author: BISSETT, Justice.

text:
    Peggy Ledesma ROGERS, Appellant, v. Thomas E. SEARLE et ux., Appellees.
    No. 1052.
    Court of Civil Appeals of Texas, Corpus Christi.
    Jan. 30, 1976.
    Rehearing Denied Feb. 26, 1976.

      See also, Tex.Civ.App., 533 S.W.2d 440.

      Roy T. Ahrens, Houston, for appellant.
    James G. Lempert, Houston, for appel-lees.
   OPINION

BISSETT, Justice.

This is an appeal from a judgment which dismissed a petition for an equitable bill of review. Peggy Ledesma Rogers, petitioner in the trial court, filed a petition in Juvenile Court Three of Harris County, Texas, on January 15,1975, wherein she sought to set aside an alleged order of that court, purportedly signed on December 9, 1974, that allegedly terminated her parental rights with respect to her minor son, Scott Anthony Rogers. The cause proceeded to trial before a jury on March 6, 1975. After the petitioner rested, Thomas E. Searle and wife, Lillian Ruth Searle (erroneously named as Lillian E. Searle in the pleadings), defendants to the action for a bill of review, moved for a directed verdict on the ground that petitioner failed to prove a prima facie case. The motion was granted, and the trial court signed a judgment of dismissal on April 3, 1975. Peggy Ledesma Rogers has appealed from that judgment.

Appellant, in her first amended petition for a bill of review, her trial pleading, alleged, among other allegations, that on or about September 1, 1974, she executed “an Affidavit of Relinquishment of Parental Rights and Waiver of Citation, the exact contents of which are not known to her”; that she was “coerced into signing the aforementioned affidavit”; and that her parental rights to her son were terminated on or about December 9, 1974 by order of “Juvenile Court Number Three of Harris County, Texas”. She further alleged that she had a meritorious defense to the parental rights termination proceedings, but that she “was prevented from presenting her defense due to the extrinsic fraud and duress used to obtain the Affidavit of Relinquishment of Parental Rights and Waiver of Citation”.

Appellant, in point of error 1, contends that the trial court erred in granting defendants’ (appellees’) motion for a directed verdict because the evidence, viewed in the light most favorable to her, raised a fact question “as to extrinsic fraud, duress, accident or mistake”. In point 4, appellant asserts that it was error to grant the motion for a directed verdict because the evidence raised a fact question as to whether she “knowingly and intelligently waived a known legal right, i. e., the right to be notified and advised of any court proceedings with regard to the termination of her parental rights.”

Since the trial court directed a verdict in favor of the appellees, we are required to view the evidence in the light most favorable to appellant, the losing party in the trial court, to indulge against the judgment every inference that can be possibly drawn from the evidence, and to disregard all evidence and inferences adverse to appellant. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.Sup.1970); Bass v. General Motors Corporation, 491 S.W.2d 941 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.).

The material facts are undisputed. Appellant is the natural mother of Scott Anthony Rogers, who was born on February 6, 1973. The only witnesses who testified were appellant and five persons called by her. The alleged order of December 9, 1974, which terminated her parental rights with respect to the child, was not introduced into evidence at the trial.

Appellant testified, in effect, as follows: 1) in September, 1974, she and her child, at appellees’ invitation, moved into the home of appellees for the purpose of saving enough money to rent an apartment for herself and her child; 2) shortly thereafter, appellees arranged for the appellant to move into an unfurnished apartment; 3) since the child was ill and as appellant was in financial difficulties and did not have any furniture in her apartment, the child was left with the appellees; 4) appellees discussed adoption of the child with her, but “I was not for it”; 5) appellees were anxious to get her out of the house so they could be appointed “legal guardian” of the child; 6) appellees discussed guardianship with her, but never did tell her that they “were proceeding any further than a guardianship”; 7) on September 28, 1974, she signed an Affidavit of Relinquishment of Parental Rights and Waiver of Citation; 8) she signed the instrument for the purpose of allowing appellees to provide medical care for the child, and to enable them to take out a guardianship on him; 9) after she moved out of appellees’ home, she was allowed to see the child until December 24, 1974, when she was told that she could no longer see him; 10) at one time appellees told her that she would have to appear in court with them, but, subsequently, after she signed the “Affidavit and Waiver”, they told her that she did not have to appear in court, “or something like that, which I thought there was not going to be a court hearing”; and 11) she did not, by signing the document intend to give her consent to either a termination of her parental rights or to an adoption of the child by anyone.

The body of Affidavit of Relinquishment of Parental Rights and Waiver of Citation, the only evidence introduced by appellees at the trial, is, in words and figures, as follows:

“I, PEGGY LEDESMA ROGERS, was born September 30, 1952 and reside at 11402 Beechnut, Apt. 129, Houston, Harris County, Texas. I am the mother of Scott Anthony Rogers, a male child born February 6, 1973, and who is now 19 months of age.
I am not presently obligated by court order to make payments for the support of the child.
The child owns no property.
The name and address of the father of the child is Kenneth Ray Rogers, 6301 S. Flores, San Antonio, Texas.
I hereby freely and voluntarily relinquish all my rights in and to this child and represent that this is in the best interest of the child.
I was fully informed of my rights, powers, duties and privileges as a parent before executing this affidavit. This affidavit is irrevocable.
I understand that this means that I cannot change my mind and ask for return of my child.
I execute this affidavit freely and voluntarily because I deem it to be in the best interest of the child.
I designate Thomas Eric Searle and Lillian Ruth Searle as qualified persons and suitable, competent adults to serve as managing conservators of the child if my parental rights are terminated.
I waive the right to issuance, service and return of citation upon me in a suit to terminate the parent-child relationship between the child and me and any other suit affecting the parent-child relationship between the child and me.”

The document was signed by appellant in the presence of two witnesses, whose names are subscribed thereto, and before a notary public. Part of the notarial statement accompanying the document reads as follows:

“ . . . The affiant stated to me on oath that she signed the above instrument freely and voluntarily for the purposes stated in the instrument and with full understanding of the meaning of the instrument. . . . ”

A bill of review is a proceeding in equity brought for the purpose of reversing a prior judgment of the trial court after the judgment has become final. Johnson v. Barnwell Production Company, 391 S.W.2d 776 (Tex.Civ.App.—Texarkana 1965, writ ref’d n. r. e.). The general rule with respect to obtaining relief by means of a bill of review is stated in 34 Tex.Jur.2d, Judgments, § 188, in these words:

“It has always been the law in this state that where, through no fault of his own, a party has been prevented by fraud, accident, or mistake from prosecuting his suit or making his defense, and an opportunity has not been afforded him for moving for a new trial within the time prescribed by law, he may thereafter bring a suit in equity to reopen the case and dispose of the litigation on its merits.

The rules applicable to a bill of review were laid down by our Supreme Court in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950). They were restated and thoroughly discussed in Hanks v. Rosser, 378 S.W.2d 31 (Tex.Sup.1964); in Gracey v. West, 422 S.W.2d 913 (Tex.Sup.1968), and in French v. Brown, 424 S.W.2d 893 (Tex.Sup.1967). In order for a losing party to successfully set aside a final judgment by a bill of review, it is imperative that he allege and prove: 1) a meritorious claim or defense with respect to the action that resulted in a judgment which was adverse to him; 2) which he was prevented from making in the prior proceeding by fraud, duress or wrongful conduct of the opposite party, or by accident or mistake; 3) unmixed with any fault or negligence on his part; and 4) that no other remedy is available to him.

Fraud which will justify the setting aside of a final judgment in a bill of review proceeding must be extrinsic, and not intrinsic. O’Meara v. O’Meara, 181 S.W.2d 891 (Tex.Civ.App.—San Antonio 1944, writ ref’d).

In the case of State v. Wright, 56 S.W.2d 950, 952 (Tex.Civ.App.—Austin 1933, no writ), Justice Baugh, in writing the opinion for the court, used the following language:

“But the fraud which will authorize vacation by the court of its former judgment in such case must be what has been termed ‘extrinsic fraud.’ By that is meant fraud by the other party to the suit which has prevented the losing party either from knowing about his rights or defenses, or from having a fair opportunity of presenting them upon the trial. Such, for instance, as where he has been misled by his adversary by fraud or deception, did not know of the suit, or was betrayed by his attorney. In other words, fraud which denied him the opportunity to fully litigate upon the trial all the rights or defenses he was entitled to assert. . . . ”

That language was quoted with approval in Crouch v. McGaw, 134 Tex. 633, 138 S.W.2d 94, 97 (1940), and in Alexander v. Hagedorn, supra.

Unless the petitioner brings himself strictly within the rules providing for relief against the prior judgment and makes out a prima facie case in the bill of review proceeding, there is clearly no abuse of discretion in denying relief from a judgment that is valid on its face, absent fundamental error. Smith v. Ferrell, 44 S.W.2d 962 (Tex.Comm’n App.1932, holding approved); Falsetti v. Lowman, 405 S.W.2d 796 (Tex. Civ.App.—Eastland 1966, writ ref’d n. r. e.). “ . . . [Bjills of review seeking relief from judgments ‘are always watched by courts of equity with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted’; and the rules are not to be relaxed merely because it may appear in some particular case that an injustice has been done.” Alexander v. Hagedorn, supra, at page 998.

Even though the decree of termination of parental rights between appellant and her child is not in the record, both parties agree that such a decree was signed by the judge of Juvenile Court Number Three of Harris County, Texas, on December 9, 1974, and that said decree became final before the petition for the bill of review was filed. We presume that the judgment was valid on its face.

There is no evidence that the judgment which terminated appellant’s parental rights resulted from accident or mistake. Likewise, there is no evidence that appellant’s signature to the “Affidavit and Waiver” was obtained by duress.

Appellant contends that she was prevented from knowing about her rights or defenses or from having an opportunity to present her defenses at the trial because the appellees withheld information about court dates, misrepresented the time the court proceedings were to commence, and continued to allow the appellant to see her child. There are several statements in the record made by appellant and her witnesses to the effect that the appellant thought or believed that only a guardianship proceeding was intended by appellees. There is however, no direct evidence that appellees ever told appellant that the affidavit she signed and the subsequent court proceedings were only for the purpose of taking out a guardianship on the child. There is no evidence that appellees ever withheld any information from appellant which they were obligated to disclose. Appellees did not tell appellant anything with respect to the parental rights termination proceedings; they were under no legal duty to inform her of such proceedings or the date of any court hearing relating thereto. There is no direct evidence that appellees misrepresented to appellant on what date the parental rights termination proceeding was to be held, or the time the proceedings were to commence.

The record does reveal that appellees allowed appellant to see the child until December 24, 1974. They did not permit her to see him after that date. However, the permission to see the child cannot constitute any form of extrinsic fraud under the circumstances of this case. Such action by appellees did not prevent appellant from knowing of a right, nor did- it prevent her from presenting a defense at the trial which terminated her parental rights to the child.

Appellant’s testimony that she did not know what she was doing when she signed the “Affidavit and Waiver”, and that she thought that she was signing an instrument in order for appellees to take out a guardianship on the child, does not raise a fact issue as to extrinsic fraud by appellees. Those personal thoughts and beliefs, do not charge appellees with fraud. They will not support an inference that appellees misled appellant in any way, nor do they form a basis for a contention that appellees prevented appellant from knowing her legal rights, or from having a fair opportunity of presenting her defenses at the trial. Moreover, appellant testified that she was capable of reading and understanding the English language, and that she did read the instrument in question at the time she signed it. There is no evidence that appel-lees fraudulently obtained appellant’s execution of the “Affidavit and Waiver” by “misrepresenting the type of instrument she was signing”, as stated by counsel for appellant in her brief.

In Hamer v. Hope Cottage Children’s Bureau, Inc., 389 S.W.2d 123 (Tex.Civ.App.—Dallas 1965, no writ), three children were declared to be neglected and dependent and were placed for adoption by decree signed on October 3, 1963. Previously thereto, on April 4, 1963, the mother of the children signed three written documents consenting to the adoption of the children. Thereafter, the mother filed a bill of review to set aside the judgment of October 3, 1963, on the ground that she had been “coerced by circumstances” into signing the consents, and that she did not read the consent documents before signing them. The trial court granted a directed verdict against the petitioner, which was upheld by the Court of Civil Appeals. In the opinion, it was noted that the defendants did not cause or create the misfortunes which prompted the mother to sign the consent documents, and it was said: “having had full opportunity to read the documents before signing them she will not be permitted to avoid the agreements on the ground that she was mistaken or ignorant of their contents”.

In the case at bar, it is conclusively shown that appellant was able to read, was capable of understanding what she had read, and did read the instrument before she signed it. Nowhere in the document is there any mention of a guardianship. It was plainly stated therein that appellant freely and voluntarily relinquished all rights to the child, and that she waived “the right to issuance, service and citation upon me in a suit to terminate the parent-child relationship between the child and me”. No language could be more explicit.

Appellant should not now be permitted to avoid the effect and consequences of her signing the document on the ground that she neither knew nor understood what she was doing when she signed it. Furthermore, if judgments are to be set aside on the ground that the party who signed a document that had a material effect on the rendition of the judgment that is attacked in a bill of review on the ground that he did not understand what he was signing, it is obvious that there would be no end to suits by the losing party after their cause had already been once adjudicated.

The general discussion of guardianship and adoption did not amount to a representation by appellees that they were seeking a guardianship of the child. The conclusions and deductions which appellant drew from the conversations with appellee do not constitute extrinsic fraud on the part of appellees. There is no evidence that appellees misrepresented anything to appellant or that any representations by them constituted extrinsic fraud which prevented appellant from knowing her rights or presenting her defenses to the action brought to terminate her parental rights to the child.

If the testimony of appellant and her witnesses with respect to what appellant thought appellees intended, or their subjective understanding of what was meant by appellees’ representations, constituted any evidence of extrinsic fraud, then, at best, such evidence amounted to no more than a scintilla, which was insufficient to raise an issue of fact. See Green v. Texas & P. Ry. Co., 125 Tex. 168, 81 S.W.2d 669 (Tex.Com.App.1935, opinion adopted); Hogue v. El Paso Products Company, 507 S.W.2d 246 (Tex.Civ.App.—El Paso 1974, writ ref’d n. r. e.); Hunter v. Carter, 476 S.W.2d 41 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ ref’d n. r. e.). Appellant’s points 1 and 4 are overruled.

Appellant’s point of error 3 asserts that the “Affidavit of Relinquishment” is void for failure to follow the requirements of Tex.Fam. Code Ann. § 15.03 (1975), thereby rendering the directed verdict improper. Specifically, appellant contends that the affidavit fails to state that it is irrevocable for 60 days, but rather states only that it is “irrevocable”. Subsection (b)(9) of the statute reads:

“(b) The affidavit must contain:
* * ⅜ * * *
(9) a statement that the relinquishment is revocable, or that the relinquishment is irrevocable, or that the relinquishment is irrevocable for a stated period of time.”

Subsection (d) of the statute provides, in part:

“ . . . Any other affidavit of relinquishment is revocable unless it expressly provides that it is irrevocable for a stated period of time not to exceed 60 days after the date of its execution.”

In the instant case, under the above-quoted provisions of the statute, the Affidavit of Relinquishment was revocable until December 9,1974, when the decree was signed which terminated appellant’s parental rights with respect to the child. See Tex. Fam.Code Ann. § 15.07 (1975). The Affidavit of Relinquishment, signed by appellant, was not void. It met the requirements of Tex.Fam.Code Ann. § 15.02(1)(I) (1975). Appellant’s point 3 is overruled.

We overrule appellant’s point 5, wherein she claims that the waiver provision of Tex.Fam.Code Ann. § 15.03 (1975) is unconstitutional because it violates Art. I, § 19 of the Texas Constitution and the 5th and 14th Amendments to the Federal Constitution. See Hamer v. Hope Cottage Children’s Bureau, Inc., supra; Catholic Charities of the Diocese of Galveston, Inc. v. Harper, 161 Tex. 21, 337 S.W.2d 111 (1960); D. H. Overmyer Co., Inc. v. Frick Company, 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964). The right to notice can be waived. It was waived in this case. The statute in question which provides for waiver of process in a suit brought to terminate the parent-child relationship is not unconstitutional.

We have also carefully considered appellant’s point 2. It has no merit, and is, accordingly, overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Peggy Ledesma ROGERS, Appellant, v. Thomas E. SEARLE et ux., Appellees.
    No. 1053.
    Court of Civil Appeals of Texas, Corpus Christi.
    Jan. 30, 1976.

      Roy T. Ahrens, Houston, for appellant.
    James G. Lempert, Houston, for appel-lees.
   OPINION

BISSETT, Justice.

This is an appeal by Peggy Ledesma Rogers from an order of the trial court that dismissed her petition in intervention which she had filed in a pending adoption proceeding. We affirm.

Thomas E. Searle and Lillian Ruth Searle, hereinafter referred to as “the Searles”, filed a petition in Juvenile Court Number Three of Harris County, Texas, to adopt the minor child, Scott Anthony Rogers. The petition was filed on January 6, 1975, and was docketed as Cause No. 1,009,-113. The Searles, among other allegations, alleged that the parent-child relationship between the mother and the child had been theretofore terminated in Cause No. 33,878, in that Court. On March 17, 1975, Peggy Ledesma Rogers, the natural mother of the child, filed a petition in intervention in the adoption proceeding. She alleged in Paragraph II thereof:

“That heretofore in Cause Number 1,010,-366, entitled Peggy Ledesma Rogers vs. Thomas E. Searle and Lillian E. Searle, in Juvenile Court Number Three of Harris County, Texas, your intervenor filed an equitable Bill of Review which sought to overturn a judgment in Cause Number 33,878 in said Court wherein Intervenor’s parental rights to the child in question were terminated and the Petitioners for Adoption were appointed managing conservators. That a final judgment has not been entered in said cause and that therefore there has been no final termination of parental rights of the natural mother of said child which would be required before an adoption lies.”

The Searles then filed a motion to strike the petition in intervention. Paragraphs I and II of the motion read, as follows:

“I.
The parental rights of PEGGY LEDES-MA ROGERS, hereinafter called Interve-nor, to SCOTT ANTHONY ROGERS, were terminated under Cause No. 33878 on or about November 12, 1974, and signed on or about December 9, 1974.
II.
Intervenor’s Equitable Bill of Review in an attempt to overturn the decree of termination was heard on or about March 6,1975, in Cause No. 1,010,366. A verdict was rendered, dismissing the Intervenor’s Equitable Bill of Review, in favor of Defendants Thomas E. Searle and Lilliam R. Searle.”

The petition in intervention was stricken by the court, and a decree which permitted the Searles to adopt Scott Anthony Rogers, hereinafter referred to as “the child”, was signed by the trial judge on March 19,1975.

Peggy Ledesma Rogers, hereinafter referred to as “appellant”, contends: 1) the trial court abused its discretion in dismissing her petition in intervention because she was a proper party to the suit, had a legal or equitable interest in its outcome, and her intervention would not have caused an unreasonable delay in the trial or undue hardship to the-parties; and 2) the trial court erred in granting the adoption of her child since her parental rights had not been finally terminated.

Rule 60, T.R.C.P. (1967), provides, in part: “Any party may intervene, subject to being stricken out by the court for sufficient cause on the motion of the opposite party . . . .”

The party who seeks to intervene in litigation that is pending in a trial court must show a legal or equitable interest such that he would be entitled to recover in his own name to the extent of relief sought; or, if he were the original defendant, he would be able to defeat recovery, in part or in whole. King v. Olds, 71 Tex. 729, 12 S.W. 65 (1888); Wilson v. County of Calhoun, 489 S.W.2d 393 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.); 44 Tex.Jur.2d, Parties, § 44. The sufficiency of the petition in intervention is tested by its allegations of fact on which the right to intervene depends, and the petition will fail if no justiciable interest, legal or equitable, is alleged therein. Mulcahy v. Houston Steel Drum Company, 402 S.W.2d 817 (Tex.Civ.App.—Austin 1966, no writ); Watkins v. Citizens’ Nat. Bank of Rockwall, 53 Tex.Civ.App. 437, 115 S.W. 304 (1908, no writ); 44 Tex.Jur.2d, Parties, § 60, § 61 (1963).

To entitle a person to intervene in a pending suit, it is incumbent upon the petitioner to show an interest in the subject matter of the litigation “. . . greater than a mere contingent or remote interest . . . Beall v. Helm, 50 S.W.2d 460 (Tex.Civ.App.—Fort Worth 1932, writ dism’d). The right to intervene is subject to wide discretion by the trial court in judging the sufficiency of an opposing party’s motion to dismiss the petition of the inter-venor. Armstrong v. Tidelands Life Insurance Company, 466 S.W.2d 407 (Tex.Civ.App.—Corpus Christi 1971, no writ); Roberson v. Roberson, 420 S.W.2d 495 (Tex.Civ.App.—Houston [14th Dist.] 1967, writ ref’d n. r. e.); Jones v. English, 235 S.W.2d 238 (Tex.Civ.App.—San Antonio 1950, writ dism’d). In testing the sufficiency of the facts alleged by the petitioner in the petition for intervention, the facts so alleged should be construed along with the allegations of fact set out in the pleadings of the person who resists the petition in intervention. Schnick v. Morris, 24 S.W.2d 491 (Tex.Civ.App.—Beaumont 1929, writ ref’d).

No statement of facts is before us in this appeal, our Cause 1053. In that condition of the record, ordinarily we would be required to presume that there was sufficient evidence to support the judgment of the trial court. That would require an af-firmance of the judgment. However, at all times pertinent to this appeal there has also been pending in this Court an appeal in our Cause No. 1052, styled “Peggy Ledesma Rogers v. Thomas E. Searle and Lillian Ruth Searle”, from the Juvenile Court Number Three of Harris County, Texas. That case and this case are somewhat connected and related. The appellant has requested that we take judicial notice of the record in said Cause No. 1052 in disposing of the instant appeal. We do so. Buckner Orphans Home v. Berry, 332 S.W.2d 771 (Tex.Civ.App.—Dallas 1960, writ ref’d n. r. e.); Fey v. Woods, 229 S.W.2d 923 (Tex.Civ.App.—Dallas 1950, writ ref’d); Cook v. Wilmeth, 166 S.W.2d 359 (Tex.Civ.App.—Eastland 1942, no writ).

All proceedings in the trial of the two cases which have been appealed were in Juvenile Court Number Three of Harris County, Texas. The parent-child relationship between appellant and the child was terminated by judgment of that court in its Cause No. 33,878, which was signed on December 7, 1974. In that proceeding, the appellant executed an affidavit of relinquishment of her parental rights and a waiver of citation in September, 1974. She filed a petition for a bill of review after the December 7, 1974 judgment became final wherein she claimed that her signature to the affidavit and waiver was procured by extrinsic fraud on the part of the Searles. That action was docketed as Cause No. 1,010,366. Trial was to a jury. On March 7, 1975, at the conclusion of appellant’s evidence, and after the Searles had moved for a directed verdict, the judge announced from the bench: “The Court denies the Bill of Review”. The judgment of dismissal was signed on April 3, 1975. That judgment was appealed, and the appeal is numbered 1052 in this Court. The judgment of the trial court has been affirmed by this Court in an opinion this day handed down.

The judgment which terminated the parent-child relationship between appellant and the child was signed before the Searles filed their petition for adoption and before appellant filed her petition in intervention in the adoption proceeding. The petition in intervention was filed after the trial court had announced from the bench that appellant’s petition for a bill of review was denied. Appellant did not offer any evidence in the trial court in support of the allegations made in her petition in intervention. The statements made by the Searles in their motion to strike the petition in intervention were not challenged or refuted by appellant in the trial court.

Tex.Fam.Code Ann. § 15.07 (1975), provides, in part:

“A decree terminating the parent-child relationship divests the parent and the child of all legal rights, privileges, duties, and powers, with respect to each other

Applying the rule of the statute to this case, all legal rights, privileges, duties and powers of appellant concerning the child were divested out of her on December 9, 1974, when the judgment in Cause No. 33,-878 was signed.

As a general rule, an intervenor is bound by the record as it exists at the time the petition in intervention is filed. Lynn County School Board v. Garlynn Common County Line School Dist., 118 S.W.2d 1070 (Tex.Civ.App.—Amarillo 1938, writ ref’d). In the case at bar, appellant did not have any parental rights to the child on March 17, 1975, when she filed her petition in intervention in the adoption proceedings. The plea in intervention could not be considered in the adoption proceedings until the judgment which terminated appellant’s parental rights was set aside. McLennan County v. American National Insurance Company, 457 S.W.2d 597 (Tex.Civ.App.—Waco 1970, writ ref’d n. r. e.). The mere filing of a petition for a bill of review does not affect the rights, liabilities and status that were established by the December 9, 1974 judgment. The possibility that a judgment previously entered may be set aside, and a new judgment, based on the evidence heard on the bill of review, might be entered, does not destroy the finality of the prior judgment.

In the case at bar, appellant’s petition must fail since she has not alleged a present justiciable interest, legal or equitable, in the subject matter of the litigation. The adoption proceeding should not be held in abeyance until the outcome of appellant’s bill of review is finally determined.

Appellant, not having a present legal or equitable-interest in the adoption proceedings, is not a proper party thereto. She has no interest to protect. The trial court correctly granted the motion to strike the petition in intervention. No abuse of discretion is shown. All of appellant’s points of error are overruled.

The judgment of the trial court is affirmed.


author: SPURLOCK, Justice.

text:
    Bobby Ray STEPHEN, Appellant, v. Nell Ruth COLEMAN, Independent Executrix of Estate of Dewey Lee Stephen, Deceased, Appellee.
    No. 17684.
    Court of Civil Appeals of Texas, Forth Worth.
    Jan. 30, 1976.
    Rehearing Denied March 5, 1976.

      Huey P. Mitchell, Fort Worth, for appellant.
    Roger M. Norman, Fort Worth, for appel-lee.
   OPINION

SPURLOCK, Justice.

This' is a will contest ease in which Nell Ruth Coleman is the proponent and Bobby Ray Stephen is the contestant. Trial was before the court and resulted in the will being admitted to probate. Findings of fact and conclusions of law were filed.

The findings of fact and a conclusion of law summarized below were each attacked on the grounds that they were erroneous because they were against the greater weight of the evidence before the court in that the testator did not have the requisite testamentary capacity when he executed the will.

The findings of fact are: (1) the application to probate complied with the law; (4) the testator was of sound mind at the time he executed his will; and (5) at the time he executed the will he did so with the formalities and solemnities, and under the circumstances required by law to make it a valid will.

The conclusion of law is: (1) that said will was entitled to be admitted to probate.

The Court will first analyze the applicable law and then summarize the evidence.

In Lee v. Lee, 424 S.W.2d 609 (Tex.Sup., 1968) that court held that: “The proper inquiry in a will contest on the ground of testamentary incapacity is the condition of the testator’s mind on the day the will was executed. . . . (Citing authorities.)” That court further stated that the testator’s mental condition on the date the will was executed may be determined from lay opinion testimony based upon the witnesses’ observations of testator’s conduct either prior or subsequent to the execution. That court further stated: “However, only that evidence of ineompetency at other times has probative force which demonstrates that that condition persists and ‘has some probability of being the same condition which obtained at the time of the wills making. * * * ’ 1 McCormick & Ray, Texas Law of Evidence § 896, at 675 (2d ed. 1956); Annot. 168 A.L.R. 969 (1947).”

In Farmer v. Dodson, 326 S.W.2d 57 (Dallas Civ.App., 1959, no writ hist.) that court stated: “Courts and juries can go no further than to determine whether the testator’s mental capacity measures up to the standard set by the law. Though a testator may be aged, infirm, and sick he has the right to dispose of his property in any manner that he may desire if his mental ability meets the law’s tests. It is not for courts, juries, relatives, or friends to say how property should be passed by will, or to rewrite a will for a testator because they do not believe he made a wise or fair distribution of his property. (Citing authorities.)”

The general rule is that when a person had been convicted on a general conviction for insanity and a guardian had been appointed for the lunatic’s estate, rendered by a court of competent jurisdiction with full power in the premises, such insanity so determined to exist was presumed by law to continue until the status of such person was changed by subsequent judgment of the County Court in a proceeding authorized for that purpose under the statutes. Bogel v. White, 168 S.W.2d 309 (Galveston Civ.App., 1942, ref. want merit).

In Clement v. Rainey, 50 S.W.2d 359 (Texarkana Civ.App., 1932, ref.) that court held that one, who in a lunacy proceeding has been adjudicated to be of unsound mind, is not necessarily incompetent to make a will. That court stated: “The most that can be contended for on account of the adjudications is that they prima facie establish that the testator was not competent to make the will.”

In Prather v. McClelland, 76 Tex. 574, 13 S.W. 543 (1890) that court stated that by the term “testamentary capacity” is meant that the person at the time of the execution of the will had sufficient mental ability to: (1) understand the business in which he was engaged (the act of making a will); (2) understand the effect of his act in making the will; (3) understand the general nature and extent of his property; (4) know his next of kin and natural objects of his bounty, and their claims upon him; and (5) collect in his mind the elements of the business to be transacted, and to hold them long enough to perceive at least their obvious relation to each other, and to be able to form a reasonable judgment as to them.

A shorter definition is more frequently used. See Anderson v. Clingingsmith, 369 S.W.2d 634 (Fort Worth Civ.App., 1963, ref., n. r. e.); Farmer v. Dodson, supra; Comment, Texas Estate Administration, State Bar of Texas (1975) Sec. 4.27 at page 204, and cases there cited.

We will now examine the entire record to determine whether or not the court’s findings of fact made the basis of the judgment were against the greater weight and preponderance of the evidence so as to be manifestly unjust and unfair, and if the conclusion of law was erroneous.

The will executed by the testator is dated December 27, 1974. It is duly witnessed by three employees of the attorney who prepared the will. It is properly signed by the testator. It is a self-proving will. It contains all the information necessary and complies with the requirements of the Probate Code in all particulars. It appoints Nell Ruth Coleman, Independent Executrix. It then bequeaths to the contestant, his step-son, $10.00, and to two daughters and two sons $10.00 each. It devises and bequeaths all of the rest and residue of the estate to the testator’s mother, Gracie Hodge. It provides for an independent administration of the estate.

The contestant relies upon the cross-examination of proponent’s witnesses and the testimony of Dr. Ashiru, Helen Ollie, Joseph Stephen, Nell Ruth Coleman, Geoffrey Braun, Bobby Ray Stephen, Archie Campbell, Theodore Coleman, Patricia Stephen, Evelyn Hayes, Ramon C. Triggs, Sharron Elaine Stephen, and Jacqueline Shackle-ford, and the records of the Veteran’s Administration Hospital in Dallas, and the proceedings in a guardianship which will be hereinafter referred to.

In brief summary form this evidence reflects that deceased was seeing a Fort Worth doctor who had him admitted into a hospital in Fort Worth and diagnosed his condition as a brain tumor. He was then transferred to the VA hospital in Dallas where he was given radiation and other treatments. Various witnesses who visited him in the hospital observed that at times he had difficulty in recognizing them; that he was given medication while in the hospital that blurred his mental faculty, at times he would forget names; the doctor, who had not seen the patient, testified in response to hypothetical questions that the patient was suffering from brain cancer and the common symptoms were headaches, nausea, vomiting, possible blindness, and clouding of consciousness, memory impairment, lucid intervals, and hearing problems. He did not know whether the testator suffered from any of these symptoms and effects of this disease but this is what you could expect from a person suffering from cancer of the brain; that the testator had forgotten that he had ordered his step-son to change the locks on the testator’s residence; that leaving the children $10.00 each was entirely inconsistent with his lifestyle and dealing with his children; there was a letter in the guardianship proceedings from a VA doctor stating that in his opinion the testator was “incompetent to handle his personal affairs.” The same doctor, by letter of December 17, 1974, stated that because his death was unpredictable that he provided the above information because “I do not know whether or not he was mentally capable of understanding what he was doing since I did not specifically evaluate this aspect of his condition. At the request of his sister, I asked for Psychiatric Consultation to determine mental competency or incompetency, but he died before this could be obtained.”

The VA hospital records reflect that the testator was first admitted to the VA hospital on September 25,1972. At that time on VA form 10-10, in answer to question No. 10, the testator stated: “I designate the following person or persons, in the order listed, to receive possession of all my personal property left on the premises under the control of the VA after leaving such place or at the time of my death.” In answer to this question he listed Gracie Hodge, his mother, this being the same person to whom he left the bulk of his estate. He also listed her address and phone number. On this admission his condition was officially listed as Cholelithiasis (removal of gallstones through a surgical procedure). At that time he was perfectly normal, was discharged from the hospital and returned home. This is significant because at a time when there was no question about his being in his right mind and being admitted to the hospital on this prior occasion for a rather simple procedure he wanted his mother to have the property indicated above.

He was readmitted to the VA hospital on October 13, 1974, and the VA records show that he attended to collecting his insurance, signed all the necessary forms and gave information concerning credit insurance so his monthly payments to creditors would be paid by insurance. The record showed he was well oriented but lethargic. By notes dictated by the doctor on December 1,1974, the record reflects that he could go home or be attended elsewhere with the use of nursing care. On date of December 2,1974, the record reflects he finished his radiation treatment and could be discharged. Through December the record shows that he was given codeine when his pain became severe. The rest of the time he was given a very mild sedation for mild pain called Tylenol. The records show that on December 23, 1974, he was given a 4-day Christmas pass and returned on December 27, 1974, at 1:30 P.M., at which time he was ambulatory and stated he enjoyed the Christmas pass very much. He was given no medication on that day until 11:00 P.M., when at his request, he was given a mild sedation to induce sleep. By note of January 1, 1975, it was noted that he was confused at times but was ambulatory. He died January 5, 1975.

In response to contestant’s claim that he did not know his son, the contestant, evidence was adduced to show that the reason he referred to the contestant as his step-son was that the contestant was born while the testator was in military service and stationed overseas.

The record reflects that the contestant, on December 11,1974, filed an application to be appointed guardian of the person and estate of testator because there was income to the ward and incoming bills that needed to be paid and that the testator was in the Veteran’s Hospital and was therefore incompetent to handle his affairs. This application was granted on December 30, 1974, after being heard before the same judge who heard the application to probate the will at a subsequent time. Therefore, there was no adjudication that the testator was incompetent on the date that the will was signed. It follows then that there was no presumption that the testator did not have testamentary capacity on the date he signed the will.

There was nothing in the VA records to indicate that the testator was of unsound mind. The absence of this condition (unsound mind) in the records of the hospital can be relied upon by the court as evidence and proof of the non-existence, of that condition. Art. 3737e, Sec. 3, V.A.T.S. (Business Records Act).

In summary form the evidence relied upon by the proponent on each of the five elements concerning testamentary capacity is as follows:

(1) Sufficient mental ability to understand the act in which the testator was engaged:

The testimony of Michael Kensel, attorney, that the testator came to his office on December 26, 1974, and discussed the terms of a will that he desired. On that occasion he appeared to be a person possessing average mental capacity, he told his attorney how he wanted to dispose of his property and told him the nature of his property and referred to the contestant as his step-son. He returned to the office by appointment the next day and read the will and the attorney read the will to him, that he noticed the misspelling of his mother’s name and had the attorney correct it and he initialed the correction. The will was signed with all the formalities required by law; the testator came to his office unassisted and ambulatory and was perfectly coherent.

Theodore Coleman testified that the testator had discussed the will with him prior to making a will and had also discussed it with him while the testator was still in the hospital.

(2) Sufficient mental ability to understand the effect of his act in making the will:

Michael Kensel also testified to the correction in the spelling of a name as indicated above, that the testator supplied names and addresses and correctly spelled names of the beneficiaries; stated that testator did not wish to have any specific bequest except those indicated in the will and wanted the bulk of his estate to go to his mother.

Theodore Coleman also testified that the testator discussed who his heirs were, knew who they were, their names, and that he wanted his mother to have the property.

(3)Sufficient mental ability to understand the general nature and extent of his property:

The contestant, Bobby Ray Stephen, testified that the testator knew he owned a house in the Rolling Hills Addition, and its contents, and that he was buying the house from American General Investment of Houston, Texas, who had the mortgage on the house; this and an automobile is all he owned. He knew that his son, Joe, had the automobile.

W. G. Daniels testified that he visited the testator two days after Christmas and the testator told him that his son, Joe, had his automobile; the testator knew the names of the deacons in his church, and was logical in his conversation.

Gracie Hodge testified that testator, at the time of the execution of the will, did carry on a decent and logical conversation; that testator knew he owned a house and knew that he was sick. He was also distressed because the contestant had locked him out of his house and he did not have access to his house during the Christmas holidays.

Helen Ollie testified that the testator had discussed with her some back pay to which he was entitled.

Michael Kensel, attorney, testified that the testator advised him fully of what he wanted in the will and how he wanted his property disposed of. In addition thereto he requested and obtained a power of attorney so that Mrs. Coleman could tend to his business affairs while he was in the hospital.

Archie Campbell talked to testator on the 26th of December, 1974, and in response to questions by the testator about how he could obtain the keys to his house, advised him to go to the courthouse and get an attorney to help him get into his house.

Nell Ruth Coleman testified that she had an extensive discussion with the testator about how to gain access to his house; that the testator wanted a power of attorney so someone could look after his house, and have the locks changed so he would have access to his own home.

(4) Sufficient mental ability to know his next of kin and the natural objects of his bounty, and their claims upon him:

The contestant testified that his father recognized him every time he went in to see him, that he knew his children, that between Christmas, 1974, and the date of his death, he recognized his children.

W. G. Daniels testified that the testator knew his son, Joe, and that he was in the military service and had the testator’s automobile, and that he knew his youngest daughter was in the Job Corps.

Testimony of like import came from Grade Hodge, Dewey Stephen, Sr., Helen Ollie, and Michael Kensel, and Nell Ruth Coleman.

(5) Memory sufficient to collect in his mind the elements of the business to be transacted and to hold them long enough to perceive at least their obvious relation to each other, and to form a reasonable judgment as to them:

Michael Kensel, the attorney who prepared the will, said the testator had as much mental capacity as the average person he deals with in preparing a will. He was doing so well that I accused him of staying in the hospital under false pretenses. He showed no signs of having mental incapacity on the date the will was signed. His judgment was good and he noticed no impairment in his memory. He was mentally capable of making a will and was fully aware of what he was doing. He was not physically fit but was mentally fit. He was perfectly mentally competent to make a will and to fully appreciate what he was doing.

The record further reflects that the testator made a trip to the office of Tom Rumph, an attorney, who offices near the courthouse, in order to get him to make a will, but the office was closed because of the Christmas holidays. He then attempted to find other lawyers and then called Lowell Dushman who referred him to Michael Kensel with whom he made an appointment and who prepared the will and attended to the signing and witnessing of the will.

As indicated above the same trial judge who heard the application for the guardianship also heard the application for the probate of the will and the contest thereof.

It was the province of the trier of the facts to judge the credibility of the witnesses and the weight to be given their testimony, and to resolve conflicts and inconsistencies in the testimony of any one witness as well as the testimony of different witnesses or to believe one witness and disbelieve another, or to believe part of the testimony of the witness and disbelieve any other part. Hammond v. Stricklen, 498 S.W.2d 356 (Tyler Civ.App., 1973, ref., n. r. e.).

The Court of Civil Appeals, when affirming a case in which sufficiency of the evidence points are involved, is not required to set out the evidence pro and con on the issues. Hammond v. Stricklen, supra.

We have carefully considered each point of error and each is overruled.

We hold that the findings of fact filed by the court were not against the greater weight and preponderance of the evidence so as to be manifestly unjust and unfair. The evidence was sufficient to support such findings. The court’s conclusion of law was not erroneous. The action of the trial court in admitting the will to probate was not erroneous, factually or legally.

The judgment is affirmed.


author: SHANNON, Justice.

text:
    B. K. Harwell HORNE, Appellant, v. J. A. HARWELL, Appellee.
    No. 12,378.
    Court of Civil Appeals of Texas, Austin.
    Feb. 4, 1976.
    Rehearing Denied Feb. 25, 1976.
    Stephen M. Orr, Austin, for appellant.
    Tommy P. Herring, Waco, for appellee.
   SHANNON, Justice.

Appellant, B. K. Horne, has appealed from the judgment of the district court of Travis County which appointed appellee, J. A. Harwell, possessory conservator of his minor child with specific times for access to the child. We will affirm that judgment.

Appellant and appellee were divorced by order of the district court of Travis County on April 16, 1973. In the divorce judgment appellant was awarded custody of their seventeen month old daughter, Amber A. Har-well. By the terms of the divorce judgment, appellant’s custody of the child was “. . . not subject to the right of reasonable visitation in the Respondent [appel-lee] and that Respondent has no right of visitation subject to further orders of this Court.”

In January of 1975, appellee filed a motion to modify the 1973 divorce judgment. In that motion, inter alia, appellee sought to be named possessory conservator of the child and to receive from the court a schedule for specific access to the child. Appel-lee claimed in the motion “. . . that because of a substantial and material change of circumstances the best interest of the child will be served by modification of this order [the judgment of divorce].”

After hearing, the court entered judgment in which it was recited that “. the circumstances have materially and substantially changed since the entry of the Order sought to be modified [the judgment of divorce] and that the best interest of the child would be served by modifying the original order . . .” The judgment then provided a schedule of time during which appellee would have access to the child.

Upon request, the district court filed findings of fact and conclusions of law. The court found that there had been “. a substantial and material change of circumstances and that the best interest of the minor child, Amber A. Harwell, will be served by a modification of the original Divorce Decree . . .” The court then listed the “changed” circumstances.

The court concluded that appellee’s motion to modify alleged that the circumstances of the child had materially and substantially changed since the entry of the original order. The court was of the further opinion that the said allegation met all of the requirements of the Texas Family Code, and that appellant had not specially excepted to the form of that allegation in appellee’s motion.

Appellant attacks the fact findings, the conclusions of law, and the judgment by seven points of error. Four points of error relate to the requirement that a motion to modify a prior order allege and the court find that the circumstances of the child have materially and substantially changed since the time of the entry of the order sought to be modified.

Texas Family Code Ann. § 14.08 (1974) provides in part as follows:

“(a) Any party affected by an order of the court . . . setting the terms and conditions for possession of or access to a child, may file a motion requesting the court to modify its former order. The motion shall allege that the circumstances of the child have materially and substantially changed since the entry of the order sought to be modified, set forth the alleged circumstances, and be sworn to by the party seeking modification. (Emphasis added)
“(c) After a hearing and on a finding that the circumstances of the child have materially and substantially changed and that modification is in the best interest of the child, any order or part of an order may be modified . . . ” (Emphasis added)

Section 14.08(a) and (c) requires that a party seeking a modification of an order providing for access to a child both plead and prove that the circumstances of the child have materially and substantially changed since the entry of the former order. Howard v. Pullicino, 519 S.W.2d 254 (Tex.Civ.App.1975, no writ).

In our view, appellee did not comply with § 14.08(a) by pleading that the circumstances of the child had materially and substantially changed since the entry of the judgment of divorce. Appellant, however, could have required compliance by filing a special exception to that allegation in appel-lee’s motion. As in other pleadings, appellant, by failing to except to the motion, waived her right to complain of appellee’s non-compliance. Tex.R.Civ.P. 90.

By appropriate points appellant complains that appellee did not comply with § 14.08(c) by proving that the circumstances of the child had materially and substantially changed since the entry of the divorce judgment. Appellant claims that the court’s finding that there had been such a change was supported by no evidence, or alternatively, the finding was so contrary to the great weight and preponderance of the evidence so as to be manifestly unjust.

As previously written, the court listed seven “material and substantial” changes of circumstances. Of those seven, only one represents a change in the circumstances of the child. That finding reads, “that at the time of the granting of the original Divorce Decree the child, Amber A. Harwell, was seventeen months old and that at the time of the filing of the motion to modify the child had attained the age of 3 years and 4 months.”

The change of age of the child, under the circumstances of this record, warranted a modification of the former order to permit the father access to the child. As stated by the district court, Amber A. Harwell was seventeen months of age at the time of the entry of the divorce judgment. Appellant and the child lived in Austin, and appellee did not. The proper place for an infant of seventeen months is in and about its nursery. It is fair to assume that appellee would have been ill equipped to care for an infant of seventeen months away from the nursery. At that age, the child probably would not have benefited much from visits from its father. To the contrary, Amber was nearly three and one-half years of age at the time of the filing of the motion to modify. A child of that age may derive emotional and intellectual benefit from the company of its father. Also, a child of that age has usually developed such habits so as to enable it to remain away from home for short periods of time.

Appellant also complains of the refusal of the district court to adjudge appel-lee “. . .in contempt of court for the amount of back child support represented by a money judgment . . . ” The order of the district court denying the contempt is not appealable. Hamborsky v. Hamborsky, 497 S.W.2d 405 (Tex.Civ.App. 1973, no writ); Blair v. Blair, 408 S.W.2d 257 (Tex.Civ.App.1966, no writ); Gierczic v. Gierczic, 382 S.W.2d 495 (Tex.Civ.App.1964, no writ).

The judgment is affirmed.


text:
    SUB-SURFACE CONSTRUCTION COMPANY et al., Appellants, v. BRYANT-CURINGTON, INC., et al., Appellees.
    No. 12356.
    Court of Civil Appeals of Texas, Austin.
    Feb. 4, 1976.
    Rehearing Denied March 3, 1976.

      Charlie D. Dye, Scott R. Kidd, Brown, Maroney, Rose, Baker & Barber, Austin, for appellants.
    Douglass D. Hearne, Stayton, Maloney, Hearne & Babb, Austin, for Bryant-Curing-ton, Inc.
    Leonard L. Gorin, Clark, Fisher, Gorin, McDonald & Ragland, Waco, for Aqua Water Supply Corp.
   SHANNON, Justice.

This is an appeal from the judgment of the district court of Travis County dismissing a declaratory judgment action for want of jurisdiction.

Appellant, Sub-Surface Construction Company, filed a declaratory judgment action in the district court of Travis County against appellee Aqua Water Supply Corporation and appellee Bryant-Curington, Inc. Appellant, Robintech, Incorporated, filed a petition in intervention. Appellee Bryant-Curington, Inc., responded to the suit by filing a plea to the jurisdiction. Appellee Aqua Water Supply Corporation filed a plea of privilege to be sued in the county of its residence, Bastrop County. In addition, Aqua Water Supply Corporation asserted in its answer that the district court had no jurisdiction or authority to enter an order granting the relief appellants sought.

In this opinion Sub-Surface Construction, Inc., and Robintech, Inc., will be referred to as “Sub-Surface” or “appellant” and “Ro-bintech.” Appellees Bryant-Curington, Inc., and Aqua Water Supply Corporation will be labeled “Bryant-Curington” and “Aqua Water.”

After the hearing the court entered judgment sustaining the plea to the jurisdiction and dismissing appellants’ declaratory judgment action. We will affirm that judgment.

In 1970, appellant Sub-Surface entered into a written contract with appellee Aqua Water to construct a water supply and distribution system which was to be located in Bastrop and Travis Counties. The plans and specifications for the system were prepared by appellee, Bryant-Curington. Appellant Robintech was not a party to the contract, but it did supply pipe for use in the system as well as the glue used in cementing together the joints of the pipe.

The contract provided that upon completion and acceptance of the work, the engineer would'issue a certificate of completion and acceptance. Sub-Surface undertook the construction of the water system, and Aqua Water made payments to it less re-tainage.

In its trial petition Sub-Surface claimed that it had substantially complied with the contract to construct the water system according to the plans and specifications, and that it had also performed maintenance work on the system in accordance with the contract. Pursuant to the contract SubSurface called for a final inspection of the work, but Bryant-Curington refused to issue its certificate that the work had been completed and further refused to inform appellant in what respect the work was incomplete. Sub-Surface claimed that Aqua Water Supply ratified the refusal of Bryant-Curington to issue the certificate of completion, and, as a result, both appellees were in breach of the contract in that respect.

Sub-Surface declared further that Aqua Water, outside of the procedures called for in the contract, made demand upon it to perform many items of work in the system, and that it had complied with those demands. Sub-Surface also alleged that Bryant-Curington prepared the specifications for the water system knowing that contractors would submit bids for the construction of the system based upon its specifications and based upon the belief that the specifications were satisfactory to the owner. Sub-Surface maintained that its work on the system was in accordance with the specifications prepared by Bryant-Curing-ton. The failure of the system to function, pleaded Sub-Surface, was due to the negligence of Bryant-Curington in the formulation of the design of the water system. Sub-Surface then pleaded that Bryant-Cur-ington was liable to Aqua Water for any damages sustained by Aqua Water, and “. . .in the unlikely event that plaintiff [Sub-Surface] has any remote liability to defendant, Aqua Water Supply Corporation, then defendant, Bryant-Curington, Inc., is liable in a like sum to plaintiff [Sub-Surface] by way of indemnity, or in the alternative, plaintiff seeks contribution from defendant, Bryant-Curington, Inc.”

Finally in its prayer for relief, appellant prayed that the court “. . . declare the rights, duties and obligations of the parties, including a declaration that plaintiff [Sub-Surface] is not liable to defendant, Aqua Water Supply Corporation, or, in the alternative, that judgment be entered for defendant Aqua Water Supply Corporation, for such damages as the court may find and in favor of plaintiff for indemnity or contribution against defendant, Bryant-Curing-ton, Inc. . . .”

In its trial pleading Robintech alleged that it manufactured and supplied the pipe used by Sub-Surface in the water system, and that such pipe conformed to the requirements of the plans and specifications prepared by Bryant-Curington. Robintech sought to have the court declare it had supplied pipe and materials of good and workmanlike quality in conformance with the plans and specifications. Robintech also sought a declaration that the pipe and materials were not defective and that it “. . . does not have and will not have any liability to defendants on the project in question for any reason. Or in the alternative, and in the unlikely event the court finds that [Robintech] is liable to defendant, Aqua Water Supply Corporation, for any sums, then, and in that event, [Robintech] seeks a judgment over against defendant, Bryant-Curington, Inc., for indemnity or, in the alternative, contribution for the reason that all materials supplied by [Robintech] were supplied pursuant to plans and specifications prepared by defendant, Bryant-Cur-ington, Inc.”

The evidence at the hearing showed that after the pipeline was laid as many as 1500 leaks were discovered in the line. There was testimony that the leaks were caused by glue burns that resulted from an improper application of the glue to the pipe joints. Sub-Surface maintained a crew of men on the job to repair the leaks as discovered. The testimony was that the leaks had begun at the time of the installation of the pipeline and had continued up until the time of the hearing. There was no way to know at the time of the hearing whether all of the leaks had been discovered. There was testimony that many gallons of water had been lost through the leaks in the pipeline. One of the expert witnesses testified that he, as an engineer, would not have certified to Aqua Water that the system, as built by Sub-Surface, had been completed in a good and workmanlike manner according to the contract, and that he would not have paid Sub-Surface.

As previously written, the judgment sustained appellees’ pleas to the jurisdiction and dismissed the cause.

Appellants attack the judgment by one point of error contending that the district court “. . . erred in sustaining the appellees’ pleas to the jurisdiction and thereby dismissing the ease because there existed a justiciable controversy between the parties.”

Texas Rev.Civ.Stat.Ann. art. 2524-1 provides in part as follows:

“Section 1. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.
“Sec. 2. Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a Statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, Statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.
“See. 6. The Court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.”

A justiciable controversy must exist before the trial court has jurisdiction to grant any relief, declaratory or otherwise. Stated in other terms, Article 5, § 8 of the Constitution does not empower the trial court to render advisory opinions. Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933), California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960), United Services Life Insurance Co. v. Delaney, 396 S.W.2d 855 (Tex.1965), Firemen’s Ins. Co. of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Tex.1968). It follows that if a justiciable controversy exists, the trial court has jurisdiction to entertain the declaratory judgment action, and that the declaratory relief subsequently granted is not advisory. Anderson v. McRae, 495 S.W.2d 351 (Tex.Civ.App.1973, no writ).

To constitute a “justiciable controversy” for declaratory judgment purposes, there must be a real and substantial controversy involving a genuine conflict of tangible interest, rather than a theoretical one. Laborers’ Int. U. of N. A., Const., etc. v. Blackwell, 482 S.W.2d 327 (Tex.Civ.App.1972, no writ), Phillips Petroleum Company v. Bivins, 423 S.W.2d 340 (Tex.Civ.App.1967, writ ref’d n. r. e.), Anderson v. McRae, supra.

A justiciable controversy, a genuine conflict of tangible interests, existed between Sub-Surface and Aqua Water. From the pleadings and the evidence it is seen that Sub-Surface claimed to have completed the contract according to the plans and specifications and sought the certificate of completion to that effect. Aqua Water, to the contrary, maintained that Sub-Surface had not done the work under the contract and, as a result, was not entitled to the certificate of completion. It follows that the district court had jurisdiction to grant the declaratory relief sought by Sub-Surface with respect to Aqua Water.

There was no justiciable controversy between appellants and appellee Bryant-Curington. A conflict of interest between appellants and Bryant-Curington was but a possibility, premised upon their potential future liability to Aqua Water. Firemen’s Ins. Co. of Newark, New Jersey v. Burch, supra. There being no justiciable controversy between appellants and Bryant-Cur-ington, the district court was without jurisdiction to enter the declaratory relief sought with respect to Bryant-Curington.

Though a district court has jurisdiction to grant declaratory relief, nevertheless, the court may refuse to enter a declaratory judgment where such judgment, if entered, would not terminate the uncertainty or controversy giving rise to the proceeding. Tex. Rev. Civ. Stat.Ann. art. 2524-1, § 6. Section 6 does no more than embody the established practice in Anglo-American jurisdictions and indicates both the practical and the remedial scope and limitations of declaratory relief. Borchard, Declaratory Judgments, 293 (2nd Ed. 1941). In Texas, this principle is usually expressed in terms that the Declaratory Judgment Act was not intended to provide for the “piecemeal” trial of a lawsuit. United Services Life Insurance Co. v. Delaney, supra, Harding Bros. Oil and Gas Co. v. Jim Ned Ind. Sch. Dist., 457 S.W.2d 102 (Tex.Civ.App.1970, no writ), Joseph v. City of Ranger, 188 S.W.2d 1013 (Tex.Civ.App.1945, writ ref’d w. o. m.).

In the case at bar, had the district court entered the requested declaratory judgment, that judgment would not have ended the controversy between the parties. Issues left unresolved would concern the liability for the loss of water from the time the system was put in use, the liability for final payment of the retainage, and liability for the cost of the repairs to the system.

We will affirm the judgment upon the basis that the district court had no jurisdiction to grant declaratory relief with respect to Bryant-Curington. The affirmance is also upon the basis that, although the court had jurisdiction to grant declaratory relief with respect to the conflict between SubSurface and Aqua Water, the court properly refused to enter declaratory relief since that relief would not terminate the controversy between Sub-Surface and Aqua Water.

The judgment is affirmed.

Affirmed.


author: AKIN, Justice.

text:
    George K. SMITH, County Auditor, County of Dallas, Appellant, v. Curtis C. McCOY et al., Appellees.
    No. 18831.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 5, 1976.

      Henry Wade, Dist. Atty., Wm. F. Den-man, Jr., Asst. Dist. Atty., Dallas, for appellant.
    Frank P. Hernandez, Dallas, for appel-lees.
   AKIN, Justice.

This is an appeal from a judgment directing the issuance of a writ of mandamus ordering George K. Smith, Dallas County auditor, to approve payment to three sheriff’s deputies, as directed by the commissioners court of Dallas County, for time suspended from duty.

Appellees, Curtis C. McCoy, C. G. St. Clair and Harvey E. Dillion were employed as deputy sheriffs under the supervision of Clarence Jones, sheriff of Dallas County. On July 31, 1974, the sheriff temporarily suspended appellees. On March 13, 1975, the sheriff requested that appellees be paid back wages for the time suspended and reinstated appellees on March 16, 1975. The auditor refused to approve payment because he considered the payment illegal; nevertheless, the commissioners court on May 27,1975, ordered payment. Again, the auditor refused to approve the payment. Appellees then applied to district court for a writ of mandamus to compel the auditor’s approval. After a hearing, the trial court ordered a writ of mandamus to be issued. The auditor appeals.

The auditor contends that mandamus will not lie because: (1) approval or disapproval of the claim by the auditor was a discretionary act rather than a ministerial act; and (2) appellees failed to sustain their burden of proof to show that the auditor abused his discretion because they failed to prove that they had a clear legal right and that the auditor had a clear legal duty to perform. We agree with appellant’s contentions and, therefore, reverse the order of the trial court and render judgment denying the writ.

1. Discretionary or Ministerial Act

Appellees argue that the order of the commissioners court established the validity of their claims and, therefore, the approval of the auditor is merely ministerial. This is true, appellees contend, because Tex.Rev. Civ.Stat.Ann. art. 2351(10) (Vernon 1971) provides that a commissioners court shall “[ajudit and settle all accounts against the county and direct their payment.” See also Tex.Const. art. 5, § 8.

We cannot agree. There are decisions to the effect that an order of the commissioners court, while acting in a proceeding in which the court has jurisdiction, is a judgment of a court of record. Ashburn Bros. v. Edwards County, 58 S.W.2d 71, 73 (Tex.Comm’n App.1933, jdgmt. adopted). However, the approval of the auditor is a condition precedent to the exercise of the commissioners court’s authority to order payment of claims. Anderson v. Ashe, 99 Tex. 447, 90 S.W. 872, 873 (1906); Lovell v. Bynum, 315 S.W.2d 20, 22 (Tex.Civ.App.—Austin 1958, writ ref’d n. r. e.). Since the auditor had not approved appel-lees’ claim, the May 27 commissioners court’s order directing payment was void. Wyatt Metal & Boiler Works v. Lipscomb, 87 S.W.2d 331, 332 (Tex.Civ.App.—Texarkana 1935, writ ref’d).

This is true because article 1660 dictates that “[n]o claim, bill or account shall be allowed or paid until it has been examined and approved by the county auditor.” [Emphasis added.] Article 1661 states that the county auditor “shall not audit or approve any claim unless it has been contracted as provided by law . .” [Emphasis added.] Moreover, Tex.Rev.Civ.Stat.Ann. art. 1651 (Vernon 1962) mandates that the county auditor “shall see to the strict enforcement of the law governing county finances.” [Emphasis added.] The language of these statutes is mandatory. They impose on the auditor the responsibility, before approving a claim, to determine whether it strictly complies with the law governing county finances. A determination of whether the deputies are entitled to pay for the time suspended presents a difficult legal question for the auditor. Consequently, the auditor was acting within his official discretion to deny the claims and to require that their validity be established in a court of law.

__ Under the constitution and legislative enactments, a delicate system of checks and balances exists to protect the funds of the county. The commissioners court is authorized to expend county funds but may not do so without approval of the auditor whose approval may not be arbitrarily withheld; likewise, the auditor may not order the expenditure of county funds without approval of the commissioners court. To hold, as appellees would have us do, that the duty of the auditor under the statutes is ministerial rather than discretionary would remove one of the safeguards in this system of checks and balances and would permit a commissioners court to disburse county funds without restraint. This, of course, would be contrary to the clear public policy enunciated by the legislature in articles 1651, 1660, and 1661. We conclude, therefore, that these statutory requirements make the approval of a claim against the county (or a payment thereof), a discretionary act of the auditor rather than a mere ministerial act.

2. Burden of Proving Abuse of Discretion

Although the trial court found that the auditor abused his discretion, there is no evidence to support the finding. In King v. Guerra, 1 S.W.2d 373 (Tex.Civ.App.—San Antonio 1927, writ dism’d), the court held that in a mandamus proceeding the burden is upon the party seeking the relief to negate by affirmative allegation and proof, every fact or condition which would have authorized the public official to refuse to take the action sought to be enforced upon him. Id. at 378. And without such proof there is no basis for a finding of an abuse of discretion. See Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1151 (1939).

Appellees alleged that in refusing to approve payment of their claim, the auditor stated that he was relying on a certain opinion of the attorney general which, according to appellees, was inapplicable. No evidence of this opinion was presented to the court. The auditor testified that he was relying on such an opinion, but he did not identify it. In this state of the record, no abuse of the auditor’s discretion is shown. Tex.Rev.Civ.Stat.Ann. art. 4399 (Vernon 1966) expressly authorizes the attorney general to give advice to county auditors. If the opinion in question supported the auditor’s refusal to approve payment of compensation to the suspended deputies, then the auditor would have been justified in refusing to authorize payment and in requiring appellees to establish their claim in a suit against the county. We do not pass on the merits of appellees’ claim because that requires a determination beyond the scope of this proceeding. We do hold that in failing to offer proof of the opinion, appellees have failed to establish their allegation that such opinion is inapplicable, and, since they had the burden of proof, they have not shown themselves to be entitled to the writ.

The auditor, of course, may neither arbitrarily nor in contravention of law withhold approval of payment. See Guerra v. Weatherly, 291 S.W.2d 493 (Tex.Civ.App.—Waco 1956, no writ); Ham v. Garvey, 155 S.W.2d 976 (Tex.Civ.App.—San. Antonio 1941, no writ); Hood v. Cain, 32 S.W.2d 485 (Tex.Civ.App.—Amarillo 1930, writ ref’d). These cases stand for the proposition that when plaintiff proves that he is entitled to payment as a matter of law, and, when there is no legal justification for the auditor withholding approval of the claim or payment thereof, mandamus will lie. This is true because the refusal of the auditor in these instances would be an abuse of his discretion. In each of these cases, however, the court had before it a valid claim as a matter of law. To apply these cases to the present situation would assume the existence of a valid claim. Evidence that appel-lees were suspended from their jobs and subsequently reinstated does not establish as a matter of law that they were entitled to compensation for the period of their suspension. Mandamus lies to compel execution rather than to adjudicate claims. For example, the court in Hood v. Cain, supra, rested its decision on the fact that there is “no issue on the amount of the claim and no question of the validity of the claim. . ” Similarly, the court in Ham v. Garvey, supra, stated: “However, if the action of the Commissioners’ Court called into question be one unauthorized by law, and consequently outside or beyond the jurisdiction of said Court, the auditor properly refused to countersign the warrant ordered issued by the Court.” [Emphasis added.] We conclude, therefore, that appellees failed to prove abuse of discretion by the auditor. See Superior Incinerator Co. v. Tompkins, 37 S.W.2d 391, 395 (Tex.Civ.App.—Dallas 1931), affirmed, 59 S.W.2d 102 (Tex.Comm’n App.1933, jdgmt. adopted).

Although Tex.Rev.Civ.Stat.Ann. art. 1573 (Vernon 1962) states that “[n]o county shall be sued unless the claim upon which suit is founded shall have first been presented to the commissioners court for allowance, and such court shall have neglected or refused to audit and allow the same, or any part thereof,” the presentment to and rejection by the auditor is sufficient predicate for a suit against the county. Lovell v. Bynum, supra at 22; Wyatt Metal & Boiler Works v. Lipscomb, supra at 333; Anderson v. Ashe, supra at 874. Consequently, the remedy here is a suit against the county to establish the validity of appel-lees’ claim, rather than an order of mandamus.

Accordingly, the order of the trial court granting the writ is reversed and judgment is rendered denying the writ.