text:
    A. J. BERGERON, Independent Executor of the Estate of Robert L. Roberts, Deceased, Appellant, v. W. R. SESSION, Receiver of the Robert L. Roberts Receivership, Appellee.
    No. 21756.
    Court of Civil Appeals of Texas, Dallas.
    June 28, 1977.

      Paul J. Chitwood, Chitwood, Riley & Snider, Inc., Dallas, for appellant.
    W. R. Sessions, Sessions & Sessions, Dallas, for appellee.
   GUITTARD, Chief Justice.

In this receivership proceeding an appeal has been perfected from an order allowing fees to the receiver and accountant. Our clerk has noted receipt of the record, but has declined to accept it for filing pending a determination of finality of the order. The appellant has moved for leave to file the appeal, and because of the importance of the question we requested briefs and oral argument. After consideration, we hold that the order is final for the purpose of appeal, and, accordingly, we direct the clerk to accept the record for filing.

The receiver was appointed in 1971 to take possession and control of the property of Robert Lee Roberts, who had mysteriously disappeared, leaving a large estate. The receiver proceeded to collect the assets and reinvest them, pay taxes and other expenses, and make reports to the court. From time to time he was allowed to pay himself advances on his fee. Meanwhile, the probate court declared Roberts to be dead, admitted his will to probate, and granted letters testamentary to the executor named in the will. In February 1977 the receiver filed a motion in the receivership proceeding alleging that the affairs of the estate could be adequately handled by the executor. The motion prayed for the allowance of reasonable fees for the receiver and his accountant and for “appropriate orders for the payment of fees and disposition of the assets in the receivership and in the registry of the court.” In response to this motion the court held a hearing and rendered the order now in question. The order recites that expert testimony on the amount of the fees was heard and that a reasonable fee for the services of the receiver to the date of the order was $150,000, of which he had already received $42,000, leaving a balance of $108,000. Likewise, the court found that a reasonable fee for the accountant was $75,000, of which $31,000 had been paid, leaving a balance of $44,000. The order directs the clerk to pay these balances immediately to the receiver and the accountant out of the funds in the registry of the court. The order does not terminate the receivership or settle the receiver’s account. From this order the executor brings this appeal. The receiver takes the position that the order is interlocutory because it is not a final order in the receivership case.

We conclude that the order is final and appealable with respect to the fees for services to the date of the order, even though no order finally terminating the receivership and directing disposition of its assets has been rendered. We recognize the general rule that to be appealable a judgment must not only be final in its terms with respect to the issues decided, but must also dispose of all parties and issues, leaving nothing for further decision except as necessary for carrying the decree into effect. Hargrove v. Insurance Investment Corp., 142 Tex. 111, 176 S.W.2d 744 (1944); Linn v. Arambould, 55 Tex. 611, 618, 625 (1881). This rule was long embodied in a statute, now carried forward in rule 301 of the Texas Rules of Civil Procedure, providing: “Only one final judgment shall be rendered in any cause except where it is otherwise specially provided by law.” We have traced this rule back as far as Texas Revised Civil Statutes article 1337 (1879).

The “one final judgment” rule, however, has not been applied rigidly. Some of the opinions in this area have not even discussed it. In McCreary v. Robinson, 92 Tex. 408, 49 S.W. 212, 215 (1899), the supreme court had before it a suit to establish plaintiff’s rights to support and maintenance out of certain property under the terms of a will. The trial court ordered the defendants to pay to the plaintiff a monthly sum for his maintenance and support during the pendency of the suit. The supreme court held this order to be appealable although it did not finally dispose of the suit. The McCreary decision was followed in Kansas City Southern Railway v. Mauriceville Independent School District, 383 S.W.2d 861, 863 (Tex.Civ.App.—Texarkana 1964, no writ), a tax suit, in which the railway company had paid into court the amount it conceded to be due, and the court ordered that amount paid out to the school district without prejudice to the rights and contentions of the parties. This order was held to be final and appealable.

In Whatley v. King, 151 Tex. 220, 249 S.W.2d 57 (1952), a suit for specific performance of a contract for sale of a ranch and certain personal property, the supreme court held appealable an order requiring the plaintiff to return to the defendant personal property seized under a writ of sequestration and replevied by plaintiff. The court said that the order was in effect a mandatory injunction and added that it “contained] all the elements of finality so far as petitioner [plaintiff] is concerned.” The opinion does not mention the “one final judgment” rule.

Several Texas decisions dealing with re-ceiverships support the executor’s contention that an intermediate order of the present sort is appealable. In Renn v. Samos, 42 Tex. 104, 109 (1875), the supreme court held that an order passing on a receiver’s final account and requiring him to pay a certain sum over to plaintiffs was final and appealable, although it did not dispose of the litigation between the plaintiffs and the defendants. Likewise, in Looney v. Doss, 189 S.W.2d 207, 211 (Tex.Civ.App.—Fort Worth 1945, no writ), an order overruling a motion to terminate a receivership was held to be appealable. More nearly in point here is Malone v. Johnson, 45 Tex.Civ.App. 604, 101 S.W. 503, 505 (Dallas 1907, no writ), in which the receiver of a savings association was ordered to pay out to creditors certain funds in his hands. No appeal was taken from this order, but a later motion was filed to set it aside, alleging it to be interlocutory. The court held that the order was final, even though the suit was retained on the docket for the purpose of winding up the business of the receivership. Recognizing the “one final judgment” rule, and also the rule that no judgment can be final until all the issues are disposed of, the court held nevertheless that the order in question was final. Other decisions holding similar orders appealable, though not finally disposing of the litigation, include the following: Gardner v. Gardner Park Amusement Co., 119 S.W.2d 1064, 1065 (Tex.Civ.App.—Dallas 1938, no writ) (order in receivership proceeding subordinating bondholder’s claim to claims of other bondholders); Ferguson v. Ferguson, 84 S.W.2d 836, 840 (Tex.Civ.App. — Eastland 1935, writ dism’d w.o.j.) (order requiring receiver to deliver certain cotton and other property to a party); and cf. Keystone Pipe & Supply Co. v. Liberty Refining Co., 260 S.W. 1018, 1022 (Tex.Com.App.1924, jdgmt adopted) (order approving master’s report and determining priority of liens).

In State v. Starley, 413 S.W.2d 451, 464 (Tex.Civ.App.—Corpus Christi 1967, no writ), an elaborate decree determining the rights to water from the Rio Grande was held to be final notwithstanding an “open end” provision to the effect that the court retained jurisdiction to “enlarge or abrogate or modify from time to time any portion or feature of this decree.” The court discussed the “one final judgment” rule and observed that it has some exceptions, including “the case of receiverships . where the court must enforce its decree.”

The only receivership case cited by the receiver here in support of his contention that the present order is interlocutory in St. Louis Union Trust Co. v. Texas Southern Railway, 59 Tex.Civ.App. 157, 126 S.W. 296, 305 (Texarkana 1910, error refused), in which an order for payment of monthly salaries to the receiver and his attorney was held not to be a final judgment, but to be subject to revision and modification on final disposition of the receivership. This decision seems to turn not on the “one final judgment” rule, but rather on whether the earlier order was intended to determine the full compensation for all the services performed by the receiver and the attorney. The court concluded that it was not so intended. The present order is different' since, in our view, it cannot reasonably be interpreted as indicating an intention that it should be subject to revision and modification. On the contrary, it determines the amount of compensation to the receiver and attorney for all their services to the date of the order and credits against the fees allowed all amounts previously received for these services.

All the authorities cited to us are consistent with the existence of an exception to the “one final judgment” rule, although the scope of the exception has not been defined. The federal courts have been criticized for making that exception too broad and too vague, thus weakening the general policy of the law to require a final judgment and the development of a complete record for appellate review without the disruption, harassment, and expense of interlocutory appeals. Frank, “Requiem for the Final Judgment Rule,” 45 Tex.L. Rev. 292, 317 (1966). We agree that the exception should be narrow, but conclude that the present case falls within it. A receivership is not like an ordinary lawsuit in which the issues may be drawn by the pleadings as soon as discovery is complete, and then promptly tried to a final judgment, which may then be enforced by execution. It is frequently an ongoing proceeding in which the rights of various parties are determined by orders of the court from time to time, and it is not finally terminated until all of the assets in the hands of the receiver are applied to payment of claims or delivered to the parties determined by the court to be entitled. It would be intolerable for all payments and deliveries of property to the receiver and by the receiver, as ordered by the court from time to time, to remain tentative and subject to final adjudication on settling the receiver’s final account. It would also be intolerable if such intermediate orders should be considered conclusive and not subject to review until termination of the receivership. In this kind of proceeding, the policy behind the “one final judgment” rule does not apply.

The administration of a receivership is in many ways analogous to the administration of a decedent’s estate. In such proceedings, the “one final judgment” rule has never been applied, probably because of a statute, now repealed, giving the right of appeal to “[a]ny person who may consider himself aggrieved by any decision, order, decree, or judgment of the county court.” Tex.Rev.Civ.Stat. art. 3631 (1925). Under that statute the courts held that only final orders could be appealed, but that an order need not dispose of the entire proceeding if it disposes of the main controverted issue concerning which that part of the proceeding was brought. Stevens v. Douglass, 505 S.W.2d 532 (Tex.1974); Kelley v. Barnhill, 144 Tex. 14, 188 S.W.2d 385 (1945). The same test has been applied under the present Probate Code, which merely provides, “All final orders of any court exercising original probate jurisdiction shall be appealable.” Tex.Prob.Code Ann. § 5(e); Cherry v. Reed, 512 S.W.2d 705, 706 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n.r.e.). We conclude that the same rule applies to receivership proceedings under the authorities above discussed. Accordingly, we hold that the present order is appealable because it finally disposes of the main controverted issue concerning which the present proceeding was brought, namely, the amount of the fees to be awarded to the receiver and accountant for their services to the date of the order.

Accordingly, the clerk is directed to accept the record for filing as of the date of receipt. The time for filing briefs will begin from the date of this opinion.

      . The soundness of this decision may be questioned insofar as it relies for authority on cases from other states holding that orders for temporary alimony in divorce proceedings are final and appealable. Later decisions of the Texas courts of civil appeals have not regarded such orders as appealable. Witt v. Witt, 205 S.W.2d 612 (Tex.Civ.App.—Fort Worth 1947, no writ).

      . Whatley was interpreted in Pilot Engineering Co. v. Robinson, 470 S.W.2d 311 (Tex.Civ.App.—Waco 1971, no writ), as decided on the ground that the order in question was a “temporary mandatory injunction,” which would be appealable under Tex.Rev.Civ.Stat.Ann. art. 4662 (Vernon 1952), but this interpretation is difficult to maintain in view of the language concerning “finality” in the Whatley opinion.

      . We have been unable to determine whether the “one final judgment” statute was in effect at the time Renn was decided. However, Renn was cited with approval in Keystone Pipe & Supply Co. v. Liberty Refining Co., 260 S.W. 1018, 1020 (Tex.Com.App.1924, jdgmt adopted) without any comment concerning a change in the statute.


source: Caselaw Access Project

author: NYE, Chief Justice.

license: Public Domain

text:
    In re Martin A. JOHNSON, Official Court Reporter.
    No. 1132.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 30, 1977.
    Rehearing Denied Aug. 31, 1977.

      Bruce D. Viles, Wood, Burney, Nesbitt & Ryan, Corpus Christi, for appellant.
    David M. Kendall, Jr., First Asst. Atty. Gen., Austin, Mark H. Giles, Stone, Berry-man & Giles, Corpus Christi, James M. Whitten, Sinton, for appellee.
   OPINION

NYE, Chief Justice.

This is a suit to determine the constitutionality of Article 2324 and/or the reasonableness of a court reporter’s fee for preparing a statement of facts. The City of In-gleside as appellant objected to the charges made by the court reporter (pursuant to Article 2324). A hearing was then requested by the court reporter, Martin A. Johnson, who sought to have the trial judge approve his fee as being reasonable. The City answered claiming the statute was unconstitutional and in any event, the fee charged was unreasonable. From an order by the trial judge approving the court reporter’s fee, the City has perfected its appeal to this Court.

This suit represents the third appeal to come before this Court arising out of a single non-jury trial held before the Judge of the 156th District Court. The original case styled The City of Ingleside v. T. R. Stewart, d/b/a L & S Air Conditioning Company, Inc., was given our Cause Number 1111. The original case was an appeal by the City from a judgment of the trial court. This original case has heretofore been decided by this Court adversely to the City. The motion for rehearing in this original cause was overruled this day with written opinion (Reference is here made to our opinion on rehearing in Cause No. 1111 concerning the costs). Docket No. 1111 (Tex.Civ.App.—Corpus Christi March 31, 1977 not yet reported). Prior to the time that Cause Number 1111 was submitted, the City brought an original mandamus proceeding in this Court to require the official court reporter for the 156th Judicial District Court, to deliver the statement of facts in Cause Number 1111 to this Court. The court reporter refused to deliver the statement of facts until his fee for preparing the statement of facts had been paid in full and in advance. By writ of mandamus, this Court ordered the court reporter to deliver the statement of facts in controversy to us. See City of Ingleside v. Johnson, 537 S.W.2d 145 (Tex.Civ.App.—Corpus Christi 1976, no writ).

This particular appeal arose following the hearing before the trial judge to determine the reasonableness of the court reporter’s fee. The City had, by written notice, objected to the amount of the court reporter’s fee. The court reporter requested that the trial court approve his fee. A hearing was set for May 4, 1976 pursuant to Article 2324. The City filed an answer, a plea in abatement and a motion for continuance. The latter two were denied. A full hearing was then held in which the trial court heard evidence. At the conclusion of the hearing, without ever viewing the statement of facts in question, the trial court approved the court reporter’s fee of $1,991.00.

The City in its points of error 1-13 contends that the trial court erred in not finding that Art. 2324, Tex.Rev.Civ.Stat.Ann. (Supp.1976), was unconstitutional. We believe that there are four basic contentions under these points that merit our consideration and discussion. The City’s first contention is that the statute is unconstitutional because it is an unlawful delegation to the judiciary of an exclusive legislative power to prescribe the fees, duties and compensation of public officials in violation of the Tex.Const. Art. II, §§ 1, 13, 19, Art. III, § 44. A second constitutional argument that is advanced is that the statute improperly delegates to the judiciary the exclusive legislative function of providing for the duties and fees of court reporters without providing for therein, legally sufficient standards or guidelines concerning said duties and fees. The City’s third contention is that the statute violates both the Tex. Const. Art. Ill, §§ 35 and 56 and U.S.Const. Amend. XIV, because the statute is a special law incapable of uniform application throughout the State of Texas. The fourth constitutional argument is that the statute constitutes a legislative attempt to increase the jurisdiction of the Texas Supreme Court without so specifically stating in contravention of the Tex.Const. Art. Ill, § 35 and that such delegation of authority prevents a trial court from ruling on the reasonableness of the court reporter’s fees before the Supreme Court actually exercises such power.

Whenever an attack on the constitutionality of a statute is presented for determination, we start with the presumption that such statute is valid and that the legislature has not acted unreasonably or arbitrarily in enacting the statute. Texas State Board of Public Accountancy v. Fulcher, 515 S.W.2d 950 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n.r.e.); Vernon v. State, 406 S.W.2d 236 (Tex.Civ.App.—Corpus Christi 1966, writ ref’d n.r.e.). The burden rests on the individual who challenges the act to establish its unconstitutionality. Robinson v. Hill, 507 S.W.2d 521 (Tex.Sup.1974); Smith v. Craddick, 471 S.W.2d 375 (Tex.Sup.1971); Texas State Board of Barber Examiners v. Beaumont Barber College, Inc., 454 S.W.2d 729 (Tex.Sup.1970). If a statute is capable of two constructions, one of which sustains its validity, the courts will give to it that interpretation which upholds the statute. State v. Shoppers World, Inc., 380 S.W.2d 107 (Tex.Sup.1964); Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968); Texas State Board of Public Accountancy v. Fulcher, supra.

The City’s first attack on Article 2324 is that the statute unlawfully delegates to the judiciary the exclusive legislative function of setting compensation for public utilities and officials. The pertinent sections of Article 2324 were amended by the 64th Legislature in 1975. Acts 1975, 64th Leg., p. 826, ch. 319. The section of the amended statute which the City now is attacking reads as follows:

“When any party to any suit reported by any such reporter shall desire a transcript of the evidence in said suit, said party may apply for same by written demand, and the reporter shall make up such transcript and shall receive as compensation therefor a reasonable amount, subject to the approval of the judge of the court if objection is made thereto, taking into consideration the difficulty and technicality of the material to be transcribed and the time within which the transcript is requested to be prepared. The original transcript fee charged shall pay for the original plus one copy of the transcript, and additional copies may be purchased for a fee per page not in excess of one-third (Vs) of the original cost per page. In addition such reporter may make a reasonable charge, subject to the approval of the trial court if objection shall be made thereto, for postage and/or express charges paid; photostating, blueprinting or other reproduction of exhibits; indexing; and preparation for filing and special binding of original exhibits. Provided further, that in case any such reporter shall charge in excess of the fees herein allowed by the judge, whether by accident or design, he shall, on demand filed with the court, make refund of the excess to the party to which it is due. Provided, however, that the Supreme Court of Texas under its rulemaking authority shall provide for the duties and fees of court reporters in all civil judicial proceedings, except as provided by law.” (emphasis added)

It is the City’s position that the language of Article 2324 which allows the court reporter to set his own rate of compensation subject to approval of the trial judge, allows the judiciary in effect to set compensation rates for officers of the court in violation of Art. II, § 1, and Art. Ill, § 44 of the Texas Constitution.

Art. II, § 1 of the Texas Constitution is the separation of powers clause which prohibits any of the three branches of government from exercising any power properly attached to the other branches of government. Art. Ill, § 44 specifically provides that the legislature shall provide by law for the compensation of all officers, not provided for elsewhere in the Constitution. Therefore, it is the City’s position that since Art. II, § 1 prohibits the judiciary from exercising any power expressly granted the legislature and since Art. Ill, § 44 expressly provides that the legislature shall set the compensation of officers, Article 2324 is therefore unconstitutional because it attempts to delegate to the judiciary an express power reserved exclusively to the legislature.

The first question which we must answer that necessarily arises from the City’s contention is what is the exact status of court reporter Martin A. Johnson?

Johnson is the official shorthand reporter for the 156th Judicial District of Texas. An official shorthand reporter is an official or officer of the State as that word is used in Art. III, § 44 of the Texas Constitution. See Butcher v. Tinkle, 183 S.W.2d 227 (Tex.Civ.App.—Beaumont 1944, writ ref’d w.o. m.); Dunn v. Allen, 63 S.W.2d 857 (Tex.Civ.App.—Dallas 1933, no writ). As an official court reporter, Johnson’s base salary was set by the legislature in 1971 at $9,600.00 per annum. Art. 2326j — 59, Tex.Rev.Civ. Stat.Ann. (Supp.1976). In addition, the legislature provided in 1972 that an official court reporter’s salary could be increased a maximum of 10% per annum. Art. 3912k, § 3(c), Tex.Rev.Civ.Stat.Ann. (Supp.1976). Based on these two statutes, according to the record, Johnson’s salary has increased the maximum the last four years, to $14,-056.36 per annum, an increase of 46% over the last five years. In addition, Johnson receives additional compensation for transcribing and preparing records under Article 2324.

It is well settled that the legislature may impose a function upon the courts that is clearly judicial in nature. Tex. Const. Art. II, § 1. However, by reason of the separation of powers doctrine, the legislature cannot impose a function upon the judiciary that is legislative in nature. State v. Southwestern Bell Telephone Company, 526 S.W.2d 526 (Tex.Sup.1975). It is equally well established that under its inherent legislative powers, the legislature may delegate to a subordinate body the duty to administer and enforce its legislative functions. However, in so doing, the legislature must insure that the statute delegating such power is clothed with definite guidelines. Wichita County v. Griffin, 284 S.W.2d 253 (Tex.Civ.App.—Fort Worth 1955, writ ref’d n.r.e.) (Court Reporter); Burkhart v. Brazos River Harbor Nav. Dist. of Brazoria County, 42 S.W.2d 96 (Tex.Civ.App.—Galveston 1931, no writ) (tax assessor).

So long then, as the statute is sufficiently complete to accomplish the regulation of the particular matters falling within the legislature’s jurisdiction, the matters of detail that are reasonably necessary for the ultimate application, operation, and enforcement of the law may be expressly delegated to the authority charged with administration of the statute. Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100 (Tex.Civ.App.—Amarillo 1971, writ ref’d n.r.e.). This rule is particularly applicable where the legislature itself cannot practically and efficiently exercise the power that is permissibly delegated. Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070 (1927); Commissioners Court of Lubbock County v. Martin, supra.

The test of the constitutionality of the delegation of power is whether the legislature has prescribed sufficient and adequate standards to guide the discretion conferred. Moody v. City of University Park, 278 S.W.2d 912 (Tex.Civ.App.—Dallas 1955, writ ref’d n.r.e.). The legislature delegated to the District Judges and County Commissioners’ Court the power to set a court reporter’s base salary. Article 2326j establishes a minimum base salary and Article 3912k established the maximum per annum raise. These statutes clearly set sufficient and adequate standards to guide the delegated authorities in setting the court reporter’s salaries. The constitutionality of these statutes is not here challenged.

However, these two particular statutes were not the only delegation of authority that was made by the legislature in reference to the salaries of court reporters. The remaining delegation of authority arose out of Article 2324 wherein the legislature attempted to delegate to the trial court the authority to set the amount a court reporter may charge for making up a transcript of the testimony preparatory to an appeal. The legislature did this by allowing the trial judge, in effect, to approve the court reporter’s fees where there was objection.

The question is whether or not the legislature has delegated its legislative function of setting compensation or has merely delegated the administrative act of carrying out the legislative rate setting functions. We answer these questions by holding that Article 2324 is unconstitutional in that it delegates to the judiciary the exclusive compensation setting function of the legislature in violation of Art. II, § 1 and Art. Ill, § 44 of the Texas Constitution.

. . One of the most important tests in determining whether a particular law is an invalid delegation of legislative power is found in its completeness as it appears when it leaves the hands of the legislature. The generally recognized principle is that a law must be so complete in all its terms and provisions when it leaves the legislative branch that nothing is left to the judgment of the recipient of the delegated power. The rights, duties, privileges, or obligations granted or imposed must be definitely fixed or determined, or the rules by which they are to be fixed and determined must be clearly and definitely established, when the act is passed. The law must be perfect, final, and decisive in all of its parts, and the discretion that is given must relate only to its execution. If the legislature has prescribed sufficient standards to guide the discretion conferred, the power is not legislative and the delegation is lawful.” 12 Tex.Jur.2d., Constitutional Law, Section 62.

In 16 C.J.S. Constitutional Law § 139, p. 635, it is stated:

“The legislature has no right to confer on the judiciary a power in terms so broad and meanings so vague that the application or nonapplication of the law depends wholly on the individual opinion and predilections of the trial judge.

There is no requirement that the legislature, in delegating its compensation setting powers, set exact maximum or minimum limits. Commissioners Court of Lubbock County v. Martin, supra. The delegation of authority must, however, prescribe sufficient standards to guide the discretion conferred. Moody v. City of University Park, supra. The delegating statute would be valid, even if setting general standards, if it spells out the limits of that discretion by the establishment of some standards capable of reasonable application. Moody v. City of University Park, supra. What the delegating statute must do is establish sufficient guidelines to prevent arbitrary and unequal application of the fees to be charged.

The guidelines or limitations set out in Article 2324 are:

“(a) . . . reasonable amount subject to the approval of the judge of the court if objection is made thereto, taking into consideration the difficulty and technicality of the material to be transcribed and the time within which the transcript is requested to be prepared.”

Based on the above test, the standards established in Article 2324 are entirely too subjective to prevent arbitrary and unequal fees from being charged. This article allows the court reporter and judge absolute discretion to set the rate charged subject only to the “difficulty and technicality of the material and the time within which the transcript is requested to be prepared.” To begin with, if no objection is made to the fee charged, a court reporter is, in effect, given legislative sanction to charge whatever he may feel the traffic will bear and as such is open to many and varied abuses. This charge could be based on any number of factors including the willingness or the ability of an appellant to pay. When objection to the fee is made, the only guideline given to the trial judge is that of “reasonableness.” “[The word] ‘reasonable’ has had many definitions by the courts and its meaning is shaded and varied by the context in which it is used, it is a relative term and the facts of a particular controversy could affect its meaning, frequently it is used to mean just, fair, honest or equitable.” Le Cuno Oil Company v. Smith, 306 S.W.2d 190 (Tex.Civ.App.—Texarkana 1957 writ ref’d n.r.e.) cert. denied 356 U.S. 974, 78 S.Ct. 1137, 2 L.Ed.2d 1147 (1958). One could say that the judiciary of this State is familiar with the term “reasonable” and is quite capable of applying the reasonable standard to a given fact situation. But this is not what was contemplated by the framers of our Constitution.

The subjective standards for determining the correct amount of the fee has no relationship to the actual costs incurred by a court reporter in preparing the record. The “time requirement” guidelines are far too indefinite. A diligent appellant could presumably obtain his record in a shorter period of time and at a correspondingly lower cost. A busy reporter could justify a higher fee 'than another court reporter that is not so busy. A court reporter’s liberal extensions of time to transcribe the record might come at a premium and ultimately determine the cost of the record. What relationship do the standards of difficulty and technicality have to the court reporter’s actual costs? In our opinion, very little, if any. What might be difficult and technical to an inexperienced court reporter may be a simple and routine matter for another. Where one court reporter might spend 50 hours and incur “X” amount of expense in preparing a transcript, another court reporter may well be able to prepare the same transcript in 10 hours and for “Y” amount. Rapid advancement in technology and the use of electronic equipment may become the deciding factor when it concerns “time”, “technicality” and “difficulty”.

In most instances the cost for preparing a transcript of the record varies from one court reporter to another based on the location of their courts, their particular expertise and experience, and the type of equipment they employ. The wide range of costs chargeable can be justified by the court reporter (where no objection is made) by the use of the present statute. However we do not view the purpose of the statute as one to accommodate only the court reporters. The purpose for such a statute is not only to provide uniform compensation to the court reporters across this State, but to assure litigants of the availability of a transcription of the record and to allow such litigants a uniform cost to proceed through the appellate process.

The current trend or recommended national standards for transcripts of records indicates the following: elite type should be used; that typing should include 12 letters per inch on 8V2" X 11" paper with 25 lines per page; a lVi" left margin and a V2" right margin; and that the type begin 1" from the top of the page. The standardized features also include no indentions for questions and answers or only a five space indention for questions and answers with no other indentions. Johnson’s record on the other hand, was typed on what is known as “expanded pica.” It contains only 9V2 letters per inch as opposed to the standard pica type of 12 letters per inch. This record also contains a left margin of inches and is centered in the page with Vi" margins top and bottom. It contains indentions of 14 spaces to indicate a new speaker. Based on the national standard, an average transcript should be able to contain a maximum of approximately 400 words per page on a full page. A full same size page of one of Mr. Johnson’s records can contain only a maximum of 262 words per page. Mr. Johnson’s record falls far below the national standards. In fact, the most complete page we could find in the transcript is on page 75 and it contains approximately 233 words while page 684, contains only 41 words.

The national trend is to fix court reporters’ rates on a per page basis and on a fixed average number of words per page. No such guideline is set in Article 2324. The statute simply fails to establish any objective basis for the trial judge to determine what would be a reasonable charge. We do not propose the guidelines herein mentioned since this is strictly a legislative power subject only to review by the judiciary. State v. Southwestern Bell Telephone Company, supra. What we are saying is that if the legislature is going to enact a statute which regulates the charges of court reporters and at the same time delegate away the duty of fixing that rate, they must establish some objective standards by which the cost can be determined. Absent such guidelines, the statute is unconstitutional.

The City’s next constitutional argument is that Article 2324 violates Art. Ill, §§ 35 and 56 of the Texas Constitution and the 14th Amendment to the U.S. Constitution because the article is a special law incapable of uniform application throughout the State. Art. Ill, § 56 of the Texas Constitution prohibits the Legislature from passing any local or special laws on certain enumerated subjects. Art. Ill, § 35 of the Texas Constitution provides that no bill shall contain more than one subject, which shall be expressed in its titles and if any subject that is embraced by the bill and such is not expressed in the title, the bill is void as to that subject. The scope of the 14th Amendment to the U.S. Constitution as it applies to due process need not be specified here.

It is the City’s argument that by failing to specify objective standards for the assessment of fees of official reporters, the statute is incapable of uniform application throughout the State. The City further argues that the statute could operate in such a way as to nullify the right of appellate review in some cases because it grants to the trial judges sufficient discretionary power to allow them to approve a court reporter’s fees in amounts so high that some litigants would be unable to appeal. The opposite could also be true if a trial judge would only approve a very small amount as “reasonable”, forcing a court reporter to do his outside work at a fee much lower than that being received by other court reporters in Texas.

There are two classes affected by Article 2324. These classes are official court reporters and the litigants who are required to pay a fee for the transcription of the testimony. Such as it is, Article 2324 operates at the outset (where no objection is raised), uniformly on all official court reporters. The same is not true, however, of the statute’s operation on the litigant who is seeking to obtain a transcript from the official court reporter. Under Article 2324, a litigant is subject to paying different amounts for the same transcription depending on the court and county involved. The reality of this possibility is demonstrated by the record now before us. Johnson testified that he charged $2.00 per page and $.50 to reproduce exhibits. The official court reporter for the 28th District Court testified that he charged $1.80 per page and $1.00 plus the cost of preparation for each exhibit. He volunteered that the official court reporter for the 117th District Court was charging approximately $1.60 per page. Presuming that each of these court reporters were charging a reasonable sum, the cost variance between the high and low would amount to a substantial amount of money on a large record. The official court reporter for the 28th District Court stated, in effect, that each reporter charged what he felt his work was worth. In another case now pending before this Court (in which we take judicial knowledge) an ap-pellee filed a motion for an additional cost bond because the original cost bond was insufficient to cover the court reporter’s fee. The court reporter’s affidavit attached to the motion, states that he first estimated that the cost to transcribe the particular record at $1200.00. After completion of the statement of facts the court reporter advised the appellant’s attorney that his fee was $1318.00 if payment was made then. The court reporter stated further that if payment was not made until after the outcome of the appeal, his fee would be $1757.00 for the same record. All of this demonstrates to us the availability of abuse under the present law because there is no uniform objective standard upon which the official court reporters are required to base their fees.

In his capacity as the “official” court reporter for the 156th Judicial District, Johnson, for all intents and purposes, enjoys a monopoly in Aransas, Bee, Live Oak, McMullen and San Patricio Counties with respect to anyone who may desire an official transcription of the testimony from his particular Court. Therefore, Johnson can in effect, be characterized as a business affecting the public interest. Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77 (1876) approved by our Supreme Court in State v. Southwestern Bell, supra:

“Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.”

Under this test, Johnson’s rate of compensation for transcribing the record is a form of “rate making” of fees or charges for a professional service. Under Article 2324, this “rate making” function was delegated, first to the court reporter himself, (an officer of the court) and second to the trial judge if objection was made; both of whom are clearly members of the judicial branch of the government. If this is rate making, then such function belonged exclusively to the legislature and was a power the judiciary could not exercise under such circumstances. Southwestern Bell Telephone Company v. State, 523 S.W.2d 67 (Tex.Civ.App.—Austin 1975) modified and affirmed 526 S.W.2d 526 (Tex.Sup.1975); Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681 (1941); Daniel v. Tyrrell & Garth Inv. Co., 127 Tex. 213, 93 S.W.2d 372 (1936).

Since the article is subject to unequal application to litigants due to the fact that the fee charged is subject to each individual court reporter’s fee scale and the individual determination by each trial judge of what is a reasonable amount, the article is in violation of Art. Ill, § 56 of the Texas Constitution.

The City also argues that the article amounts to a violation of due process in violation of the 14th Amendment to the U.S. Constitution. It is the City’s argument that under the current system a trial judge may approve such an exorbitant fee that he can effectively cut off a litigant’s right of appeal. We recognize this possibility and agree that the potential for such abuse does exist under the current law. However, there is no showing in this case that the City of Ingleside has suffered the harm complained of in its argument. This fact is clearly evidenced by the fact that the City did appeal and that we have decided the merits of the City’s appeal in Cause Number 1111.

The City’s next constitutional argument centers on that section of Article 2324 which authorized the Supreme Court, under its rule making authority, to provide for the duties and fees of court reporters. It is the City’s initial contention that this authorization by the legislature is void as an attempt to increase the jurisdiction of the Supreme Court without specifically mentioning such an increase in the title of the bill in violation of Art. Ill, § 35 of the Texas Constitution. The City also argues alternatively that such authorization is void as it would be beyond the scope of the Supreme Court’s rule making authority under Article 1731a. Additionally, the City argues that if the authorization by the legislature was in fact valid, then the trial court was without authority to rule on the reasonableness of a court reporter’s fee until the Supreme Court exercises its rule making authority and sets forth proper guidelines.

Article 1731a, Tex.Rev.Civ.Stat. Ann. (1962) confers upon the Supreme Court full rule making power in civil proceedings and the power to make rules to govern the practice and procedure in civil actions. The record before us shows a certificate from the Clerk of the Supreme Court to the effect that the Supreme Court has not yet taken any action under the authorization provided for in Article 2324. Since the Supreme Court has not yet exercised any of the authority granted under Article 2324, or under Article 1731a where it concerns the fees of court reporters, we need not make such determination here.

Without expressing any opinion as to whether or not the Supreme Court or the legislature should regulate the fees and practices of official court reporters, this Court would be amiss if we did not re-express our concern with the official court reporter system, as it exists today in this State. See City of Ingleside v. Johnson, supra. And see Southwestern Bell Telephone Company v. Thomas, 535 S.W.2d 686, 693, 694 (Tex.Civ.App.—Corpus Christi 1976) reversed on other grounds 20 Tex.up.Ct.J. 35 (June 11, 1977). A review of the cases filed in this Court since Thomas, in 1976 alone, reveals that in approximately 62% of the cases filed, (which included a statement of facts), a motion for extension of time was necessary before the record was complete. The overwhelming majority of these motions stated that the additional time required was to allow the court reporter time to complete his transcription of the record. The average extension requested was in excess of four weeks. Simply stated, over one-half of the appeals in this Court last year were delayed by at least one month due to the inability of official court reporters to prepare the transcript within the time specified by the Rules of Civil Procedure. There is already considerable delay built into our judicial process which we cannot control. Where delay exists that could be eliminated, the legislature and the courts of this State have a duty to the citizens of this State, to remedy the problem. We have no way of knowing if this delay by the court reporter is related to this statute here involved, however, we do know that one of the “factors” to be considered is the “time in which the transcript is requested to be prepared”.

The City in its 10th and 14th points of error complain of the action of the trial court in overruling its plea in abatement. It is the City’s contention that since it had already perfected an appeal to this Court in the original cause involving the statement of facts in question, the trial court lost jurisdiction to make any further determination in that cause which included a determining of whether or not the fees charged by the court reporter were reasonable. We indicated to the City’s attorney during oral arguments on both the mandamus action and in cause number 1111 that we believed that the manner in which the trial court had proceeded was proper. The hearing to determine the reasonableness of a court reporter’s fees was a separate independent cause of action totally divorced from the cause in which the statement of facts was prepared. There were different parties and different issues. Any other interpretation of the statute would render it meaningless. As we pointed out in our opinion in the mandamus action, this Court had no jurisdiction to decide such questions under our narrow mandamus jurisdiction. We must presume that the trial court also realized we had no jurisdiction over such questions when it overruled the City’s plea in abatement. The City’s points of error 10 and 14 are overruled.

In its 15th and 16th points of error, the City, by no evidence and insufficient evidence points of error, attacks the implied findings of the trial court which support its order that $1,991.00 was a reasonable compensation for Martin Johnson for preparing the transcript in question. Because of our holding herein it is not necessary for us to consider these points. If we were to reach these points, we would overrule the no evidence point and sustain the insufficient point. Reviewing all the evidence, as we must do on an insufficiency of the evidence question, a serious doubt as to the trial court’s findings is raised. The most serious problem raised by the evidence really concerns what the trial court refused to consider as opposed to what it did consider. As was previously stated, the trial court had the testimony of Martin Johnson to consider as to the length, format and contents of the statement of facts in question. However, she also had available to her the actual statement of facts which the City attempted to introduce into evidence, but the same was rejected by the judge. This Court, in reviewing both the testimony of Mr. Johnson and the statement of facts in question, has discovered some major discrepancies between Johnson’s testimony concerning the form of the statement of facts and its actual form. For example, Mr. Johnson testified that the statement of facts in question averaged between 200-250 words per page. Our review of the statement of facts indicates it averages somewhat less than 200 words per page. Had Mr. Johnson’s testimony been the only evidence tendered to the trial court of the form of the statement of facts, then she obviously would have been justified in relying on said testimony. But this was not the case. The actual statement of facts, which is contradictory to Johnson’s testimony, was tendered to the trial court and was admissible for the purpose for which it was tendered. Yet it was rejected by the trial court and was not used by her to determine whether or not Johnson’s fees were reasonable. This action constituted an abuse of discretion by the trial court and was error. The most valuable evidence of whether the fee for the statement of facts was reasonable was the record itself. In reviewing all the evidence we find other evidence that was introduced which showed that Johnson’s fee was not reasonable. We find, in any event, that the trial judge’s finding of reasonableness was not supported by sufficient evidence to support the trial court s order. Point of error number 16 is sustained.

The only question remaining before us is what is to be the disposition of this lawsuit? As a general rule, if a statute is unconstitutional, it amounts to nothing and accomplishes nothing and is no law at all. Colden v. Alexander, 141 Tex. 134, 171 S.W.2d 328 (1943); Miller v. Davis, 136 Tex. 299, 150 S.W.2d 973 (1941). Such a statute leaves the question that it purports to settle just as it was prior to its ineffectual enactment. 12 Tex.Jur.2d Constitutional Law § 46 (1960). See Genzer v. Fillip, 134 S.W.2d 730 (Tex.Civ.App.—Austin 1939, writ dism’d jdgmt. cor.).

However, we are not dealing with all of Article 2324 in this case. Article 2324 contains three paragraphs. The first paragraph sets out the duties of a court reporter during the trial. The second paragraph sets out the court reporter’s responsibility and duties with respect to his shorthand notes. It is only the third paragraph of this article that we hold to be unconstitutional. An exception to the above stated general rule is the rule that if part of an act is invalid, it does not destroy the entire act unless the invalid part is so intermingled with all parts of the act as to make it inseparable. Sharber v. Florence, 131 Tex. 341, 115 S.W.2d 604 (1938); Empire Gas & Fuel Co. v. State, 121 Tex. 138, 47 S.W.2d 265 (1932); Vernon v. State, 406 S.W.2d 236 (Tex.Civ.App.—Corpus Christi 1966, writ ref’d n.r.e.); Freeman v. Swan, 143 S.W. 724 (Tex.Civ.App.—El Paso 1912, writ ref’d). If the constitutional and unconstitutional sections of the act may be separated, we must do so and not permit the invalid part to destroy the whole law. City of Taylor v. Taylor Bedding Mfg. Co., 215 S.W.2d 215 (Tex.Civ.App.—Austin 1948, writ ref’d). Clearly, the first two paragraphs may be divorced from the third.

The remaining question now is what is the effect of separating the article into its constitutional and unconstitutional parts? This question was answered by Culberson v. Ashford, 118 Tex. 491, 18 S.W.2d 585 (1929), wherein it was held that when a statute, which overruled an earlier law, is unconstitutional, the effect of the invalidity is to leave the prior law in full force and effect. This means that paragraph 3 of the 1961 amendment to Article 2324 (the prior law) remains in effect. This will permit court reporters to charge $.30 per hundred words for preparing the original transcript of the testimony, and in addition, they may make a reasonable charge for postage, reproduction of exhibits, and other actual expenses.

Holding that that portion of Art. 2324, Tex.Rev.Civ.Stat.Ann. (set forth herein in this opinion) is unconstitutional and void, we reverse the judgment of the trial court and remand this case with instructions to the trial court to determine the costs of preparing the transcript of testimony in accordance with the guidelines set out in the third paragraph of Art. 2324 as enacted by the 57th Legislature in the 1961 Acts, p. 620, ch. 290, sec. 1.

Reversed and remanded.

      . § 1. Division of powers; three separate departments; exercise of power properly attached to other departments
      Section 1. The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

      . Sec. 44. The Legislature shall provide by law for the compensation of all officers, servants, agents and public contractors, not provided for in this Constitution, . . .

      . Greenwood & Dodge, Management of Court Reporting Services, 1 State Ct. J. 12, Winter 1977. This article is the result of a study funded by the Culpeper Foundation and the Law Enforcement Assistance Administration and is a summary of the actual study. Copies of the entire report may be obtained from the Publications Department, National Center for State Courts, Suite 200, 1660 Lincoln Street, Denver, Colo. 80203.

      . Wallace P. Woodruff, et al v. Lillie O’Bryant, et al, our Cause No. 1210.

      . Sec. 35. No bill, (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof, as shall not be so expressed.


author: KLINGEMAN, Justice.

text:
    Frank J. MONTAVON and Wife Hermelinda Montavon, Appellants, v. The ALAMO NATIONAL BANK OF SAN ANTONIO, Appellee.
    No. 15710.
    Court of Civil Appeals of Texas, San Antonio.
    July 13, 1977.

      P. Keith O’Gorman, San Antonio, for appellants.
    John D. Fisch, C. M. Montgomery, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is a suit by Frank J. Montavon and wife, Hermelinda Montavon, against The Alamo National Bank of San Antonio, herein called Bank, for wrongful conversion of two Certificates of Deposit owned by the Montavons which Certificates of Deposit were delivered to the Bank in connection with an investment agreement with Fipco, Inc., under which the Montavons agreed to support a $25,000 line of credit at the Bank.

The Montavons went to the Bank, executed an “Owner’s Consent to Pledge” and “Security Agreement — Pledge,” endorsed the two Certificates in blank and delivered the Certificates to the Bank. The Bank thereafter made advances of $25,000 to Fip-co, and Fipco executed and delivered notes for such amount. Ultimately, Fipco defaulted in the payment of this debt to the Bank. After some efforts were made to collect the obligation, the Bank applied the proceeds of the two Certificates of Deposit to Fipco’s debt. Suit was brought by the Montavons against the Bank seeking actual damages in the amount of $25,000, the face value of the two Certificates of Deposit, and exemplary damages in the amount of $10,000. The Bank’s motion for summary judgment was granted, and judgment entered that the Montavons take nothing.

A chronological summary of the background of this case is as follows:

October 1972: Montavon first became acquainted with Fipco.
October — November, 1972: Montavon bought $11,250 of Fipco’s stock and agreed to support a $25,000 line of credit to Fipco.
November 21, 1972: The Montavons executed the Owner’s Consent to Pledge and a Security Agreement — Pledge to the Bank as secured party. Both of these instruments describe the two Certificates of Deposit. At this time, the Montavons also signed the backs of the two Certificates of Deposit and delivered them to the Bank.
November 22, 1972: $15,000 advance was made to Fipco by the Bank.
December 19, 1972: $10,000 advance was made to Fipco by the Bank. Notes were made by Fipco to the Bank for such advances and were periodically renewed thereafter.
October 30, 1974: New documents (an Owner’s Consent to Pledge and Security Agreement — Pledge) basically similar to the original were executed by the Monta-vons.
August 1975: A meeting was held between Montavon, Voyles, an officer of the Bank, and Langholz, an officer of Fipco, and documents were drawn up which were never executed.
September 1975: Montavon says that he was informed by the Bank that the Certificates of Deposit were security for Fipco’s loan.
September 18, 1975: Montavon wrote to the Bank attempting to revoke the Consent to Pledge.
October 10, 1975: The Bank wrote the Montavons stating that the Certificates of Deposit were being applied against the Fipco debt.
October 31, 1975: The Montavons sued the Bank.

Pertinent written instruments here involved may be summarized as follows:

(a) November 21, 1971 — Owner’s Consent to Pledge. This instrument is signed by the Montavons and states that for the purpose of enabling Fipco to obtain credit, the Mon-tavons authorized Fipco to hypothecate, pledge and deliver to the Bank the two Certificates of Deposit which are specifically described therein, and the Montavons agree that when so hypothecated, pledged and delivered, the collateral (the two Certificates of Deposit) shall secure all liabilities of debtor to the Bank.

(b) Security Agreement — Pledge. The Montavons, “debtor”, granted to the Bank, “secured party”, a security interest in the two Certificates of Deposit, specifically described therein, to secure performance and payment of all obligations and indebtedness of debtor to secured party of whatsoever kind and whenever or however created or incurred. This instrument is signed by the Montavons.

By two points of error the Montavons assert that the trial court erred in granting the Bank’s motion for summary judgment because: (1) the pleadings, depositions and affidavits on file establish genuine issues as to material fact; and (2) Bank is not entitled to a summary judgment as a matter of law.

The Bank asserts that the trial court’s judgment is correct because:

(1) The pleadings, depositions, exhibits, and affidavits on file establish that there is no genuine issue as to any material facts.

(2) The Bank is entitled to a summary judgment in its favor as a matter of law.

(3) The agreement between the parties established that the sole and only purpose of the transaction in question was to establish a line of credit for Fipco at the Bank to be secured by the Montavons’ Certificates of Deposit, thereby creating an equitable lien in favor of the Bank as a matter of law.

(4) It is undisputed that the Montavons received the benefits of the transaction in question and are estopped to deny the validity and enforceability of a perfected security interest in favor of the Bank.

The summary judgment evidence consists of a number of depositions, an affidavit of Gilbert Langholz, president of Fipco, and numerous written instruments.

By affidavit, Langholz stated that he did not pledge the two Certificates of Deposit owned by the Montavons and that he did not discuss collateralization of Fipco’s note with the Bank.

By deposition, Frank Montavon testified that he first became acquainted with Fipco about October 1972; that he had discussions with Langholz about becoming a stockholder in Fipco under which he was to buy 1,125 shares of stock at $10 a share, and support a line of credit for Fipco of $25,000; that he desired to allow Langholz to pledge or do what he needed with the Certificates of Deposit; and that when he deposited the $25,000 in the Bank, it was with an eye to using the money as a part of the Fipco deal. He further testified that at the time the Fipco deal was closed and $11,250 turned over to Fipco, he xeroxed the two Certificates of Deposit (one for $20,000 and one for $5,000) and gave one copy to Langholz, and that Langholz in his presence wrote on the bottom of the xeroxed copies that the Certificates of Deposit were “pledged to the Alamo National Bank to support Fipco, Inc. line of credit.” (Emphasis added) He stated that his agreement with Langholz was to deliver the Certificates of Deposit to the Bank for the purpose of making $25,000 available for Fipco; that pursuant thereto he went to the Bank on November 21,1972 and saw Voyles, an officer of the Bank, who had previously talked to Langholz; that the Bank had prepared some documents which he read; that he signed such documents and also signed the backs of the two Certificates of Deposit and delivered them to the Bank. He also stated that he thought Fipco would have to pledge the two Certificates of Deposit before he would stand any risk of losing them.

Jerry Voyles testified by deposition that he was a vice-president of the Alamo National Bank, commercial loan division; that Langholz brought the Montavons in and informed him that the Montavons had two Certificates of Deposit and that they had agreed to support a $25,000 line of credit by pledging these Certificates of Deposit to secure a loan to Fipco; that the debt of Fipco was secured by the Owner’s Consent Pledge, the Security Agreement, and the endorsement and delivery of the Certificates of Deposit by the Montavons to the Bank; that pursuant thereto he made one advance to Fipco of $15,000 and another of $10,000; that Fipco’s notes were renewed periodically.

Numerous written instruments were introduced into evidence including the Owner’s Consent to Pledge, the Security Agreement — Pledge, and the applicable Certificates of Deposit.

The thrust of the Montavons’ contentions is that they executed a Consent to Pledge Agreement for the purpose of enabling Fip-co to obtain credit on the two Certificates of Deposit which authorized Fipco to pledge such Certificates of Deposit, and provided that when such Certificates of Deposit were so hypothecated, pledged and delivered, such Certificates of Deposit would be collateral to secure all liabilities of Fipco to the Bank; that Fipco never hypothecated or pledged such Certificates of Deposit; and, therefore, the Bank’s act of applying the proceeds of such Certificates of Deposit to Fipco’s debt was a wrongful conversion of their property. Secondly, they assert that the Security Agreement — Pledge is irrelevant to this law suit because no debt of the Montavons is at issue.

We have concluded, under the summary judgment evidence in the records before us, that as a matter of law, the Bank acquired and perfected a valid and enforceable security interest in the Certificates of Deposit herein involved as security for Fipco’s debt, and that the Bank was not guilty of conversion in applying the proceeds of the Certificates of Deposit on Fipco’s debt. Tex.Bus. & Comm.Code Ann. art. 9.105(a)(4), art. 9.105(a)(12), art. 9.102, art. 9.203(a) and (b), art. 9.305, art. 1.201(3), art. 1.205(d); First Nat’l Bk. in Grand Prairie v. Lone Star Life Ins. Co., 524 S.W.2d 525 (Tex.Civ.App.—Dallas), writ ref'd n. r. e. per curiam, 529 S.W.2d 67 (Tex.1975); Southview Corp. v. Kleberg First National Bank, 512 S.W.2d 817 (Tex.Civ.App.—Corpus Christi 1974, no writ).

It is undisputed that the Certificates of Deposit were delivered to the Bank for the purpose of securing a line of credit to Fipco by the Bank. Simultaneously, with the delivery of such Certificates of Deposit and, in connection therewith, the “Consent to Pledge” and “Security Agreement— Pledge” were executed and delivered by the Montavons to the Bank. These instruments should be read and construed together. Board of Ins. Com’rs v. Great Southern Life Ins. Co., 150 Tex. 258, 239 S.W.2d 803, 809 (1951); Adams v. Abbott, 151 Tex. 601, 254 S.W.2d 78 (1952); McLean v. Hillman, 352 S.W.2d 310 (Tex.Civ.App.—Amarillo 1961, no writ).

Pertinent provisions of the Texas Business and Commerce Code are as follows:

Art. 9.305:

“A security interest in . ., instruments, . . . may be perfected by the secured party’s taking possession of the collateral.”

Art. 9.304(a):

“A security interest in instruments . can be perfected only by the secured party’s taking possession, . . . .”

Art. 9.203(a):

“. . . [A] security interest is not enforceable against the debtor or third parties unless (1) the collateral is in the possession of the secured party; or (2) the debtor has signed a security agreement which contains a description of the collateral . . . .”

Art. 9.105(a)(4):

“ ‘Debtor’ means the person who owes payment or other performance of the obligation secured, whether or not he owns or has rights in the collateral, and includes the seller of accounts, contract rights or chattel paper. Where the debtor and the owner of the collateral are not the same person, the term ‘debtor’ means the owner of the collateral in any provision of the chapter dealing with the collateral, the obligor in any provision dealing with the obligation, and may include both where the context so requires.”

9.105(a)(12):

“ ‘Security agreement’ means an agreement which creates or provides for a security interest.”

1.201(3):

“ ‘Agreement’ means the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance as provided in this title . . . .”

A Certificate of Deposit is an instrument in which a security interest can be perfected under the Business and Commerce Code. First Nat’l Bk. in Grand Prairie v. Lone Star Life Ins. Co., supra; Southview Corp. v. Kleberg First National Bank, supra.

In the case before us the requirements of a “security agreement” have been met under the provisions of the Texas Business and Commerce Code. The applicable statutes and authorities place great emphasis upon the delivery of possession of the collateral, and in the instant case the Certificates of Deposit were endorsed in bank by the Montavons and delivered to the Bank, and in connection therewith the Montavons executed the “Consent to Pledge” and “Security Agreement — Pledge”, both of which instruments specifically described the collateral (two Certificates of Deposit). Such instruments, when read and construed together, created a valid and enforceable security interest in the Certificates of Deposit which were delivered to the Bank to secure the debt of the Montavons.

The trial court did not err in granting the summary judgment. In reaching this conclusion we are influenced by the facts that: (a) the obvious purpose of the delivery of the endorsed Certificates of Deposit to the Bank was to secure a line of credit for Fipco; (b) the Bank in reliance thereon advanced such credit to Fipco; (c) under the applicable provisions of the Texas Business and Commerce Code, the effect of the delivery of such Certificates, the executed Consent to Pledge, and Security Agreement— Pledge, was to perfect a valid security interest in the Bank to such Certificates of Deposit to secure Fipco’s debt.

The summary judgment was properly granted by the trial court. The judgment is affirmed.


author: KLINGEMAN, Justice. CADENA, Justice,

text:
    James C. MORRIS, Appellant, v. Jerry MORRIS, Guardian of the Person and Estate of Molly C. Conley, Appellee.
    Nos. 15765 and 15834.
    Court of Civil Appeals of Texas, San Antonio, Texas.
    July 13, 1977.
    Charles J. Lieck, Jr., San Antonio, for appellant.
    Hope, Henderson, Hohman & Georges, Wallace D. Henderson, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is an appeal by writ of error. Petitioner also filed a direct appeal involving the same judgment and both causes have been consolidated in this appeal. Suit was filed in the County Court at Law of Bexar County, Texas by Jerry Morris, Guardian of the Person and Estate of Molly C. Conley, against James C. Morris seeking an accounting, a monetary judgment, and attorney’s fees. James C. Morris, a layman, prepared and timely filed an answer containing a general denial and special denials, and also setting forth the basic elements of a counter-claim or cross-action. Thereafter a judgment was entered in said cause on July 21,1976 which recited that the defendant had been duly notified of a setting but failed to appear and made default, and judgment was granted for plaintiff against defendant in the amount of $6,899.22, and attorney’s fees in the amount of $350. Defendant thereafter learned of such judgment, retained an attorney, and the herein application for writ of error was timely filed. It is undisputed that James C. Morris did not appear at such hearing either in person or by attorney.

Petitioner James C. Morris complains of lack of due notice, lack of jurisdiction, and that the judgment entered against him is void.

It is undisputed that petitioner did not receive notice of the setting of the case. He positively so testified, and stated that if he had known of the setting he would have appeared and presented an adequate defense. The statement of facts contains the envelope from the attorney for respondent addressed to him which showed affirmatively that the letter was not received by him, but that it was returned to the sender with a notation thereon “unclaimed”. James C. Morris testified that he never received the letter, nor was there any notice or slip left notifying him that there was a letter to be picked up.

Although there are several reasons why this judgment must be reversed, it is necessary only to discuss the lack of notice.

Rule 245, Tex.R.Civ.P., as amended, provides in part as follows: “The court may set contested eases on motion of any party, or on the court’s own motion, with reasonable notice of not less than 10 days to the parties, . . (Emphasis ours)

We have concluded that under the plain wording of Rule 245 there must be at least ten days notice to the parties of a setting in a contested suit. Moreover, there is a lack of due process as a fundamental requirement of due process as an opportunity to be heard. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). Here, in a contested case where defendant had timely filed an answer, including a cross-claim for affirmative relief, a judgment has been rendered against him in excess of $6,000, plus attorney’s fees, without any notice of hearing, and without an opportunity to be heard. This case must be reversed. Rule 245, Tex.R.Civ.P.; McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961); Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428 (1959); Early v. Cornelius, 120 Tex. 335, 39 S.W.2d 6 (1931); Read, Individually and as Independent Executor of Estate of Cole, Deceased et al. v. Gee, Independent Executor of Estate of Freeland, Deceased, 551 S.W.2d 496 (Tex.Civ.App.—Fort Worth, 1977) (not yet reported); Ponca Wholesale Mercantile Company v. Alley, 378 S.W.2d 129 (Tex.Civ.App.—Amarillo 1964, writ ref’d n.r.e.).

The judgment of the trial court is reversed and the cause remanded for a trial on the merits.

CADENA, Justice,

concurring.

While I agree that the judgment below cannot stand because of inadequate notice, I cannot agree that such conclusion justifies a refusal to consider the point properly raised here by appellant that the trial court lacked jurisdiction of the subject matter of this suit. If appellant is correct, the proper order in this case would be one reversing the judgment below and dismissing appel-lees’ suit, rather than one reversing and remanding for trial on the merits. It is reasonably foreseeable that the question of jurisdiction will be raised again at the second trial. See Rule 451, Tex.R.Civ.P.

      . It is noteworthy that Rule 245 was amended after the decision of the Supreme Court in Plains Growers, Inc. v. Jordan, 519 S.W.2d 633 (Tex.1974). It is evident from an examination of the rule before and after amendment, and the opinion in Plains Growers, that the obvious purpose of such amendment was to assure that there must be at least ten days notice of a setting in a contested case.


author: BARROW, Chief Justice. CADENA, Justice,

text:
    Ex parte Aaron TRODLIER.
    No. 15891.
    Court of Civil Appeals of Texas, San Antonio.
    July 13, 1977.
    Rehearing Denied July 13, 1977.

      D. L. Ferguson, San Antonio, for appellant.
    Tom Joseph, San Antonio, for appellee.
   BARROW, Chief Justice.

This is an original habeas corpus brought by relator who was confined under a judgment adjudging him to be in contempt of court for failure to comply with an order of the trial court to make temporary child support payments.

It is settled law that a habeas corpus proceeding is a collateral attack upon the order of commitment and the relator is entitled to be discharged only if it affirmatively appears that that judgment ordering his confinement is void, thus depriving the court of jurisdiction. Ex parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961); Greenhill and Beirne, Habeas Corpus Proceedings in the Supreme Court of Texas, 1 St. Mary’s L.J. 1, 10 (1969).

Relator urges that the contempt judgment is void in that he did not receive ten days’ notice of the hearing as required by Rule 308-A, Tex.R.Civ.P. In support of this contention, relator cites Ex parte Hoover, 520 S.W.2d 483 (Tex.Civ.App.—El Paso 1975, no writ).

The court’s conclusion in Hoover is contrary to the express holding of the Supreme Court in Ex parte Cardwell, 416 S.W.2d 382 (Tex.1967). In considering the question of whether trials for contempt held upon less than ten days’ notice will constitute a denial of constitutional due process, the Supreme Court said:

We have held that while the language of the statute (Art. 4639a) and the rule (308-A) is mandatory, trials for contempt conducted upon less than ten days’ notice will not constitute a denial of constitutional due process in all instances; and contempt judgments based on such trials may, therefore, be valid. Where there is less than ten days’ notice, the relator may be entitled to be discharged because of a lack of due process. Ex parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961). As we said in Davis, each case must be evaluated on its own facts. [416 S.W.2d at 384.]

Thus, the determinative question is whether on the record before us relator has been denied constitutional due process.

Relator and his wife have been embroiled in a contested divorce action for over a year. On August 31, 1976, a temporary order was signed which directed relator to pay certain sums to Mrs. Trodlier for support of his two minor children. On May 9, 1977, Mrs. Trodlier filed a motion that relator be held in contempt for failure to obey such order of the court and a fiat was signed setting a hearing on this motion for May 23, 1977. The Bexar County sheriff was unable to serve relator with the notice and a copy of the motion until May 20,1977. Relator did not appear for the hearing on May 23rd, either in person or through his attorney. Nor did he subsequently make any response to the motion or seek a rehearing on the motion. On June 15,1977, he surrendered to the Bexar County sheriff and, on the same date, the application for habeas corpus was filed in our court. Relator was released on bond pending a determination of the validity of the contempt judgment.

Relator supports his claim for lack of constitutional due process solely on the brevity of the notice. He contends a hearing with less than ten days’ notice as required by Rule 308-A, Tex.R.Civ.P. violated his constitutional rights to due process as a matter of law. Such a contention was rejected by the Supreme Court in Ex parte Davis, supra, and Ex parte Cardwell, supra, as well as by two courts of civil appeals. See Ex parte Sturdivant, 551 S.W.2d 144 (Tex.Civ.App.—Texarkana 1977, no writ); and Ex parte Cox, 479 S.W.2d 110 (Tex.Civ.App.—Houston [1st Dist.] 1972, no writ).

Relator made no effort in the trial court or in our court to demonstrate how he was prevented by the short notice from presenting a defense to the motion for contempt, or even from seeking a postponement of the hearing if additional time was required to subpoena witnesses and to prepare for trial. It is significant that the motion was filed ancillary to an on-going judicial proceeding wherein relator was already represented by an attorney. In fact, his attorney filed an appeal bond in the divorce suit the day after the contempt judgment was signed. Yet, relator did not appear pursuant to the notice. We conclude from this record that relator has not shown a constitutional denial of due process.

Relator’s application for habeas corpus is denied and he is ordered remanded to the custody of the Sheriff of Bexar County, Texas.

CADENA, Justice,

dissenting.

Neither Ex parte Cardwell, 416 S.W.2d 382 (Tex.1967), nor Ex parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961), compels, or supports, the conclusion that relator in this case has not been illegally imprisoned. In both of those cases, of course, the relator was ordered discharged.

I would hold that three days’ notice of a contempt hearing is unreasonable and viola-tive of due process when notice of the hearing to be held on Monday, May 23, 1977, was served on relator on the preceding Friday, May 20, 1977.

If, as apparently required by Rule 4, Tex. R.Civ.P., we exclude the date of service in computing the time prescribed by Rule 308-A, but include the date on which relator was commanded to appear, the result is that relator had three days’ notice of the hearing. The first two days of this three-day period were Saturday, May 21, and Sunday, May 22. The third day, of course, was Monday, May 23, the date set for the hearing. Since the hearing was set for 9:00 a. m. on Monday, the third day did not consist of 24 hours.

This Court, which sits in the Bexar County Courthouse, judicially knows that such courthouse, except for the sheriff’s office, is closed on Saturdays and Sundays. This shutdown includes the office of the district clerk, to whom applications for the issuance of subpoenas for witnesses are taken and who, in fact, issues the subpoenas. This makes it difficult, if not impossible, to secure the issuance of subpoenas on Saturdays and Sundays. Most lawyers do not come to their offices on Saturdays and Sundays. Only by ignoring the realities of the five-day week can it be asserted that relator in this case was afforded a reasonable opportunity to prepare for the hearing.

The actual holding in Davis was that notice, served on September 8, of a contempt hearing held on September 10, was insufficient notice to meet the requirements of due process. In the course of the opinion it is said that no clear and definite line can be drawn “between that length of notice which will afford due process and that which will not.” 344 S.W.2d at 157. Each case must be evaluated on its own facts.

It would not be out of order to analyze the special “facts” on which the conclusion of denial of due process in Davis was based.

1. Davis did not voluntarily appear at the hearing, since his appearance was made under compulsion of the show cause order. In the case before us, it certainly cannot be said that a failure to appear constitutes a voluntary appearance which results in waiver of the right to sufficient notice.

2. Davis was not represented by counsel. In this case the order of contempt recites that relator did not appear. No attorney appeared on behalf of relator at the hearing.

3. There was nothing in the record to indicate that Davis knew or was advised that he was “entitled to further time under the statute and the rule in which to obtain counsel and prepare for trial.” 344 S.W.2d at 156. The record before us contains nothing suggesting that relator knew or was advised that he was “entitled” to additional time.'

4. Seven days after the hearing Davis appeared, accompanied by counsel, in compliance with the trial court’s statement that his judgment would be announced at that time. Since the trial court did not certify that Davis offered no testimony at that time, the Supreme Court “inferred” that the offer of additional testimony was made by Davis and rejected by the court. Even if we indulge this inference, it in no way supports the conclusion that Davis, because of the brevity of the original notice, was unable to gather his witnesses, employ counsel and prepare a defense at the original hearing. Surprisingly, the opinion of the Supreme Court does not even hint that the testimony, which it inferred Davis sought to present seven days after the hearing differed in any respect, significant or insignificant, from the testimony he actually presented at the hearing. The fact that he offered testimony cannot support the conclusion that he could not have had such testimony ready for presentation at the hearing seven days previously, unless we presume that tardy performance, standing alone, constitutes proof of impossibility of timely performance. Stated simply, there is nothing in this “fact” which even tends to show that the brevity of notice deprived Davis of a reasonable opportunity to defend himself.

5.Davis was a deaf-mute. The Supreme Court assumed that this physical handicap resulted in difficulty of communication and understanding. There can be no quarrel with this assumption, but the difficulty of communication and understanding under which Davis labored does not establish that his handicap made it impossible to prepare a defense for presentation at the hearing. The facts, as recited in the Davis opinion, indicate the contrary. Davis appeared at the trial. He testified and presented witnesses who testified for him. His ex-wife, movant in the contempt proceeding, was also a deaf-mute. Since Davis had previously lived with her in the intimate relationship of husband and wife, it is, perhaps, fair to assume that he had no difficulty understanding her testimony even without the aid of the “interpreter” required in order to make it possible for the trial judge to know what she was attempting to communicate. The appearance of Davis at the hearing, accompanied by his witnesses, precludes the assumption that, because of his physical disability, he was unable to read and understand the show cause order. It is also significant that, despite his disability, Davis had no difficulty in understanding the trial court’s instruction that he appear before the court seven days later.

Inability to speak and hear is no indication, standing alone, of inability to prepare a defense, unless, from the mere presence of the disability, we infer a degree of intellectual inferiority.

Stated bluntly, there are no “facts” in Davis which even tend to suggest that Davis had no sufficient time to prepare and present his defense, or that he had insufficient time to employ counsel. The facts on which the Supreme Court relied were all gratuitously assumed by the Supreme Court because of the fact that Davis was a deaf-mute, from which fact the Court apparently inferred that he was so mentally retarded that he did not know what was going on, although the actual “facts” of the case brand this inference as completely unwarranted.

As a practical matter, relator in this case had but one “working” day or, perhaps, only a part of one such day, in which to prepare his defense. As the Court pointed out in Davis, 344 S.W.2d at 157, in Roller v. Holly, 176 U.S. 398, 20 S.Ct. 410, 44 L.Ed. 520 (1900), the Supreme Court of the United States “observed that in a serious matter one should not be required to answer the first day of a practical opportunity or even on the next day.” A contempt proceeding, which may result in indefinite incarceration, can fairly be regarded as a “serious matter.”

Thus, even if we unquestioningly accept the pronouncements in Cardwell and Davis to the effect that the statements in § 14.-09(b) Tex.Family Code Ann. (1975) and Rule 308-A, Tex.R.Civ.P., that notice of the show cause order “shall be served on the respondent . . ., not less than ten days prior to the hearing” does not mean what it says, but merely requires “reasonable notice”, relator in this case should be discharged.

      . In both Cardwell and Davis the Supreme Court said that the language of the statute and rule is “mandatory”. Yet, with the exception of Ex parte Hoover, 520 S.W.2d 483 (Tex.Civ.App.—El Paso 1975, no writ), no Texas court has ever enforced this mandatory language.
      Under no circumstances will the Texas courts enforce the statute and rule. Where, as in Cardwell and Davis, a relator is ordered discharged because of the brevity of notice, the order of discharge is not based on failure to comply with the notice requirements of the statute and rule. This is made clear in Davis, 344 S.W.2d at 155:
      Neither the statute nor the rule contains a prohibition against conducting a contempt hearing in less than ten days after a show cause order is served. There is nothing in either of them which prohibits a person charged from appearing and agreeing that the hearing may be held at any time. The holding of a contempt hearing within less than ten days from the date on which a show cause order is served is a procedural irregularity only. ...
      On the other hand, the holding of the hearing in less than ten days after service of notice may constitute a denial of due process. The direction of ten days’ notice in the statute and rule is in mandatory language. The obvious purpose of the direction is to afford the defaulting party reasonable opportunity to employ counsel, gather evidence, subpoena witnesses and prepare for trial. Cardwell contains similar language. 416 S.W.2d at 384.
      What is being enforced, then, is not the "mandatory language” of the statute and rule, but, rather, the constitutional requirements of due process. The statute and rule cannot affect the result in any case. That is, the statute and rule are both examples of futile and meaningless use of mandatory language.
      For a person charged with contempt to appear and urge that he is entitled to longer notice under the statute and rule is, at worst, an exercise in futility or, at best, a supplication made on bended knee. The granting or denial of the request for additional time is absolutely discretionary with the trial judge, at least where the request is based solely on the provisions of the statute and rule. If respondent’s request is denied, he is left with no means of correcting the “procedural irregularity.” If he is jailed he cannot appeal. His sole remedy is an application for writ of habeas corpus. As relator he merely wastes his time by calling the statute and rule to the attention of the court, since the “procedural irregularity” does not render the order of commitment subject to collateral attack. He can find shelter only in the constitutional requirement of due process. As far as our courts are concerned, in a habeas corpus proceeding the statute and rule are irrelevant.
      In Davis the Supreme Court said that the “obvious purpose” of the mandatory language found in the statute and rule is to afford respondent “reasonable opportunity” to prepare for trial. No attempt is made to explain why the legislature, instead of simply directing that “reasonable notice” be given — a mode of expression which unequivocally stated what the Supreme Court called the “obvious purpose” of the statute — chose, instead, to speak in terms of “ten days’ ” notice, apparently hoping that the judiciary would be able to penetrate the verbal smokescreen and recognize that the obvious purpose of the statute was to require “reasonable notice” instead of “ten days’ ” notice.
      The obvious purpose which the Supreme Court attributed to the legislature cannot be found without changing the actual language used. Without such judicial blue-penciling, the legislative purpose to require merely “reasonable notice” is not at all obvious. The language used suggests only one purpose. That purpose is to afford ten days’ notice. That is the only purpose which can be said to be “obvious” without ignoring the language used.
      The term “ten days” is clear and unambiguous. It is nonsense to speak of a “strict” or “liberal” interpretation of that term. No explanation is given of the mental processes by which the term was translated into “reasonable.” The only explanation offered is that it is “obvious” that “ten days” means “reasonable”.
      True, neither the statute nor the rule contains language which expressly prohibits the holding of a contempt hearing within less than ten days after service of the show cause order. But the absence of such language is not determinative of the question. The only statutory language which authorizes imprisonment of a person who disobeys an order for the payment of child support states that ten days’ notice “shall” be given. There is no authority for imprisonment on shorter notice.
      In an ordinary civil suit, according to Rule 101, Tex.R.Civ.P., the citation “shall” command defendant to appear by filing an answer “at or before 10 o’clock a. m. on the Monday next after the expiration of 20 days after the date of service” of the citation. Suppose the citation commanded defendant to answer at or before 10 o’clock a. m. of the Monday next after the expiration of 10 days after the date of service of citation. Would a default judgment based on defendant’s failure to answer within the telescoped period be valid. The answer is that such a judgment would be void and subject to collateral attack. Lamesa Rural High School Dist. v. Speck, 253 S.W.2d 315 (Tex.Civ.App.—Eastland 1952, writ ref d n. r. e.). In Speck the Court said: “Rules relating to service of process are mandatory and a default judgment based upon citation and service not complying therewith, is void, if the defect is apparent on the face of the record.” 253 S.W.2d at 316.
      It should be pointed out that Rule 101 contains no language expressly prohibiting the entry of default judgment where the time specified in the citation is less than that prescribed by Rule 101. Rule 124, Tex.R.Civ.P., does prohibit the rendition of any “judgment" against a defendant “unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant.except where otherwise expressly provided by law or these rules.” Why is it that in ordinary civil cases directions concerning length of notice must be meticulously observed, even though defendant stands to lose nothing more than a mule, while in contempt proceedings such directions may be blithely ignored when a man faces incarceration as well as loss of property.
      It is idle to speak of a supposed distinction between the “citation” by which an ordinary civil suit is instituted and the “notice” by which contempt proceedings are initiated. The word “citation” is not found in Rule 124. It is clear that the notice spoken of in the statute and rule with which we are here concerned serves the same purpose as does the citation in ordinary civil actions. Service of citation is the means by which the court obtains jurisdiction over the person of the one to whom the citation is directed. As pointed out in Davis, in a contempt proceeding where the contempt is based on conduct committed outside the presence of the court, the court obtains jurisdiction over the person of respondent by service of the show cause order. 344 S.W.2d at 153. Service of the show cause order cannot be equated with “notice” that a case has been set for trial, or with “notice” that a motion for new trial has been filed. Such notices merely inform the person to whom they are directed that certain things have happened in a case in which the court has already satisfied requirements for the existence of in personam jurisdiction. The “notice” of a contempt hearing is not merely a method of conveying information. Service of the show cause order is the method by which the court obtains in personam jurisdiction. The fact that the contempt proceeding is designed to enforce compliance with an order issued in a cause still pending before the court seeking to enforce its order is completely irrelevant. The fact that such court has acquired in personam jurisdiction of the defendant for the purpose of ordering payment of child support does not vest in it jurisdiction over the person of the defendant for the purpose of enforcing its order by locking him up. Jurisdiction over the person for the purpose of ordering incarceration because of disobedience of the court order can be obtained only by service of the show cause order.
      The question recurs: Why are rules relating to service of process mandatory, including the period of notice, in ordinary civil suits while such rules may be disregarded in contempt proceedings? The only answer suggested in Davis is as simple as it is surprising. The purpose of the contempt proceeding is to determine whether penal sanctions are to be imposed on respondent. He may be fined and, in addition, he may be incarcerated and kept locked up for an indefinite period until he purges himself of the contempt. . A contempt proceeding has some of the incidents of a trial for crime and is quasi criminal in nature. 344 S.W.2d at 156. The rationale offered in Davis may be fairly summarized as follows: In a contempt proceeding a person faces loss of liberty as well as loss of property. Therefore, the notice requirements are not as binding as they are in a case where he faces only loss of property. That is, the more serious the possible consequences of the judicial proceeding, the more unimportant becomes the necessity of complying with the method by which the court acquires in personam jurisdiction. Those who consider such an argument persuasive would probably describe it as unanswerable when considered in light of the fact that the judgment of imprisonment in a contempt proceeding, unlike the judgment in an ordinary civil case, is not appealable and that, therefore, the person who has been jailed has no opportunity to correct procedural irregularities as does the person who has been deprived of his mule.
      It can safely be predicted that the sky would remain firmly in place even if the statutory provision concerning notice in contempt cases were applied exactly as written without the benefit of judicial editing based on the notion that “ten days’ notice” obviously means “reasonable notice.” Nor would the firmament plunge downward if our courts would, at least, consider the legislative language as an indication that the legislature, in its judgment, considered notice short of ten days suspect, requiring a showing that noncompliance with the mandatory language of the statute did not, in fact, deprive respondent of a reasonable opportunity to prepare his defense, rather than disregarding the language altogether and placing upon respondent who, according to Davis, is entitled to ten days’ notice, the burden of showing that he was not harmed by the disregard of the mandatory language.
      There is, of course, a simple answer to everything contained in this footnote. Courts of Civil Appeals are bound by decisions of the Texas Supreme Court. To attempt to point out that the Supreme Court decisions may not be easily defended is, for an intermediate appellate court, perhaps as futile as the attempt by a respondent to seek relief because the mandatory language of the statute has been disregarded.