author: RUSSELL, Judge. GALBREATH, Judge

text:
    William HARRIS, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Oct. 15, 1975.
    Certiorari Denied by Supreme Court March 1, 1976.

      B. F. Lowery, Lebanon, for plaintiff in error.
    R. A. Ashley, Jr., Atty Gen., R. Jackson Rose, Asst. Atty. Gen., Nashville, R. David Allen, Asst. Dist. Atty. Gen., Lebanon, for defendant in error.
   RUSSELL, Judge.

OPINION

William Harris was convicted of possessing marihuana for the purpose of resale and his punishment was fixed at two (2) to five (5) years in the penitentiary. The State’s case was grounded upon a sale to a T.B.I. undercover agent, who implicated both Harris and a co-defendant, Linda James, in the alleged sale. The jury acquitted Linda James.

The case was carried directly to the Grand Jury and Harris was indicted on July 18, 1974, and a capias issued that day. In other words, no arrest warrant was issued for him on this charge prior to his indictment. On August 7, 1974, defense counsel filed, first, a motion for abatement of the indictment, because he was “charged and indicted and * * * not afforded a preliminary hearing”. Counsel relied upon T.C.A. § 40-1131, as amended effective April 4, 1974. On the same day defense counsel filed a motion for a preliminary hearing, again relying upon T.C.A. § 40-1131. The technical record is unclear as to when these motions were acted upon. After a term caption apparently applying to September 16, 1974, which was the trial commencement date, and the minute entries dealing with the trial, appears an order overruling said motions, and it bears the penned notation, “Enter 3-26-75”.

Error is assigned upon the refusal to “dismiss the indictment * * * on the grounds [sic] that he was not accorded a preliminary hearing * * * pursuant to T.C.A. Section 40-1131”.

The question is simply whether or not the 1974 amendment to T.C.A. § 40-1131 mandates a preliminary hearing in this case. We hold that it does not.

Prior to the 1974 amendment, the right to a preliminary hearing clearly did not exist after presentment or indictment. Shadden v. State, Tenn.Cr.App., 488 S.W.2d 54 (1972); Hilton v. State, Tenn.Cr.App., 503 S.W.2d 951 (1973); Brown v. State, Tenn. Cr.App., 489 S.W.2d 855 (1972). Effective April 4, 1974, the Legislature added this language:

“If the accused is indicted during the period of time in which his preliminary hearing is being continued, or at any time before accused has been afforded a preliminary hearing on a warrant, whether at his own request or that of the prosecutor, he may abate the indictment upon motion to the court. Provided, however, that no such motion for abatement shall be granted after the expiration of thirty (30) days from the date of the accused’s arrest.”

This language clearly applies only to a situation wherein an accused has been arrested on a warrant prior to indictment, and has no application to the situation in the case sub judice, wherein the very first action against the accused was the return of the indictment. The amendment by clear implication says that while the fact of indictment cuts off the right to a preliminary hearing, as the statute had read and the cases had said, in those cases wherein a warrant had been served prior to indictment and a motion made within thirty (30) days of arrest to abate the indictment for want of a preliminary hearing, it would be abated. The relief specified is not a post-indictment preliminary hearing, but abatement of the indictment.

The contention made on behalf of plaintiff-in-error that his motion for abatement was made within thirty (30) days of his arrest confuses the arrest of him on a post-indictment capias with the pre-indictment arrest contemplated by the statute but not found in this record.

If the Legislature means to say that no person shall be indicted and put to trial on an indictment until they have first had a preliminary hearing then the wording of T.C.A. § 40-1131 will have to be changed. The statute, as written in 1971 and added to in 1974, only covers the ease of one arrested on a charge and not given a preliminary hearing prior to indictment. It has no application to a case wherein the first State action is an indictment or presentment, as here. Obviously, a post-indictment “preliminary hearing” would be a mutation of procedures creating many procedural problems. If broader discovery procedures are desired by the Legislature a direct approach, with procedures tailored to that purpose, would serve far better than bending a probable cause proceeding to serve a discovery purpose.

We hold that it was not error for the trial judge to refuse to abate this indictment for want of a preliminary hearing.

Error is assigned upon the alleged insufficiency of the evidence supporting the conviction. The State’s undercover agent testified that he purchased a pound of marihuana from the accused for one hundred sixty-five dollars ($165.00). The verdict of the jury, approved by the trial judge, accredits the testimony of the prosecution witnesses and establishes the State’s theory of the case. Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768.

The plaintiff-in-error complains of the introduction of evidence of his prior arrest. This did not actually happen. When the T.B.I. undercover agent was being examined by the prosecuting attorney, this was asked and answered:

“q. * * * i want to ask you what
was the nature of this conversation with the defendant, Mr. Harris, with Mrs. James present, what was that conversation about?
“A. I was about—we were trying to line up more marijuana.
“Q. How much more?
“A. Approximately, somewhere between one and ten pounds. It was to the effect on how much he could deliver. He told me he was going to go pick up ten pounds.
“Q. Did he tell you that he was also going to sell that to you?
“A. Yes, sir, he did.
“Q. And did he deliver it to you?
“A. No, sir, he did not.
“Q. What happened?
“A. He was arrested on—

An objection was interposed, a mistrial moved for, and the trial judge instructed the jury:

“Gentlemen, I will say this: in the questioning of the witness, I believe Mr. Allen used the word “arrest” in some way. Disregard that altogether.”

This assignment is without merit.

Error is assigned upon the introduction into evidence of the fact of plaintiff-in-error’s two prior convictions for possession of marihuana. He admitted these convictions upon cross-examination. On direct examination, defense counsel brought out the fact that he had acquired the marihuana habit while serving in Viet Nam, and had him admit that he had smoked marihuana after returning to civilian life. The assignment is overruled.

The defendant alleges that it was error to allow the State to refer to the defendant as a hippie in the State’s cross-examination of a defense witness. It-was shown that he wore his hair long and had a mustache. We have carefully examined this line of questioning and judge that it was not inflammatory. The appearance of Harris depicted by the proof is not at all uncommon in all youthful circles of today’s society.

The plaintiff-in-error contends that the trial court erred in restricting his cross-examination of the undercover officer. We find this assignment to be without merit. No abuse of the trial judge’s discretion is evident. State v. Fowler, 213 Tenn. 239, 373 S.W.2d 460.

Error is assigned upon the trial judge’s refusal to dismiss the petit jurors. It was made to appear by the testimony of a member of the bar that the regular trial judge (who did not preside over this trial) had charged the Grand Jury rather forcefully on the subject of drug offenses, and that the petit jurors were then present. No prejudice was developed on voir dire, none has been documented post-trial, and the defendant took the jury with peremptory challenges left. Under the authority of Hale v. State, 198 Tenn. 461, 281 S.W.2d 51, he cannot now be heard to complain. We would observe, also, that the co-defendant, Linda James, against whom the State certainly also had a drug case, was acquitted by this jury. Whatever the regular judge may have charged them did not seem to overcome their discretion.

Complaint is made about the jury argument of the prosecuting attorney. Reference was improperly made therein to the confiscation of Linda James’ automobile. Obviously, this argument did not prejudice her, since she was acquitted, so can hardly have prejudiced Harris. Nor was the argument which referred to Harris’ two previous convictions reversible error.

We have carefully reviewed this record, examined all assignments, and affirm the conviction.

GALBREATH and O’BRIEN, JJ., concur.

GALBREATH, Judge

(concurring).

I concur.

Judge RUSSELL has put his judicial finger on what appears to be a legislative defect in the wording of T.C.A. 40-1131, as amended in 1974. Obviously, it was the purpose of the amendment to make available a discovery mechanism to a defendant accused of crime, together with an opportunity to persuade the judicial officer presiding over the preliminary hearing that no probable cause exists that warrants prosecution. In its present posture the law permits and encourages a zealous prosecuting authority to bypass the purpose of the statute and go directly to the grand jury where all know it is easier to obtain a decision to prosecute than it is in a proceeding in which the witnesses for the State have to withstand the probing of cross-examination.

I fear unless the legislature corrects the deficiency noted that in most instances in which there is any doubt as to the ability of the State to obtain a favorable ruling from a magistrate, particularly if there is some propensity on the part of the prosecution to conceal from the defense some of the evidence upon which reliance for going forward with prosecution is based, the preliminary hearing envisioned by the legislature will become the exception available only in those cases where the exigencies of the circumstances make the issuance of an arrest warrant mandatory.

While a defendant should always be allowed to waive a right to a preliminary hearing, if it is available in some cases as a shield against unwarranted prosecution, it should be available in all. It now is not.


source: Caselaw Access Project

author: WALKER, Presiding Judge. O’BRIEN, Judge

license: Public Domain

text:
    Russell HICKS, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Oct. 29, 1975.
    Certiorari Denied by Supreme Court March 1, 1976.
    Jesse 0. Farr, Chattanooga, for plaintiff-in-error.
    R. A. Ashley,'Jr., Atty. Gen., Michael E. Terry, Asst. Atty. Gen., Nashville, Stephen M. Bevil and Thomas J. Evans, Asst. Dist. Attys. Gen., Chattanooga, for defendant-in-error.
   OPINION

WALKER, Presiding Judge.

Russell Hicks, the defendant below, appeals in error from his conviction in case no. 125572 for possessing marijuana and from his conviction in case no. 125563 for unlawfully carrying a pistol. In each case he was sentenced to pay a fine of $1000 and costs and to serve 11 months and 29 days in jail. In the marijuana case, one Linda I. Slater was jointly indicted with him for possessing marijuana with intent to sell, but he (the defendant) was tried alone on this charge. In his consolidated trial of four cases, the jury found him not guilty in another pistol carrying case and another case charging him with felonious possession of a controlled substance with intent to sell.

At about 5:00 a. m., May 6,1973, Chattanooga policeman Paul O’Rear noticed the defendant in a blue and white van turn off Market Street into King Street barely making the light. The van accelerated and bounced into another lane. The officer followed turning on his blue lights and sounding his siren several times. In about three blocks, the van went through a red light and a stop sign and finally stopped about half a block from the city jail.

O’Rear approached the defendant in the van and asked him to raise his hands. When the defendant did not do so immediately, O’Rear drew his pistol and ordered the defendant to place his hands where they could be seen. He also asked the defendart to get out of the van. When the defendant did not do so, the officer opened the door and pulled him out.

When the officer opened the door, he smelled the odor of marijuana. Outside the vehicle he searched the defendant, handcuffed him and sent him to the jail in the custody of another officer. This personal search revealed no contraband so far as the record shows. The defendant had about $1000 in cash which he says he had obtained as a loan from the bank.

The woman passenger was taken out of the van, placed in a police cruiser and searched by a policewoman. •

After sending the defendant to jail, O’Rear made a complete search of the van. On the floorboard near the accelerator he found the loaded .25 caliber pistol involved in the conviction for carrying a weapon here. On the hood cover between the front seats, there was a warm pipe with the odor of marijuana emanating from its bowl. The officer emptied the ash tray and found “roaches” there. In a topless box behind the driver’s seat, the officer found a loaded .32 caliber pistol, a shoulder holster, some marijuana in a plastic bag and some pills. A state toxicologist testified the material in the plastic bag was marijuana .as was the pipe residue, the ash residence and four hand-rolled cigarette butts.

The defendant testified that he had borrowed the van from one Randy Roberson while his own car was being repaired and he knew nothing of the drugs or pistols found in it. He saw the pipe on the hood but did not know for what it was used and he noticed no odor of marijuana. The defendant contends the pipe was over the car’s engine and this accounts for its warmth. Another witness corroborated the defendant’s explanation of his borrowing the vehicle from Roberson who was dead at the time of the trial.

The principal question presented is the legality of the warrantless search. The defendant contends there was no probable cause for it and that a warrant was necessary.

Although the officer did not testify for what offense he arrested the défendant, it is clear that the defendant had violated traffic laws and that he was lawfully stopped for that reason. When the defendant was uncooperative in getting out of the van, the officer properly opened the door. The trial judge held that the officer was qualified to recognize the distinctive odor of marijuana smoke.

The principal question presented here is whether or not the smell of marijuana emanating from the defendant’s car furnished probable cause to enable an officer, who had stopped the vehicle for a traffic offense, to search the vehicle. We hold that it did.

Since the officer’s actions, prior to the time he smelled the odor of the contraband marijuana, were permissible, the smell of marijuana established probable cause to believe that a crime other than the traffic violation had been committed. The detection of the odor of marijuana was sufficient to allow the subsequent warrantless search of the automobile. See State v. Raymond, 21 Ariz.App. 116, 516 P.2d 58; People v. Wolf, 15 Ill.App.3d 374, 304 N.E.2d 512; People v. Chestnut, 43 A.D.2d 260, 351 N.Y. S.2d 26.

Although the defendant had been removed from the automobile, exigent circumstances existed for the search without a warrant. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419.

The assignment challenging the search is overruled.

The defendant says the trial judge erred in failing to direct a verdict when the toxicologist said that the substance was marijuana but she was unable to say that it was the particular substance proscribed by law. He further says the court erred in charging the jury that the law proscribed all species of marijuana and not just cannabis sativa L.

At the time of this offense marijuana was defined and limited to cannabis sativa L. By an amendment to TCA 52-1409(n), the words “sativa L” were deleted from the definition (Chapter 741, Public Acts of 1974).

The question of whether the term “cannabis sativa L” includes all forms of marijuana has been increasingly litigated in the courts. The United States Courts of Appeal interpreting the federal statute hold the term all inclusive. See United States v. Honneus, 1 Cir., 508 F.2d 566; United States v. Rothberg, 2 Cir., 480 F.2d 534, cert, denied, 414 U.S. 856, 94 S.Ct. 159, 38 L.Ed.2d 106; United States v. Moore, 3 Cir., 446 F.2d 448, and United States v. Gaines, 5 Cir., 489 F.2d 690.

We accordingly hold that cannabis sativa L includes all geographical types of marijuana and overrule this assignment.

With the evidence admitted by the search, there is an abundance of evidence to support the verdicts. The jury did not accept the defendant’s explanation of his possession of the marijuana and pistol. The assignment on the weight of the evidence is overruled.

We have carefully examined all assignments of error and find them to be without merit.

The judgments are affirmed.

FRED H. GILLIAM, Special Judge, concurs.

O’BRIEN, Judge

(concurring).

I concur with considerable reluctance in the lead opinion by my colleague, Judge Walker, in this case.

This defendant was apprehended by a Chattanooga police officer at approximately 5 o’clock in the morning because of the manner in which he was operating his vehicle, a blue and white van type truck. After being stopped, according to an officer’s testimony, defendant was not cooperative when asked to place his hands where they could be seen and did not do so until the officer, quite prudently as it was subsequently developed, drew his service revolver from its holster. Defendant did not make any effort to dismount from the van when requested to do so and was pulled from the vehicle by the officer. At this time the officer noticed an odor that he took to be marijuana. At this point two other police officers arrived. Defendant was handcuffed and taken a half a block into the police station. His female companion was taken from the van and placed in the back of a squad car until she could be searched by a female officer.

I have no quarrel with the conduct of the officer, although there was not any testimony introduced to show why defendant had been arrested. A subsequent search disclosed two loaded weapons in the vehicle. The validity of an arrest is not necessarily determinative of the right to search a car if there is probable cause to make the search. My hesitancy to concur is due to concern with the court decisions which place a search made by a police officer without a warrant within the category of a reasonable search in a case such as we have here.

Assuming, without agreeing, that the odor of the smell of marijuana emanating from defendant’s car furnished probable cause for the officer to make the search, I fail to find from the evidence in this case the “exigent circumstances” existing which would authorize the search without a warrant. However, in Chambers v. Maroney, supra, cited in the lead opinion as authority, our United States Supreme Court had this to say:

“Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the ‘lesser’ intrusion is permissible until the magistrate authorizes the ‘greater.’ But which is the ‘greater’ and which the ‘lesser’ intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment. On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained.”

Under the circumstances existing here where the police officers had the vehicle immobilized, and its occupants in custody, the safer, surer, more reasonable and practical course would have been to obtain a warrant after a magisterial decision on probable cause to make the search. There is little reason in placing the onus on a police officer, who, though he may be schooled in the enforcement of the law, usually knows nought about its judicial niceties, to make a probable cause decision in a ease of this nature and then to subject such a decision to judicial scrutiny to determine if he acted circumspectly in the action taken by him. However, this appears to be the law as it is presently construed and so I concur with the conclusion reached in the case.


author: DUNCAN, Judge.

text:
    Douglas Ray STEWART, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Oct. 30, 1975.
    Certiorari Denied by Supreme Court Jan. 26, 1976.

      Walker Gwinn, Asst. Public Defender, Memphis, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., Robert H. Roberts, Advocate Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., Wayne Emmons, Asst. Dist. Atty. Gen., Memphis, for defendant in error.
   DUNCAN, Judge.

OPINION

The appellant, Douglas Ray Stewart, hereinafter referred to as the petitioner, brings this appeal contesting the dismissal of his petition for post conviction relief by the Honorable James C. Beasley, Judge of Division IV of the Shelby County Criminal Court.

The petitioner’s complaints are that the rape statute under which he was convicted, T.C.A. § 39-3701, is unconstitutional and that the State suppressed evidence at his original trial.

With respect to the constitutional question, the “Findings of Facts and Conclusions of Law,” rendered by the able trial judge, contain the following:

“As to the novel attack upon the constitutionality of Section 39-3701, ‘Rape defined’, being sexually discriminatory and thereby violative of due process and equal protection of laws, such attack must fail although, it is pursued from two fronts. The first being that by definition only a male can commit the offense of rape and the second, as urged in oral argument, that a male cannot be the victim of rape and therefore the Petitioner under either or both has been denied equal protection of the law.
“Conceding the language of Section 39-3701 does prescribe (sic) the physical act of a male only in committing rape is not determinative of the issues in that under the laws of this State a female can be convicted and punished for the crime of rape as an Aider and Abettor or as an Accessory before the Fact under Section 39-107 through 39-110 T.C.A. and see Bryson v. State [195 Tenn. 313] 259 S.W.2d 535.
“The argument that only a female can be the victim of rape is academic in so far as this ease is concerned but in passing the Court would observe that the laws of this State do protect males from unlawful sexual assault and abuse.
“If the Petitioner is seeking to challenge the physiological differences of the male and female he has picked the wrong forum.
“In applying the equal protection test to Section 39-3701 it must be determined whether the sexual classification contained therein is reasonable, not arbitrary, and does it rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. Reed v. Reed, 404 U.S. 71 [92 S.Ct. 251, 30 L.Ed.2d 225],
“The general rule seems to be that discrimination between the sexes with respect to matters in which sex is a material factor may be made by statute or other state action, without violating the equal protection guaranty, if the classification is a natural and reasonable one. 16A C.J.S. Const. Law, Sec. 544, p. 480.
“The Constitution, in enjoining the equal protection of the laws upon States, precludes irrational discrimination as between persons or groups of persons in the incidence of a law. But the Constitution does not require situations which are different in fact or opinion to be treated in law as though they were the same. Goe-saent [Goesaert] v. Cleary, 335 U.S. 464 [69 S.Ct. 198, 93 L.Ed. 163].
“Section 39-3701 is clearly intended to protect women from unlawful forced sexual intercourse against her will, and possible resulting forced pregnancy and infection with venereal disease and such protection is not only a legitimate state purpose but a state duty. It follows therefore, that the sex classification contained in said statute is reasonable and bears a fair and substantial relationship to the object of the law.
“This Court finds Section 39-3701 T.C.A. to be a valid, constitutional statute which is in no way violative of the constitutional rights of Petitioner either as to its form, substance or application.”

We think the foregoing exposition of the law adequately covers the constitutional question involved and we adopt it as part of this opinion. In passing, we would also note that in State v. Bomar, 209 Tenn. 567, 354 S.W.2d 763 (1962), our Supreme Court held that the rape statutes, T.C.A. §§ 39-3701-3702, were constitutional.

The petitioner’s additional complaint that the State suppressed evidence at his original trial is without merit. This complaint concerns two statements which the victim had given to police officers. The two statements in question were examined by the trial judge in the present cause and he found that neither contained any exculpatory information which would have aided the petitioner at his trial. We have reviewed the statements which are exhibited in this record and we agree with the court’s finding.

The trial court held that T.C.A. § 39-3701 was valid and constitutional, and further found that the State had not suppressed any evidence at the original trial. From our review of the record, we agree with those findings and affirm the trial court’s ruling in dismissing the petition.

WALKER, P. J. and RUSSELL, J., concur.


author: DANIEL, Justice. SAM D. JOHNSON, Justice

text:
    AIRWAY INSURANCE COMPANY, Petitioner, v. HANK’S FLITE CENTER, INC., Respondent.
    No. B-5591.
    Supreme Court of Texas.
    March 10, 1976.
    Stewart J. Alexander, San Antonio, for petitioner.
    Alexander, McDonald & Lowe, Benny J. Lowe, Odessa, for respondent.
   DANIEL, Justice.

This appeal involves a procedural question as to whether “factual insufficiency” or “weight and preponderance” points of error should have been treated by the court of civil appeals as “no evidence” points under the record presented in this case.

Airway Insurance Company perfected an appeal from a judgment for $20,500 entered upon a jury verdict in favor of Hank’s Flite Center in a suit to recover on an insurance policy for damages to an insured airplane. Airway Insurance had filed a motion for judgment non obstante veredicto. It was overruled by the trial court, but Airway’s appeal did not clearly complain of this action. Instead, it stated and argued three factual “weight and preponderance” points and sought a remand rather than a rendition in its favor. The court of civil appeals held that it had no jurisdiction to consider what it termed. Airway’s “factual insufficiency” points because of its failure to file a motion for new trial. The court also concluded that Airway did not have a point of error complaining of the trial court’s action in overruling the motion for judgment non obstante veredicto nor any argument in support of the validity of that motion. It affirmed the judgment of the trial court. 527 S.W.2d 488 (Tex.Civ.App.). We affirm.

First, as to terminology, the court of civil appeals has referred to the points of error as “factual insufficiency” points. They were stated as “weight and preponderance” points. Such points often have been generally classified as “insufficient evidence” points in distinguishing them from “no evidence” points. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361, 366 (1960); Garwood, The Question of Insufficient Evidence on Appeal, 30 Texas L.Rev. 803, 804 (1952). There is a distinction, which is not material to this appeal, and we shall treat the court of civil appeals’ reference to “factual insufficiency” points as including “weight and preponderance” points.

The court of civil appeals correctly held that it had no jurisdiction to consider factual insufficiency points of error in the absence of a motion for new trial. Rules 324, 374; Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.1969); Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960). Its opinion, however, did not indicate consideration of the liberal briefing rules under which appellate courts allow substance to control over form in the wording of points of error if the brief otherwise directs the attention of the court to the error relied on. Rules 1, 418(b), 422. Under certain circumstances a point was treated as a “no evidence point” when expressed in terms of “not having sufficient support in the record.” Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286 (1951). In Gleason v. Davis, 155 Tex. 467, 289 S.W.2d 228 (1956) and Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943), we made it clear that it is proper to look to the statement and argument under a point to determine whether it qualified as a “no evidence” point. The controlling consideration is not whether the point uses the proper or preferable terminology, but whether the point is based upon and related to a particular procedural step in the trial and appellate process and is properly argued as a predicate for the relief sought. Calvert, 38 Texas L.Rev. at 361-362.

We reaffirm the rules and tests announced in Fambrough, Woodward, and Gleason and shall apply them in considering this appeal. In fact, we granted this writ to consider the argument of petitioner, Airway Insurance Company, that its points in the court of civil appeals, although stated as factual insufficiency points, should have been considered as “no evidence” points directed at the alleged error of the trial court in overruling Airway’s motion for judgment non obstante veredicto.

The Commanche B airplane insured by Airway Insurance Company was owned by the Teri Gay Trust and leased to the insured, Hank’s Flite Center, Inc., of Odessa, Texas. The Flite Center was operated by Hank Henry, who- had set up the Teri Gay Trust for his daughter. Shortly before the plane crash, Henry had offered to sell it to Robert Charles Denton of Roswell, New Mexico. A tentative agreement was reached and Denton signed a conditional “Buyer’s Order” supplied by Henry on November 2, 1973, which consisted of “my offer to purchase the airplane and/or other items specified below subject to the terms and conditions set forth in this order.” The order and offer called for payment in cash or terms “accepted by Seller at the time of delivery.” It was signed only by Robert Charles Denton. The spaces for the name and written acceptance of the Seller were blank. On November 7, 1973, Henry flew the plane to Roswell to complete the proposed purchase arrangements. Upon finding that Denton had failed to secure the purchase price of $23,000, Henry sought to “morally obligate” Denton by getting him to execute a promissory note in that amount payable on November 15, 1973, to the Terri Gay Trust. Henry testified that the purchase agreement was to be completed and the plane delivered to Denton only after the purchase price was paid. However, he testified that he left the plane at the Roswell Airport so that Denton could experience the “pride of ownership.” Although the ignition keys were left in a side pocket of the plane, Henry testified that he gave Denton explicit instructions not to fly the plane. Denton nevertheless did so on November 9, when the plane crashed and he was killed. The plane was totally demolished.

Airway Insurance Company refused to pay Hank’s Flite Center’s claim under the policy. Its defense in the trial court was based upon exclusions of coverage in the policy if the airplane at the time of the crash was either (1) possessed under a bailment, conditional sale, or purchase agreement, (2) wrongfully converted while so possessed, or (3) piloted by an unlicensed pilot. On the controlling issues relating to these exclusions, the jury’s answers were against Airway Insurance and favorable to the insured.

In its motion for judgment non ob-stante, Airway Insurance did not use the words “no evidence” in complaining of the answers of the jury, but it did assert that certain recited evidence was “proof as a matter of law” that the pilot was unlicensed and that he was in possession of the aircraft under a conditional sale or purchase agreement. The motion can be construed as one based upon a contention that controlling facts excluding 'coverage had been conclusively established as a matter of law. If Airway Insurance had pursued the statements and arguments under this motion in a point complaining of the alleged error of the trial court in overruling the motion, the court of civil appeals would have had jurisdiction without the necessity of Airway filing a motion for new trial. Rule 324. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887, 890 (1960). In Wagner, it was held that an appellant who filed a motion for judgment non obstante veredicto, but not a motion for new trial, must on appeal predicate his points of error on matters stated in the motion for judgment non obstante vere-dicto.

Instead, Airway Insurance completely failed in the court of civil appeals to preserve its argument that the exclusions of coverage had been conclusively established as a matter of law. That allegation was not presented as a basis for its complaint that the trial court erred in overruling its motion for judgment non obstante. Rather, Airway stated and argued each of its three points of error relating to the policy exclusions as a complaint that a jury finding was “so against the overwhelming weight and preponderance of the evidence ... as to be clearly wrong.” See note 1, supra. By way of summation, Airway added after the three numbered points, “That collectively, the Honorable Trial Court erred in not granting Airway’s Motion for Judgment Non Obstante Verdicto [sic].” It is clear that the alleged “collective” error relates to the three preceding “weight and preponderance” points of error. No other reasons are stated or argued as to why the trial court erred in not granting Airway’s motion for judgment non obstante. No argument was made in support of the validity of that motion. Indeed, the motion was not again referred to in the appellant’s brief. Airway simply did not bring forward its trial court argument that the motion should have been granted because controlling facts excluding coverage had been conclusively proven as a matter of law.

We have carefully examined the statements and arguments under the three points and find that they relate so directly to weight and preponderance of the evidence that it is impossible to treat them as also presenting “no evidence” or as “established as a matter of law” points as now urged by Airway Insurance. Conflict in some of the evidence is obvious enough that the attorney for Airway could have intentionally receded to “weight and preponderance” points and a prayer for remand rather than rendition. Under Point One in the court of civil appeals, complaining of the jury’s “finding that Robert Charles Denton did not have possession of the aircraft under a bailment, conditional sale or purchase agreement.” Airway Insurance merely argued that “the possession factors are evidenced by the following:”

“1. That the aircraft was left in Roswell where Denton was;
2. That the keys were left inside the aircraft, and it was left unlocked;
3. That Denton had exercised control over the aircraft, by accepting the responsibility of securing its hangaring; and
4. That Henry had accepted Plaintiff’s Exhibit B [promissory note] for the full purchase price of the aircraft.”

Airway made no assertion or argument that the above “possession factors” were undisputed or conclusively established as a matter of law. Actually, part of 3 and all of 4 were disputed by the testimony of Hank Henry. Under this point there was a one sentence argument that “borrowing” a plane to try it out for purchase constitutes a bailment for mutual benefit, but there was no contention that the evidence conclusively showed a loan of the plane. Based upon alleged delivery of the plane to Den-ton, which was a disputed fact, a brief argument was made that Denton had possession under a conditional sale. Finally, a single sentence was devoted to Airway’s contention that the “Buyer’s Order” constitutes a “purchase agreement” because it “specifically recites: ‘Please accept my offer to purchase the airplane,’ and it is signed by ‘Robert C. Denton.’ ” Airway did not note that the offer was not signed or accepted by or on behalf of the owner. Argument under this point was concluded with the statement: “Since the jury only had to find possession alternatively under a ‘bailment,’ ‘conditional sale,’ or ‘purchase agreement,’ the facts, no matter how construed, show possession and fit into one of these three (3) categories.” Airway did not assert that the evidence showing possession in either of these three categories was undisputed or conclusively proven as a matter of law. As heretofore indicated, neither did Airway assert that the trial court erred in overruling its motion for judgment non ob-stante for any of the reasons set forth in its argument under Point One.

Significantly, at the end of the argument under Point One, as well as the other points, Airway prayed that the point of error “should be sustained . . . and this cause [be] reversed and remanded.” A remand is the relief usually sought by a party who complains of “factual insufficiency.” A prayer for rendition, with a proper procedural basis therefor, usually indicates that the cojnplaint relates to “no evidence” or “established as a matter of law” points. Calvert, 38 Texas L.Rev. at 362 and 372. Thus, the thrust of the argument and the relief sought under Point One are clearly predicated upon the jury finding being against the weight and preponderance of the evidence rather than any error of the trial court as a matter of law in overruling Airway’s motion for judgment non obstan-te.

Under Point Two there is a statement that “the uncontroverted testimony of Mr. Henry establishes a conversion,” but that alone was not a controlling issue which would have entitled Airway Insurance to a judgment. It concerned an issue which was conditionally submitted and unanswered by the jury.

Under Point Three there is a statement that Mr. Henry’s testimony on the question of the pilot’s license, “being wholly inconsistent . . . reflects there is in essence no other evidence, and his opinions, if any, based on hearsay, reflect there is in essence no other evidence, either direct or indirect, to overcome the proof on ‘no license’ as established by Def’s Ex. 1.” Yet, Airway Insurance concludes the argument under this point with the-statement: “That Def’s Ex. 1 coupled with Mr. Henry’s testimony at his deposition, even though somewhat retracted at trial, show the jury’s findings are against the overwhelming weight and preponderance of the evidence as to be clearly wrong.” As heretofore indicated, no complaint was made under this point of the trial court’s action in overruling Airway’s motion for judgment non obstante, and the prayer thereunder is for a remand rather than rendition.

We find that Airway’s arguments and prayers for relief are entirely consistent with the statement of its points as complaints that the jury findings were against the great weight and preponderance of the evidence. In this connection we find no argument in the court of civil appeals under which we could hold that the appeal was based upon an alleged error of the trial court in overruling Airway’s motion for judgment non obstante veredicto because of “no evidence” or because the evidence “was conclusively established as a matter of law” on controlling issues.

Since Airway Insurance filed no motion for new trial and its points of error, as stated and argued, possessed all of the characteristics of factual “weight and preponderance” points, the court of civil appeals properly held that it was without jurisdiction to consider the appeal.

Accordingly, the judgment of the court of civil appeals is affirmed.

Dissenting Opinion by SAM D. JOHNSON, J.

SAM D. JOHNSON, Justice

(dissenting).

This dissent is respectfully submitted. The majority opinion raises a simple question. What purpose is served by denying Airway’s appeal when this court, the court of civil appeals, and the opposing party obviously understand the grounds of the appeal? Unfortunately, this question is left unanswered by the majority opinion.

The beginning point for analyzing the problem presented by the instant case is Rule 422, Texas Rules of Civil Procedure, which provides:

“The purpose of briefs being to acquaint the court with the points relied upon, the manner in which they arose, together with such argument of facts and law as will enable the court to decide the same, a substantial compliance with these rules will suffice in the interest of justice; but for a flagrant violation of the rules the court may require the case to be re-briefed.”

This court has long held that in applying our liberal briefing rules courts should look to the statement and argument under a point of error in determining the adequacy of such point. In Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943), this court stated:

“Our present briefing rules were adopted for the purpose of simplifying the briefing of cases so that greater attention will be devoted to the presentation of the merits of the appeal, and less attention given to the mechanics of the brief. . If a ‘point’ is sufficient to direct the Court’s attention to the matter complained of, the Court will look to the ‘point’ and the statement and argument thereunder to determine the question of reversible error. Simply stated, the Court will pass on both the sufficiency and the merits of the ‘point’ in the light of the statement and argument thereunder.”

We have looked to the statement and argument under points of error to determine whether they qualify as “no evidence points.” Gleason v. Davis, 155 Tex. 467, 289 S.W.2d 228 (1956); Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286 (1951). In Gleason the court of civil appeals reversed and remanded on the ground that the appellant failed to present any no evidence points. The contention was made that the statement and argument under one of the appellant’s points of error was sufficient to raise the question of no evidence. The Gleason court, after reviewing the holdings in Fambrough and Woodward, concluded that the point of error “together with the statement and argument thereunder in appellant’s brief in the Court of Civil Appeals were sufficient to present the point of ‘no evidence.’ ”

The liberal briefing rules embodied in Rule 422 and applied by this court in Famb-rough, Woodward, and Gleason recognize that a party’s appeal should not be frustrated needlessly because of a technical error committed by his attorney. Our rules do not require that appellate courts brief cases for the parties; they merely obligate the courts to consider appeals that are presented in reasonably understandable fashion. Rule 418(b), Texas Rules of Civil Procedure, provides that points of error “will be sufficient if they direct the attention of the court to the error relied upon and they should ordinarily be so concisely stated that they may appear, separately numbered, on a single page of the brief.” According to Rule 422, if an appellant fails to comply with these requirements, the court of civil appeals may require that the case be re-briefed.

In the instant case it is undoubtedly true that the points of error stated in the appellant’s brief are improper. First, the appellant did not have a separately numbered point of error complaining of the overruling of its motion for judgment non obstante veredicto. Instead, the appellant inserted directly beneath its numbered points the following statement:

“THAT COLLECTIVELY, THE HONORABLE TRIAL COURT ERRED IN NOT GRANTING AIRWAY’S MOTION FOR JUDGMENT NON OBSTANTE YERDICTO [sic].”

A second and more critical defect in the points of error was that they did not correspond to the matters stated in the motion for judgment non obstante veredicto. The motion for judgment non obstante veredicto stated that the applicability of the three policy exclusions was established as a matter of law, while the points of error stated that the jury findings regarding the policy exclusions were against the great weight and preponderance of the evidence.

In Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (Tex.1960), this court held that if an appellant files a motion for judgment non obstante veredicto but not a motion for new trial, his points of error on appeal must be predicated on matters stated in the motion for judgment non obstante veredicto. Since in the instant case the appellant’s points of error were not predicated on matters stated in the motion for judgment non obstante veredicto, the central issue is whether the arguments under the points of error were sufficient to cure the defects in the points. If the thrust of the arguments under the points of error was that the policy exclusions were established as a matter of law, then the improper wording of the points of error should not be fatal.

Contrary to the conclusion drawn by the majority, the arguments in the appellant’s brief clearly contend that the exclusions in the insurance policy were established as a matter of law. Each of the appellant’s three points of error referred to one of the three policy exclusions that it relied upon in its motion for judgment non obstante vere-dicto. The arguments presented under the first and third points of error are considered below. The arguments pertaining to the second point of error are not considered because they relate to the conditional jury issue that was not answered.

First Point of Error. In its abbreviated argument under this point the appellant cited cases which suggest that the relationship between Henry and Denton constituted a bailment or a conditional sale as the courts have defined such terms. The appellant further argued that the buyer’s order executed by Denton constituted a purchase agreement. The conclusion drawn was stated succinctly:

“Since the jury only had to find possession alternatively under a ‘bailment’, ‘conditional sale’, or ‘purchase agreement’, the facts, no matter how construed, show possession and fit into one of these three (3) categories.”

Instead of attempting to determine the thrust of the appellant’s arguments under its first point of error, the majority has proceeded to evaluate the appellant’s arguments. This was the task of the court of civil appeals. Our task is merely to determine whether the appellant was arguing that the policy exclusions were established as a matter of law. This is different from deciding whether the evidence relative to the policy exclusions was conclusively established. Accordingly, the following statements in the majority opinion are beside the point:

“Airway made no assertion or argument that the above ‘possession factors’ were undisputed or conclusively established as a matter of law. Actually, part of 3 and all of 4 were disputed by the testimony of Hank Henry.”

And:

“Finally, a single sentence was devoted to Airway’s contention that the ‘Buyer’s Order’ constitutes a ‘purchase agreement’ . . Airway did not note that the offer was not signed or accepted by or on behalf of the owner.”

The fact that some of the “possession factors” were disputed has no bearing on whether the appellant was arguing that the exclusion was established as a matter of law. It was not necessary that the appellant expressly state that the “possession factors” were conclusively established; the appellant obviously assumed throughout its argument that the various “possession factors” were conclusively established. Similarly, the fact that the buyer’s order was not signed or accepted may be a reason for holding that it did not constitute a “purchase agreement,” but the. appellant may nevertheless have been arguing that the buyer’s order constituted a “purchase agreement” as a matter of law.

The majority in effect concludes that the policy exclusion pertaining to bailments, conditional sales, and purchase agreements was not established as a matter of law; its analysis sheds little light on what the appellant was actually arguing. A fair reading of the appellant’s argument under its first point of error clearly reveals that the appellant was arguing the law rather than the facts.

Third Point of Error. With regard to the exclusion for nonlicensed pilots, Airway obtained a Record of Diligent Search from the FAA indicating that Denton did not have a pilot’s license of any kind. Henry admitted in a pretrial deposition that his own investigation satisfied him that Denton was not licensed. At trial Henry hedged on this question saying, “Some said he had it and some said he didn’t.” In its argument under this point of error the appellant stressed that the FAA Record of Diligent Search indicating that Denton did not have a pilot’s license was admissible and that it established prima facie the applicability of the policy exclusion pertaining to unlicensed pilots. The appellant further contended that Henry’s equivocal statement that “[sjome said he had it [the pilot’s license] and some said he didn’t,” did not constitute any evidence to the contrary because the statement was hearsay and inconsistent with Henry’s earlier deposition. The following sentence summarized the appellant’s position:

“In the instant case, the testimony of Mr. Henry, as respecting the question of Mr. Denton’s license, being wholly inconsistent, as reflected hereinabove, reflects there is in essence no other evidence, and his opinions, if any, based on hearsay, reflect there is in essence no other evidence, either direct or indirect, to overcome the proof on ‘no license’ established by Def’s Ex. 1.”

Although the majority opinion cites the above sentence, it concludes that the appellant’s argument refers to an “insufficiency point” because in wrapping up the argument it stated:

“That Def’s Ex. 1, coupled with Mr. Henry’s testimony at his deposition, even though somewhat retracted at trial, showed the jury’s findings are against the overwhelming weight and preponderance of the evidence as to be clearly wrong.”

It is not surprising that the conclusion was stated in the above manner. Based on the points of error in the appellant’s brief it is evident that its attorney misinterpreted the distinction in terminology between “no evidence points” and “insufficiency points.” By ignoring the thrust of the appellant’s argument and simply relying upon the above conclusion, this court retreats from the salutary rule established in Fambrough, Woodward, and Gleason. It is undeniable that the thrust of the argument under the third point of error was that the policy exclusion pertaining to unlicensed pilots was established as a matter of law.

Having demonstrated that the appellant’s points of error, as interpreted in light of the arguments in its brief, were preserved by the motion for judgment non obstante vere-dicto, it is necessary to consider the other defect in the points of error; namely, the absence of a separately numbered point complaining of the overruling of the motion for judgment non obstante veredicto. Immediately following the appellant’s points of error was this statement:

“THAT COLLECTIVELY, THE HONORABLE TRIAL COURT ERRED IN NOT GRANTING AIRWAY’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO [sic].”

The statement referred to each of the appellant’s numbered points of error with the result that each point of error complained of the trial court’s denial of the motion for judgment non obstante veredicto. The inclusion of this statement at the end of the points of error was unconventional but it was also unmistakable in its meaning. Moreover, if the court of civil appeals felt that the appellant’s statement of its points of error was confusing or uncertain, it could and it should have required that the case be rebriefed rather than dismissing the appeal. The rebriefing procedure in Rule 422 is designed to assure compliance with briefing rules, such as Rule 418(b), pertaining to points of error, without unduly penalizing a party by dismissing his appeal. Rebriefing would have been particularly appropriate in the instant case because the defects were in the points of error rather than the appellant’s argument. By requiring rebriefing, the court of civil appeals might have eliminated the defects in the points of error that precluded its consideration of the appellant’s argument.

The majority seems to conclude that the appellant did not bring forward a point of error complaining of the overruling of the motion for judgment non obstante veredicto. The majority overlooks that the arguments in the appellant’s brief were in substance virtually identical with the arguments presented in the motion for judgment non obstante veredicto. In light of these arguments and the quoted statement immediately following the points of error, it is clear that the appellant did bring forward points of error complaining of the overruling of the motion for judgment non obstan-te veredicto.

The majority concludes that the appellant’s points of error should be treated as “insufficiency points” because the procedural relief requested was a remand rather than rendition. However, it has never been held that a court may refuse to consider an appeal because the appellant requested the wrong procedural relief. It is well settled that under certain circumstances a court of civil appeals may remand a case after sustaining a no evidence point. Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593 (1936). Furthermore, there is absolutely no support for the majority’s conclusion in Fambrough, Woodward or Gleason. Those cases merely held that courts should look to the argument under a point of error; nothing was said about the importance of the procedural relief requested.

What becomes clear is that the majority opinion is not supported by any sound rationale and it deserts the well-considered rules announced in Fambrough, Woodward, and Gleason.

      .The points were stated by Airway Insurance Company as follows:

        “POINTS OF ERROR

        “ONE: THAT THE JURY’S FINDING THAT ROBERT CHARLES DENTON DID NOT HAVE POSSESSION OF THE AIRCRAFT UNDER A BAILMENT, CONDITIONAL SALE OR PURCHASE AGREEMENT, WAS SO AGAINST THE OVERWHELMING WEIGHT AND PREPONDERANCE OF THE EVIDENCE ADDUCED AT TRIAL AS TO BE CLEARLY WRONG.

        “TWO: THAT THE JURY’S FAILURE TO FIND THAT THE TAKING BY ROBERT CHARLES DENTON OF THE AIRCRAFT AMOUNTED TO A CONVERSION, WAS SO AGAINST THE OVERWHELMING WEIGHT AND PREPONDERANCE OF THE EVIDENCE ADDUCED AT TRIAL AS TO BE CLEARLY WRONG.

        “THREE: THAT THE JURY’S FAILURE TO FIND THAT ROBERT CHARLES DENTON DID NOT HAVE A LICENSE ISSUED BY THE FEDERAL AVIATION ADMINISTRATION TO FLY THE AIRPLANE, WAS SO AGAINST THE OVERWHELMING WEIGHT AND PREPONDERANCE OF THE EVIDENCE AS TO BE CLEARLY WRONG.

      “THAT COLLECTIVELY, THE HONORABLE TRIAL COURT ERRED IN NOT GRANTING AIRWAY’S MOTION FOR JUDGMENT NON OBSTANTE VERDIC-TO [sic].”

      . The appellation “insufficient evidence” is more appropriate to describe evidence alleged to be too weak factually to support a vital finding. “So against the great weight and preponderance of the evidence as to be unjust” is proper in asserting that on balance the evidence is overwhelmingly against the finding at issue. Calvert, 38 Texas L.Rev. 361, 366; Calvert and Hatchell, Some Problems of Supreme Court Review, 6 St. Mary’s Law Journal 303, 325 (1974). We agree that confusion might be avoided if the above standard designations were used in describing the varying states of evidence at issue, as well as “no evidence” or “no legally sufficient evidence” to designate a total lack of evidence to support a vital finding, and “established as a matter of law” to denote a contention that a given fact is conclusively established by the evidence. Id., note 93 at 325-326.

      . All references to Rules are to the Texas Rules of Civil Procedure.


author: DENTON, Justice.

text:
    John L. FASHING and Enrique H. Pena, Relators, v. EL PASO COUNTY DEMOCRATIC EXECUTIVE COMMITTEE et al., Respondents.
    No. B-5813.
    Supreme Court of Texas. ‘
    March 10, 1976.

      John L. Fashing and Enrique H. Pena, El Paso, for relators.
    Pearson, Oden & Caballero, Raymond C. Caballero, El Paso, for respondents.
   DENTON, Justice.

The Honorable John L. Fashing and the Honorable Enrique H. Pena, both qualified judges in El Paso County, Texas, have petitioned this Court for a writ of mandamus ordering the El Paso County Democratic Executive Committee and its Chairman, Raymond Caballero, to place their names upon the ballot for the Democratic primaries as candidates for nomination to the offices of County Court at Law No. 2 of El Paso County, Texas and the Court of Domestic Relations of El Paso County, Texas, respectively. Our jurisdiction is based upon Article 1735a, Vernon’s Ann.Tex.Stats. and Article 13.41, Tex.Election Code Ann.

The County Court at Law No. 2 of El Paso County was created by Article 1970-141.1 V.A.T.S. That article states that the first appointed judge “shall serve beginning September 1, 1955, until the next general election and until his successor shall be duly elected and qualified. Thereafter said office shall be filled at general election as provided by law except in case of vacancy.” Judge Richard Crawford was duly appointed to fill this office and was subsequently elected to said judgeship in the general elections of 1956, 1958, 1962,1966 and 1970. In 1973 Judge Crawford announced he would not seek re-election. Relator Fash-ing was nominated in the Democratic Primary of 1974 and elected to said judgeship in the general election of that year.

The Court of Domestic Relations of El Paso County, Texas was created in 1971 by Article 2338-21 V.A.T.S. Said article states that the judgeship so created is to first be filled by appointment and that the appointee is to “serve until the next general election or until his successor is qualified.” Thereafter the judge of said court is to be “elected in accordance with the terms of Section 65, Article XVI, Constitution of the State of Texas.”

Relator Pena was duly appointed and took office on June 14, 1971. Judge Pena was nominated in the May 1972 Democratic Primary for Judge of the Domestic Relations Court of El Paso County and was elected to said judgeship in November of 1972. In May of 1974 the office of Judge of the Court of Domestic Relations did not appear on the Democratic Primary ballot and no one filed for said office. However, in the general election of November 1974 the office of Judge of the Court of Domestic Relations did appear on the ballot, although no names appeared thereunder. Relator Pena was a write-in candidate and was again duly elected Judge of the Court of Domestic Relations in the general election of November 1974.

Both relators sought to file for re-nomination to their respective positions in the 1976 Democratic Primary. The El Paso County Democratic Executive Committee, based on the advice of the Secretary of State and several Attorneys’ General opinions, refused the relators’ applications on the grounds that they were both elected to four year terms in 1974 and that neither office was up for election in 1976. The respondents contend that Article 16 § 65 of the Texas Constitution mandatorily sets the terms of both of these offices and that full four year terms to these judgeships may be obtained only in the general elections held in 1954, 1958, 1962, 1966, 1970, 1974 and 1978. In dealing with similar problems the Attorney General has in the past consistently ruled that an election not held in accordance with the schedule set forth by Article 16 § 65 is not an election to a full four year term. Tex.Att’y Gen.Op. Nos. WW-1292 (1962), C-147 (1963), M-566 (1970), H-726 (1975). Rather such election, even when held at the intervening general election, is merely an election to the remainder of the unexpired term as set by Article 16 § 65. Respondents contend that § 65 determines the four year term schedule of all the offices listed therein, including those offices created subsequent to its enactment.

As originally adopted, in November of 1954, Article 16 § 65 reads as follows:

§ 65. Transition from two year to four year terms of office
Sec. 65. Staggering Terms of Office— The following officers elected at the General Election in November, 1954, and thereafter, shall serve for the full terms provided in this Constitution:
(a) District Clerks; (b) County Clerks; (c) County Judges; (d) Judges of the County Courts at Law, County Criminal Courts, County Probate Courts and County Domestic Relations Courts; (e) County Treasurers; (f) Criminal District Attorneys; (g) County Surveyors; (h) Inspectors of Hides and Animals; (i) County Commissioners for Precincts Two and Four; (j) Justices of the Peace
Notwithstanding other provisions of this Constitution, the following officers elected at the General Election in November, 1954, shall serve only for terms of two (2) years: (a) Sheriffs; (b) Assessors and Collectors of Taxes; (c) District Attorneys; (d) County Attorneys; (e) Public Weighers; (f) County Commissioners for Precincts One and Three; (g) Constables. At subsequent elections, such officers shall be elected for the full terms provided in this Constitution.
In any district, county or precinct where any of the aforementioned offices is of such nature that two (2) or more persons hold such office, with the result that candidates file for “Place No. 1,” “Place No. 2,” etc., the officers elected at the General Election in November, 1954, shall serve for a term of two (2) years if the designation of their office is an uneven number, and for a term of four (4) years if the designation of their office is an even number. Thereafter, all such officers shall be elected for the terms provided in this Constitution. Added Nov. 2, 1954.

In 1958, however, this Article was amended and the following provision was added as a final paragraph to the original amendment.

Provided, however, if any of the officers named herein shall announce their candidacy, or shall in fact become a candidate, in any General, Special or Primary Election, for any office of profit or trust under the laws of this State or the United States other than the office then held, at any time when the unexpired term of the office then held shall succeed one (1) year, such announcement or such candidacy shall constitute an automatic resignation of the office then held, and the vacancy thereby created shall be filled pursuant to law in the same manner as other vacancies for such office are filled. As amended Nov. 4, 1958.

Relators contend that Article 5 § 30 of the Texas Constitution, and not Article 16 § 65, is the controlling constitutional provision. Section 30 was adopted to extend the terms of the pertinent offices from two to four years and reads as follows:

§ 30. Judges of courts of county-wide jurisdiction; criminal district attorneys
Sec. 30. The Judges of all Courts of county-wide jurisdiction heretofore or hereafter created by the Legislature of this State, and all Criminal District Attorneys now or hereafter authorized by the laws of this State, shall be elected for a term of four years, and shall serve until their successors have qualified. Added Nov. 2, 1954.

It is relators’ position that this section controls the term sequence of all pertinent offices created after November 1954.

Fashing and Pena argue that Article 16 § 65 applies only to those offices in existence in November 1954 and that it was meant to serve only as a transition between two and four year terms of office. Therefore, any office created after November 1954 would be controlled solely by Article 5 § 30 and the sequence of its terms would be fixed by its first general election.

The question before us is whether the schedule of elections, as determined by Article 16 § 65, applies to all the enumerated offices or only to those in existence at the time § 65 was added. It is important to note that both Article 5 § 30 and Article 16 § 65 were added to the Constitution on the same day. Both provisions were added to initiate a transition between two and four year terms of office.

It is apparent that Article 5 § 30 is the basic Article setting the length of terms for the offices in question. Article 16 § 65, however, qualifies this basic provision to the extent that it attempts to alternate the election of county officers. It allows some initial two year terms so that a consistent, alternating, four year schedule is set up for these offices. The Interpretive Commentary to Article 16 § 65 makes it clear that the legislature passed this amendment so that election to county offices would be staggered. The Commentary states that, “. . . it was recognized that it was

necessary to stagger the effect of the amendment [Art. 5 § 30], so that all the elective district, county and precinct offices would not expire in the same year.”

Under relators’ theory Judge Crawford was elected to a four year term at his first general election in 1956. Therefore, the subsequent elections for the judgeship to County Court at Law No. 2 should have been held in 1960,1964,1968,1972 and 1976. In the event that relators are correct then the elections to that office in 1958, 1962, 1966 and 1970 were improperly held. Judge Crawford would thereby have been elected merely for the remaining two years of each unexpired term and would have been a holdover judge for the first two years of each succeeding term. Article 16 § 17 Tex. Constitution. Judge Fashing contends that he was elected only to the remainder of the term in 1974 and that the office is properly up for election for a full term in 1976. Relators also contend that Judge Pena was duly elected to a full four year term in 1972, regardless of the creating statutes provisions, because Article 5 § 30 mandates that the first general election be for a full four year term. If this is so, the judgeship of the Court of Domestic Relations would-also properly be up for election in 1976.

We cannot accept the constitutional interpretations and assumptions presented by the relators. Articles 5 § 30 and 16 § 65 are companion amendments and while Article 5 § 30 clearly sets the general term of office it does not function independent of the qualifications of Article 16 § 65. Section 65 of Article 16 is not merely a transitional provision but fully limits, qualifies and schedules the four year terms set by Section 30 of Article 5; both as to offices in existence in November 1954, and those created thereafter.

In its introductory paragraph Section 65 of Article 16 states that, “The following officers elected at the General Election in November, 1954, and thereafter, shall serve for the full terms provided in this Constitution . . . (emphasis added). Both County Courts at Law and County Domestic Relations Courts are included in the list of those offices to be controlled by this introductory comment. The introductory paragraph shows that it was intended that the election schedule of the pertinent offices would be determined by using 1954 as the base year. This provision does not state that it applies to the 1954 election only, but specifically applies to all of these offices in 1954 “and thereafter.” Since the terms of the offices in existence in 1954 could not be statutorily changed, then the phrase “and thereafter” would be meaningless unless it referred to offices created subsequent to November 1954. The clear intent of Article 16 § 65 is to stagger elections so that all county and district offices do not expire simultaneously.

Another persuasive point in favor of this interpretation of these constitutional amendments is the manner in which Article 16 § 65 was itself amended. As previously noted the last paragraph of § 65 was added in 1958 and reads as follows:

Provided, however, if any of the officers named herein shall announce their candidacy, or shall in fact become a candidate, in any General, Special or Primary Election, for any office of profit or trust under the laws of this State or the United States other than the office then held, at any time when the unexpired term of the office then held shall exceed one (1) year, such announcement or such candidacy shall constitute an automatic resignation of the office then held, and the vacancy thereby created shall be filled pursuant to law in the same manner as other vacancies for such office are filled. As amended Nov. 4, 1958.

The important words to note in this provision are: “the officers named herein.” If relators’ interpretation of Article 16 § 65 is adopted then the original amendment applies only to those offices in existence as of November 2,1954. The logical extension of such a holding would be that in interpreting the scope of the 1958 addition it also would apply only to those offices in existence as of November 2, 1954. The phrase “the officers named herein” would of necessity refer only to those officers that existed at the time of the original amendment. The result thus reached would be that candidates who held public offices created before November 1954 could not announce their candidacy more than one year prior to the expiration of their current term without automatically resigning. Yet candidates who held public offices created after November 1954 would be able to so announce without any such constitutional effect.

There is no conflict between Texas Constitutional Article 5 § 30 and Article 16 § 65. Section 30 of Article 5 merely determines the length of the term of office, while Section 65 of Article 16 determines the quadrennial election schedule. Thus, those offices listed in the first part of § 65, whose four year terms start in 1954, are to be filled in the general elections of 1954, 1958, 1962, 1966, 1970, 1974, 1978, etc. Those offices listed in the second part of § 65, whose four year terms start in 1956, are to be filled in the general elections of 1956,1960,1964,1968,1972,1976, etc. Elections to all offices enumerated in Article 16 § 65, including those created after November 1954, are to be held in accordance with the provisions of said section. Offices created after November 1954, whose first election is at an intervening general election and not on the proper schedule, are not initially elected to a full four year term but are elected only for the remainder of the unexpired term as it is determined by § 65.

The petition for writ of mandamus is denied. No motion for rehearing will be entertained.


author: DANIEL, Justice.

text:
    Donald A. THIEL, Relator, v. HARRIS COUNTY DEMOCRATIC EXECUTIVE COMMITTEE et al., Respondents.
    No. B-5863.
    Supreme Court of Texas.
    March 11, 1976.

      Jefferson, Maness, Valdes & Mims, Michael Anthony Maness, Houston, for relator.
    Paul R. Lawrence, Houston, for respondents.
   DANIEL, Justice.

Relator, Donald A. Thiel, has petitioned this Court for an original writ of mandamus directing Respondents, the Harris County Democratic Executive Committee and its Chairman, Steven Oaks, to exclude from the 1976 Democratic primary election ballot the name of Paul R. Lawrence as a candidate for State Representative, District 90. Relator alleges that Lawrence failed to file his application for a place on the ballot before the mandatory filing deadline prescribed by Article 13.12 of the Texas Election Code.

Relator Thiel is a duly certified candidate for the same office in the Democratic Primary to be held in Harris County on May 1, 1976. As the only other applicant for a place on the ballot for the office of State Representative, District 90, Thiel has the capacity to sue and is entitled to the writ prayed for if Lawrence failed to comply with the filing deadline. Burroughs v. Lyles, 142 Tex. 704, 181 S.W.2d 570 (1944). See also Bounds v. McCallum, 122 Tex. 116, 52 S.W.2d 1047, 1049 (1932); Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037, 1040-41 (1916); Pulliam v. Trawalter, 120 S.W.2d 108, 110 (Tex.Civ.App.1938, no writ).

The relevant provisions of Article 13.12, Texas Election Code, are as follows:

Art. 13.12. Application for place on ballot; filing; deadline; extension; withdrawal; notice
The application to have the name of any person affiliating with any party placed on the official ballot for a general primary as a candidate for the nomination of such party for any office for which a nomination may be made at such primary shall be governed by the following:
2. The application shall be filed . with the county chairman . . . not
later than 6 p. m. on the first Monday in February preceding such primary.
2b. . [A]n application filed under [Paragraph 2] of this section shall be considered filed if sent to the proper chairman at his post-office address by registered or certified mail from any point in this state not later than the day before the filing deadline, as shown by the postmark. Any application not received by the chairman before the deadline does not comply with this law unless it has been mailed by registered or certified mail as herein provided, and it shall not be sufficient to send the application by any other type of mail unless it is delivered before the deadline.

Lawrence did not file with the county chairman before 6 p. m. on the first Monday in February (February 2) preceding the primary. Instead, he mailed his application to the county chairman at 5:54 p. m. on Monday, February 2, 1976, the day of the filing deadline, and it was received on the morning of February 3, 1976. It has been held that if a candidate fails to comply with the mandatory deadline provisions as prescribed by Article 13.12 of the Texas Election Code, his name may not lawfully appear on the Democratic primary election ballot. Burroughs v. Lyles, 142 Tex. 704, 181 S.W.2d 570 (1944). See also Parchman v. Rodriguez, 458 S.W.2d 239 (Tex.Civ.App. 1970, no writ); Gonzales v. Knight, 458 S.W.2d 529 (Tex.Civ.App.1970, no writ).

Respondent Oaks accepted and certified Lawrence’s application because of an interpretation that Sections 2 and 2b of the Texas Election Code are subject to the general computation of time periods set forth in Sec. 2.04 of Article 5429b-2, known as the Texas Code Construction Act. Sec. 2.04 provides that when the last day of a computed period for commission of an act falls on a Saturday, Sunday or legal holiday, the period is extended to include the next day which is neither a Saturday, Sunday, nor a legal holiday. The Respondents’ interpretation finds support in a divided opinion of the Tyler Court of Civil Appeals in Palmer v. Guest , 533 S.W.2d 484. In that case the court of civil appeals issued a writ of mandamus directing Calvin Guest, Chairman of the Executive Committee of the State Democratic Party, to certify the name of Ed I. Palmer, II, for a place on the Democratic Primary ballot as a candidate for the office of District Attorney, Eighth Judicial District of Texas, an office filled by the choice of the voters of more than one county. Chairman Guest had refused the application because it was sent to him by certified mail which was not postmarked on or before February 1, 1976, the day before the filing deadline, as required by the above quoted Sec. 2b of Article 13.12 of the Texas Election Code.

We disagree with the opinion in Palmer v. Guest, supra, and with the action of Respondent Oaks. We hold that Article 13.12 specifically sets a deadline for candidates to file for places on the primary election ballots, and that the deadline for filing in person or by mail is not extended by the general provisions of Article 6429b-2. The relevant portions, effective in 1967, are as follows:

Art. 5429b-2. Code Construction Act

Purpose

Sec. 1.01. This Act provides rules to aid in the construction of codes (and amendments to them) enacted pursuant to the state’s continuing statutory revision program. The rules set out in this Act are not intended to be exclusive but are meant to describe and clarify common situations in order to guide the preparation and construction of the codes.

Applicability

Sec. 1.02. This Act applies to

(1) each code enacted by the 60th or a subsequent Legislature as part of the state’s continuing statutory revision program;
(2) each amendment, repeal, revision, and reenactment of a code, or provision thereof, which amendment, repeal, revision, or reenactment is enacted by the 60th or a subsequent Legislature;
* * * * * *

Computation of Time

Sec. 2.04. (a) In computing a period of days, the first day is excluded and the last day is included.
(b) If the last day of any period is a Saturday, Sunday, or legal holiday, the period is extended to include the next day which is not a Saturday, Sunday, or legal holiday.
* * * * * *
Nunn v. New, 148 Tex. 443, 226 S.W.2d 116 (1950).

By its own terms, the general Code Construction Act is intended only as an aid or guide in the construction of legislative codes enacted by the 60th Legislature and subsequent code or statutory revisions, amendments, etc. Sec. 1.01 states that the rules set out in the Act “are not intended to be exclusive . . . .” Sec. 8.06 provides that a special or local provision prevails as an exception to the general provision, when the two are irreconcilable, unless the general provision is the later enactment and the manifest intent is that the general provision prevail. Although the general aid and guidance of the Code Construction Act of 1967 is applicable to subsequently enacted legislation, it is not designed and should not be construed to engraft substantive provisions onto subsequently enacted legislation when the language, meaning, and interpretation of such legislation are, standing alone, indisputably clear. Thus, the Code Construction Act provides, not rules of substantive law which become part of subsequently enacted legislation, but principles of construction that are necessarily subordinate to the plain intent of the Legislature as manifested in the clear language of statutes like Sections 2 and 2b of Article 13.12.

Article 13.12 of the Texas Election Code, providing a definite deadline for filing or mailing candidates’ applications for places on the ballot, is a good example of the type of specific legislation which is indisputably clear and not affected by Sec. 2.04 of the Code Construction Act. Sec. 2.04 is a general rule relating solely to computation of time in enactments which require that an act be done within a certain number of days to be counted from a determinable starting point, and which do not specifically set a final date or deadline contrary to Sec. 2.04.

Section 2 of Article 13.12 plainly and clearly establishes a deadline for filing, which in the present instance was not later than 6 p. m. on Monday, February 2, 1976. Sec. 2b plainly and clearly establishes, as an exception, a deadline for filing by registered or certified mail as “not later than the day before the filing deadline, as shown by the postmark,” which was February 1, 1976. Neither the timeliness of filing in person or by mail was dependent upon “computing a period of days.” Thus Section 2.04 of the Code Construction Act is altogether irrelevant and inapplicable.

Section 2b of Article 13.12 is a later enactment than the Code Construction Act of 1967. Section 2b, as it now exists, resulted from an amendment of Article 13.12 enacted by the 61st Legislature in 1969. Previously, as part of Sec. 2, an application was timely filed if mailed to the party chairman by registered or certified mail “before the filing deadline” (i. e., before midnight on the day of the filing deadline). If the language of the statute had not been changed, the Lawrence application mailed at 5:54 p. m. on Monday, February 2, would have been timely. Cf. Roy v. Drake, 292 S.W.2d 848 (Tex.Civ.App.1956, no writ). The change in the 1969 amendment requiring applications by mail to be postmarked “not later than the day before the filing deadline” was an unambiguous substantive change. It would be nullified if Sec. 2.04 of Article 5429b-2 is held to be applicable. Obviously, the Legislature knew that Sunday would be the last date for mailing before the Monday deadline, but it nevertheless enacted the amendment in that manner to prevent mailings on the Monday deadline. The decision in Palmer v. Guest, supra, extending the filing by mail deadline to Monday, February 2, was based partially on the court’s statement that “it would be virtually impossible for a candidate . to obtain a postmark on [Sunday] the day before the filing deadline.” Relator contends that it is possible in major metropolitan areas of the State, and in other areas, to have certified or registered mail accepted for delivery and canceled with a Sunday postmark. Be that as it may, even if it were “virtually impossible” to so mail an application on a Sunday, the Legislature neither precluded personal delivery to the county chairman on the following Monday nor prevented the exercise of some small degree of foresight in mailing the application earlier than Sunday.

The application of the general computation provisions of the Code Construction Act would produce such incredible and conflicting results that there would be no certainty left as to the filing deadlines under Article 13.12. For instance, under Respondents’ interpretation, if any first Monday of February preceding the primary is a legal holiday, then the deadline for filing would be extended to the following Tuesday. Further, since Sunday (the last day for posting applications by mail) always precedes Monday, the construction contended for by Respondents would repeal the Legislature’s requirement of mailing “not later than the day before the filing deadline” and extend the mailing deadline to include all of Monday, the day of the filing deadline. The result would be a return to the precise situation which the Legislature sought to abolish by amending the statute in 1969 to substitute “not later than the day before” the filing deadline. Furthermore, under Respondents’ contention a prospective candidate who presents his application to the chairman in person at 6:30 p. m. on Monday, the day of the filing deadline, and is rejected for untimeliness, could nevertheless obtain a place on the primary ballot by placing his rejected application in an envelope and mailing it by certified or registered mail to the county chairman postmarked anytime before midnight of the day of the deadline for filing.

The logical consequence of applying the Code Construction Act to effect an extension of the legislatively prescribed deadline for filing by mail would convict the Legislature of a futile and foolish act. State v. School Trustees of Shelby County, 150 Tex. 238, 239 S.W.2d 777, 781 (1951). Such a result is not justified in this case, and we disapprove the opinion of the court of civil appeals in Palmer v. Guest, supra.

Because the application of Lawrence was not timely mailed in accordance with Sec. 2b of Article 13.12 of the Texas Election Code, his name cannot lawfully appear on the Democratic Primary election ballot.

Accordingly, the writ of mandamus will issue directing the Respondents, Harris County Democratic Executive Committee and its Chairman, Steven Oaks, to exclude the name of Paul R. Lawrence from the ballot of the 1976 Democratic Primary election as a candidate for State Representative, District 90.

Due to the near approach of proceedings for the May primary, a motion for rehearing will not be entertained, and the writ will issue immediately.

Ordinarily the Court encourages that relief of this nature be sought in the appropriate court of civil appeals. Although this application was not made to the court of civil appeals, it was entertained for two reasons: first, it has Statewide application, and secondly, there existed an opinion by a divided court of civil appeals in a different Supreme Judicial District, Palmer v. Guest, supra.

      . References are to Vernon’s Texas Annotated Civil Statutes unless otherwise noted.

      . See similar provisions for computation of time under Rule 4 of the Texas Rules of Civil Procedure. Rule 4 is not applicable here, since it governs only computation of time in connection with civil court actions.

      .The opinion, dated March 1, 1976, is not published at the time of this writing.

      . Acts 1969, 61st Leg., p. 2662, ch. 878, § 30, eff. Sept. 1, 1969.