text:
    Ex parte Ernest HUFF.
    No. 59774.
    Court of Criminal Appeals of Texas, Panel No. 3.
    April 11, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS and TOM G. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

This is an application for writ of habeas corpus filed pursuant to Article 11.07, V.A. C.C.P. Petitioner contends that he was denied due process of law at his 1967 robbery trial because the issue of his competence to stand trial was decided by the same jury that decided the-merits of the case.

Huff was indicted for robbery by assault on March 13, 1967, by a Roberts County grand jury. An attorney was appointed to represent Huff and a change of venue to Lipscomb County was granted. Trial began on October 16, 1967. Huff was convicted and punishment was assessed at twenty years. No appeal was taken.

Petitioner filed the instant application in the convicting court. The current judge of that court was also the presiding judge of the 1967 trial. The judge entered the following findings of fact:

“1. Petitioner was examined prior to trial at the request of Mr. John W. Warner, Attorney for Petitioner, by Dr. Hugh A. Pennal of Amarillo, Texas, an experienced and well regarded psychiatrist who was appointed by the Court. Both the District Attorney, the Honorable Bill W. Waters, Pampa, Texas, and Mr. Warner agreed that Dr. Pennal was satisfactory and was a proper appointee.
“2. Dr. Pennal communicated his findings that the petitioner was sane and able to stand trial to both Mr. Warner and Mr. Waters, who in turn so informed the Court.
“3. Although there was no indication before the Court that petitioner was not sane and unable to stand trial, the Court granted the written motion of Mr. Warner, Exhibit No. 3, to allow evidence of the sanity of the petitioner, both present and at the time of the offense, to be presented at the trial on the merits and for the Court to declare a mistrial if present insanity existed. This procedure tracked the provisions of Article 46.-02, Texas Code of Criminal Procedure, as they existed at the time of the trial in October, 1967.
“4. At the trial the jury found the petitioner to be presently sane and then proceeded to find him guilty. The procedure at the trial followed exactly what was requested by Mr. Warner, Attorney for the Petitioner, and without any objection from the petitioner.”

The conviction of an accused while he is incompetent to assist with his defense and fully understand the proceedings against him violates those fundamental notions of fairness embodied by due process. Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956). State procedures must be adequate to ensure that an incompetent individual is not tried. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Ex parte Hagans, 558 S.W.2d 457 (Tex.Cr.App.1977). These procedures are not adequate unless there is a separate hearing for determination of competency. Ex parte Hagans, supra; Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968).

Separate and distinct from these evolving constitutional standards, Article 46.02, V.A. C.C.P., as then written, provided a framework for determining competency to stand trial. Article 46.02 provided for the issue of competency to be submitted to the jury when such was requested by the defense.

As found by the convicting court, the competency issue was submitted to the jury at the same time the merits of the case were. This procedure does not meet the constitutional requirements of a separate competency hearing. This procedure did, however, satisfy the statutory requirements.

Our inquiry does not end with the conclusion that the competency proceedings were not constitutionally adequate. If there was no underlying constitutional interest to be protected, the fact that the procedure was inadequate would not deny petitioner due process. Thus, we must inquire if the competency hearing was constitutionally required. Such a hearing is required when the evidence raises a bona fide doubt as to the accused’s competence. Pate v. Robinson, supra.

In Vardas v. State, 488 S.W.2d 467 (Tex.Cr.App.1972), relied upon by petitioner, the jury was charged that “ ‘[ejvidence has been introduced in this case raising the issue of present insanity.’ ” From this charge we concluded, “Obviously, during the trial, evidence of the appellant’s present competence became manifest.”

In the instant case, the charge did not contain any such language referring to the evidence. At the time of trial, Article 46.02 required the issue to be tried upon request. Petitioner’s counsel filed a motion asking that the issue be tried. The motion contained only the simple conclusory allegation that petitioner “is a person of unsound mind at this time." No facts were set out nor affidavits attached. In view of the language of the charge, the statutory law and the request made by petitioner, we do not conclude that any inference can be made from the fact that the competency issue was submitted to the jury.

Thus, the record before us indicates that petitioner was examined by a psychiatrist who was approved by counsel for both sides. The psychiatrist concluded petitioner was competent to stand trial. The trial judge did not observe any indication of petitioner’s incompetence. The motion filed by counsel seeking a competency hearing contains only legal conclusions.

Based on the findings of the trial court, which are supported by the record, we conclude that the only evidence to suggest incompetence was the conclusory motion filed by counsel. This must be considered in the face of a psychiatric report, made by an independent psychiatrist, finding petitioner competent. On this record, we find there was no reasonable doubt raised concerning petitioner’s competence to stand trial. The competence hearing was not constitutionally required. See Ex parte Long, 564 S.W.2d 760 (Tex.Cr.App.1978). Since the hearing was not required, the inadequacies of the procedure did not deny petitioner due process.

The relief requested is denied.


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Osvaldo Lujan JACQUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 60476.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 11, 1979.

      H. Thomas Hirsch, Odessa, for appellant. Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

Appellant waived his right to trial by jury and pled guilty to the offense of indecency with a child; punishment is imprisonment for five (5) years.

Two interesting questions heretofore undecided by this court are presented. The sufficiency of both the indictment and the evidence are questioned.

The indictment alleged that on or about December 5,1977, appellant did “unlawfully engage in sexual contacts with S_ W_ and R_ W_, both male children and both younger than 17 years of age, by then and there forcing both said minors to touch OSVALDO LUJAN JACQUEZ’s exposed penis with the intent to arouse and gratify the sexual desire of the said OSVALDO LU-JAN JACQUEZ.”

Appellant signed a written waiver of his rights to trial by jury and to confront the witnesses against him. He also agreed to stipulate to certain evidence, the relevant portion of which is as follows:

“S_ W_ of Wickett, Texas, if called to testify would state that on December 5, 1977 he and his brother, R_ W_, hereinafter called ‘R_’, were visiting their Grandmother, Anita Naegele, who lives across the street from Sudderth Elementary School in Monahans, Ward County, Texas; that on said date, between 5:00 and 6:00 o’clock p. m. he and IU started to the playground area of said school when an adult, Mexican-American male (who he would identify as the Defendant in this Courtroom today, OSVALDO LU-JAN JACQUEZ, hereinafter called ‘Jac-quez’) grabbed both his and R_’s hands, drug them behind said school building and forced him and R_ to both ‘touch and scrub’ Jacquez’s exposed penis; that he then ran around the corner of said building, waited a short time, and ran back and tricked Jacquez by yelling that their ‘Mother was coming to get them’; that at the time he was so yelling ‘their Mother was coming’ R_ was trying to pull away from Jacquez and Jacquez kicked R_ but R_ pulled away and he and R-_ ran to their Grandmother’s house; that R_ is a 4 year old male and that he was an 8 year old male on April 10, 1978; that neither he nor R_ are related in any way to Jacquez and that neither he nor R_ consented to any aforesaid acts forced upon them by Jacquez.”

Appellant first urges that the court erred in overruling his motion to quash the indictment because it did not allege that the complainants were “not his spouse.”

V.T.C.A., Penal Code, § 21.11, Indecency with a Child, provides, in pertinent part, as follows:

“(a) A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he:
“(1) engages in sexual contact with the child; or
“(2) exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of any person.”

Under former Penal Codes, the State was not required to allege, in an indictment for rape by force, that the injured female was not the wife of the defendant, Craig v. State, 478 S.W.2d 86 (Tex.Cr.App.1972); Lee v. State, 169 Tex.Cr.R. 300, 334 S.W.2d 289 (1960), although such an allegation was necessary when the indictment was for rape of a female under the age of consent. Love V. State, 499 S.W.2d 104 (Tex.Cr.App.1973); Bullock v. State, 122 Tex.Cr.R. 121, 54 S.W.2d 91 (1932). It was not an element of the offense of fondling under the former Penal Code that the injured party not be the spouse of the accused. Article 535d, V.A.P.C.

The indictment in the instant case obviously alleges that both the appellant and the complainants were males. As such, they could not have obtained a license to marry. V.T.C.A., Family Code, § 1.01. Nor, contrary to appellant’s assertion, could they have entered into a common law marriage.

“A common-law marriage exists when a man and [a] woman enter into an agreement to become husband and wife, and, in pursuance of such agreement, do live together and cohabit as husband and wife, and hold each other out to the public as husband and wife.” (Emphasis added.)

Berger v. Kirby, 105 Tex. 611, 153 S.W. 1130 (1913). See Bell v. State, 137 Tex.Cr.R. 401, 129 S.W.2d 664 (1939).

The indictment, viewed in its entirety, sufficiently apprised appellant of the charge against him and allowed him to prepare his defense. Appellant’s substantial rights were not prejudiced by the omission of which he complains. See Article 21.19, V.A.C.C.P.; Love v. State, supra. The court did not err in overruling appellant’s motion to quash.

Appellant urges that the evidence is insufficient to sustain the conviction because the State did not prove that appellant engaged in “sexual contact” within the statutory meaning of that term. Specifically, appellant argues that the evidence shows only that he forced the complainants to touch his genitals, and that sexual contact occurs only when the accused touches the victim’s genitals.

V.T.C.A., Penal Code, § 21.01(2), provides as follows:

“(2) ‘Sexual contact’ means any touching of the anus or any part of the genitals of another person or the breast of a female 10 years or older with intent to arouse or gratify the sexual desire of any person.”

We agree with appellant that the statutory definition of sexual contact seems to contemplate that sexual contact occurs when the accused touches the victim’s genitals, and not vice versa. However, the statutory definition of indecency with a child provides that a person commits an offense if he “engages in sexual contact with the child . . .” (Emphasis added.) § 21.-11(a)(1), supra. By grabbing the complainants and forcing them to “touch and scrub” appellant’s penis, appellant engaged in sexual contact with the complainants. See also, V.T.C.A., Penal Code, § 7.02(a)(1). The evidence is sufficient to sustain the conviction.

The judgment is affirmed.


author: ROBERTS, Judge.

text:
    Ex parte Richard Clay CARNES.
    No. 60648.
    Court of Criminal Appeals of Texas, Panel No. 2.
    April 11, 1979.

      Richard E. Wetzel, Rosharon, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

ROBERTS, Judge.

This is a post-conviction application for writ of habeas corpus. We have a bare transcript before us. The petition alleges that the applicant (1) was a juvenile, (2) who was certified as an adult, and (3) was not afforded an examining trial before being prosecuted for aggravated rape. The State made no reply. Because the State admitted none of the matters which were alleged, they are deemed denied. V.A.C. C.P., Article 11.07, Section 2(b). Thus they are controverted. There is no proof of these matters in the record. The trial court took no action for more than 20 days, which constitutes a finding that there are no controverted, previously unresolved facts material to the legality of the applicant’s confinement. V.A.C.C.P., Article 11.07, Section 2(c). This finding obviously is an abuse of discretion, because all the controverted allegations of fact mentioned above are material, and there is nothing in the record (neither a statement of facts from an evi-dentiary hearing nor any findings of fact) to show that they have been resolved.

“To resolve those issues the [convicting] court may order affidavits, depositions, interrogatories, and hearings, as well as using personal recollection.” V.A.C.C.P., Article 11.07, Section 2(d). In some cases the court can make findings of fact without a hearing. Ex parte Davila, 530 S.W.2d 543 (Tex.Cr.App.1975). But we must have findings of fact (V.A.C.C.P., Article 11.07, Section 2(d)), at the least.

The cause is remanded to the district court with directions to make findings of fact on the controverted, previously unresolved facts which are material to the legality of the applicant’s confinement.


author: CLINTON, Judge.

text:
    Ex parte William Gregory BROOKS.
    No. 60890.
    Court of Criminal Appeals of Texas, En Banc.
    April 11, 1979.

      Constance Smith McGuire, Asst. County Atty., Waxahachie, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

CLINTON, Judge.

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

On July 12,1977, petitioner was convicted upon his plea of guilty in the 40th Judicial District Court for the offense of aggravated robbery. Punishment was assessed at five years confinement. No appeal was taken.

Petitioner now complains that his conviction is void by virtue of the fact that the district court was without jurisdiction to render judgment and sentence on his plea of guilty.

In support of such conclusion, petitioner alleges as fact that on January 18,1977, the date he was alleged to have committed the offense, he was sixteen years of age; that on March 2, 1977, a hearing was held in the 40th Judicial District Court of Ellis County, sitting as a Juvenile Court, to determine whether petitioner should be certified as an adult under Section 54.02, V.T.C.A., Family Code, and transferred to the district court jurisdiction for trial on this cause; that pursuant to this hearing, an order was entered by the Juvenile Court which effected waiver of its jurisdiction in this cause, certification of petitioner as an adult and transfer of this cause to the district court for criminal proceedings; that on May 12, 1977, petitioner was indicted for the offense of aggravated robbery without having first been afforded his right to an examining trial as mandated by Section 54.02(h), V.T. C.A., Family Code, nor without having affirmatively waived such right in accord with the provisions of Section 51.09(a), V.T. C.A., Family Code.

The application for writ of habeas corpus now before us was filed on May 22, 1978 in the 40th Judicial District Court. No hearing having been deemed necessary, the trial court entered findings of fact and conclusions of law on July 25,1978, recommending that the writ be denied. Finding from the record that petitioner is confined pursuant to that conviction of which he now complains, we conclude that this Court has jurisdiction of this cause. See Art. 11.07, Section 2(b), V.A.C.C.P.

A review of the record before us reveals that petitioner’s factual allegations are in all respects supported, and accordingly the petition for writ of habeas corpus is granted. Ex Parte Gloston, 579 S.W.2d 212, No. 58,695 (Tex.Cr.App.1979); Ex Parte Juarez, 579 S.W.2d 211, No. 58,182 (Tex.Cr.App.1979); Ex Parte Ytuarte, 579 S.W.2d 210, No. 57,995 (Tex.Cr.App.1979); White v. State, 576 S.W.2d 843 (Tex.Cr.App.1979); Menefee v. State, 561 S.W.2d 822 (Tex.Cr.App.1977).

The prosecution under the indictment in Cause No. 53,708 is dismissed and petitioner is discharged from custody in that cause. A copy of this opinion will be forwarded to the Texas Department of Corrections. It is so ordered.

      . There can be no question that petitioner’s age on the date of the commission of the offense conclusively determined that “exclusive original jurisdiction” over proceedings herein was in the Juvenile Court. See V.T.C.A., Family Code, Sections 51.02(1) and 54.02. Petitioner’s age at the time of indictment is not arguably germane in this cause. Compare V.T.C.A., Penal Code, Section 8.07(b), Acts 1973, 63rd Leg., effective January 1, 1974, with amendment thereto by Acts 1975, 64th Leg., effective September 1, 1975 [wherein apparent conflict with the Family Code in this regard was resolved],

      . It is well settled that this Court is not bound by the findings or recommendations of the trial court. Ex Parte Williams, 561 S.W.2d 1 (Tex.Cr.App.1978); Ex Parte Hagans, 558 S.W.2d 457 (Tex.Cr.App.1977).


author: AKIN, Justice.

text:
    Carl THOMAS, Sheriff, Appellant, v. INTERNATIONAL FIDELITY INSURANCE COMPANY OF NEWARK, NEW JERSEY, et al., Appellees.
    No. 19649.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 11, 1979.
    Harry J. Schulz, Jr., Asst. Dist. Atty., Henry M. Wade, Dist. Atty., Dallas, for appellant.
    Earl B. Erwin, Jr., John S. Brunson, Brunson, Erwin & Byrom, Houston, for ap-pellees.
    Before GUITTARD, C. J., AKIN and ROBERTSON, JJ.
   AKIN, Justice.

The sole question presented on this appeal is whether the sheriff of Dallas County may require insurance companies, duly authorized to write fidelity and surety bonds under the Insurance Code, to post security for bail bonds in addition to the five thousand dollars set forth in section 6(d)(1) of Tex.Rev.Civ.Stat.Ann. art. 2372p-3 (Vernon Supp.1978) (dealing with licensing and regulation of bail bondsmen). We hold that the sheriff is granted discretion to require additional security from such companies. Accordingly, we reverse the judgment of the trial court and render judgment in favor of the sheriff.

This case arose when appellees, duly licensed and authorized by the State Commissioner of Insurance to write surety and fidelity bonds in Texas, sought a declaratory judgment decreeing that the. sheriff could require of them no security other than the $5,000 set forth in section 6(d)(1) of article 2372p-3. The parties stipulated that appellees were duly licensed by the insurance commissioner, that the sheriff required them to make security deposits in addition to the $5,000 set forth in the statute, and that the sheriff has placed appel-lees on a specific deposit to liability ratio limit for all bonds written in Dallas County. Acting on these facts, the trial court entered its decree declaring that the sheriff had no authority under statute to require security in addition to the $5,000 set forth in the statute and ordered the sheriff to return the additional security. The sheriff appeals.

The sheriff argues that section 4 of article 2372p-3 gives him discretion with respect to the security offered on a bond by a licensed bondsman. We agree. Section 4 provides:

A sheriff may examine under oath any proposed bondsman, or an officer or attorney of any company proposing to execute a bond, as to the indemnity, if any, deposited or otherwise provided directly or indirectly against loss by reason of the bond, and may refuse to accept the bond if, in the exercise of his discretion, he is satisfied that the security is insufficient, any portion of the security has been felo-niously obtained, or the provisions of this Act have been violated. [Emphasis added]

As we read this language, the sheriff has discretion to refuse to accept a bond if he is dissatisfied with the security for the bond. Thus, the question of whether security in addition to the $5,000 set forth in section 6(d)(1) may be required by the sheriff is a matter within his discretion. Of course, the sheriff may not abuse this discretion but that question is not before us because neither the number of bonds nor the dollar amount thereof are in evidence, nor is there evidence of any particular ratio of the security deposited to outstanding liability.

Appellees focus on section 6(d)(1) and (2) which provide that an applicant who has been notified of tentative approval of his license to write bonds may under (1) deposit $5,000 in cash or under (2) execute a deed of trust to the sheriff on nonexempt real property of the value of $10,000 located in the county of the applicant’s principal office. They contend that if one of these provisions is met, then no further security may be required by the sheriff. Furthermore, they assert that since they have been authorized by the insurance commissioner to act as sureties, they need only comply with section 6(d)(1) or (2). These arguments not only ignore the language of section 4 but also that of section 7(a) and (b), which state:

7(a) . . . When any such corporation authorized by law to act as a surety undertakes to be a surety on a bail bond, such corporation, before being acceptable as a surety on a bail bond, shall be required to meet the same requirements an individual is required to meet .
(b) The certificate of authority to do business in this state issued to a corporation by the State Board of Insurance pursuant to Article 8.20, Insurance Code, ., shall not be conclusive evidence as to the sufficiency of the security, the corporation’s solvency, or its credits; if the court or officer taking the bail bond is not fully satisfied as to the sufficiency of the security offered by the corporation, further evidence shall be required before approving the bail bond. [Emphasis added]

This language, particularly when read in conjunction with section 4, shows a clear legislative intent to place the duty of determining whether the security offered is sufficient on a bail bond on the officer to whom the bond is presented. In this case, the sheriff of Dallas County is the person to whom bonds are presented for approval. We hold, therefore, that since he has the duty to ascertain that the security given for the bond is adequate, he has the discretion to require security in addition to that set forth in section 6(d)(1) and (2).

Reversed and rendered.


author: HUMPHREYS, Justice.

text:
    FRANKLIN OFFICES, INC. and Dr. Elvin K. Franklin, Appellants, v. Charles F. HARDING and Charles W. Spencer, Appellees.
    No. 19877.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 12, 1979.
    Rehearing Denied Feb. 7, 1979.
    Alan Wilson, Winstead, McGuire, Se-chrest & Trimble, Dallas, for appellants.
    G. Leroy Street, Geary, Stahl, Rohde & Spencer, Dallas, for appellees.
    Before GUITTARD, C. J., STOREY and HUMPHREYS, JJ.
   HUMPHREYS, Justice.

A district court denied plaintiffs’ application for temporary injunction to restrain a foreclosure sale of land under a deed of trust, and we granted their application for an ancillary writ of temporary injunction to preserve our jurisdiction. The basis allowed for injunctive relief is that the loan in question is usurious and, after applying statutory usury penalties, that there was no balance in default justifying foreclosure. Plaintiffs assert that the loan is usurious for two reasons; first, that the loan was to two brothers for their own personal use rather than to a corporation, the named borrower, and second, that after deducting the amount they were required to pay for an overriding royalty interest in certain oil, gas and mineral leases, the interest on the true principal was more than twice the lawful rate of ten per cent allowed for a loan to a non-corporate borrower. Consequently, plaintiffs claim forfeiture of the principal as well as the interest under Tex.Rev. Civ.Stat. art. 5069-1.06 (Vernon 1971).

We hold the evidence fails to demonstrate that the trial court abused its discretion in refusing the injunction.

We restrict our determination to whether there is a clear abuse of discretion by the trial court. This court has said many times the' temporary injunction hearing is not a substitute for, nor does it serve the same purpose as, a hearing on the merits. See Electronic Data Systems Corp. v. Powell, 524 S.W.2d 393, 395 (Tex.Civ.App.—Dallas 1975, writ ref’d n. r. e.). As the burden of proof is strictly on plaintiffs, and no findings of fact or conclusions of law were filed, we have examined the evidence for the purpose of determining whether plaintiffs’ right to injunctive relief was so clearly established that the trial court abused its discretion.

Plaintiffs are Franklin Offices, Inc. and Dr. Elvin K. Franklin, a dentist, who personally guaranteed the promissory note in writing and delivered his deed of trust as security for the guaranty of the note. Defendants are Charles F. Harding, the lender, and Charles W. Spencer, the substitute trustee, who posted the notice of foreclosure. Franklin Offices, Inc. was a family-owned corporation and had three directors; Dr. Melvin R. Franklin, its president, Mary Catherine Franklin, its secretary, and Dr. Elvin K. Franklin. The latter had known Mr. Harding for some twenty-five years, but it was Dr. Melvin R. Franklin, deceased, at the time of the district court’s hearing and never a party to this suit, who first approached Harding about a loan.

Pursuant to a resolution by its directors, Franklin Offices, Inc. borrowed $313,000 from Harding. There is testimony that the corporation turned the proceeds over to Dr. Elvin K. Franklin, but the trail fades out so far as evidencing the intent and motives of the principals or to the actual use the money was put. Mr. Harding testified that when the Drs. Franklin initially discussed with him the proposed loan, he told them that on advice of counsel he could not lend it to them individually and that to charge eighteen per cent, it had to be loaned through a corporation. We do know that the proposed loan was $300,000 but that it was increased by $13,000 when Dr. Elvin K. bought one-half interest in an overriding royalty out of production from certain oil, gas and mineral leases.

The assignment was from Harding to Dr. Elvin K., personally, not to the corporation. Whether this transaction resulted from the efforts of an over-eager borrower or was forced by the lender is not clearly established, as Dr. Elvin K. never did testify concerning his recollection of what was said by himself and Harding to each other regarding the purchase of the royalty interest except that he was told by Harding they would have to buy the oil interest. Mr. Harding was a bit more articulate when asked if he required this purchase, saying he suggested the purchase of the assignment of the royalty interest and Dr. Elvin K. Franklin was willing to buy it in order to induce him to make the loan. Apparently, the trial court concluded that plaintiffs failed to establish that the royalty had no value.

There is no allegation or contention that either of the Drs. Franklin was inexperienced in the world of finance, at knowing and being able to determine value of the land in question, or at borrowing substantial sums of money. The contrary is abundantly established. The record does not show one way or the other the expertise, if any, of the Drs. Franklin in the oil and gas industry, but Dr. Elvin K. testified that he considers the subject royalty interest to be of no value. He has not recorded the assignment and does not know whether he is entitled to any payments from it. Mr. Harding, on the other hand, an independent oil operator for over twenty-five years, testified that the fair market value of this one-half oil royalty interest was $12,500 and that he retains ownership of the other one-half interest. His testimony supports the trial court’s implied finding of value received. Neither does the evidence establish conclusively that the loan to the corporation was a subterfuge to cloak an actual loan to the individual plaintiff at a greater rate of interest than allowed by law. That the Drs. Franklin may or may not have by express design intended to use the proceeds for their individual purposes is neither sufficient nor decisive. The lender’s admonition that this loan would have to be made through a corporation in order to charge eighteen per cent interest is consistent with the view that he was not willing to lend the money to the Franklins individually at ten per cent interest, but was willing to make a loan to their existing corporation at eighteen per cent. Since Dr. Franklin was an interested witness, the trial court had discretion to weigh the credibility of his testimony and resolve any fact inference against him. Its implied finding on this issue is binding upon us. Thus, no abuse of discretion is shown.

Denial of the temporary injunction is in complete harmony with the law pronounced and applied in American Century Mortgage Investors v. Regional Center, Ltd., 529 S.W.2d 578, 582 (Tex.Civ.App.—Dallas 1975, writ ref’d n. r. e.) with this court speaking through now Chief Justice Guittard:

The fact that the change from the partnership to the corporation as the borrower was made so as to permit a higher rate of interest does not in itself make the transaction usurious, since such a change is consistent with an intention to comply with the usury laws rather than to evade them, as this court recently concluded in Skeen v. Glenn Justice Mortgage Co., 526 S.W.2d 252 (Tex.Civ.App.—Dallas 1975, no writ). See also Jenkens v. Moyse, 254 N.Y. 319, 172 N.E. 521, 522 (1930).

The note, deed of trust, guaranty and assignment of the royalty interest all appear to be in order, and, as stated in Griffin v. Stewart, 348 S.W.2d 800, 803 (Tex.Civ.App.—Amarillo 1961, no writ):

None of the instruments upon their faces provide for the payment of more than the legal rate of interest. Under such statement of facts the burden was on those pleading usury to show that there existed some agreement, device, or subterfuge to charge usury, and that both parties had that purpose in contemplation.

Plaintiffs contend the $12,500 paid to Harding for the royalty is interest and urge Glover v. Buchman, 104 S.W.2d 66 (Tex.Civ.App.—Galveston 1937, writ dism’d) in support of their position. In Glover, the facts showed that the lender was using a “plan” of requiring each borrower to purchase a coupon as a part of the loan transaction, knowing that in many cases the coupon would not actually be used. Consequently, the court held that as a matter of law, the transaction was a subterfuge to charge a bonus, which rendered the loan usurious. The opinion recognizes that if there had been a good faith purchase of the merchandise, the transaction might have been saved from usury. Here plaintiffs have failed to establish conclusively that the parties did not intend the transfer of the royalty to be a benefit to the borrower commensurate with the $12,500 paid. Therefore, the trial court did not abuse its discretion in finding that this payment was not interest.

We are further bound by two established principles of law: (1) a trial court’s judgment will be upheld on any theory supported by the record, Seaman v. Seaman, 425 S.W.2d 339 (Tex.1968) and (2) a trial court’s judgment either granting or denying a writ will not be reversed unless the appellate courts are convinced that it represents a clear abuse of discretion. Sun Oil Company v. Whitaker, 424 S.W.2d 216, 218 (Tex.1968). We are not so convinced and affirm the trial court’s judgment.

In order to preserve our jurisdiction on motion for rehearing and the jurisdiction of the Supreme Court on application for writ of error, our ancillary injunction will be continued until an application for writ of error is filed, or the time for filing an application expires without it being filed, or the time for a motion for rehearing in this court expires without such a motion being filed. Upon occurrence of any of these events, our injunction will be dissolved.

Affirmed.


author: GUITTARD, Chief Justice.

text:
    Morris A. WARD, Sr. and Clyde DeLay, Appellants, v. SHRIRO CORPORATION, Appellee.
    No. 19393.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 29, 1978.
    Rehearing Denied Feb. 2, 1979.

      S. L. Lewis, Stephen M. Stasio, Dallas, for appellants.
    Jay M. Goltz, Dallas, for appellee.
    Before GUITTARD, C. J., AKIN and ROBERTSON, JJ.
   GUITTARD, Chief Justice.

Shriro Corporation recovered judgment against Morris Ward and Clyde DeLay for conversion of a check issued by Transcontinental Insurance Company. Earlier this year we reversed that judgment and rendered judgment for defendants Ward and DeLay on the ground that Shriro Corporation had elected its remedy when it settled its claim against Transcontinental, one of the original defendants, for failure to include the name of Shriro Corporation in the check. Ward v. Shriro Corporation, 561 S.W.2d 589 (Tex.Civ.App.—Dallas 1978). The supreme court disagreed with that holding, reversed our decision, and remanded the case to us for consideration of the other points raised by defendants. Shriro Corporation v. Ward, 570 S.W.2d 395 (Tex.1978). After considering the other points, we overrule those asserting that there is no evidence supporting the jury’s finding of conversion against Ward and DeLay. We also overrule Ward’s point asserting that there is no evidence of malice on his part. We hold, however, that the punitive damages assessed against him are excessive. We also sustain DeLay’s point asserting that there is no evidence of malice on his part. Accordingly, we remand the cause for a new trial unless remittiturs are filed of the punitive damages which we find improper.

The record shows that the check in the amount of $4,241.61 was issued by Transcontinental Insurance Company in payment of a water-damage claim under a contract of builder’s-risk insurance. The insured parties named in the policy were Rio Lado, Limited, a limited partnership of which defendant Ward was general partner, and Shriro Corporation, the general contractor engaged in construction of an apartment project owned by Rio Lado. Shriro Corporation repaired the water damage, and Ward, acting for Rio Lado, signed the following agreement:

It is agreed that the Owner [Ward] and Contractor [Shriro Corporation] will encourage the insurance agent for Rio Lado Apartments, Clyde DeLay, without assuming liability for such claim in any manner, to process claims for water damage at the apartments promptly so that there is no undue delay in the issuance of checks. Upon issuance the Owner will endorse checks over to Contractor and instruct Mortgage Company to do likewise.

In response to the water-damage claim, the insurance company issued its check payable to Rio Lado and its mortgagee but did not name Shriro Corporation as a payee. DeLay obtained the endorsements of the mortgagee and of Ward as general partner of Rio Lado, and then applied the proceeds to a debt owed to him by Rio Lado for funds previously advanced by him to pay the premium on the insurance policy in question. Both DeLay and Ward refused the demands of Shriro Corporation to pay the proceeds to it. Shriro Corporation then brought this suit against DeLay, Ward, and the insurance company. After obtaining settlement from the insurance company in the amount of $1,500, Shriro Corporation pursued the suit against Ward and DeLay for conversion of the proceeds of the check and for punitive damages. The jury found that both Ward and DeLay converted $3,817.45 from the proceeds of the check (apparently deducting from the face amount of the check a fee of $424.16 paid to a public claims adjuster for presenting the original claim to the insurance company). The jury further found that both Ward and DeLay acted with malice and assessed punitive damages of $20,000 against Ward and $7,500 against DeLay. The trial court deducted from the actual damages the $1,500 received in settlement and rendered judgment against both defendants for $2,317.45, together with punitive damages against each defendant as assessed by the jury.

1. Conversion

In support of their contention that this evidence does not support the finding of conversion, Ward and DeLay cite Bradley v. McKinzie, 226 S.W.2d 458 (Tex.Civ.App.—Eastland 1950, no writ), for the rule that in order to establish a conversion, the evidence must show that the defendant deprived the plaintiff of a specific chattel. They point out that for Shriro Corporation to have been deprived of a specific chattel, it must have been the owner of the property or have been entitled to legal possession, citing Lone Star Beer, Inc. v. Republic National Bank, 508 S.W.2d 686 (Tex.Civ.App.—Dallas 1974, no writ). They insist that plaintiff Shriro Corporation never had possession of the check and had no title which gave it the right to possession because it was not named as a payee in the check, and even if it had been named, that it would not have been entitled to the proceeds without the endorsements of the other payees. Thus, they contend that although plaintiff may have had a contractual right to payment for its repair of the water damage, or even a contractual claim against Rio Lado and Ward based on their written agreement to pay over the proceeds, breach of such contract rights does not establish the tort of conversion.

We cannot agree with this argument because we conclude that plaintiff was the owner of the check and entitled to its possession, and that consequently, a conversion occurred when Ward endorsed it and delivered it to DeLay with instructions to apply it to Rio Lado’s debt to DeLay.

The check was issued under an insurance policy naming the parties insured as “Rio Lado Apartments, Ltd., Melnick-Shriro, Inc. and Subcontractors, as their interests may appear.” The evidence shows that Melnick-Shriro, Inc. is now Shriro Corporation. The policy contains the following provisions:

LOSS PAYABLE CLAUSE: Loss, if any, shall be adjusted with the named insured and shall be payable to him unless other payee is specifically named hereunder; provided, at the option of the Company any loss to property of others may be adjusted with and paid to the owner of such property .
If more than one insured is named in the declarations, the insured first named shall act for itself and for every other insured for all purposes of this Coverage Part. [Emphasis added.]

Since Rio Lado is the insured first named, it is authorized to act for the other insureds, including plaintiff Shriro Corporation. We construe this language as constituting Rio Lado as plaintiff's agent for the purpose of receiving payment under the policy. Consequently, delivery of the check to Rio Lado discharged the liability of the insurance company on the policy. Since the insurance company subsequently settled with plaintiff, we need not consider whether plaintiff had a cause of action against it for negligently leaving plaintiff’s name out of the check.

The case turns on whether plaintiff had a property interest in the check in the hands of Rio Lado, or whether Rio Lado and Ward, as its general partner, had at most only a contractual duty to pay the proceeds over to plaintiff. A check, like other personal property, is subject to conversion. Suddarth v. Poor, 546 S.W.2d 138, 144 (Tex.Civ.App.—Tyler 1977, writ ref’d n. r. e.); Samuels v. A. P. Mitchell Auto Co., 262 S.W. 825, 826 (Tex.Civ.App.—San Antonio 1924, writ dism’d). Did Rio Lado have an obligation to deliver that particular check to plaintiff, or did it have only an indebtedness to plaintiff in the amount of the check? We hold that Rio Lado had the obligation to deliver that particular check because under the provisions of the policy, to which both Rio Lado and plaintiff were parties, it received the check from the insured company as plaintiff’s agent. Plaintiff was a named insured in the policy to the extent that its interest appeared. There is no question that plaintiff’s interest appeared to the extent of plaintiff’s expenses for repairing the water damage on the apartment project under construction. Those particular expenses were the basis for the claim which resulted in issuance of the check. Consequently, plaintiff’s interest was paramount to Rio Lado’s interest. Samuels v. A. P. Mitchell Auto Co., 262 S.W. 825, 826 (Tex.Civ.App.—San Antonio 1924, writ dism’d). Rio Lado recognized plaintiff’s superior right to the check by expressly agreeing to endorse it in plaintiff’s favor on issuance. Therefore, we hold that plaintiff was the owner of the check, even though not named in it, just as the cash would have been plaintiff’s property if the insurance company had paid the amount of the claim to Rio Lado in cash. When Ward endorsed the check and delivered it to DeLay to apply on Rio Lado’s debt, Ward exercised unauthorized and wrongful dominion and control over plaintiff’s property. Consequently, the evidence supports the jury’s finding that he was guilty of conversion. Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444 (Tex.1971).

Likewise, we conclude that the finding of conversion by DeLay is supported by the evidence. The check was plaintiff’s property, and regardless of whether DeLay converted it when he accepted it in satisfaction of Rio Lado’s debt, he was guilty of conversion when he refused to deliver the proceeds to plaintiff on demand. When there is a demand and refusal, it makes no difference that possession may have originally been acquired by lawful means. Johnson v. Lane, 524 S.W.2d 361, 364 (Tex.Civ.App.—Dallas 1975, no writ); and see Jones v. Hunt, 74 Tex. 657, 12 S.W. 832 (1889).

2. Defendants’ Standing to Attack Malice Findings

Both Ward and DeLay attack the jury’s findings of malice and punitive damages on the ground that there is no evidence of malice. Plaintiff asserts that defendants have no standing to raise these no-evidence points because defendants did not raise them by objecting to the malice issues, by motions for judgment notwithstanding the verdict, or by motions to disregard the jury’s answers to these issues, as required by such cases as City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753 (1960), and Commercial Ins. Co. v. Puente, 535 S.W.2d 948 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.).

The record shows that the only manner in which defendants called the trial court’s attention to their contention of no evidence to support the findings of malice was by assignments in their motions for new trial. Those assignments are sufficient to preserve their contentions for the purpose of obtaining a remand for a new trial. Rosas v. Shafer, 415 S.W.2d 889 (Tex.1967). In this situation, however, we are not authorized to render judgment disregarding the malice findings. We can only remand for a new trial. Commercial Ins. Co. v. Puente, supra; Gillespey v. Sylvia, 496 S.W.2d 234 (Tex.Civ.App.—El Paso 1973, no writ). For this purpose only, therefore, we consider the points asserting no evidence to support the findings of malice and the attending assessments of punitive damages.

3. Punitive Damages against Ward

Punitive damages are not recoverable, even for a wrongful act, unless the act complained of is malicious or wanton. Ogle v. Craig, 464 S.W.2d 95, 97 (Tex.1971). Ward contends that there is no evidence to support the jury’s finding of malice on his part. He argues that Rio Lado had a claim against plaintiff Shriro Corporation for latent defects in the apartment project and that he was entitled to offset that claim against plaintiff’s claim for the water damage, or, at least, that he believed in good faith that he was entitled to such an offset. Moreover, Ward asserts that since David Shriro, who was president of Shriro Corporation, was also a general partner of Rio Lado, he considered Rio Lado’s debt to DeLay to be Shriro’s debt as well as his own.

We do not agree that these circumstances establish as a matter of law that Ward had a justifiable basis to believe that he could apply plaintiff’s property to Rio Lado’s debt. Since Ward, as Rio Lado’s general partner, was holding the check for plaintiff, he was not entitled to seize it to satisfy Rio Lado’s claim for latent defects. Werkheiser-Polk Mill Co. v. Langford, 51 Tex.Civ.App. 224, 115 S.W. 89, 91 (Austin 1908, no writ); and see Jones v. Hunt, 74 Tex. 657, 12 S.W. 832 (1889). The jury found that no latent defects existed, and this finding has not been attacked. Thus, the jury would have been warranted in inferring that Ward’s claim of offset was not made in good faith. Neither did David Shriro’s interest as a general partner justify Ward’s application of the property of Shriro Corporation to Rio Lado’s debt to DeLay. The corporation was a separate entity whose stockholders are not shown in this record. Moreover, the jury could have accepted Shriro’s testimony that Ward had agreed to hold him harmless from any personal liability as a general partner of Rio Lado, though no written agreement was in evidence. In view of Ward’s express agreement, as genera] partner of Rio Lado, to endorse the check in plaintiff’s favor, the jury was justified in concluding that Ward knew that plaintiff was entitled to the check, but refused to deliver it to plaintiff in order to gain a more favorable position for pressing against plaintiff a doubtful claim for latent defects. Consequently, we cannot hold that there was no evidence to support the jury’s finding of malice.

Ward asserts that the judgment against him for $20,000 punitive damages should be set aside as excessive because it is shown by the evidence to be the result of passion, prejudice, or other improper motive. Shriro responds that the ratio of punitive to actual damages ($20,000 to $2,317.45) is within permissible limits. We conclude that the $20,000 figure is excessive. This conclusion is based not only on the high ratio of punitive to actual damages, but also on other circumstances in this case. Ward’s act of applying the proceeds of the check to Rio Lado’s debt, though without justification and in disregard of plaintiff’s rights, was not so aggravated as to deserve this severe punishment. Even plaintiff did not seek such a heavy penalty until the verdict was returned. The petition alleges that punitive damages should be assessed against each defendant in the amount of $4,000. Only after the jury had assessed punitive damages of $20,000 against Ward and $7,500 against DeLay did plaintiff present a trial amendment raising its prayer to these amounts. Although the trial court may have had discretion to allow the trial amendment under such cases as Santa Rosa Medical Center v. Robinson, 560 S.W.2d 751, 759 (Tex.Civ.App.—San Antonio 1977, no writ), and Irwin v. Whirley, 538 S.W.2d 150, 152 (Tex.Civ.App.—Waco 1976, no writ), we may properly consider the amount plaintiff was seeking when the case was tried in determining excessiveness of punitive damages. We find that the award of $20,000 as punitive damages against Ward is excessive to the extent of $16,000.

4. Punitive Damages against DeLay

DeLay stands in a different position. We agree that there is no evidence to support the jury’s finding of malice on his part. DeLay was the agent who procured the policy and advanced his own funds to pay the premium. Plaintiff argues that DeLay knew that plaintiff was one of the parties insured by the policy and knew that plaintiff was making a claim under the policy. Therefore, plaintiff insists that if DeLay did not know that plaintiff’s name should have been in the draft, he should have known and that his failure to make further inquiry indicates gross indifference to plaintiff’s rights.

We find no evidence that DeLay was guilty of gross indifference. Since he had advanced his own funds for the premium on the policy, he could have reasonably assumed that whatever might have been the relationship between plaintiff and Rio Lado, they would both recognize his claim to have the premium paid out of the proceeds. Thus, he received the check from the insurance company, obtained the endorsement of the named payees, and applied it to the indebtedness for the premium. When he received the demand from plaintiff, he contacted Ward and was assured that the check was properly applied to Rio Lado’s debt. There is no evidence that he knew of Ward’s written agreement to endorse the check in favor of plaintiff, or that he knew that Rio Lado, as plaintiff’s agent, was not authorized to deliver the check to him. His failure to make an inquiry that would have disclosed these facts does not establish such a wanton or malicious act as to render him liable for punitive damages under the standard established by Ogle v. Craig, 464 S.W.2d 95, 97 (Tex.1971). See also Barfield v. Brogdon, 560 S.W.2d 787, 791 (Tex.Civ.App.—Amarillo 1978, writ ref’d n. r. e.).

5. Judgment

Because of the lack of evidence to support the findings of malice on the part of DeLay and because of the excessiveness of the damages against Ward, the judgment is reversed and the cause is remanded for a new trial. However, if within fifteen days from this date plaintiff files a remittitur of the punitive damages awarded against DeLay, the judgment for actual damages against him will be affirmed, and if within the same time, plaintiff files a remittitur of the amount of punitive damages awarded against Ward in excess of $4,000, the judgment against him will be affirmed for the actual damages and punitive damages in that amount. See Clements v. Withers, 437 S.W.2d 818, 822 (Tex.1969).

Affirmed on condition of remittitur; otherwise reversed and remanded.


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    Terry Don CLARK, Appellant, v. James P. GRIGSON, Appellee.
    No. 19605.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 29, 1978.
    Rehearing Denied Feb. 2, 1979.

      John R. Vorhies, Dallas, for appellant.
    G. Luke Ashley, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
    Before GUITTARD, C. J., and AKIN and ROBERTSON, JJ.
   GUITTARD, Chief Justice.

This suit for malpractice against a psychiatrist is based primarily on the defendant psychiatrist’s testimony against plaintiff Terry Don Clark in a criminal trial. We hold that the psychiatrist is immune from civil liability based on his testimony in the criminal case and also that he cannot be held responsible for civil damages for his failure to advise that he might testify against plaintiff Clark or for an erroneous diagnosis of Clark’s personality disorder. Consequently, we affirm a summary judgment in favor of the psychiatrist.

Summary Judgment Evidence

The summary-judgment proof shows that Clark confessed to the crime of robbery, burglary, and assault to murder. The circumstances of the crimes showed deviate sexual tendencies of such an extraordinary nature that his attorney referred him to the defendant psychiatrist for an evaluation in connection with a possible defense of insanity. The psychiatrist interviewed Clark in the county jail, and, as a result of that interview, made a diagnosis of “severe so-ciopathic personality disorder,” not subject to cure or treatment, but not such a “mental disease or defect” that would constitute a defense to a criminal prosecution. Clark’s attorney advised the prosecuting attorney of this diagnosis, and he presented no insanity defense. At the punishment stage of the trial, after Clark had been found guilty of all the offenses charged, the psychiatrist was called as an expert witness and testified in accordance with his diagnosis. The jury gave Clark the maximum punishment for each offense charged, and he appealed without success. In the present suit he seeks damages on the theory that he received heavier sentences than he would have received if the psychiatrist had made an accurate diagnosis of his condition and had not given adverse testimony in the criminal case.

The psychiatrist moved for summary judgment on the ground that any statements made in the course of the criminal proceedings against Clark were absolutely privileged and could not form the basis for an action of damages. He also alleged that as a matter of law any violation of his duties to Clark could not have been the proximate cause of any damages. The trial court sustained the motion and rendered judgment that Clark take nothing.

Informed Consent

We first consider Clark’s contention that a fact issue is raised on malpractice in that the psychiatrist failed to obtain his informed consent before conducting the psychiatric examination. In opposition to the motion for summary judgment, Clark filed an affidavit of Dr. Emerson Emory, another psychiatrist, who stated that “a reasonable practitioner of psychiatry,” when employed to evaluate the mental condition of a person accused of crime, would disclose to the patient prior to the evaluation procedure the risk incident to the evaluation, explaining possible consequences of revelation of the information and “how the revealed data will be used by the lawyer, court, or the prosecutor.” Clark also relies on the testimony of the defendant psychiatrist to the effect that he had made a diagnosis of “sociopathic personality” in approximately fifteen percent of thousands of accused persons referred to him for psychiatric evaluation. Consequently, Clark argues that the psychiatrist should have disclosed at the beginning of the interview that there was a fifteen-percent statistical probability that his diagnosis would be so-ciopathic personality, and if so, that he might be called to give testimony against Clark based on that diagnosis. Clark cites such cases as Wilson v. Scott, 412 S.W.2d 299, 301 (Tex.1967), holding that a physician has a duty to make a reasonable disclosure to a patient of risks incident to medical diagnosis and treatment.

We conclude that the psychiatrist had no duty to disclose to Clark the possibility of adverse testimony based on his diagnosis. This risk concerned the legal, rather than the medical, consequences of the diagnosis. Since the psychiatrist’s services were engaged by Clark’s attorney, the psychiatrist could reasonably assume that the attorney would advise Clark concerning the legal consequences of an adverse diagnosis. Presumably the attorney, rather than the psychiatrist, was the expert in that field. The psychiatrist cannot be held responsible for any failure of Clark’s attorney to give proper advice in this respect.

Negligent Diagnosis and Immunity of Witness from Suit

We next consider whether a fact issue is raised as to the psychiatrist’s liability for malpractice in negligently making an improper diagnosis. On this point, also, Clark relies on the affidavit of Dr. Emory, who stated that “a reasonable practitioner of psychiatry” would not have found a diagnosis of sociopathic personality on the sole criterion of “an individual who continues to break the rules and has no feeling of remorse,” but would use sixteen enumerated “stándard criteria” in making such a diagnosis. Dr. Emory also stated that such a practitioner would know that the necrophiliac and sadistic tendencies which Clark had exhibited were disorders separate and distinct from sociopathic personality. In this connection, Clark makes a policy argument to the effect that improper expert testimony would occur less frequently if experts are civilly liable for damages for negligence in reaching the conclusions to which they testify.

This proposed policy is more than counterbalanced, in our view, by the recognized policy, frequently applied, that in order to encourage unrestrained access to the courts and full development of the facts in court, any communication made in the course of a judicial proceeding is absolutely privileged and immune from civil liability for damages. Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909 (1942); Hott v. Yarbrough, 112 Tex. 179, 245 S.W. 676 (1922); Runge v. Franklin, 72 Tex. 585, 10 S.W. 721 (1889); Butler v. Lilly, 533 S.W.2d 130 (Tex.Civ.App.—Houston [1st Dist.] 1976, writ dism’d). Under this policy, even perjured testimony is privileged and cannot form a basis for civil liability. Morris v. Nowotny, 398 S.W.2d 661 (Tex.Civ.App.—Austin 1966, writ ref’d n. r. e.); Morris v. Taylor, 353 S.W.2d 956 (Tex.Civ.App.—Austin 1962, writ ref’d n. r. e.), cert. denied, 371 U.S. 842, 83 S.Ct. 71, 9 L.Ed.2d 78 (1962); Annot. 54 A.L.R.2d 1298 (1957). This rule applies to the opinions of expert witnesses as well as to any other testimony in a judicial proceeding. The community has the same interest in obtaining this kind of testimony, when relevant, without the intimidating threat of a lawsuit against the expert witness. If the policy underlying the immunity is strong enough to apply in cases of deliberate perjury, it applies with even greater force to cases in which the adverse testimony is the result of an expert’s negligence in formulating his opinion. The same principle applies, whether the action is for defamation or for malpractice. Consequently, we hold that no civil liability exists on the part of an expert witness who forms an opinion and states that opinion in the course of his testimony in a judicial proceeding, even though he may have been negligent in the process. Snyder v. Faget, 295 Ala. 197, 326 So.2d 113, 115 (1976); Bencomo v. Morgan, 210 So.2d 236, 237 (Fla.App.1968); Bailey v. McGill, 247 N.C. 286, 100 S.E.2d 860, 867 (1957); Dunbar v. Greenlaw, 152 Me. 270, 128 A.2d 218, 223 (1956).

Breach of Confidential Relationship

Clark also asserts that he has raised a fact issue with respect to the psychiatrist’s abuse of the confidential physician-patient relationship in disclosing his diagnosis to the prosecuting attorney and in appearing as a witness for the prosecution without notifying Clark or his counsel. We find no basis for this claim of abuse of the confidential relationship. Clark’s attorney in the criminal case was not appointed by the court, but was retained by members of his own family. Clark admits that his own attorney disclosed the psychiatrist’s report to the prosecuting attorney, and, in fact, requested the psychiatrist to discuss the matter with the district attorney. Clark asserts that the attorney’s action was also a breach of duty, but the psychiatrist cannot be held liable for damages for disclosing information which the prosecuting attorney already had. Neither is the psychiatrist liable for failure to notify Clark that he would be called as a witness, since his attorney knew that the prosecuting attorney was informed of the contents of the psychiatrist's report, and, therefore, that the psychiatrist was a potential witness at the punishment stage of the criminal trial. In this connection, we hold that the psychiatrist cannot be held liable for the derelictions, if any, of Clark’s attorney.

Moreover, whatever breaches of duty the psychiatrist may have committed, the only damage of which Clark complains was a result of adverse testimony in the criminal trial, and, under the authorities already cited, the psychiatrist was absolutely privileged to communicate with the district attorney and give his testimony at the trial. Consequently, he cannot be held liable on the theory that such testimony was given as a result of the breach of his confidential relationship.

Malicious Prosecution

Finally, Clark insists that the rule of immunity of a witness to civil liability does not apply here because a fact issue is raised on his allegation of malicious prosecution, which is an exception to the immunity rule. This contention is untenable because several of the elements of malicious prosecution were negated as a matter of law by the summary-judgment proof. Among the essential elements of a cause of action for malicious prosecution are lack of probable cause and termination of the prosecution in favor of the plaintiff. Parker v. Dallas Hunting and Fishing Club, 463 S.W.2d 496, 499 (Tex.Civ.App.—Dallas 1971, no writ); Ellis v. Sinton Savings Ass’n, 455 S.W.2d 834, 836 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n. r. e.). Here the summary judgment proof negates as a matter of law any claim of lack of probable cause, since Clark confessed his guilt for all three offenses. Likewise, the proof shows that the criminal prosecution did not terminate in Clark’s favor, but in conviction for all offenses charged. Consequently, the record conclusively shows the absence of any material fact issue with respect to malicious prosecution.

Clark relies on the statement in Daniels v. Finney, 262 S.W.2d 431, 434 (Tex.Civ.App.—Galveston 1953, writ dism’d), that “no different rule should be applied to hold a doctor liable for malicious prosecution based on a wrong diagnosis than to hold him liable for malpractice based on a wrong diagnosis.” This statement, when taken in its context, does not support plaintiff’s argument. The case was a suit for malicious prosecution and malpractice based on the defendant’s written report in a lunacy proceeding. The court referred to several elements of a cause of action for malicious prosecution and held that no fact issue was raised on the element of lack of probable cause because plaintiff failed to prove by a physician of the same school that defendant’s diagnosis of mental illness was negligent. To that extent only the court held that the rules applicable to malpractice suits applied. The court did not hold that lack of probable cause and termination of the earlier proceedings in plaintiff’s favor were not essential matters to be proved in a malicious prosecution case. With respect to the malpractice claim, the court held that plaintiff failed to raise a fact issue of negligent diagnosis. No question of privilege was raised or considered, so far as the opinion shows.

We have reviewed all of plaintiff’s fifty-two points and find that none presents reversible error.

Affirmed.


text:
    PRESTON DEL NORTE VILLAS ASSOCIATION et al., Appellants, v. The PEPPER MILL APARTMENTS, LTD., Appellee.
    No. 19655.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 29, 1978.
    Rehearing Denied Feb. 2, 1979.
    Ralph W. Pulley, Jr., Robert K. Frisch, Phinney, Hallman, Pulley & Coke, Dallas, for appellants.

      ■ G. Leroy Street, Geary, Stahl, Rohde & Spencer, Dallas, for appellee.
    Before GUITTARD, C. J., AKIN and ROBERTSON, JJ.
   GUITTARD, Chief Justice.

The trial court issued a permanent injunction restraining obstruction of a private roadway across a condominium project managed by defendant Preston Del Norte Villas Association. The injunction is based on an alleged easement reserved for the benefit of adjoining property in the declaration establishing the rights of the parties in the condominium project. Plaintiff, The. Pepper Mill Apartments, Ltd., is the owner of the adjoining property, on which an apartment project has been constructed. The injunction was issued for the benefit of plaintiff and its tenants. Purchasers of condominiums within the condominium project were joined as defendants and were included in the injunction. On this appeal defendants challenge the trial court’s finding of the existence of the easement on the ground that it was intended to be effective only if the condominium project should be enlarged to include the adjoining property now owned by plaintiff. They also complain of the exclusion of certain testimony tending to show such an intent on the part of the common predecessor in title, who made the declaration of condominium, and they further assert that the purported reservation of an easement in the declaration does not sufficiently describe and locate the roadway. We hold that the declaration of condominium reserves an easement for the benefit of the owners of the adjoining property, regardless of whether the property is included in the condominium project, and that the easement was sufficiently located by the acts of the parties. Consequently, we affirm the order granting the injunction.

The case turns on an interpretation of the provisions of the declaration of condominium. At the time of that declaration, Preston Centennial owned approximately twenty-one acres of land, of which only the easterly six acres, bordering on Preston Road, were declared to be subject to the condominium regime. The declaration refers to maps locating each of the condominium units, with the accompanying green areas, driveways, utility easements, and other common elements, and provides for deeds to convey the units with reference to these maps. The declaration also provides for ownership of undivided interests in the common elements and for ingress and egress to the units and common elements. Paragraph 13 provides that for a limited time the defendant, Preston Centennial, may amend the declaration to include all or part of the declarant’s remaining lands, consisting of approximately fifteen acres, described by metes and bounds, located to the west of the six acres, and further provides that in that event the remaining lands shall become part of the condominium project, the undivided interests of the owners in the common elements shall be adjusted accordingly. Paragraph 26 contains the easement reservation enforced by the trial court's injunction, as follows:

26. Declarant reserves the right to establish easements, reservations, exceptions and exclusions consistent with the Condominium ownership of the Condominium Project and for the best interests of the Condominium Unit Owners and the Association in order to serve the entire Condominium Project. Declarant, for itself, its successors and assigns, retains a permanent easement across and through the lands described in Exhibit “A”, hereto, for ingress and egress to the lands described in Exhibit “E”, hereto, regardless of whether such lands, or any part thereof, become a part of the Condominium Project as provided in Paragraph 13 hereof. [Emphasis added.]

After filing this declaration, Preston Centennial continued with development of the condominium project, including thirty-nine units and common elements consisting of a clubhouse, a swimming pool, roadways, alleys, and green areas. A guard house was built at the entrance of the project on Preston Road and a guard was stationed to control traffic and prevent use of the roadways by the general public. The fifteen-acre tract to the west of the condominium area was conveyed to other owners and was subsequently purchased by plaintiff, The Pepper Mill Apartments, Ltd., which commenced the construction of apartment buildings on the fifteen-acre tract. Plaintiff permitted contractors to operate construction vehicles and equipment across the roadways within the condominium area. This use prompted defendants to place a chain across the roadway at the west end of the area. Plaintiff then filed this suit for an injunction restraining interference with access to its property across the six-acre' condominium area.

The trial court found that at the time of the execution and filing of the condominium declaration, it was the intention of Preston Centennial to retain for itself, its successors and assigns, a permanent easement across defendants’ six-acre condominium area for ingress and egress to the remaining fifteen acres now owned by plaintiff. Defendants challenge this finding as against the great weight and preponderance of the evidence, and they insist that the evidence establishes that Preston Centennial did not intend to create such a permanent easement as would benefit plaintiff and its tenants in the event the fifteen acres should be utilized for purposes other than condominiums. Defendants argue that at the time of the declaration, Preston Centennial intended to utilize the entire twenty-one acre tract for condominium purposes, and that in this context the easement reservation in paragraph 26 of the declaration should be construed as terminating when the fifteen-acre tract was put to a different use. They interpret the language of paragraph 26, “regardless of whether such lands [the fifteen acres] or any part thereof, become a part of the Condominium Project as provided in paragraph 13 hereof,” as equivalent to providing, “regardless of whether such lands or any part thereof, become a part of the Condominium Project as provided in paragraph 13 hereof, or some other condominium project, so long as such lands are used for condominiums similar to those within the original project.”

We conclude that paragraph 26 is not susceptible to this interpretation. Its meaning is clear in the light of other provisions of the declaration. The only land declared to be subject to the condominium regime is the east six acres of the twenty-one acre tract. Preston Centennial reserves the right to include all or part of the remaining fifteen acres in the condominium project and also reserves a permanent easement across the six-acre tract for ingress and egress to the remaining lands, regardless of whether such lands become a part of the condominium project. No limitation of use of the easement to owners of condominiums on the remaining lands is expressed or reasonably implied from any of the language of the declaration.

Neither would the evidence of the circumstances existing at the time of the declaration support a different interpretation, even if all the evidence had been admitted. Evidence admitted by the court tended to show that the owners of Preston Centennial contemplated use of the entire twenty-one-acre tract for condominiums, that a plat had been prepared showing development of all the land for that purpose, that the clubhouse and pool were designed to serve the entire project, that the thirty-nine condominiums on the six-acre tract were considered the first phase of the larger development, and that the owner intended to protect the remaining fifteen acres for condominium development. On the other hand, there was evidence that at the time of the declaration, the only direct and immediate access to the remaining fifteen acres from a major thoroughfare was from Preston Road along a roadway already in use across the six acres now owned by defendants. Although this evidence may not be sufficient to support an easement by necessity or by implication, as contended alternatively by plaintiffs, it does tend to negate any implication that use of the easement was limited to owners of future condominiums on the fifteen-acre tract. The declaration imposed no obligation on Preston Centennial to develop the remaining land for condominiums, and in light of the express language of paragraph 26, it is not reasonable to suppose that Preston Centennial intended to leave that land without access to Preston Road in the event it should be developed in a different manner. At least, the trial court was justified in so finding. Consequently, we find no evidence of circumstances that would require the imposition of restrictions on use of the easement not expressed in paragraph 26.

Defendants complain particularly of the exclusion of the testimony of Helen Farley, who was employed as sales manager of the condominium project at the time of the declaration, that she was instructed to represent to prospective purchasers of condominiums that the entire twenty-one acres would be developed for condominium use. This testimony was offered to rebut the testimony of plaintiff’s witness Bass to the effect that Preston Centennial did not intend to develop the entire twenty-one-acre tract into a condominium project pursuant to a common plan and scheme of development. As shown in a bill of exception, Farley testified that she was instructed by her superiors in Preston Centennial to represent to purchasers that the entire twenty-one-acre tract would be developed as a condominium project, and she identified sales brochures describing such a project.

We conclude that exclusion of this testimony was not reversible error. Since the trial judge heard the testimony anyway when it was given for the purpose of the bill, and the trial was without a jury, perhaps the better practice would have been for the trial court to admit the testimony for what it was worth, and then disregard it if he considered it irrelevant. However, the testimony, if admitted, could not be given the effect of restricting the scope of the easement reserved by the declaration in unambiguous language. Consequently, we have no basis to hold that admission of this testimony would probably have resulted in a different judgment. Moreover, this testimony if offered to define the scope of the easement, would have been inadmissible under the parol evidence rule. Coleman v. Forister, 514 S.W.2d 899, 903 (Tex.1974).

Defendants attack the trial court’s findings that plaintiff’s tract is the dominant estate and defendants’ tract is the servient estate. In this connection defendants argue that for an easement to exist there must be dominant and servient estates held by different owners, and here there was no separation of ownership, since Preston Centennial owned the entire twenty-one acres at the time of the declaration. We do not agree. Even though there may have been no separation of ownership at the time of the declaration, Preston Centennial subsequently conveyed title to the condominiums to defendants, together with title to undivided interests in the common areas, subject to the provisions of the declaration. Consequently, when defendants took title to their properties, a separation of ownership occurred, and defendants’ titles became subject to the reserved easement.

Defendants also attack the trial court’s findings on the ground that the declaration does not describe the easement in a manner sufficient to satisfy the Statute of Frauds and the Statute of Conveyances. In this connection defendants point out that the plat of the six-acre tract referred to in the declaration shows only a “37' water and sanitation easement,” and does not indicate any roadway across the six acres between Preston Road and the remaining fifteen acres. We conclude that although the easement is not specifically located in the declaration, such a description is not necessary to its validity. Both the six-acre tract and the fifteen-acre tract are described by metes and bounds, and the roadway along the strip designated as a water and sanitary easement was then in use. Consequently, the location was sufficiently definite. Elias v. Horak, 292 S.W. 288, 290 (Tex.Civ.App.—Austin 1927, writ ref’d). If not definitely located at that time, the subsequent location and use of the roadway along the course of the water and sanitary easement provided sufficient certainty. Matlock v. Humble Oil & Refining Co., 284 S.W.2d 407, 411 (Tex.Civ.App.—Beaumont 1955, writ ref’d n. r. e.).

Finally, defendants complain that the court erred in concluding that plaintiff’s easement rights inure to benefit of its tenants or lessees. In support of this contention, defendants rely on Anderson v. Tail Timbers Corp., 378 S.W.2d 16, 23 (Tex.1964), which holds that an easement for a roadway, which was claimed by the owner of an apartment project for itself and its tenants, could only be conveyed by a grant, and, that the mere reference in a deed to a private easement shown on a plat did not grant such rights as would entitle the project owner to open a public street along the easement referred to or to assert the rights of its tenants to use it for ingress and egress. That case does not support defendant’s argument. Here, the declaration expressly reserves an easement for ingress and egress and further provides that all covenants, easements, uses, and obligations run with the land for the benefit of Preston Centennial, its successors and assigns. We see no reason why plaintiff, as the successor of Preston Centennial, could not assign its easement right of ingress and egress temporarily by lease as well as permanently by deed. Such rights would pass as appurtenant to any conveyance or lease of property within the fifteen-acre tract described in the declaration.

Affirmed.


text:
    VALLEY FORGE LIFE INSURANCE COMPANY, Appellant, v. REPUBLIC NATIONAL LIFE INSURANCE COMPANY et al. Appellees.
    No. 19654.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 29, 1978.
    Rehearing Denied Feb. 20, 1979.

      Robert G. Vial, M. Leigh Bartlett, Gerald R. Powell, Vial, Hamilton, Koch, Tubb, Knox & Stradley, Dallas, for appellant.
    John J. Irvin, Dallas, for appellees.
    Before GUITTARD, C. J., AKIN and ROBERTSON, JJ.
   GUITTARD, Chief Justice.

This appeal presents the question of whether the presumption of the date of death of a member of the armed forces, as provided by the Texas Presumption of Death Act, Tex.Rev.Civ.Stat.Ann. art. 5541 (Vernon 1973), has been overcome by circumstantial evidence tending to show that death occurred at an earlier time. We hold that the presumption has been overcome and, accordingly, we reverse a summary judgment based on the presumptiom

The motion for summary judgment is based on a stipulation of facts from which the following statement is taken. The suit was brought on a group life insurance policy issued by All American Life and Casualty Company. All American obtained a reinsurance agreement with appellee Republic National Life Insurance Company covering losses between October 1, 1965, and August 1,1967. Appellant Valley Forge Life Insurance Company took over the policy and issued a certificate of insurance to Commander William P. Yarbrough, Jr., a navigator in a naval combat aircraft. Commander Yarbrough’s aircraft was reported missing in action after a mission over North Vietnam on January 19, 1967. The Navy Department carried him on its records as “missing in action” until February 24, 1976. On that date the department issued a “Certification of Casualty” on a printed form stating that Yarbrough was killed in action on February 24, 1976. In the space provided in the form for “cause and circumstances,” the following notation appears: “Missing in action to Presumed killed in action 1976 Feb. 24.” If this date is taken as the date of death, it is not within the period of the reinsurance agreement, and the death benefit in the policy must be paid by appellant Valley Forge Life Insurance Company. If the date of death was January 24, 1967, when Yarborough was first reported missing, it is within the period of the reinsurance agreement, and the loss must fall on appellee Republic National Life Insurance Company.

Republic relies on the Federal Missing Persons Act, 37 U.S.C. § 555 (1968), and the Texas Presumption of Death Act, Tex.Rev. Civ.Stat.Ann. art. 5541 (Vernon Supp.1978). The Missing Persons Act authorizes the secretary of the department or his designee to make a finding of death of a missing member of a uniformed service and to include the date the death is presumed to have occurred for the purpose of federal pay, allowances, death gratuities, and settlement of accounts. The Texas Presumption of Death Act provides:

When a certificate is issued by any branch of the armed services declaring a person dead, the date of death is presumed to have occurred for all purposes as stated in said certificate and such certificate may be admitted as prima facie evidence in any court of competent jurisdiction of the date and place where such person died . . . . [Emphasis added.]

Under this statute appellant Valley Forge concedes that the certificate of the Navy Department attached to the stipulation creates a presumption that the insured died in 1976, but argues that this presumption is rebutted by additional facts stipulated.

Among the documents attached to the stipulation is a letter from the Bureau of Naval Personnel to All American Life and Casualty Company stating that a report of the circumstances surrounding the loss of Commander Yarbrough is attached to the letter. The report of circumstances accompanying this letter is marked “Exhibit E” and is attached to the stipulation. The report is a narrative statement containing the following:

On 19 January 1967 Commander Yarb-rough was the navigator of an A-6A aircraft that was piloted by another naval officer and launched on a strike mission over North Vietnam .... After bomb release and during the pull-out, Commander Yarbrough’s aircraft exploded just aft of the wings. The tail separated from the aircraft and the forward fuselage tumbled end over end engulfed in flames. Two seats were seen ejecting from the tumbling fuselage. Both parachutes appeared. One parachute appeared to deploy fully but the other one only partially. The partially opened chute impacted in a small puff of dust on the ground. No distress signals were heard or seen by anyone. Search and rescue efforts were initiated including electronic surveillance of the target area. The search efforts included EA-6A aircraft, A — 1G aircraft and one helicopter. All produced negative results.
The pilot was among the repatriated prisoners of war and made statements concerning Commander Yarbrough. He stated that he did not think Commander Yarbrough survived. He thought that his parachute did not fully deploy and that he impacted with the ground. The pilot tried unsuccessfully to contact Commander Yarbrough but received no response. Statements made by other returnees indicated that they were unable to determine the fate of Commander Yar-brough.

A supplemental stipulation of facts signed by counsel for all parties contains the following:

The Plaintiff and Defendant hereby stipulate and agree to the accuracy and admissibility of the exhibits “A” through “F”, attached to the Stipulations of Fact on file herein and further stipulate and agree to the accuracy and admissibility of the contents of the said exhibits “A” through “F”. The Plaintiff and Defendants further stipulate and agree that the Stipulations of Fact on file herein and attached exhibits constitute all of the evidence to be offered and considered in the above styled matter. [Emphasis added.]

In support of the summary judgment in its favor, appellee Republic argues that the report of circumstances is not sufficient to overcome the presumption of death in 1976 raised by the certificate of death because the parties did not stipulate to the truth of the facts stated in the report of circumstances but only stipulated to the accuracy and admissibility of the report and its contents. Consequently, it contends that the stipulation does not prove the circumstances narrated in the report, but only that the circumstances narrated were reported to the Navy Department, and it argues that the fact that such a report was made does not overcome the presumption of death in 1976 established by the certificate.

We do not construe the stipulation so narrowly. The parties stipulated not only the accuracy and admissibility of the exhibits including the report of circumstances marked “Exhibit E,” but further stipulated the accuracy and admissibility of the contents of the exhibits. This language can reasonably be construed only as a stipulation that the narrative statement in Exhibit E is an accurate report of the circumstances that actually existed when the aircraft with the insured aboard was lost in North Vietnam on January 19, 1967. As such it must be taken as competent proof of the circumstances so narrated.

The question then arises as to whether the circumstances so proved are sufficient to rebut the presumption arising from the certificate that the insured died in 1976. We conclude that they do. Under the Missing Persons Act, the purpose of the certificate is to establish the date of death for the purpose of federal pay, allowances, death gratuities, and settlement of accounts. The presumption arises from the Texas Presumption of Death Act, which provides that the date of death is presumed for all purposes to be that stated in the certificate and that the certificate may be admitted as prima facie evidence of the date. The certificate itself states only a presumption, since it recites, “Missing in action to Presumed killed in action 1976 Feb. 24.” This presumption is reasonable enough for the purpose of determining the pay, allowances, and death gratuities of a long-missing member of the armed forces. It has little evidentiary weight of itself with respect to the actual date of death, and can be accepted as proof only by virtue of the Presumption of Death Act. Under that Act, it is only prima facie evidence and establishes only a rebuttable presumption. The circumstances relied on to overcome this presumption are that in 1967 Commander Yarbrough’s plane was shot down in enemy territory, his parachute failed to open completely, he struck the ground with a puff of dust, and he was never seen or heard of again, notwithstanding attempts at rescue. These circumstances are sufficient to permit a fact inference that the insured did not survive his fall from the plane on that date. Consequently, we hold that the trial court erred in rendering summary judgment against appellant Valley Forge.

Appellant contends further that it is entitled to rendition of judgment in its favor because as a matter of law the facts stipulated require the inference that the insured died on January 19, 1967. Appellant points out that the parties agreed that the stipulation and its attached exhibits “constitute all of the evidence to be offered and considered” in the case. This question depends on whether the presumption created by the Presumption of Death Act disappears when rebutting evidence is offered, or whether even in the face of such rebutting evidence, a fact inference remains which raises a fact issue for determination of the trial court or jury. A true presumption disappears when rebutted and no longer has weight as evidence. Prudential Ins. Co. v. Krayer, 366 S.W.2d 779, 780 (Tex.1963); Mutual Life Ins. Co. v. Burgess, 174 S.W.2d 324, 326 (Tex.Civ.App.—Fort Worth 1943, writ ref’d). We conclude that once the statutory presumption is rebutted, the certificate provides no reasonable basis for an inference that the death of the insured occurred on the date the certificate was signed. This conclusion is inescapable in view of the recital in the certificate itself that death is presumed. Consequently, the presumption has no further force in this case.

Since the statutory presumption thus disappears, and no supporting factual inference remains, the only evidence of the date of death is the evidence of circumstances stated in the narrative report supplied by the Navy Department. These circumstances are sufficient, in the absence of other evidence, to bring the case within the rule that if a person is last seen under circumstances of imminent peril to his life, and is never seen or heard of again, he is presumed to have died as a result of that peril. Wells v. Margraves, 164 S.W. 881, 883 (Tex.Civ.App.—Texarkana 1914, writ ref’d); Lukens v. Camden Trust Co., 2 N.J. Super. 214, 62 A.2d 886 (Super.Ct.Ch.Div. 1948); In re Thornburg’s Estate, 186 Or. 570, 208 P.2d 349, 354 (1949). In the absence of any other evidence — and the parties stipulated that no other evidence will be considered — that presumption establishes as a matter of law that the insured died on January 19, 1967, or within a short time thereafter.

Nevertheless, we cannot render judgment here for appellant because the case has never been tried, and appellant filed no motion for summary judgment. We cannot render a summary judgment in favor of a party who has not moved for summary judgment in the trial court, and neither can we render judgment as a matter of law on the stipulated facts when no trial has taken place. Consequently, we can only reverse the judgment and remand the cause to the trial court for further proceedings in accordance with this opinion.

We observe, moreover, that there is no point in applying the summary-judgment practice to a case in which all the facts are stipulated. In such a case the stipulation rather than the motion saves the time and expense of eliciting testimony from live witnesses. The judge has discretion to refuse to consider such a motion and to set the case instead for an early non-jury trial on the stipulation. This is the better practice, even if the only questions presented .are thought to be questions of law. The judgment can then be defended on appeal without the burden of negating the existence of fact issues, the burden assumed by the movant in a motion for summary judgment.

Reversed and remanded for further proceedings in accordance with this opinion.

ON MOTION FOR REHEARING

In its motion for rehearing Republic points out that article 5541 not only provides a presumption that death occurred on the date of the certificate, but also provides that “such certificate may be admitted as prima facie evidence ... of the date and place where such person died.” Consequently, Republic argues, although the presumption may have disappeared when rebutted, the certificate remains as evidence sufficient to raise a fact issue. In support of this argument, Republic cites Hill v. Cabral, 62 R.I. 11, 2 A.2d 482 (1938), and Thornes v. Meyer Store, 268 Mass. 587, 168 N.E. 178 (1929).

Notwithstanding the holdings in those eases, we are not persuaded that our legislature, in enacting article 5541, intended the certificate to be accepted as evidence sufficient to raise a fact issue, regardless of the strength of opposing testimony. “Pri-ma facie evidence” is a phrase with no fixed meaning. Sometimes it means evidence raising a presumption; that is, proof establishing the existence of the fact at issue as a matter of law if no opposing evidence is offered. In other contexts it means proof that merely entitles the proponent to go to the jury on the existence of the fact at issue if no opposing proof is offered. Coward v. Gateway Nat’l Bank, 525 S.W.2d 857, 859 (Tex.1975); 9 J. Wigmore, Evidence § 2494 (3rd ed. 1940); 1 C. McCormick and R. Ray, Texas Law of Evidence § 55 (2nd ed. 1956); and see Texas Dept. of Public Safety v. Casselman, 417 S.W.2d 146, 149-50 (Tex.1967) (official certificate is prima facie evidence of contents of judgment, but presumption is destroyed by opposing evidence). In a number of Texas cases “prima facie evidence” is defined in this latter sense to mean that which suffices for the proof of a particular fact until contradicted and overcome by other evidence. Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 136 S.W.2d 207, 209 (1940); Dodson v. Watson, 110 Tex. 355, 358, 220 S.W. 771, 772 (1920).

Under these authorities, if “prima facie evidence” is not used in article 5541 in the sense of evidence raising a presumption, it has even less force. So interpreted, the statute simply makes the certificate admissible in evidence and provides that when admitted it creates a presumption. The phrase “prima facie” qualifies and limits the term “evidence.” If the statute provided that the certificate “shall be evidence” of the date of death, then perhaps it would support a fact finding, regardless of opposing evidence. The statute provides, however, only that it shall be “prima facie evidence.” We are not persuaded that the ambiguous term “prima facie evidence” means that the certificate alone raises a fact issue, regardless of what opposing evidence may have been introduced. For instance, we do not believe that the legislature intended to authorize a court or jury to find that death occurred on the date specified in the certificate, even though disinterested eye-witness testimony should conclusively establish that it occurred at an earlier date. Consequently, we conclude that the certificate has no probative force if it is rebutted by other evidence of the date.

Republic’s motion also raises the question as to whether the evidence contained in the stipulation is sufficient to rebut the presumption. We adhere to our decision on original submission that the presumption has been rebutted. We recognize that there are expressions in some Texas cases that evidence to rebut a presumption must be conclusive or so clear, positive and disinterested that it should be given conclusive effect. Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854, 858 (1942) (presumption of receipt of letter from proper mailing); see Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763, 768 (1940) (recognizing conflicting authorities). More recently, however, the supreme court has set this question at rest by holding that in order to rebut a presumption, the opponent is not required to prove non-existence of the fact in issue as a matter of law, but may rebut it by the testimony of an interested witness, thus shifting to the proponent the burden of offering other evidence to prove the fact at issue. Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 359 (Tex.1971) (presumption of scope of employment of truck driver). That opinion recognizes that if the facts on which the presumption is based, without the aid of the presumption, logically tend to establish the fact at issue, then, although the presumption disappears as a rule of law, the fact inference remaining may be sufficient to raise an issue for the jury. Examples cited by the court are Sudduth v. Commonwealth County Mut. Ins. Co., 454 S.W.2d 196, 198 (Tex.1970) (inference of non-mailing of notice from non-arrival); Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854, 858 (inference of receipt of letter from proper mailing).

Applying these rules, we conclude that the presumption has been rebutted in this case. The certificate by the Navy Department shows only that February 24, 1976, is the date on which the insured’s status was changed on the department’s records from “missing in action” to “presumed killed in action.” In itself, the certificate does not tend logically to establish the date of death. Only by virtue of the presumption provided by article 5541 does it have any force to establish the date of death. When that presumption was rebutted by evidence of circumstances tending to show his death at an earlier date, the certificate had no further force as a presumption or as “prima facie evidence.”

Although the opposing evidence here may fall short of direct eye-witness testimony, we hold that it is sufficient to rebut the presumption and to raise a counter-presumption that the insured died in 1967. The circumstances of his disappearance, as established by the stipulation, provide circumstantial evidence that he died when his plane was shot down over North Vietnam. Proof of the perilous circumstances in which he was last seen raises a counter-presumption, which serves to overcome the presumption established by the certificate, and thus to cast on Republic the burden to produce evidence intending to prove that he survived that peril. See 9 J. Wigmore, Evidence § 2493 (3rd ed. 1940). Since, by the terms of the stipulation, no other evidence is available, judgment should be rendered accordingly.

Motion for rehearing overruled.