author: PHILLIPS, Chief Justice. SHANNON, Justice,

text:
    GALVESTON BAY CONSERVATION AND PRESERVATION ASSOCIATION et al., Appellants, v. TEXAS AIR CONTROL BOARD et al., Appellees.
    No. 12975.
    Court of Civil Appeals of Texas, Austin.
    Aug. 22, 1979.
    Rehearing Denied Sept. 14, 1979.

      Clark G. Thompson, Houston, for appellants.

      Mark White, Atty. Gen., Jim Mathews, Asst. Atty. Gen., Austin, for Texas Air Control Bd.
    Pamela M. Giblin, McGinnis, Lochridge & Kilgore, Austin, for American Hoechst Corp.
   PHILLIPS, Chief Justice.

This is a judicial review of an order issued by appellee Texas Air Control Board. Following public hearings held in Harris County, Texas, appellee issued Order 78-2 affirming and modifying the grant of eight Texas Air Control Board construction permits to appellee American Hoechst Corporation by the Executive Director of the Board. Pursuant to Section 6.01 of the Texas Clean Air Act, Tex.Rev.Civ.Stat.Ann. art. 4477-5 (1976), and Section 19 of the Administrative Procedure and Texas Register Act, Tex.Rev.Civ.Stat.Ann. art. 6252-13a (Supp.1978), appellant Galveston Bay Conservation and Preservation Association, hereafter referred to as GBCPA, sought judicial review of appellees’ order in the district court of Travis County, Texas.

A Petition in Intervention on behalf of the City of Shoreacres, City of El Lago, City of Seabrook, City of Taylor Lake Village, City of Kemah, Shoreacres Environmental Committee, El Jardín Property Owners Association, Bay Area Citizens Association, Seabrook Residents Organization, Houston Yacht Club, Rufus G. Smith, and R. A. Wright, was filed by the attorneys for appellants. The trial court granted appel-lees’ motion to strike the Petition in Intervention.

Pursuant to Section 19 of the APA, and Section 6.01 of the Clean Air Act, review of GBCPA’s appeal was conducted under the substantial evidence rule whereupon the district court upheld appellee’s order and denied appellants all relief. Appellant GBCPA has duly perfected its appeal to this Court.

We affirm this judgment.

On April 25,1977, American Hoechst Corporation filed an application with the Texas Air Control Board requesting construction permits for styrene monomer and high density polyethylene facilities to be located in the Bayport Industrial Complex, Harris County, Texas. This application was reviewed by the staff of the Board, and on July 1, 1977, permits authorizing construction of the requested facilities were issued by the Executive Director of the Board.

On August 1, 1977, appellant GBCPA gave notice that it was appealing to the Board the decision of the Executive Director granting permits to American Hoechst Corporation. A notice of hearing to consider the appeal by the GBCPA of the permits issued to American Hoechst was issued on September 21, 1977, and was published in at least three newspapers having general circulation within the area of the proposed plant site. That notice of public hearing stated that the hearing record would be used by the Board to determine whether to affirm, modify or reverse the decision of the Executive Director in granting the permit; that the hearing would commence on November 1,1977; and that a prehearing conference would be set after October 3, 1977. The notice provided that the parties to the hearing would be the staff of the Board, the GBCPA, and Ameri-can Hoechst Corporation; and that other interested persons could request party status which would be decided at the prehear-ing conference. Thereafter, on October 3, 1977, Shoreacres Environmental Committee (SEC) requested party status.

At the prehearing conference on October 14, 1977, the hearing examiner for the agency added SEC as a party to the hearing and entered rulings outlining the disputed issues for the hearing and allocating the burden of proof. The disputed issues determined by the examiner were:

(1) Will the proposed facilities comply with all rules and regulations of the Texas Air Control Board?

(2) Will the proposed facilities- comply with the intent of the Texas Clean Air Act, including proper consideration of land use?

(3) Will the proposed facilities not prevent the maintenance or attainment of any ambient air quality standard?

(4) Will the proposed facilities not cause significant deterioration of existing ambient air quality in the area?

(5) Will the proposed facilities have provisions for measuring the emission of significant air contaminants?

(6) Will the proposed facilities utilize the best available control technology, with consideration to the technical practicability and economic reasonableness of reducing or eliminating the emissions resulting from the facility?

(7) Will the proposed facilities achieve the performance specified in the application for a permit to construct?

(8) Will the proposed facilities meet, at least, the requirements of any applicable new source performance standards promulgated by the Environmental Protection Agency pursuant to authority granted under Section 111 of the Federal Clean Air Act, as amended?

(9) Will the proposed facilities meet, at least, the requirements of any applicable emission standard for hazardous air pollutants promulgated by the Environmental Protection Agency pursuant to authority granted under Section 112 of the Federal Clean Air Act, as amended?

The examiner’s ruling on the burden of proof provided that:

(1) The admission into the record of the permits issued to the company, along with the information and materials on which such issuance was based would establish a prima facie case that the permits were validly issued.

(2) Following the admission of the permits and supporting information, the opponents would have the burden of introducing competent evidence tending to show that the requirements for issuance of the permits were not met.

(3) The ultimate burden of persuasion on all issues would rest with American Hoechst Corporation.

An adjudicative hearing before an agency hearing examiner was held commencing November 1, 1977, through November 10, 1977, at which more than fifty hours of testimony were received. All witnesses testified under oath and were subject to cross examination by all parties other than those calling the witness. At the close of testimony all parties made oral arguments of their case to the agency’s hearing examiner.

Following the completion of the hearings, the examiner prepared his hearing examiner’s report summarizing the record, making findings of fact and conclusions of law, and setting forth his proposal for decision. On December 14, 1977, the hearing examiner’s report containing his proposal for decision was mailed to each of the members of the Texas Air Control Board and to each of the parties to the hearing with the statement that all parties had the right to file exceptions and briefs and proposed findings of fact pursuant to Texas Air Control Board Procedural Rule 54.14.

The opponents to the permits, GBCPA and SEC, each filed exceptions and briefs to the hearing examiner’s report and proposal for decision. GBCPA’s brief also contained proposed findings of fact and proposed conclusions of law. On January 9, 1978, the Board met and considered the hearing examiner’s report and proposal for decision as well as the exceptions and briefs filed by the parties. Lengthy oral argument from all parties was heard and considered before the Board decided to postpone decision in the matter until its next meeting in order to allow additional study of the record and consideration of the arguments raised by each of the parties.

At its next scheduled meeting on February 24, 1978, the Board passed Order No. 78-2 which affirmed and modified, by adding additional special provisions to seven of the eight permits. The Board through its order adopted the findings of fact made by its examiner, as set forth in the hearing examiner’s report and specifically overruled the findings of fact proposed by GBCPA.

GBCPA and SEC each filed motions for rehearing setting forth the grounds on which they alleged the Board had erred in entering Order No. 78-2. Those motions for rehearing were overruled by the Board. Appellant GBCPA filed an original petition appealing the decision of the Board in entering Order No. 78-2 in the Travis County district court within thirty days following the overruling of its motion for rehearing. SEC did not appeal the decision of the Board.

By order of the Travis County district court, dated June 6, 1978, GBCPA’s appeal was set for hearing before the court on August 16, 1978. Briefs of appellant and appellees were filed with the trial court on August 7, 1978. On August 14, 1978, a Petition in Intervention on behalf of the City of Shoreacres, City of El Lago, City of Seabrook, City of Taylor Lake Village, City of Kemah, Shoreacres Environmental Committee, El Jardín Property Owners Association, Bay Area Citizens Association, Sea-brook Residents Organization, Houston Yacht Club, Rufus G. Smith, and R. A. Wright was filed by the attorney for GBCPA. Of the intervenors, only Shorea-cres Environmental Committee had participated as a party in the administrative hearing which resulted in Texas Air Control Board Order No. 78-2. On August 16, 1978, the date set for hearing before the district court, appellants sought leave of the trial court to amend its pleadings. Prior to hearing argument on briefs submitted by all parties, the trial court denied appellants’ request to amend its pleadings and granted appellee’s motion to strike the intervention of the City of Shoreacres, et al.‘

The trial court received the record of the administrative hearing into evidence, and the case of appellants and appellees was submitted on oral arguments and briefs. Thereafter, the trial court entered its orders from which appellant has appealed.

I.

Appellants are before us on a plethora of points which devolve into six main questions. The first is whether the court below correctly concluded that Texas Air Control Board Order No. 78-2 complies with all constitutional and statutory procedural requirements, including those set out in the Texas Administrative Procedure Act.

The statutory requirements in Texas for review and permitting of new sources of air contaminant emissions prior to construction are set forth in Section 3.27 of the Texas Clean Air Act. The pertinent parts of that section with regard to the issues raised in this appeal are:

“(a) Any person who plans to construct any new facility or to engage in the modification of any existing facility which may emit air contaminants into the air of this State shall apply for and obtain a construction permit from the board before any actual work is begun on the facility. The board may exempt certain facilities or types of facilities from the requirements of Section 3.27 and Section 3.28 if it is found upon investigation that such facilities or types of facilities will not make a significant contribution of air contaminants to the atmosphere.
“(b) Along with the application for the permit, the person shall submit copies of all plans and specifications necessary for determining whether the proposed construction will comply with applicable air control standards and the intent of the Texas Clean Air Act, together with any other information which the board considers necessary.
“(c) If, from the information submitted under subsection (b) of this section, the board finds no indication that the proposed facility will contravene the intent of the Texas Clean Air Act, including proper consideration of land use, the board shall grant within a reasonable time a permit to construct or modify the facility. If the board finds that the emissions from the proposed facility will contravene these standards or will contravene the intent of the Texas Clean Air Act, it shall not grant the permit and shall set out in a report to the applicant its specific objections to the submitted plans of the proposed facility.
* * * * * *
“(g) The powers and duties set out in Section 3.27 and Section 3.28 may be delegated by the board to the executive director. The applicant may appeal to the board any decision made by the executive director under these sections.”

Appellees maintain that appellants have been afforded a full right of appeal from the contested case hearing at which they were allowed to fully develop their ease. The result was entry of Board Order No. 78-2 affirming and modifying the permits previously granted by the Executive Director.

Appellants maintain that the allocation of burden of proof in the hearing was improper, thereby resulting in a hearing of form, not substance. We cannot agree. Without passing on the examiner’s allocation of the burden of proof, outlined above, it is apparent from this record that the moving party, appellee American Hoechst Corporation, presented a full and complete record of evidence necessary to uphold its position on each and every issue and in upholding its position, it also upholds the order of the Commission. We also hold that the order is supported by substantial evidence.

Suffice it to say, whatever the examiner’s ruling on this burden, it did not relieve the applicant of the ultimate burden of persuasion on all issues, but rather, created a rebuttable presumption that its burden was met if the permit granted by the Executive Director and the materials which he relied upon were introduced into evidence. This presumption did not have the quality of affirmative evidence. Consequently, once evidence was introduced to rebut the presumption, it vanished and the case was decided de novo upon the basis of evidence in the record. Thus, the granting of the permit by the Executive Director under Section 3.27(g) of the Act, a matter entrusted to him in his official capacity, is valid under the facts of this case.

Appellants were given every opportunity to rebut the evidence in support of the permit, they took full advantage of this opportunity and failed.

Nor are we impressed with appellants’ contention that the order in question fails to follow the requirements of the APA in stating its reasons for its various conclusions. The Commission’s ultimate findings are well explained by the order and are in accord with Section 16 of the APA. These findings are a clear and explicit statement of the underlying facts which allow the parties and this Court to trace the path of the Board in its decision making. They support the conclusion that the proposed facilities will not violate the intent of the Texas Clean Air Act, including proper consideration of land use, nor exceed the applicable air control standards.

The instant case is governed by the substantial evidence rule pursuant to Section 19(e) of the APA and Section 6.01 of the Texas Clean Air Act. Consequently, the trial court was correct in making no findings of fact since only questions of law were presented to it on appeal. Wylie Independent School District v. Central Education Agency, 488 S.W.2d 166 (Tex.Civ.App.1972, writ ref’d n. r. e.).

II.

We next turn to the question of whether the trial court was correct in its conclusion that the order in question was authorized, legal and'valid under the provisions of the Texas Clean Air Act and rules and regulations of the Texas Air Control Board.

Appellants complain that the permits were not signed by the Executive Director of the Board or by the Board, but were issued under the authority of the Executive Director by the Deputy Director of Control and Prevention. We overrule this point by authority of Kettlewell v. Hot-Mix, Inc., 566 S.W.2d 663 (Tex.Civ.App.1978, no writ).

Appellants further assert that the trial court erred when it concluded that Section 3.13 of the Texas Clean Air Act applies to existing sources of air contaminants rather than future sources seeking construction permits, and that the order of the Board was invalid because the Board failed to file findings of fact required by Section 3.13 of the Act.

The trial court held, and we agree, that Section 3.13 applies to existing sources of air contaminants rather than to future sources seeking construction permits under Section 3.27 of the Act. Section 3.13 refers specifically to “emissions being made.” Any ultimate fact questions which the Board must determine when ruling upon a construction permit application are set forth in Section 3.27 of the Act. We hold that the Board’s findings of fact are adequate to support its decision under the appropriate section, 3.27.

III.

We turn now to the question of whether the Board’s order was supported by substantial evidence.

The main thrust of appellants’ case is to argue highly technical and abstruse questions and to regale this Court with instance after instance in which the Board made the wrong decision with respect to its rulings on air concentrations of benzene, styrene and sulphur dioxide. If there were no substantial evidence rules up to this point in time, then this is the ease that would have produced it. To ask a court of law, under the facts before us, to order the Board to reverse, modify or reconsider these technical questions would be ludicrous. This Court’s sole province is to ascertain whether these is any evidence to uphold the Board’s order, with which a reasonable person could agree there is an abundance.

Mr. Sam Crowther, a professional engineer with the Permits Division of the Texas Air Control Board staff, testified extensively about his review of the proposed facilities. Crowther has a degree in Chemical Engineering from the University of Texas and for fifteen years worked as a process engineer for a large company situated on the Houston Ship Channel. He has been an engineer with the Texas Air Control Board for over five years.

Mr. Crowther testified that as part of Texas Air Control Board’s standard procedure, when appellee American Hoechst permit applications were received, he was to relay this information to the various divisions of the Texas Air Control Board staff and to local air control programs so that a comprehensive review could be conducted by people with expertise in specialized areas such as health effects and air quality analysis. The written comments of these other experts were included in the agency’s evaluation of the permit application in question.

Mr. Crowther testified that he personally reviewed the data and information submitted by the applicant in support of the permit and that he found it complete and accurate. Mr. Crowther then went on to explain how he tested the various pollutants by using techniques that have been perfected over a number of years. This method is used to predict impacts of the emissions upon the environment before the facility is built. He went on to note that this type of experiment tends to predict a higher value than is later found when emissions are actually measured after a plant is built. This would have the effect of building in a margin of safety for emission levels predicted by a model.

Every permit unit is required to meet all of the rules and regulations of the Texas Air Control Board governing various pollutants and operations. After summarizing these regulations, Mr. Crowther stated unequivocally that it was his determination that the facilities would meet all of the rules and regulations of the Board. He went on to testify that “this particular facility is the best one I have worked on in the time that I have been working permits with the Air Control Board.”

Mr. Crowther explained that while he evaluated all proposed emissions from the plant, he gave closer scrutiny to the emissions of benzene and styrene, since these compounds can be toxieologically significant.

Mr. James Price, who is in charge of the health effects review for the Texas Air Control Board staff, also testified. He has a Master of Science degree in biochemistry from the University of Texas with primary emphasis on the effect of chemicals on genes and on the regulation of cells in higher orders. Price testified that in his review of literature in this field, he had never seen any indication of demonstrated health effects at the concentrations projected. This testimony was confirmed by Carroll Christian Jones, M.D., a witness for the appellants.

Detailed testimony by Mr. Crowthers with respect to land use and the emissions impact on the land and the use of the land around the facility was given. Without further explanation here of the methods used in these tests, it is sufficient to say that the emissions from the proposed facility are consistent with the use of the land in that area for the purpose of production of ethylbenzene, styrene and high density polyethylene, and that the impact on the air quality will not be significant.

We note that appellee American Hoechst’s plant facilities lie within the industrial district created by the cities of Sea-brook and Pasadena. This local industrial districting is additional strong evidence of the propriety of the American Hoechst plant at the site for which the permits were issued and that the Texas Air Control Board was correct in determining that the facilities would comply with the intent of the Texas Clean Air Act, including proper consideration of land use.

The record is replete with evidence that there would be no adverse air quality impact on surrounding areas as a result of the proposed facilities.

We also hold that this record contains ample evidence to uphold the Board’s findings with respect to the remaining criteria contained in the examiner’s list of disputed issues, described above, and that it would unduly lengthen this opinion to restate that evidence here.

IV.

We also hold that the trial court was correct in refusing to permit appellant to amend its original petition on the merits on the date of the hearing.

Appellant argues that it should have been allowed to amend its pleadings on the day set for the hearing on the merits before the court. This contention is based upon the argument that there was no trial before the district court. This contention fails since the court properly employed the only procedure required by the APA in the review of the administrative agency decision. See Tex.Rev.Civ.Stat.Ann. art. 6252— 13a, § 19 (Supp.1978). Also, under Tex.R. Civ.P. 63, the decision to allow amendment of pleadings within seven days of trial is within the sound discretion of the trial court, and unless it clearly appears that such discretion has been abused, its order permitting or refusing a trial amendment will not be disturbed. Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605 (1948); State v. Beever Farms, Inc., 549 S.W.2d 223 (Tex.Civ.App.1977, writ ref’d n. r. e.). We cannot say that appellees were not surprised by the attempted addition of new material issues. Appellants have failed to carry their burden of showing that the trial court abused its discretion.

We now come to the question of whether the trial court correctly struck intervenors’ petition in intervention where the proposed intervenors had not participated in the administrative agency proceeding and had not complied with the requirements of the APA for appealing an agency order.

The question of whether someone will be permitted to intervene in a suit is subject to wide discretion by the trial court. Delley v. Unknown Stockholders of Brotherly and Sisterly Club of Christ, Inc., 509 S.W.2d 709 (Tex.Civ.App.1974, writ ref’d n. r. e.); DeCato v. Krebs Construction, Inc., 410 S.W.2d 806 (Tex.Civ.App.1966, writ ref’d n. r. e.).

In the instant case, several entities filed a petition in intervention two days prior to the court’s hearing on the merits of the appeal. On motion by appellees, the court struck the intervention. The court’s action was correct for several reasons. To name one, in order to intervene in an action, a party’s interest must be such that he would be entitled to recover in his own name. Wilson v. County of. Calhoun, 489 S.W.2d 393 (Tex.Civ.App.1972, writ ref’d n. r. e.); Mulcahy v. Houston Steel Drum Co., 402 S.W.2d 817 (Tex.Civ.App.1966, no writ). Intervenors were not proper parties to the administrative agency appeal.

None of the intervenors, except the Sho-reacres Environmental Committee, were parties to the administrative agency proceedings that gave rise to this appeal. They filed no motion for rehearing which is a prerequisite to appeal pursuant to the APA. Texas State Board of Pharmacy v. Kittman, 550 S.W.2d 104 (Tex.Civ.App.1977, no writ). They are therefore precluded from appealing the Board’s decision at this time.

The Shoreacres Environmental Committee was a party to the hearing and filed a motion for rehearing but did not file an appeal within thirty days after the motion for rehearing was overruled, as required by Section 19(b) of the APA.

Consequently, all proposed intervenors failed to comply with the appeal requirements set out in the APA. Since they could not bring this action on their own, the court properly refused to allow them to intervene in the appeal filed by the appellants.

Finally, we hold that the trial court was correct in not enjoining appellee Amer-ican Hoechst Corporation from continuing construction of the proposed facilities at the proposed plant site, since appellant did not seek an injunction in the trial court.

Texas R.Civ.P. 682 requires that no writ of injunction shall be granted unless the applicant therefore shall present his petition to the judge, verified by his affidavit and containing a plain and intelligible statement of the grounds for such relief. Appellants’ original petition neither alleges facts in support of injunctive relief nor prays for such relief. See this Court’s opinion in Fant v. Massie, 451 S.W.2d 774 (Tex.Civ. App.1970, writ ref’d n. r. e.).

The judgment of the trial court is in all things affirmed.

SHANNON, Justice,

concurring.

I concur in the affirmance of the judgment.

I do not agree, as the majority apparently does, with the district court’s implicit conclusion that the hearing examiner correctly determined the burden of going forward with the evidence in the hearing before the Texas Air Control Board.

American Hoechst Corporation applied to the Board for construction permits for chemical facilities to be located in an industrial complex near Pasadena. Pursuant to authority delegated by the Board, the Executive Director issued the permits.

Within the time allowed by Board Rule 56.1, appellants perfected an intra-agency appeal of the Executive Director’s action to the Board. At a prehearing conference the hearing officer made the complained of rulings pertaining to the burden of going for-, ward with the evidence. Those rulings were:

(1) The admission into the record of the permits issued to the company by the Executive Director, along with the accompanying data would establish “a prima facie case that the permits were validly issued.”
(2) Following the admission of the permits and supporting information, the opponents will have the burden of introducing competent evidence tending to show that the requirements for issuance of the permits were not met; and
(3) The ultimate burden of persuasion on all issues will rest with American Hoechst Corporation.

Under the hearing officer’s ruling, after the permit and supporting data had been introduced, the applicant could rest and the protestants then would have the onerous burden of disproving the self-serving statements usually found in the data submitted with an application for a permit.

There is nothing in the Texas Clean Air Act, Tex.Rev.Civ.Stat.Ann. art. 4477-5 (1976) or the Administrative Procedure and Texas Register Act, Tex.Rev.Civ.Stat.Ann. art. 6252-13a (Supp.1978), that authorizes the examiner’s ruling. The general view is contrary to that ruling. In an intra-agency appeal, an order carries no presumption of validity. Bloch v. Glander, 151 Ohio St. 381, 86 N.E.2d 318 (1949); 2 Am.Jur.2d Administrative Law § 548 (1962). Such a presumption obtains only in appeals from administrative agencies to courts.

In an intra-agency appeal to the Board the applicant has the burden of going forward and of proving by competent evidence its case for a permit. The permit and supporting data, without other proof, are not sufficient to support an order of the Board affirming the action of the Executive Director. Stated another way, if the applicant in such an appeal introduced into evidence the permits granted by the Executive Director and the supporting documents and then closed without placing competent evidence in the record in support of every element necessary to obtain the permit, the Board should enter an order for the protestants. These observations are particularly appropriate in this instance inasmuch as the Executive Director entered his order granting the permits without a hearing.

Although the examiner’s ruling as to the burden of going forward with the evidence was incorrect, I agree that appellants have failed to demonstrate that the error resulted in the entry of an improper order.

      . See Imperial American Resources Fund (Tex.1977). v. Railroad Commission of Texas, 557 S.W.2d 280


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    ARKANSAS LOUISIANA GAS COMPANY, Appellant, v. RAILROAD COMMISSION OF TEXAS et al., Appellees.
    No. 12976.
    Court of Civil Appeals of Texas, Austin.
    Aug. 22, 1979.
    Rehearing Denied Sept. 14, 1979.

      Victor F. Hlavinka, Atchley, Russell, Waldrop & Hlavinka, Texarkana, for appellant.
    Mark White, Atty. Gen., Joyce Beasley, Asst. Atty. Gen., Austin, for appellees.
   O’QUINN, Justice.

Arkansas Louisiana Gas Company, which serves twenty-seven cities in East Texas, appeals from judgment of the district court denying the company writ of mandamus to compel the Railroad Commission to take jurisdiction of its motion for bond and to approve bond enabling the company to initiate rates proposed by it prior to adverse action by the cities denying the proposed rates, from which rate decisions Arkansas Louisiana now has its appeal pending before the Commission.

The gas company brings two points of error contending that under provisions of Section 43(e) of Article 1446c, V.A.T.S. (Public Utility Regulatory Act), the Railroad Commission “ . . .is vested with the power and authority, upon appeal of a utility rate matter to it, to prescribe the form for Bond, to fix the amount thereof . so as to enable the utility to institute changed rates in the concerned municipalities pending final determination of the rate proceedings.”

The attorney general, in behalf of the Railroad Commission, and the intervening cities take the position that the provisions of Section 43(e) are inapplicable to the Commission in its exercise of appellate jurisdiction in gas utility rate matters, and that Section 43 in all its parts appertains to the “regulatory authority” having original, as opposed to appellate, jurisdiction of utility rates.

We agree with the contention of the Railroad Commission and will affirm the judgment of the district court.

The Legislature, in Section 19 of the Utility Regulatory Act, expressly fixed the respective jurisdictions of municipalities and of the Railroad Commission “over all gas utility rates, operations, and services provided by any gas utility within . city or town limits.” Under Section 19(a) “ . . . the governing body of each municipality shall have exclusive original jurisdiction . . . ” over gas utility rates; and under Section 19(b) the Railroad Commission “ . . . shall have exclusive ap pellate jurisdiction to review all orders or ordinances of municipalities as provided in this Act.” The only exclusive original jurisdiction of gas rates assigned to the Railroad Commission is “ . . . in areas outside the limits of municipalities.” Section 19(b). (All emphasis added).

Appellant gas company, in contending that the Railroad Commission has jurisdiction to prescribe the amount and form of a bond, relies in the main on provisions of Section 43(e) quoted in full:

“(e) If the regulatory authority fails to make its final determination of rates within 90 days from the date that the proposed change otherwise would have gone into effect, the utility concerned may put a changed rate, not to exceed the proposed rate, into effect upon the filing with the regulatory authority of a bond payable to the regulatory authority in an amount and with sureties approved by the regulatory authority conditioned upon refund and in a form approved by the regulatory authority. The utility concerned shall refund or credit against future bills all sums collected during the period of suspension in excess of the rate finally ordered plus interest at the current rate as finally determined by the regulatory authority.”

In urging this section as authority for its contention, the gas company incorrectly assumes (1) that the regulatory authority referred to is the Railroad Commission and (2) that the ordinances passed by the governing bodies of the municipalities did not make a “final determination” of rates.

The record discloses that the gas company, in conformity with Section 43(a) of the Regulatory Act, filed with the various municipalities in September of 1977 statements of its intent to increase the rates it charges for gas service within each of the cities. As conceded by the appellant, thereafter “ . . . each of these regulatory authorities . . . timely made its final determination of the appropriate rates to be charged . . . for future gas service within its respective boundaries . [following which appellant] appealed those final determinations to the Railroad Commission on March 31, 1978.”

Shortly after its appeal to the Railroad Commission, appellant filed pleadings seeking approval of a bond to permit the gas company to put into effect the rates it had originally proposed to the various municipalities.

By Section 43(a) through (f), the Legislature obviously intended to prescribe a course of action, which procedure may be initiated, as authorized under paragraph (a), by the utility itself, through which utility rates may be established by the “regulatory authority having original jurisdiction.” Section 3(g) of the Act provides: “The term ‘regulatory authority,’ when used in this Act, means, in accordance with the context where it is found, either the commission, the railroad commission, or the governing body of any municipality.’’ (Emphasis added). When viewed in its entirety, Section 43(a) through (f) deals with the regulatory authority having original jurisdiction, which in this case would mean the governing bodies of the several municipalities concerned.

When read in that manner, provisions of Section 43(e), set out above, show a design to minimize regulatory delay in original proceedings, which in this case, as already pointed out, were initiated by appellant gas company under authority of Section 43(a). Thus, under Section 43(e), if the cities had failed to make “final determination of rates within 90 days from the date the proposed change otherwise would have gone into effect,” the gas company could have put into effect its own proposed rates, upon filing a bond approved by the governing bodies of the cities in the details required by the statute. No basis for such bond exists in this case, as each municipality “timely made its final determination of the appropriate rates to be charged.”

From the final determination made by the municipalities, the gas company had the right under Section 26(a) of the Act to “appeal the decision of the governing body to the . . . railroad commission.” Section 26(e) provides that, “The . railroad commission shall hear such appeal de novo and by its final order fix such rates as the municipality should have fixed in the ordinance from which the appeal was taken.” In like manner, when a judgment or decree of a trial court is reversed, the appellate court is required “to render such judgment or decree as the court below should have rendered.” Rule 434, Rules of Civil Procedure; Storey v. Dick Matz Agency, 537 S.W.2d 507 (Tex.Civ.App. Austin 1976, writ ref’d n. r. e., Tex., 542 S.W.2d 116).

The rates established by the municipalities were by final determination and were not rendered a nullity by reason of appeal by the gas company. Under Section 26 an appeal is to be initiated within 30 days, whereas under the earlier statute, Article 6058, V.A.T.S., authorizing appeals in gas utility cases, the time allowed was 60 days. Section 19(c) of the Act provides that provisions of the Act “shall be deemed to be in addition to all existing laws” relating to jurisdiction of the Railroad Commission over gas utilities, and unless specifically in conflict with the Act, are not limited by the Act. Thus Articles 6058 et seq. remain viable, except when in specific conflict with the Act.

Under both Article 6058 and Section 26 of the Utility Act, the appeal becomes a de novo hearing before the Railroad Commission. The final determination made by a municipality remains the effective rate for the gas company until final action of the Railroad Commission, except (1) in instances where the rate fixed by the city sought to reduce existing rates, allowing bonding of rates (Art. 6058), and (2) in cases in which the Railroad Commission adopts interim rates upon proper request pending final action on appeal. See City of Corpus Christi v. Public Utility Commission, 572 S.W.2d 290 (Tex.Sup.1978).

Under the facts of this case, the only legal rate was the rate established by the municipalities, and continuing validity during appeal is supported by Article 6058 and the Regulatory Act. Section 43(f) provides that the rates established by the regulatory authority, in this case the several cities, “ . . . are thereafter to be observed until changed, as provided by this Act.”

We hold that Section 43(a) through (f) prescribes the procedure by which the utility, operating within the corporate lim- . its of a municipality, may initiate change in rates with the governing body of the city, having original jurisdiction, followed by appeal to the body, in this case the Railroad Commission, having appellate jurisdiction. Section 43(e), upon which appellant relies for authority to require the Railroad Commission to approve a bond to allow the gas company to put into effect its proposed rates, has no application to the Railroad Commission under the facts of this case, and the regulatory authority there referred to is the authority having original jurisdiction, in this case the governing bodies of the several municipalities in which appellant operates.

In seeking mandamus to compel the Railroad Commission to fix and approve a bond, appellant has failed to show that the duty to fix and approve a bond is so clear and free from any substantial question that the Railroad Commission should be ordered to act as requested. Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1151 (1939); Employees Retirement System v. McDonald, 551 S.W.2d 534 (Tex.Civ.App. Austin 1977, writ ref’d).

We conclude that the district court properly denied appellant’s application for writ of mandamus, for the reasons stated above, and that the judgment should be in all things affirmed.

Judgment of the trial court is affirmed.

PHILLIPS, C. J., not participating.


text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. Von NASH, Appellee.
    No. 12983.
    Court of Civil Appeals of Texas, Austin.
    Aug. 22, 1979.
    Rehearing Denied Sept. 14, 1979.
    Jerry R. Tucker, Sr., San Antonio, for appellant.
    Lloyd Doggett, Doggett & Jacks, Austin, for appellee.
   PHILLIPS, Chief Justice.

This was an action filed under the Texas Deceptive Trade Practiees-Consumer Protection Act, Tex.Bus. & Comm.Code Ann. § 17.41 et seq. (Supp.1978), wherein appellee sought trebled compensatory damages and attorney’s fees.

Appellant filed a plea to the jurisdiction and a motion for summary judgment based upon its compliance with the Texas Public Utility Regulatory Act, Article 1446c, V.C.S. (Supp.1978). The trial court denied both of these pleas and entered judgment against appellant for $5,000 actual damages, trebled, and attorney’s fees of $15,000.

Appellant duly perfected its appeal to this Court.

We affirm.

The parties hereto have stipulated appellant represented that it would provide ap-pellee with white and yellow page listings under three different names in the Austin telephone directory, and that it failed to do so. Appellant represented to appellee that it would provide operator intercept service by which callers would be referred by coded message to a new number until certain telephone installations were accomplished and it failed to do so. Appellant further represented to appellee that it would provide callers to “information” or directory assistance with appellee’s telephone number during a certain period of time and it failed to do so. Appellant impliedly warranted to appellee that these directory listings, directory information, and operator intercept services would be performed in a good and workmanlike manner and they were not so provided, proximately causing appellee’s damages. By representing to appellee that appellant’s services were of a particular standard, quality and grade, when they were not, and that said services had particular characteristics, uses, or benefits that they did not have, appellant was the producing and proximate cause of damages to appellee. The damages to appellee which were proximately caused by appellant’s false, misleading and deceptive practices and appellant’s breach of the implied warranty are in the amount of $5,000.

I.

At the outset appellee contends that inasmuch as a part of appellant’s appeal is based upon certain tariffs and the rules of the Public Utility Commission, and inasmuch as these tariffs and regulations were never offered into evidence, that they are not before the Court. According to appel-lee, neither this Court nor the trial court can take judicial notice of them. Young v. McGill, 473 S.W.2d 672 (Tex.Civ.App.1971, no writ); Byrd v. Trevino-Bermea, 366 S.W.2d 632 (Tex.Civ.App.1963, no writ); McCormick and Ray, Texas Law of Evidence § 179 at 196 (2d ed. 1956).

In short, appellee contends that appellant has presented a record, the only relevant parts of which give this Court no indication of whether appellant’s conduct, made the basis for this action, comes within the jurisdiction of the Public Utility Commission, whether the agency has rules applicable to appellant’s deceptive conduct, or whether tariffs have been promulgated to limit appellant’s liability for damages produced by its deception.

The federal courts take judicial notice of tariffs in a case such as this, Carter v. American Telephone & Telegraph Co., 365 F.2d 486 (5th Cir. 1966), and the Texas courts also take judicial notice of federal rules and regulations. McCormick and Ray, Texas Law of Evidence § 172 and 184 (2d ed. 1956). The only rationale for our courts to refuse to take judicial notice of rules and regulations such as the tariffs in question must have been that in Texas we have no official reports of these rules and regulations to which we can turn, thus making it incumbent upon the moving party to incorporate such matters into the record if his case, or any part thereof, is dependent thereon.

The cases holding that the courts in Texas are unable to take judicial notice of matters such as the tariffs in question were decided before the Administrative Procedure and Texas Register Act, Tex.Rev.Civ. Stat.Ann. art. 6252-13a (Supp.1978). These tariffs are now published by the Public Utility Commission in its substantive rules and are presently in the Texas Register beginning in Volume 48 at page 1651 and are found throughout subsequent issues as the rules were adopted and amended.

Therefore there is no sound reason why Texas should not follow the federal rule in this regard and take judicial notice of the tariffs. We hold that this Court will take judicial notice, in appropriate cases, of the acts of administrative bodies officially published in the Texas Register.

II.

The next two questions for decision are whether the trial court erred in refusing appellant’s defense with respect to its published tariffs and whether the court erred in failing to apply the doctrine of primary jurisdiction over regulated activities under the Public Utility Regulatory Act.

Appellant maintains that it has filed tariffs with the Texas Public Utility Commission stating that the amount of compensation that can be paid to its customers for damages as a result of errors and omissions in listings in the telephone directory, or interruption of service, cannot exceed the rate charged for such service for the period of the directory or for the period of interruption of service. As stated above, payment according to this tariff was made to appellee.

Appellant contends that to allow appellee to receive more than the payment already made to her under the tariff would be tantamount to giving her an unreasonable preference or advantage by furnishing her services at a rate that is less than that allowed by its lawfully filed tariffs, and that this limitation of liability is part of the established rate structure and the charges made for business service and is not subject to challenge on the basis of negligence or representations in an individual case.

Appellant then contends that these tariffs carry the dignity of statutory law, citing Israel v. Metropolitan Dade County, Florida, 431 F.2d 925 (5th Cir. 1970) and Western Union Telegraph Company v. Esteve Brothers & Co., 256 U.S. 566, 41 S.Ct. 584, 65 L.Ed. 1094 (1921). These cases hold, in short, that any liability attributed to the utility is limited by the provisions of the tariffs, and that if the tariffs are unreasonable, the only attack that can be made upon them would be proceedings contesting their reasonableness before the regulatory agency having the proper jurisdiction.

Appellant then cites Southwestern Bell Telephone Co., Inc. v. Rucker, 537 S.W.2d 326 (Tex.Civ.App.1976, writ ref’d n. r. e.), and Faber v. Southwestern Bell Telephone Co., 155 F.Supp. 162 (S.D.Tex.1957), which, in effect, affirm the law as announced in Israel and Esteve Brothers, set out above.

We have no quarrel with these cases; however, we note that both hold that the tariffs control unless they are unreasonable. In the case at bar we have no findings of fact or conclusions of law filed by the court, neither do we have a statement of facts. Consequently, it must be presumed that appellant damaged appellee through deceptive trade practices as recited in the judgment, and it must also be presumed that the court found the tariffs to be unreasonable. Commercial Credit Corporation v. Smith, 143 Tex. 612, 187 S.W.2d 363 (1945).

III.

Finally, we come to the primary jurisdiction question. In answer thereto, appellant relies on Carter v. American Telephone and Telegraph Co., 365 F.2d 486 (5th Cir. 1966). The basic holding in Carter is that the regulatory agency, here the Public Utility Commission, has primary jurisdiction over the case, and the case must first be tested in that regulatory authority before a tariff can be avoided.

Carter is very much in point with the case at bar; however, the Texas courts have taken a slightly different tack.

In Foree v. Crown Central Petroleum Corporation, 431 S.W.2d 312 (Tex.1968), the Supreme Court recognizes the doctrine of primary jurisdiction and then states several exceptions thereto. (1) Where the issue is one inherently judicial in nature (such as a suit in damages under the Deceptive Trade Practices Act), the courts are not ousted from jurisdiction unless the legislature, by a valid statute has explicitly granted exclusive jurisdiction to the administrative body. (2) Where the administrative agency is powerless to grant the relief sought and has no authority to make incidental findings which are essential to the granting of the relief, the doctrine does not apply.

In our judgment, both of these exceptions are applicable to the case before us. We have neither been shown, nor can we find any statute ousting courts of jurisdiction. Nor have we been shown how the Public Utility Commission has the authority, under the law, to grant the relief sought. Indeed, there is evidence in this case quite to the contrary.

In a case recently decided by the First Court of Civil Appeals in Houston, Southwestern Bell Telephone Company v. Reeves, 578 S.W.2d 795 (Tex.Civ.App.1979, writ ref’d n. r. e.), the court allowed a judgment for damages against the telephone company which had been found negligent in failing to properly intercept calls to an old telephone number and in failing to give callers a new office number. A jury found, among other things, that the tariff in question was unreasonable. The court held:

“While the Legislature has conferred exclusive, original jurisdiction upon the Public Utilities Commission over the business and property of all telecommunications utilities in this state for the purpose of regulating ‘rates, operations, and services,’ we hold that jurisdiction over this tort claim against a telephone company has not been thus removed from the courts.
‘Where the claim is not for future compliance but for damages based on past acts, the exhaustion of administrative remedies doctrine may not apply. The notion is based on the absence of a statute authorizing the Public Utility Commission to fix or adjudicate claims for damages.’ Kens, Public Futility— The Status of Consumers in Light of the Public Utility Regulatory Act, 28 Baylor L.Rev. 953 (1976).”

IV.

We also hold that public utilities that commit deceptive trade practices are not exempted from the Consumer Protection Act, Tex.Bus. & Comm.Code Ann. § 17.41 et seq.

In our judgment Sec. 17.50(a) of the Act is broad enough to subject appellant to suit thereunder. Neither is appellant exempted from the provision of the Act under Sec. 17.49.

The restricted exemptions under this section are in sharp contrast to the broad exemptions provided by the Deceptive Trade Practices legislation that preceded the Consumer Protection Act and was set out in Article 5069-10.03 (1971), Tex.Rev. Civ.Stat.Ann. (repealed 1973). Needless to say, public utilities are not included in the exemption. Indeed, Sec. 17.43 provides that the remedies provided are in addition to any other procedures or remedies provided for in any other law; and, Sec. 17.50 provides that a consumer who prevails in a private action under this section may obtain the appointment of a receiver or the revocation of a license or certificate authorizing a person to engage in business in this state under certain conditions. However, these remedies are not available if the person is a licensee of or regulated by a State agency which has a statutory authority to revoke or suspend a license or to appoint a receiver or trustee. In our judgment the Act applies to appellant. Section 17.44 provides that the Act shall be liberally construed to protect consumers against false, misleading, and deceptive business practices.

Judgment of the trial court is in all things affirmed.

SHANNON, Justice,

concurring.

I concur in the affirmance of the judgment.

The heart of the telephone company’s appeal is its contention that its liability to appellee in this cause is limited by the terms of the tariff it filed with the Public Utility Commission. A copy of the tariff was not made a part of the record of the trial on the merits. The telephone company filed no statement of facts. Without a copy of the tariff properly in the record for this Court’s examination, this Court cannot dispose of the appeal on its merits.

The majority solves the telephone company’s problem by judicially noticing the fact that the company filed a tariff with the Commission, and, further, by judicially noticing the contents of that tariff. In so doing, the majority abrogates the rule of law followed in Texas for at least eighty-four years, Thompson v. San Antonio & A. P. Ry. Co., 11 Tex.Civ.App. 145, 32 S.W. 427 (1895, no writ), and the rule specifically followed by this Court. Byrd v. Trevino-Bermea, 366 S.W.2d 632 (Tex.Civ.App.1963, no writ).

In support of its holding, the majority points to the fact that the federal courts take judicial notice of tariffs in cases of this character and further that the courts of this state take judicial notice of federal rules and regulations. There is a very good reason for the courts to take notice of federal rules and regulations. The reason is that Congress has specifically provided that “The contents of the Federal Register shall be judicially noticed . . . ” (Emphasis added). 44 U.S.C.A. § 1507 (1969).

There is no similar requirement in the Administrative Procedure and Texas Register Act, Tex.Rev.Civ.Stat.Ann. art. 6252-13a et seq. (Supp.1978). If the legislature had intended to change the long-standing rule, it could have done so in the Act. If the legislature wishes to abrogate that rule in the future, it may do so. In the meantime, the office of the courts is to adhere to the clearly defined law.

Because there was no statement of facts filed and because no tariff appears properly of record, this Court may not examine the telephone company’s contention that its liability is limited by the provisions of the tariff.

      . The Supreme Court has written that the statement that the courts of Texas are required to take judicial notice of administrative rules and regulations adopted by all federal departments, boards, and commissions pursuant to statute is “overbroad.” Tippett v. Hart, 501 S.W.2d 874 (Tex. 1973).


text:
    Bob BULLOCK, Comptroller of Public Accounts, et al., Appellants, v. RAMADA TEXAS, INC., Appellee.
    No. 12998.
    Court of Civil Appeals of Texas, Austin.
    Aug. 22, 1979.
    Rehearing Denied Sept. 14, 1979.

      Mark White, Atty. Gen., Gilbert J. Ber-nal, Jr., Asst. Atty. Gen., Austin, for appellants.
    Richard F. Smith, Wynne & Jaffe, Dallas, for appellee.
   O’QUINN, Justice.

The controlling issue in this case is whether the Texas Hotel Occupancy Tax is applicable to rental of rooms or spaces situated in any building or buildings owned by a hotel, but not in a building in which the public may obtain sleeping accommodations.

Ramada Texas, Inc., brought this suit to recover hotel occupancy taxes paid under protest pursuant to Article 1.05(2), Title 122A, Taxation-General. Ramada alleged and contended at trial that the hotel occupancy tax levied under Article 23.02(a) is not applicable to rooms or space located in a building owned by the hotel which does not afford sleeping accommodations.

This contention is based on the definition of “hotel” in Article 23.01(a) limiting “hotel” to “ . . . mean any building or buildings in which the public may, for a consideration, obtain sleeping accommodations.” The spaces upon which occupancy taxes were paid under protest in this case were banquet halls or meeting rooms within buildings owned by Ramada but in which buildings no sleeping accommodations were provided or were available.

Trial before the court without a jury resulted in judgment that Ramada recover $2,495.98 with interest in hotel occupancy taxes paid under protest. The State appeals and brings three points of error. We will overrule the points of error and affirm judgment of the trial court.

The Legislature enacted the “Hotel Occupancy Tax” as Chapter 23 of Title 122A, Taxation-General, in 1959. (Acts 1959, 56th Leg., 3rd C.S., p. 187, ch. 1). Since its enactment in 1959, Chapter 23 has not been amended by the Legislature, and its provisions, consisting of Articles 23.01 through 23.07, have not been construed in any reported case. Although attorneys general have issued written opinions on six occasions, only one opinion, published in 1959, pertains directly to the issue in this cause.

The Attorney General in 1959 officially advised the Comptroller of Public Accounts that, “The character of accommodations taxed under the new hotel occupancy tax is not limited to sleeping rooms, but is not collectible on buildings physically separated from the hotel not used for letting sleeping accommodations.” (Opinion No. WW-706, September 21, 1959).

The parties in the present lawsuit are in agreement that the banquet halls or rooms upon which the Comptroller assessed hotel occupancy taxes are located in buildings separated from other buildings owned by the hotel, and the banquet or meeting rooms or spaces are not in any building “ . . . in which the public may, for a consideration, obtain sleeping accommodations." Art. 23.01(a). (Emphasis added).

Article 23.02 levies “ . . .a tax upon the cost of occupancy of any room or space furnished by any hotel where such cost of occupancy is at the rate of Two Dollars ($2) or more per day . . . ” Article 23.01(c) defines occupancy as “ . . . the use or possession, or the right to the use or possession of any room or rooms in a hotel for any purpose.” Under Article 23.01(a) the term hotel as used in the tax Act means “ . . . any building or buildings in which the public may, for a consideration, obtain sleeping accommodations. The term shall include hotels, motels, tourist homes, houses or courts, lodging houses, inns, rooming houses, or other buildings where rooms are furnished for a consideration . . . ” (All emphasis added).

Construing the term hotel strictly as defined by the Legislature, it is apparent that “any room or space” furnished for occupancy must be located, in order to be subject to the occupancy tax, in a building described as a “hotel”, that is, where the public may “obtain sleeping accommodations.”

Where a question of exemption from taxation is involved, the statute must be construed liberally in favor of the taxing authority, and strictly against the person claiming the exemption; but, to the contrary, where the question involved, as in this lawsuit, is whether the entity upon which the tax is sought to be imposed comes within the statutory provisions imposing the tax, the statute must be construed strictly against the taxing authority and liberally in favor of the entity sought to be held. Texas Unemployment Compensation Commission v. Bass, 137 Tex. 1, 151 S.W.2d 567, 570 (1941), approving decision of the Eastland Court of Civil Appeals in 142 S.W.2d 406, 408 (1940).

This Court, in construing tax statutes, has repeatedly adhered to the doctrine that where the question arises as to whether the entity sought to be taxed comes within the statutory provisions imposing the tax, the statute must be construed strictly against the taxing authority and liberally in favor of the entity sought to be held. Statistical Tabulating Corporation v. Bullock, 538 S.W.2d 259, 261 (Tex.Civ.App. Austin 1976, affirmed 549 S.W.2d 166, 169); Merchants Fast Motor Lines, Inc. v. Bullock, 548 S.W.2d 478, 482 (Tex.Civ.App. Austin 1977, writ ref’d n.r.e.).

Under Chapter 23 the “Hotel Occupancy Tax” is levied on cost of occupancy, meaning “any room or rooms in a hotel,” and the hotel, for purposes of the tax, is defined to “mean any building or buildings in which the public may . . . obtain sleeping accommodations.” We conclude that the Attorney General in 1959 correctly advised the Comptroller then in office that the tax was not collectible on rooms in buildings physically separated from hotel buildings used for “letting sleeping accommodations.”

Although Article 23.05 authorizes the Comptroller “ . . .to make such rules and regulations as are necessary to effectively collect the tax levied herein . .” the Legislature did not empower the Comptroller to make rules and regulations inconsistent with, or in direct contravention of, the statutes levying the tax. (Emphasis added). In 1975 the Comptroller established rules and regulations providing that “Accommodations taxed under the Hotel Occupancy Tax Law are not limited to sleeping rooms. The tax will be collected for meeting rooms and banquet rooms located physically within the Hotel or Motel complex.” (Emphasis added). (Rule 026.-02.23.002(h), effective December 29, 1975).

Chapter 23 makes no reference to complexes, multi-unit hotels, or other like establishments. The statute deals expressly with any building or buildings “in which the public may, for a consideration, obtain sleeping accommodations,” in defining a hotel. The tax is not levied on occupancy or use of any room or space not located in a hotel as that term is thus defined. The authority delegated by the Legislature to the Comptroller is to make rules and regulations necessary to collect the levied tax effectively and did not include additional power to amend the statute levying the tax.

The judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    Charles REDD et al., Appellants, v. R. J. RIEDEL, Appellee.
    No. 6107.
    Court of Civil Appeals of Texas, Waco.
    Aug. 23, 1979.

      William W. McNeal, Luling, Fred Clark, New Braunfels, for appellants.
    Steven D. Browne, Clemens, Spencer, Welmaker & Finck, San Antonio, for appel-lee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiffs from an order of the trial court sustaining defendant’s plea of privilege.

Plaintiffs Charles Redd, Katie Dorn, Allan Sturges and wife Patsy Sturges filed suits in Guadalupe County against defendant R. J. Riedel for damages for personal injuries resulting from an automobile collision that occurred on December 18, 1976. Defendant filed pleas of privilege in each of the three suits to be sued in Karnes County, the county of his residence, and plaintiffs filed controverting pleas that venue is sustainable in Guadalupe County under Subdivision 9a, Article 1995. The three suits were consolidated and trial before the court, resulted in the trial court’s order sustaining the pleas of privilege of defendant.

Plaintiffs appeal on 2 points asserting the trial court erred in sustaining defendant’s pleas of privilege in that: 1) plaintiffs’ evidence made a prima facie case of liability; 2) such action was contrary to the overwhelming weight and preponderance of the evidence.

Plaintiffs alleged that defendant Riedel was driving a pickup truck pulling a goose-neck cattle trailer east on U.S. Highway 90 at or around 1 AM on December 18, 1976; that defendant either stopped his vehicle and trailer on the San Marcos River bridge on Highway 90 or slowed to a very slow rate of speed; that plaintiff Sturges was driving in the same direction, and because defendant’s vehicle and trailer had no rear lights, swerved to the left to avoid colliding with the trailer, but causing a head-on collision with a vehicle driven by plaintiff Redd. Both drivers, as well as their passengers, received injuries as a result of the collision. Plaintiffs allege Riedel negligent in stopping his vehicle on the bridge and in operating without rear lights. The collision occurred in Guadalupe County.

The defense was that defendant Riedel was not present at the scene of the collision and that his truck and trailer were not involved.

Plaintiff Redd testified he saw the pickup with two headlights coming; that another car pulled out from behind the pickup into his lane of traffic and hit him; Redd did not observe the pickup pulling the trailer nor did he observe the driver of the vehicle pulling the trailer.

Plaintiff Sturges testified he was headed east on Highway 90 and came upon what looked like a cattle trailer sitting in his lane of traffic which had no lights on the back; that he swerved to avoid the trailer and hit plaintiff Redd’s vehicle head-on; that he was knocked out and when he came to the trailer had left the scene; the trailer was a gooseneck cattle trailer, but he didn’t observe the license plate; that he didn’t know what kind of vehicle was pulling the trailer or who the driver was.

Officer Tumlinson testified he observed a cattle trailer loaded with cattle in Luling between 6:30 and 7:15 on December 17; that between 1:05 and 1:10 he observed the same pickup with the gooseneck trailer at the intersection of Highways 183 and 90 (in Luling); that the headlights were very dim and there were no lights at all on the rear of the trailer; that the trailer was brown and you could see through the tailgates; that he saw only one driver and does not know whether it was a man or a woman; that shortly after seeing the truck and trailer he was notified of the accident and proceeded to the scene; [the pickup and trailer were gone from the scene when Tumlinson arrived there]. Tumlinson stopped about 2:15 AM at the Luling Livestock Auction Barn to look at a pickup and trailer which were parked there; it was the same pickup and trailer he had observed on the two prior occasions, and the hood of the pickup was still warm; he does not know what kind of a trailer was involved in the accident or who was driving the vehicle that pulled that trailer.

Officer Boding received a call at about 1:15 AM concerning the accident; he was informed there was a truck pulling a trailer with no taillights involved; that while passing the Luling Livestock Auction Barn at about 1:20 or 1:30 AM on the way to the scene he saw a pickup and gooseneck trailer sitting on the parking lot; that he stopped and felt the hood and it was warm; that no one at the scene of the accident could identify the truck but Officer Tumlinson told him the trailer was a gooseneck; Officer Boding does not know who was driving the vehicle pulling the trailer at the scene of the accident nor can he say the pickup and gooseneck trailer he saw at the Auction Barn were the same ones which were allegedly on the bridge the night of the accident.

Witness Janouski was traveling on Highway 90 the night of the accident; he saw a pickup truck pulling a dark trailer without lights heading east; he proceeded east toward the San Marcos bridge; he came upon the accident, tried to avoid Mr. Redd’s vehicle; but hit the rear left of it; he observed a pickup and trailer stopped at the end of the bridge; the trailer had a wooden slat gate and not a pipe gate; that the lights of the truck he saw pulling the trailer were on and bright.

Defendant Riedel testified he went to the auction in Luling on December 17, 1976; that he owned two gooseneck trailers and two Ford pickups; that he drove from Lul-ing to the Kingsbury area with Ricky Kot-wig around 8:30 or 9 PM on December 17; that he and Kotwig got back to the auction barn between 10 and 10:30 PM; that he started to go home about 15 minutes later; that his truck would not start and he asked Kotwig to take him home; that he left his pickup and trailer at the auction barn; that he left the barn about 11 and arrived home around midnight; that he did not observe any accident on the San Marcos bridge while on his way.

Kotwig testified he is an auction worker; that he drove with defendant Riedel to the Kingsbury area at 8 or 8:30 PM on December 17; that they arrived back at the auction barn about 11 PM; that Riedel’s pickup would not start and he carried Riedel home in his Ford truck.

The venue facts under 9a, Article 1995 V.A.T.S. are: (1) that an act or omission of negligence occurred in the county of suit; (2) that such act or omission was that of the defendant in person or of his agent acting within the scope of this employment; and (3) that such negligence proximately caused plaintiffs’ injuries. Cravens v. Watson, Tex.Civ.App. (San Antonio) NWH, 293 S.W.2d 839.

The evidence establishes that a pickup truck pulling a gooseneck trailer was guilty of negligence proximately causing plaintiffs’ injuries in Guadalupe County; but no witness identified Riedel’s truck and trailer as being the one involved or that Riedel was at the scene'of the accident; and defendant Riedel denies that he was at the scene of the accident or saw any accident.

It was the province of the finder of fact, the trial judge, to weigh all of the evidence, and to decide what credence should be given to the whole or any part of the testimony of each witness; he was judge of the facts proved and of the inferences to be drawn therefrom. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194.

The plaintiffs failed to meet their burden of proof that defendant and his pickup and trailer were at the scene of the accident or were the pickup and trailer which caused the accident, and the trial judge was authorized to believe and find as he did.

Plaintiffs’ points are overruled.

AFFIRMED.


author: YOUNG, Justice.

text:
    Drewsilla RADFORD, Appellant, v. Alejandro R. GARZA, Appellee.
    No. 1369.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1979.
    Rehearing Denied Sept. 21, 1979.

      Pat Morris, Nicolas & Morris, Corpus Christi, for appellant.
    Homero M. Lopez, Brownsville, for appel-lee.
   OPINION

YOUNG, Justice.

The primary issue to be decided in this appeal on a suit in trespass to try title is whether the trial court erred in impliedly finding that appellant, Drewsilla Radford, the defendant in possession of the subject property, and her predecessor in possession, Juanita Medina, did not convey sufficient notice to the owner of record, appellee, Alejandro R. Garza, to notify him that their tenancy relationship herein was being repudiated and adverse possession begun. We affirm.

Appellee Garza brought this trespass to try title suit against appellant, Drewsilla Radford, claiming ownership under a prior deed. Radford answered claiming ownership by adverse possession under Tex.Rev. Civ.Ann. art. 5507, 5509, 5510, 5519 (1958). Trial was to the court without a jury. Judgment was rendered in Garza’s favor and Radford appeals.

The record fairly presents the following facts and circumstances. The property in dispute is lot 10, block 6, Bella Vista Third Addition of the City of Brownsville, Cameron County, Texas. At some time in 1944 Garza agreed to purchase the subject lot from Enrique Valentine and began making time payments for its purchase. Garza, a skilled carpenter, then started building a house on this lot but was forced to build in stages because lumber was being rationed during the war. Also about this time a friend of Garza’s, Juanita Medina, was widowed and she asked him if she could live in his house since she knew that he would soon be leaving Brownsville for extended employment in Orange County, Texas. Garza consented, and gave her permission to either live in the house or store her furniture since apparently from time to time she would live with other families in the Brownsville area while providing domestic services. Garza did not give her permission to rent the house, and Medina did not agree to pay rent, taxes or any other expenses. Garza, though, did ask Medina to take the lot in her name upon completion of payments since by then he would be out of town. It was intended that at a later time Medina would transfer the property over to Garza.

On March 19, 1944, Enrique Valentine transferred the property to Medina by warranty deed. On March 23, 1946, Medina deeded the property to Garza. Medina continued to live on the property with Garza’s consent until 1955.

Meanwhile, on February 26, 1953, Garza returned briefly to Brownsville, recorded the March 23, 1946 deed, and then again left Brownsville for his employment in Orange County.

On January 26, 1956, Medina filed a trespass to try title suit against Garza for possession and title to the subject property. Garza was never served in the suit and it was subsequently dismissed in 1962 for lack of prosecution. Though the docket sheet for this suit indicated that Garza was represented by an attorney, Garza testified that he had never heard of the suit and never hired an attorney to defend it.

Sometime later in 1956, Medina advertised the disputed property for rent by placing on the house a “for rent” cardboard poster. No telephone number or address was indicated on the poster. Daniel Lucio saw this sign and asked one of the neighbors if he knew who owned the property. He was told Medina owned it, and thereafter he rented the house for Sara Gonzalez, who according to Lucio, was his common law wife. Lucio paid the rent on the property but lived in a hotel he managed. Sara Gonzalez lived on the subject property until 1968.

Previously, on July 24, 1963, a suit on a paving lien was filed against the subject property. Garza and Medina were named as defendants. This suit was later dismissed and there is no indication that Garza ever knew about the suit, was served or became involved in this suit.

At sometime in the early part of March, 1965, Medina executed a warranty deed to her niece, appellant herein, Drewsilla Rad-ford, covering the subject property. This deed was recorded March 18, 1965. As a result of this transfer, Medina asked Lucio to make his rental payments to Radford.

In August of 1968, Lucio and Sara Gonzalez vacated the subject property. Thereafter, in September of 1968, Lupe Rios rented the property from Radford. The evidence indicates that Rios continued to reside there until sometime in February of 1975. Thereafter, Radford’s sister stored her furniture in the house for approximately one and a half months.

After his period of storage, the evidence is unclear as to who occupied the property between March of 1975 and June of 1977. The property was apparently rented to a woman named Saldana but there is no indication as to when she entered the property. Radford was even unsure as to who rented the property during this time. Then, sometime around June or July of 1976 Antonio and Maria Chavez rented the property and lived there until the time of trial.

The instant law suit was filed on June 22, 1977. Garza, who was 75 years old at the time of trial, explained the events leading up to the filing of the law suit herein as follows. He stated that between 1953, when he recorded the deed, and when he returned from Orange County sometime between eight and twelve years prior to the filing of this suit, that he did not remember visiting the property even once. After some reflection at trial, however, he testified that he did remember visiting the property once during that period, although he did not remember in which year. He stated that upon this visit he only viewed the property from the street, that there was no indication of people there, that the house looked abandoned, and that it was overgrown with weeds. The evidence as to the second time he visited the house after 1953 is also somewhat conflicting. At one point in the trial he stated that he visited the house the second time some eight to ten years prior to the time of trial. Upon reflection, though, he stated that the second time he visited the house after 1953 was about a year and a half prior to trial. He explained that he entered the house and was then met by a neighbor who stated that he managed the property for the owner and that Garza would have to leave. Garza related that upon this visit into the house it looked abandoned. Garza testified that upon being told that someone else owned the property, he thereafter hired an attorney and brought this action. He also claimed that he had visited the property several times since his encounter with the neighbor and that it had appeared to be vacant every time he visited it.

There is some indication that Garza’s second return to the property after 1953 was after he retired upon reaching age sixty-five. Garza was born in 1902, and thus his return would have been sometime after 1967. After his retirement, the evidence indicates that Garza lived in Matamoras. Garza further testified that since 1944 he had made no improvements or repairs to the house, and that after 1953 he had not paid any taxes until recently when he paid all of the taxes on the house for the years 1969 through 1977.

Appellant brings 15 points of error. Her first 10 points challenge the factual and legal sufficiency of the trial court’s findings of fact 6, 10, 13, 14, 16 and 20. Points 11 and 14, in effect, contend the trial court’s fact findings that the requirements of Tex. Rev.Civ.Stat.Ann. art. 5509 (1958) (five year statute of limitations) were not met are against the great weight and preponderance of the evidence. She also contends that the elements of Article 5509 were established as a matter of law. Points 12 and 15 make the same contentions as points 11 and 14, but are directed to Article 5510 (ten year statute of limitations). We find no argument or briefing directly related to point 13 that is not addressed in points 11, 12, 14, and 15 and, thus, it will not be treated separately.

In evaluating appellant’s factual and legal sufficiency points we apply the usual tests. In the trial court, Radford had the burden to prove the statutory requirements by a preponderance of the evidence in order to prevail on her adverse possession claim. Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781, 787 (1954), Rocha v. Campos, 574 S.W.2d 233, 236 (Tex.Civ.App.—Corpus Christi 1978, no writ). We will consider appellant’s points under major contentions hereinafter set out under appropriate headings.

1. FIVE YEAR STATUTE OF LIMITATIONS

One of the facts that the proponent of adverse possession pursuant to Article 5509 must prove is that for each of the years in the five year period the ad valorem taxes were paid before they become delinquent. Baker v. Fogle, 110 Tex. 301, 217 S.W. 141 (1919), Keels v. Keels, 427 S.W.2d 913, 917 (Tex.Civ.App.—Tyler 1968, no writ). The trial court’s unchallenged finding of fact number 18 states: “The Court finds that Radford did not pay all ad valo-rem taxes on the property in question for a five year period prior to said taxes becoming delinquent, commencing with the year she received a Deed from Juanita Medina.” Radford also admitted at trial that in 1968 she discontinued paying taxes. Therefore, finding no five year period in which Rad-ford paid the taxes prior to their becoming delinquent, we overrule appellant’s five year statute of limitations contention.

2. TEN YEAR STATUTE OF LIMITATIONS

Under the ten year statute, it is incumbent upon a claimant to show affirmatively: 1) possession of the land; 2) cultivation, use or enjoyment thereof; 3) an adverse or hostile claim; 4) an inclusive dominion over the property and appropriation of it for his own use and benefit; 5) for the statutory period. Ramirez v. Wood, 577 S.W.2d 278, 287 (Tex.Civ.App.—Corpus Christi 1978, no writ), Rocha v, Campos, supra. Particularly relevant to this appeal is element 3 above, that is, the showing of a hostile claim or “claim of right.” Compare Ramirez v. Wood, supra at 288. We have no finding of fact concerning this element of appellant’s case; thus, we must presume that the trial court decided this issue in accordance with its judgment, Rule 299, T.R.C.P., and that appellant did not meet her burden of proving a claim of right.

A claim of right must be manifested by declaration or by open or visible act. If there is no verbal assertion of claim to the land brought to the knowledge of the land owner, the adverse possession must be so open and notorious and manifested by such open or visible act or acts that knowledge on the part of the land owner will be presumed. Rocha v. Campos, supra at 237. In short, we are here concerned with whether the owner of the property has received or should be deemed to have received proper notice of the adverse possession. The kind and quantum of notice, though, can be affected by the relationship between the owner and the party adversely possessing the property.

It is the undisputed finding of the trial court that Juanita Medina entered the property with Garza’s consent. A relationship of landlord and tenant therefore resulted even though Medina was not required to pay any rent. Houston Oil Co. of Texas v. Moss, 155 Tex. 157, 284 S.W.2d 131 (1955), Cleveland v. Hensley, 548 S.W.2d 473, 475 (Tex.Civ.App.—Texarkana 1977, no writ).

The law exacts from a tenant the utmost faith in carrying out his agreement of tenancy. Cleveland v. Hensley, supra at 475. The landlord is normally justified in assuming that the tenant’s use of the premises is permissive and in recognition of the landlord’s title. Tex-Wis Company v. Johnson, 534 S.W.2d 895 (Tex.Sup.1976). Once the landlord-tenant relationship is established, possession by the tenant will not be considered adverse to the owner as required by Articles 5510 and 5515 unless and until (1) there is a repudiation of the relationship and the assertion of a claim of right adverse to the owner, and (2) notice of such repudiation and adverse claim is given to the owner. Cleveland v. Hensley, supra at 475-76; Killough v. Hinds, 161 Tex. 178, 338 S.W.2d 707, 710-11 (1960). If the rule were otherwise, it would be extremely hazardous for an owner to enter into any landlord-tenant relationship. Udell v. Peak, 70 Tex. 547, 7 S.W. 786 (1888).

There is sufficient proof in the record to indicate that from the time Medina began renting the property in 1956 until eight to ten years prior to this law suit, Garza received no actual notice that Medina was holding the land adversely to his ownership. Actual notice of repudiation, however, is not required. Under certain circumstances, notice may be inferred. Generally, it may be inferred in two different situations. First, it may be inferred where the tenant’s acts become inconsistent with the original use of the property sufficiently to put the owner on notice that the tenancy has been repudiated. Tex-Wis Company v. Johnson, supra at 901. Secondly, it may be inferred where there has been (1) long continued possession under claim of ownership and (2) non-assertion of claim by the true owner. Tex-Wis Company v. Johnson, supra at 901, Cleveland v. Hensley, supra at 476.

Appellant argues that Garza received constructive notice of repudiation of the tenancy relationship in any one of four ways; namely, change of use, Radford’s recording the deed from Medina, long continued possession without assertion of ownership rights by Garza and Garza’s receipt of notice from a neighbor that someone else was asserting ownership rights to the subject property.

In deciding whether constructive notice was given herein, we look only to potential notice-giving acts during the period of time prior to the latest ten year period when Medina’s or Radford’s possession might satisfy all of the other requirements for adverse possession. In our case, since the suit was brought on June 22, 1977, we must look to the period prior to June 22, 1967, to determine whether the landlord was sufficiently notified of the adverse possession of this property. The Supreme Court has called this period the “crucial time” when considering an assertion of long continued possession. Tex-Wis Company v. Johnson, supra at 901.

A. CHANGE OF USE

Constructive notice of repudiation of the landlord-tenant relationship by change of use must be unmistakable, clearly visible and openly notorious. In Killough v. Hinds, supra, 338 S.W.2d at 711, the court stated that acts which would normally justify a finding of adverse possession under the statutes are generally insufficient to show a repudiation of tenancy by acts of unequivocal notoriety. See Tex-Wis Company v. Johnson, supra at 900. The manifestation must be so notorious that it is not susceptible of explanation consistent with the existence of the landlord-tenant relationship. See Todd v. Bruner, 365 S.W.2d 155, 160 (Tex.Sup.1963). Todd involved adverse possession by eotenants; however, we will note cases concerning adverse possession against both cotenants and landlords because the law concerning the degree of notice necessary to adversely possess is the same in a cotenant case as it is in a landlord and tenant situation. Todd v. Bruner, supra at 161.

The facts in this case concerning change of use and its notoriety are sparse. At some time in 1956 Medina placed a “for rent” sign on the property. There is no indication in the record, however, as to how long the sign remained visible to the public or just how visible it was. The other indication of change of use was Sara Gonzalez’s moving onto the property and living there. It should be noted, though, that Sara Gonzalez was using the property in the manner for which Garza intended its use; i. e., using it as a residence. The only notoriety intrinsic to her occupation of the property, then, concerns who was living there rather than the manner of use.

We note further that Garza possibly visited the property at some time between 1953 and when he returned from Orange County after his retirement. He stated that he viewed the property from the street and saw that it was overgrown with weeds and looked deserted. Though it is possible that he viewed the property after Medina abandoned it and prior to her renting it to Lucio and Gonzalez, it is also possible that he visited it during the same time Gonzalez occupied the house and that it did appear to be vacant.

The mere fact that person other than the original tenant were occupying the residence does not require a conclusion that the use of the property had changed sufficiently to serve as notice of repudiation of the tenancy relationship. And, since Garza testified that the place appeared abandoned during his first visit to the property, there was even less reason for him to suspect a change in use.

Taking all of this evidence into consideration we find that the court’s implied conclusion that this purported change of use was susceptible of an explanation consistent with Medina’s intended tenancy is not against the great weight and preponderance of the evidence so as to be manifestly unjust.

B. RECORDING THE RADFORD DEED

Appellant also contends that her recording of the deed from Medina on March 18, 1965, constituted constructive notice of her adverse possession as a matter of law. Appellant cites Williams v. Pure Oil Co., 49 S.W.2d 846 (Tex.Civ.App.—Dallas 1932), aff’d, 124 Tex. 341, 78 S.W.2d 929 (1935, opinion adopted). In Williams the court impliedly expressed its approval of the rule that a conveyance by one cotenant to a stranger or by one or more cotenants to another cotenant, purporting to convey the entire common property, when followed by actual adverse possession, amounts to a dis-seizin of the non-participating cotenant; and record of such conveyance, followed by possession, constitutes notice of the repudiation. Republic Production Co. v. Lee, 132 Tex. 254, 121 S.W.2d 973, 978 (1938, opinion adopted). We find the rule as expressed in Republic above to be inapplicable to this case, though. In Rau v. Christy, 383 S.W.2d 957 (Tex.Civ.App.—Waco 1964, no writ), a tenant who received from his cotenant lessor a conveyance of both his lessor’s interest and the other cotenant’s interest, and who apparently recorded the deed, contended as in Republic and Williams above that this constituted constructive notice of repudiation and that the time for adverse possession had begun to run. The court held Republic was inapplicable because the tenant had been previously leasing the property, and that simply recording the deed was not sufficient to apprise the owner cotenant that such an adverse right was being asserted. Also, in Keels v. Keels, supra, the court expressed the opinion that merely recording a deed to a claimant who entered into possession as a permissive user is no evidence of an adverse holding. See also Udell v. Peak, supra.

Radford, though, was not a permissive tenant at the time of the deed, but rather a stranger as discussed in Republic. However, Republic did not hold that the mere recording of a deed, even by a stranger to the property is sufficient. It also required that the new claimant take actual adverse possession of the property following the recording of the deed, the policy being that the party whose property is being adversely possessed has a right to be put on notice that he should check the deed records. In accord with this holding, the Court in Dickens v. Dickens, 241 S.W.2d 658, 665 (Tex. Civ.App. — El Paso 1951, writ ref’d n. r. e.), citing the court in Emporia Lumber Company v. Tucker, 103 Tex. 547, 131 S.W. 408, 409 (1910), explained that the mere recording of a deed of an attempted sale by a tenant to a third person is not sufficient by itself to put the owner on notice of repudiation. There must be sufficient overt, open and notorious acts other than the mere recording of the deed, sufficient to notify the owner that an adverse claim is currently being asserted against his property. As stated earlier, the record is barren of any evidence concerning the occupancy of Sara Gonzalez other than that she lived on the property and reared four children.

We hold that at most a fact issue is presented here as to whether the occupancy of Gonzalez was sufficiently notorious to apprise Garza that he should be suspicious and inspect the deed records concerning his property. We must presume the trial court found insufficient notice on this point and we cannot say that the court’s conclusion is so against the great weight and preponderance of the evidence as to be manifestly unjust.

C. LONG CONTINUED POSSESSION

According to Tex-Wis Company v. Johnson, supra at 901, the idea of long continued possession is nothing more than circumstantial evidence of the existence of certain facts which tends to support a reasonable inference that the record owner has notice that the tenancy has been repudiated. It should be here noted that this is only an inference and not a presumption. See 23 Tex.Jur.2d, Evidence § 65 (1961). The conclusion that notice has occurred, which conclusion could be supported by the inference, may be either accepted or rejected by the finder of fact. 23 Tex.Jur.2d, Evidence § 67 (1961). And, where a fact to be inferred is controverted by direct testimony, the finder of fact may accept or reject the inference. Stooksberry v. Swann, 85 Tex. 563, 22 S.W. 963, 965 (1893). Even if we were to assume, arguendo, that the two elements of long continued possession were established; namely, long continued possession under claim of ownership and non-assertion of claim by the title holder, we would not be compelled to conclude that the possession constituted notice of a repudiated tenancy. Especially is this so where there is direct evidence which contradicts the inference. For example, Mr. Garza testified that he was consistently out of town, and from time to time out of the state, from 1953 until some time after his retirement. He stated that he returned only once to Brownsville during that entire period of time. Furthermore, there is some evidence of a trusting relationship between Garza and Medina around the year 1953 and it would not be unreasonable for the court to expect that trusting relationship to continue in Garza’s mind. Compare Fowler v. Hardee, 16 S.W.2d 154, 158 (Tex.Civ.App.— Austin 1929, no writ), Udell v. Peak, supra. The trial court impliedly rejected the inference that because of long continued possession Garza had notice of repudiation, and we think in light of the direct evidence in contravention to the inference that the trial court’s implied finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust.

D. NOTICE BY A NEIGHBOR

There is some indication that Garza may have received notice of repudiation from a neighbor to the property as early as ten years before trial. The evidence is conflicting, however, in this regard and again we must presume the trial court found this notice was less than ten years prior to the filing of this suit.

Finding no error in the trial court’s implied finding that appellant failed to establish the third element (claim of right) of her case regarding the ten year statute of limitations, we have an independent ground upon which to affirm the judgment of the trial court. Therefore any other error asserted by the appellant here would be harmless. Compare B. R. D. v. State, 575 S.W.2d 126, 138 (Tex.Civ.App. — Corpus Christi, 1978, writ ref’d n. r. e.).

The judgment of the trial court is affirmed.

NYE, C. J., not participating.