author: DAUGHTREY, Judge.

text:
    STATE of Tennessee, Appellant, v. Alfred Eugene GRIZZELL, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 23, 1979.
    Certiorari Denied by Supreme Court June 4, 1979.

      William M. Leech, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Harold B. McDonough, Jr., Asst. Dist. Atty. Gen., Nashville, for appellant.
    Niles S. Nimmo, Nashville, for appellee.
   OPINION

DAUGHTREY, Judge.

The State of Tennessee appeals from the judgment of the trial court dismissing two indictments against the appellee, Alfred Eugene Grizzell, an inmate in the Florida state penitentiary at Raiford, Florida, based on the State’s alleged violation of the Interstate Compact on Detainers, T.C.A. § 40-3901. The State insists that the inmate failed to comply with the mandatory requirements of the Interstate Compact and that the trial judge therefore erred in dismissing the indictments against him. Because we find that dismissal was factually and legally unwarranted, we must reverse the judgment below.

The problems presented by this case stem from Grizzell’s decision to bypass the procedure set up by the Interstate Compact and, instead, to deal directly with Tennessee officials concerning charges pending against him in Tennessee. Article 111(a) of the . Compact provides:

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held ....

Section (b) of Article III requires that the “written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.”

In this case, Grizzell admittedly did not follow the guidelines set out in Section (b). He claimed, however, that he corresponded directly with Tennessee officials, who then failed to bring him to trial within the 180 day period specified in Section (a), and that the indictments pending against him should therefore be dismissed. At the hearing on his motion to dismiss, Grizzell attempted to establish the following chronology:

— He testified that on January 23, 1976, while an inmate at Raiford, he was informed by classification officer Mike Orlando that Tennessee had lodged a detainer against him. Orlando gave him a copy of Form 1, styled “notice of untried indictment, information or complaint and of right to request disposition,” which was introduced into evidence as an exhibit to Grizzell’s testimony. This document detailed the charges against Grizzell that gave rise to the Tennessee detainer and informed him that he could obtain disposition of the charges within 180 days by causing written notice to be served on the prosecutor and the court in the requesting state. The form indicated that in order to make such a request, Grizzell must “notify the Classification Supervisor of the institution” in which he was then confined. Grizzell testified that he told Orlando (whom Griz-zell described as a “classification officer” but “not the chief classification officer”) that he was willing to waive extradition and come to Tennessee for the charges against me.” He said he was never recontacted by Orlando concerning this oral request.
— Instead of making a written request for disposition to the Raiford officials, as he had been instructed to do by Form 1 and as required by Article 111(b), Grizzell testified that he took matters in his own hands. He alleged that he forwarded copies of a pro se motion for speedy trial to the Davidson County Court Clerk and to the Davidson County prosecutor. He testified that the motion had been notarized on March 1 and that it was mailed by the prison notary pursuant to prison regulations. According to his testimony, the motion mailed to the Clerk’s Office was later returned to him in an envelope printed with the address of the Clerk’s Office, but the returned document was not accompanied by a cover letter and it bore no mark indicating that it had been received by the Davidson County Clerk. Grizzell testified that he still had the envelope but said that he had forgotten to bring it with him to Tennessee. The motion allegedly mailed to and returned by the court clerk, which is further discussed below, was introduced as an exhibit to Grizzell’s testimony. At the hearing, the assistant prosecutor stated that a diligent search of the Davidson County District Attorney’s Office had failed to turn up any evidence that Grizzell’s motion was ever received there.
— On April 2, 1976, some two months after Grizzell received the detainer notice, he was indicted by the Davidson County Grand Jury for armed robbery and kidnapping. The District Attorney’s Office initiated extradition proceedings, but was informed on July 12, 1976, that Grizzell was an inmate at the Raiford penitentiary and that the State would have to proceed under the Interstate Compact on Detainers.
— On September 2, 1976, the District Attorney’s Office requested temporary custody of Grizzell, and on December 6,1976, Interstate Compact on Detain-ers Forms 3 and 4 were forwarded to the Davidson County District Attorney’s Office by the Florida Interstate Compact on Detainers Administrator, indicating that Grizzell was an inmate at Raiford and that he was available for temporary release to Tennessee officials.
— According to Grizzell he was returned to Tennessee on April 3, 1977, more than one year after he was first given notice of the detainer originally lodged against him. An attorney was appointed to represent him and filed a motion on May 12, 1977, in which it was asserted that the indictments against Grizzell should be dismissed on the basis of the Tennessee Supreme Court’s opinion in Nelms v. State, 532 S.W.2d 923 (Tenn.1977).

Following the hearing in June, the trial judge entered an order of dismissal which contains these findings and conclusions of law:

It appears from all of the records in this cause, that on or around the first of April 1977, the element was brought into the jurisdiction of this Court. This is in excess of one year after he filed his motion for a speedy trial and an early disposition in accordance with Article 3 of Section 40-3901 of the Tennessee Code Annotated. The defendant cites Nelms vs. State, 532 SW2d 923. This Court has read both the majority opinion and the dissenting opinion of Mr. Justice Harbison. It is this Court’s interpretation that the majority opinion supports the defendant’s motion to dismiss. It is the Court’s further opinion that Mr. Justice Harbison’s dissenting opinion recognizes a distinction between the case wherein the Tennessee officials acted promptly upon being offered custody of the prisoner, as contrasts to a delay occurring “in consummating the details of the transfer”. This latter proposition is exactly what the Court finds to have occurred in this instance.

The Tennessee Supreme Court held in Nelms that the Interstate Compact on De-tainers places no burden on the detainee to insure that he is temporarily released to the demanding state, but requires only that he cause “to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for final disposition.” T.C.A. § 40-3901, Article 111(a).

In that case the Shelby County prosecutor had made a request for temporary custody of Nelms to the appropriate Iowa officials, under the Interstate Compact on De-tainers. Two days after Nelms made a proper written request for final disposition of his case within 180 days, and a copy of this written form was subsequently received in the Shelby County District Attorney’s Office. However, the Iowa officials negligently failed to send a timely offer of release and the Tennessee authorities took no further action on the request for some seven months. Nelms was tried in April 1974, more than 180 days after his request under Article 111(a) of the Interstate Compact. The State maintained that the Iowa authorities’ failure to comply with the applicable Interstate Compact provisions amounted to a denial of Tennessee’s request for temporary custody and thus was sufficient to toll the running of the 180 day period. The court ruled that Nelms “should not be charged with the responsibility of insuring that his captors have complied with provisions of the law when he has no control over their activities.” 532 S.W.2d at 926-7. Thus the indictment in Nelms was dismissed with prejudice to the State for failure to comply with the 180 day limitation.

This court extended the Nelms rule in Burns v. State of Tennessee, 578 S.W.2d 650 (Tenn.Cr.App.1978). In that case Burns, a Pennsylvania inmate, had been notified of Tennessee’s request for temporary custody and had sent a written request to the designated Pennsylvania prison official asking for final disposition of the Tennessee charge. However, the inmate’s request was not forwarded by the warden to the appropriate Tennessee official, and more than 180 days passed before Burns was returned to Tennessee for trial. This court held, based on the ruling in Nelms, that “after a detain-er has been filed the [180 day limitation of the] Interstate Compact is triggered when a prisoner gives his captors notice of his request for final disposition of untried charges against him in compliance with Article 111(b),” and that any negligence on the part of the sending state in failing to notify officials in the receiving state is “not imputable to a prisoner and does not defeat the prisoner’s rights under the Interstate Compact (emphasis added).”

Both Nelms and Burns are consistent with Interstate Compact decisions in other jurisdictions. See, e. g., Rockmore v. State, 21 Ariz.App. 388, 519 P.2d 877 (1974); Pittman v. State, 301 A.2d 509 (Del.1973); People v. Esposito, 37 Misc.2d 386, 238 N.Y.S.2d 460 (1960). However, the State argues that Nelms and Burns are not controlling here because Grizzell failed to comply with the mandatory provisions of the Interstate Compact when he did not send notice of his request to the Davidson County court and prosecutor by registered or certified mail, return receipt requested, and did not include a certificate of inmate status, as required by Article 111(a) and (b) of the Interstate Compact. Grizzell responds that these technicalities should not be invoked to defeat his statutory right to a speedy disposition of the charges against him, relying on the liberal interpretation of the statute exemplified in Nelms.

We are fully cognizant that the “remedial nature of [the Interstate Compact] requires that it should be construed liberally in favor of those it was intended to benefit.” Nelms v. State, supra, 532 S.W.2d at 927. If the only problem here were a failure by the Florida authorities to execute and provide Grizzell with written certification of his status as an inmate, or to utilize proper mailing procedures, we would be more likely to agree that Nelms and Burns are controlling and that Tennessee law should permit prosecution of these indictments. However, there is no credible evidence here of negligence or of dilatory behavior by either Florida or Tennessee officials. In other words, the default here is not the result of any action or inaction by state officials, but is attributable solely to the conduct of the prisoner. Thus the issue before us is whether the inmate, when he chooses to deal directly with officials in the requesting state, is bound by the same requirements as would be the officials of the sending state, once they receive notice from the prisoner as set out in Article 111(b). We hold in the affirmative.

There are sound practical reasons for requiring prison officials to include a certificate of inmate status and to use registered or certified mail in notifying the requesting state of a request for disposition. As one court has noted, the certificate “serves to fully inform the requesting state officials of the prisoner’s status, thus allowing the State’s attorney to make a rational decision regarding the disposition of the case.” People v. Daily, 46 Ill.App.3d 195, 4 Ill.Dec. 756, 763, 360 N.E.2d 1131, 1138 (1977). Moreover, the requirement that written notice of the inmate’s request for final disposition be sent by registered or certified mail is more than a mere technicality. Indeed, as more fully set out below, the wisdom of the policy served by this requirement is well documented by the record in this case.

For despite the trial court’s implicit finding that the March 1 pro se motion constituted notice to the Davidson County officials of the inmate’s desire to proceed under the Interstate Compact sufficient to trigger application of the 180 day limitation, we have grave doubts that the record actually supports this conclusion, primarily because of the nature and condition of the document by which Grizzell claims to have given notice. His “motion for a speedy trial” appears on a sheet of paper separate from two other pages stapled to it, one of which is styled “oath of insolvency” and the other “certification of service.” The motion has quite obviously been typed on a different typewriter from the other two sheets, and it is not itself dated or notarized, even though there is sufficient space at the bottom of the page to have permitted dating and notarization. The second sheet, labelled “oath of insolvency,” is notarized and dated March 1, 1976. It makes no direct reference to a motion for a speedy trial, but says only that the “affiant herein, hereby swears that he has no money or property to pay the fee for filing these papers and that he has not divested himself of anything of value to enable him to take this oath of insolvency. .” The certificate of service, similarly “sworn and subscribed to this 1 day of March, 1976,” reads “I hereby certify that I have this day sent true and exact copies of these papers to the Clerk of Court, and the States Attorney, at the following addresses. . ” This certification, like the pauper’s oath which precedes it, makes no direct reference to a motion for a speedy trial, but refers only vaguely to “these papers.”

Grizzell admits that he himself did not mail the three paged document he produced at the hearing. However, he does not allege that it was not mailed by the notary, but says that the copy in his possession was actually returned to him by the clerk’s office. As noted above, there is no extrinsic proof in the record to support Grizzell’s allegations that the motion was mailed in the first place, and the prosecutor’s statement that neither the other copy of the motion nor any record of its receipt could be located in his office tends to support the conclusion that the motion was not in fact executed and mailed as Grizzell testified that it was. We thus conclude that the evidence in this record preponderates against the finding of the trial court, and under these circumstances, we are not bound by the finding of fact below. McKeldin v. State, 534 S.W.2d 131 (Tenn.Cr.App.1975).

It seems obvious to us that the difficulties encountered here, both of giving and receiving statutory notice and of proving notice at a later time, would have been avoided entirely had the inmate followed the requirement that notice be furnished by registered or certified mail with return receipt requested. While we have no basis beyond speculation for concluding that a fraud has been perpetrated in this case, it is also obvious that if the notice requirements of the Interstate Compact on Detainers are relaxed to the extent sought here, an inmate could forego his rights under the Interstate Compact, wait more than 180 days, and then produce a bogus motion or other written “notice” of his desire for speedy disposition, swearing that it had been mailed (and returned to him) in substantial compliance with the provisions of the Interstate Compact, and thus prevent prosecution altogether. As one court has noted, the failure of an inmate to comply with statutory procedure, after being notified of the requirements of the statute, may lead to a reasonable inference that the inmate is “ambushing” the authorities involved. Ekis v. Darr, 217 Kan. 817, 539 P.2d 16, 22 (1975).

It has generally been recognized that the courts will not require strict compliance with the provisions of the Interstate Compact, but only require “a good faith, diligent effort by prisoner to invoke the statute . . . ” by giving “written notice to the official having custody of him.” People v. Daily, supra, 4 Ill.Dec. at 762, 360 N.E.2d at 1137 (1977). Tennessee law provides that once this procedure has been followed subsequent adverse consequences caused by the negligence of officials in either the sending or the receiving state do not inure to the detriment of the inmate, but must be borne by the officials. Nelms v. State, supra; Burns v. State, supra. However, it has also been recognized that “whenever the prisoner does not rely upon the official having custody of him or simply ignores the official altogether and attempts to communicate directly with the requesting state, the burden of omission no longer rests upon the sovereign, but must be shouldered by the prisoner.” People v. Daily, supra, 4 Ill.Dec. at 762, 360 N.E.2d at 1137. Accord State v. Savage, 522 S.W.2d 144 (Mo.App.1975); Beebe v. State, 346 A.2d 169 (Del.Sup.1975). A less stringent interpretation, it is feared, “would reduce the notice and certificate requirements of Article III to a nullity and would attribute to [the] Legislature and to the signatory states a meaningless act in articulating the statutory requirements” of the Interstate Compact. State v. Brockington, 89 N.J.Super. 423, 215 A.2d 362, 366 (1965). And, as noted above, “[a]nother concern of the courts in requiring strict compliance when the prisoner proceeds pro se involves the justifiable fear that the prisoner might be manipulating the statute ‘to frustrate the effort of the prosecution to give him the benefit of that very provision.’ ” People v. Daily, supra, 4 Ill.Dec. at 762, 360 N.E.2d at 1137, quoting State v. Masselli, 43 N.J. 1, 202 A.2d 415, 421 (1964).

Thus, it was held in Isaacs v. State, 31 Md.App. 604, 358 A.2d 273 (1976) that when he is proceeding pro se, the prisoner’s failure to send a certificate of inmate status along with his request for disposition is fatal to that request. So also, relief has been denied where the prisoner failed to notify both the prosecuting officer and the appropriate court. See Beebe v. State, supra (prisoner’s letter to “Clerk of the Circuit Courthouse” held not to satisfy statutory requirements); Ekis v. Darr, supra (notice sent to wrong court); State v. Savage, supra (notice sent to wrong prosecuting official); People v. Daily, supra (failure to send notice to prosecutor); Baker v. Schubin, 72 Misc.2d 413, 339 N.Y.S.2d 360 (1972) (failure to sent notice to prosecutor). Moreover, in reported cases such as Daily, Savage, Beebe, Brockington, Isaacs, Ekis v. Darr et al., there was substantial proof of the prisoner’s attempt to serve written notice on officials of the requesting state, whatever legal deficiencies might have existed in connection with the written request. Here, however, we have a record which, factually speaking, fails to establish that written notice was ever given by the inmate or received by the proper officials.

While we are not prepared to bar an inmate from making a request for disposition under Article III on his own behalf, we do hold that in the event of a knowing bypass of the statutory procedure, the burden is on the prisoner to demonstrate strict compliance with the notification and certificate requirements of Sections (a) and (b) of Article III. To paraphrase the Beebe court:

It is one thing for an official having custody to refuse to process a request and thus leave the prisoner to communicate as best he can with the State which has lodged a detainer for him. That was [Nelms]. It is quite a different matter, however, when a prisoner simply ignores the official having custody of him and attempt to communicate with the requesting state. That is this case and the difference from [Nelms] is significant and determinative.

Beebe v. State, supra, 346 A.2d at 171.

Because we find that the record fails to establish the existence of written notice as required by T.C.A. § 40-3901, Article 111(a) and (b), either to the officials of the sending state Florida or to the proper authorities in the requesting state (Tennessee), we hold that the prisoner is not entitled to the protection of the time limitation contained in Section (a). Moreover, even if such notice had been satisfactorily established, the record shows that the inmate proceeded outside the requirements of Article 111(a), so that the legal deficiencies here are not the result of negligence by public officials, but are attributable solely to the inmate himself. Under these circumstances, the inmate’s burden of. demonstrating strict compliance with the requirements of the Interstate Compact has not been met, and it follows that the trial court erroneously determined that the running of the 180 day period began on March 1, 1976. In short, there is no satisfactory evidence that the statutory period was ever triggered in this case, and for this reason it cannot be said to have expired. We are thus led to the conclusion that Grizzell’s motion to dismiss should have been overruled.

The judgment of the trial court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

RUSSELL, P. J., and TATUM, J., concur.

      . The trial court’s order pretermits the question of'whether proof of an oral request to an employee of the institution would be sufficient to trigger the running of the 180 day period. Nevertheless, other than Grizzell’s self-serving statement, there is no proof to support his assertion that he made such a request, and the name Mike Orlando does not appear on a list of subpoenas requested by Grizzell. Although the question is not raised here, we think the record clearly fails to establish the existence of a written request by Grizzell to the Florida authorities, as required by Article 111(b), nor is there sufficient evidence upon which to hold that there was substantial compliance with the statute by means of an oral request. This point becomes relevant to our discussion below concerning the inmate’s purported decision to bypass communication with Florida authorities and instead to deal directly with Tennessee officials.

      . These documents, introduced collectively as an exhibit at the hearing, include Form 3, styled “certificate of inmate status” (dated October 5, 1976) and Form 4, “offer to deliver temporary custody.” A .notation on Form 3 refers to Form 2, “inmates request for disposition under Article III,” which should be attached where disposition is requested by the prisoner. Alternately, the prosecutor in the requesting state may initiate proceedings for disposition under Article IV in the absence of a request by the inmate. That is apparently what occurred in this case, and there is no proof anywhere in this record that Grizzell ever executed Form 2 requesting disposition.

      . The inmate testified that he secured the names and addressed by writing the Vanderbilt University School of Law in Nashville. However, there are no names on the certification, only titles. Furthermore, the Court takes judicial notice that the titles are incorrect (“Circuit Court, Criminal Division”; “Hon. States Attorney, Criminal Division”) and the only address given is “Davidson County Courthouse, Nashville, Tennessee,” followed by an incorrect zip code number.


source: Caselaw Access Project

author: McGEE, Justice.

license: Public Domain

text:
    Ex parte Aubrey Jerald GORDON.
    No. B-8101.
    Supreme Court of Texas.
    April 4, 1979.

      Butler, Binion, Rice, Cook & Knapp, Tom Alexander and Norman J. Riedmueller, Houston, for relator.
    John D. Wooddell, Austin, for respondent.
   McGEE, Justice.

This is an original habeas corpus proceeding. Relator Aubrey Jerald Gordon petitioned this court, seeking release from the Travis County jail where he was confined for fourteen days under the district court’s order of commitment. We released the relator on bond pending our resolution of the case. The central issue presented is whether the relator was afforded proper notice of the contempt charge of which he was ultimately convicted.

On June 26,1978, the State of Texas filed an original petition, seeking to place certain related insurance companies into receivership. Named as defendants were The Phoenix Companies, Inc., d/b/a The Phoenix Companies, and Eagle Financial Services, Glowia Lee Gordon, Buddy W. Gregory, Robert W. Martin, Phoenix Fidelity Life Insurance Company and General Protective Life Insurance Company. Relator, as an officer of the companies, was also named as a party defendant. The original petition sought a temporary restraining order, a temporary injunction and the appointment of a temporary receiver. That same day a combined “Temporary Restraining Order and Order Appointing Temporary Receiver” (hereinafter T.R.O.) was signed by the court. By its own terms, this combined' order was to expire ten days after its rendition. On July 6, 1978, the day the T.R.O. expired, an “Agreed Order for a Temporary Injunction and Order Continuing Temporary Receivership” (hereinafter temporary injunction) was signed by the court.

On November 22, 1978, the receiver filed an instrument captioned “Motion for Contempt,” which named relator as respondent and alleged that he had violated the terms of the temporary injunction in several particulars by disposing of or concealing receivership property. After examining this contempt motion, the court signed an “Order to Show Cause.” The show cause order, however, directed the relator to appear and show cause why he should not be held in contempt for refusing to comply with the “Temporary Restraining Order and Order Appointing Temporary Receiver.” Hearing was set for November 29, 1978.

On the day of the hearing, relator filed a motion to vacate the show cause order. He argued that the T.R.O. expired by virtue of its own terms on July 6, 1978, and therefore, he could not be guilty of alleged contemptuous acts committed subsequent to the expiration of that order. The receiver conceded that the show cause order erroneously referred to the T.R.O., but argued that there was “no confusion in anybody’s mind about the injunction against these people. . . . ” The court overruled the relator’s motion and proceeded to take evidence as to whether there had been a failure to comply with the temporary injunction. That same day an order was rendered holding the relator in contempt for disobeying the temporary injunction and sentencing him to fourteen days’ confinement in the Travis County jail.

In support of his petition for habeas corpus, relator argues that the contempt order is void inasmuch as he was ordered to show cause why he should not be held in contempt for violating the T.R.O., but without proper notice was held in contempt for violating the temporary injunction. We agree and discharge the relator.

A writ of habeas corpus is available in this state to review a contempt order entered by a lower court confining a con-temnor. The remedy is in the nature of a collateral attack and its purpose is not to determine the ultimate guilt or innocence of the relator, but only to ascertain whether the relator has been unlawfully imprisoned; Where the judgment ordering confinement is “void,” the confinement is illegal and the relator is entitled to discharge. See, Ex parte Rhodes, 163 Tex. 31, 34, 352 S.W.2d 249, 250 (1961); Ex. parte Trodlier, 554 S.W.2d 793, 794 (Tex.Civ.App. — San Antonio 1977, no writ); Greenhill & Beirne, Ha-beas Corpus Proceedings in the Supreme Court of Texas, 1 St. Mary’s L.J. 1, 6, 11 (1969). As detailed below, the absence of notice of the contempt charge may render the order void and the confinement illegal.

Contemptuous conduct may be classified as either direct or constructive. Direct contempt occurs within the presence of the court; for example, an affront to the dignity of the court or disruptive conduct in the courtroom. Constructive contempt, on the other hand, is contemptuous conduct outside the presence of the court, such as the failure or refusal to comply with a valid court order. Ex parte Werblud, 536 S.W.2d 542, 546 (Tex.1976); Ex parte Ratliff, 117 Tex. 325, 327-28, 3 S.W.2d 406, 406-08 (1928); Comment, Contempt of Court in Texas, 14 S.Tex.L.J. 278, 285-86 (1973).

As we stated in Werblud, “this distinction has more significance than merely identifying the physical location of the contemptuous act, since more procedural safeguards have been afforded to constructive contemnors than to direct contemnors.” 536 S.W.2d at 546. Direct contemnors are not entitled to notice of the contempt charge or a hearing because there is no factual dispute arising from contemptuous behavior that occurs in the court’s presence. Ex parte Ratliff, 117 Tex. 325, 327, 3 S.W.2d 406, 406 (1928). In situations of constructive contempt, however, the court may not act in such a summary fashion. Due process of law requires that the constructive contemnor be given “full and complete notification” and a reasonable opportunity to meet the charges by way of defense or explanation. Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex.1969); accord, Ex parte Ratliff, 117 Tex. 325, 328, 3 S.W.2d 406, 407 (1928). As such, the court must issue a valid show cause order or equivalent legal process apprising the contemnor of the accusation. Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex.1969); Ex parte Hodge, 389 S.W.2d 463, 463 (Tex.1965). A contempt judgment rendered without such notification is a nullity. Ex parte Ratliff, 117 Tex. 325, 327-28, 3 S.W.2d 406, 407 (1928).

It is undisputed that relator was charged and found guilty of constructive contempt in that he failed to comply with a court order. Therefore, we must determine from an examination of the record whether he was afforded notice of the charge upon which he was ultimately convicted. The following excerpt from the November 29th contempt proceeding is pertinent:

MR. BROWN [attorney for relator]: Your Honor, the Respondent, Aubrey Jerald Gordon, most respectfully presents to the court a Motion to Set Aside the Show Cause Order. . . . The Show Cause Order itself, in essence, says, ‘Aubrey Jerald Gordon is to appear this date and time in this court to show cause why he should not be held in and punished for contempt of this court for his conduct in refusing to comply with this court’s Temporary Restraining Order and Order Appointing Temporary Receiver.’
[The T.R.O.] . . . expired by its terms on the face of the Order at 9:00 o’clock A.M. on the 6th day of July, 1978. So that is the life of that restraining order. .
The Motion for Contempt alleges acts occurring subsequent to the death of that order. It is impossible for him to be in contempt of these allegations of the Restraining Order and we would move the Show Cause Order be set aside, Your Honor.
THE COURT: The only thing set for today is the Motion for Contempt?
MR. BROWN: That is it, the particular Order to Show Cause.
MR. HARRIS [Attorney for the receiver]: Your Honor, there was entered on July the 6th, an order, agreed Order of Temporary Injunction, ordering a temporary receivership; and let me show the court the Order.
The application, the Show Cause Order by error refers back to the T.R.O. and not this one [temporary injunction]. This is the one we are here on today, .
MR. BROWN: If it please the court, this is a contemptible proceeding this morning and as such, it has fine and imprisonment possibilities and therefore, the Respondent is entitled to proper notice, .
The Order to Show Cause specifically says, ‘. . . refusing to comply with this court’s Temporary Restraining Order.’ We are ready on that, Your Honor. We did not violate and could not, by these allegations on its face. The Temporary Restraining Order that is the only thing that is set for this morning before this court.

As aforementioned, the lower court overruled the relator’s motion and proceeded to receive evidence as to whether there was a violation of the temporary injunction. The show cause order was not amended and an order holding relator in contempt was rendered the same day. Under these circumstances, we are of the opinion that the relator was not afforded notice of the charge against him, and consequently, that he was denied due process of law.

In Ex parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961), we noted that a contempt proceeding was unlike an ordinary civil proceeding. The alleged contemnor may not ignore the show cause order as he might ignore citation in a civil suit, for if he does he may be brought in under a capias. The hearing has some of the incidents of a trial for crime inasmuch as penal sanctions may be imposed and the alleged con-temnor’s appearance, not being voluntary, cannot be taken as a consent to trial on other charges. 161 Tex. at 564-65, 344 S.W.2d at 155-56.

In a recent habeas corpus proceeding before this court, Ex parte Padron, 565 S.W.2d 921 (1978), we discharged a relator under analogous facts. The court reasoned:

The charge against Mr. Padrón, the one about which he was given notice to appear and on which he appeared in court and defended himself, was that he had violated the written order of March 15, 1977. His defense was that neither the March 15, 1977, order nor any other prior order had required his signature. Mr. Padrón established a complete defense to the charge which brought him before the court.

Id. at 924 (emphasis added). We concluded “that a judgment convicting one of contempt is void when the order was based upon matter foreign to the accusation of contempt.” Id. at 925 (citing Ex parte Ratliff, 117 Tex. 325, 3 S.W.2d 406 (1928)).

Similarly, the relator in the present case was ordered to show cause why he should not be held in contempt for refusing to comply with the T.R.O. Relator appeared and attempted to defend this accusation on the basis that the alleged acts occurred after the expiration of that order. The court nevertheless rendered a contempt judgment predicated upon an accusation different from that contained in the order to show cause.

The receiver argues that the show cause order and the motion for contempt taken together provided the relator with ample notice that the violations of the temporary injunction were the contemptuous acts in question. We disagree. The motion and the show cause order taken together create an ambiguity as to which order was allegedly violated. In such situation, the relator was justified in relying on the accusation of contempt as contained in the legal order of the court — the show cause order.

We are not unmindful of the purpose the lower court sought to accomplish in the present contempt proceeding. Nevertheless, constitutional due process of law requires that notice of the accusation, an opportunity to prepare a defense, and an opportunity to be heard be afforded to the alleged constructive contemnor. We therefore hold that in situations of contempt committed outside the presence of the court, the contempt judgment must be based on a valid show cause order or equivalent legal process that contains full and unambiguous notification of the accusation of contempt. In view of this holding, relator’s other points need not be considered.

The relator is discharged.

GREENHILL, C. J., notes his dissent.

      . This order also suspended relator’s sentence provided that he comply with certain expurgation provisions within fourteen days. After finding Mr. Gordon’s attempted compliance unacceptable, the court issued an “Order of Commitment” on December 14, 1978.


author: GREEN HILL, Chief Justice. JOHNSON, Justice,

text:
    GENERAL ELECTRIC CREDIT CORPORATION et al., Petitioners, v. Roynold A. SMAIL et ux., Respondents.
    No. B-7866.
    Supreme Court of Texas.
    April 25, 1979.

      Key, Carr, Evans & Fouts, Yvonne M. Faulks and Donald M. Hunt, Travis D. Shelton & Associates, Dennis W. McGill, Lubbock, for petitioners.
    Walters & Associates, James A. Walters and Steven M. Sucsy, Lubbock, for respondents.
   GREEN HILL, Chief Justice.

Roynold A. and Laverne Smail instituted this suit in the District Court of Lubbock County to recover for damages resulting from alleged breaches of warranty in the sale of, and installation of, a mobile home. Named as defendants were Sequoya Mobile Homes, Inc. (“Sequoya”), the manufacturer of the mobile home, and Glenn Crawford, d/b/a Crawford Mobile Homes (“Crawford”), the retail dealer of the mobile home. The Smails further alleged that Crawford and General Electric Credit Corporation (“General Electric”), the assignee of the Smails’ installation contract, violated the Federal Truth in Lending Act (“Federal Act”) and the Texas Consumer Credit Code (“Texas Act”).

The trial court, relying in part upon the jury’s verdict, rendered a take-nothing judgment. The Court of Civil Appeals in Smail v. Sequoya Mobile Homes, Inc., 568 S.W.2d 385 (Amarillo 1978), affirmed the take-nothing judgment of the trial court on the cause of action based upon the alleged breaches of warranty and the Texas Consumer Credit Code. It severed the cause of action which alleged violations of the Federal Act, and reversed the take-nothing judgment and rendered the statutory judgment of one thousand dollars in favor of the Smails. Since the Federal Truth in Lending Act provides for the award of attorney’s fees, and such were not determined in the trial court, the Court of Civil Appeals also severed the claim for attorney’s fees and remanded the case for a determination of that amount. We affirm the Court of Civil Appeals judgment as to the alleged warranty defects and Texas Act violations and reverse its judgment as to the alleged violations of the Federal Act; and in doing so, we affirm the take-nothing judgment of the trial court.

The Smails purchased a Sequoya mobile home from Crawford on September 21, 1974. They executed a document which was entitled a “Retail Installment Contract Vehicle Security Agreement” (“contract” or “agreement”) which was immediately assigned by Crawford to General Electric. The contract was printed on the front and back of a single sheet of paper with the buyer’s signature at the bottom of the front or face of the agreement. The contract recited that the Smails had made a cash down payment of $950.00 on a purchase price of $9,457.00, leaving as an unpaid balance $8,507.00. When added to the costs of property insurance, taxes, fees, and tags, the total amount financed by General Electric was $9,711.90. The record reflects that the Smails have kept their payments up-to-date.

Since the day the mobile home was first delivered, the Smails have had complaints about its condition. They contended that the doors and windows would not shut properly and that there was a possibility that the frame was not constructed properly. Despite several minor adjustments made by Sequoya and Crawford, the Smails were not satisfied; and they brought this lawsuit to recover on their warranty and to recover for the alleged violations of the Federal and Texas Acts.

The jury found that the mobile home was free from substantial manufacturing defects in design or workmanship or materials at the time it was delivered to Crawford by Sequoya; that the mobile home was fit for the ordinary purpose for which such mobile homes are intended to be used; that at the time the Smails purchased the mobile home in question, it was in the same condition as it was in when it was delivered to Crawford by Sequoya; that the fair market value of the mobile home in the condition the mobile home was in at the time the Smails purchased it was $9,457.00 (the actual purchase price of the mobile home was $8,807.00). Furthermore, the jury did not find that any of the damage to the mobile home was caused by improper installation procedures by Crawford. The Court of Civil Appeals affirmed these findings, and the Smails have not appealed that part of the decision to this court.

A. Federal Truth in Lending Act

The Smails have alleged that several violations of the Federal Truth in Lending Act were contained in the retail sales installment contract provided for, and executed by, Mr. Smail in the purchase of their mobile home. Under the Federal Act a plaintiff is limited to one recovery even if multiple violations occur. 15 U.S.C.A. § 1640(g); and Tinsman v. Moline Beneficial Finance Co., 531 F.2d 815 (7th Cir.1976). So all parties agree that if the act has been violated, whether once or more, the Smails are entitled to the statutory penalty of one thousand ($1,000.00) dollars plus costs and reasonable attorney’s fees. 15 U.S.C.A. § 1640(a).

The Court of Civil Appeals found that the contract violates 12 Code of Federal Regulations § 226.801(b) because the place provided for the buyer’s signature is not below the full contents of the document; and because the agreement fails to show on both sides the words: “Notice: see other sides for important information.” As stated above, the terms of the contract appear on both sides with the signature line at the bottom of the face or front of the contract.

Although the agreement does not use the exact language suggested in 12 Code of Federal Regulations § 226.801(b), it does contain on the face the following phrase:

“THE TERMS OF THIS CONTRACT ARE ON BOTH SIDES OF THIS PAGE.”

Furthermore, on the reverse side the following sentence is found after the additional terms and conditions:

“(See other side for Buyer’s signature).”

On Motion for Rehearing in the court below, General Electric argued that the above-quoted passages substantially complied with section 226.801(b). The jury in the trial court had made a finding to that effect. The Court of Civil Appeals noted quite correctly that the availability of substantial compliance as a defense to violations of the Federal Act is somewhat in doubt. The court below went on to hold that as a matter of law General Electric did not substantially comply with the notice provisions of section 226.801(b). Furthermore, it stated that in order not to thwart the purpose of the “regulation” the signature must follow the full content, and not just the required disclosures. We hold that section 226.801(b) is not applicable to the contract in question.

The Federal Truth in Lending Act was enacted “. . .to assure a meaningful disclosure of credit terms so that a consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” 15 U.S.C.A. § 1601; and Mourning v. Family Publications Service, Inc., 411 U.S. 356, 364, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973). Congress delegated to the Federal Reserve Board the duty of prescribing the regulations necessary to effectuate the purposes of the Federal Act. 15 U.S.C.A. § 1604. The Board under the power granted to it by Congress in section 1604 promulgated Regulation Z, 12 Code of Federal Regulations §§ 226.1 et seq. Regulation Z is the name commonly used to describe the regulations published by the Federal Reserve Board to effectuate the Truth in Lending Act.

These administrative regulations, even though authorized by a statute, are not the same as statutes. Congress alone can enact a statute. United States v. Mersky, 361 U.S. 431, 80 S.Ct. 459, 4 L.Ed.2d 423 (1960). However, those regulations promulgated under an enabling statute, or which Congress has declared will be the equivalent of a statute, have the force and effect of law. Batterton v. Francis, 432 U.S. 416, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977). These regulations have been termed “legislative rules.” One authority describes these Congressionally-authorized regulations or “legislative rules” as follows:

A legislative rule is the product of an exercise of legislative power by an administrative agency, pursuant to a grant of legislative power by the legislative body. In the clearest case of a legislative rule, a statute has conferred power upon the agency to issue the rule and the statute provides that the rule, if within the granted power, shall have the force of law. But a legislative rule may rest upon an implied or an unclear grant of power as well as upon an express and clear grant of power. When a rule is legislative, the reviewing court has no authority to substitute judgment as to the content of the rule, for the legislative body has placed the power in the agency and not in the court. A legislative rule is valid and is as binding upon a court as a statute if it is (a) within the granted power, (b) issued pursuant to the proper procedure, and (c) reasonable. The requirement of reasonableness stems both from the idea of constitutional due process and from the idea of statutory interpretation that legislative bodies are assumed to intend to avoid the delegation of power to act unreasonably.

K. DAVIS, ADMINISTRATIVE LAW TREATISE § 5.03 (1958 ed. and Supps.).

“Regulation Z” is a series of regulations which are in fact “legislative rules,” and therefore have the force and effect of federal law. Congress specifically passed the Federal Act with provisions for the Board to pass regulations to prevent circumvention and evasion of the law. The United States Supreme Court in Mourning v. Family Publications Service, supra, stated that the force and effect and standard of review of the Board’s authority was “well established.” It further held:

Where the empowering provision of a statute states simply that the agency may “make . . . such rules and regulations as may be necessary to carry out the provisions of this Act,” we have held that the validity of a regulation promulgated thereunder will be sustained so long as it is “reasonably related to the purposes of the enabling legislation.” Thorpe v. Housing Authority City of Durham, 393 U.S. 268, 280-281, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969). See also American Trucking Assns. v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337 (1953).

411 U.S. at 369, 93 S.Ct. at 1660-1661. As Professor Davis states: “Regulation Z is in all respects a legislative rule, binding on the court as if it were a statute unless the court has some reason to find it invalid.” K. DAVIS, ADMINISTRATIVE LAW TREATISE § 5.03-3 (Supp.1976).

There are two other sources which are used by the Federal Reserve Board to effectuate the Federal Act. There are Federal Reserve Board Interpretations of Regulation Z, and there are Federal Reserve Board staff opinions which explain the statute, regulations, and interpretations, usually in a question and answer form. The interpretations, although promulgated by the Federal Reserve Board, are not subject to the procedural review requirements of section 4 of the Administrative Procedure Act, and therefore are not given the status of Board regulations. While not having the effect of law, these interpretations by the Board of their own regulations are entitled, like the “interpretive rules” of other agencies, to “great deference.” Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Bone v. Hibernia Bank, 493 F.2d 135 (9th Cir. 1974); and Allen M. Campbell Company General Contractors, Inc. v. Lloyd Wood Construction Co., 446 F.2d 261 (5th Cir. 1971).

Federal Reserve Board staff opinions, although not as authoritative as Board interpretations, are entitled to weight when they concern the construction of a Board regulation or interpretation and are not in conflict with the Truth in Lending Act, a regulation, or an interpretation. Pollock v. General Finance Corporation, 552 F.2d 1142 (5th Cir. 1977). In Pollock the court said:

The force with which these least authoritative pronouncements are allowed to press on the judicial scales, however, must vary with the circumstances of each case. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1943); General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976).

The Court of Civil Appeals in the instant case held that General Electric was liable .for violating 12 Code of Federal Regulations § 226.801. The court mistakenly refers to this section as a “regulation.” Such is not the case as section 226.801 is a Federal Reserve Board interpretation of Regulation Z. Section 226.801 of 12 Code of Federal Regulations states:

§ 226.801 Location of disclosures when contract, security agreement, and evidence of transaction are combined in a single document.
(a) Some creditors incorporate the terms of a contract, a security agreement and evidence of a transaction in a single document. These documents are designed for processing by mechanical and electronic equipment. If all of the required disclosures under § 226.8 should be placed on the face of such a document, the creditor will be unable to utilize conventional accounting and record keeping equipment because of the size of the re-suiting document. The question arises as to whether required disclosures may be made on the face and the reverse side of such a document.
(b) Where a creditor elects to combine disclosures with the contract, security agreement, and evidence of a transaction in a single document, the disclosures required under § 226.8 shall, in accordance with § 226.6, be made on the face of that document, on its reverse side, or on both sides: Provided, That the amount of the finance charge and the annual percentage rate shall appear on the face of the document, and, if the reverse side is used, the printing on both sides of the document shall be equally clear and conspicuous, both sides shall contain the statement “NOTICE: See other side for important information,” and the place for the customer’s signature shall be provided following the full content of the document, [original emphasis]

Part (a) of section 226.801 specifically points out the problem that exists in documents “designed for processing by mechanical and electronic equipment.” Part (b) provides that the disclosures required under section 226.8 and section 226.6 may be made on both sides if the proper notices are given. This section obviously refers to the problem of making a form small enough for use by mechanical and electronic equipment. It is a narrow exception to the general rule that required disclosures must be made on the same side of the instrument above the signature.

Indeed, the Federal Reserve Board has discussed this interpretation in several of its staff opinions. As stated above, this court is not bound by these opinions, but will in appropriate cases give these opinions deference. In a letter opinion of February 10, 1977, found in 5 CCH Consumer Credit Guide ¶ 31,536, the Board wrote:

It appears that you have misunderstood the intent of § 226.801. As explained in prior Public Information Letters . this interpretation was written to alleviate a specific problem, and it only applies when the contract, security agreement (if any), are combined in a single document designed for processing by mechanical or electronic equipment . . . .”

This has been the consistent interpretation of the Board since the regulation was promulgated in May 1969. See also, 5 CCH Consumer Credit Guide ¶ 31,147 (Letter of July 31, 1974) and 5 CCH Consumer Credit Guide ¶ 31,356 (Letter of March 19, 1976).

The Fifth Circuit when facing a similar situation not only gave these letter opinions great weight, but went further to indicate that without these staff opinions which give section 226.801 a very limited application, section 226.801 might be considered an improper amendment to Regulation Z. Charles v. Krauss Co., 572 F.2d 544 (5th Cir. 1978). It stated:

So long as the section 226.801 exception is limited to electronic and mechanical equipment as set out in the staff opinion letters, we think this Interpretation is sufficiently circumscribed that it need not be treated as a substantive change in the one-side rule of Regulation Z.

The court went on to directly hold that 12 Code of Federal Regulations § 226.801 was limited to the narrow circumstance of forms designed for processing by electronic and mechanical devices.

In Smith v. Chapman, 436 F.Supp. 58 (W.D.Tex.1977), the defendant tried to use section 226.801 as a defense for the actions he had undertaken. The court there held that:

[t]his Interpretation is' applicable only when all the disclosures cannot be put on one side because the form will not accommodate all the disclosures because it is designed for processing by mechanical and electronic equipment.

There is no evidence, nor have the Smails ever contended, that the contract in the instant case was intended for processing by mechanical and electronic equipment. Therefore, General Electric cannot be held liable for its failure to comply with the provisions of section 226.801.

Although section 226.801 does not apply, the contract must still conform with the requirements of Regulation Z. Section 226.8(a), which is a regulation as opposed to an interpretation, provides in summary that all of the disclosures required under section 226.8(b) must be made together on the same side of the page and above the customer’s signature. See also Southwestern Investment Co. v. Mannix, 557 S.W.2d 755 (Tex.1977). This contract contains all the required disclosures on the face of it above Mr. Smail’s signature. We disagree with the Smails’ contention that some required disclosures were contained on the back of the agreement; and therefore hold that this contract does not violate the “one-side” rule of Regulation Z.

Also alleged is a violation of the Federal Truth in Lending Act in that the contract fails to adequately disclose the cost of property insurance as is required in 15 U.S.C.A. § 1605(c). Article 15 U.S.C.A. § 1605(c) states:

(c) Charges or premiums for insurance, written in connection with any consumer credit transaction, against loss of or damage to property or against liability arising out of the ownership or use of property, shall be included in the finance charge unless a clear and specific statement in writing is furnished by the creditor to the person to whom the credit is extended, setting forth the cost of the insurance if obtained from or through the creditor, and stating that the person to whom the credit is extended may choose the person through which the insurance is to be obtained.

The Smails also claim violations of two similar regulations: 12 Code of Federal Regulations § 226.4(h) and 12 Code of Federal Regulations § 226.4(a)(6). The latter concerns the necessity of including the insurance premium as part of the finance charge:

(6) Charges or premiums for insurance, written in connection with any credit transaction, against loss of or damage to property or against liability arising out of the ownership or use of property [shall be included in the finance charge], unless a clear, conspicuous, and specific statement in writing is furnished by the creditor to the customer setting forth the cost of the insurance if obtained from or through the creditor and stating that the customer may choose the person through which the insurance is to be obtained.

The former states:

(h) Computation of insurance premiums. If any insurance premium is required to be included as a part of the finance charge, the amount to be included shall be the premium for coverage extending over the period of time the creditor will require the customer to maintain such insurance. For this purpose, rates and classifications applicable at the time the credit is extended shall be applied over the full time during which coverage is required, unless the creditor knows or has reason to know that other rates or classifications will be applicable, in which case such other rates or classification shall be used to the extent appropriate.

As seen above, section 1605(c) requires that the premiums charged for the insurance shall be included in the finance charge unless a clear statement of the cost is set out and a person is informed that the insurance may be purchased elsewhere. The regulations simply restate that requirement and set out the necessary disclosures when the premium is included in the finance charge. General Electric clearly states in the contract that the cost of the insurance is $753.00 for a period lasting from the date of the contract (9/21/74) to the expiration date (9/21/77). Furthermore, found in bold type and underscored is the following sentence:

BUYER HAS THE RIGHT TO OBTAIN SUCH INSURANCE THROUGH AN AGENT OR OTHER PERSON OF BUYER’S CHOICE AS WELL AS THROUGH SELLER. [Contract’s emphasis].

Since both required disclosures are made, General Electric was not required to include the insurance premiums as part of the finance charge.

The Smails further complain that the cost of the insurance for the whole term of the contract is not shown. To require one to project future insurance costs for years in the future would be impractical. Indeed, the Federal Reserve Board has interpreted section 1605 to require only that the cost for the initial term be disclosed when the insurance premiums are not required to be included in the finance charge. This contract has fully complied with the federal statutes and regulations in question by its disclosure of the price and the term of the insurance.

B. Texas Consumer Credit Code

The Smails have appealed the decision of the Court of Civil Appeals that the retail installment contract does not violate the provisions of the Texas Consumer Credit Code.

Their first contention is that the retail installment contract does not satisfy the standard set out in article 5069-7.02(3). That article requires:

[a] retail installment contract shall also contain, in a size equal to at least ten-point bold type, a specific statement that liability insurance coverage for bodily injury and property damage caused to others is not included, if that is the case.

That contract states in bold type:

LIABILITY INSURANCE FOR BODILY INJURY AND PROPERTY DAMAGE TO OTHERS IS NOT INCLUDED UNLESS SUCH COVERAGE IS PART OF A MOBILE HOMEOWNER’S POLICY PURCHASED HEREUNDER.

The remainder of the contract clearly shows that no “MOBILE HOMEOWNERS POLICY” was purchased. The box next to it was not checked, and there was no charge entered for such coverage. The contract obviously shows that liability insurance is not included.

The Smails also allege a violation of article 5069-7.02(6)(b), which states:

(6) The retail installment contract shall specifically set out the following items:
(b) The amount of the buyer’s down payment, if any, specifying the amounts paid in money and in goods traded in;

In the blank provided for the disclosure of the “cash down payment” the amount of $950.00 was written. All parties agree that the actual down payment was only $300.00, but the amount was inflated by Crawford and the Smails in order to get the necessary financing from General Electric. The $650.00 difference was deducted from the purchase price. It is undisputed that without a down payment of at least $950.00 (which was ten percent of the purchase price), General Electric would have refused to finance the Smails’ home. The Smails were in no way deceived and were in fact active participants in deceiving General Electric. The jury found that the Smails knew that the statement was false and that they knew the contract was to be assigned to General Electric; yet Mr. Smail signed the contract and took advantage of the deception. We, therefore, agree with the court below that under the facts of this case, the Smails were in pari delicto with the defendants and the award of damages would amount to an unjustifiable windfall.

The Smails further complain that the contractual insurance clause violates article 5069—7.06(3) which requires:

(3) When insurance is required in connection with such a contract or agreement made under this Chapter, the seller or holder shall furnish the borrower a statement which shall clearly and conspicuously state that insurance is requested or required in connection with the contract, and that the buyer shall have the option of furnishing the required insurance either through existing policies of insurance owned or controlled by him or of procuring and furnishing equivalent insurance coverages through any insurance company authorized to transact business in Texas. In addition when any requested or required insurance is sold or procured by the seller or holder at a premium or rate of charge not fixed or approved by the State Board of Insurance, the seller or holder shall include such fact in the foregoing statement, and the buyer shall have the option for a period of five days from the date of the contract or agreement of furnishing the required insurance coverage either through existing policies of insurance owned or controlled by him or of procuring and furnishing equivalent insurance coverages through any insurance company authorized to transact business in Texas. Such statement or statements may be made in conjunction with or as part of the retail installment contract required by Article 7.02.

The Smails argue that the contract does not satisfactorily specify the fact that insurance is required for the full term of the contract, and that the contract does not clearly and conspicuously disclose the price.

Article 5069 — 7.06(3) does not specifically require disclosures of either type of which the Smails now complain. It basically requires disclosures that: 1) insurance is requested or required; 2) the buyer has the option of where to obtain the insurance; and 3) the charge made to the buyer by the seller is not approved or fixed by the State Board of Insurance, if that is the case. The contract in question complies with the first two requirements, and no complaint is made that the amount charged did not comply with the rate approved by the State Board of Insurance.

We find no violations of either the Federal or the Texas Act in the case before us. We, therefore, reverse the judgment of the court below awarding the one-thousand dollar (1,000.00) penalty for a violation of the Federal Act, and further reverse its decision to remand part of the case for a factual determination of legal fees. We affirm the take-nothing judgment of the trial court.

Concurring opinion by JOHNSON, J., in which SPEARS, J., joins.

JOHNSON, Justice,

concurring.

This writing concurs in the result obtained in the opinion of the court. In so doing, this writer would emphasize that the issue of substantial compliance has been expressly reserved for future consideration in the opinion.

The opinion of the court of civil appeals has three basic holdings with regard to the federal law: (1) General Electric Credit Corporation violated the federal law; (2) the “availability” of the defense of substantial compliance is not settled; and (3) General Electric Credit Corporation did not substantially comply with the federal law in any event.

The opinion of this court, however, holds that General Electric Credit Corporation did not violate federal law; therefore, the availability of the defense of substantial compliance is not reached. The opinion should not be construed as commenting on the availability of the defense of substantial compliance.

SPEARS, J., joins in this concurring opinion.

      . 15 U.S.C.A. § 1601 et seq.

      . Article 5069-6.01 et seq. All references to Texas statutes are to Vernon’s Texas Civil Statutes Annotated.

      . “The multiple failure to disclose to any person any information required under this part shall entitle the person to a single recovery under this section . . . .” 15 U.S. C.A. § 1640(g).

      . The Code of Federal Regulations contains the regulations and interpretations which govern the Truth in Lending Act. These are promulgated by the Federal Reserve Board. Although references to the Code of Federal Regulations more commonly use the initials “C.F.R.”, for purposes of clarity this opinion will continue to use the full title.

      . Compare Dixon v. D. H. Holmes Co., 566 F.2d 571 (5th Cir. 1978) with Grant v. Imperial Motors, 539 F.2d 506 (5th Cir. 1976). However, this court expressly withholds its opinion on the propriety of the defense of substantial compliance to a charge of a violation of the Federal Act.

      . “The Board shall prescribe regulations to carry out the purposes of this subchapter. These regulations may contain such classifications, differentiations, or other provisions, and may provide for such adjustments and exceptions for any class of transactions, as in the judgment of the Board are necessary or proper to effectuate the purposes of this subchapter, to prevent circumvention or evasion thereof, or to facilitate compliance therewith.” 15 U.S. C.A. § 1604 (1968).

      . Some administrative bodies publish rules or guidelines without Congressional sanction which have been referred to as “regulations” or more properly referred to as “interpretive rules” or “interpretive regulations.” These should not be confused with either Congres-sionally authorized regulations or interpretations such as those which control the instant case. While “interpretive regulations” do not have the effect of law, courts do accord them great deference. See e. g. General Electric v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976).

      . Note 6, supra.

      . 12 Code of Federal Regulations §§ 226.101 et seq.

      . See 12 Code of Federal Regulations § 226.-1(d)(4). The Federal Reserve Board staff opinions have been broken down even further into “official” and “unofficial” opinions. Such an analysis is not necessary for the case at hand.

      . 5 U.S.C.A. § 553 (1977).

      . The United States Supreme Court in Skid-more, supra, and then again in General Electric, supra, has stated that the weight given in any particular case “. . . will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”

      .It has been pointed out how easy it is to be confused by these different sections: “. one who looks only at the CFR has no means of knowing that it [a certain interpretative] is not a part of Regulation Z.” K. DAVIS, ADMINISTRATIVE LAW TREATISE § 5.03-3 (Supp. 1976).

      . All emphases herein are added unless otherwise noted.

      . 12 Code of Federal Regulations § 226.402.

      . This provision is substantially the same as one in the Truth in Lending Act, 15 U.S.C.A. § 1638(a)(2).

      . While not argued by the Smails in their briefs to this court, Article 5069-7.06(5) does require that the price and term of the insurance be set out. Although this question is not properly before us, this contract adequately complies with its requirements. The Smails have also alleged that the contract permits the commission of a tort in violation of Article 5069-6.-05, that it contains a disclosure of a security interest in unearned or returned insurance premium on the back in violation of 12 Code of Federal Regulations § 226.8(b)(5), and that it contains an assignment of homestead rights in violation of 12 Code of Federal Regulations § 226.8(b)(5). These points have not been properly preserved, and therefore cannot be considered by this court.


author: PER CURIAM.

text:
    E. V. LEE, Petitioner, v. TEXAS GENERAL INDEMNITY COMPANY, Respondent.
    No. B-7997.
    Supreme Court of Texas.
    June 6, 1979.
    Rehearing Denied June 6, 1979.
    Moore, Dickson, Roberts & Hall, Aubrey L. Roberts, Jr., Sweetwater, for petitioner.
    Wagstaff, Harrell, Pope, Alvis, Dickenson & Erwin, Robert D. Batjer, Jr., Abilene, for respondent.
   PER CURIAM.

ON MOTION FOR REHEARING

This is an appeal from a judgment awarding total and permanent worker’s compensation benefits to Petitioner E. V. Lee for a back injury he sustained in December 1973 while employed by Chemical Express Carrier Company. The Court of Civil Appeals has reversed and remanded. 570 S.W.2d 231.

Prior to this suit, Mr. Lee had received a judgment for another back injury in October 1975, almost two years after the injury involved in the instant case. At the former trial he testified under oath that the 1975 injury was the sole cause of his incapacity. The Court of Civil Appeals held that this prior testimony was inconsistent with Mr. Lee’s position in the instant case, and therefore he was estopped from recovering two concurrent total and permanent incapacity awards.

We refused the writ, no reversible error, in the case at bar involving the 1973 injury on November 22, 1978, and in so doing approved the reversal and remand of the case because the prior testimony was improperly excluded by the trial court. The written pleadings raised the defense of sole cause and thus supported the introduction of this evidence. See Mayfield v. Employers Reinsurance Corporation, 539 S.W.2d 398 (Tex.Civ.App. — Tyler 1976, writ ref’d n. r. e.). The court’s charge to the jury included in the definition of “producing cause” the instruction that: “. . . there can be only one sole cause. If any injury or condition was the sole cause of an incapacity then no other injury or condition could have been the producing cause.”

In overruling the motion for rehearing, we disapprove the language of the Court of Civil Appeals which states that Lee’s evidence in the first trial that the 1975 injury produced his total and permanent incapacity estops him from claiming permanent incapacity as a result of his first injury. Under 1971 Tex.Gen.Laws, Ch. 316, § 12c, at 1257, which was the applicable law in 1973, a claimant could recover upon the basis of more than one claim for total and permanent incapacity. For this reason we also disapprove the instruction by the Court of Civil Appeals that upon remand, the retrial should be limited to the determination of any temporary incapacity that Lee suffered.

Since our refusal of the writ no reversible error was based on the admissibility of the proffered testimony as relevant to the sole cause defense, there is no inconsistency between our orders in this case and our refusal today, of the writ no reversible error in Liberty Mutual Ins. Co. v. Graves, Tex.Civ.App., 573 S.W.2d 249, in which the defense of sole cause was not raised.

The motion is overruled.


text:
    The BOARD OF ADJUSTMENT OF the CITY OF SAN ANTONIO, Texas et al., Petitioners, v. Robert F. NELSON and Sally Nelson, Respondents.
    No. B-8411.
    Supreme Court of Texas.
    July 3, 1979.
    Rehearing Denied July 24, 1979.
    Jake N. Talley, Jr., William H. Robison and Dan Dennis Hartnett, Gilliland, McNeil & Davis, Dan D. Hartnett, San Antonio, for petitioners.
    Bayne, Snell & Krause, Don Krause, San Antonio, for respondents.
   PER CURIAM.

Petitioner Jones applied to the San Antonio Board of Adjustment in October 1977 for a nonconforming use permit. The Board granted the permit over the objections of respondents Nelsons, residents in the affected neighborhood. On writ of cer-tiorari to the District Court, summary judgment was rendered reversing the decision of the Board of Adjustment and setting aside the nonconforming use permit. The Court of Civil Appeals affirmed. 577 S.W.2d 783.

Jones has owned the lot in question since 1969. On the lot was located her sign manufacturing company which began business in 1969. The land was annexed tó San Antonio in 1972. At the time of annexation, the neighborhood was zoned R-l, residential. The operation of the sign manufacturing business was, therefore, a nonconforming use.

Section 42-35 of the City Code provides that all nonconforming uses and structures in newly annexed territory shall be registered with the City within one year of annexation. Jones therefore should have registered her nonconforming use with the City by 1973. Jones has not registered with the City.

Section 42-37 of the Code is titled “Termination of Nonconforming Uses” and provides five ways in which nonconforming uses may be terminated. Section 42-37(b) states:

“(b) By violation of chapter. The violation of this chapter shall terminate immediately the right to operate a nonconforming use.”

The Court of Civil Appeals held that Jones’ failure to register her nonconforming use was a violation of Section 42-35. Therefore, the court reasoned, by the terms of Section 42-37(b), Jones’ right to operate the sign business terminated in 1973, and the Board’s order holding otherwise was void.

We affirm the judgment of the Court of Civil Appeals but for a reason not stated in that court’s opinion. Section 42-37(a) of the City Code relates to termination of nonconforming uses by reason of abandonment. It provides:

“(a) By abandonment. Abandonment of a nonconforming use shall terminate immediately the right to operate such use. Abandonment shall consist of the intent of the user of said nonconforming use to discontinue said operation coupled with an actual discontinuance of said use. . ."

The evidence conclusively established abandonment by Jones of her nonconforming use. All manufacturing activities ceased in March 1976. The last sign was sold in November 1976. It was admitted that Jones had gone out of business, and that the only reason she sought a nonconforming use permit in October 1977 was because a prospective buyer of her land demanded such a permit as a condition to purchasing the property.

We express no opinion on the Court of Civil Appeals holding that the Board’s order was void because of Jones’ failure to register her nonconforming use with the City.

The application for writ of error is refused, no reversible error.

SPEARS, J., not sitting.


text:
    TEXAS PIPE BENDING COMPANY, Petitioner, v. Anson C. GIBBS, Respondent.
    No. B-8488.
    Supreme Court of Texas.
    July 18, 1979.
    Teeter, Woodward & Bazelides, Michael W. Melton, Bellaire, for petitioner.
    Morgan, Dudensing, Webb, Tullís & Jensen, Kurt Arbuckle, Houston, for respondent.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

This is a personal injury suit brought by Anson Gibbs to recover for damages sustained when he fell from a truck on the premises of Texas Pipe Bending Company. Judgment was rendered for Gibbs based upon the jury’s verdict, and the judgment was affirmed by the court of civil appeals. 580 S.W.2d 41.

Petitioner’s point of error attacks the submission of the instruction on res ipsa loquitur because of the failure of Gibbs’ pleadings to properly advise petitioner of the intent to rely on the doctrine. Our action should, therefore, not be interpreted as approving the applicability of the res ipsa loquitur doctrine to the facts of this case.

The application for writ of error is refused, no reversible error.


author: POPE, Justice.

text:
    SECURITY MUTUAL CASUALTY COMPANY, Petitioner, v. Herman G. JOHNSON et al., Respondents.
    No. B-8257.
    Supreme Court of Texas.
    July 25, 1979.
    Jackson, Walker, Winstead, Cantwell & Miller, C. Steven Matlock, Jr., Dallas, for petitioner.
    McDearman, Lair & Sands, Tom Sands, Dallas, for respondents.
   POPE, Justice.

Herman Johnson and Timothy Johnson sued their insurer, Security Mutual Casualty Company, to recover the amount of a judgment rendered against Timothy Johnson for damages to a pickup truck driven by Timothy. Trial was to a jury and judgment was rendered for the Johnsons. The court of civil appeals affirmed the judgment of the trial court. 575 S.W.2d 107. We reverse the judgments of the courts below and render judgment that plaintiffs take nothing.

Eugene George was employed by W. H. McColm and had permission to drive home from work every night a pickup truck owned by McColm and to keep the truck at his home over weekends. George was allowed to use the truck for both business and pleasure. Timothy Johnson was a friend of Eugene George and his brother, Paul George. There was testimony that Eugene permitted Paul and Timothy to use the pickup frequently, requiring only that they replace the gasoline; that Timothy had been using the truck for a year and a half before the accident; and that Timothy believed the pickup belonged to Eugene.

On the night of the accident, Timothy and Paul were taking Paul’s cousin home. Paul did not have a driver’s license, so Timothy was driving the pickup. The accident occurred when Timothy collided with a lamp pole, causing damage to the truck.

McColm filed suit against Timothy Johnson and recovered a judgment for $2,131. At the time of the collision, Herman Johnson, Timothy’s father, had a policy of personal injury and property damage liability insurance with Security Mutual. The policy did not include collision or comprehensive coverage. Security Mutual refused to defend Timothy or to pay the judgment. The Johnsons filed this suit against Security Mutual to recover the amount of the judgment.

Part I — Liability, of the policy of insurance in effect at the time of the accident, provided for payment on behalf of the insured of all sums for which the insured shall become legally obligated to pay as damages because of bodily injury and property damage arising out of ownership, maintenance, or use of the owned automobile or any non-owned automobile. Persons insured with respect to a non-owned automobile are defined as the named insured and any relative, but only with respect to a private passenger automobile or trailer, provided the actual operation is with the permission or reasonably believed permission of the owner and within the scope of such permission. Liability under these provisions is further governed by the following exclusion:

This policy does not apply under Part I:
******
(i) to injury or destruction of (1) property owned or transported by the insured or (2) property rented to or in charge of the insured other than a residence or private garage; [Emphasis added.]

Security Mutual contends policy coverage is excluded because Timothy Johnson was “in charge of” the automobile at the time of the collision.

Terms used in an insurance contract are given their ordinary and generally accepted meaning unless the policy shows the words were meant in a technical or different sense. Guardian Life Insurance Co. of America v. Scott, 405 S.W.2d 64 (Tex.1966). Generally, the criterion for determining whether property is “in charge of” the insured within such an exclusion is the insured’s right to exercise dominion or control over the property. Maryland Casualty Company v. Golden Jersey Creamery, 389 S.W.2d 701, (Tex.Civ.App — Corpus Christi 1965, writ ref’d n. r. e.); 13 Couch, Insurance 2d § 45:946 (1965).

The term has been interpreted by many jurisdictions. The majority finds the term unambiguous and applicable to “property” in charge of the insured, including motor vehicles. See State Farm Mut. Ins. Co. v. Dorough, 277 Ala. 662, 174 So.2d 303 (1965); Herrman v. Folkerts, 202 Kan. 116, 446 P.2d 834 (1968); Wyatt v. Wyatt, 239 Minn. 434, 58 N.W.2d 873 (1953); Wyse v. Dixie Fire & Casualty Co., 242 Miss. 508, 136 So.2d 578 (1962); MacDonald v. Hardware Mut. Casualty Co., 105 N.H. 458, 202 A.2d 489 (1964); National Surety Co. v. Allstate Ins. Co., 115 N.J.Super. 528, 280 A.2d 248 (1971); Torrington Co. v. Aetna Casualty & Surety Co., 264 S.C. 636, 216 S.E.2d 547 (1975); Allstate Insurance Com pany v. Darter, 361 S.W.2d 254 (Tex.Civ.App. — Fort Worth 1962, no writ); Mallory v. Vermont Mut. Fire Ins. Co., 126 Vt. 237, 226 A.2d 901 (1967). Contra American Casualty Co. v. Aetna Casualty & Surety Co., 251 Md. 677, 248 A.2d 487 (1968); Klock v. Allstate Ins. Co., 34 Misc.2d 990, 230 N.Y.S.2d 555 (1962). We follow those jurisdictions that regard “property in charge of the insured” to include the pickup truck driven by Timothy Johnson.

We view the facts of this case to establish that at the time of the accident, Timothy Johnson was “in charge of” the property and, therefore, liability was excluded. Timothy Johnson had sole control of the pickup at the time of the collision and was the only person present with an operator’s license. To the ordinary person, one is “in charge of” personal property when he has possession of it, has the right to exercise dominion and control over it, and is actually exercising physical control over it. At the time of the collision, Timothy was driving the truck and in our view the ordinary meaning of the words used in the exclusionary clause leaves no doubt that coverage is excluded.

Normally, a liability policy does not cover damage to the insured’s property or property within his control. If an insured desires coverage on property that he owns or that is in his charge, he must secure collision or comprehensive coverage and pay an additional premium. There was no collision coverage in effect at the time of the accident and it cannot be asserted that such coverage was expected under the provisions of the liability policy.

The judgments of the courts below are reversed and judgment is rendered that plaintiffs take nothing.

      . The pick-up truck is defined by the policy as a “utility automobile.'


text:
    MID-CONTINENT REFRIGERATOR COMPANY, Petitioner, v. Paul E. TACKETT, Respondent.
    No. B-8490.
    Supreme Court of Texas.
    July 25, 1979.
    Martin & Millican, Michael Martin, Lam-pasas, for petitioner.
    Senterfitt, Adams, Miller & Childress, Richard T. Miller, San Saba, for respondent.
   PER CURIAM.

The only point before us is whether the transcript was timely filed in the Court of Civil Appeals. We agree that Monday, January 2, 1978, was a legal holiday for procedural purposes within the meaning of Rule 4 of the Texas Rules of Civil Procedure. The Legislature in 1977 Tex.Gen.Laws, ch. 872, at page 3145 specifically declared Monday, January 2, 1978, to be a “holiday” for state employees. This was not the case in 1967 at the time of Suarez v. Brown, 414 S.W.2d 537 (Tex.Civ.App. — Corpus Christi 1967, writ ref’d). The Legislature chose to prohibit the observance of Monday, January 2, 1967, as a holiday for state employees. 1965 Tex.Gen.Laws, ch. 720, at 1933. The number and date of state holidays are directly related to the appropriation of funds for hours and days of work by state personnel from the State Treasury.

Under this interpretation, the transcript was timely filed. For that reason we refuse the application for writ of error, no reversible error. We express no opinion on the other points before the Court of Civil Appeals.


author: BISSETT, Justice.

text:
    C. C. McMULLEN et ux., Appellants, v. L. D. KING, Appellee.
    No. 1354.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 30, 1979.
    Rehearing Denied June 13, 1979.

      Frederic Johnson, Sinton, James E. Klager, Corpus Christi, for appellants.
    Milton W. Walton, Corpus Christi, for appellee.
   OPINION ON MOTION FOR REHEARING

BISSETT, Justice.

The appellants have raised matters in their motion for rehearing that relate to language in the original opinion concerning the subject of waiver. Because of the confusion caused by such language, we have withdrawn our original opinion and substitute this opinion for the original. The judgment of the trial court is affirmed and appellants’ motion for rehearing is overruled.

This appeal is from a declaratory judgment which decreed that the appellants, defendants in the trial court, have no right or easement to cross the appellee’s land. The issue to be resolved is whether the trial court erred in holding that there had been no implied dedication by the appellee of a private road for public use. We answer the question in the negative.

This appeal arises out of a law suit brought by L. D. King, hereinafter referred to as King, against C. C. McMullen and wife, Mary McMullen, hereinafter referred to as the McMullens, to declare that King was the fee owner of certain tracts of land in San Patricio County, Texas, over which the McMullens had no right or easement to cross. The McMullens filed a cross-action to establish either a prescriptive easement to, or an implied dedication of, a certain roadway crossing a portion of King’s land. San Patricio County intervened and claimed a prescriptive easement across King’s land in favor of the public. Trial was to the court, which rendered judgment for King in all respects. Findings of fact and conclusions of law were filed. The McMullens have appealed. San Patricio County, the intervenor, did not perfect an appeal.

The following drawing, which is not drawn to scale, illustrates the lands owned by the parties, the public roads and highways adjacent or in proximity thereto, and the location on the ground of the asserted easement:

At trial, evidence was introduced which showed the nature and extent of the use of the roadway in question dating back to the early part of this century. After the close of the evidence the trial court made detailed and comprehensive findings of fact. The findings which are relevant to this appeal are summarized, as follows: 1) King is the fee owner of the land upon which the alleged easement is located; 2) the asserted easement intersects the termination of the improved portion of a county road and winds through the King land and extends to the west boundary of the McMullen land; 3) the first use of the disputed strip of land as a roadway was made by the Jeter family after 1891; 4) the easement in question was used as a roadway by King, his predecessors in title, and by the McMullens, their predecessors in title, and their families, guests, and business invitees; 5) neither King nor his predecessors in title intended to dedicate the premises in question to public use; 6) “the public has not made any use” of the land in question; and, 7) the alleged easement does not extend beyond the (west) boundary of the McMullen land.

The McMullens, in oral argument before this Court, waived prescriptive easement as a theory of recovery. We, therefore, take no further notice of any of appellants’ points of error insofar as they relate to this theory of recovery.

Basically, all of the points of error asserted by the McMullens in this appeal, with the exception of point 12, relate to legal sufficiency of the evidence. Points 1 and 2 challenge findings of the court on the grounds of no evidence. Points 3 through 11 challenge other court findings on the ground there was conclusive proof to the contrary. In disposing of these points, we follow the rule which requires us to view the evidence “in its most favorable light in support of the finding of the vital fact, considering only the evidence and the inferences which support the finding and rejecting the evidence and the inferences which are contrary to the finding.” Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 359, 364 (1960).

There is no evidence of an express dedication to the public of the easement in question. The McMullens’ claim is based upon an implied dedication. They ask that we reverse the judgment of the trial court and render judgment “that there is a 20 foot wide roadway easement along the course” which is defined in their third amended cross-action “that has been dedicated to public use.”

It is a well established principle of law that the landowner’s intent to dedicate a strip of land for public use as a roadway, where not expressly delineated, may be implied from the owner’s conduct. Viscardi v. Pajestka, 576 S.W.2d 16 (Tex.Sup.1978). The question of intent is a question of fact. County of Calhoun v. Wilson, 425 S.W.2d 846 (Tex.Civ.App. — Corpus Christi 1968, writ ref’d n. r. e.). In order to constitute a valid dedication by implication, it is essential that the landowner intends to devote the land in question to the use and benefit of the public, which intention must be clearly manifested, and an acceptance thereof by the public. Greenway Parks Home Owners Ass’n v. City of Dallas, 312 S.W.2d 235 (Tex.Sup.1958); Owens v. Hockett, 151 Tex. 503, 251 S.W.2d 957 (1952); Hudson v. Gaines, 501 S.W.2d 734 (Tex.Civ.App. — Corpus Christi 1973, no writ). As a general rule, a dedication of private property to a public use is never presumed, and in order to establish such a dedication by implication, the same must be established by acts which evidence a clear and unequivocal intention on the part of the landowner to presently set aside a certain part of his land for use by the public. City of Houston v. Cyrus W. Scott Mfg. Co., 45 S.W.2d 270 (Tex.Civ.App. — El Paso 1931, writ ref’d); Aransas County v. Reif, 532 S.W.2d 131 (Tex.Civ.App. — Corpus Christi 1975, writ ref’d n. r. e.). The intention to dedicate the land for use by the public must be shown by something more than an omission or failure to act or acquiescence on the part of the landowner. Greenway Parks Home Owners Ass’n v. City of Dallas, supra. There can be no private dedication of property to a public use. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex.Sup.1962).

The land now owned by King was conveyed to Thomas A. Jeter by T. P. McCamp-bell, Trustee, in 1891. The Jeter family owned the land until 1958 when King purchased the same from the Jeter heirs.

The land now owed by the McMullens was purchased by S. L. Steagall from Robert L. Harris, et al., during the period 1906-1908. The land was later acquired by Walter Brauer and wife, Lula Lee Brauer, who sold it to the McMullens in 1946.

Substantially all of the evidence concerning the use of the strip of land in controversy deals with the use made by the parties’ predecessors in title, their families, friends, guests, and business invitees. The Jeters lived in a house near the northwest corner of the land now owned by King. The record shows that they were the first to use the asserted easement as a roadway, and after the Steagalls purchased the land now owned by the McMullens, they (the Stea-galls) also used the strip as a roadway. Such use was with the permission of the Jeters. It is clearly established that the Jeters were “old folks” in 1900, and no one paid much attention to roadways at that time. There is no evidence that the strip of land in question was being used by anyone as a roadway at or before the date the Jeters bought the land.

There is no evidence in the record that the strip of land, which the McMullens now claim was impliedly dedicated at some time in the far distant past as a public roadway, was, at the time of such dedication, a well-defined roadway. There is no evidence that the roadway which is defined in the McMul-lens’ third amended cross-action is in the same location as the roadway used by the Jeters and the Steagalls in the late 1890’s and the early 1900’s.

We have carefully reviewed all of the evidence in this case. There is no evidence which shows as a matter of law, or which will support an inference, that Thomas A. Jeter, or his heirs, or King, the only relevant landowners of the land upon which the asserted easement is located, impliedly dedicated by their acts or omissions the roadway to a public use. The evidence shows that the use made of the roadway was made by a particular class of people, the Steagalls, their families, friends, guests and business invitees, and not by the public generally. The evidence does not establish a public use as a matter of law. Moreover, even if public use was conclusively established, there was no evidence that such use was anything but permissive in nature. The fact that the Steagalls and their successors in title used the roadway, without more, was not sufficient to raise a fact issue as to an intention to dedicate the roadway to use by the public.

The McMullens argue that the facts of this case bring it squarely within the rule set out in Dunn v. Deussen, 268 S.W.2d 266 (Tex.Civ.App. — Fort Worth, 1954, writ ref’d n. r.'e.), and approved in O’Connor v. Gragg, 339 S.W.2d 878 (Tex.Sup.1960), wherein it was declared:

“[a] presumption of acquiescence is raised when the origin of the user by the public and the ownership of the land at that time are shrouded in obscurity, and no evidence exists to show the intention of the owner in allowing the use . . . ”

This presumption does not apply to the case at bar. As already noted, there was hardly even a fact issue of whether the public had ever actually used the roadway in question. The trial court found that use of the roadway had always been non-public in nature, and there was an abundance of evidence to support this finding. Furthermore, even if there was public use, there was no evidence introduced to show that the origin of the roadway or the ownership of the land upon which the roadway was situated at the time in question were shrouded in obscurity. On the contrary, it was conclusively established that the roadway had its origin sometime after 1891, and the affected land, was, at that time, owned by Thomas A. Jeter. Therefore, there was no basis for any such presumption in this case.

Absent any evidence that any landowner, at any time, clearly and unmistakably intended to dedicate the roadway to the use of and by the public, the McMullens may not prevail on their theory of an implied dedication. Points 1 to 11 are overruled.

In view of our holdings, it is not necessary in order to dispose of this appeal that we decide the question raised in point 12. Moreover, even if we should hold that the finding to the effect that the roadway in question has “no definite boundaries” is against the great weight and preponderance of the evidence, as asserted in point 12, the McMullens did not ask for a reversal of the judgment and a remand of the cause for a new trial, and the point, as phrased, will not authorize a reversal and rendition.

The judgment of the trial court is AFFIRMED.