text:
    Odell WALKER et al., Appellants, v. The STATE of Texas, Appellee.
    No. 51853.
    Court of Criminal Appeals of Texas.
    May 26, 1976.
    H. Thomas Hirsch, Odessa, for appellants.
    James A. Mashburn, Dist. Atty., and Jack K. “Rusty” Wall, Asst. Dist. Atty., Midland, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This purported appeal presents a case of first impression — whether, given the circumstances of the instant case, this court has jurisdiction of an appeal from an order of the trial court holding that the sureties on an appearance or bail bond are insufficient.

The record reflects that the appellant Za-rate was charged with possession of a usable amount of marihuana in an amount in excess of four ounces. On September 26, 1975, he executed an appearance bond in the amount of $40,000 with the appellants Odell and Thomas Walker as sureties, which bond was approved and accepted by Sheriff Ed Darnell of Midland County. Thereafter on October 29, 1975, an indictment was returned charging Zarate with the offense above described. On October 30, 1975, the State filed a motion asking for the arrest of the principal on the appearance bond — Za-rate, and requesting a hearing to test the sufficiency of the sureties on the bond. The court set a hearing on said motion for November 25, 1975, but declined to order the arrest of Zarate. On the date set the court conducted a hearing, at the conclusion of which briefs were requested. On December 22, 1975, the court entered an order granting the State’s motion regarding the insufficiency of the sureties and ordered the arrest of Zarate until a new $40,000 bond with proper sureties was made. A motion for new trial was filed on December 30, 1975. On January 2, 1976, Zarate turned himself in to the sheriff’s office. On January 7,1976, the State filed its answer to the motion for new trial, and on the same date the court “dismissed” the motion for new trial. On January 8, 1976, an amended motion for new trial was filed, but it does not appear that the court took any action thereon. On the same date Zarate executed another $40,000 bond with Riley and Elsie Jackson as sureties and is not now in custody. On January 11, 1976, the appellants gave notice of appeal to both the El Paso Court of Civil Appeals and the Court of Criminal Appeals.

It appears the action of the District Attorney in seeking and securing the order in question was based on the provisions of Articles 17.09, Sec. 3, and 23.11, Vernon’s Ann.C.C.P. Said Article 17.09, Sec. 3, reads as follows:

“Provided that whenever, during the course of the action, the judge or magistrate in whose court such action is pending finds that the bond is defective, excessive or insufficient in amount, or that the sureties, if any, are not acceptable, or for any other good and sufficient cause, such judge or magistrate may, either in term-time or in vacation, order the accused to be rearrested, and require the accused to give another bond in such amount as the judge or magistrate may deem proper. When such bond is so given and approved, the defendant shall be released from custody. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.”

Article 23.11, supra, also provides in part:

“. . . If it be made to appear by affidavit, made by any district attorney, county attorney, or the sheriff approving the bail bond, to a judge of the Court of Criminal Appeals, district or county court, that the bail taken in any case after indictment is insufficient in amount, or that the sureties are not good for the amount, or that the bond is for any reason defective or insufficient, such judge shall issue a warrant of arrest and require of the defendant sufficient bond, according to the nature of the case. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.”

The question raised is whether the Court of Criminal Appeals has jurisdiction to entertain an appeal from a pre-trial order entered regarding the insufficiency of the sureties on the original bond.

The jurisdiction of the Court of Criminal Appeals is provided for in Article V, Section 5, of the State Constitution as follows:

“The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the state in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law.
“The Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and under such regulations as may be prescribed by law, issue such writs as may be necessary to enforce its own jurisdiction. The Court of Criminal Appeals shall have power upon affidavit or otherwise to ascertain such matters of fact as may be necessary to the exercise of its jurisdiction. . .

Under such constitutional provision the Legislature has the power to make proper exceptions to the right of appeal in criminal cases and regulate appellate jurisdiction of the Court of Criminal Appeals, see De Silva v. State, 98 Tex.Cr.R. 499, 267 S.W. 271 (Tex.Cr.App.1924), and also to provide which writs the court may issue to enforce its own jurisdiction.

Article 4.03, Vernon’s Ann.C.C.P., provides:

“The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the State in all criminal cases. This Article shall not be so construed as to embrace any case which has been appealed from any inferior court to the county court, the county criminal court, or county court at law, in which the fine imposed by the county court, the county criminal court or county court at law shall not exceed one hundred dollars.”

Article 4.04, Vernon’s Ann.C.C.P., provides:

“Sec. 1. In addition to the power and authority now vested in the Court of Criminal Appeals of the State of Texas, said court and each member thereof shall have, and is hereby given, power and authority to grant and issue and cause the issuance of writs of mandamus and certiorari agreeable to the principles of law regarding said writs, whenever, in the judgment of said court or any member thereof the same should be necessary to enforce the jurisdiction of said court.
“Sec. 2. The Court of Criminal Appeals of Texas, and each of the judges thereof, are hereby empowered to punish disobedience of any of the above-named writs and to hold in contempt any party found by said court to have wilfully disobeyed any of said writs so issued by said court or any of the members thereof.”

It is clear from the above constitutional and statutory provisions that the Court of Criminal Appeals has appellate jurisdiction in all criminal cases in the State with the exception made by law in Article 4.03, supra, relating to cases originating in the Justice of the Peace and Municipal Courts and tried de novo in a County Court where the fine then assessed is $100.00 or less. Bridges v. State, 423 S.W.2d 931 (Tex.Cr.App.1968); Leggio v. State, 489 S.W.2d 622 (Tex.Cr.App.1973). See also Article 4.03, supra, note # 7, and cases there cited.

It is also clear from the constitutional provisions that the Court of Criminal Appeals and the Judges thereof have general authority to issue the writ of habeas corpus. Further, it may, as prescribed by law, issue such writs as may be necessary to enforce its own general jurisdiction. See Article 4.04, supra. See also State ex rel. Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr.App.1973); Ex parte Giles, 502 S.W.2d 774 (Tex.Cr.App.1973). The right of the court to issue writs, other than habeas corpus, is thus limited.

As stated in 15 Tex.Jur.2d, Courts, Sec. 23, p. 445:

". . . When a proceeding from which an appeal is attempted comes within none of the statutory or constitutional provisions conferring jurisdiction, the court will not exercise authority. . . ”

It is true that this court accepts appeals from forfeiture of bail. Chapter Forty-Four of the 1965 Code of Criminal Procedure deals with Appeal and Writ of Error. Article 44.42 contained in such Chapter provides:

“An appeal may be taken by the defendant from every final judgment rendered upon a personal bond, bail bond or bond taken for the prevention or suppression of offenses, where such judgment is for twenty dollars or more, exclusive of costs, but not otherwise.”

Article 44.43, Vernon’s Ann.C.C.P., provides:

“The defendant may also have any such judgment as is mentioned in the preceding Article, and which may have been rendered in courts other than the justice and corporation courts, reviewed upon writ of error.” See Surety Insurance Company of California v. State, 514 S.W.2d 454 (Tex.Cr.App.1974).

Article 44.44, Vernon’s Ann.C.C.P., provides:

“In the cases provided for in the two preceding Articles, the proceeding shall be regulated by the same rules that govern civil actions where an appeal is taken or a writ of error sued out.” See Aguirre v. State, 399 S.W.2d 804 (Tex.Cr.App.1966); Hayes v. State, 495 S.W.2d 897 (Tex.Cr.App.1973).

It has been long held that the forfeiture of a bail bond is a criminal case and an appeal therefrom falls within the jurisdiction of the Court of Criminal Appeals. Glenn v. State, 155 Tex.Cr.R. 498, 236 S.W.2d 809 (1951); Kubish v. State, 128 Tex.Cr.R. 666, 84 S.W.2d 480 (1935); Hodges v. State, 73 Tex.Cr.R. 638, 165 S.W. 607 (1913); Jeter v. State, 86 Tex. 555, 26 S.W. 49 (1894). And it is noted in such bond forfeiture cases the State has been held not to have the right of appeal. 7 Tex.Jur.2d, Rev. Part 2, Bail and Recognizance, Sec. 86, p. 692.

It is observed, however, that jurisdiction of the Court of Criminal Appeals in bond forfeiture cases is restricted by statute to appeals or writs of error from a final judgment forfeiting the bail bond. Swanson v. State, 169 Tex.Cr.R. 390, 334 S.W.2d 179 (1960).

With this background we must determine if this court has jurisdiction of the instant case. First, it is clear that it is not a case involving a writ that this court by law may issue to protect its jurisdiction. Second, this case is not one involving the court’s general authority to issue a writ of habeas corpus. Neither Zarate nor the other appellants are in custody or being illegally restrained. In fact, Zarate appears to have been released on a different bond. Third, this is clearly not an appeal from a conviction for a criminal offense, nor is it a final judgment in a bond forfeiture case over which this court has held it has jurisdiction.

It can be argued, of course, that the ruling complained of was incident to a criminal case, not yet tried, and the hearing was pursuant to certain provisions of the Code of Criminal Procedure and related to the question of bail. While true, we cannot agree that these factors alone give this court jurisdiction.

Article 47.02, Vernon’s Ann.C.C.P., is part of the Code of Criminal Procedure. It provides in part that “[ujpon the trial of any criminal action for theft, or for any other illegal acquisition of property which is by law a penal offense, the court trying the case shall order the property to be restored to the person appearing by the proof to be the owner of the same.” In Bretz v. State, 508 S.W.2d 97 (Tex.Cr.App.1974), the defendant was tried and acquitted of receiving and concealing stolen property. Following the trial, the trial court ordered the property in question be returned to the complaining witness rather than the defendant. The defendant attempted to appeal from such ruling. Although the matter was governed by the Code of Criminal Procedure and was incident to the criminal case, this court held it was without jurisdiction and the appeal was dismissed.

Swanson v. State, 169 Tex.Cr.R. 390, 334 S.W.2d 179 (1960), presented an interesting question. Swanson was the defendant in two criminal cases. When he failed to appear, judgments nisi were entered and subsequently the judgments were made final. There were no appeals. Some years later, the sureties brought suit against the sheriff, district attorney and district clerk of Dallas County to have the judgments declared null and void. From an adverse ruling in the trial court an appeal was pursued in the Court of Criminal Appeals where the court held that the suit was an injunction suit which was a suit in equity or bill of review, not a criminal case over which the court had jurisdiction, it being noted the jurisdiction of this court in bond forfeiture cases is restricted by statutes to appeals and writs of error from final judgments in bond forfeiture cases.

It has long been established that if the matter sought to be appealed is civil rather than criminal the Court of Criminal Appeals will not accept jurisdiction. See and cf. Millikin v. Jeffrey, 108 Tex.Cr.R. 84, 299 S.W. 435 (1927); Darnell v. State, 24 Tex.App. 6, 5 S.W. 522 (1887).

In the instant case the appellant gave notice of appeal to the El Paso Court of Civil Appeals, as well as to this court, and in his argument before this court stated that the appellants Odell and Thomas Walker had been forced to arrange for sureties for the new bond made by Zarate and were entitled to money damages.

“One seeking to invoke the jurisdiction of this Court must point to some constitutional or statutory provisions conferring such right and bring himself within the procedure prescribed. See Ex parte Minor, 115 Tex.Cr.R. 634, 27 S.W.2d 805. This the relator has not done.” Bradley v. Miller, 458 S.W.2d 673 (Tex.Cr.App.1970).

Thus, we conclude that this court does not have the authority to entertain this appeal. The appeal is dismissed.

      . There is nothing in the record to support this assertion.


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Ex parte Rhonda Carol CLARK.
    No. 52423.
    Court of Criminal Appeals of Texas.
    May 26, 1976.

      Clark & Vannatta, Waco, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order entered in a habeas corpus proceeding in the 54th Judicial District Court reducing bail from $50,000 to $40,000 in each case, both of which involved a charge of burglary of a habitation, a first degree felony.

It appears the $50,000 bail set in each case was by the Justice of the Peace before whom the appellant was charged.

At the habeas corpus hearing it was established that as a result of the execution of a search warrant at the house where the 19 year old appellant lived with her parents items taken in the two burglaries were recovered. While all items taken in one burglary were not recovered, it was estimated that $75,000 worth of items had been taken in that burglary.

Appellant’s 44 year old father testified that he had lived in Waco for ten years and was a history teacher in a junior high school and that his income was about $13,500 a year; that his wife also worked for the Waco school making about $600 a month; that his take-home pay was about $340 each two weeks and that his wife’s take-home pay was “about two forty.” He related the appellant was not employed and was going to school at T.S.T.I. taking Dental Lab Technology; that she was single, living at home and that she had no money of her own but was supported by her parents.

He further testified that he had checked with a bondsman and there was no way he could make bonds totalling $100,000, which would require a bond fee of 15% of the amount of bail; that he had checked with the attorneys handling the case and they were unable to make her bail; that he had $500 to $750 with which to make bail for his daughter, and that he thus could make bail in the amount of $2,500 in each case.

He admitted that he knew the appellant was presently on misdemeanor probation, but that if she was released on reasonable bail he and his wife would see she was present for trial.

At the conclusion of the hearing the court reduced bail in each case from $50,000 to $40,000. This appeal results.

Article 17.15, Vernon’s Ann.C.C.P., provides:

“The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules:
“1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
“2. The power to require bail is not to be so used as to make it an instrument of oppression.
“3. The nature of the offense and the circumstances under which it was committed are to be considered.
“4. The ability to make bail is to be regarded, and proof may be taken upon this point.”

The burden of proof in the habeas corpus hearing was upon the appellant. See Holliman v. State, 485 S.W.2d 912 (Tex.Cr.App.1972).

Here it was shown that appellant was a student, unemployed and being supported by her parents. It is well established that the ability or inability of an accused to make bail does not, alone, control in determining the amount of bail. Ex parte Davis, 159 Tex.Cr.R. 49, 261 S.W.2d 323 (1953); Ex parte Nectoux, 455 S.W.2d 249 (Tex.Cr.App.1970); Ex parte Roberts, 468 S.W.2d 410 (Tex.Cr.App.1971); Ex parte Williams, 467 S.W.2d 433 (Tex.Cr.App.1971); Holliman v. State, supra. It was shown that her father could make $2,500 bond in each case. And while this is not controlling, it is a factor to be considered.

The nature of the offense and the circumstances under which it was committed are to be considered, and this necessarily involves the punishment permitted by law. Ex parte Cascio, 140 Tex.Cr.R. 288, 144 S.W.2d 886 (Tex.Cr.App.1940); Ex parte Roberts, supra; Holliman v. State, supra. The evidence reflects that both offenses involved a burglary of a habitation in which rings, watches, and other jewelry were taken, and it is recognized that punishment for a first degree felony is life, or a term of not more than 99 years or less than five years. See V.T.C.A., Penal Code, Sec. 12.32.

While bail should be sufficiently high to give reasonable assurance that the undertaking will be complied with, the power to require bail is not to be so used as to make it an instrument of oppression.

Taking into consideration all of the foregoing, we find the bail set was excessive and we reduce the bail to $10,000 in each case.

It is so ordered.

      . The reduction of bail does not call for the appellant to make another showing she is unable to make a bond in that amount before pursuing this appeal. Ex parte Skinner, 496 S.W.2d 633 (Tex.Cr.App.1973).


author: JAMES, Justice.

text:
    Mary J. KIRBY and Henry J. Kirby, Petitioners, v. Hon. David D. JACKSON, Judge of Probate Court No. 2 of Dallas County, Texas, Respondent.
    No. 5548.
    Court of Civil Appeals of Texas, Waco.
    Feb. 5, 1976.
    Townsend & Townsend, J. N. Townsend, Jr., Dallas, for petitioners.
    Saner, Jack, Sallinger & Nichols, Louis Nichols, David D. Jackson, Judge, Dallas, for respondent.
   OPINION

JAMES, Justice.

This is an original proceeding, a petition for writ of prohibition against the Judge of Probate Court No. 2 of Dallas County, Texas. We deny the petition.

Petitioners Mary J. Kirby and Henry J. Kirby are the sole and only heirs of Robert Wilson Kirby, Deceased. On March 26, 1973, Edward B. Stanley filed an application to probate an instrument asserted to be the will of Robert Wilson Kirby, Deceased, alleging that in said instrument the decedent Kirby appointed Stanley as Independent Executor without bond. Stanley sought probate of the instrument and letters testamentary. The said Mary J. Kirby and Henry J. Kirby, Petitioners in the case at bar, contested Stanley’s application on the grounds that the instrument was not a will, and that Stanley was not entitled to letters testamentary or of administration therein.

The matter was tried in Probate Court No. 2 of Dallas County, Texas, Respondent in the case at bar, which court ordered probate of the instrument as the will of deceased Kirby, and granted letters of administration to Stanley as “Administrator with the Will annexed.”

Thereafter, Petitioners Mary J. Kirby and Henry J. Kirby appealed from the Probate Court’s order probating the instrument and appointing Stanley administrator, to the 191st District Court of Dallas County, Texas, which last-named court affirmed the probate court; whereupon Petitioners Kirby appealed to the Court of Civil Appeals.

The cause was heard by this Court, the Tenth Court of Civil Appeals sitting at Waco, Texas, upon its having been transferred from the Fifth Court of Civil Appeals, sitting at Dallas, Texas, by the Supreme Court of Texas. Whereupon, this Court on October 31, 1974, rendered judgment reversing said District Court and Respondent Probate Court No. 2, thereby denying probate of the instrument in question, dismissing Stanley as administrator, and taxing costs against Stanley. For the opinion in said cause, see In re Estate of Robert Wilson Kirby, Deceased, (Waco, Tex.Civ.App., CA 1974) 516 S.W.2d 284, error refused NRE. Said opinion contains the following language:

“The judgment is reversed; judgment is here rendered denying probate of the instrument and dismissing Stanley as Administrator; and the trial court is ordered to certify the foregoing to Probate Court No. 2 of Dallas County.
“Reversed and rendered.”

As stated above, the Supreme Court of Texas thereafter refused a writ of error, “No Reversible Error”, and the decree of the Court of Civil Appeals became final. Thereafter, the decree was certified by the 191st District Court of Dallas County, Texas, to Probate Court No. 2 of Dallas County, Texas, for observance.

Subsequently, on July 31, 1975, Stanley filed in Respondent Probate Court No. 2 of Dallas County, his “Application for Attorney’s Fees” for the allowance from the Estate of Robert Wilson Kirby, Deceased, for asserted reasonable attorney’s fees in the amount of $4500.00 for legal services allegedly rendered in behalf of said estate.

On August 8, 1975, Petitioners Kirby filed an answer contesting the allowance of such attorney’s fees as well as a Motion for Summary Judgment asking said court to strike said claim from the court’s docket.

On October 15, 1975, Stanley filed his “Amended Application for Attorney’s Fees” specifically seeking recovery under Section 243 of the Texas Probate Code, and alternatively praying for recovery of attorney’s fees under Section 242 of the Texas Probate Code.

On October 21, 1975, Respondent Probate Court ruled upon Petitioner’s Motion for Summary Judgment by sustaining Petitioner’s Motion as to the request for attorney’s fees under Section 243 and overruling (denying) said motion as to the request for attorney’s fees under Section 242. No appeal was prosecuted by Stanley from Respondent Probate Court’s order sustaining the above-mentioned portion of the summary judgment.

The record shows a letter from Respondent Probate Court to the attorneys for Stanley and Petitioners Kirby stating: “Counsel for Mr. Edward Buck Stanley may seek a setting for proof of attorney’s fees necessarily incurred in connection with the proceedings and management of the estate.” In other words, Respondent Probate Court by its summary judgment and its letter has indicated an intention to allow a hearing to be had to hear proof of attorney’s fees in connection with the proceedings and management of the estate under the provisions of Section 242 of the Texas Probate Code. It is at this juncture that Petitioners Kirby filed this original proceeding in the Tenth Court of Civil Appeals for a writ of prohibition against Respondent Probate Court No. 2 of Dallas County, Texas, to prohibit and enjoin said Probate Court from “further continuing to litigate the claims of Stanley in this matter_”

We cannot grant the relief sought by Petitioners. The writ of prohibition is an extraordinary remedy which is only granted in extreme cases of necessity and not for grievances which may be redressed in ordinary proceedings at law. Stone v. Kuteman (Amarillo, Tex.Civ.App., CA 1941) 150 S.W.2d 107, no writ; Boothe v. Nelson (Amarillo, Tex.Civ.App., CA 1959) 321 S.W.2d 321, no writ; Burch v. Johnson (El Paso, Tex.Civ.App., CA 1969) 445 S.W.2d 631, no writ; Hebert v. Probate Court No. 1 of Harris County (Houston 14th Tex.Civ.App., CA 1971) 466 S.W.2d 849, no writ. Also see 46 T.J.2d, “Prohibition”, Section 5, page 448.

Here, Petitioners have complete and adequate relief by way of appeal from an adverse order of Respondent Court (which has not been made as yet) under Section 312(e) of the Texas Probate Code.

It has been held that an appeal is the exclusive remedy to contest an order of the probate court in allowing payment of claims against an estate. Usher v. Wendell (Corpus Christi, Tex.Civ.App., CA 1968) 430 S.W.2d 684, NRE. Also see Dallas Joint Stock Land Bank of Dallas v. Forsyth (Comm.App.1937), 130 Tex. 563, 109 S.W.2d 1046, opinion adopted by our Supreme Court.

The writ of prohibition is denied.

WRIT DENIED.


author: CIRE, Justice.

text:
    CLEAR LAKE APARTMENTS, INC., Appellant and Cross-Appellee, v. CLEAR LAKE UTILITIES CO. et al., Appellees and Cross-Appellant.
    No. 1325.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 17, 1976.
    Rehearing Granted in Part and Denied in Part April 14, 1976.
    Second Rehearing Denied May 5, 1976.

      Eugene J. Pitman, DeLange, Hudspeth, Pitman & Katz, Houston, for appellant and cross-appellee.
    Louis B. Paine, Jr., Hayden Burns, Butler, Binion, Rice, Cook & Knapp, Jerry L. Bryan, Houston, for appellee and cross-appellant Clear Lake Utilities Co.
    Charles A. Easterling, City Atty., Houston, for appellee.
    Raybourne Thompson, Jr., W. Allyn Hoag-lund, Vinson, Elkins, Searls, Connally & Smith, Houston, for appellee Clear Lake City Water Authority.
   CIRE, Justice.

Clear Lake Utilities Company (Utilities) sought a declaratory judgment to determine the status and validity of two contracts — one between Utilities and North Clear Lake Development Corporation (NCL), the predecessor in title of property now owned by Clear Lake Apartments, Inc. (Apartments), and one between Utilities and Clear Lake City Water Authority (Authority).

The Contract Between Utilities & NCL

The contract between Utilities and NCL, dated November 21, 1967, provides that Utilities “shall have and is hereby granted the exclusive right to furnish water and sewer service” to approximately eight acres of land and to “all owners and occupants of any part thereof for and during the entire term of this contract.” As to its duration, the contract states, “the term of this agreement shall continue in effect and be irrevocable for the maximum period of time during which it may lawfully do so.” The property involved is now owned by Apartments. By a letter dated March 18, 1975, Apartments informed Utilities that it intended to terminate the contract made between Utilities and NCL, and to contract with the City of Pasadena for water and sewer service to the land owned by Apartments; whereupon Utilities instituted this suit.

Utilities contends that its contract with NCL constitutes a covenant running with the land, and as such is binding on NCL’s successor in title, Apartments. The contract provides that it

shall be binding upon and shall inure to the benefit of Company and Landowner and the respective heirs, legal representatives, successors and assigns of each of them, and shall constitute covenants running with Said Land and with Company’s water and sewer disposal system and properties. .

Apartments answered that: 1) the contract is invalid because it creates a constitutionally prohibited monopoly; 2) the contract does not constitute a covenant running with the land; 3) Apartments is entitled to protection as a purchaser from a bona fide purchaser without notice of the contract. The trial court found that the contract between NCL and Utilities was a covenant running with the land; that it was intended to remain in effect for a reasonable time; and that a reasonable time was to be five years from the date of judgment. Both Utilities and Apartments have appealed.

We hold that the November 21, 1967 contract between Utilities and NCL is not binding, as to its exclusive service provisions, on Apartments.

The contract between Utilities and NCL does not meet the requirements necessary to make it a covenant running with the land enforceable at law so as to bind NCL’s successors in title. Such a covenant must be made between parties who are in privity of estate at the time the covenant is made, and must be contained in a grant of the land or in a grant of some property interest in the land. Restatement of Property § 534 (1944); Panhandle & S. F. Ry. v. Wiggins, 161 S.W.2d 501 (Tex.Civ.App.-Amarillo 1942, writ ref’d); see Parks v. Hines, 68 S.W.2d 364, 367 (Tex.Civ.App.-El Paso 1934), aff’d, 128 Tex. 289, 96 S.W.2d 970 (1936); 20 Am.Jur.2d Covenants, Conditions and Restrictions §§ 33, 34 (1965); 21 C.J.S. Covenants §§ 58, 59 (1940). See also Clements v. Taylor, 184 S.W.2d 485, 487-88 (Tex.Civ.App.-Eastland 1944, no writ). Texas courts have held that irrigation contracts which create an easement in the property of the landowner, or in the real property (such as canals or levies) of the water supplier, transfer a sufficient interest in the land to create the necessary privity of estate. Beckham v. Ward County Irrigation District No. 1, 278 S.W. 316, 318 (Tex. Civ.App.-El Paso 1925, writ ref’d); Chapman v. American Rio Grande Land & Irrigation Co., 271 S.W. 392, 394 (Tex.Civ.App.-San Antonio 1925, writ ref’d); Ball v. Rio Grande Canal Co., 256 S.W. 678, 682 (Tex.Civ.App.-San Antonio 1923, writ ref’d). But the contract between Utilities and NCL did not create any privity of estate: it was not part of any transaction conveying the land involved, or any easement in it, between the parties. To the contrary, the contract specifically states that Utilities “agrees to construct and maintain reasonably adequate operative water and sewage trunklines and/or laterals to serve Said Land in existing easements adjoining Said Land.” The contract further provides that “[cjonstruction, installation, maintenance and operation of service lines on Said Land connecting to Company’s water and sewer trunklines or laterals adjacent thereto shall be at the cost and expense of Landowner”.

Utilities claims that even if the contract of November 21, 1967 does not constitute a covenant enforceable at law against NCL’s successors in title, it may be enforced in equity by virtue of the fact that Apartments had notice of its provisions at the time the property was conveyed to Apartments. The contract was recorded in the Harris County Deed Records on November 27, 1967; the property was conveyed by NCL to Pan, Inc. on December 29, 1967, and by Pan, Inc. to Apartment’s predecessor on December 20, 1968.

It is true, as Utilities contends, that a purchaser must take notice of all recorded instruments within his chain of title and affecting his title. We think the recording of the November 21, 1967 contract gave Apartments constructive notice of its contents. This is not sufficient, however, to create an equitable interest in the land in favor of Utilities and enforceable against Apartments to the extent that Apartments may be required to continue the exclusive franchise granted by NCL.

A promise enforceable in equity and thus creating an equitable interest in the land of the promissor (which here would be NCL) must be a promise respecting the use of the land of the promissor. Restatement of Property § 539 (1944); see Clements v. Taylor, 184 S.W.2d 485, 487 (Tex.Civ.App.-Eastland 1944, no writ). NCL’s promise to grant an exclusive franchise to Utilities neither created any easement in NCL’s property nor obligated NCL to use its property in any particular manner. There are numerous Texas cases in which subsequent grantees have been required, in equity, to perform promises made by their predecessors in title with respect to the use of or title to their property. Typical are the “restrictive covenant” or “negative easement” cases in which adjoining landowners make reciprocal promises respecting the use of their land. Such promises include those pertaining to such portions of the estate as water or mineral rights, as well as promises such as liens, which grant an equitable interest in the title itself. We have neither found, nor been cited, any case in which a promissor’s successor in title has been required to perform a promise which did not operate to create in the promisee an equitable right to have the land of the promissor put to a particular use.

In its brief Utilities states that “[i]t is clear from the terms of the contract that Utilities required, as a prerequisite for its construction of the water and sewer system, assurances that those to whom water and sewer services were furnished would continue to use them.” Such a promise by NCL could only be construed and enforced as a purely personal covenant that NCL would procure such assurances from subsequent grantees. E. g., Combs v. United Irrigation Co., 110 S.W.2d 1157, 1159 (Tex.Civ.App.-Dallas 1937, writ dism’d). It may not reasonably be interpreted to have placed a restriction on the use of the property.

The facts of the transaction reveal a further reason why Utilities may not claim equitable enforcement of the exclusive franchise granted in the November 21, 1967 contract. The record shows that Lester Tatum, president of Utilities, owned approximately 100 acres of property, of which that now owned by Apartments is a portion. Tatum sold various tracts out of this original 100 acres to corporations, including NCL, of which he was also the president. As president of all these corporations, Tatum executed contracts with Utilities, which contracts were substantially identical to that between Utilities and NCL. Tatum’s attempt, by contracting between his various corporations, to create a monopoly for Utilities may not be enforced in equitable proceedings.

Utilities argues that NCL has created “an exclusive right or privilege is granted only upon the property or premises of the grantor.” Airport Coach Service, Inc. v. City of Fort Worth, 518 S.W.2d 566, 572 (Tex.Civ.App.-Tyler 1974, writ ref’d n. r. e.). While this rule may have been applicable while the property was still owned by NCL, the right of NCL to make such a promise concerning the property ended when NCL conveyed the property. NCL could not by this contract reserve, grant or maintain any monopolistic powers over the sewer and water service beyond the period of its ownership. Riley v. Davidson, 196 S.W.2d 557, 560 (Tex.Civ.App.-Galveston 1946, writ ref’d n. r. e.).

The Contract Between Utilities and Authority

Utilities’ contract with Authority, dated July 11, 1966, provides in part that Utilities is to have “the exclusive right, as between the parties hereto, to furnish water and sanitary sewer service to parties within” a tract of land containing approximately 100 acres. The property owned by Apartments is a part of this tract. The contract is silent as to its duration.

On January 3, 1970 Authority entered into a “waste disposal” contract with the City of Pasadena concerning sewage service to part of the 100 acre tract, then located within the City of Pasadena, and which was included in the contract between Authority and Utilities. Utilities instituted this suit for a declaratory judgment that its contract with Authority, granting exclusive rights to Utilities to supply water and sewer service to the property, is a valid, subsisting contract and has been breached by Authority and the City of Pasadena. Authority answered by counterclaim, alleging that its contract with Utilities has been terminated and that it was void ab initio for various reasons. The trial court found that the contract was valid and was to remain in force for a reasonable time, determined to be five years from the date of judgment. Both Utilities and Authority have appealed.

Utilities contends that the absence of in-dispensible parties deprived the court of jurisdiction to enter judgment. We agree. The applicable portion of the Declaratory Judgments Act reads:

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.

Tex.Rev.Civ.Stat.Ann. art. 2524-1 § 11 (1943).

Utilities asserts that all landowners within the 100 acre tract covered by the July 11, 1966 contract are parties whose interest will be affected by this judgment and are therefore indispensible parties. These property owners receive water and sewer service from Utilities under contracts granting Utilities the exclusive right to provide such services. Each of these contracts is expressly made subject to the July 11, 1966 contract between Utilities and Authority. The record reflects that Utilities does not have sewage treatment facilities of its own and has forfeited its permit to construct and operate such a facility. Utilities is able to furnish sewer service to these customers only by virtue of its contract with Authority, whereby Authority provides the necessary sewage treatment. While the absent landowners are not parties to the July 11, 1966 contract, a declaratory judgment that this contract was void ab initio, or that it is no longer effective, would deprive Utilities of its capability to provide sewage treatment service to these customers. Since their contracts with Utilities prevent them from looking elsewhere for such service, the outcome of this litigation could completely deprive these parties of sewer service. This is an interest that will be directly affected by the judgment.

The Declaratory Judgments Act states that all persons having such an interest shall be made parties. The use of the term shall is obviously mandatory. Declaratory relief is a remedy provided only by statute; therefore, the plain meaning of the statute must control. The Act does not allow, as does Tex.R.Civ.P. 39, the trial court to render judgment absent parties who are not so indispensable as to deprive the court of jurisdiction as between the parties already joined. Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200 (Tex.Sup.1974); Crickmer v. King, 507 S.W.2d 314, 316-17 (Tex.Civ.App.-Texarkana 1974, no writ). Although this might be an onerous burden in some cases, we see no alternative for those who seek relief under the Declaratory Judgments Act but to join all those persons “who have or claim any interest which would be affected by the declaration.”

The further provision of the Act that “no declaration shall prejudice the rights of persons not [made] parties” can only mean that persons, who may or may not have been proper parties, but who did not at the time of the law suit have an interest which would have been affected by the judgment, are not bound by the judgment. Crickmer, 507 S.W.2d at 316. Thus, for example, the property owners, other than Apartments, in this 100 acre tract are not bound by our judgment concerning the contract between Utilities and NCL even though that contract is identical with Utilities’ contracts with the other landowners. The other landowners might properly have been joined in that suit, but since they had no interest affected by a judgment concerning that contract, they were not parties required to have been joined. Likewise, their lack of joinder prevents them from being bound by that judgment.

We find that by virtue of the particular nature of Utilities’ contract with Water Authority, and of the absent landowners’ contracts with Utilities, the landowners have an interest which will be affected by the outcome of this suit. Under the mandatory provisions of the Declaratory Judgments Act the trial court’s failure to join them deprived it of jurisdiction to render judgment.

The judgment of the trial court is reversed. The portion of the suit between Clear Lake Apartments, Inc. and Clear Lake Utilities Co. is severed, and judgment is here rendered that the November 21, 1967 contract granting Utilities the exclusive right to furnish water and sewer service to property owned by North Clear Lake Development Corporation did not create any obligation now binding upon Clear Lake Apartments, Inc. The remaining lawsuit between Clear Lake Utilities Co. and Clear Lake City Water Authority and the City of Pasadena is remanded to the trial court with instructions that if the indis-pensible parties are not joined within a reasonable time, the action is to be dismissed.

Reversed and rendered in part; reversed and remanded in part.

ON MOTION FOR REHEARING

In our original opinion we inadvertently overlooked that portion of Utilities’ ease against Authority and the City of Pasadena concerning conspiracy on the part of those two defendants to interfere with the July 11, 1966 contract between Utilities and Authority. Pasadena’s and Authority’s motions for rehearing are granted to correct this oversight.

In its first supplemental amended petition Utilities alleged

[tjhat the City of Pasadena wilfully and maliciously conspired with Clear Lake City Water Authority to deprive Plaintiff of the benefits of the above-described contract [July 11, 1966] by persuading Clear Lake City Water Authority to breach the contract; and that during the months preceding the making of the contracts between Clear Lake City Water Authority and the City of Pasadena [January 3,1972] those two defendant parties had various conferences in which they conspired to have Clear Lake City Water Authority breach its contract with Plaintiff. . . .

Utilities prayed for actual and exemplary damages on this cause of action.

This portion of the suit being separate and severable from the suit for declaratory judgment, it is governed by Rule 39 of the Texas Rules of Civil Procedure, and the trial court did have jurisdiction to render judgment.

In its findings of fact and conclusions of law the trial court held:

12. That there has been no unlawful interference with any contractual relationship that may exist between Clear Lake Apartments, Inc., Clear Lake Utilities Co., and Clear Lake City Water Authority by reason of the contract between the City of Pasadena and Clear Lake City Water Authority dated January 3, 1972.
16. That Clear Lake Utilities Co. is entitled to no money damages, either actual or punitive, from Clear Lake City Water Authority or the City of Pasadena.

By these findings the trial court held that Utilities had failed to establish by a preponderance of the evidence that there had been any unlawful interference. Without determining the validity of the July, 1966, contract, we affirm that ruling. Utilities may not maintain a cause of action for conspiracy to interfere with its contractual rights unless there has actually been a breach of contract. Kingsbery v. Phillips Petroleum Co., 315 S.W.2d 561, 576 (Tex.Civ.App.-Austin 1958, writ ref’d n. r. e.).

The contract between Utilities and Authority provides that, as between Utilities and Authority, Utilities shall have the exclusive right to furnish water and sewer service to the parties within the 100-acre tract involved. It does not attempt to govern, as between the City of Pasadena and Utilities, who shall provide such service; nor does it attempt to govern services provided by Authority to the City of Pasadena. The contract between Pasadena and Authority states only that Authority will provide services to the City of Pasadena; Authority’s customer under that contract is not “the parties within said tract”, but is the City of Pasadena. Arrangements between the City of Pasadena and the parties within the 100-acre tract are not governed by either of these contracts. The January 3,1972 contract cannot therefore be held, as a matter of law, to be in violation of the July 11,1966 contract and has not necessarily brought about any breach of that agreement.

Utilities’ cause of action against Authority and the City of Pasadena for conspiracy and tortious interference with its contractual relations is severed, and the judgment of the trial court as to that cause of action is affirmed. The holdings in our previous opinion remain undisturbed. The judgment of the trial court in the portion of the suit for declaratory judgment between Clear Lake Utilities, Co. and Clear Lake Apartments, Inc. is reversed, and judgment is here rendered that the November 21, 1967 contract granting Utilities the exclusive right to furnish water and sewer service to the property owned by North Clear Lake Development Corporation did not create any obligation now binding on Clear Lake Apartments, Inc. The portion of the suit between Clear Lake Utilities Co. and Clear Lake City Water Authority for a declaratory judgment to interpret and determine the validity of the July 11, 1966 contract between those parties is reversed and remanded, with instructions that if the indispensable parties are not joined within a reasonable time, that suit is to be dismissed.

Affirmed in part; reversed and rendered in part; reversed and remanded in part.