author: SPURLOCK, Justice.

text:
    ROADRUNNER INVESTMENTS, INC., Appellant, v. TEXAS UTILITIES FUEL COMPANY, Appellee.
    No. 18061.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 8, 1979.
    Rehearing Denied March 15, 1979.

      Wilbur T. Knape, Bedford, for appellant.
    Worsham, Forsythe & Sampels and Daniel W. McAllen, II, Dallas, for appellee.
   OPINION

SPURLOCK, Justice.

Landowner sued Texas Utilities Fuel Company (TUFCO) to permanently enjoin TUFCO from trespassing on its property by operating a natural gas pipe line beneath the land’s surface. The landowner claims that TUFCO’s condemnation of this land was illegal because TUFCO is not a public utility with the power of eminent domain, and that the property was taken for private rather than public use. The trial court without a jury rendered a judgment denying an injunction from which the landowner appeals.

We affirm.

Roadrunner Investments, Inc. owns real property in Wise County, Texas, part of which wás condemned by TUFCO. TUFCO is a Texas corporation and is a wholly owned subsidiary of Texas Utilities Company. TUFCO purchases natural gas, transmits it through its pipe lines, and sells it to Dallas Power and Light, Texas Power and Light, and Texas Electric Service Company. These electric utilities use the natural gas purchased from TUFCO to fuel their boilers in the generation of electricity, which is used by the public. TUFCO does not sell any gas transmitted through the pipe lines under the land in question to the public. The needs of these electric utilities require all the gas piped by TUFCO through the pipe line in question.

Roadrunner sued TUFCO for a permanent injunction and damages claiming that TUFCO was trespassing on its land by operating the pipe line. Roadrunner had also sought to enjoin the condemnation proceeding through which TUFCO acquired the property for its pipe line. The trial court consolidated these cases for trial on only two issues: Whether TUFCO has the power of eminent domain, and whether the land in question is taken for private or public use. The damage portion of the case is still pending. The trial court in denying Roadrunner an injunction found that TUFCO is a gas corporation, gas utility, and gas pipe line corporation having the right and power of eminent domain. It also found the property in question was condemned for public use.

On appeal Roadrunner claims the trial court erred in its judgment because the stipulations in the record conclusively establish that TUFCO is not a utility with right of eminent domain. The stipulations upon which Roadrunner relies are as follows:

“5. Texas Utilities Fuel Company owns a natural gas pipeline system, acquires, stores and delivers fuel gas and oil and provides other fuel services for Dallas Power & Light Company, Texas Electric Service Company and Texas Power & Light Company for the generation of electric energy.
“11. Texas Utilities Fuel Company is the sole owner of all the natural gas transmitted through its Wise-Jack Counties pipeline.
“19. The natural gas transmitted by Texas Utilities Fuel Company through its Wise-Jack Counties Pipeline is not sold at retail to, and is not available for purchase at retail by, any person, firm, or corporation.
“20. Because of the fuel requirements of Texas Electric Service Company, the natural gas transmitted by Texas Utilities Fuel Company through its Wise-Jack Counties pipeline has not been available for use by any person, firm or corporation other than Texas Electric Service Company-
“24. Texas Utilities Fuel Company is not a ‘common carrier’ within the meaning of Article 6018, Texas Revised Civil Statutes Annotated.”

These stipulations reveal that TUFCO does not supply gas directly or indirectly to the general public. Usually a gas utility supplies gas directly to the general public or supplies another utility, which supplies the public with the gas. Here TUFCO supplies gas to utilities that supply electricity rather than gas to the public. Thus the question presented is whether a corporation supplying gas only to a utility which supplies the general public with electricity rather than the gas is a public utility under the applicable statutes governing public utilities in this state.

Articles 1416-1446 govern public utilities. Articles 1435 * and 1436 * deal specifically with gas utilities. These articles provide as follows:

“Art. 1435 Powers
Gas, electric current and power corporations shall have power to generate, make and manufacture, transport and sell gas, electric current and power to individuals, the public and municipalities for light, heat, power and other purposes, and to make reasonable charges therefor; to construct, maintain and operate power plants and substations and such machinery, apparatus, pipes, poles, wires, devices and arrangements as may be necessary to operate such lines at and between different points in this State; to own, hold and use such lands, right of way, easements, franchises, buildings and structures as may be necessary for the purpose of such corporation.
“Art. 1436 Right of way
Such corporation shall have the right and power to enter upon, condemn and appropriate the lands, right-of-way, easements and property of any person or corporation, and shall have the right to erect its lines over and across any public road, railroad, railroad right-of-way, interurban railroad, street railroad, canal or stream in this State, any street or alley of any incorporated city or town in this State with the consent and under the direction of the governing body of such city or town. Such lines shall be constructed upon suitable poles in the most approved manner, or pipes may be placed under the ground, as the exigencies of the case may require.”

Note that neither of these provisions actually define a gas utility or public utility. TUFCO claims that it is a gas utility or public utility as defined in Article 6050 — 2 *. This and following articles deal with natural gas.

Article 6050 * provides:

“The term ‘gas utility’ and ‘public utility,’ or ‘utility,’ as used in this subdivision, means and includes persons, companies and. private corporations, their lessees, trustees, and receivers, owning, managing, operating, leasing or controlling within this State any wells, pipe lines, plant property, equipment, facility, franchise, license, or permit for either one or more of the following kids of business: (Emphasis added.)
“1. . . .
“2. Owning or operating or managing a pipe line for the transportation or carriage of natural gas, whether for public hire or not, if any part of the right of way for said line has been acquired, or may hereafter be acquired by the exercise of the right of eminent domain; or if said line or any part thereof is laid upon, over or under any public road or highway of this State, or street or alley of any municipality, or the right of way of any railroad or other public utility; including also any natural gas utility authorized by law to exercise the right of eminent domain.”

It is Roadrunner’s position that because TUFCO is not operating as a public utility in truth and fact it is not a utility under this or any other statute. We agree with Roadrunner that if past condemnations were illegal, though unchallenged, § 2 of Article 6050 * would not apply to make the entity a utility. Certainly a public utility must operate as such in truth and fact to have the power of eminent domain. Note that Article 6050 * and following authorize the Texas Railroad Commission to regulate the entities to which these provisions apply. Included is any natural gas utility with the right of eminent domain. Since none of these articles grant the power of eminent domain, the possibility exists that an entity could be within the Article 6050 * classification and be regulated by the Railroad Commission without having the power of eminent domain. Therefore, although it makes no apparent difference in this case, even if TUFCO is classified as a public utility in Article 6050 *, this alone does not grant the entity the power of eminent domain. Note also that the classification in Article 6050 * is limited to Articles 6050-6065 *.

Since classification as a utility under Article 6050 * does not necessarily mean that a utility so classified has the power of eminent domain we must determine whether TUFCO is a utility under Articles 1435-1436 *. We believe that to be a utility under these provisions an entity must devote its private property and resources to public service and allow itself to be publicly regulated through various agencies and commissions.

It is our opinion that TUFCO has met these requirements. The Texas Supreme Court in Railroad Commission of Texas v. City of Austin, 524 S.W.2d 262, 279 (Tex.1975), decided that the Texas Railroad Commission is authorized to allocate TUF-CO’s gas, “and the gas of all other gas utilities among cities, towns and corporations.” Thus the court assumed without deciding that TUFCO is a gas utility. The fact that the Railroad Commission has the authority to allocate TUFCO’s gas is indicative that TUFCO operates as a public utility devoting its resources to benefit the public and accepting public regulation.

Roadrunner would have us read Article 1435 * narrowly so as to require TUFCO to sell its gas to the general public. We believe that the word “individuals” in Article 1436 * is not limited to private persons but includes the utilities to which TUFCO sells gas. Note that utilities under Article 1435 * may sell gas for any purpose. Therefore, the article does not require that TUFCO’s purchasers sell the gas to the public, but they can use it for any purpose including generating electricity. Therefore, we reject Roadrunner’s contention that the stipulations in the record conclusively establish that TUFCO is not a public utility. We hold that TUFCO is a public utility under Article 1435 * and that it possesses the right of eminent domain as conferred by Article 1436 *.

Using basically the same reasoning, Roadrunner contends that the property condemned was taken for private rather than public use. It claims that because TUFCO is not piping the gas for distribution to the general public that the use is private rather than public. We do not agree. The record is clear that this gas is used by several electric utilities in the generation of electricity. There is a direct link between the gas transported through the pipe under the condemned property and the electricity that obviously benefits the public. This benefit was recognized by the supreme court in Railroad Commission of Texas v. City of Austin, supra. The court noted that TUF-CO and its affiliates serve some 323 municipalities and some 4 million people of Texas with gas or electric energy produced by gas. It is clear that the condemned property was taken for public use.

All of Roadrunner’s points of error presented in complaint of the trial court’s judgment have been severally considered. Each point of error is overruled. The judgment of the trial court is affirmed.

       All references to Articles are to Tex.Rev.Civ.Stat.Ann.


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    STATE of Texas et al., Appellants, v. CITY NATIONAL BANK OF AUSTIN, Appellee.
    No. 1238.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 8, 1979.
    Rehearing Denied March 15, 1979.

      Carla J. Cox, Asst. Atty. Gen., Austin, for appellants.
    E.' Richard Criss, Jr., Brown, Maroney, Rose, Baker & Barber, Austin, for appellee.
   McKAY, Justice.

City National Bank of Austin (bank), ap-pellee, brought suit against the State of Texas (State), the State Commission for the Blind (Commission), the Executive Director of the Commission and its individual members, to recover rent alleged to be due the bank for office space occupied by the Commission. The State answered by alleging that no valid contract existed during the period sued for, and, therefore, no sum of money can be paid under the Constitution of Texas; moreover, the State alleged, the Board of Control (Board) had refused to approve any voucher for rent until it had awarded a valid contract for premises for the use of the Commission. Trial was before a jury, and based upon the verdict, the trial court rendered judgment for the bank, against the State and the Commission for rent and interest totalling $179,674.46.

The bank alleged that it had a written contract with the Commission for lease space in its building in Austin at a rental of 50.9 cents per square foot for a period of 48 months (from September 1, 1971, through August 31,1975); that the lease was subsequently amended to add additional space, and at the times pertinent here the Commission occupied 23,348 square feet of space in the bank’s building. Prior to the end of the primary term of the lease, the bank alleged the Commission requested that it be allowed to hold over under the terms of their written lease with the bank until other suitable space required by the Commission could be obtained. The bank further alleged that it agreed to the Commission’s proposal to hold over, but alleged it never consented or acquiesced to occupancy of its premises by the Commission without compensation, and continued to rely on representations that rental payments would be made as set out in the lease. It was further alleged that during the period the Commission was holding over the Commission was not a party to any other valid contract or lease for space suitable for its use in carrying out its statutorily mandated functions, and that funds were appropriated by the Legislature and available to pay rent for the occupancy of leased premises by the Commission during the period in question. Alternatively, the bank alleged that the occupancy by the Commission under the circumstances constituted a taking of its property for public use, without its consent, in violation of the Constitutions of Texas and the United States.

The State alleged there was no valid contract during the period the Commission was holding over; that the Constitution of Texas, Article III, Section 44, prohibits payment of the claim; that the bank’s pleading fails to allege sufficient facts to establish any taking of the bank’s property; and that any occupancy of the premises was with the consent of the bank in that the bank did not give the Commission written notice to vacate the premises, did not file a forcible entry and detainer suit, did not lock the doors of the premises, nor take any further action to prevent the Commission from occupying the premises.

The jury in issue 1 answered that the reasonable monthly rental value of the premises in the bank building to the Commission from September 1, 1975, through October 14,1976, was $.509 per square foot; by its answer to issue 2 the jury found “that the location of the premises at 105 Riverside Drive were not in conformity with the needs of the [Commission] for its use as its central office.”

The Executive Director of the Commission, Burt L. Risley, testified that in February prior to the expiration of the Commission’s lease at the bank in August, 1975, the needs of the Commission were made known to the Board of Control, and the Board advised that there were six parties interested in leasing space for the Commission; that each location was inspected for suitability and specific needs of the Commission, and there was considerable correspondence with the Board concerning these locations and whether they would be functional and meet the needs of blind people in their jobs; that the Board selected a location at 105 West Riverside Drive in South Austin; that these premises were “absolutely not suitable” because of various and numerous problems with the building: its location; its architectural barriers; the heavy traffic on a thoroughfare street; the noise level which affects a blind person; the lack of curbs at the corner because of the location of a filling station (curbs are used by blind persons as markers for location and tracking); the building being located away from the street with a parking lot between the street and the building; the holes in the sidewalk in which a blind person’s cane could get caught; there was no elevator in the two-story building; the stairway had metal, unenclosed steps; wheel-chair employees could not get to the second floor; and the difficulty of reaching the location by bus from either the Austin bus system or from the intercity bus station.

Risley further testified that all of these objections were made known to the Board and the Board was advised the building was unacceptable. He further said negotiations continued and a meeting was had with the Board but the Commission was precluded from presenting some of its evidence, and the Board refused to change its decision; that there were no other adequate facilities available; and that the Commission continued to occupy the premises in the bank until October 14,1976, with the knowledge of the Commissioners and the Board. Risley further testified that in the event the bank “threw the Blind Commission out” then “it would have been catastrophic.”

The witness Hardey Holt, Supervisor of Staff Services for the Commission, testified to the unsuitability of the premises on Riverside Drive, and his reasons why it could not be used were almost identical to those given by Risley.

John Spurlock, President of the bank, testified that he learned before the written lease expired that the bank was not the low bidder for premises for the Commission for another lease period; that Risley told him the premises of the low bidder were unacceptable to the Commission and it would not be moving, and “not to be concerned about the monthly lease rentals, that they did have funds and they would get this worked out, . . . that he would get this worked out with the Board of Control and for us not to be concerned about it.” Spurlock further testified that Mr. Sapp, Chairman of the Commission, visited with him in November, 1975, and reaffirmed that the proposed premises were not acceptable, and “to stay with them and that they would get this thing all worked out.” He said Sapp “indicated that we would be paid.”

Homer Forester, Executive Director of the Board of Control, related the procedure followed by the Board and State agencies in obtaining leased space, and he gave the sequence of events concerning the Commission and its occupancy of premises in the bank, refusing to move to the Riverside Drive location, and later moving to the Stokes Building. Forester testified that the procedure followed to obtain rental space was for the Board to ask for specifications from agencies needing space, then to advertise for bids, and to make an award, but not to sign the lease.

The lease with the bank was signed by an officer of the bank for the bank, and by Risley for “State Commission for the Blind,” and was approved as to form by an Assistant Attorney General for the Attorney General of Texas. The lease itself provides the bank was lessor, and “State Commission for the Blind acting for and on behalf of the State of Texas, hereinafter known as Lessee.”

The State contends in its first point of error that the trial court erred in rendering judgment against the State because the claim of the bank arose out of a transaction which had not been provided for by pre-ex-isting law. The State relies upon Article III, Section 44 of the Constitution of Texas, and maintains that it forbids the payment of “any amount of money out of the Treasury of the State, to any individual, on a claim . . . when the same shall not have been provided for by pre-existing law ..” The State cites Austin National Bank v. Sheppard, 123 Tex. 272, 71 S.W.2d 242 (Tex.Com.App.1934, opinion adopted), and argues that such opinion prohibits the State from appropriating or paying any funds under the facts of this case. Article III, Section 44, Constitution of Texas, provides in part: “The Legislature [shall not] grant, by appropriation or otherwise, any amount of money out of the Treasury of the State, to any individual, on a claim, real or pretended, when the same shall not have been provided for by pre-existing law ..” The court in Austin National Bank v. Sheppard, supra, in interpreting the above, said at p. 245:

“We interpret this to mean that the Legislature cannot appropriate state money to ‘any individual’ unless, at the very time the appropriation is made, there is already in force some valid law constituting the claim the appropriation is made to pay a legal and valid obligation of the state. By legal obligation is meant such an obligation as would form the basis of a judgment against the state in a court of competent jurisdiction in the event it should permit itself to be sued.”

The principle, citing Austin National Bank v. Sheppard, supra, was reiterated by the Supreme Court in Fort Worth Cavalry Club v. Sheppard, 125 Tex. 339, 83 S.W.2d 660, 663 (1935).

Although Austin National Bank v. Sheppard, supra, was a suit for mandamus to compel the State Comptroller to pay the bank for a warrant it held which was issued to an out of state corporation by the Comptroller in response to an appropriation by the Legislature, it is helpful in reaching our conclusion here. The appropriation was to reimburse the corporation for fees paid to the Secretary of State under protest, and which fees were later determined to have been improperly collected because it was an illegal tax. There it was contended that the appropriation by the Legislature to refund fees illegally collected was a violation of Article III, Sec. 44 of the Constitution because such appropriation “shall not have been provided for by pre-existing law.” The court held that even though there was no pre-existing statutory law to authorize such appropriation Texas had adopted the common law where “it is not inconsistent with our Constitution and laws,” and that “a common-law right is a right under a ‘pre-existing law’ within the meaning of the constitutional provision under discussion here.”

The court there determined that the claim to a refund of an illegal fee collected by the state was “a legal obligation against the state at such time” because “A person who pays an illegal tax under duress has a legal claim for its repayment,” and “the state is legally liable to repay this tax so illegally demanded and collected.”

It should be noted that the question in Austin National Bank v. Sheppard was whether a mandamus should be granted to compel the Comptroller to refund an illegal tax or fee after the appropriation had been made by the legislature, whereas the question in the instant case is whether the State is legally liable for the rental to the bank for the months the Commission was holding over when there was a previous appropriation to pay for such rental. In our view the Constitutional provision does not apply to the factual situation in the instant case. The suit here is to determine the liability of the State for lease rental after the State has granted permission to be sued; it is not a question of the Constitutional authority of the Legislature to appropriate money when the appropriation has not “been provided for by pre-existing law.”

If we be mistaken in our view that the Constitutional provision does not apply then it is our opinion that the decision in Austin National Bank v. Sheppard, supra, does not support the State’s position. That decision interpreted Art. Ill, Sec. 44 of the Constitution as it applied to the mandamus suit and does not speak to the question presented here.

The State further claims that the procedure for executing a valid lease with a state agency is set out in Article 666b, Texas Revised Civil Statutes, and that under that statute (as amended in 1967) the sole authority for leasing space is in the Board of Control, and that this article is the “pre-ex-isting law” that controls. We do not agree with this contention.

Article 666b (1967), supra, then provided that any state agency “when rental space is needed for carrying on the essential functions of such agencies,” shall submit to the Board a request therefor, giving the specifications. The Board, “upon receipt of such request, and if the money has been made available to pay the rental thereon, and if, in the discretion of the Board such space is needed,” shall advertise for bids for a period not to exceed four years; the bids shall be publicly opened, and the award made to the lowest and best bidder on such terms as agreed upon, which terms, with notice of award by the Board, shall be submitted to the Attorney General who will cause the contract to be prepared. It further provides: “The parties to such contract will be the department or agency of the government using the space as lessee and the party renting the space as lessor.”

Paragraph (15) of the lease provides in part: “In the event Lessee shall be in default in the payment of rentals . or shall otherwise breach its covenants or obligations . . . Lessor shall have the right and privilege of terminating this lease . and shall have the remedies now or hereafter provided by law for recovery of rent, repossession of the premises and damages occasioned by such default.”

The Legislature authorized the Commission to contract for rental space and be the lessee. The written lease provides that the lessor shall have “the remedies . provided by law for recovery of rent.” The Commission is an agency of the State, and the State is bound by its contract as a private citizen is bound by a like contract. Board of Regents of University of Texas v. S & G Construction Co., 529 S.W.2d 90, 97 (Tex.Civ.App.—Austin 1975, writ ref’d n. r. e.); Fort Worth National Bank v. State, 158 S.W.2d 885, 887 (Tex.Civ.App.—Austin 1942, writ ref’d w. o. m.); State v. Elliott, 212 S.W. 695, 698 (Tex.Civ.App.—Galveston 1919, writ ref’d); 52 Tex.Jur.2d State of Texas, Sec. 48, p. 759.

Here the record reflects that the Commission had funds budgeted for its operation, including rental, for the period involved here. We assume that to mean there had been an appropriation of funds by the 64th Legislature which included funds for the Commission for this period. (Appropriations-General Act, chapter 743, S. 13, 52, provides for $266,670 for fiscal 1976, and $264,929 for fiscal 1977, for Central Administration for the Commission.) If that be true, which is not denied by the State, then there was pre-existing law providing for the payment of rent by the Commission. The dispute was between the Commission and the Board as to which premises the Commission would occupy. When the Commission refused to accept premises the Board selected the record is devoid of any action the Board took, if it could, to compel the Commission to move to the new location. Indeed, we are not cited any authority which compels a state agency to accept and occupy premises which it deems to be inadequate or unsuitable for its use. We are not enlightened as to the Board’s authority, if any, to require occupancy of premises selected by the Board for a state agency. There are no rules or regulations, if any, of the Board in the record, nor any reference to such rules or regulations. Since the lease had expired, and the Commission had not moved, it was left to its own devices.

Had the Commission moved to the Riverside Drive location there seems to be no question that the State, through the Board and the Comptroller, would have paid the rental out of funds already appropriated by the Legislature. The Legislature apparently expected the cooperation of the state agencies in obtaining leased premises, and appropriated funds for such leased premises, but the fact that there is a disagreement between the Board and an agency concerning the occupancy of certain premises, should not, in our view, preclude the State’s liability for rental of the premises occupied by an agency as a holdover lessee. A claim for rent of premises under such circumstances is not barred by the Constitution as there was pre-existing law upon which to base the claim.

The State also argues that Risley, the Executive Director, had no authority to contract with the bank for the lease rental during the period of holding over, and cites State v. Steck Co., 236 S.W.2d 866, 869 (Tex.Civ.App.—Austin 1951, writ ref’d). We agree that Risley’s only authority was to act in behalf of the Commission and at its discretion. We are not to be understood as saying, however, that the Commission itself was without authority to hold over the premises from month to month until suitable premises were available. It is undisputed that the Commission acquiesced in the holding over. The question arises, however, that when the Commission determined it could not discharge its statutory duties by moving to the Riverside Drive premises, what should it have done? It had a budget item appropriated to pay lease rental, but its written lease had expired. It appears the Commission became a tenant at will by holding over because of circumstances beyond its control, and under its lease rental contract the bank, as lessor was granted the remedies provided by law for the recovery of its rent. If the Commission was authorized to contract for lease rental (as it was), we have been cited no authority why it could not remain in possession until adequate and suitable premises could be obtained.

The Commission had authority to enter into the lease rental contract involved here, and it has been held that a county may be held liable upon an implied contract or quantum meruit for the reasonable value of benefits it has received where it had the authority or power to enter into the contract originally. Rodgers v. County of Taylor, 368 S.W.2d 794, 797 (Tex.Civ.App.—Eastland 1963, writ ref’d n. r. e.).

It was said in Hayward v. City of Corpus Christi, 195 S.W.2d 995, 1004 (Tex.Civ.App.—Waco 1946, writ ref’d n. r. e.), “ ‘ . where, under a contract which is merely invalid and not fraudulent or malum in se, one has furnished to a municipality, or other political subdivision, real or personal property . . . which property the public fails to pay for, he may upon equitable terms recover it in specie . . .” and further “ ‘The obligation to do justice rests upon all persons, natural and artificial, and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation.’ ”

In City of Houston v. Finn, 139 Tex. 111, 161 S.W.2d 776, 777 (1942), the Supreme Court held:

“It is the settled law in this State, as established by the decisions of this Court, that where a municipality knowingly receives property or services on an agreement which it had power to enter into as a contract, but which was not legally entered into so as to make it binding as a contract, it will be compelled to pay the reasonable value of the property or services so received, as on an implied contract.”

It is said in Harris County v. Emmite, 554 S.W.2d 203, 204 (Tex.Civ.App.—Houston [1st Dist.] 1977, writ dism’d): “Where a county or a municipality receives benefits under a contract, illegal because not made in conformity with the Constitution or statute of the state, or charter provision of the city, it will be held liable on an implied contract for the reasonable value of the benefits which it may have received.”

While we find no cases which make the above propositions applicable to counties and municipalities also directly applicable to the State, it does appear reasonable that when an agency of the State is authorized to contract for rental space and finds it necessary to hold over beyond the period of the written lease the State should pay for the reasonable value of the benefit it received. Counties and municipalities are creatures and subdivisions of the State. Security Trust Co. v. Lipscomb County, 142 Tex. 572, 180 S.W.2d 151, 159 (1944).

The State here consented to be sued by the bank, and it has been held that “When the State authorizes a party to sue the State and becomes a party to that litigation, it occupies the same position as any other litigant.” State v. Stanolind Oil & Gas Co., 190 S.W.2d 510, 512 (Tex.Civ.App.—Beaumont 1945, writ ref’d); Anderson, Clayton & Co. v. State, 122 Tex. 530, 62 S.W.2d 107, 110 (Tex.Com.App.1933, opinion adopted); State v. Jasco Aluminum Products Corp., 421 S.W.2d 409, 410 (Tex.Civ.App.— Austin 1967, no writ).

In the old case of State v. Cloudt, 84 S.W. 415, 416 (Tex.Civ.App.—San Antonio 1904, writ ref’d), the court said:

“When a state appears as a party to a suit, she voluntarily casts off the robes of her sovereignty, and stands before the bar of a court of her own creation in the same attitude as an individual litigant; and her rights are determined and fixed by the same principles of law and equity, and a judgment for or against her must be given the same effect as would have been given it had it been rendered in a case between private individuals.” [Emphasis added.]

The above language from State v. Cloudt was approved and quoted by the Supreme Court in Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1145-6 (1939).

Again in Harris v. O’Connor, 185 S.W.2d 993, 998 (Tex.Civ.App.—El Paso 1944, writ ref’d w. o. m.), the court said:

“The State at all times voluntarily appears before her courts. If she elects to so appear, there are no special privileges to be accorded by the courts. To accord the State any such special privileges would defeat the purpose of the appearance. The government is bound by law just as the citizen.”

The court in Railroad Commission v. Arkansas Fuel Oil Co., 148 S.W.2d 895, 898 (Tex.Civ.App.—Austin 1941, writ ref’d), said:

“It is likewise á general rule that when the State enters the courts as a litigant it casts off its robe as a sovereign, comes as would an individual litigant, and is bound by the judgment rendered as would an individual litigant.”

The State has given its permission to be sued for lease rentals in this matter, and the Legislature had, before the beginning of the lease rental period involved here, appropriated funds with which to pay rentals for the Commission for its central office. Under the record presented here we are of the opinion that the claim here for rent by the bank against the State is not prohibited by the Constitution, nor do we believe it to be in conflict with the decisions in Austin National Bank v. Sheppard, supra; Fort Worth Cavalry Club v. Sheppard, supra, and cases there cited; and State v. Steck Co., supra. The State’s first point is overruled.

The second point of error complains that the trial court erred in refusing to grant the State’s motion to disregard special issue two. This point is overruled. The record discloses that the Commission determined that the premises at 105 Riverside Drive were not in conformity with the needs of the Commission for its use as its central office. The jury agreed. It was a finding that the Commission had a valid reason for holding over. It is noted that Art. 666b, Sec. 6, (as amended 1977), provides that “The board may not enter a lease contract under this Act unless it complies with the provisions of [Article 678g, Vernon’s Texas Civil Statutes].” [Emphasis added.] Art. 678g, Texas Revised Civil Statutes (originally effective 1970, as amended through 1977) provides in 2(c) that the “standards and specifications [set forth in'the Act] shall be adhered to in all buildings leased or rented in whole or in part for use by the state under any lease or rental agreement entered into on or after January 1,1972,” and Sec. 3(a) and (b) provide “This act is concerned with nonambulatory disabilities, semiambulatory disabilities, sight disabilities, hearing disabilities, disabilities of coordination and aging. It is intended to make all buildings and facilities covered by this Act accessible to, and functional for, the physically handicapped to, through, and within their doors, without loss of function, space or facilities where the general public is concerned.”

Sec. 1 of Art. 678g, supra, set out the policy of the State in constructing and leasing buildings and facilities for use by handicapped persons: “ . . . to encourage and promote the rehabilitation of handicapped or disabled citizens .. . . to eliminate, insofar as possible, unnecessary barriers encountered by aged, handicapped or disabled persons, whose ability to engage in gainful occupations or to achieve maximum personal independence is needlessly restricted when such persons cannot readily use public buildings.” There follows in the statute specific criteria for design, site development, ramps, entrances, doors, stairs, floors, toilet rooms, water fountains, public telephones, elevators, switches and controls, identification for the blind, warning signals and hazards. Although these statutes may have been enacted after the execution of the lease in question here, they demonstrate the intent of the Legislature in providing buildings and facilities for the use of handicapped persons. The Commission, in our view, had the same purpose and intent in refusing to occupy premises which were unsuitable.

In its point three the State says the trial court erred in failing to grant its motion for judgment non obstante veredicto because there was no fact question for the jury, and the questions were only law questions which should have been decided by the court in favor of the State. This point is overruled.

The judgment of the trial court is affirmed.


author: MOORE, Justice.

text:
    LAKEWAY COMPANY, Appellant, v. LEON HOWARD, INC., Appellee.
    No. 1242.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 8, 1979.
    Rehearing Denied March 22, 1979.
    Mike Willatt, Fisher & Willatt, Austin, for appellant.

      Malcomm Robinson, Hooper, Robinson & Moeller, Austin, for appellee.
   MOORE, Justice.

Appellee, Leon Howard, Inc., filed suit against appellant, Lakeway Company, to recover an amount allegedly due and owing under a contract to perform architectural services in connection with the construction of a golf course. Lakeway Company answered with a general denial. After a trial before the court, without a jury, the court entered judgment in favor of appellee, Leon Howard, Inc., for the sum of $2,443.75, together with attorney’s fees in the amount of $815.00, from which judgment appellant Lakeway perfected this appeal.

We affirm.

The record reveals that Charles Howard and his brother, Leon Howard, were engaged in the business of designing golf courses and operated under the corporate name of Leon Howard, Inc. In 1966, after they had designed an 18-hole golf course for Lakeway, they were again employed by Lakeway to design another 18-hole course. On October 23, 1969, the parties entered into a written contract whereby Lakeway agreed to pay them $18,000.00 for their services. Under the terms of the contract, $2,000.00 was to be paid when the preliminary routing plan was approved: 25% of the fee less the $2,000.00 was to be paid at the time Lakeway requested detailed plans and specifications; 50% of the fee was to be paid when the detailed plans and specifications were approved, and the remaining 25% was payable as the construction progressed. Charles Howard testified that as a part of the consideration, he and his brother were to receive a $2,500.00 discount on two $5,000.00 lots at Lakeway. The written contract, however, did not specify that such agreement was included as a part of the consideration.

At the trial, counsel for appellant objected to this testimony on the ground that it was in violation of the parol evidence rule. In response to the objection the court announced that the objection would be sustained until such time as appellee showed that such agreement came within an exception or was a collateral agreement with the written contract. Appellee then introduced several exhibits tending to show that Lake-way agreed to the discounts on the two lots. These exhibits will be discussed later.

On cross-examination counsel for appellant asked the witness Charles Howard this question: “Now are you saying that initially part of the compensation you would receive for doing the duties into this contract would be a $5,000 discount on the 2 lots at Lakeway”? The witness answered in the affirmative.

Howard further testified that shortly after the written contract had been signed he received a letter from Lee Blocker, the President of Lakeway, stating that he had always wanted both of the Howard brothers to live at Lakeway and that he was therefore offering both of them a $2,500.00 discount on two lots. Significantly, this letter was dated on October 24, 1969, the day after the written contract was signed.

Commencement on the construction of the golf course was delayed due to the fact that Lakeway experienced some difficulty in deciding where the golf course was to be located. In 1971, after Lakeway had changed plans on the location of the golf course twice, Howard testified that he redrew the plans at no extra charge. Thereafter he testified that in a telephone conversation with Colonel James T. Gribble, Executive Vice President of Lakeway, he requested that the $5,000.00 discount on the two lots be treated as additional consideration for the original contract. The evidence shows that in response to this request, Howard received a letter from Colonel Gribble stating:

“For the moment, it is our intent to continue the contract under those terms, however, we have not ruled out the possibility of considering your proposal relative to return of the lots to us with cash in lieu thereof.”

Howard testified that in a subsequent telephone conversation Colonel Gribble told him that the $5,000.00 discount on the two lots would be “re-included” as a part of the consideration on the original contract. Thereafter, between September 22, 1971, and October 12, 1973, appellee billed Lake-way for services performed on the contract by five separate invoices. In each invoice, it was recited that the original contract was in the amount of $18,000.00 and immediately below, each invoice recited “adjustment for discount offer on lots — $5,000.00.” Each invoice showed that the $5,000.00 was added to the original contract for a total of $23,000.00 and recited that such figure was the total adjusted fee. It is undisputed that Lakeway paid each of the invoices based on a total contract price of $23,000.00. In all, Lakeway paid appellee the sum of $20,556.25.

On February 7, 1977, Lakeway wrote ap-pellee a letter advising that the contract was terminated and that no further payments would be made. According to the letter, Lakeway took the position that since it had stopped construction and the contract provided for monthly payments as construction progressed, Lakeway was not obligated to pay the balance due on the contract. The letter states that Lakeway had paid the sum of $20,556.25. The letter shows that in calculating the amount which had been paid, Lakeway used the contract price of $23,000.00 on three separate occasions.

According to Mr. Howard’s testimony, all the work required by the contract had been completed by his firm at the time Lakeway terminated the contract.

Upon the request of appellant, the trial court filed findings of fact and conclusions of law. The findings of fact deemed material to this appeal were (a) simultaneously with the written agreement calling for payment of $18,000.00 for services to be rendered by plaintiff, the defendant and plaintiff had an oral agreement evidenced by letters between the parties that the plaintiff would be given a $5,000.00 discount for the purchase of a lot or lots from the defendant; (b) on or about January 27, 1972, the defendant and plaintiff agreed to incorporate the $5,000.00 discount agreement on the purchase of the lots into, the employment agreement making the total consideration for the employment agreement at $23,000.00; (c) the total sum under the employment agreement to be $23,000.00 is reflected by correspondence between the plaintiff and the defendant and invoices sent by the plaintiff to the defendant and paid by the defendant; (d) the defendant made a total payment of $20,556.25 on the total contract price of $23,000.00; and (e) the plaintiff performed all of the work that it was obligated to perform under the employment contract.

Conclusions of law deemed material to this appeal were as follows: (a) the defendant still owes the plaintiff $2,443.75 under the employment agreement; (b) the plaintiff employed an attorney and incurred reasonable attorney’s fees of $815.00 which should be recovered by the plaintiff in addition to the balance due by the defendant on its debt.

Under points 1 through 4, appellant seeks a reversal on the ground that there is no evidence to support the trial court’s findings and the judgment based thereon. Specifically, appellant contends that there is no evidence that the parties made a simultaneous oral agreement at the time the written contract was made giving Charles Howard and Leon Howard a right to purchase two lots at a $5,000.00 discount, and further, that there is no evidence that the parties agreed to incorporate the $5,000.00 discount agreement into the employment agreement making the total consideration for the employment agreement $23,000.00. Thus, appellant argues that there is no evidence to show that it still owes the appellee $2,443.75 under the contract and therefore there was no basis for the award of attorney’s fees. Appellant does not challenge the finding that appellee had performed all of the work required by the contract.

In considering appellant’s “no evidence” points, we, of course, must view the evidence in its most favorable light in support of the trial court’s findings, considering only the evidence and inferences which support the findings and rejecting the evidence and inferences contrary to the findings. Butler v. Hanson, 455 S.W.2d 942, 944 (Tex.1970); Miller v. Riata Cadillac Co., 517 S.W.2d 773, 777 (Tex.1974). Applying the foregoing rule of law to the facts, we are of the opinion that there is ample evidence to sustain the trial court's findings. Charles Howard testified both on direct and cross-examination that the oral agreement giving him and his brother a right to purchase two lots at a $2,500.00 discount was a part of the consideration for the written contract. He testified that in response to his request, Colonel Gribble, Lakeway’s Executive Vice President, told him that the $5,000.00 discount promised them would be considered as a part of their fee, thereby making their fee $23,000.00 rather than $18,000.00. From and after that time, all invoices and correspondence between the parties showed that the fee for doing the architectural work on the golf course amounted to $23,-000.00. Further, all payments to the appel-lee show to have been calculated on the basis of a $23,000.00 contract and Lakeway actually paid appellee $2,556.25 over and above the $18,000.00 recited in the written contract.

We cannot agree with appellant’s contention that the testimony of Charles Howard that the $5,000.00 discount on the lots was a part of the consideration for the written contract was not competent because such testimony was in violation of the parol evidence rule. While at one point the trial court did announce that he was going to sustain appellant’s objection to Howard’s testimony on that ground, the court qualified that statement and indicated that such testimony would be considered if he later found that it was admissible under some exception to the rule or that it amounted to a collateral agreement made in connection with the written contract. Apparently, the court after having heard the evidence in its entirety, concluded that the oral agreement granting the $5,000.00 discount was competent testimony and not in violation of the parol evidence rule. Otherwise the court would not have made findings to that effect as shown by findings a and b quoted above.

The general rule is that the recital of a written instrument as to consideration is not conclusive, and it is competent to inquire into the consideration and show by parol evidence the nature of the real consideration. Taylor v. Merrill, 64 Tex. 494, 496 (Tex.1885); Texas Company v. Tucker, 129 S.W.2d 762, 765 (Tex.Civ.App.—Fort Worth 1939, writ ref’d); Rubin v. Adams, 368 S.W.2d 42, 44-5 (Tex.Civ.App.—Amarillo 1963, writ ref’d n. r. e.); McDonald v. Todd, 482 S.W.2d 51, 52-3 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ history).

The parol evidence rule does not preclude enforcement of prior or contemporaneous agreements which are collateral to an integrated agreement and which are not inconsistent with and do not vary or contradict the express or implied terms of the obligations thereof. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 32 (1958); Arkansas Oak Flooring Company v. Mixon, 369 S.W.2d 804 (Tex.Civ.App.—Texarkana 1963, no writ history). The foregoing rule is especially applicable where, as here, there are substantiating circumstances showing that the oral pact is one which might normally be made as a separate agreement by the parties situated as were the parties to the written contract. 2 Texas Practice, Evidence, sec. 1603, McCormick and Ray (1956).

In the present case the oral agreement granting the $5,000.00 discount is substantiated by the fact that Lakeway actually made payments in excess of the $18,000.00 stipulated in the written contract. Such payments were made on the basis of five invoices which showed on their face that the appellee was claiming that the total amount of the contract was $23,000.00 rather than $18,000.00. The fact that the oral contract was made is further substantiated by Lakeway’s letter terminating the agreement. In that letter Lakeway acknowledged that the contract was for $23,000.00. The letter recites that Lakeway had paid the appellee the sum of $20,556.25, and in calculating how such payments were made, the letter recites in three places that payments were piade on the basis of a $23,-000.00 contract rather than an $18,000.00 contract.

The parol evidence given by Howard with regard to the promise of a discount on the two lots constituted a part of the agreement between the parties. The written instrument was only a part of the entire agreement and failed to mention that as a part of the consideration the Howard brothers were to receive a $2,500.00 discount on two lots. We are therefore of the opinion that the parol evidence offered by Howard for the purpose of showing there was additional consideration was not in violation of the parol evidence rule and was competent testimony supporting the trial court’s findings.

Appellant does not challenge the finding that appellee performed all the work called for by the terms of the contract. As we view the record there is ample evidence to support each of the trial court’s findings and the judgment based thereon. Appellant’s points of error are therefore overruled.

Accordingly, the judgment is affirmed.


author: JAMES, Justice.

text:
    Hal BRADFORD, Appellant, v. Vicente VEGA et al., Appellees.
    No. 5968.
    Court of Civil Appeals of Texas, Waco.
    Feb. 9, 1979.

      C. H. Gilmer, Rocksprings, for appellant.
    Edwin H. White, Rocksprings, for appel-lees.
   OPINION

JAMES, Justice.

This is a venue case involving Subdivision 4 of Article 1995, Vernon’s Texas Civil Statutes. Plaintiff-Appellant Hal Bradford brought this suit in the County Court of Edwards County, Texas, against Defendant Vicente Vega, a resident of Edwards County, and Defendant-Appellee James 0. Gentry, Sr. a resident of Dallas County. Bradford sued” Vega and Gentry jointly and severally for $975.00 damages for the alleged breach of a contract by Defendants to mount an antelope head owned by Plaintiff and return it to him.

Defendant-Appellee Gentry filed a plea of privilege requesting that the cause be transferred to Dallas County, the county of his residence; whereupon Plaintiff Bradford controverted under Subdivision 4, Article 1995, V.T.C.S.

The trial court after hearing sustained Defendant Gentry’s plea of privilege and ordered the cause to be transferred to Dallas County, from which order Plaintiff Bradford appeals.

Plaintiff-Appellant Bradford asserts the trial court erred in sustaining Gentry’s plea of privilege, contending that he, Bradford, had met his burden in establishing the necessary venue facts to maintain venue in Edwards County under Subdivision 4, Article 1995. We sustain Appellant’s point of error and reverse and remand the cause to the County Court of Edwards County for trial upon the merits in said county.

To maintain venue under Subdivision 4, Article 1995, in the county of suit, where there is a resident defendant and one or more nonresident defendants, the plaintiff has the burden of: (1) alleging a joint cause of action against the resident and nonresident defendants, or a cause of action against the resident defendants so intimately connected with the cause of action alleged against the nonresident defendants that they may be joined under the rule intended to avoid a multiplicity of suits; (2) proving by independent evidence that the resident defendant resides in such county; and (3) proving that the plaintiff has a cause of action against the resident defendant. Stockyards National Bank v. Maples (Comm.App.1936) 127 Tex. 633, 95 S.W.2d 1300, opinion adopted by the Supreme Court; Ladner v. Reliance Corporation (Tex.1956) 156 Tex. 158, 293 S.W.2d 758; Hospital Sciences v. Medical Computer Systems, Inc. (Waco CA 1972) 482 S.W.2d 699, no writ; A. & M. Construction Co. v. Davidson (Waco CA 1972) 485 S.W.2d 375, 377, no writ; Cemco, Inc. v. World Wide Investors (Waco CA 1972) 487 S.W.2d 833, 837, no writ.

In the case at bar, the undisputed evidence shows that Plaintiff Bradford in the latter part of 1976 entered into an agreement with (resident) Defendant Vega, whereby Vega agreed to arrange for the mounting of a blackbuck antelope head belonging to Plaintiff. Vega told Plaintiff that he had a working arrangement with a taxidermist who would periodically pick up animal heads from Vega at the locker plant where he (Vega) worked, in Rocksprings, Texas, mount them according to Vega’s specifications, and return them to Rocksprings. Plaintiff delivered the head to Vega with the understanding that the total cost would be $120.00, and that the head would be returned to Rocksprings when it was ready. Defendant Vega thereupon turned the head over to (nonresident) Defendant Gentry, who proceeded to mount it in accordance with Vega’s instructions. Plaintiff paid $60.00 by check to Gentry, which check was cashed by Gentry. The record is not clear whether Plaintiff gave the $60.00 check to Vega for forwarding to Gentry, or whether Plaintiff sent the check directly to Gentry. Plaintiff testified that he told Vega he would pay the balance of $60.00 when he received the mounted deer head. Vega’s testimony was also to this effect, and that the total cost of mounting the head would be $120.00 with the deer head to be delivered to Rocksprings.

On February 9, 1978, Gentry wrote a letter to Plaintiff advising Plaintiff that the balance due for the mounted head was $71.55. Said letter also stated, “This item must be picked up within 10 days or it will be put up for sale.”

Gentry’s testimony was to the effect that (1) the balance due was $71.55 instead of $60.00, and (2) Gentry was not obligated to deliver the mounted deer head to Plaintiff at Rocksprings. In this respect Gentry’s testimony was conflicting with that of Plaintiff and Vega; however, the fact that there may be conflicting evidence on these facts is immaterial in trying and determining the question of venue. The issue raised by the plea of privilege and the controverting plea is venue, not liability. See Stockyards National Bank v. Maples (Comm.App.1936) 127 Tex. 633, 95 S.W.2d 1300 at page 1304, opinion adopted.

We are of the opinion and hold that Plaintiff-Appellant Bradford has met his burden to maintain and establish venue of this cause in Edwards County under Subdivision 4 of Article 1995 under the authorities hereinabove cited, and that the trial court erred in sustaining Defendant-Appel-lee Gentry’s plea of privilege.

We accordingly reverse and remand the cause to the County Court of Edwards County for trial of said cause on the merits in said county.

REVERSED AND REMANDED.


author: MILLER, Justice.

text:
    Oran SMITH et al., Appellants, v. Reverend Melbert A. LEWIS et al., Appellees.
    No. A1976.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 14, 1979.
    Rehearing Denied March 7, 1979.

      Gordon Cooper, Cooper & George, Houston, for appellants.
    Joel B. McCarty, Jr., Lowry, Pruett & McCarty, Houston, for appellees.
   MILLER, Justice.

This is an appeal by the plaintiffs below from a summary judgment granted in favor of the defendants.

The plaintiffs originally brought suit against Reverend Melbert A. Lewis, minister of the Mount Ararat Baptist Church. The original petition was not made a part of the record on appeal, but the second amended original petition filed on November 7, 1977, was brought individually as church members by the various named plaintiffs as well as a class action claiming representation of other persons similarly situated pursuant to Tex.R.Civ.P. 42. The church had previously been organized as a non-profit corporation. The plaintiffs alleged that contrary to law, after demanding inspection for a proper purpose and at a reasonable time, they were refused access to the books and records of the church. Tex.Rev.Civ.Stat.Ann. art. 1396-2.23b (1962). They alleged standing as church members. They further alleged that there had been a wrongful distribution of the church assets during the preceding five years and that the statutory meeting had not been held in the previous year where a full accounting could have been given. They prayed for an accounting, access to the records, a court ordered audit and repayment to the corporation of any wrongful disbursement of corporate assets.

Defendant Lewis denied all charges generally; specifically denied that the plaintiffs’ cause of action was a class action; claimed that the transactions of himself and other leaders had been ratified by the congregation in accordance with custom, usage, and practices of the church; and further, that the financial records had been and were currently open to any member of the congregation. The plaintiffs replied by then asserting contingent liability as directors under Tex.Rev.Civ.Stat.Ann. art. 1396-2.26 (1962) thereby giving them a further justiciable interest in the suit.

Shortly after the filing of the original petition and answer, the trial court ordered and supervised an election in which the church membership expressed their continued confidence in the defendant Reverend Lewis by a vote of 268 to 106. Several days later another, business meeting was held, and all of the plaintiffs were expelled from membership in the church. The defendant Lewis then filed his original motion for summary judgment on January 6,1978 with an affidavit attached alleging that the plaintiffs had no further standing to sue individually as they were no longer church members; and that Reverend Lewis therefore owed them no duty which would give rise to a cause of action as the church was a necessary but unjoined party in the action. The motion was heard by the court on February 6, 1978 and denied.

The plaintiffs then filed a third amended original petition re-asserting their original allegations and action; adding a new plaintiff Remon Glenn and joining the church as a defendant and again specifying their financial interest in the church on a contingent liability as co-makers of an outstanding promissory note to Standard Savings Association which was apparently executed during the church building program.

Both defendants joined in re-urging the motion for summary judgment attaching an affidavit from the Savings Association stating the plaintiffs were released from their obligations as co-makers on said note. The affidavit was attacked by the plaintiffs and found defective by the court. They once again re-urged their motion for summary judgment and attached a new affidavit. The plaintiffs’ opposition to the summary judgment motion named two previously un-joined persons who had not been expelled as church members thereby asserting standing; reasserted their suit as a class action; and complained of the court’s failure to make a determination of the class nature of the suit as provided for by Tex.R.Civ.P. 42(c)(1). They also alleged that the court supervised election of the church membership was not in compliance with either notice to the class or court approved dismissal requirements of the class action rule. The trial court now granted the defendants’ motion for summary judgment finding the release of all of plaintiffs’ co-maker liability effective and further that there were no material issues of fact. No particular findings as to plaintiffs’ ability to maintain suit individually or as a class action was made.

The appellants, plaintiffs below, attack the granting of a summary judgment in three respects. We will deal first with their third point of error where in they complain that the determination on the maintainability of the suit as a class action must be prior to any judgment. The appellants specifically refer to the provision which states, “As soon as practicable after commencement of an action brought as a class action, the court shall, after hearing determine by order whether it is to be maintained.” Tex.R.Civ.P. 42(c)(1). The Texas procedure governing class actions was amended to include this provision in May, 1977, to become effective September 1, 1977. The plaintiffs’ suit was originally brought on May 14, 1977. The appellees contend that the amended rule does not apply to this suit. We believe that it applies for two reasons. First, class actions have been authorized in Texas since 1941. The trial court was an integral part of the procedure by implication because of its general discretion upon questions of joinder of parties and causes of actions, Wilson v. Ammann & Jordon, 163 S.W.2d 660 (Tex.Civ.App.—Fort Worth 1942, writ dism’d), and expressly, by its exclusive mandatory authority to approve of dismissal or compromise of the class action. Tex.R.Civ.P. 42(b) (1941). By implication the court had to make a decision of the propriety of maintainability of a suit as a class action at least by the time of judgment. Allred v. Heaton, 336 S.W.2d 251 (Tex.Civ.App.—Waco 1960, writ ref’d n. r. e.), cert. denied, 364 U.S. 517, 81 S.Ct. 293, 5 L.Ed.2d 265 (1961); Brittian v. General Telephone Co. of Southwest, 533 S.W.2d 886 (Tex.Civ.App.—Fort Worth 1976, writ dism’d). Finally, the constitutional prohibition against making of retroactive laws has not been held to apply to-statutes pertaining to the procedures for carrying on suit. Brooks v. Texas Employers’ Insurance Association, 358 S.W.2d 412 (Tex.Civ.App.—Houston 1962, writ ref’d n. r. e.).

The 1977 amendment to Tex.R.Civ.P. 42 was patterned after Fed.R.Civ.P. 23 with little change. No Texas courts have decided the construction to be given to the amendment; thus we have looked to the Federal courts for guidance. Even though a number of Federal courts have held that a district judge has an obligation on his own motion to determine whether an action shall proceed as a class action, Senter v. General Motors Corp., 532 F.2d 511 (6th Cir. 1976), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976), the failure to do so has not been held to violate a substantive right so as to be harmful per se. The Federal courts, including the U.S. Supreme Court, have placed the burden directly on the plaintiff to present his motion for “class certification” in a timely manner. East Texas Motor Freight System, Inc., v. Rodriguez, 434 U.S. 810, 98 S.Ct. 45, 54 L.Ed.2d 67 (1977); Adise v. Mather, 56 F.R.D. 492 (D.Colo.1972); Carracter v. Morgan, 491 F.2d 458 (4th Cir. 1973), as well as to produce facts, if necessary, to demonstrate that the case meets the prerequisites of a class action. Carracter v. Morgan, supra. It is to be noted that the standard for determining whether a plaintiff may maintain a class action is not whether he will ultimately prevail on his claim, but rather, whether he meets the demands of Fed.R.Civ.P. 23(a) and (b), Huff v. N. D. Cass Company of Alabama, 485 F.2d 710 (5th Cir. 1973).

The appellant in this action totally failed to fulfill these burdens. He is not now in a position to complain of judgment prior to class determination as he might have been had he properly, timely and sufficiently presented this motion to the court. Even given the mandatory language of the class action rule, the trial court does have discretion and flexibility in the timing and manner of determination given the posture of early action and the relative incompleteness of the factual record, Harriss v. Pan American World Airways, Inc., 74 F.R.D. 24 (N.D.Cal.1977), which discretion will not be disturbed except by a showing of prejudice. Alexander v. AeroLodge No. 735, International Association, Etc., 565 F.2d 1364 (6th Cir. 1977), cert. denied, 436 U.S. 946, 98 S.Ct. 2849, 56 L.Ed.2d 787 (1978). Appellants’ third point of error is overruled.

We will now consider the first and second points of error together. It has long been the law that churches of the congregational form, such as Mount Ararat Baptist Church, may directly administer their own government. Mangum v. Swearingen, 565 S.W.2d 957 (Tex.Civ.App.—San Antonio 1978, writ ref’d n. r. e.). Tex.Rev.Civ.Stat. Ann. art. 1396-2.14 (1962) allows the management of the affairs of the church to be by the members directly, if the Articles of Incorporation so provide. The church followed this statutory procedure. By becoming a member, one thereby submits to the church’s ecclesiastical jurisdiction and has no right to invoke the supervisory power of the civil courts. Mangum v. Swearingen, supra. Questions of church discipline and government are left to the church limited only by the courts’ supervision of property and civil rights. Hughes v. Keeling, 198 S.W.2d 779 (Tex.Civ.App.—Beaumont 1946, writ ref’d n. r. e.). In the case before this court, when the Mount Ararat members voted to dismiss the plaintiffs from the church and they were released from any liability by the Savings Association on the church note, the dismissed plaintiffs lost their right in church property, First Baptist Church of Redland v. Ward, 290 S.W. 828 (Tex.Civ.App.—Waco 1927, writ dism’d), and consequently their standing to sue. As to Remon Glenn, however, the summary judgment was improper. He was joined in the third amended petition which alleged he was a church member and was not one of the persons expelled from church membership. Summary judgments are to avoid the conventional trial of clearly unmeritorious claims or untenable defenses. It is not their purpose to deprive litigants of their rights to a full conventional trial if there are involved material questions of fact. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952) (emphasis ours). The movants for summary judgment offered no evidence to negate the existence of the material issues of fact as to Remon Glenn’s allegations of non-access to church books and records, wrongful distribution of church assets, etc. The movants must do so in order for a summary judgment to stand. Covault v. Texas Instruments, Inc., 531 S.W.2d 441 (Tex.Civ.App.—Tyler 1975, no writ).

We affirm as to all plaintiffs and issues except as to Remon Glenn, as to whom we reverse and remand.

Affirmed in part and reversed and remanded in part.