author: SHANNON, Justice.

text:
    MUTUAL BUILDING AND LOAN ASSOCIATION, Appellant, v. W. Sale LEWIS, Savings and Loan Commissioner of Texas, et al., Appellees.
    No. 12808.
    Court of Civil Appeals of Texas, Austin.
    Oct. 11, 1978.

      Gary Evatt, Long, Evatt & Webber, Austin, for appellant.
    John L. Hill, Atty. Gen., Thomas A. Rutledge, Asst. Atty. Gen., Austin, for appellee Savings and Loan Commissioner.
    Richard D. Coan, Coan & Terrell, Ste-phenville, for appellee Stephenville Savings and Loan Association.'
   SHANNON, Justice.

Stephenville Savings and Loan Association filed an application with the Savings and Loan Commissioner of Texas to establish a branch office in Weatherford, Parker County, Texas. The Commissioner after hearing entered an order approving the branch application.

Appellant, Mutual Building and Loan Association, a protestant before the Commissioner, filed suit in the district court of Travis County to set aside the order of the Commissioner. Appellees are Stephenville Savings and Loan Association and the Commissioner. The district court entered judgment affirming the Commissioner’s order. We will affirm the judgment of the district court.

Appellant’s first point of error is that the judgment is erroneous in that the Commissioner failed to set forth in the order a concise and explicit statement of the underlying facts supporting the findings on the ultimate statutory and regulatory criteria.

Texas Rev.Civ.Stat.Ann. art. 852a, § 11.-11(4) (1964) provides that the Commissioner’s order “. . . shall include findings of fact and conclusions of law, separately stated, on all issues material to the decision reached. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.”

Likewise,, the Administrative Procedure and Texas Register Act, Tex.Rev.Civ.Stat. Ann. art. 6252-13a, § 16(b) (Supp.1978), provides in part, “A final decision must include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, must be accompanied by a concise and explicit statement of the underlying facts supporting the findings.”

The Commissioner’s findings of fact concerning statutory requirements and the underlying facts supporting findings of fact are set out below. The “underlying facts” are set out in the footnote for a better understanding of appellant’s points of error and not as a model of draftsmanship.

Appellant claims the Commissioner’s findings violate Art. 852a, § 11.11(4) in several respects: (1) the findings are, in part, summaries of testimony instead of findings of “fact”; (2) some of the findings consist of the opinions of expert witnesses rather than “specific facts” to which they testified; (3) there are no findings with respect to the number of savings and loan facilities in the community or the level of existing services offered by those facilities or the competition among them; and (4) the findings are “so vague, hazy and conclusionary” as to fail to apprise the court and others of the Commissioner’s specific findings of fact.

If the Commissioner’s ultimate findings are stated in statutory language, Art. 852a, § 11.11(4) requires a concise and explicit statement of the underlying facts (proof) supporting them. Facts or proof in an administrative proceeding, as in a conventional trial, usually consist of testimony or documents. Much of appellees’ proof consisted of testimony of three witnesses, Stanley Allen Self, H. T. Latham, and James Ramsay. In deciding the ultimate facts as he did, the Commissioner necessarily relied upon much of their testimony. Article 852a, § 11.11(4) required the Commissioner to set out germane portions of the proof supporting the ultimate findings. The fact that the Commissioner identified the witnesses who produced the proof does not somehow make that proof less an underlying fact supportive of an ultimate finding.

The Commissioner’s statement of underlying proof refers to opinion testimony by appellees’ economic expert. The Commissioner was entitled to rely upon opinion evidence in the preparation of the order, at least in the absence of objection. Gonzales County Savings and Loan Association v. Lewis, 486 S.W.2d 176 (Tex.Civ.App. 1972, writ ref’d n. r. e.). In that connection, appellant has preserved no complaint on appeal as to the admission of the opinion evidence.

Appellant’s third complaint of the judgment is that the Commissioner’s findings do not mention the number of savings and loan facilities in the community or the level of existing service offered by those facilities or the competition prevailing among them. We agree with appellees’ argument that Art. 852a § 11.11(4) does not require that the Commissioner comment upon every aspect of the record that may be relevant. In a given contest, there may be scores of factors that support or at least influence the judgment of the Commissioner. The omission of two or three factors should not be basis for reversal in face of the fact that the order contains numerous references to other significant factors that do sufficiently support the ultimate facts reached by the Commissioner.

“The mere presence of a generalization in the order does not render it invalid. Basic facts by their very nature are often in the form of ‘generalizations’ or ‘conclusions.’ ” Citizens of Texas Savings and Loan Association v. Lewis, 483 S.W.2d 359, 363 (Tex.Civ.App.1972, writ ref’d n. r. e.). Although the Commissioner’s statement of underlying facts may be “vague, hazy and conclusionary,” the path which the Commissioner followed can be discerned. Citizens of Texas Savings and Loan Association v. Lewis, supra.

The remaining two points of error are that the district court erred in entering judgment sustaining the order of the Commissioner for the reason that the order was not supported by substantial evidence. More specifically, appellant charges in point of error two that the order and findings of the Commissioner on the ultimate issues of public need, profitable operation, and absence of undue harm to other associations are not reasonably supported by substantial evidence. Point of error three is that the judgment is erroneous in that the finding of the Commissioner that appellee, Stephen-ville Savings and Loan Association, had a profitable operation for a three-year period next preceding the filing of its branch office application is not reasonably supported by substantial evidence.

An appeal from an order of the Savings and Loan Commissioner is governed by the substantial evidence rule. Because the Commissioner’s order is presumed to be supported by substantial evidence, it was appellant’s burden to overcome that presumption. City of San Antonio v. Texas Water Commission, 407 S.W.2d 752 (Tex.1966). To set aside the Commissioner’s order, it was appellant’s burden to demonstrate that the evidence, as a whole, was such that reasonable minds could not have concluded to grant the branch application. Trapp v. Shell Oil Co., 198 S.W.2d 424 (Tex.1946). Substantial evidence need not be much evidence, and although “substantial” means more than a mere scintilla, or some evidence, it is less than is required to sustain a verdict being attacked as against the great weight and preponderance of the evidence. Reavley, Substantial Evidence and Insubstantial Review in Texas, 23 Sw.L.J. 239 (1969). If there existed substantial evidence which would have supported either the grant or denial of the application, the Commissioner’s order is entitled to full effect. Texas Aeronautics Commission v. Braniff Airways, Inc., 454 S.W.2d 199 (Tex.1970).

Before the judgment of the district court may be reversed, we must hold that the order of the Commissioner is not supported by substantial evidence and that the evidence so conclusively required a negative finding with respect to public need or profitable operation or absence of undue harm or profitable operation for a three-year period that the Commissioner’s refusal to make a negative finding of one or more of those ultimate facts was arbitrary or capricious. Gerst v. Cain, 388 S.W.2d 168 (Tex.1965). To the contrary, we are of the opinion that there existed substantial evidence at the time of the entry of the Commissioner’s order that would have supported the granting of the branch application. The posture of the record being such, it follows that the order of the Commissioner granting the application for branch office should be given effect and that the judgment of the district court should be affirmed. Texas Aeronautics Commission v. Braniff Airways, Inc., supra.

In the order granting the branch application, the Commissioner set out the underlying facts supporting the ultimate findings on public need, profitable operation, absence of undue harm, and profitable operation by Stephenville Savings and Loan Association for a three-year period next preceding the filing of the application. The underlying facts have been set out in the footnote, and no good purpose would be served by again summarizing those facts. We are satisfied that there existed substantial evidence which supported the Commissioner’s order.

Appellant points out two occurrences in the late 1960’s and early 1970’s that argue against the Commissioner’s finding on public need: (1) The Department of Defense closed Fort Wolters, a military base located in Parker and Palo Pinto Counties and (2) General Dynamics reduced its employment force. These occurrences resulted in a population decrease of nearly one thousand persons in Parker County between 1970 and 1974 and a decrease in the total earnings in Parker County for the same period of time.

We agree that appellant’s argument pertaining to Fort Wolters and General Dynamics is of significance concerning public need, but “[w]here there is substantial evidence which would support either affirmative or negative findings, the order must stand, notwithstanding the Commissioner may have struck a balance with which the court might differ.” Gerst v. Goldsbury, 434 S.W.2d 665, 667 (Tex.1968).

The judgment is affirmed.

      .“FINDINGS OF FACT CONCERNING STATUTORY REQUIREMENTS
      A. Pursuant to Rule 2.4(.004) Rules and Regulations for the Savings and Loan Associations of Texas, the Commissioner affirmatively finds from the data furnished with the application, the evidence adduced at the hearing and his official records that:
      1. The aggregate amount of the loss reserves, surplus and Permanent Reserve Fund Stock of the Applying Association is equal to at least three percent (3%) of its savings liability.
      2. That the Applying Association has had a profitable operation for the three year period next preceding the filing of its application after paying operating expense, making statutory allocations to loss reserves and paying dividends on savings accounts out of its earnings during such period;
      3. That the Applying Association has no serious supervisory problems which would affect its ability to properly operate such office;
      4. That the proposed operation will not unduly harm any other association operating in the vicinity of the proposed location;
      5. That the Applying Association will provide a separate enclosed office area for the proposed branch office;
      6. That the proposed branch office will be supervised by qualified full-time management;
      7. That there is a public need for the proposed branch office and that the volume of business in the community in which the proposed branch office will conduct its business is such as to indicate a profitable operation to the association within a reasonable period of time.
      8. That the character, responsibility and general fitness of the management and of the directors of the Applying Association are such as to command confidence and warrant belief that the business of the Association and the proposed branch office will be honestly and efficiently conducted in accordance with the intent and purpose of the Texas Savings and Loan Act.
      B. Underlying facts supporting the foregoing findings were developed in the testimony of the witnesses and the exhibits identified, authenticated, offered and received into evidence at the hearing on November 18, 1976, before the Hearing Officer and the Commissioner having read and reviewed such record finds the following underlying facts:
      1. In support of the findings set out above in paragraph II-A-1, the Commissioner finds that the witness, H. T. Latham, President of the Stephenville Savings and Loan Association of Stephenville, Texas, testified that he had prepared from the Association’s records the exhibit of the current percentage of the aggregate amount of the loss reserves, surplus and permanent reserve fund stock of the Savings and Loan Association as to its savings liability. Said exhibit was marked as Br.Ex. 3 and admitted as evidence. The exhibit showed that as of October 13, 1876, the actual percentage exceeded 3% in that it was 6.73%. Mr. Latham testified that the Stephenville Savings and Loan Association for three years prior to the application had also maintained a percentage that would qualify within the requirements of Reg. 2.4a, Rules and Regulations of the Savings and Loan Association of Texas (H.R. 19-20).
      2. In support of the finding of paragraph II-A-2, the Commissioner finds that the witness, H. T. Latham, testified that Stephenville Savings and Loan Association had had a profitable operation for the three year period next preceding the filing of its application after paying operating expenses, making statutory allocations to loss reserves and paying dividends on savings accounts of its earnings during such period and thereafter, identified an exhibit with such information which was marked, introduced and accepted into evidence (H.R. 20-21; Br.Ex. 3). Mr. Latham further testified and identified for the record a monthly report of the Stephenville Savings and Loan Association, being a condensed statement of condition as of October 31, 1976. Said report was marked and admitted in evidence (Br.Ex. 4). The exhibit indicated that as of October 31, 1976, the Ste-phenville Savings and Loan Association was operating in a profitable condition (H.R. 21-22).
      3. In support of the Commissioner’s finding in II-A-3, the witness, H. T. Latham, testified that the Applying Association had no serious supervisory problems which would affect its ability to operate a branch office and further testified and gave the names of the managing officers and members of the Board of Directors of the Stephenville Savings and Loan Association. He identified himself as President and Managing Officer; Brad Thompson as Senior Vice President and a member of the Board of Directors who operates a general insurance business in Stephenville and conducts a gallery of original art; James C. Ramsay as Vice President and a member of the Board of Directors; J. W. Autry as Vice President and Dean of Tarleton State University, Stephenville, Texas and a member of the Board of Directors; Carl E. Crimmins, a Public Accountant in Stephen-ville, Texas, Secretary-Treasurer of the Association and a member of the Board of Directors; Dr. Bruce Terrill, a practicing physician in Dallas County, Texas, formerly of Stephenville, Texas, and a member of the Board of Directors. He testified that all of the Directors and Officers of the Association enjoy a good reputation in the community in which they reside and were leading businessmen within the community and were of such character, responsibility, general fitness and honesty in the community as to qualify within the requirements of the Rules and Regulations of the Savings and Loan Commission (H.R. 20, 22, 23, 24). Mr. Latham further testified that the Association did not have any serious supervisory problems which would affect its ability to properly operate a branch office in Parker County, Texas (H.R. 26).
      4. In support of the finding of the Commissioner in Paragraph II-A — 4 above, the Commissioner finds the witness, H. T. Latham, testified that he had 26 years of experience in the Savings and Loan industry and that he had an opinion as to whether or not the branch application would unduly harm any association operating in the vicinity of the proposed location and that in his opinion it would not (H.R. 26-27). Additionally, the Applying Association called Dr. Allen Self, a qualified economist, appearing as an expert witness in behalf of the Applying Association. Dr. Self testified that he had accumulated and examined materials and information about the proposed branch office and that he had an opinion as to the question of undue harm to any existing association within the vicinity of the proposed location and that in his opinion, the proposed operation of the branch office would not unduly harm any other association operating in the vicinity of the proposed location (H.R. 262-263.
      5. In support of the Commissioner’s findings in Paragraph II-A-5, the witness, H. T. Latham, testified that he was familiar with the regulations and requirements of the Savings and Loan Commission concerning the requirement of separate enclosed office and that the Applying Association would provide such an office for the proposed branch office (H.R. 15, 91).
      6. In support of the Commissioner’s findings in Paragraph II-A-6, the witness, H. T. Latham, testified that he was also familiar with the Rules and Regulations concerning the requirements of the proposed branch office to be supervised by qualified full time management and stated that Stephenville Savings and Loan Association was in a position to provide, and would provide, qualified full-time management to supervise a branch office (H.R. 16).
      7. In support of the Commissioner’s findings in Paragraph II-A-7, on the issue of public need, the Commissioner finds that the witness, H. T. Latham, expressed an opinion, relying upon his 26 years experience in the Savings and Loan industry, that there was a public need in the proposed community and that in his opinion the proposed branch would have a profitable operation within a reasonable time (H.R. 28-29).
      Further, Dr. Allen Self, the expert witness called on behalf of the Applying Association, testified that he had an opinion concerning public need and that in his opinion there was a substantial and obvious need for an additional Savings and Loan branch facility of the kind applied for by Stephenville Savings and Loan Association in Parker County, Texas. Dr. Self further testified, that in his opinion, if a branch office were granted to the Stephenville Savings and Loan Association, that a properly managed Branch Savings and Loan facility located in Weatherford would be profitable in a reasonable period of time (H.R. 260, 261). Additionally, underlying facts as to public need are set out hereinafter.
      8. The witness, H. T. Latham, testified concerning the character, responsibility and general fitness of the management and directors of the Applying Association and stated that they would be of such fitness as to command confidence and warrant belief in the public that the business of the Association and the proposed branch would be honestly and efficiently conducted (H.R. 23. 24, 25).
      C. The Commissioner further finds that the witness, H. T. Latham, has 26 years experience with the Savings and Loan industry (H.R. 7). That he has participated in the charter organization of Savings and Loan Associations in the State of Texas as well as applications for branch offices (H.R. 8-9). That he has appeared before the Savings and Loan Commission on other hearings, that he had been a participant in the organization of the Stephen-ville Savings and Loan Association’s charter in 1955 (H.R. 8), that he had been with the Ste-phenville Savings and Loan Association since its inception in 1955 and that in that period of time that the Association had enjoyed a favorable growth in that at the end of 10 years of operation, the Association had approximately ten million dollars ($10,000,000.00) in total assets and at the present time after 21 years of operation the total assets were now in excess of forty seven million dollars ($47,000,000.00); that the Association currently has branch offices in Dublin and Granbury, Texas and authority to open a branch in Hico, Texas. He presented an exhibit showing the growth of the Association from December, 1955 through October, 1976 which was marked and introduced into evidence (H.R. 10, Br.Ex. 1).
      Mr. Latham further testified that the Ste-phenville Savings and Loan Association maintained records in its ordinary course of business and that such records reflected the activities and conditions of Stephenville Savings and Loan Association. That as Managing Officer of the Association, he had control and access to such records and he considered them to be accurate as they were audited regularly by both State and Federal authorities as well as independent audits (H.R. 16, 17, 18). He stated that he had relied upon such records and information in testifying before the Savings and Loan Commission and the Commissioner is of the opinion, and finds, that the testimony of the witness, H. T. Latham, is credible, reliable and true and adopts such testimony in support of his findings of fact.
      D. The Commissioner finds that Dr. Allen Self is a duly qualified economist, entitled to testify as an expert witness and has appeared before the Savings and Loan Commission in other hearings (H.R. 143). That he had conducted an economic study of the proposed area as shown by a map marked as an exhibit and introduced into evidence (H.R. 150-151, Br.Ex. 8).
      The Commissioner hereby adopts his testimony and relies upon the opinions and conclusions reached by Dr. Self as being reliable and that the record as a whole and the various data and sources of information cited heretofore and hereinafter, as developed at the hearing, support the reasonableness and correctness of the opinions stated by Dr. Self.
      E. The Commissioner having examined the entire record finds that the record discloses a substantial and obvious community need for the proposed branch office; that the proposed branch office will be able to obtain the business necessary to be profitable within a reasonable period of time; that the existing Savings and Loan Associations doing business in the community will not be unduly harmed and can continue to operate successfully and serve the public.
      F. The Commissioner further sets out the additional facts generally as being underlying and supportive facts of the conclusions reached herein:
      1. That Weatherford is the county seat of Parker County, Texas and that the particular topography of this area demonstrates a substantial highway network which was shown by aerial photographs showing Weatherford to be in the approximate center of the County and intersected by Interstate 20 (H.R. 153, 154, Br.Ex. 8, 9).
      Dr. Self testified that the sources relied upon by him in his testimony were reliable sources and that other persons of his profession relied upon these sources. He testified that Parker County, approximately 30 miles square (H.R. 154), would be a community that could be served by a branch office of Stephenville Savings and Loan Association in Parker County, Texas (H.R. 151). That Weatherford is approximately a one hour’s drive form Dallas-Fort Worth Regional Airport. Aerial photographs taken by Dr. Self over the area depicted and showed the highway networks and the developments going on in the surrounding communities and subdivisions of Springtown, Willow Creek, Aledo, Jaw Creek, Trail Lake Estates and Highland Park (Br.Ex. 9-19) (H.R. 158-164 & 173-181).
      He testified that a new shopping center was under construction in the general location of where the proposed branch was to be located on South Main Street (H.R. 168). His exhibits showed the Weatherford Industrial Park and he testified that his examination showed the beginnings of a substantial industrial activity In the city that previously had been dependent upon commercial trade generated by the agriculture in the area (H.R. 172).
      He further gave the general background of the smaller communities in the area that were developing; specifically new subdivisions in Al-edo (H.R. 179) and a new high school.
      Dr. Self further referred to one of the considerations determining the economic base as being the population and gave a general statement of population matters in Parker County and traced through census documents. He stated that the economic base originally dependent upon agriculture was changing with the growing industrial and commercial activities in nearby Tarrant County and the beginning of more intensive commercial and industrial activities within Parker County (H.R. 188). He testified that the total county population had increased from 22,880 in 1960 to 33,888 in 1970, an increase of almost exactly 11,000, or a 48% increase within Parker County (H.R. 188).
      He further testified that the City of Weather-ford had increased 20% and that this was a healthy increase for the same period of time (H.R. 189). Dr. Self also testified that the rural population appeared to be increasing and that in his opinion the population would continue to grow as he saw no significant deterrents to the continuing growth of the population (H.R. 190). He gave as additional support for his opinion that he had observed what was occurring in near counties such as Tarrant and Dallas and that the proximity to a metroplex center would be a powerful influence on the continued growth of the community. Further, that the local basic industry and commercial activity and service activities growth supported by the adequate highway transportation network, supported his opinion (H.R. 190).
      Dr. Self also testified that he had made an examination of the growth of savings within the institutions that are located in Weatherford to determine whether or not there was an adequate flow of money into savings that would support an additional Savings and Loan facility. He further testified that he examined the mortgage loan market through statistical computation of the Deed of Trust Records of Parker County, Texas to determine what had happened in regards to mortgage lending within the county (H.R. 192, Br.Ex. 21).
      He also stated that he observed what was happening in Parker County to assessed tax valuation (H.R. 193, 196) and that assessed valuation had increased more than $10,000,000 between 1974 and 1976, from about $51,000,-000 in 1974 to about $62,000,000 in 1976, which reflected a healthy growth of the economy (H.R. 196). He demonstrated that school enrollment in the Weatherford Independent School District had increased from 1974 to 1976 significantly (H.R. 197).
      He further testified that in examining the growth of savings and mortgage loans in the proposed area that is shown by the Deed of Trust Records that he examined amounts loaned by Mutual Building and Loan Association, First Savings of Bowie Branch in Parker County and the three local banks, Citizens National Bank, First National Bank, and the Farmers and Merchants State Bank, as well as other bank institutions outside the County. (H.R. 241).
      He stated that his analysis lead to the conclusions that there is a growing market for mortgage lending in Parker County in that other Savings and Loan Associations have substantially increased their activity showing an increase of about 1.5 million in 1975 to 3.9 million in 1976. The local banks substantially increased their participation in the market, with their increases being from about 4.7 million to 7.6 million between 1975 and 1976 and with non local banks increasing their participation from 7.9 million to 8.6 million. He stated that there was an increasing activity by most of the lending agencies in the mortgage lending market in Parker County and that it indicated to him that with the growing market that a new branch Savings and Loan facility would be economically feasible (H.R. 242, 243, Br.Ex. 21). He further noted the acceleration in the market of Mutual Building and Loan of Weatherford (H.R. 244-245; Br.Ex. 23).
      As to savings, Dr. Self testified the banks in Weatherford increased their time and savings deposits by about 11.7 million from the period ending 1973 to year ending 1975, an increase from 40.7 million to 52.4 million. This increase continued into 1976 (H.R. 247). He summarized his findings by showing that the time and savings of Mutual Building and Loan and the Parker County Banks increased 15.6 million or 24% in the two year period, stating that this was a substantial increase and demonstrates the economic activity. (H.R. 248).
      III.
      CONCLUSIONS OF LAW
      Having considered the application of Ste-phenville Savings and Loan Association for a branch office in Weatherford, Parker County, Texas; the data furnished with the application; the evidence adduced at the hearing and his official records, the Commissioner affirmatively finds that the statutory and regulatory requirements relating to the application for, and the approval of, the establishing of a branch office of a Savings and Loan Association in the State of Texas have been substantially proved and established and that approval of the application of Stephenville Savings and Loan Association for a branch office to be located at 100 College Park Drive, Weatherford, Parker County, Texas should be granted and such permission is hereby GRANTED and the application is hereby in all things APPROVED.
      SIGNED and ENTERED in the Office of the Savings and Loan Department of Texas, Austin, Travis County, Texas on this 24th day of January A.D. 1977.
      /s/ W. Sale Lewis
      W. SALE LEWIS
      Savings and Loan Commissioner of Texas”


source: Caselaw Access Project

author: OSBORN, Justice.

license: Public Domain

text:
    Michael SULLIVAN, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 6798.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 11, 1978.
    Rehearing Denied Oct. 18, 1978.

      Joseph A. Calamia, Charles Michael Mal-lin, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., Thomas W. Chellis, Asst. Dist. Atty., El Paso, for appellee.
   OPINION

OSBORN, Justice.

This is an appeal from a quo warranto proceeding in the 41st District Court of El Paso County holding (1) that Article 5968, Tex.Rev.Civ.Stat.Ann., is constitutional, and (2) that the office of Sheriff of El Paso County became vacant on June 21, 1978. We affirm.

Michael Sullivan, Jr., the duly elected Sheriff of El Paso County, was indicted on two counts on February 23, 1978, for official misconduct in connection with work done at his home by County employees. The following day, a suit was filed by the District Attorney in the 171st District Court seeking to have the Sheriff removed from office. In subsequent proceedings, the Texas Supreme Court held that the presiding Judge was disqualified to hear and determine a motion for temporary suspension from office. Sullivan v. Berliner, 568 S.W.2d 844 (Tex.1978).

The Honorable Fred Shannon was assigned to hear the case and proceeded to hear the motion for temporary removal in May, 1978. After hearing evidence, Judge Shannon announced in open Court that he had made a proposal concerning which he said “I believe, serves the ends of justice in this case, both to the citizens of El Paso County and to Defendant Sullivan.” The proposal was accepted by the Defendant, and the District Attorney took no position on the proposal either by reply or objection. The proposal was:

“Number one, Sheriff Sullivan will plead guilty to two counts of official misconduct under Section 39.01(a)(1) of the Texas Penal Code, which offense constitutes Class A misdemeanors.
“Number two, Sheriff Sullivan will receive a punishment, or as punishment, a fine of $500 for each of the two counts, or a total of $1000, and shall make full restitution to El Paso County of all sums spent by the County on labor and materials utilized for the Sheriff’s benefit as alleged by the indictments. That total sum is $840, consisting of $480 for labor and $360 for materials.
“Three, felony indictments brought in the two criminal cases will be answeredby [sic] the defendant’s plea to the lesser included offense of official misconduct, which I set out in point one.
“Number four, the Sheriff will not be removed from office by this Court, but will continue in office subject to the will of the voters at the next election for the office of Sheriff of El Paso County.”

The Judge also announced that the removal case would be dismissed with prejudice. Immediately thereafter, Sheriff Sullivan entered a plea of guilty to the offenses of official misconduct under Section 39.01(a)(1) of the Texas Penal Code on the two counts set forth in the indictments. Judgments were entered on May 22, 1978, in the two criminal cases. The Defendant did not appeal. On May 25,1978, an order of dismissal with prejudice was entered in the civil case. The State did not appeal.

On August 3, 1978, the District Attorney filed a quo warranto proceeding in the 41st District Court seeking a determination that the office of Sheriff was vacant under the provisions of Article 5968, Tex.Rev.Civ.Stat. Ann. Judge Walter Loughridge was assigned to hear the case and after hearing the evidence entered the order from which this appeal arises.

The Appellant presents four points of error asserting that (1) Article 5968 is not applicable because there was no conviction by a petit jury; (2) Article 5968 is unconstitutional; (3) the quo warranto judgment violates the plea bargain agreement; and (4) the doctrine of res judicata bars the removal of Sheriff Sullivan from office.

The basic contention under the first point is that Article 5968 requires a conviction by a petit jury and a plea before the Court does not meet the statutory requirement. Article 5968 provides:

“All convictions by a petit jury of any county officers for any felony, or for any misdemeanor involving official misconduct, shall work an immediate removal from office of the officer so convicted. Each such judgment of conviction shall embody within it an order removing such officer.”

The argument presented here was also made in Trevino v. Barrera, 536 S.W.2d 75 (Tex.Civ.App.—San Antonio 1976, no writ). In that case, a mandamus was filed to require the chairman of the executive committee of the Democratic Party in Duval County to place certain names on the ballot for county treasurer and county commissioner. The two persons who had held such offices had previously been found guilty of charges of official misconduct in cases where they waived a jury and the evidence was heard by the district Judge. In addressing the same issue now before this Court, Justice Cadena said:

“Article 5968, on which relators rely, by its express terms, provides for automatic removal upon ‘conviction by a petit jury.’ The county chairman’s refusal to place relators’ names on the ballot appears, at first blush, to be correct, since Valerio and Solis have not been removed from office as a result of a civil suit seeking their removal, nor have they been convicted by a jury, as seemingly required as a condition precedent to automatic removal under Article 5968. However, we conclude that the conviction of Valerio and Solis of offenses of the grade or felony resulted in their automatic removal from their offices.
“Article 5968 was enacted in 1876. At that time and, in fact, until 1931, it was not possible for an accused to waive the right of trial by jury in a felony prosecution. This fact was expressly recognized by the Legislature when, in 1931, it made it possible for a person charged with a felony to waive his right to a jury upon a plea of guilty. Acts, 1931, 42d Leg., ch. 43, p. 65. The validity of a statute permitting the waiver of the constitutional right of trial by jury is beyond question. Bolton v. State, 123 Tex.Cr.R. 543, 59 S.W.2d 833 (1933).
“If a constitutional right can be waived, it cannot be persuasively argued that a right granted by statute cannot be voluntarily relinquished. Therefore, the right of a public official accused of a felony to insist on conviction by a jury as a condition precedent to giving to such conviction the effect of automatically removing him from office may be waived. Since both Valerio and Solis waived the right to a jury trial, they voluntarily waived the right to now insist that the conviction did not effect their automatic removal from office because they were not found guilty by a jury.
“We conclude that the judgments of conviction automatically removed Valerio and Solis from the offices which they formerly held.”

The first point of error is overruled.

The Appellant next asserts that the automatic removal provision in Article 5968 is not permissible under Article 5, Sec. 24, of the Texas Constitution which provides:

“County Judges, county attorneys, clerks of the District and County Courts, justices of the peace, constables, and other county officers, may be removed by the Judges of the District Courts for in-eompetency, official misconduct, habitual drunkenness, or other causes defined by law, upon the cause therefor being set forth in writing and the finding of its truth by a jury.”

The argument is made that the Constitution requires removal by a district Judge and the Legislature may not provide for automatic removal. Reliance is placed upon the language used in Dorenfield v. State, 123 Tex. 467, 73 S.W.2d 83 (1934), where the Court said:

“Corpus Juris states a universally recognized rule in this language: ‘Where the Constitution prescribes the mode for removing officers, the legislature may not authorize a removal in another mode.’ 46 C.J., sec. 145(5), p. 984; 22 R.C.L., Sec. 265, p. 561.”

Although the State contends that the Statute is valid under the above quoted section of the Constitution, the State also asserts the validity of Article 5968 under Article 16, Sec. 2, of the Texas Constitution. It provides:

“Laws shall be made to exclude from office, serving on juries, and from the right of suffrage, those who may have been or shall hereafter be convicted of bribery, perjury, forgery, or other high crimes. The privilege of free suffrage shall be protected by laws regulating elections and prohibiting under adequate penalties all undue influence therein from power, bribery, tumult or other improper practice.”

In addition, the State asserts validity of the removal Statute under Article 15, Sec. 7, of the Constitution, which states:

“The Legislature shall provide by law for the trial and removal from office of all officers of this State, the modes for which have not been provided in this Constitution.”

We conclude that Article 5968 is not in conflict with and was properly enacted under Article 5, Sec. 24, of the Texas Constitution. Both provisions deal with removal from office of County officers. Both provisions provide official misconduct as a ground for removal from office. The Statute, as well as the Constitution, requires jury findings on the conduct constituting such misconduct. In Poe v. State, 72 Tex. 625, 10 S.W. 737 (1889), the Texas Supreme Court noted that the constitutional provision does not allow the Legislature to give district Judges the power to remove a Sheriff from office without the verdict of a jury. But, as noted in Judge Cadena’s opinion in the Trevino case, there was no provision in the law for a waiver of such right when those constitutional and statutory provisions were written. Since Sullivan chose to waive that valuable right, he may not now complain that the findings of official misconduct were made by the Judge hearing the case rather than a jury.

Appellant also asserts under the second point that official misconduct as found by the Court under Article 39.01(a)(1) of the Texas Penal Code does not entail the same standard of conduct as defined in Article 5973. The criminal Statute defines conduct committed “intentionally or knowingly.” Article 5973 defines “official misconduct” as being “wilful in its character,” which may not have included the conduct of the Appellant Sullivan, but the civil Statute also says “official misconduct” “includes any wilful or corrupt failure, refusal or neglect of an officer to perform any duty enjoined on him by law,” and his conviction does come within that part of the Statute. Point of Error No. 2 is overruled.

The next point of error asserts that the quo warranto judgment violates the plea bargain agreement made with Judge Shannon, denies Appellant his constitutional due profess rights, and that the State is barred and estopped from removing Appellant from office.

First, we note, and Appellant’s counsel concedes on oral argument, that estoppel does not work against the State. 22 Tex. Jur.2d Estoppel, Sec. 2.

We do recognize that there was a plea bargain made by Appellant with Judge Shannon. When a bargain is not kept, the criminal defendant is entitled to have the conviction set aside, because the voluntariness of the plea of guilty has been affected. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Washington v. State, 559 S.W.2d 825 (Tex.Cr.App.1977). This Court, as a Court of Civil Appeals, has no criminal jurisdiction and we cannot become involved in the criminal case. But since the plea bargain has been violated, we doubt there is a Judge anywhere, with proper jurisdiction, who would not, at Appellant’s request, set aside his plea of guilty and judgment and reinstate the case for trial. In oral argument, counsel for the State appears to recognize that the Appellant is probably entitled to such relief. But counsel for Appellant insists that he does not want the plea of guilty to the two misdemeanor counts set aside.

Since we have previously concluded, as did the San Antonio Court of Civil Appeals, that the conviction for official misconduct results in an automatic removal, we may not grant relief to one who chooses not to have his conviction for such offense set aside. If he chooses to accept a misdemean- or conviction and refuses to seek relief to set it aside, he necessarily chooses to accept the loss of his office under the automatic removal provisions of Article 5968. Point of Error No. 3 is overruled.

The last point of error asserts that the dismissal with prejudice of the pending removal suit by Judge Shannon is res judi-cata and bars the quo warranto proceedings. This presents a very close and difficult question. For res judicata to apply, the two causes of action must involve the same parties, be based on the same facts, and there must be a final judgment on the merits in the first cause of action. Abbott Laboratories v. Gravis, 470 S.W.2d 639 (Tex.1971).

We do conclude that the two causes of action involve the same parties. The first removal suit was styled “State of Texas, ex rel., Moises Salazar, Plaintiff v. Michael Sullivan, Jr., Defendant” and was signed by Steve W. Simmons, District Attorney for El Paso County. Moises Salazar, whose name was used in the first petition, was the foreman of the grand jury which indicted Sullivan the day before the removal petition was filed. The quo warranto suit is styled “The State of Texas, Petitioner, v. Michael Sullivan, Jr., Respondent,” and is also signed by Steve W. Simmons. Thus, in both instances the State, through its duly elected District Attorney, sought to have the office of Sheriff of El Paso County vacated, in one instance by a removal suit and in the other by a quo warranto proceeding.

We also note, and there is no dispute, that there is a final judgment on the merits in the first cause of action, that being the order of dismissal with prejudice signed by Judge Shannon on May 25, 1978.

Now we turn to the issue of whether or not the two causes of action are based on the same facts. The pleadings in the quo warranto suit allege that Sullivan was indicted on February 23,1978, for two acts of official misconduct occurring in 1977. A copy of one indictment was attached as an exhibit. It is also alleged that on May 16, 1978, the Honorable Fred Shannon, Judge Presiding, accepted a guilty plea to said indictments by Michael Sullivan, Jr. A copy of the judgment entered in one of the cases was also attached to the pleading. Further allegation is made that under the provisions of Article 5968, the office of Sheriff of El Paso County has been vacated. By comparison, the original petition in the removal suit alleges that Michael Sullivan, Jr., committed acts of official misconduct while serving as Sheriff of El Paso County, and the offenses alleged to constitute such official misconduct are enumerated. There is no allegation that he has committed a crime or that he has been convicted of any offense involving official misconduct. As noted earlier, Judge Shannon was originally assigned to hear a motion for temporary removal of the Sheriff and actually heard considerable evidence in such civil proceeding. No evidence had been heard in the criminal cases involving Sheriff Sullivan at the time Judge Shannon proposed a disposition of all issues, both civil and criminal. Thus, at the time Judge Shannon announced that he would dismiss the civil case, there had actually been no disposition of the criminal charges. And even though the order of dismissal with prejudice was entered in the civil removal case three days after the judgments were entered in the two criminal cases, the criminal judgments obviously had not become final at that time and the State could not have amended its original removal petition to allege convictions for a misdemeanor involving official misconduct and offered evidence in support thereof, because the time for appeal in the criminal cases had not expired. Thus, we conclude that the facts in the two causes of action are not the same and the doctrine of res judicata does not apply.

In addition, we hold that the doctrine of res judicata does not apply because there are exceptions to the doctrine based upon important reasons of policy. The doctrine of res judicata, as the embodiment of a public policy, must at times be weighed against competing interests and other public policy, and must, on occasion, yield to other policies. 46 Am.Jur.2d Judgments, See. 402; Greenfield v. Mather, 32 Cal.2d 23, 194 P.2d 1 (1948); In re Di Carlo’s Estate, 3 Cal.2d 225, 44 P.2d 562 (1935). In this case, the Texas Constitution recognizes a right to remove from public office those officials who have been convicted of official misconduct. The Texas Legislature has declared it to be the public policy of this State that those County officials who have been convicted of a felony or misdemeanor involving official misconduct shall be immediately removed from office. In view of such declaration of public policy, and the need to protect the public from those who have breached their public trust, we conclude that even if the facts in this case were such that the doctrine of res judicata would be applicable, an exception should be made to its application. Point of Error No. 4 is overruled.

The judgment of the trial Court is affirmed.


author: PRESLAR, Chief Justice. OSBORN, Justice,

text:
    KIMBELL, INC., d/b/a Foodway # 164, Appellant, v. Artemisa HERNANDEZ, Appellee.
    No. 6763.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 11, 1978.
    Motion of Appellant and Appellee for Rehearing Denied Nov. 1, 1978.

      Kemp, Smith, White, Duncan & Hammond, Joe Lea, Jr., Michael D. McQueen, El Paso, for appellant.
    Jesus M. Hernandez, El Paso, for appel-lee.
   OPINION

PRESLAR, Chief Justice.

In this venue case, the trial Court in reliance on Subdivision 9a, Negligence, of Article 1995, Tex.Rev.Civ.Stat.Ann., overruled the plea of privilege of Kimbell, Inc., d/b/a Foodway # 164. We affirm.

Appellant, in its excellent brief, points up the law that under Subdivision 9a, as an exception to Article 1995, Appellee as Plaintiff had the burden of pleading and proving by a preponderance of the evidence (1) that an act or omission of negligence occurred, (2) in the county where suit was filed, (3) that such act or omission was that of the Defendant or his agent, and (4) that such negligence was a proximate cause of Plaintiff’s injuries. This is a suit to recover damages for personal injuries alleged to have been sustained by Artemisa Hernandez, Appellee, when she slipped and fell in Appellant’s supermarket. The standard by which an occupier of land is to be judged has been summarized as follows:

“ ‘A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.’
The occupier is under the further duty to exercise reasonable care in inspecting the premises to discover any latent defects and to make safe any defects or to give an adequate warning. Restatement (Second) of Torts Sec. 343, Comment b (1965).”

Adopted in Texas in Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex.1972), and Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.1975).

Appellant, by its Point of Error No. 1, challenges the holding of the trial Court that the Appellee proved a negligent act by the Appellant because there was no evidence introduced that Appellant knew or should have known of a dangerous condition on the premises. The filing of findings of fact and conclusions of law by the trial Court is discretionary in venue trials, and none were filed in this case. In the absence of such findings, it is presumed that the trial Court found such facts as are necessary to support its judgment. Presumably, then, the trial Court found that the Appellant knew or should have known of a dangerous condition on the premises, including a finding that a quantity of ice cubes on a tile floor is a dangerous condition. In the face of a contention of no evidence; we are of the opinion that there is some evidence that Appellant should have known of a dangerous condition on the premises. In reviewing the evidence to make that determination, we have followed the familiar rule of considering only the evidence and reasonable inferences in favor of the presumed finding of the trial Court, and disregarded all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

The only evidence came from the Appel-lee, and she testified that while shopping for groceries in the Appellant’s store she slipped and fell on ice on the tile floor. She testified that while the checker was checking her groceries, she remembered she needed some cheese and returned to the store for it. As she returned to her grocery cart at the checkout counter, she slipped on the ice. The trial Court could have concluded that because of the quantity of the ice and its proximity to Appellant’s employee, the checker, the, employee should have known of it. In our review, the above rule of Alviar becomes important because of some equivocation in the evidence. Appel-lee drew a diagram which was introduced into evidence showing the location of two checkstands with her cart between them and ice scattered around the cart. She did not know if the checkstand to the right of the cart was manned by an employee at the time, but she testified that her groceries were checked by a checker to the left of her cart who was only “about three or four feet” from the ice. In response to a question as to whether there was a small quantity of ice or quite a few chunks, she testified that there were quite a few pieces, and her unsealed diagram shows a rather large quantity. Her evidence was that the ice was in full view of the checkers at the checkout counter, and that it was in an area where several people were walking around, both customers and employees. Her diagram shows the bulk of it to be to the right of the cart, and she equivocates on whether the cart would block the checker’s view of the ice, but said that not all of the ice was located in a position where her cart would shield it from the view of the checker but that it was scattered around all over the floor and would not be completely shielded by the cart. As can be seen from this brief review of the evidence, there is some evidence to support the trial Court’s implied finding that Appellant should have known that the ice was on the floor.

The judgment of the trial Court is affirmed.

OSBORN, Justice,

dissenting.

I respectfully dissent. In 1949, Justice Norvell, writing for the San Antonio Court of Civil Appeals in H. E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501 (writ ref’d n. r. e.), said that in order to establish liability against the defendant operator of a store in a slip and fall case that it was necessary to show:

“1. That the defendant put the foreign substance upon the floor, or,
“2. That the defendant knew the foreign substance was on the floor and wil-fully or negligently failed to remove it, or
“3. That the foreign substance had been upon the floor for such a period of time that it would have been discovered and removed by the defendant, had the defendant exercised ordinary care.”

That same or similar language has been used on many occasions to reflect the applicable law in slip and fall cases. See O’Neal v. J. Weingarten, Inc., 328 S.W.2d 793 (Tex.Civ.App.—Beaumont 1959, writ ref’d n. r. e.); Great Atlantic & Pacific Tea Company v. Giles, 354 S.W.2d 410 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.); Hall v. Safeway Stores, Inc., 360 S.W.2d 536 (Tex.Civ.App.—Eastland 1962, writ ref’d n. r. e.); Foodway, Inc. v. Lopez, 480 S.W.2d 227 (Tex.Civ.App.—El Paso 1972, no writ); Whitfield v. Furr’s, Inc., 502 S.W.2d 897 (Tex.Civ.App.—El Paso 1973, no writ); M System Food Stores, Inc. v. Davis, 508 S.W.2d 475 (Tex.Civ.App.—El Paso 1974, no writ); Furr’s, Inc. v. Leyva, 553 S.W.2d 202 (Tex.Civ.App.—El Paso 1977, writ ref’d n. r. e.).

Without exception, each of those cases require something more than that the store owner should have known that the foreign substance was on the floor. In each and every instance, the Court said that it was necessary that the proof establish with regard to the third proviso that the foreign substance had been upon the floor for such a period of time that it would have been discovered and removed by the defendant in the exercise of ordinary care. In this case, the proof, from the testimony of Mrs. Hernandez, is that after she went to the checkout stand in the store she remembered that she had forgotten to get some cheese, and she went back and picked up the cheese and came back to the checkstand and at that time fell. She said the ice was not on the floor when she first came to the checkstand, but it was there when she returned after picking up the cheese. With regard to the period of time which elapsed while she was getting the cheese, she testified as follows:

“Q. Now, when you went back to the section to get the cheese, that ice wasn’t there?
•“A. No.
“Q. Do you recall how long it took you to go get that cheese?
“A. I don’t believe it even took one minute. Just what it took me to walk over there.
“Q. Just less than a minute then to get over there and back?
“A. Yes. Just a matter of seconds.”

In my opinion, that proof does not establish that the ice was on the floor for such a length of time that the defendant store owner should have known of its presence and removed it, and that its failure to do so was negligence so as to come within Subdivision 9a of Article 1995, Tex.Rev.Civ.Stat. Ann.


author: MOORE, Justice.

text:
    J. W. LANCASTER, Appellant, v. David A. GREER et al., Appellees.
    No. 1159.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 12, 1978.
    Rehearing Denied Nov. 9, 1978.

      Bill Pedersen, Jr., Rorie & Pedersen, Nac-ogdoches, for appellant.
    John 0. Sutton, Stripling & Sutton, Forrest G. Braselton, Nacogdoches, for appel-lees. ■
   MOORE, Justice.

This is an appeal from a summary judgment. Plaintiff, David A. Greer, entered into an earnest money contract agreeing to sell 467 acres of land to defendant, Ercell C. Bates. Thereafter, Bates assigned the contract to defendant, J. W. Lancaster, without the knowledge of Greer. After assigning the contract to Lancaster, Bates notified Greer that he had decided to abandon the contract and forfeit the $2,000.00 earnest money. After receiving the earnest money, Greer entered into a contract agreeing to sell the land to a third party. At the time of the anticipated closing of the sale to a third party, Greer discovered that Bates had assigned his contract to purchase the land to Lancaster and that Lancaster had filed the same for record in Nacogdoches County, Texas, where the land was situated. Greer brought suit against Lancaster and Bates alleging the assignment was void and constituted a cloud on his title.

The matter came for hearing before the trial court on motions for summary judgment filed in behalf of all three parties. After severing all issues between defendants Lancaster and Bates, the trial court proceeded with the summary judgment hearing to determine the validity of the assignment from Bates to Lancaster. After the hearing, the trial court entered a summary judgment in favor of the plaintiff Greer finding that the earnest money contract between Bates and Greer was nonassignable and that the attempted assignment from Bates to Lancaster was void and amounted to a cloud on Greer’s title. Greer’s claim for damages was denied as moot. The court overruled Lancaster’s motion for summary judgment. It is from this ruling and judgment that Lancaster duly perfected this appeal claiming it was error for the trial court to hold that the sales contract was nonassignable as a matter of law.

The facts for the most part are not in dispute. On January 5, 1976, plaintiff entered into an earnest money contract with Bates for the sale of plaintiff’s land, and earnest money from Bates in the amount of $2,000 was placed in escrow with Floyd Real Estate. There is evidence that defendants Lancaster and Bates were “partners” in the purchase of the land, and that Lancaster in fact paid Bates one-half of the earnest money which Bates deposited in escrow. However, only Bates signed the contract and Greer had no knowledge of the fact that Lancaster had any interest in the transaction until Greer attempted to sell the land to a third party.

After substantial development problems had arisen, Bates decided to forfeit the contract with Greer. He arranged for Floyd Real Estate to draw up a check forfeiting his earnest money in the amount of $2,000 as liquidated damages payable to the order of Bates and Greer, which check was dated March 26, 1976. That same day, at the urging of defendant Lancaster, Bates signed an Assignment of Sales Contract drawn up by Lancaster’s attorney assigning to Lancaster all rights Bates may have had in the contract with Greer. It appears from the record that several days later Bates endorsed the check forfeiting the earnest money to Greer and forwarded same to Greer who endorsed and deposited it to his account. Both endorsements appear under the words “For mutual release of sales-purchase contract of January 1 [sic], 1976.”

About a month later Greer, who was unaware of the purported assignment, negotiated a sale of the land in question with a third party. On April 26,1976, the date the sale to the third party was to be closed, plaintiff discovered that his title was clouded by the purported assignment of sale to Lancaster which was recorded that same day earlier in the morning. The present action followed.

On appeal Lancaster complains that the trial court erred in granting plaintiff’s motion for summary judgment and overruling defendant’s motion for same on the ground that, contrary to the holding of the trial court, the sales contract in question is assignable as a matter of law. In reply, Greer argues that the contract was not assignable because it involved the extension of credit to Bates. The sole and only issue to be determined is whether the contract is assignable.

Paragraph 1 of the earnest money sales contract between Greer and Bates contains a description of the land in question as well as the method by which payment for the land shall be exacted. Provisions dealing with the method of payment read in pertinent part:

The purchase price of the land is $500.00 per acre . . . The cash payment to be made by the buyer is $40,000.00 . . . The buyer shall execute ten vendor’s lien notes of even date . . . , each in the principal sum of one-tenth of the deferred consideration, and which said notes shall be payable on, but not before, 1,2, 3, 4, 5, 6, 7, 8, 9, and 10 years after date respectively .

Paragraph 2 of the contract allows the purchaser to sell any or all of the said tracts of land and provides for the release of the vendor’s lien and deed of trust lien affecting such tract provided $600 per acre is paid to the seller’s escrow agent. Paragraph 2 reads in pertinent part:

It is further agreed that the above described deed shall contain a provision to the effect that the Buyer will be permitted to sell tracts of any size, and the Seller will execute a release of the vendor’s lien and deed of trust lien affecting such tract provided that the sum of $600.00 per acre in the tract to be released shall be deposited with the Stone Port National Bank of Nacogdoches, Texas, which bank shall be escrow agent. The money that is deposited in said account shall be used for the purpose of meeting the principal and interest payments . . . . It is further agreed that if there should be an accumulation in said escrow account sufficient to pay all of the unpaid principal and all of the interest to accrue according to the terms of said notes that the Seller will in writing request said escrow bank to remit to the Buyer any such excess. It is also agreed that . . . when said indebtedness, principal and interest, is fully paid the Seller will execute to the Buyer a release of said vendor’s lien and deed of trust lien on all of the property described in said deed and deed of trust.

Nowhere does the contract authorize assignment, nor does the contract prohibit assignment. The present action turns on the question of the assignability of the earnest money contract. The general rule is that all contracts are assignable. Zale Corp. v. Decorama, Inc., 470 S.W.2d 406, 408 (Tex.Civ.App.—Waco 1971, writ ref’d n. r. e.). However, there are some well-recognized exceptions to the rule. One exception is that rights arising out of a contract which involve an extension of credit between the parties to the contract are not assignable. Menger v. Ward, 87 Tex. 622, 30 S.W. 853 (Tex.1895); Moore v. Mohon, 514 S.W.2d 508, 513 (Tex.Civ.App.—Waco 1974, no writ history). It has been held that contracts for the sale of real estate which provide for credit from the seller are not assignable. Kinman v. Howard, 465 S.W.2d 400 (Tex.Civ.App.—Waco 1971, no writ history); White v. Adams, 201 S.W.2d 623 (Tex.Civ.App.—San Antonio 1947, no writ history).

Appellant concedes that paragraph 1 of the earnest money contract which sets out the method of payment provides for an extension of credit, and that if this paragraph alone were in the contract, such contract, being one involving credit, could not be assigned. However, appellant takes the position that paragraph 2 of the contract permits a one-time cash payment of the entire indebtedness without the extension of any credit and therefore is assignable as a severed portion of the contract. With this position we do not agree.

Interpreting the provisions of the contract most favorably toward appellant, there is no provision in any paragraph of the contract which would allow for a total cash payment at closing or which allows for the consummation of the contract of sale unless vendor’s lien notes and deed of trust liens are created. This court fails to see how credit cannot be extended, if only for a brief time, when vendor’s lien notes and deeds of trust must be created pursuant to the contract terms. Paragraph 1 makes it explicitly clear that the payment for the land is expected to be made in annual installments over a ten-year period. Paragraph 2 specifically states that the money deposited in the escrow account shall be used for the purpose of meeting the principal and interest payments. This money is not to be considered a cash payment for a tract of land, but rather a prepayment of the principal and interest on the notes. Obviously, credit must be extended before any notes could be executed in order to be prepaid. The rationale underlying the exception to the general rule is that credit contracts by their very nature involve a relationship between the seller and the buyer of personal confidence and trust, such that the seller must have intended the rights conferred by the contract to be exercised only by him in whom he actually confided. Menger v. Ward, supra. Whenever the contracting parties have relied on the skill, character or credit of each other, the law will not permit one of the parties to substitute for himself another person in whom the opposite party may not repose an equal trust or confidence. Southern Community Gas Co. v. Houston National Gas Corp., 197 S.W.2d 488, 489 (Tex.Civ.App.—San Antonio 1946, writ ref’d).

As the essential nature of the earnest money contract is one extending credit, a relationship of personal trust and confidence was intended and created between Greer and Bates such that the law will not permit in the absence of Greer’s consent .the substitution of another party for Bates. It is undisputed that Greer did not consent to the assignment.

This relationship of personal trust is not only borne out in paragraphs 1 and 2 of the contract but also in paragraph 4. The seller places reliance not only on the buyer’s financial ability but also on their personal relationship of trust and confidence by obligating the buyer to commence the construction of an access road to the property in question “. . . without reference to whether said contract of sale is consummated. ...”

We hold that the earnest money contract is not assignable in whole or part as a matter of law since it involves an extension of credit by the seller to the purchaser, and because of the personal confidence and trust involved in building an access road regardless of consummation of the contract. It follows that the instrument assigning the contract from Bates to Lancaster is null and void. Since the record reveals that no genuine issue of fact remains to be determined, we hold the trial court properly disposed of the cause in granting plaintiff’s motion for summary judgment and in denying defendant’s motion. Tex.R.Civ.P., Rule 166-A(c); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).

The judgment of the trial court is affirmed.


author: DUNAGAN, Chief Justice.

text:
    TRINITY NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY, Appellant, v. Thomas C. BOMAR and Vickie Darlene McQueen, Appellees.
    No. 1167.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 12, 1978.
    Rehearing Denied Nov. 2, 1978.

      Larry L. Gollaher, Thompson, Coe, Cousins & Irons, Dallas, for appellant.
    E. B. Underwood, Ballinger, for appel-lees.
   DUNAGAN, Chief Justice.

This is an appeal by Trinity National Life Insurance Company, appellant-insurer, from an adverse judgment rendered by the trial court in a suit filed by Thomas Bomar, insured, and his daughter, both appellees. The suit was upon two major medical insurance policies, one with a $5,000.00 limit of liability, and the other with a $5,000.00 deductible and a $15,000.00 limit, written at the same time as a package and in which the contractual provisions in issue are identical. The sole question presented by this appeal is whether the policies' provision which provides that dependent coverage terminated upon marriage is invalid under the terms of Article 3.70-7, Texas Insurance Code. It appears that we are presented with a case of first impression.

The facts were stipulated by the parties and the cause submitted to the trial court as an agreed ease pursuant to Rule 263, T.R.C.P. The policies were first issued to Thomas Bomar with an effective date of July 10, 1975; premiums for the period of July 10, 1975 to July 10, 1976 were paid to and accepted by appellant-insurer. The following year, renewal premiums were paid to and accepted by appellant-insurer for the period of July 10, 1976 to July 10, 1977. The policies both contained the following provision which is the subject of this action:

“PART V
LIMITATIONS
A. ‘Dependent members of the Insured’s family’ as used in this policy means the dependent, unmarried child or children of the Insured who are under 18 years of age, and the Insured’s spouse, whose name is listed in the application or endorsed rider on this policy and are insurable in accordance with the general underwriting standards of the Company. The coverage for any child terminates upon marriage or attaining the age of 18 * years, nearest birthdate, except if authorized by Insured, full coverage may be continued provided an adult premium is paid beginning at premium-payment date nearest attaining age 18 * or upon marriage; however, (i) if Company accepts a premium after such date, the coverage provided by the policy will continue in force subject to any right of cancellation until the end of the period for which premium has been paid . . . .” [Emphasis added.]

Vickie Bomar, Thomas Bomar’s daughter who was an insured dependent, was subsequently married to Kenneth McQueen on July 17, 1976. She was later hospitalized for surgery and medical treatment from January 23, 1977 to February 23, 1977; medical and hospital expenses in excess of $10,000.00 were incurred. A claim for benefits was duly submitted to appellant-insurer who then first learned of Vickie Bomar McQueen’s marriage. The claim for benefits was refused and appellant-insurer immediately attempted to retroactively delete Vickie Bomar from coverage under the policy, effective with the date of her marriage.

The trial court, after having approved and certified as correct the parties’ agreed statement of facts, concluded that the policies’ provision terminating dependent coverage upon marriage was invalid under Articles 3.70-4 and 3.70-7, Texas Insurance Code. Relying on Article 3.70-7, supra, the trial court held that the coverage of Vickie Bomar McQueen was effective at the time the medical, hospital, and doctor expenses were incurred and rendered a judgment that appellees recover $13,457.34.

Appellant has duly perfected this appeal, predicated upon a single point of error. It is appellant’s contention that the trial court erred in holding that Article 3.70-7, supra, invalidated the provision here in question which terminated dependent coverage for any child upon marriage. We agree.

Article 3.70-4(B) of the Texas Insurance Code states that when a provision of an insurance policy conflicts with the applicable provisions of the Act, “the rights, duties and obligations of the insurer, the insured and the beneficiary shall be governed by the provisions of this Act.” Appellees primary contention is that a conflict existed between Article 3.70-7, supra, and the policy limitation which terminated dependent coverage upon marriage. Article 3.70-7, supra, entitled “Age Limit,” provides in part that:

“If any such policy contains a provision establishing, as an age limit or otherwise, a date after which the coverage provided by the policy will not be effective, and if such date falls within a period for which premium is accepted by the insurer or if the insurer accepts a premium after such date the coverage provided by the policy will continue in force subject to any right of 'cancellation until the end of the period for which premium has been accepted.”

Appellees argue, and the trial court so held, that the words “or otherwise” are broad enough to, and do include, the limitation of marriage as found in the policies here in question. This ease, appellees assert, is the very type of situation which the Legislature intended to cover by enacting Article 3.70-7, supra. Since the marriage occurred during the policy period for which the premiums had been paid to and accepted by appellant-insurer, appellees conclude that the insurance coverage of Vickie Bomar McQueen was in effect at the time these losses were incurred.

In support of their position, appellees refer this Court to Mercury Life Insurance Company v. Parker, 354 S.W.2d 677 (Tex.Civ.App.—El Paso 1962, n. w. h.). This is the only case dealing with Article 3.70-7, supra, which has come to our attention. The case involves a suit to recover hospital benefits from the defendant insurance company which had issued a policy to the plaintiff-insured. The policy contained the specific limitation that no coverage would be afforded to persons over 60 years of age. On appeal from an adverse judgment in the trial court, defendant-insurer raised the defense that the insured was over 60 years of age. The Court of Civil Appeals expressly pointed out that the insured had truthfully and correctly stated her age but that the insurer had continued to receive and accept the premiums paid by insured “with notice of plaintiff’s correct age . . . .” [Emphasis added:] The court then overruled appellant-insurer’s point and cited Article 3.70-7 as authority. Mercury Life Insurance Company v. Parker, supra at 683. While the decision in Mercury Life is not directly on point with the question presented in the instant case, the rationale set forth by the court is significant.

The significance of Mercury Life is the court’s express reliance on the concept of notice or knowledge. The doctrine of waiver is based upon notice or knowledge. Waiver is the intentional relinquishment of a known right or intentional conduct inconsistent with claiming such right. Massachusetts Bonding & Insurance Company v. Orkin Exterminating Company, 416 S.W.2d 396, 401 (Tex.Sup.1967); Texas & Pacific Railway Company v. Wood, 145 Tex. 534, 199 S.W.2d 652, 656 (Tex.Sup.1947); New Amsterdam Casualty Company v. Hamblen, 144 Tex. 306, 190 S.W.2d 56, 59 (Tex.Sup.1945). The operation of the waiver doctrine presupposes full knowledge of the existing right. Massachusetts Bonding & Insurance Company v. Orkin Exterminating Company, supra; New Amsterdam Casualty Company v. Hamblen, supra; Wirtz v. Sovereign Camp, W.O.W., 114 Tex. 471, 268 S.W. 438, 441 (Tex.Sup.1925).

We do not believe Article 3.70-7, supra, is a departure from this well established case law but rather a codification and clarification of the Texas rule to be applied. As recognized by the court in Mercury Life, notice is still an important factor to be considered. In this context, a close examination of the last sentence of Article 3.70-7, supra, is enlightening as to the role of notice in the operation of this provision.

“In the event the age of the insured has been misstated and if, according to the correct age of the insured, the coverage provided by the policy would not have become effective, or would have ceased prior to the acceptance of such premium or premiums, then the liability of the insurer shall be limited to the refund, upon request, of all premiums paid for the period not covered by the policy."

The Legislature thereby provided that in those cases where the age was misstated, and therefore the insurer would not have notice of the correct age, acceptance of the premium would not waive the policy coverage limitations as it did where no misstatement was involved.

The question before us is whether a marriage subsequent to acceptance of premiums falls within the scope and operation of Article 3.70-7, supra. Article 3.70-7 begins with the statement “[i]f any such policy contains a provision establishing, as an age limit or otherwise, a date after which the coverage provided by the policy will not be effective . . . .” [Emphasis added.] Age limits involve specific dates, foreseeable and capable of exact determination. Prior to acceptance of any premium, the insurer may decide whether coverage should be afforded the proposed insured. If the premium is accepted, with full knowledge of the facts, it is a relinquishment of the insurer’s right to refuse coverage. Marriage involves no such “date” which is capable of anticipation or may be foreseen. It is merely a contemplated change in status until after the fact and may occur at any time. At the time appellant accepted the premiums involved in the instant case, there existed no facts upon which a waiver could be based. The policies’ provision terminating dependent coverage upon marriage is inapposite to the situation addressed by Article 3.70-7, supra. We must conclude that the words “or otherwise” are not broad enough to include marriage and that no conflict existed between the policies’ provision in question and the terms of Article 3.70-7. The dependent coverage terminated upon Vickie Bomar’s marriage in accordance with the clear language of the policies.

Appellant’s point of error is sustained. The judgment of the trial court is reversed and rendered declaring that appellees, Thomas C. Bomar and Vickie Darlene McQueen, recover nothing of appellant, Trinity National Life and Accident Insurance Company. Rule 434, T.R.C.P.

Reversed and rendered.

       “18 years of age” was amended by endorsement to read “twenty-four (24) years of age.”


text:
    Charles P. PARK, Appellant, v. Charles E. BAXTER et ux., Appellees.
    No. 1172.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 12, 1978.
    Rehearing Denied Nov. 2, 1978.
    Dennis C. Hollé, Dulany & Hollé, Belton, for appellant.
    Gordon G. Adams, Duncan, Bragg, Barron & Phillips, Killeen, for appellees.
   DUNAGAN, Chief Justice.

This is a suit instituted by appellant, Charles P. Park, against appellees, Charles E. Baxter and wife, Margaret L. Baxter, seeking to enjoin the appellees from violation of restrictive covenants. The restrictive covenants which appellant sought to enforce are those restricting the use of ap-pellees’ property in question to: (1) residential use and (2) uses not constituting a nuisance. The cause was tried to the court sitting without a jury. After presentation of the testimony, evidence and arguments of counsel for both parties, the trial court resolved the disputed facts in favor of the appellees and concluded that under the applicable law of limitations the appellant-plaintiff’s cause of action was barred and entered judgment that appellant take nothing. From this judgment the appellant has appealed.

The record does not contain any findings of fact or conclusions of law made or filed by the trial court and none was requested.

Appellant has predicated his appeal upon four points of error. Appellant asserts in points of error Nos. 1 and 3 that there is no evidence to support the court’s finding that (1) the statute of limitations has run to prevent suit to enjoin the operation of the music school or (2) to prevent suit to enjoin the operation of the swimming school. Appellant asserts by his points of error Nos. 2 and 4 that the findings of the court that the statute of limitation has run against his cause of action to enjoin the operation of the music and swimming schools are contrary to the greater weight of the evidence.

The four-year statute of limitation, Art. 5529, Tex.Rev.Civ.Stat.Ann., is controlling in suits to enforce restrictive covenants. Schoenhals v. Close, 451 S.W.2d 597 (Tex.Civ.App.-Amarillo 1970, no writ history); City of Fort Worth v. Johnson, 388 S.W.2d 400 (Tex.1964); Keene v. Reed, 340 S.W.2d 859 (Tex.Civ.App.-Waco 1960, writ ref’d); Arrington v. Cleveland, 242 S.W.2d 400 (Tex.Civ.App.-Fort Worth 1951, writ ref’d).

The undisputed evidence shows that the appellees were operating a music and swimming school on their property, known as Baxter’s Studio of Music and Baxter’s Swimming School.

The evidence shows that appellant purchased his property in November 1964 and that he was aware of the restrictions at that time. The evidence also shows that the appellees purchased the property in question in August 1967. Piano lessons commenced immediately thereafter, in September 1967, and these lessons have been continuously taught with no more than a couple of days’ break right up until the time suit was filed. Appellant instituted his cause of action on October 15, 1974. During the year 1968 there was an average of twenty-six music students per month. During 1969 there was an average of sixty music students per month. It is also shown that there were 362 total hours taught in 1968 in the music school and appellees’ total gross income for that year was $3,410.00. The total gross income for the year 1969 was $7,350.00. The swimming pool was completed in October 1969, and the swimming school began operation in May 1970. The testimony clearly shows that a commercial business was being operated on the property in question in 1968 and 1969, substantial enough that the covenant was breached and appellant was or should have been aware of it.

Appellant contends that the cause of action did not arise four years prior to the institution of his cause of action because appellant did not suffer any pecuniary loss until less than four years before the institution of this suit. However, in an action to enforce a restrictive covenant, it is not necessary that plaintiff prove actual damages to show the breach and obtain injunctive relief. Gunnels v. North Woodland Hills Community Association, 563 S.W.2d 334, 337 (Tex.Civ.App.-Houston 1978, no writ history); Shepler v. Falk, 398 S.W.2d 151, 154 (Tex.Civ.App.-Austin 1965, writ ref’d n. r. e.); Protestant Episcopal Church Council v. McKinney, 339 S.W.2d 400, 403 (Tex.Civ.App.-Eastland 1960, writ ref’d). The trial court impliedly found that the evidence was ample and conclusive that the lots in question were dedicated to commercial use more than four years prior to the institution of this suit. Also, where the question before the court is whether as a matter of law there is any evidence to sustain the judgment, the appellate court must presume that the evidence supports not only the expressed findings made but also any omitted findings which are necessary to support the judgment. Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164, 166 (1948). Also, in the absence of findings of fact or conclusions of law where none are requested, it must be presumed that the trial court resolved in appellee’s favor every issue of fact raised by the evidence, and in passing upon the “no evidence” points, we must view the evidence in the light most favorable to such finding, disregarding all evidence that is contrary thereto. Collingsworth v. King, 155 Tex. 93, 283 S.W.2d 30 (1955); Quinn v. Dupree, 157 Tex. 441, 303 S.W.2d 769 (1957); Alexander & Polley Construction Company, Inc. v. Spain, 477 S.W.2d 301 (Tex.Civ.App.-Tyler 1972, no writ history); 11 A.L.R.2d 1065. There is evidence of probative force showing that a distinct and substantial breach of the restrictive covenant occurred prior to October 15, 1970.

Appellant’s second contention is that the evidence is so contrary to the greater weight of the evidence as to render the trial court’s finding manifestly unjust. The test or approach for a “preponderance of the evidence point” comes from In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). The whole record must be considered to determine if the trial court’s finding is so against the great weight and preponderance of the evidence as to be wrong and unjust. In a nonjury case, as this one, the trial court is the judge of the credibility of the witnesses and the weight to be accorded their testimony. Davis v. Travis County Child Welfare Unit, 564 S.W.2d 415 (Tex.Civ.App.-Austin 1978, no writ history to date); White v. Chamberlain, 525 S.W.2d 273 (Tex.Civ.App.-Austin 1975, no writ history); Hayes v. Easter, 437 S.W.2d 652, 654 (Tex.Civ.App.-Texarkana 1968, no writ history). Since findings of fact and conclusions of law were not requested or filed, we must affirm the trial court’s judgment on any theory that finds support in the evidence. Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex.1962); Seaman v. Seaman, 425 S.W.2d 339 (Tex.1968); City of Abilene v. Meek, 311 S.W.2d 654 (Tex.Civ. App.-Eastland 1958, writ ref’d).

We have considered the entire record and have concluded that the evidence is sufficient to support the trial court’s judgment and that the judgment is not so contrary to the greater weight of the evidence so as to be clearly wrong.

The judgment of the trial court is affirmed.

Affirmed.


author: PER CURIAM.

text:
    Jim A. PHIPPS, Appellant, v. E. E. STEWART, d/b/a E. E. Stewart Ford Company, Appellee.
    No. 5950.
    Court of Civil Appeals of Texas, Waco.
    Oct. 12, 1978.
    Rehearing Denied Nov. 9, 1978.
    Jim A. Phipps, pro se.
    Larry O. Brady, Ñaman, Howell, Smith, Lee & Muldrow, Waco, for appellee.
   OPINION

PER CURIAM.

The trial court’s order overruling motion for new trial was signed and entered June 23, 1978. Therefore, Appellant had until not later than Monday, July 24, 1978, in which to file an appeal bond or cash deposit in lieu thereof. See Rule 356, Texas Rules of Civil Procedure.

Appellant filed a cash deposit in lieu of appeal bond on August 14,1978, same being 21 days late. Appellant’s failure to timely file said cash deposit in lieu of appeal bond deprives this court of jurisdiction except to dismiss the appeal. See Heldt Bros. Trucks v. Alvarez (San Antonio CA 1972) 477 S.W.2d 691, writ refused and the cases cited therein on page 693.

APPEAL DISMISSED.


author: JAMES, Justice.

text:
    Lonnie R. PHILLIPS, Appellant, v. CITY OF HOUSTON, Appellee.
    No. 5848.
    Court of Civil Appeals of Texas, Waco.
    Oct. 12, 1978.
    Albert Lee Giddens, Crow, Smyri & Ki-nard, Pasadena, for appellant.
    Ralph E. Gustafson and Terry Hyatt, Patten & Gustafson, Houston, for appellee.
   OPINION

JAMES, Justice.

This is a workmen’s compensation case. Plaintiff-Appellant Lonnie R. Phillips brought this suit against Defendant-Appel-lee City of Houston, a self-insured political subdivision, appealing an award from the Industrial Accident Board, based upon his claim for a back injury. The Defendant-Appellee City filed a plea to the jurisdiction, asserting that Plaintiff-Appellant Phillips failed to comply with Article 8307, Sec. 5, Vernon’s Texas Civil Statutes, in that Phillips failed to give timely notice to the Industrial Accident Board of his unwillingness to abide by the final ruling and decision of said Board. The trial court, without hearing evidence on said Plea to the Jurisdiction, sustained said Plea and dismissed Phillips’s cause of action, from which order of dismissal Phillips appeals. We reverse and remand.

Since the record contains no statement of facts, the material facts and dates hereinafter set out are taken from the transcript and the undisputed assertions set out in the briefs of both parties, and are as follows: On December 7, 1976, the Industrial Accident Board (hereinafter called “Board”) entered an award on the claim. The formal award of the Board was received by Plaintiff Phillips’s attorney on December 9,1976. On December 23, 1976, Plaintiff’s attorney mailed to the Board by first class mail, postage prepaid, notice to the Board that Plaintiff was dissatisfied with the Board’s award, that he would not abide by the award, and would timely file suit in a court of competent jurisdiction to set aside and hold for naught said award. On January 4, 1977, the Board sent to the attorneys for both Plaintiff and Defendant a letter indicating that the Notice of Intent to Appeal the award had been received by the Board on December 29, 1976. Said letter last referred to is hereinafter called “the January 4, 1977, letter.”

The Defendant-Appellee City attached as exhibits to its Plea to the Jurisdiction what purports to be an unauthenticated copy of the Board’s award and an unauthenticated copy of the January 4, 1977, letter. Since there was no evidence heard upon the Plea to the Jurisdiction, the trial court’s action in sustaining said Plea must of necessity have been based upon said two exhibits attached to the City’s Plea. There is no showing in the record that these two exhibits were ever offered in evidence; however, even assuming that they were offered in evidence, we believe them to be hearsay and incompetent as proof of the matters therein stated.

Plaintiff-Appellant complains the trial court erred in admitting and considering the January 4, 1977 letter over Plaintiff’s objection, upon the ground that same is hearsay and incompetent as proof of the matters stated therein, and not falling within an exception to the hearsay rule. We sustain this contention.

Article 8307, Sec. 5, V.T.C.S., in its pertinent parts provides: “Any interested party who is not willing and does not consent to abide by the final ruling and decision of said Board shall, within twenty (20) days after the rendition of said final ruling and decision by said Board, file with said Board notice that he will not abide by said final ruling and decision.” Defendant-Appellee City’s contention is that since the Board did not receive Plaintiff’s notice not to abide by the award until 22 days after the date of the Board’s award, that such non-compliance with Article 8307, Sec. 5 deprived the trial court of jurisdiction over Plaintiff’s cause of action. However, we do not reach this contention or problem for the reasons hereinafter set out.

As stated, the letter of January 4, 1977, from the Board, attached to the City’s Plea to the Jurisdiction, was not attested or certified. Article 3731a, Section 4, V.T.C.S., provides in its pertinent parts that a copy of an official writing from a public office of this State or a subdivision thereof may be made admissible as evidence of the matters contained therein by having same attested by the officer having the legal custody of the record, or by his deputy. Said statute further provides that except in the case of a copy of an official writing from a public office of this State or a subdivision thereof, the attestation shall be accompanied with a certificate that the attesting officer has the legal custody of said writing.

In the case at bar, Article 3731a was not complied with, in that the letter of January 4, 1977, was not in any way attested and certified. Therefore, said letter was hearsay and incompetent as proof of the matters stated therein, and does not fall within any exception to the hearsay rule. See Hartford Accident and Indemnity Co. v. McCardell (Tex.1963) 369 S.W.2d 331 at page 337; Western Inn Corporation v. Heyl (Fort Worth Tex.Civ.App.1970) 452 S.W.2d 752 at page 761, NRE; Bonanza, Inc. v. Lee (Dallas Tex.Civ.App.1960) 337 S.W.2d 437 at page 439, no writ.

Appellee City argues that the letter of January 4,1977, constitutes an admission by the Appellant that the Board received Plaintiff’s Notice on December 29, 1977. We do not agree. The letter of January 4, 1977, was an act or statement by the Board, not by Appellant. Indeed, Appellant states in his brief that he had no knowledge as to when the Board received his Notice, apart from the letter of January 4, 1977. Appel-lee City further contends that said letter is somehow admissible and competent evidence because Appellant had a copy of same in his possession. We overrule this contention, since this fact does not keep said unattested and uncertified letter from being incompetent hearsay. Appellee City further asserts that if the trial court’s consideration of said letter was error, then it was harmless error, and a reversal of the case would be an “exercise in futility” for everybody concerned. We cannot agree with this contention. Since the trial court’s action was based solely upon incompetent evidence, we have no alternative but to reverse and remand the cause to the trial court.

The Plaintiff-Appellant has a point of error to the effect that he (the Plaintiff-Appellant) substantially complied with Article 8307, Section 5, because he posted his Notice to the Board in the mail on December 23, 1976, sixteen days after the date of the Board’s award, at a time within the twenty-day period. We express no opinion upon this contention, because under our view of the case we do not reach this problem.

For the reasons hereinabove stated, we reverse and remand the cause to the trial court.

REVERSED AND REMANDED.


text:
    Harris E. LOFTHUS, Appellant, v. The STATE of Texas, Appellee.
    No. 8999.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 16, 1978.
    Rehearing Denied Nov. 6, 1978.

      Ochsner & Baughman, Harold W. Ochs-ner, Amarillo, for appellant.
    Gary McNeil, Asst. Gen. Counsel, State Bar of Texas, Austin, for appellee.
   PER CURIAM.

The State Bar of Texas Grievance Committee for District 13 instituted formal disciplinary proceedings against Harris E. Lof-thus, an attorney, for alleged violations of the Code of Professional Responsibility. The trial court granted the State’s motion for partial summary judgment and suspended Lofthus from the practice of law for ten months. Lofthus appeals from this judgment. Affirmed.

The State’s motion for partial summary judgment and the affidavits in support thereof were filed on May 17,1978. A copy of this motion was delivered to Lofthus by certified mail. On May 18, 1978, an order was signed which set the hearing on the motion for July 6,1978, at 9 a. m. Lofthus maintains in his only point of error that he never received notice of this hearing in accordance with Rule 166-A(e) of the Texas Rules of Civil Procedure and therefore the trial court erred by holding the hearing.

Counsel for Lofthus appeared in court on July 6, 1978, the date set for hearing, and counsel concedes that he was given until July 10, 1978, to file affidavits. Neither affidavits nor any request for additional time by way of motion for continuance or otherwise were filed by July 10. The court’s docket entry for that date recites that Lofthus “offered no evidence” and that summary judgment was rendered. The judgment recites that argument by counsel for defendant was heard on July 10. No bills of exception were made. No motion for new trial was filed.

Approximately one month after the July 10 proceedings, Lofthus filed affidavits averring that he had no advance notice of the hearing. These affidavits filed subsequent to the hearing cannot be considered. See Chalkley v. Ashley, 392 S.W.2d 752, 753 (Tex.Civ.App.—Dallas 1965, no writ). Beyond that, the lack of advance notice of the hearing date does not necessarily vitiate the judgment. Where, as here, counsel appears on the day of the hearing and is given an opportunity to file affidavits opposing the motion for summary judgment and fails to do so, or to move for additional time, the party may not successfully challenge the summary judgment solely on the ground that he had no advance notice of the hearing date. Chalkley v. Ashley, supra at 753.

Accordingly, appellant’s only point of error must be overruled, and in the absence of any other challenge to the summary judgment rendered, the judgment of the trial court is affirmed.

      . This judgment granted the State’s motion for voluntary nonsuit as to the other counts alleged against Lofthus.

      . The pertinent part of this rule provides that: “Except on leave of court, the motion [for summary judgment] shall be served at least twenty-one days before the time specified for the hearing.”