berry by virtue of a claimed landlord’s lien. Berry answered impleading Mama Mia’s, Inc. as a third party defendant seeking the foreclosure of a landlord’s lien, and crossacted against Edwin A. Riley seeking to quiet title to the personal property. On its own motion the trial court severed the action of Berry against Mama Mia’s and proceeded to trial on the claim of Edwin A. Riley against William V. Berry. The case was tried to the court without a jury and resulted in a judgment for the plaintiff, Edwin A. Riley.

On April 14, 1976, the judge of the 80th District Court had dismissed this case for want of prosecution. On June 14, 1976, responding to an oral motion, the judge of the 80th District Court reinstated the cause. We conclude that the judge of the 80th District Court lacked jurisdiction to reinstate the cause. Accordingly the trial judge sitting in the 190th Judicial District lacked jurisdiction to enter a judgment in the case.

Rule 165a, Vernon’s Annotated Rules of Civil Procedure, authorizes a trial court to dismiss a case for want of prosecution for certain named reasons. The rule requires that notices of intention to dismiss shall be sent by the clerk to each attorney of record and also notice of the signing of the order of dismissal. The rule then provides:

“Within thirty days after the signing of the order of dismissal, the court shall reinstate the case upon finding, after hearing, that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake. Where after a hearing the court finds that neither the party nor his attorney received a mail notice, or acquired actual notice in any manner, of either the court’s intention to dismiss or the order of dismissal prior to the expiration of twenty days after the signing of such order, the court may reinstate the case at any time within thirty days after the party or his attorney first received either a mail notice or actual notice, but in no event later than six months after the date of signing the order of dismissal.
“A motion for reinstatement shall set forth the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk, and a copy shall be served on each attorney of record and each party not represented by an attorney. The court shall set the motion for hearing as soon as practicable and notify all parties or their attorneys of record of the date, time and place of the hearing.”

The record in this case does not contain an order reinstating the case. There is no motion for reinstatement. The actions taken by the trial court are reflected only by notations found on the docket sheet. When the attorneys appeared for trial of this case in the 190th District Court, the attorney for William V. Berry stated that he excepted and objected to the court’s action in having reinstated this cause on the docket, in that the cause of action was dismissed for want of prosecution on April 14, 1976 and more than thirty days have elapsed since that date. He further stated that the action of the court was unilateral and was not based upon any motion or verified affidavit prepared and submitted to the court in writing prior to the court's action in reinstating the cause on the docket.

The attorney for Mr. Riley then stated that the trial court told the parties that he would set the matter down for a formal hearing and there were no objections made at that time. The attorney for Mr. Berry then stated, “That is not true. I take exception. I take exception to that. That was not my agreement.”

The attorney for Mama Mia’s, Inc. stated in substance that he had filed a motion to retain the case on the docket in March 1976 but that for some reason the motion was not put in the court’s file. He stated that he made a motion on the date of the trial in the 80th District Court that the case be reinstated because it was dismissed by mistake, and that the judge conducted a hearing in chambers on the matter. He stated that he offered to submit a written motion and that the judge stated that he considered that his oral representations at that hearing were under oath and would suffice to comply with Rule 165a of the Texas Rules of Civil Procedure. Without further discussion and without ruling on the motion the trial judge sitting in the 190th District Court proceeded with the trial on the merits.

The informal hearing conducted by the 80th District Court occurred more than thirty days after the cause was dismissed for want of prosecution as shown by the docket sheet. Since there is no order reinstating the case in the record, and no sworn motion for reinstatement, we cannot presume that the trial court made, and that evidence was presented to support, the fact findings required by Rule 165a as jurisdictional prerequisites for reinstatement. The record before this court indicates that the trial court reinstated the case on an oral motion at a time when the judgment of dismissal had become final. Such a course of action is beyond the power of the trial court. In the Matter of the Marriage of Jody Martin Parr and Archer Parr, 548 S.W.2d 488 (Tex.Civ.App. — Corpus Christi 1976, no writ history); Coaper v. Aetna Life & Casuaity Co., 618 S.W.2d 121 (Tex.Civ. App. — Dallas 1974, no writ history); Calaway v. Gardner, 525 S.W.2d 262 (Tex.Civ. App. — Houston [14th] 1975, no writ history); Riley v. Mead, 581 S.W.2d 670 (Tex.Civ.App. — El Paso 1975, no writ history).

Judgment reversed and cause ordered dismissed.


text:
    TRINITY PORTLAND CEMENT DIVISION, GENERAL PORTLAND CEMENT COMPANY, Appellant, v. COASTAL INDUSTRIAL WATER AUTHORITY By and Through its BOARD OF DIRECTORS, Appellee.
    No. 16853.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 7, 1977.
    Rehearing Denied May 12, 1977.

      William H. White, Houston, for appellant. Fred Spence, Houston, for appellee.
   EVANS, Justice.

This suit was brought by the appellant to recover increased interest under an amendment to a statute, on a judgment it had recovered against the appellee.

The judgment, which had been entered on June 17, 1974, in eminent domain proceedings instituted by appellee in the County Civil Court at Law No. 1 of Harris County, Texas, awarded the appellant a recovery of the sum of $2,537,473.74, with interest thereon at the rate of 6% per an-num from the date of judgment until payment. An appeal was taken from the judgment, and this court affirmed on April 3, 1975, and overruled appellee’s motion for rehearing on May 1, 1975. Tex.Civ.App., 523 S.W.2d 462, writ of error refused on December 3, 1975, no reversible error.

On January 14, 1976, the appellee’s motion for rehearing in the Texas Supreme Court was overruled, and on January 26, 1976, the mandate was issued by this court. On February 12, 1976, the appellee deposited into the registry of the trial court the sum of $2,789,830.72 which represented the principal sum recovered by the appellant with interest thereon at the rate of 6% from date of judgment until that date. On February 13, 1976, appellant filed a motion to withdraw these funds, and on February 17, 1976, the requested amount was paid over to the appellant.

While the appellee’s application for writ of error was pending in the Texas Supreme Court, the statutory rate of interest on judgments was increased from 6% to 9% effective September 1,1975. Article 5069-1.05, Tex.Rev.Civ.Stat.Ann.

On June 4, 1976, the appellant filed this action in the District Court of Harris County, Texas, seeking to. recover from appellee the sum of $34,412.32 being an amount equal to the 3% difference between the 6% interest rate specified in the judgment and the 9% rate which became effective September 1, 1975, computed to February 12, 1976, the date of payment. The appellee responded with a plea to the jurisdiction, pleas of res judicata, waiver and payment, and a general denial. Both parties then filed motions for summary judgment. After hearing, the trial court entered the order which is the subject of this appeal, denying the appellee’s plea to the jurisdiction and the plaintiff’s motion for summary judgment, and granting the defendant’s motion for summary judgment.

This court must first determine whether the trial court lacked jurisdiction of the cause as contended by the appellee in its cross-point. It is appellee’s position that the County Civil Court at Law had exclusive jurisdiction to determine the amount of interest recoverable on the judgment and that the District Court did not have jurisdiction to consider the appellant’s suit for interest on the judgment rendered by that court,

The interest which an award bears after judgment is a creature of statute. Carter v. McHaney, 373 S.W.2d 82, 86 (Tex. Civ.App. — Corpus Christi 1963, no writ). Although it may be specified by the terms of the judgment, it is authorized and recoverable under the statute even if the judgment makes no reference to its recovery. Carter v. McHaney, supra; Hoffman v. Love, 523 S.W.2d 503 (Tex.Civ.App. — Amarillo 1975, no writ). Since the appellant was entitled to recover the statutory rate of interest as a matter of right and the amount of interest sought by appellant meets the jurisdictional requirements of the District Court, that court had jurisdiction to hear the cause and it properly overruled appellee’s motion to dismiss for want of jurisdiction.

The question then is whether the trial court properly determined, as a matter of law, that appellant was not entitled to recover interest on the judgment according to the statutory rate which became effective September 1, 1975. This requires a determination of the effect of a change in the statutory rate while the judgment was on appeal.

Under two early decisions, one by a court of civil appeals and the other by the U.S. Supreme Court involving an interpretation of Texas law, the parties’ rights and liabilities were deemed fixed at the time judgment was entered and subsequent changes in the statutory rate were held to have no effect on the interest rate as specified in the judgment. Missouri Pacific Railroad Co. v. Patton, 35 S.W. 477 (Tex.Civ.App.— 1896, writ ref’d); Texas & Pacific RR Co. v. Anderson, 149 U.S. 237, 13 S.Ct. 843, 37 L.Ed. 717 (1893). The Oklahoma Supreme Court has held to this same effect. Sunray DX Oil Co. v. Great Lakes Carbon Corp., 476 P.2d 329 (Okl.1970). However, in Watkins v. Junker, 90 Tex. 584, 40 S.W. 11 (1897), where the statutory rate of interest was changed during the pendency of the action, the Texas Supreme Court held that interest was properly computed on the amount of recovery at the rate in effect to the date of the change in the law and at the new rate thereafter.

It has been stated that where interest is allowed as damages and not by reason of contract, the interest for each period must be computed at the rate which was legal during that period, and statutes changing the rate will operate prospectively only. If the legal rate is changed after the interest begins to accrue, but prior to final determination, it should be computed at the rate legally designated to the time of the change in the law, and at the new legal rate for the period thereafter. Haag v. Pugh, 545 S.W.2d 22, 24 (Tex.Civ.App. — Eastland 1976, no writ); see also: Alliance Milling Co. v. Eaton, 33 S.W. 588 (Tex.Civ.App. 1896, writ ref’d); 4 A.L.R.2d 932, 952 (Sec. 11); 25 C.J.S. Damages § 92(1).

In Southwestern Bell Telephone Co. v. Hertz Equipment Rental Co., 533 S.W.2d 853 (Tex.Civ.App. — Fort Worth 1976, writ ref’d n. r. e.), where a take nothing judgment was reversed and judgment rendered for the plaintiff, interest was awarded on the judgment at the rate of 6% to September 1,1975, the effective date of the amendment of Article 5069-1.05, and at the rate of 9% per annum thereafter. A judgment to the same effect was rendered in Donahue v. Rattikin Title Co., 534 S.W.2d 156 (Tex.Civ.App. — Fort Worth 1976, no writ).

In Micrea, Inc. v. Eureka Life Ins. Co. of America, 534 S.W.2d 348 (Tex.Civ.App.— Fort Worth 1976, writ ref’d n. r. e.), where the judgment of the trial court was reformed on appeal, the Court of Civil Appeals, on rehearing, awarded interest on the judgment at the rate of 9% per annum from the date the change in the statute became effective.

The judgment in the eminent domain proceedings did not become final for all purposes until the condemning authority had exhausted all appellate steps. Since interest on the judgment was purely an incident to the statute which authorized its recovery, the legislature could increase or decrease the rate as long as its action did not interfere with rights already accrued and vested under the previous statute. The computation of interest upon a judgment which is not final at the time of a change in the statutory rate is a prospective, not a retroactive, application of the statute. Noe v. City of Chicago, 56 I11.2d 346, 307 N.E.2d 376, 379 (1974).

The appellee contends that even if the appellant was entitled to interest computed at the increased rate, it lost its right to the additional amount by its failure to assert its claim during the course of the prior proceedings. Appellee argues that the trial court’s judgment could have been modified on the prior appeal, and that since that was not done by the appellant, it either waived its right to have the issue determined or is barred by the doctrine of res judicata. The appellee’s position cannot be upheld.- On the effective date of the statutory amendment, the case was pending in the Texas Supreme Court on the appellee’s application for writ of error. The question of interest had not theretofore been raised in the proceedings, either in the trial court or in the court of civil appeals. The appellant had no procedural means to bring the issue before the Texas Supreme Court for its review. Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95 (1955).

It is the appellee’s final contention that the appellant waived its right to recover the additional interest by its withdrawal of the principal amount of the award with interest computed thereon at rate of 6% per annum. Since the amount which the appellant received was only that to which it was undisputedly entitled under the judgment, it was not estopped to assert a claim to the additional sum. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950).

The judgment of the trial court is reversed and judgment is here rendered that appellant recover from the appellee the sum of $34,412.32, representing the difference in interest due upon the judgment from September 1,1975, until February 12,1976, the date upon which the judgment was paid.