author: MORRISON, Judge.

text:
    Ex parte Arturo T. ESQUIVEL.
    No. 51047.
    Court of Criminal Appeals of Texas.
    Jan. 7, 1976.

      Stanley G. Schneider, Huntsville, El Idar, Jr., San Antonio, for appellant.
    Ted Butler, Dist. Atty., Stephen P. Allison and Susan Spruce, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is a post conviction application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.

Petitioner was convicted of murder with malice and assessed a term of life imprisonment. He was also convicted of robbery by assault and received a five year sentence. Petitioner’s writ of habeas corpus alleges he was denied due process of law and subjected to multiple punishments by being denied certain time credits toward parole eligibility of the life sentence.

The factual circumstances involved in petitioner’s allegations are as follows:

(1) On February 16, 1960, petitioner was convicted on his plea of not guilty to the jury to the offense of robbery by assault in Cause No. S-58548 and assessed punishment of five years.
(2) On March 21, 1960, petitioner was convicted of the offense of murder, after his plea of not guilty to a jury, in Cause No. S-58519, and assessed a life term of imprisonment.
(8) On May 3, 1960, petitioner was sentenced in both of the above-mentioned cause numbers and given five-year and life terms, respectively, with no notice of appeal being given in the robbery case but with a direct appeal perfected in the murder case.
(4) On May 4,1960, petitioner was transferred to the Texas Department of Corrections to begin serving his five-year sentence for robbery during the pendency of his appeal in the murder conviction.
(5) On November 9, 1960, this Court, in our appeal # 32,451, affirmed petitioner’s conviction in a per curiam opinion. The mandate of this Court in that case was issued on November 25, 1960, commanding Criminal District Court No. 2 of Bexar County to execute the judgment and sentence in trial court Cause No. S-58519. However, due to some clerical error on the part of the district clerk’s office in Bexar County, the mandate of this Court was never filed with the district court, and as a result, the Texas Department of Corrections was never notified of the existence of petitioner’s life sentence.
(6) Petitioner remained in the Texas Department of Corrections until April 14, 1963, at which time he discharged his five-year robbery sentence.
(7) Over the next few years, petitioner was convicted of two other felony offenses, serving time in the Texas Department of Corrections, and discharging these sentences on two occasions.
(8) The clerical error which resulted in the Texas Department of Corrections not being aware of the existence of the life sentence assessed in Cause No. S-58519 was not discovered until apparently 1973, with the mandate not being filed with the Bexar County District Clerk’s Office until April 3, 1973. As a result of this late filing of this mandate, petitioner’s sentence in Cause No. S-58519 did not begin until February 21, 1973. ,;

Petitioner argues he has been denied many years of time credit toward parole eligibility of the life sentence because of the clerical error in failure to notify the Texas Department of Corrections of the existence of the life sentence. Petitioner asks for a complete cancellation and nullification of the life sentence, relying on Shields v. Beto, 370 F.2d 1003 (5th Cir. 1967) and Clifton v. Beto, 411 F.2d 1226 (5th Cir. 1969).

The trial court found, based upon stipulations between the State and petitioner, that petitioner had no knowledge that the life sentence was still an effective conviction until the clerical error was finally discovered, and that petitioner was not at fault in his premature release from the Texas Department of Corrections. The trial court further found that petitioner’s sentence in Cause No. S-58519, the conviction for murder, should begin as of November 24, 1959, the date of petitioner’s original confinement.

The record shows a clerical error in the Bexar County District Clerk’s Office effectively caused the officials of the Texas Department of Corrections to release petitioner from that institution on three separate occasions, without any of the parties concerned having knowledge of the valid and existing life sentence outstanding against petitioner. Under these circumstances, Ex parte Downey, Tex.Cr.App., 471 S.W.2d 576, is controlling. When the terms of imprisonment run concurrently, as in the case at bar, sentence shall begin to run on the same day sentence is pronounced, and, absent an escape, a violation of parole or some fault on the part of the prisoner, said sentence must be continuous and the prisoner cannot be required to serve his sentence in installments. See Ex parte Reynolds, Tex.Cr.App., 462 S.W.2d 605; Ex parte Lawson, 98 Tex.Cr.R. 544, 266 S.W. 1101; White v. Pearlman, 42 F.2d 788 (10th Cir. 1930); Ex parte Morgan, 159 Tex.Cr.R. 241, 262 S.W.2d 728; Ex parte Griffin, 158 Tex.Cr.R. 570, 258 S.W.2d 324. We hold petitioner is entitled to “flat time” credit toward his parole eligibility of the life sentence in Cause No. S-58519, as of May 3, 1960, the date of formal sentencing in that case.

In addition, petitioner has earned certain “good time” credit during his previous commitments in the Texas Department of Corrections pursuant to Art. 61841, V.A.C.S. Although he was erroneously discharged from the Texas Department of Corrections on several occasions, we hold petitioner is nevertheless entitled to all “good time” credits accumulated during his prior commitments in the Texas Department of Corrections just as if he had been continuously serving the life sentence. See North Caro lina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, at footnote 13 (1969); Ex parte Bennett, Tex.Cr.App., 508 S.W.2d 646; Ex parte Enriquez, Tex.Cr.App., 490 S.W.2d 546.

For the reasons stated, petitioner’s writ of habeas corpus has merit, and we hold that the Texas Department of Corrections should make a correction of petitioner’s records to reflect that the life sentence assessed in Cause No. S-58519 should begin as of May 3, 1960, with petitioner being given all “flat time” credit from that day forward; and that further, petitioner be additionally credited with any “good time” credit that he has accumulated since May 3, 1960, in the Texas Department of Corrections toward his parole eligibility date in the life sentence assessed in Cause No. S-58519. However, petitioner’s request that the life sentence be vacated and set aside is denied, as petitioner has been granted all the relief to which he is entitled.

It is so ordered, and copies of this opinion shall be sent to the Texas Department of Corrections.

      . Since a “life” sentence can never be discharged, the only necessity for computing time credits toward this life sentence would be to determine possible parole eligibility.

      . The records reflect that petitioner was convicted in Cause No. 64262 of the offense of burglary and assessed a five-year term of imprisonment, said sentence beginning on January 5, 1965. He discharged this sentence on January 2, 1968.
      On April 3, 1969, petitioner was sentenced in Cause No. 68-763 to a six-year sentence for theft, and discharged this term of imprisonment on July 18, 1972.
      Additionally, petitioner was convicted a fifth time and assessed a seven-year term of imprisonment on April 5, 1973, in Cause No. 73-CR-252 for the offense of burglary. The petitioner is still under confinement in the Texas Department of Corrections on this seven-year sentence.

      . The trial court’s granting additional back jail time credit to November 24, 1959, cannot be sustained, at least under the record before this Court, inasmuch as none of the records reflect that the trial court originally intended to grant petitioner pre-sentence jail time credit. Without some indication that the trial court originally intended petitioner to have pre-sentence jail time credit, the trial court is without authority to grant such credit at this time. See Ex parte Washburn, Tex.Cr.App., 459 S.W.2d 637; Vessels v. State, Tex.Cr.App., 467 S.W.2d 259.

      . The statutory scheme in effect at the time of petitioner’s initial confinement provided that, in cases in which a direct appeal was taken, sentence began to run the date the mandate issued from the Court of Criminal Appeals, with discretion in the trial judge to grant credit for time in jail pending appeal. This statutory scheme has been held deficient, and petitioner is constitutionally entitled to credit for jail time pending appeal. Robinson v. Beto, 426 F.2d 797 (5th Cir. 1970); Ex parte Freeman, Tex.Cr.App., 486 S.W.2d 556.

      . The holding in this case is not in conflict with our holding in Ex parte Francis, Tex.Cr.App., 510 S.W.2d 345. In Francis the petitioner was convicted, sentenced and released on bond pending the outcome of his direct appeal. Due to a clerical error, petitioner was never notified as to the disposition of the appeal until many years later and he was then arrested and required to serve the remainder of his sentence. Francis was never required to serve any portion of his sentence until after the completion of the appellate process.


source: Caselaw Access Project

author: DALLY, Commissioner.

license: Public Domain

text:
    Charles Marion ROBERTSON, Appellant, v. The STATE of Texas, Appellee.
    No. 51209.
    Court of Criminal Appeals of Texas.
    Jan. 7, 1976.
    W. N. Shaw, Freeport, for appellant.
    Ogden Bass, Dist. Atty. and Jerome L. Farrer, Asst. Dist. Atty., Angleton, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of murder; the punishment assessed is imprisonment for 60 years.

We have reviewed this appeal in the interest of justice as required by Article 40.-09, Sec. 13, V.A.C.C.P., and we reverse the judgment since the pleading does not support a conviction for the offense for which appellant was found guilty.

The first count of the indictment was waived and the State elected to try the appellant on the second count of the indictment. The appellant entered a plea of guilty to that count which in pertinent part reads:

“. . . on or about the 18th day of September, A.D. 1974, in the County and State aforesaid, Charles Marion Robertson, did then and there, intending to cause serious bodily injury to an individual, William Howard Keys, commit an act clearly dangerous to human life, to-wit, did then and there cut and stab the said William Howard Keys, with a knife;

Since the count of the indictment under which the appellant was found guilty fails to allege that the appellant caused the death of William Howard Keys it fails to allege the offense of murder under the provisions of V.T.C.A. Penal Code, Sec. 19.02. That section provides:

“(a) A person commits an offense if he:
“(1) intentionally or knowingly causes the death of an individual;
“(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
“(3) commits or attempts to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
“(b) An offense under this section is a felony of the first degree.”

It appears that the second count of the indictment would only support a conviction for simple assault. V.T.C.A. Penal Code, Sec. 22.01.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


author: ROBERTS, Judge.

text:
    Arturo MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 51249.
    Court of Criminal Appeals of Texas.
    Jan. 7, 1976.
    Rehearing Denied Jan. 28, 1976.

      F. B. Godinez, Jr., Lubbock, for appellant.
    George W. Miller, Dist. Atty., Floydada, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from an order revoking probation. Appellant pleaded guilty to the offense of burglary on April 9, 1973 and was given a three-year probated sentence. One of the conditions of the said probation was that appellant “commit no offense against the laws of the State of Texas or any other state or the United States.” Thereafter, and within the probationary term, the State filed a motion to revoke probation, alleging, among other things, a violation of the foregoing probationary condition in the following particulars, to-wit: that appellant “was duly and legally convicted of a misdemeanor on the 4th day of September, 1973” for the offense of driving while intoxicated. The court’s order revoking probation relied exclusively on the DWI conviction as showing a violation of the terms of probation sufficient to support revocation.

The practice of relying solely on a conviction to establish the commission of an offense for revocation purposes has been criticized many times by this Court. Ross v. State, 523 S.W.2d 402 (Tex.Cr.App.1975), and cases cited therein. The problems characteristic of such a practice, however, are not present in this case.

It is uncontroverted that appellant pleaded guilty to the offense of DWI in County Court in Floyd County on September 4, 1973. Appellant was assessed a fine of $75.00 and ten days in jail. Although he did not recite any of the facts of the offense, the officer who arrested appellant and testified against him at the revocation hearing indicated that the offense took place three days before. It therefore occurred within the probationary period.

Appellant complains, however, that the subject DWI conviction was invalid since appellant was not represented by counsel and was not informed of his right to remain silent. The judgment of conviction for the DWI offense recites that appellant waived his rights to counsel and was fully admonished as to the consequences of his guilty plea. There is no infirmity in the conviction on these grounds.

Appellant also contends that the DWI conviction was not a final conviction because no sentence was pronounced and, if it was, it was not pronounced in the presence of the appellant as required by Art. 42.-03(1), V.A.C.C.P. Appellant himself introduced the judgment of conviction for the DWI offense at the revocation hearing. He makes this argument apparently because no sentence was introduced.

It is true that the judgment alone is insufficient and a sentence must be produced to establish jurisdictional requirements. Botley v. State, 467 S.W.2d 267 (Tex.Cr.App.1971). A sentence is also required to establish the finality of a conviction used at the punishment stage of a trial under Art. 37.07, V.A.C.C.P.; Morgan v. State, 515 S.W.2d 278 (Tex.Cr.App.1974), or a convic tion used for enhancement purposes. White v. State, 353 S.W.2d 229 (Tex.Cr.App.1961). Less stringent requirements for finality apply to convictions used for impeachment purposes, unless there is a timely objection. Poore v. State, 524 S.W.2d 294 (Tex.Cr.App.1974); Smith v. State, 409 S.W.2d 409 (Tex.Cr.App.1966).

In the case at bar, the conviction was used for purposes of revoking appellant’s probation. The State has a lower burden of proof to meet in such cases. Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1974). Nor should the requirements of finality be as strict in cases such as this where it is the conduct and not the conviction which is supposed to produce the adverse consequences.

Several witnesses testified that appellant was “convicted” of the DWI offense. Appellant introduced the judgment of conviction for said offense. No objection was lodged on the ground that the conviction was not final. This argument appears for the first time on appeal. We reiterate that this method of proving violations of probationary terms is not to be commended. However, we hold that, when it is utilized, such evidence as was before the court in this case is sufficient to show commission of an offense against the laws of this State. The State would have had the burden of producing the sentence for the DWI conviction if appellant had timely pressed his complaint in the trial court. Poore v. State, supra. The trial court did not abuse his discretion in concluding that appellant was convicted of the subject DWI offense.

Appellant next complains of the seventeen-month delay between the breach of the probationary condition and the revocation hearing. Relying on Fariss v. Tipps, 463 S.W.2d 176 (Tex.1971), he claims he has been denied a speedy trial on his probation revocation. The motion to revoke probation was not filed until January 16, 1975. In addition to the DWI conviction of September 4, 1973 alleged therein, the motion also alleged an assault on a peace officer and another instance of driving while intoxicated, both of which occurred only five days earlier. It thus appears that Floyd County authorities decided not to seek revocation of appellant’s probation after his first DWI conviction, but felt obligated to do so after somewhat more serious misconduct sixteen months later. The hearing on the motion to revoke was held on February 10,1975, less than a month after the accusatory pleading was filed. It is well established that an accused’s right to a speedy trial does not attach until he first becomes the accused. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Arivette v. State, 513 S.W.2d 857 (Tex.Cr.App.1974). No denial of a speedy trial is shown.

Appellant’s grounds of error are overruled and the judgment is affirmed.


author: ONION, Presiding Judge. ODOM, Judge

text:
    Leroy BISHOFF, Appellant, v. The STATE of Texas, Appellee.
    No. 49516.
    Court of Criminal Appeals of Texas.
    Jan. 14, 1976.
    E. Gerald Sutton, Killeen, for appellant.
    Joe Carroll, Dist. Atty., Al W. Schorre, Jr., Asst. Dist. Atty., Belton, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

Our opinion on original submission is withdrawn and the following is submitted in lieu thereof.

After a plea of not guilty, the appellant was convicted of sodomy in a bench trial. The punishment was assessed by the court at sixty (60) days in the county jail and at a fine of $1,000.00. The appellant was then placed on probation and this appeal followed.

Appellant complains the evidence is insufficient to sustain the conviction, and that having elected to be punished under the new Penal Code, the court erroneously used V.T.C.A. Penal Code, Sec. 21.07 (a Class A misdemeanor) as the basis of punishment rather than V.T.C.A. Penal Code, Sec. 21.06 (a Class C misdemeanor) as it should have.

The record reflects that the offense of sodomy occurred on May 14, 1973, and the indictment was returned during the June term of the grand jury for the 27th District Court of Bell County. The trial commenced on May 14,1974, after the effective date of the new Penal Code.

Killeen police officer Jack Dove, Jr., opened the door to the “drunk tank” of the city jail about 4 a.m. on May 14, 1978. He observed the appellant Bishoff lying on top of a younger man, Mark Clark. Both men had their pants down around their feet, and the appellant was “moving his bottom up and down in sort of a pumping motion.” As Dove sought to separate the two men, appellant Bishoff stood up. His penis was erect, and Dove saw the penis separate from the buttocks of Clark. Dove testified he observed what he believed to be sperm and fecal matter on appellant’s penis. He also observed that Clark’s anus was red and inflamed.

Testifying in his own behalf, appellant testified he had been placed in the “drunk tank” with other prisoners. He related that he was dreaming he was with a woman and they were “making love.” He dreamed they were in bed unclothed. He somehow began to realize that the person in his arms was a man, but didn’t recall anything more until the police officer entered the “drunk tank.”

We conclude the evidence is sufficient to support the conviction of sodomy under the provisions of Article 524, Vernon’s Ann.P.C., 1925, as charged in the indictment. See Shipp v. State, 342 S.W.2d 756 (Tex.Cr.App.1961); Bue v. State, 368 S.W.2d 774 (Tex.Cr.App.1963).

Next, appellant contends he “was sentenced for the wrong offense, which had a greater punishment authorized.” It appears to be appellant’s contention that though he was indicted for the old Code offense of sodomy his election to be punished under the new Penal Code (see Sec. 6(c) of the Saving Provisions of such new Code) prevented the court from punishing him for any offense under the new Code unless the elements of that offense had been included in the allegations of the indictment drafted under the former Code. He contends that after his election the trial court erred in punishing him for a Class A misdemeanor under the provisions of V.T. C.A. Penal Code, Sec. 21.07 (public lewdness) (Class A misdemeanor) rather than under V.T.C.A. Penal Code, Sec. 21.06 (homosexual conduct) (Class C misdemeanor). He urges that in order to try him for public lewdness he “should have been indicted again in order to appraise him of the specific act and crime he was charged with and tried again.” -We cannot agree.

Sec. 6(a) of the Saving Clause of the new Penal Code provides in part that “ . a criminal action for an offense committed before this Act’s effective date is governed by the law existing before the effective date, which law is continued in effect for this purpose, as if this Act were not in force. . . . ”

The appellant was indicted for the former Penal Code offense of sodomy. This was the offense for which he was tried after the effective date of the new Penal Code, and this was the offense for which he was convicted at the guilt stage of the trial. Appellant remains convicted of the former Code offense despite his written election to be punished under the new Penal Code. Jefferson v. State, 519 S.W.2d 649 (Tex.Cr.App.1975); Wright v. State, 527 S.W.2d 859 (Tex.Cr.App.1975). Cf. Pesch v. State, 524 S.W.2d 299 (Tex.Cr.App.1975); McCarter v. State, 527 S.W.2d 296 (Tex.Cr.App.1975).

It clearly was not the intent of the Legislature by virtue of the Saving Provisions of the new Penal Code to give an accused in a criminal case the right in some cases to wait until the penalty stage of a bifurcated trial and cast additional problems of pleadings upon the prosecution by election to be punished under the new Penal Code for an old Code offense. Wright v. State, supra. And the accused cannot under such circumstances claim that certain otherwise applicable penalty provisions are inapplicable as punishment because the indictment, properly drafted under the old Code, did not also contain certain allegations now required under the new Code. Wright v. State, supra. And the Legislature did not intend that the right to elect to be punished under the new Penal Code be limited only to situations where the old Code offense was carried forward into the new Code without any change whatsoever. Wright v. State, supra. If several sections of the new Penal Code cover the type of offense or “conduct” under the old Penal Code for which the defendant is convicted, then the applicable section of the new Code must be determined from the proof if written election to be punished has been made by the defendant. Wright v. State, supra. Ambers v. State, 527 S.W.2d 855 (Tex.Cr.App.1975). However, after proof showing guilt of the old Code offense, the State is not placed under the necessity to offer additional proof of some offense or “conduct” under the new Code which may require in and of itself proof of additional elements. Wright v. State, supra.

It is clear from what has been said that appellant’s contention that he should have been re-indicted under V.T.C.A. Penal Code, Sec. 21.07, or the court limited in punishment to a Class C misdemeanor under V.T. C.A. Penal Code, Sec. 21.06, is without merit. He was convicted of the old Code offense of sodomy, and his election for punishment under the new Penal Code only made it necessary for the trial judge to determine from the proof which of the applicable sections of the new Code to apply. Both Secs. 21.06 (homosexual conduct) and 21.07 (public lewdness) replaced the old sodomy statute. Since the proof showed that the act of deviate sexual intercourse took place in a public place, the court did not err in assessing punishment as a Class A misdemeanor under the provisions of said Sec. 21.07. See Ambers v. State, supra.

The judgment is affirmed.

ODOM, Judge

(concurring).

I concur in the affirmance of this case but must take exception to the dictum wherein the majority state, “after proof showing guilt of the old Code offense, the State is not placed under the necessity to offer additional proof of some offense or ‘conduct’ under the new Code which may require in and of itself proof of additional elements.” See Wright v. State, 527 S.W.2d 859, 873 (opinion by Judge Odom, concurring in part and dissenting in part, part VIII); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508.

In this case the State did prove the additional elements required for showing acts in violation of V.T.C.A. Penal Code Sec. 21.07 (public lewdness) authorizing the trial court to assess punishment under that provision. The dictum of the majority, however, would appear to preclude reversal even if (1) the facts showed no more than a consensual private act in violation of V.A.P.C. Art. 524 (sodomy) and V.T.C.A. Penal Code Sec. 21.-06 (homosexual conduct, class C misdemean- or, maximum punishment: $200 fine), and (2) the court, after a defendant’s election to be punished under the new Code, upon those facts assessed punishment at life imprisonment for aggravated sexual abuse under V.T.C.A. Penal Code, Sec. 21.05.

I state that the majority’s dictum would appear to preclude reversal even in the hypothetical situation because the dictum may be contradicted by the majority’s additional statement, “If several sections of the new Penal Code cover the type of offense or ‘conduct’ under the old Penal Code for which the defendant is convicted, then the applicable section of the new Code must be determined from the proof if written election to be punished [under the new Penal Code] has been made by the defendant.” The majority opinion first states the applicable punishment range “must be determined from the proof” and then states “the State is not placed under the necessity to offer additional proof.” Does the majority mean the defendant must prove that only the lesser range is appropriate? Such a procedural rule is precisely what was held unconstitutional in Mullaney v. Wilbur, supra.

The majority’s position is, at best, unclear.

I concur in the results only.

      . V.T.C.A. Penal Code, Sec. 21.07, sets forth the offense of “Public Lewdness” as follows:
      “(a) A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his act:
      “(1) an act of sexual intercourse;
      “(2) an act of deviate sexual intercourse;
      “(3) an act of sexual conduct;
      “(4) an act involving contact between the person’s mouth or genitals and the anus or genitals of an animal or fowl.
      “(b) An offense under this section is a Class A misdemeanor.”

      . V.T.C.A. Penal Code, Sec. 21.06, sets forth the offense of “Homosexual Conduct” as follows:
      “(a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.
      “(b) An offense under this section is a Class C misdemeanor.”


author: JAMES, Justice.

text:
    Stephen McCLENNAHAN et al., Appellants, v. Freddie WEAVER, Appellee.
    No. 5485.
    Court of Civil Appeals of Texas, Waco.
    Sept. 25, 1975.
    G. David Westfall, Dallas, for appellants.
    Andy J. McMullen, Hamilton, for appel-lee.
   OPINION

JAMES, Justice.

This is a venue case under Section 9a of Article 1995, Vernon’s Texas Civil Statutes. Plaintiff-Appellee Freddie Weaver brought this suit in Hamilton County, Texas, against Defendant-Appellant Stephen McClennahan and two other defendants, all of whom were residents of Dallas County, Texas. The suit grew out of a motor vehicle accident which occurred on U. S. Highway 281 about two miles south of the City of Hamilton, in Hamilton County, Texas. All three defendants filed pleas of privilege to transfer the cause to Dallas County, Texas. Plaintiff-Appellee controverted Defendant-Appellant Stephen McClennahan’s plea of privilege under Section 9a of Article 1995. The trial court after hearing overruled Defendant-Appellant Stephen McClennahan’s plea of privilege and sustained the pleas of privilege of the other two defendants. From this Defendant-Appellant Stephen McClennahan appeals on 58 points of error. We affirm the trial court’s judgment.

The accident occurred on October 21, 1972, in Hamilton County, Texas, about two miles south of the City of Hamilton. Plaintiff Weaver was driving a 1973 Chevrolet Vega northward on U. S. Highway 281 towards Hamilton at the time and on the occasion of the accident. The weather was foggy, with misting rain, and visibility was “very limited” to the extent that a motor vehicle was not visible to the driver of another vehicle except when such driver was in immediate proximity to such vehicle. Shortly before the accident, Defendant Stephen McClennahan was driving a pickup truck southward on U. S. Highway 281 in or about the southern outskirts of the City of Hamilton; whereupon he stopped at a service station to fill his car with gasoline. When he started to leave, his pickup would not start. The service station man offered to call, and did call the “Western Auto Man” in Hamilton. In response to this call, in about fifteen minutes, one Charles H. Neiman appeared on the scene driving a white Ford pickup. Neiman first checked the battery on Defendant’s pickup and determined that it was all right. Then Nei-man suggested that “since neither one of us could do anything, that we try towing it to get it started.” Defendant agreed. Nei-man had a chain about ten feet long which he tied from the rear of his pickup to the front of Defendant’s pickup, and he towed Defendant southward down the highway about a quarter of a mile. Defendant’s pickup still would not start. At this point, Neiman and Defendant got out of their respective pickups and discussed the problem. They determined that Defendant’s pickup had trouble with the starter. Nei-man told Defendant: “Well, all I can suggest is towing you down to this garage,” indicating it was down the highway in a southward direction. Defendant said, “That’s great, I would just like to get on the road again.” So, with Neiman in his pickup and Defendant at the steering wheel of his pickup, Neiman towed Defendant southward down the highway until they got approximately even with Chumney Tractor Co. parking lot located on the east side of the highway. Defendant did not know where Neiman was taking him. When they got even with the Chumney parking lot, Neiman made a lefthand turn out of his lane of traffic, and across the northbound traffic lane of the highway and headed into the Chumney Tractor Co. parking lot. Of course, Defendant was being towed behind Neiman. At the point wherein Neiman’s pickup „was about off the east side of the highway and Defendant’s pickup was in the process of crossing the northbound lane, Plaintiff’s motor vehicle traveling north struck Defendant’s pickup, thereby causing personal injuries and automobile damage for which Plaintiff sues.

Neiman’s pickup was not equipped with any special equipment for towing purposes, nor was it equipped with any special or blinking lights. Defendant testified that Neiman told him that the garage to which he was going to be towed was up the road; however, Defendant did not inquire where the garage was or on which side of the highway it was located. On cross-examination, Defendant testified that when they stopped on the side of the highway after unsuccessfully trying to start his pickup, and before they started the towing process again, that he (Defendant) had the option to leave the vehicle on the side of the road if he wished. Defendant further testified that Neiman was a total stranger to him, and that he did not ask Neiman if he knew anything about towing, nor did he make any inquiry of Neiman’s driving record. Moreover, on cross-examination, Defendant testified that he was aware that accidents do occur involving a towed vehicle and another vehicle on the road, and that prior to the time of the collision in question, he was aware that such a possibility existed.

Plaintiff alleged, in addition to other grounds of negligence on the part of Defendant, the following:

“f. In being towed by another vehicle when it would not have appeared to a person using ordinary care that such towing could be done with safety.
“g. _being towed by a vehicle that was not specially equipped for towing functions _
“h. _allowing his vehicle to be towed on a main thoroughfare through Hamilton County, when, because of the existing weather conditions, it would not appear to a person using ordinary care that such towing activity could have been accomplished with safety.”
Defendant-Appellant asserts there is no evidence, and insufficient evidence to support the trial court’s implied findings of negligence and proximate cause concerning the three alleged grounds of negligence on Defendant’s part hereinabove quoted. We do not agree.

Section 9a, Article 1995, places the burden upon the plaintiff to establish by the preponderance of the evidence the following venue facts to sustain venue in a county other than the county of defendant’s residence as follows:

“1. That an act or omission of negligence occurred in the county where suit was filed.
“2. That such act or omission was that of the defendant, in person, or that of his servant, agent, or representative acting within the scope of his employment.
“3. That such negligence was a proximate cause of plaintiff’s injuries.”

Applying the venue requirements of Section 9a to the facts of the case at bar, we hold the evidence to be legally and factually sufficient to support the trial court’s implied findings concerning the above-quoted three grounds of negligence. Likewise, we hold that the evidence is legally and factually sufficient to support the trial court’s implied findings that each such ground of Defendant’s negligence was a proximate cause of the accident in question and Plaintiff’s injuries.

Our Supreme Court in Hopson v. Gulf Oil Corporation (Tex.1951), 150 Tex. 1, 237 S.W.2d 352, has laid down the following rules concerning the elements of proximate cause at pages 355 and 356.

“Two elements or tests of proximate cause are causation and the limitation to foreseeable consequences. As to causation, it is said that if the defendant’s act or omission was a substantial factor in bringing about the result, it will be regarded as a cause, and that ordinarily it will be such a substantial factor if the result would not have occurred without it. . . .”

“In using foreseeableness as a test to determine proximate cause . . . it is not necessary that the defendant should or would reasonably anticipate the very consequences or the exact nature of the plaintiff’s injury or the precise manner of its infliction. It is sufficient that the defendant would reasonably have anticipated consequences or an injury of the general nature of that which ensued.”

Applying the test laid down in Hopson to the case at bar, we overrule Defendant-Appellant’s points concerning the aforesaid proximate cause (implied) findings of the trial court. In the light of our holdings herein stated the Appellant’s remaining points of error are rendered moot. Judgment of the trial court is affirmed.

Affirmed.


author: OSBORN, Justice.

text:
    C. R. BRUCE, Appellant, v. L. M. McADOO, d/b/a McAdoo Chevrolet Company, Appellee.
    No. 6468.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 5, 1975.

      Stephen L. Haley, Seminole, for appellant.
    Joe K. McGill, Seminole, for appellee.
   OPINION

OSBORN, Justice.

This is an appeal from a summary judgment based upon a sworn account for vehicle repairs filed under the provisions of Rule 185, Tex.R.Civ.P. The Appellant having failed to timely file a sworn denial as required by such Rule, the Trial Court entered judgment for Appellee and we affirm that judgment.

The Appellee filed its sworn petition, with attached accounts for services rendered and material furnished, on December 4, 1970. The Appellant replied with a sworn general denial on January 25, 1971. On January 14, 1974, Appellant sent the Clerk a jury fee. On February 5, 1974, Appellee filed a Motion for Summary Judgment based upon its original petition, and the Trial Court set the Motion for hearing ten days later. The hearing was delayed, and on February 18, 1974, Appellant filed another sworn answer which contained neither a general denial nor any sworn denial as provided for in Rule 185. This answer did contain certain affirmative pleadings as a defense to the alleged debt, and in particular set forth that all of the repair work performed by Appellee was covered by a General Motors warranty, and further alleged that the work performed was to be paid for by the warranty and not by reason of any agreement or promise of Appellant. On the same day, Appellant also filed Defendant’s Response to Plaintiff’s Motion for Summary Judgment alleging that there were fact issues for determination in the case.

On the date of the hearing, April 4,1975, Appellant filed his Second Amended Original Answer along with his affidavit and another affidavit which had been executed in February, 1974. This amended pleading did deny under oath each and every item in plaintiff’s petition, and stated that such allegations were not true and just, and denied indebtedness for any item alleged or claimed by the plaintiff. The Trial Court granted Appellee’s Motion and in the order “ * * * the Court finds that Plaintiff’s suit is founded upon a Sworn Account, but that the Defendant has failed to file an Answer in compliance with Rule 185, Texas Rules of Civil Procedure, and that no such Answer has been timely tendered; it is, therefore, ORDERED that such Answer not be filed in the record of this cause.”

The Appellant presents five Points of Error in which he contends that the Trial Court erred in granting summary judgment on a cause of action which did not arise out of an open account, and on which there existed fact issues, and further, contends that the Trial Court erred in disregarding and not considering his sworn denial of Appellee’s account.

Rule 185 makes the sworn account prima facie evidence of the debt. And if a sworn denial in the terms of the Rule is not filed, a party “ * * * shall not be permitted to deny the claim, or any item therein, * * Rule 185, Tex.R.Civ.P.; Craig v. Genie Toys, Inc., 444 S.W.2d 309 (Tex.Civ.App.-Houston (1st Dist.) 1969, no writ). Failure to comply with the Rule by an answering party amounts to an admission that the account is correct, and therefore no issue of fact is presented. Akins v. Coffee, 376 S.W.2d 953 (Tex.Civ.App.-Dallas 1964, writ dism’d). In Collins v. Kent-Coffey Manufacturing Company, 380 S.W.2d 59 (Tex.Civ.App.-Eastland 1964, writ ref’d), the Court said:

“ * * * Appellant, having failed to ‘file such affidavit’, as required by Rule 185, he could not deny appellee’s claim and there was no genuine issue of material fact as to whether appellant was lawfully chargeable with a portion of the account or whether he was entitled to the alleged offset. ⅜ * *
“Appellant having failed to verify his allegations, a summary judgment for ap-pellee was properly rendered under Texas R.C.P. 166-A.”

The Trial Court having refused to consider the Second Amended Answer, there was no answer filed in compliance with Rule 185 and Appellee was entitled to have its Motion for Summary Judgment, based upon a sworn account, granted. The Appellant’s Points of Error one, two and five are overruled.

The only remaining question is whether the trial Court erred in refusing to consider the Second Amended Original Answer which Appellant did actually file on the date of the hearing. We conclude that the Trial Court did not err on this issue of the case. Rule 63, Tex.R.Civ.P., requires amended pleadings to be filed seven days before trial unless leave of court is granted for a later filing. Rule 166-A, Tex.R. Civ.P., requires that affidavits opposing a motion for summary judgment be filed on the day prior to the hearing. In Morris v. Jones, 403 S.W.2d 855 (Tex.Civ.App.- Beaumont 1966, writ ref’d n. r. e.), the Court held that there was no abuse of discretion on the part of the trial court in refusing to allow the filing of an amended answer eighteen months after the original answer, containing only a general denial, was filed. In our case, the amended answer was presented more than four years after the original answer and more than a year after the first amended answer.

This question is adequately answered in Jones v. Houston Materials Company, 477 S.W.2d 694 (Tex.Civ.App.-Houston (14th Dist.) 1972, no writ) where the Court said:

“ * * * At the outset it is apparent that the filing of defendant’s first amended original answer on the day the summary judgment was set for consideration was not timely. 166pA(c), Tex.R. Civ.P.; General Motors Acceptance Corporation v. Musick, 379 S.W.2d 297 (Tex.Sup.1964); Lawyers Surety Corp. v. Investors Mut. of Nueces, Inc., 353 S.W.2d 882 (Tex.Civ.App.-San Antonio 1962, writ ref’d n. r. e.). A summary judgment proceeding is a trial within the meaning of Rule 63, Tex.R.Civ.P., which provides that amended pleadings offered within seven days of date of trial or thereafter shall be filed only after leave of the judge is obtained. Leche v. Stautz, 386 S.W.2d 872 (Tex.Civ.App.-Austin 1965, writ ref’d n. r. e.).”

The Appellant’s third and fourth Points of Error are overruled. The judgment of the Trial Court is affirmed.


author: PRESLAR, Chief Justice.

text:
    Edward L. COLLINS et al., Appellants, v. John IVEY et al., Appellees.
    No. 6452.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 5, 1975.
    Rehearing Denied Dec. 31, 1975.
    Peticolas, Luscombe, Stephens & Windle, W. C. Peticolas, El Paso, for appellant.

      Santiesteban, Kennedy & Martin, Robert E. Kennedy, Marshall I. Yaker, El Paso, for appellee.
   OPINION

PRESLAR, Chief Justice.

This is a statutory trespass to try title suit brought by Appellants against the defendants-Appellees for title and possession of 102.06 acres of land out of Tract 9-A, Block 11, Lower Valley Surveys, El Paso County, Texas. A jury found for the defendants on their plea of the ten year Statute of Limitations and judgment was entered awarding them title and possession of the land. That judgment is affirmed.

Questions on appeal are the sufficiency of the evidence to support the jury finding of adverse possession where (1) there is evidence that defendants’ predecessor in title went into possession with consent of an owner, and (2) there is evidence that one of the defendants undertook to purchase the property during the adverse period of possession; and, the failure to comply with Article 3726, Tex.Rev.Civ.Stat.Ann., in presenting documentary evidence is an issue.

The land involved is a 102 acre tract which is a portion of a 334 acre tract to which the Appellants claim record title in various undivided interests. The period of time in which the Appellees claim adverse possession is from 1938 until January of 1973 when suit was filed. Under Article 5510, Tex.Rev.Civ.Stat.Ann., and related Articles, adverse possession during any ten year period would mature title in the defendants-Appellees; the jury found that the defendants held such peaceful and adverse possession for a continuous period of ten years prior to 1973. Such finding is amply supported by the evidence; for the evidence is that K. B. Ivey entered into possession in 1938 and fenced it, and the fences have been maintained until time of suit in 1973; continuous use was made of the property from 1938 to 1973 and during such time improvements were added; a portion was leveled for farming and K. B. Ivey grazed cattle on the land; from 1946 to 1954, John Ivey leased the land from K. B. Ivey, used five acres for cultivation, and in 1948 an airstrip was added, and in 1949 another airstrip was added with a windsock and tiedown pads for planes; the airstrip was heavily used by cropdusters in the area who got permission from the Iveys to use it, and it became known as “the Ivey strip.” A baseball diamond was constructed and used; a series of dams were built to protect the cultivated area from washing; in 1952, some 1500 tons of hay were stored on the property, and in 1956, a 45x50' metal hangar building was constructed and was later converted to a barn; in 1958, a water well was drilled and a pump house was built for it; electric lines were run to it; farm machinery was stored on the land; posted signs were put up and trespassers ejected. In 1958 or 1959, Charlie Ivey leased it from K. B. and used it until suit was filed in 1973; the water well was maintained until 1969 when water was piped to the property. Many livestock were kept on the property including some 300 head of cattle in 1959, 600 head of sheep in 1960, and since 1960, cattle were continuously kept. Cattle pens were constructed for 400 head with chutes and scales; an automatic mercury light was installed on the premises; and a silage pit and grain storage tank were constructed.

In 1970, K. B. Ivey conveyed the premises to the six Ivey brothers, and at time of trial, title was claimed by Charlie Ivey, he having acquired the interest of the other brothers. Appellants do not question the sufficiency of this evidence to sustain the finding of adverse possession in the ordinary sense, but they urge that this is a case where the original entry was with permission and there has been no repudiation of that permission. They urge the rule of law that a possessor whose original entry was amicable has a burden to show by subsequent open declarations or visible acts that his possession later became hostile and made known to the owner who permitted the entry. Luhning v. Stewart, 103 S.W.2d 184 (Tex.Civ.-App.—El Paso 1937), aff’d 134 Tex. 23, 131 S.W.2d 824 (1939); Hinds v. Killough, 332 S.W.2d 101 (Tex.Civ.App.—Amarillo 1959), rev’d on other grounds, 161 Tex. 178, 338 S.W.2d 707 (1960).

The evidence will not support the contention that this case comes within the rule announced above. The evidence is that in 1938 K. B. Ivey approached a Mr. W. D. Malone, whom he believed to be the owner of the land in question, and asked him about acquiring some of that land, and Mr. Malone told him to fence what portion of the property he wanted and he did so, fencing the land here in question. Malone did not at that time own any interest in the property. Some four years later, 1942, he acquired a one-half undivided interest in the property; and not long thereafter he died, and his widow and his administrator sold that interest in 1944. Thus the 1938 entry was not with permission of the owners, it was hostile to them, even as the continued possession was hostile to them during the years that followed. At best, this evidence simply shows that the Ivey possession was not hostile to Malone during the two years that he owned the property. It was, however, hostile and adverse to the new owners of his interest after 1944. The facts do not bring this ease within the permissive entry rule.

Appellants contend there has been a recognition of their title by Appellees during the period of adverse possession. They base this contention on testimony that Ben Ivey inquired of the attorney who represented the interest owners about acquiring an undivided one-half interest. This occurred in 1963. It is very questionable whether this was an offer to purchase sufficient to show a recognition of title. But that is immaterial because Ben Ivey was not one of those who held adversely in 1963 or otherwise during the period of time when title was maturing by limitations. From 1938 until 1970, K. B. Ivey was either in actual possession or leasing to sons John, Jimmy or Charlie. Ben was not an adverse possessor; he did not enter the picture until K. B. deeded the land to him and his brothers in 1970. Also, there is evidence by which the jury could have found that title was perfected by adverse possession in a ten year period before 1963.

If limitation title did mature prior to 1963, no recognition or acknowledgment later on by Ben Ivey of Appellants’ title would destroy the limitation title which had previously matured. Harris v. Mayfield, 260 S.W. 835 (Tex.Comm’n App.1924); Huir v. Hildebrand, 388 S.W.2d 284 (Tex.Civ.App.—Houston 1965, writ ref’d n. r. e.).

Appellants’ Points of Error one and two are overruled under the above discussion that upholds the trial Court judgment awarding title to the Appellees, and we do not reach the questions presented in Points three and four regarding the value of the improvements.

Appellees assert a counterpoint to the effect that the trial Court erred in admitting certain deeds into evidence because of plaintiffs’ failure to comply with Article 3726, or prove execution and delivery of the deeds. Plaintiffs introduced numerous deeds to which there was objection by the Appellees-defendants that they were not originals and their execution was not proved; and in lieu of such proof, there had been no compliance with Article 3726, Tex. Rev.Civ.Stat.Ann. Under that Statute, instruments which have been on file for ten years may be admitted in evidence without proof of their execution if a prescribed procedure is followed as to filing and notice to the opposite party; there is a further provision that where the land is located in the county of suit, as here, recorded instruments may be put in evidence by reading directly from the county clerk’s records, if a prescribed procedure is followed. The correct procedure under either of these provisions was not followed in this case. Because Appellants did not comply with Article 3726, it was error for the Court to admit the instruments in question. Hinton v. Uvalde Paving Co., 77 S.W.2d 733 (Tex.Civ.App.—Dallas 1934, writ ref’d); Johnson v. Stickney, 152 S.W.2d 921 (Tex.Civ.App.—San Antonio 1941, no writ); Watson v. Toler, 153 S.W.2d 506 (Tex.Civ.App.—Galveston 1941, no writ); Mata v. Rangel, 432 S.W.2d 146 (Tex.Civ.App. — Houston (1st Dist.) 1968, writ ref’d n. r. e.). Since Appellants were plaintiffs, they had the burden of proving their chain of title from the sovereign of the soil. It follows that the admission of these deeds was more than harmless error, for without them, they failed to establish title. The counterpoint is sustained.

The judgment of the trial Court is affirmed.


author: KLINGEMAN, Justice.

text:
    William M. DORIA et ux., Appellants, v. Herman SUCHOWOLSKI, Appellee.
    No. 15443.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 19, 1975.
    Rehearing Denied Dec. 31, 1975.

      Moursund, Ball & Young, Inc., George C. Shoemaker, Jr., San Antonio, for appellants.
    Jay Sam Levey, Levey & Goldstein, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is a suit by Herman Suchowolski against William M. Doria and wife Mary Doria in the nature of a trespass to try title suit for the title and possession to the north three feet of Lots 19 and 20, Block 8, N.C.B. 7768, Sunny South Subdivision in the City of San Antonio, Bexar County, Texas; for a mandatory injunction requiring defendants to remove a fence from where it is currently located to its original location; and for damages. The court, without a jury, decreed that plaintiff recover from defendants the title and possession of the above described property; ordered that defendants remove the present fence located on the boundary line between Lots 7 and 8 and Lots 19 and 20 to its original location along the south end of said north three feet of Lots 19 and 20; and that plaintiff recover no damages. The parties will be herein referred to as they were in the trial court.

Plaintiff is the record title owner to Lots 7 and 8, having been deeded said property by general warranty deed from Ida M. Kil-day, dated May 12, 1965. Defendants are the record title owners to Lots 19 and 20, having been deeded such property by general warranty deed from Ida M. Kilday, dated February 26, 1974.

Defendants, by one point of error, assert that the court erred in admitting certain conclusions, hearsay, and opinion testimony of both plaintiff and witness Williamson as to the fence being the alleged boundary of the properties in dispute. By their other three points of error, defendants complain that the trial court erred in rendering a judgment against defendants because (a) plaintiff did not prove a superior title to the property in dispute, (b) plaintiff failed to prove that he had any title whatsoever to the disputed property under any theory of law, (c) plaintiff failed to prove an agreed boundary.

Plaintiffs petition alleges only: (a) that he is the record title owner of Lots 7 and 8, (b) that theretofore there existed a fence on the property line dividing plaintiff’s property from that of defendants’, and that on or about October 15, 1974, defendants wrongfully and willfully removed said fence and erected a new fence upon the property of plaintiff next to plaintiff’s house, (c) that plaintiff’s house has been damaged to the extent of $1,000.00, (d) that on or about October 15, 1974, plaintiff was and still is the owner of the north three feet of Lots 19 and 20 and that on said date he was in possession of said premises and that after-wards, defendants unlawfully entered upon and dispossessed him of such possession and withholds from him the possession thereof. Defendants filed a plea of not guilty and a general denial. Plaintiff does not plead title by limitation, boundary line agreement, estoppel, ratification, title by acquiescence, or authority of a purported agent to act.

A petition in a trespass to try title action framed in the normal manner required by the Rules of Civil Procedure puts in issue title, right to possession, and other matters relevant to the case. Rule 783 et seq., Tex.R.Civ.P. (1967); Permian Oil Co. v. Smith, 129 Tex. 413, 107 S.W.2d 564 (1937); 56 Tex.Jur.2d Trespass to Try Title § 110 (1964). Plaintiff, under a general allegation of ownership, may generally show whatever title he has to the property without special pleadings, except title by limitation, which must be specially pleaded. A plea of not guilty by the defendants is a denial of plaintiff’s allegations and puts plaintiff on proof of all of the elements necessary to the maintenance of the suit and of his right to recover. The plaintiff is thereby put on proof of his title and right of possession. A plea of not guilty is a plea in bar against which plaintiff must show title and establish his right to possession of the property. 56 Tex.Jur.2d Trespass to Try Title § 92 and § 112 (1964); Stroud v. Springfield, 28 Tex. 649 (1866); Shull v. Diaz, 236 S.W.2d 629 (Tex.Civ.App.—San Antonio 1951, no writ); Lindley v. Mowell, 232 S.W.2d 256 (Tex.Civ.App.—Eastland 1950, writ ref’d n. r. e.).

Plaintiff, in an action of trespass to try title, as a general rule, must recover on the strength of his own title and not on the weakness of his adversary, and, where his title is controverted, the burden of proof is on plaintiff to establish a superior title in himself by an affirmative showing, regardless of whether his claims rest in law or equity. 56 Tex.Jur.2d Trespass to Try Title § 120 (1964); Allied Chemical Corp. v. Ka dane, 373 S.W.2d 778 (Tex.Civ.App.—Eastland 1963, no writ).

Plaintiff made no effort to prove a superior title, or even any record title, to the property here involved in himself. The only record title evidence introduced by plaintiff were two deeds from a common source, Ida M. Kilday, one a warranty deed conveying Lots 7 and 8 to plaintiff, and the other a warranty deed conveying Lots 19 and 20 to defendants. Thus, plaintiff’s own proof of title shows record title to Lots 19 and 20 in defendants, and the disputed area is a portion of Lots 19 and 20. Defendants introduced into evidence a map or plat of a survey made by a registered professional engineer which shows the fence involved as located within the boundaries of Lots 19 and 20. Defendants also introduced into evidence a contract of sale and purchase between Mrs. Kilday and defendants which describes the property to be conveyed as Lots 19 and 20, and neither this contract nor the warranty deed contain any reservation or exception of any portion of Lots 19 and 20. There is no pleading of title by limitation by plaintiff and no proof of any limitation title.

In order to prevail, plaintiff must stand or fall on his claim that there was a boundary line agreement. The rules in Texas, with respect to the establishment of boundary by agreement, are well settled. Where there exists uncertainty, doubt or dispute as to the true division line between two adjoining tracts, the boundary line may be established by parol agreement between the respective owners. Gulf Oil Corp. v. Marathon Oil Co., 137 Tex. 59, 152 S.W.2d 711 (1941); Davis v. Miers, 308 S.W.2d 277 (Tex.Civ.App.—Eastland 1957, writ ref’d n. r. e.). This agreement refers to an existing fact, and it is essential to the validity of such agreement that there exists this doubt or uncertainty at the time of the making.

Although plaintiff did not specifically plead a boundary line agreement, it is our opinion that, under the rules applicable to trespass to try title suits, his pleadings are sufficient to permit him to introduce evidence of a boundary line agreement. However, plaintiff had the burden of proving up such an agreement.

The only evidence which remotely touches on any purported boundary line agreement is summarized as follows.

Plaintiff testified that he bought Lots 7 and 8 from Mrs. Ida Kilday in 1965; that the fence was the boundary and that he bought the property all the way down to the fence; that a real estate broker, Mr. Williamson, negotiated the sale; that, at the time he bought the property, Mr. Williamson told him that the fence was the boundary and that his property went all the way to the fence. He further testified that Mrs. Kilday owned the property on the other side; that the fence was very old; and that the fence was about three feet from the house. There is nothing whatsoever in his testimony to indicate any doubt, dispute or uncertainty as to the boundary. Moreover, there is nothing in his testimony to indicate that he made a boundary line agreement with anyone.

Ronald Williamson testified that he is a real estate broker; that he had an exclusive listing from Mrs. Kilday for the sale of the property to plaintiff in 1965; that Mrs. Kilday at such time owned the property directly behind this property which fronts on East Hart Street. When asked whether he told plaintiff where the boundary was, he said that when he showed a piece of property, he usually says, “The part that’s fenced here is the part that I’m selling, or we’re selling.” He stated he intended to sell to plaintiff the property located at 318 Morrill, with a house at the rear of the property, and which went all the way to the fence; that there was an old fence, and that there was a small space between the house and such fence of about three feet; that it was his thinking that this was the boundary line between the property Mrs. Kilday intended to retain and the property that she intended to sell to plaintiff. This testimony does not indicate any dispute, doubt or uncertainty as to the location of the boundary line.

Mary Doria testified that she lives at 313 East Hart Street, and that she bought the property that immediately backs up to plaintiff’s property; that her deed was dated February 26, 1974, and that Mrs. Kil-day was the seller; that she subsequently received a plat to the property a short time thereafter, and that the plat indicated that the back fence was three feet off the line of the property and was within her property; that she subsequently had the fence moved; that the survey was made after she bought the property; that when she bought the property she knew where the existing fence was; that at the time she bought the property she thought she was buying the property up to the fence line. There is nothing in her testimony which indicates that at the time she bought the property, there was any dispute, doubt or uncertainty as to the location of the boundary.

There is nothing whatsoever in any of the testimony to indicate any uncertainty, doubt or dispute as to the boundary line.

Plaintiff argues that a boundary line may be established by acquiescence. The doctrine of boundary by acquiescence has been recognized in Texas and other authorities, but in Texas it is generally applied only from an evidentiary standpoint. Moreover, just as the validity of an express parol boundary agreement depends upon the existence of doubt or uncertainty as to the correct line, the effect to be given acquiescence as evidence of the correct line is also dependent upon the existence of doubt or uncertainty. Lagow v. Glover, 77 Tex. 448, 14 S.W. 141 (1890); Boothe v. Fuentes, 262 S.W .2d 754 (Tex.Civ.App.—San Antonio 1953, no writ). Justice Norvell, in Boothe v. Fuentes, supra, set forth the applicable law as follows: “As we understand the doctrine of boundary by acquiescence, it must be shown that there was some uncertainty as to the true boundary, which resulted in a line being established (generally by a fence), and that thereafter the adjoining land owners acquiesced in and recognized this line as the true boundary line between them. The mere erection of a fence off the boundary line is not in itself sufficient to make the doctrine applicable. Uncertainty of boundary must be shown. . . . The judgment can not be upheld upon the theory of boundary by acquiescence or agreement.”

The only evidence in the record with regard to the fence is that it was an old fence. There is no evidence as to when it was built, who built it, or just what w'ere the reasons or circumstances for building it. As discussed in some detail heretofore, there is no evidence of any dispute, doubt or uncertainty as to the true boundary which resulted in a line being established.

Mrs. Kilday did not testify. The only acts of Mrs. Kilday shown in the record are the two warranty deeds, one conveying Lots 7 and 8 to plaintiff and the other conveying Lots 19 and 20 to defendants; and a contract of sale between Mrs. Kilday and defendants. Neither the contract of sale nor the warranty deed contain any reservation or exception to any portion to Lots 19 and 20 nor any diminution in quantity of such lots in any respect, and such instruments evidence an intent on her part to convey such lots intact.

Moreover, it is to be noted that plaintiffs contentions with regard to a boundary line agreement are predicated upon an assumption that any such agreement was made by Mrs. Kilday with plaintiff, through the real estate broker. While there is no evidence that any such agreement was made, there is also no evidence of any authority on the part of said real estate broker to make any such agreement for Mrs. Kilday. The only evidence as to his agency is that he had an exclusive listing to sell such property. Generally speaking, a real estate broker is a special agent engaged by others to negotiate bargains or contracts for the sale or lease of real estate between other persons and for which he is paid a commission, usually by the seller. The law makes the real estate broker the special and not the general agent of the vendor and he can bind his principal only as a special agent. Donigan v. Policek, 34 S.W.2d 375 (Tex.Civ.App.—San Antonio 1930, writ dism’d); Philip A. Ryan Lumber Co. v. Conn, 20 S.W.2d 388 (Tex.Civ.App.—Beaumont 1929, writ dism’d); 9 Tex.Jur.2d Brokers § 1 (1969). In Loma Vista Development Co. v. Johnson, 142 Tex. 686, 180 S.W.2d 922 (1944), the court said: “It is clear to us that he was a special agent whose authority was limited to showing the property and finding a purchaser, and that he had no authority to consummate the sale. . . That a real estate broker ordinarily is only a special agent is the reason for the uniform decisions of this court that, in the absence of special agreement, he is entitled to his commission when he finds one who is ready, able and willing to buy on his principal’s terms because he has done all that his employment requires or authorizes him to do.”

Plaintiff wholly failed to plead or prove the authority of such real estate broker to enter into any boundary line agreement on behalf of Mrs. Kilday.

The judgment cannot stand for the following reasons: (a) plaintiff wholly failed to prove a superior title to the property involved, (b) plaintiff wholly failed to prove any record title in him to the property involved, (c) plaintiff neither pled nor proved any title by limitation, (d) there is no evidence of any dispute, doubt or uncertainty as to the location of the boundary line, (e) plaintiff wholly failed to prove any boundary line agreement, (f) plaintiff failed to plead or prove any authority of the real estate broker to enter into a boundary line agreement on behalf of the seller.

The judgment is reversed and judgment here rendered that plaintiff take nothing.

      . In Voigt v. Hunt, 167 S.W. 745 (Tex.Civ.App.—Austin 1914, writ dism’d), the court said: “Hence, it is essential to the validity of an oral agreement to fix a boundary line that such line be in dispute, and that its true location be unknown to the parties making the agreement. Otherwise the fixing of such boundary by oral agreement would be passing title to real estate contrary to the statute of frauds.”
      See also F. Lange, Texas Practice, Land Titles § 422 at 262 (1961): “As a general rule, oral agreements relating to boundaries or division lines will be sustained and held binding provided the line is in dispute and its true location unknown, since if known, it would amount to an attempted conveyance and being supported only by a parol agreement would be unenforceable.”


author: CADENA, Justice.

text:
    HARTFORD ACCIDENT & INDEMNITY CO., Appellant, v. Lillian B. HOOTEN et vir., Appellees.
    No. 15394.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 26, 1975.
    Rehearing Denied Dec. 31, 1975.

      Hobart Huson, Jr., Kellogg L. O’Connor, Huson, Clark, Thornton & Summers, San Antonio, for appellant.
    Putman & Putman, Michael Putman, San Antonio, for appellees.
   CADENA, Justice.

In this workmen’s compensation case defendant, Hartford Accident & Indemnity Co., appeals from a judgment, based on a jury verdict, awarding plaintiff, Lillie M. Hooten, compensation for injuries suffered by her.

The only questions before us concern the legal and factual sufficiency of the evidence to sustain the jury findings that plaintiff, at the time of her injury, was the employee of defendant’s insured, Del Rio Nursing Home and that, at such time, she was acting within the course of her employment.

Plaintiff is a nurse’s aid. She had worked as a nurse’s aid in hospitals and nursing homes for some years and had, from time to time, been employed for private duty by particular patients. In April, 1970, she was employed as a private duty “nurse” to care for an elderly person, Mrs. Herbst, in the home of the patient. Three or four weeks later, Mrs. Herbst suffered a mild stroke, and the attending physician decided that she should be placed in the Del Rio Nursing Home.

Mrs. Herbst’s family decided that she should have private “nurses” while she stayed at the Nursing Home. Plaintiff continued to tend to Mrs. Herbst at the Nursing Home, working an 8-hour shift from 7:00 o’clock A.M. to 3:00 o’clock P.M. She continued to be paid for her services by the Herbst family.

When Mrs. Herbst was admitted to the Nursing Home, plaintiff had a conversation with Mrs. Petty, who was in charge of the Home. Mrs. Petty told plaintiff that plaintiff would be responsible for the bathing and feeding of her patient and for the general care of the patient. This included cleaning Mrs. Herbst’s room, changing the bed linen daily, administering the prescribed medicines, exercising the patient, and, in general, taking care of the patient’s needs. According to plaintiff, she was told that her duties included taking the soiled linens to the laundry room and returning the food trays to the kitchen after her patient had been fed. Plaintiff testified that she “had no doubt” that if she failed to perform her duties or disobeyed instructions given by the nursing supervisor or the “charge nurse” the operators of the Nursing Home could dismiss her or have her dismissed.

According to plaintiff, she was “told what to do and how they did it” at the Nursing Home by the operator of the Home and the nurse’s supervisor. Her instructions from Mrs. Herbst’s son was merely that she should do whatever Mrs. Petty and the nurses told her to do. She testified as follows: “[w]hen I am on a case I am under the nurse. If she told me to go in there and stand on my head that is what I do because she is responsible to that doctor, . . . ”.

It was the policy of the Nursing Home to charge private duty nurses for meals. However, plaintiff entered into an agreement with the management to the effect that if she “helped out” with the other patients, she would not be charged for her meals. The evidence is undisputed that she did, in fact, help care for other patients, and she testified that she usually stayed at the Nursing Home an extra hour in order to do this.

On the date of her injury, she was told that there would be a “State Board” inspection that day, and that it would be “appreciated” if she would bathe and feed Mrs. Herbst, change the bed linen, clean the room and change Mrs. Herbst’s gown as early as possible so that all would be in readiness for the inspection. She performed these tasks, which did not differ from her daily routine, except for the fact that she apparently made an effort to perform them earlier than usual. She then took the soiled linen to the laundry room because “they were fixing to wash.” Prior to going to the laundry room she had placed her patient in a wheel chair and wheeled her to the nurse’s station, where she left the patient while she went to the laundry room. On the way back from the laundry room she slipped and fell, injuring her knee.

According to plaintiff, Mrs. Petty told her that while Mrs. Herbst was asleep, resting or in the sun room, plaintiff should help with the other patients. However, plaintiff stated that her primary obligation was to Mrs. Herbst, and that if Mrs. Herbst needed her she could not be forced to do anything for anyone else.

The evidence establishes that if plaintiff had not been employed by the Herbst family to take care of Mrs. Herbst, regular employees of the hospital would have attended to Mrs. Herbst’s needs and would have performed all the tasks performed by plaintiff.

When plaintiff needed help in ministering to Mr. Herbst’s needs, she would ask for, and receive, assistance from employees of the Nursing Home.

The traditional test for determining whether a relationship is that of employer and employee is the right of tjie alleged employer to control the details of the work. It is said that it is the right of control, rather than the exercise of the right, which is decisive. If the right of control of details goes no further than is necessary to insure a satisfactory result, the relationship is not that of employer-employee. Anchor Casualty Co. v. Hartsfield, 390 S.W.2d 469 (Tex.1965); Goodnight v. Zurich Ins. Co., 416 S.W.2d 626 (Tex.Civ.App.—Dallas 1967, writ ref’d., n. r. e.); Larson, Workmen’s Compensation Sec. 44 (Desk. ed. 1974).

It must be borne in mind that the compensation concept of “employee” is narrower than the common law concept. For compensation purposes, Sec. 1 of Article 8309, Tex.Rev.Civ.Stat.Ann., defines the term “employee” as meaning “. . . every person in the service of another under any contract of hire, expressed or implied, oral or written . . . .” At common law, at least for purposes of vicarious liability, it is possible to create the relationship of employer-employee without a contract. Restatement 2d, Agency Sec. 221, comment c (1958).

There is here no evidence of a contract of hire, express or implied, between plaintiff and the Nursing Home in connection with plaintiff’s acts in caring for Mrs. Herbst under her agreement with the Herbst family, as distinguished from the tasks performed by plaintiff while helping to care for other patients in exchange for her meals. The fact that plaintiff received, according to her testimony, rather detailed instructions from the nurse’s supervisor is relied on heavily by her in her brief. The fact that the hospital had established certain procedures to be followed and regulations and rules to be observed by private duty nurses is no evidence of the existence of an employer-employee relationship between plaintiff and the Nursing Home. It is abundantly clear from the record that most of the “instructions” which plaintiff received from the nurse’s supervisor or from the charge nurse consisted of thé mere relaying to plaintiff of instructions given by Mrs. Herbst’s attending physician. In order for the Nursing Home to function efficiently, it was, of course, necessary that established procedures be followed. This would be true even if the person caring for Mrs. Herbst were her son, rather than a person employed by the Herbst family.

Nor is it important that plaintiff testified that if one of the nurses told her to stand on her head she would have done so. In the Hartsfield case our Supreme Court, in holding that there was no more than a scintilla of evidence of the existence of the employer-employee relationship, said that the only evidence concerning right of control was the testimony that the alleged employee would have done whatever he was told to do by the alleged employer. 390 S.W.2d at 471.

The few cases involving the status, for compensation purposes, of private duty nurses are in agreement that such persons are not employees of the hospital, although they are, of necessity, subject to regulations for the orderly governance of the hospital. Edith A. Anderson Nursing Homes, Inc. v. Walker, 232 Md. 442, 194 A.2d 85 (1963); McDonald’s Case, 345 Mass. 766, 187 N.E.2d 388 (1963); David v. Employer’s Mutual Ins. Co. of Wausau, 124 N.J.Super. 377, 307 A.2d 123 (1973); Brown v. St. Vincent’s Hospital, 222 App.Div. 402, 226 N.Y.S. 317 (1928).

It is possible, of course, that even if plaintiff was not the employee of the hospital while performing her duties with respect to Mrs. Herbst, she could have the status of the hospital’s employee with respect to other work. Houston Fire & Casualty Ins. Co. v. Farm Air Service, 325 S.W.2d 860 (Tex.Civ.App.—Austin 1959, writ ref’d. n. r. e.). It is clear that there is sufficient evidence to support a finding that plaintiff was the Nursing Home’s employee while she was helping, in accordance with her agreement, to tend to patients other than Mrs. Herbst. But the determinative factor is her status at the time she was injured. According to her testimony, she was injured while performing a task that she routinely performed as a part of her obligation to care for Mrs. Herbst, as distinguished from a task she was called upon to perform in exchange for her meals.

Since there is no evidence to support the finding that, at the time of her injury, plaintiff was the employee of defendant’s insured, the trial court erred in overruling defendant’s motion to disregard such finding and render judgment for defendant.

The judgment of the trial court is reversed and judgment is here rendered that plaintiff take nothing.


text:
    Reymundo TELLEZ, Administrator of the Estate of Josefa Guerra Tellez, Deceased and Lorenza Tellez, Appellants, v. Rosita Duran TELLEZ, Appellee.
    No. 6471.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 26, 1975.
    Rehearing Denied Dec. 31, 1975.

      Arturo R. Aguirre, El Paso, for appellants.
    Santiesteban, Kennedy & Martin, Terrence F. Srsen, H. Tati Santiesteban, El Paso, for appellee.
   OPINION

OSBORN, Justice.

This case involves a bailment of $10,-000.00 in cash which Rosita Tellez’ husband, Nicolas, left with his mother, Lorenza Tel-lez, while visiting in El Paso in June, 1972. During that visit, Nicolas was shot and killed, and in August, 1972, when Josefa Tellez, Nicolas’ aunt, died, a substantial amount of cash was found in her home. The Appellee contends that Lorenza did not return the money to Nicolas prior to his death and that $10,000.00 of the cash found at Josefa’s home belonged to Nicolas. The Estate of Josefa Tellez appeals from an adverse judgment based upon a jury verdict.

We first consider, sua sponte, whether there is a final judgment from which an appeal can be taken. Rosita’s First Amended Original Petition seeks judgment against the Administrator of the Estate of Josefa Tellez as defendant, and in the alternative, judgment against Lorenza Tellez as co-defendant. The case was tried on the merits with counsel for both answering defendants fully participating. The jury found that Nicolas delivered $10,000.00 to Lorenza, but failed to find she returned it. It also found that of the money found at the home of Josefa after her death, $10,000.00 belonged to Nicolas and $2,246.40 belonged to Josefa. Thereafter, the trial Court entered a judgment providing that Rosita recover judgment against the Estate of Josefa Tellez in the amount of $10,000.00, plus interest and costs. The judgment makes no mention of the claim against Lorenza Tellez. A judgment which does not dispose of all the issues and all the parties is not final, it is not enforceable and no appeal can be prosecuted therefrom. Gulf, C. & S. F. Ry. Co. v. Fort Worth & N. O. Ry. Co., 68 Tex. 98, 2 S.W. 199, 3 S.W. 564 (1886); Wagner v. Warnasch, 156 Tex. 335, 295 S.W.2d 890 (1956); Community Natural Gas Co. v. Henley, 11 S.W .2d 206 (Tex.Civ.App.—Texarkana 1928, no writ); Moore v. Ferrier, 39 S.W .2d 120 (Tex.Civ.App.—Eastland 1931, no writ).

In order to avoid this reoccurring problem with poorly drafted judgments, the Court in North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966), sought to provide a way for review of what would otherwise be interlocutory judgments by use of a presumption. 20 Sw.L.J. 227 (1966). In that case, the Court said:

“When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered pursuant to Rule 174, Texas Rules of Civil Procedure, it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties.”

The Court then went further and said:

“Under the rule announced, the presumption is that the judgment entered on October 7, 1964, disposed of Aldridge’s cross-action against King-O-Hills Development Company; and in the absence of a contrary showing in the record, we hold that the judgment entered on that date was a final judgment.”

That decision has been consistently followed in other cases similar to the one now before this Court. Hoover v. Barker, 507 S.W.2d 299 (Tex.Civ.App.—Austin 1974, writ ref’d n. r. e.), and Johnston v. Felker, 459 S.W.2d 923 (Tex.Civ.App.—Beaumont 1970), reversed in part on other grounds, 469 S.W.2d 389 (Tex.1971). We conclude that the judgment entered by the trial Court was a final judgment. We reach this result partly because Rosita sought relief against Lorenza only in the alternative, and having recovered judgment against the Estate, she was not entitled to any judgment against Lorenza under her amended pleading. In any event, the better practice would have been for the trial Court to provide that no relief was granted as against Lorenza Tellez, or that all relief not granted was denied, as suggested in the Aldridge case.

Appellant’s first point of error complains of the trial Court’s failure to grant a motion for instructed verdict because there was no evidence that the money found at the house of Josefa Tellez was the money left by Nicolas Tellez with his mother, Lor-enza Tellez. Admittedly, there was no direct evidence on this issue, but Appellee contends the circumstantial evidence was sufficient to raise a fact issue and support the jury finding. We must necessarily review the evidence to decide the point of error.

Nicolas, Rosita and their children drove from their home in California to El Paso to visit their families. At the time, there were some hard feelings between some of Rosita’s family and her husband. Upon arriving at his parents’ home on a Sunday afternoon, Nicolas placed on his mother’s bed a large number of small bills which he counted and tied with thread in bundles of $1,000.00 each. According to Rosita’s testimony, there was exactly $10,000.00 in cash. All of the money, plus a jewelry box, were left with Lorenza for safekeeping. Lorenza acknowledged receiving the cash from her son, but denied knowing exactly how much money she received from him.

On Wednesday, someone shot at their car while Nicolas and Rosita were in it, but they were not injured, although the windshield was broken. Lorenza said Nicolas came to her house and got his money and the jewelry box on Thursday afternoon. Rosita testified that she and Nicolas and her sister and their children went on a picnic on Thursday, and then back to her sister’s home for dinner, and that her husband did not go to his mother’s house on that date. She said on Friday they got the car windshield replaced and then Nicolas went to his mother’s house for about thirty minutes and brought back the jewelry box he had left there. Rosita’s sister corroborated such testimony, and also testified that when Nicolas left her house on Saturday, he told her and Rosita not to worry about him, and that if anything happened to him, his mother still had the money. That evening he was shot and killed.

On Sunday morning Rosita went to her mother-in-law’s house to get the money and was told by Lorenza that she had returned the money to Nicolas. Rosita then went to see a Justice of the Peace in Clint, who questioned Lorenza, and she also told him that the money had been returned to Nicolas prior to his death.

On August 5, 1972, the Justice of the Peace at Socorro was summoned to the house of Josefa Tellez, where she had died unattended. The Justice of the Peace testified that a search of the house disclosed a tool box with eight rolls of money tied up with string containing approximately $10,-300.00. He said the rolls contained different sums of money. The Justice of the Peace said he also discovered a tobacco can in the tool box containing approximately $2,020.00 in cash. The actual receipts for the money showed the total amount of cash found in Josefa’s house was $12,246.40.

Two neighbors of Josefa testified that a day or two after Nicolas’ funeral they saw Lorenza’s husband and her son at Josefa’s house. They did not see them take anything into the house. The son testified and denied being there on that occasion. The husband did not testify. Rosita acknowledged that the only proof she had about the money was that the visit was made, which the son had denied, and that normally none of Lorenza’s family ever went to visit Josefa. Both Lorenza and her son denied giving any money to Josefa.

In passing on the “no evidence” point of error, we must consider only the evidence and inferences tending to raise a fact issue and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). There is no direct evidence that either Lorenza’s husband or son ever had the money involved in this dispute. Both Lorenza and Rosita testified that Nicolas gave the $10,000.00 to his mother, and the jury so found in answer to Special Issue No. 1. Neither is there any direct evidence that Lorenza’s husband or son took anything into Josefa’s house. There is also no direct evidence that if $10,000.00 was in fact delivered to Josefa, that prior to her death she added some money to that delivered to her.

To conclude that the money found by the Justice of the Peace at Josefa’s house after her death belonged in part to Nicolas, it is necessary to infer that Lorenza gave the money to either her husband or her son; to further infer that while the husband or son was at Josefa’s house they delivered such money to her; and then to further infer that at some time prior to her death Josefa added some of her own cash to the $10,000.00 delivered to her, in order to account for all of the money found by the Justice of the Peace.

Such inference upon an inference to reach a given result is not permitted because the ultimate fact thus arrived at is too conjectural and speculative to support a judgment. Briones v. Levine’s Department Store, Inc., 446 S.W.2d 7 (Tex.1969); 3 McDonald, Texas Civil Practice § 11.28.3 (1970). To permit the establishing of a vital fact by piling inference upon inference violates the rule which requires that a vital fact be established by something more than a mere scintilla. Schlumberger Well Surveying Corporation v. Nortex Oil and Gas Corporation, 435 S.W.2d 854 (Tex.1968).

Concluding that there was no evidence to raise a fact issue as to the cause of action against the Administrator of the Estate of Josefa Tellez, we sustain the Appellant’s first point of error. The judgment of the trial Court is reversed and judgment is here rendered for the Appellant.


author: PER CURIAM.

text:
    TEXAS ALCOHOLIC BEVERAGE COMMISSION, Appellant, v. Frank STUMBAUCH, Appellee.
    Nos. 15074, 15076.
    Court of Civil Appeals of Texas, Austin.
    Dec. 3, 1975.

      John L. Hill, Atty. Gen., Max P. Flusche, Jr., Asst. Atty. Gen., for appellant.
    Earl L. Yeakel, III, Kammerman, Yeakel, Hineman & Trickey, Austin, for appellee.
   PER CURIAM.

Appellant, the Texas Alcoholic Beverage Commission, filed with the Clerk of this Court an original and an amended motion to extend the time for filing the transcript and statement of facts in the above case. We will overrule the motions.

The events culminating in the filing of appellant’s motions are as follows. The judgment was entered on September 12, 1975. As a motion for new trial was not filed, the last day for filing the record in this Court was November 12,1975. Appellant filed with the district clerk of Bell County a written request for the preparation of the transcript on November 10,1975. On November 12, 1975, appellant filed its original motion for extension of time to file the transcript with the Clerk of this Court. Appellant tendered the transcript and statement of facts for filing with the Clerk of this Court on November 13, 1975.

Tex.R.Civ.P. 386 provides that by motion timely filed with the Clerk of the Court of Civil Appeals “good cause” may be shown why the transcript could not have been filed within the prescribed time.

Appellant filed its motion for extension of time within the time permitted by Rule 386. This Court is authorized to extend the time for filing the transcript upon a showing of “good cause” why the transcript could not have been filed within the sixty-day period.

In its original and amended motions for extension of time for filing the transcript appellant asserts as “good cause” for the late filing that its counsel had “ . been tied up in several pressing matters, including the O. P. Carillo case in Corpus Christi and oral arguments before the Fifth Circuit Court of Appeals in New Orleans, and has not had sufficient opportunity to obtain said transcript.” (Emphasis added)

In its original motion filed on November 12, appellant also averred that its counsel had been advised by the district clerk that the transcript was placed in the mail on November 11, and that the transcript should be available for filing no later than November 14, 1975.

It is observed that neither the original nor the amended motion is verified, nor is either supported by documentary proof.

Appellant filed its written request for the preparation of the transcript fifty-nine days after the entry of the judgment. Such request was not made within a reasonable time after the entry of judgment, and had the clerk been unable to prepare the transcript within time, “good cause” would not have existed. Wigley v. Taylor, 393 S.W.2d 170 (Tex.1965), Vaughan v. Commercial Insurance Company, 476 S.W.2d 428 (Tex.Civ.App.1972, no writ), Save Our City Org. of San Antonio v. Texas Hwy. Com’n., 521 S.W.2d 895 (Tex.Civ.App.1975, writ ref’d n.r.e.).

Despite the tardy hour of the order for the transcript, the district clerk was able to prepare the transcript in advance of the last day for filing in this Court. The transcript shows that the district clerk executed the certificate of the transcript on November 11, 1975. The endorsement on the transcript shows that the transcript was “ . delivered by Registered Mail to Attorney for Deft, on the 11 day of November A.D. 1975.”

It is the responsibility of the party who ordered the transcript, and not that of the district clerk, to see that the transcript is filed with the Clerk of the Court of Civil Appeals. City of Temple v. Thomas, 507 S.W.2d 858 (Tex.Civ.App.1974, writ ref’d n.r.e.), Texaco Inc. v. Texas Air Control Board, 520 S.W.2d 417 (Tex.Civ.App.1975, no writ), see Lewis v. Lewis, 125 S.W.2d 375 (Tex.Civ.App.1939, writ ref’d). The transcript was available on November 11. It was appellant’s duty to obtain the transcript and file it with the Clerk of this Court by November 12. Belton, about fifty-nine miles from Austin, is within easy driving distance. Appellant’s co-counsel, or one of his agents, could have secured the transcript and filed it with the Clerk of this Court on November 12. Instead, that appellant chose to risk the delays of the United States Mail. Appellant by its motions has failed to show why the transcript could not have been filed within the sixty-day period specified in Tex.R.Civ.P. 386. Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (1952), Massey v. Brindley, 296 S.W.2d 296 (Tex.Civ.App.1956, writ ref’d).

The motions for extensions of time are overruled.

Motions overruled.

      . November 11, 1975, was the sixtieth day from the entry of judgment. November 11, however, was a legal holiday. As a result the last day for filing the record was November 12, 1975. Tex.R.Civ.P. 4.

      . Tex.R.Civ.P. 5 is not applicable. The transcript was mailed to appellant’s counsel and not to the Clerk of this Court. Moreover, appellant did not attach to the motion the envelope in which the transcript was mailed showing that it was “ . . . deposited in the mail one day or more before the last day for filing same . . . ”