author: DANIEL, Justice. CHADICK, Justice,

text:
    MERCHANTS FAST MOTOR LINES, INC., et al. v. RAILROAD COMMISSION OF TEXAS et al.
    NO. B-6594.
    Supreme Court of Texas.
    Oct. 25, 1978.
    Rehearing Denied Dec. 13, 1978.

      Jerry C. Prestridge, Robinson, Felts, Starnes & Nations, Timothy K. Mashburn and Phillip J. Robinson, Austin, for petitioners.
    John L. Hill, Atty. Gen., John David Hughes, Asst. Atty. Gen., Rogers, Hughes & Herman, Timothy J. Herman, Lanham, Hatchell & Sedberry, Austin L. Hatched, Austin, for respondents.
   DANIEL, Justice.

A controlling question in this case is whether review of an administrative order made by the Texas Railroad Commission prior to the effective date of the Administrative Procedure Act should be reviewed under the provisions of that Act or as provided by the law in effect when the administrative order was promulgated and the review was sought.

Morgan Express, Inc., applied for and the Railroad Commission granted an order on June 11, 1975, substantially amending and enlarging its motor carrier authority and prescribing certain new rate schedules for Morgan. Merchants Fast Motor Lines, Inc., and six other competing carriers contested the application and challenged the validity of the order by petition filed in the District Court of Travis County on August 13, 1975. as provided in Sec. 20 of the Motor Carrier Act, Article 911b.

The trial court completed its hearing of the appeal on November 20, 1975, and entered judgment setting aside the order on January 12, 1976, eleven days after the new Administrative Procedure Act became effective on January 1,1976. The trial court held the Morgan order to be invalid for several reasons, including a lack of substantial evidence in support of the order and a lack of due process with respect to changes in the applicable rates. The Court of Civil Appeals agreed with the trial court on the errors in the Commission order relating to rates, but did not pass on the substantial evidence and other points raised by Morgan. Instead, the Court of Civil Appeals reversed the trial court and remanded the cause to that court with directions to remand it to the Commission “to give the Commission an opportunity to correct any errors in its order of June 11, 1975, all pursuant to § 19(e) of the Administrative Procedure Act.” 545 S.W.2d 198. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

By application dated August 20, 1971, amended on January 3, 1973, Morgan sought a Commission order removing certain restrictions from its Common Carrier Certificate No. 3063 and the addition of other transportation services. Prior to this application, Morgan’s certificate authorized it to transport over regular routes “Goods, Wares and Merchandise, in packages not to exceed fifty (50) pounds each in weight, and Newspapers, Newsreels, Films, and Theater supplies, in packages or bundles not to exceed one hundred (100) pounds each in weight, and the transportation not to exceed three thousand (3000) pounds per single unit.” The certificate also contained the restriction that, “The holder of this certificate is authorized to charge a rate for such services, the minimum of which shall not be lower than the lowest maximum rate charged by any other common carrier transporting like commodities over the route, or parts thereof, set out hereinafter . . .”

On June 11, 1975, the Railroad Commission granted part of the requested changes, including an increase in the weight restrictions and changes in the rate tariffs prescribed for Morgan’s account. As heretofore stated, the seven competing carriers filed a petition on August 13, 1975, challenging the validity of the order in accordance with Sec. 20 of Art. 911b. Hearings were held in the trial court on November 18, 19, and 20, 1975, after which the trial court asked for briefs and took the case under advisement. On January 12, 1976, the trial court rendered judgment declaring the order void, setting it aside, and enjoining the issuance of the amended certificate. The trial court filed eighty conclusions of law on February 6, 1976, and an additional four conclusions of law on February 27, 1976, in which it stated reasons for its action.

In the meantime, on February 9, 1976, the Commission filed a motion in the trial court praying for a recision of the court’s prior judgment and for a remand of the cause to the Commission “for further proceedings on all issues raised in this case and other instructions deemed appropriate by the Court . . .”, pursuant to the authority for remand granted by Section 19(e) of the Administrative Procedure Act. The trial court denied this motion on the grounds that the APA was inapplicable to the proceeding.

Intent of the Administrative Procedure Act

Petitioners, hereinafter referred to as Merchants or the competing carriers, insist that review of the Commission’s order should be under the law which was in effect when the order was promulgated. It is clear that all administrative proceedings in this case were conducted and decided before the APA became effective. During such time, a suit to set aside a Railroad Commission order in motor carrier cases was governed by Sec. 20 of Art. 911b, and the order was either affirmed or set aside. Remand to the Commission was without statutory authority. Railroad Commission v. Oil Field Haulers Association, 442 S.W.2d 874 (Tex.Civ.App.1969, writ ref’d n.r.e.).

Morgan contends that Sec. 19(e) of the APA (Art. 6252-13a) which provides for affirmance, reversal or remand of administrative decisions should be retroactively applied since it is a procedural statute.

Retroactive laws are prohibited by Article 1, Sec. 16, of the Texas Constitution. As a general rule, statutes operate prospectively, but they may operate retrospectively when no impairment of vested rights results. Cox v. Robison, 105 Tex. 426, 150 S.W. 1149 (1912). Moreover, statutes will not be applied retrospectively unless it appears by fair implication from the language used that it was the intent of the Legislature to make it applicable to both past and future transactions. State v. Humble Oil & Refining Co., 141 Tex. 40, 169 S.W.2d 707 (1943).

On the other hand, as to procedural statutes, it is settled that the Legislature may make changes applicable to future steps in pending cases. Phil H. Pierce Co. v. Watkins, 114 Tex. 153, 263 S.W. 905 (1924); Regal Properties v. Donovitz, 479 S.W.2d 748 (Tex.Civ.App.1972, writ ref’d n.r.e.); Boyd v. Dean, 515 S.W.2d 753 (Tex.Civ.App.1974, no writ). This is because a litigant has no vested right in a procedural remedy. Phil H. Pierce Co. v. Watkins, supra. In the above cases, the legislative intent was either clearly stated or there was nothing in the Act which expressed or implied a contrary intent. Sections 13-18 of the APA (Art. 6252-13a) provide standards for administrative hearings and records, and the relevant Sections applicable to judicial review are as follows:

“Sec. 19. (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this Act. This section is cumulative of other means of redress provided by statute.
“(d)(3) the review is conducted by the court sitting without a jury and is confined to the record, except that the court may receive evidence of procedural irregularities alleged to have occurred before the agency but which are not reflected in the record.
“(e) The scope of judicial review of agency decisions is as provided by the law under which review is sought. Where the law authorized appeal by trial de novo, the courts shall try the case in the manner applicable to other civil suits in this state and as though there had been no intervening agency action or decision. Where the law authorizes review under the substantial evidence rule, or where the law does not define the scope of judicial review, the court may not substitute its judgment for that of the agency as to the weight of the evidence on questions committed to agency discretion but may affirm the decision of the agency in whole or in part and shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
“(1) in violation of constitutional or statutory provisions;
“(2) in excess of the statutory authority of the agency;
“(3) made upon unlawful procedure;
“(4) affected by other error of law;
“(5) not reasonably supported by substantial evidence in view of the reliable and probative evidence in the record as a whole; or
“(6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
“Sec. 22. Chapter 274, Acts of the 57th Legislature, Regular Session, 1961, as amended (Article 6252-13, Vernon’s Texas Civil Statutes), and all other laws and parts of laws in conflict with this Act are repealed. . . . ”

The Administrative Procedure Act does not specifically state that its judicial review provisions shall or shall not apply to administrative hearings and decisions which have been concluded prior to the effective date of the Act. The above cited cases suggest various conclusions or interpretations when a remedial statute does not contain express words as to its prospective or retrospective application. We deem it more appropriate, however, to follow the fundamental rule that legislative intention should be ascertained from the entire act, and not from isolated portions thereof. Woods v. Littleton, 554 S.W.2d 662 (Tex.1977); City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273 (1951). The Legislature has declared: “In all interpretations, the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil and the remedy.” Art. 10, Sec. 6, Texas Revised Civil Statutes. The purposes of the APA stated in Sec. 1 include the following: “.

to afford minimum standards of uniform practice and procedure for state agencies . and to restate the law of judicial review of agency action.”

When the APA was enacted in 1975, there were no uniform rules for conducting, deciding and appealing from administrative decisions. Under the old law, numerous administrative agencies conducted hearings according to their own applicable rules, some of which required findings of fact and conclusions of law in support of their decisions and some of which did not. Review of administrative orders under the substantial evidence rule was by trial in the district court upon a new record without regard to the evidence heard by the administrative agency. This type of substantial evidence review of a newly developed court record, which often differed from the evidence heard by the agency, came under severe criticism. It was an “evil” of the old law. The remedy provided by the APA was to require a more complete administrative record, with findings of fact and conclusions of law, and to limit judicial review to the record made before the administrative agency. The intended effect of this change was noted by this Court in Imperial American Resources Fund v. Railroad Commission, 557 S.W.2d 280 (Tex.1977), as follows:

“. . . Through enactment of the Administrative Procedure Act . the Legislature has made a far-reaching change in limiting judicial review under the substantial evidence rule to the records made before the administrative agencies. The result is that the agencies and the courts now consider the same evidence. Judicial review under the essential standards of the substantial evidence rule has been preserved, but the courts now test the substantiality of the evidence upon which an administrative agency made its decision. . . . ”

Judicial knowledge can be taken of the fact that some administrative proceedings were being conducted and some decisions were made under pre-existing laws between the final enactment of the APA on April 22, 1975, and its effective date of January 1, 1976. It can be assumed that the Legislature knew such proceedings were ongoing, which may account for the setting of the later effective date. We find no indication in the Act that it was intended to apply to administrative records and orders which were made pursuant to hearings conducted under pre-existing laws. From a careful study of the structure of the entire APA, we conclude that it was intended to apply only to administrative orders promulgated after January 1, 1976. This conclusion applies to the judicial review provisions of the Act, because under the APA, such review is limited to the record made in the administrative hearing. Otherwise, all of the pre-APA orders would be subject to remand and retrial in accordance with APA standards.

It is undisputed that in this case the administrative record and decision of June 11, 1975, did not meet APA standards. Those standards were not then in effect. The competing carriers sought and obtained judicial review under Sec. 20 of the Motor Carrier Act (Art. 911b), which was the only right of appeal available to them at the time. It is impossible to apply APA standards of review to a record and a decision made under different standards of pre-ex-isting law. Accordingly, we hold that an administrative order made prior to the effective date of the APA must be reviewed under the laws applicable when the order was promulgated, and that APA review provisions are not applicable thereto.

Errors Upon Which Reversal Was Based

The question to be decided on review is whether the Commission’s order of June 11, 1975, was, on that date, valid or invalid. The trial court based its decision of invalidity upon numerous errors, including several relating to rates. The Court of Civil Appeals also ruled that the amendment of the certificate relating to rates was a nullity. We agree. Indeed, Morgan does not seriously contend otherwise. As heretofore stated, there is no provision in the appeal procedure provided by Sec. 20 of Art. 911b for a remand to the Commission. An order appealed under that pre-existing law must stand or fall as it is brought to court. The order in this case falls, if for no other reason, because of the invalidity of its provision prescribing rates for Morgan’s existing and newly authorized services. The new rate provisions are interwoven with the additional operating rights granted Morgan. It cannot be assumed that the Commission would have granted other certificate amendments apart from the changes relating to rates.

We agree with the reasons stated by the Court of Civil Appeals in holding the rate changes to be invalid, but we do not agree that they constitute procedural errors which would be subject to correction by the Commission if a remand were permissible. On the contrary, the portion of the order dealing with rates was without due process. The form and content of the application as well as the notice and hearing failed to comply with the Commission’s Rule 13(E) relating to rates. There is no way for those errors to be corrected except by filing a new application and complying with the law in a new hearing under the APA standards, which are now in effect. In view of our holding as to the effect of the errors relating to rates and our previous holding that the permissive remand provisions of the APA are inapplicable to this case, it is unnecessary for us to pass upon other points raised by the parties here or in the Court of Civil Appeals.

Accordingly, the judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.

CHADICK, J., dissents.

CHADICK, Justice,

dissenting.

The majority disposes of this appeal under the Texas Motor Carriers Act, Tex.Rev. Civ.Stat.Ann. art. 911b, § 20, by affirming the trial court judgment. I understand the Railroad Commission proceedings may be immediately refiled. Disposition under the Texas Administrative Procedure Act, Tex. Rev.Civ.Stat.Ann. art. 6252-13a § 19(a), which I propose in this dissent, would remand the case to the Commission for full rehearing on the issues properly before it. Except for substantial expense and slight delay, so far as the parties are concerned it would make little difference which is done. But consigning to the ash can most of the labor and expense invested by all the parties to the proceeding seems unjustifiable as a practical matter and more so from a legal standpoint.

I feel the majority is out of step with sound precedent and that there is no valid reason to overturn long settled rules and waste the time of the courts and litigants as is being done here. The majority has generalized that it is impossible to apply APA standards of review to a record and a decision made under the different standards of pre-existing law. No conflicting standards are identified or complaint made of injury inflicted by reason of a conflict. The majority neglects to point out a single substantive right of respondents that is or has been impaired or denied by court review or remand to the Railroad Commission under the provisions of the APA. The petitioners would probably be as pleased as everyone else to know which of their substantive rights has been or will be nullified or impaired by remand to the Railroad Commission, and I think greatly surprised, as their briefs do not claim the loss or impairment of an identifiable substantive right. The majority has simply conjured up a scary apparition, completely without substance, and flee in terror before it. I am compelled to dissent.

Petitioner, Merchants Fast Motor Lines, Inc., and six other certificated motor carriers, brought suit as authorized by the Texas Motor Carriers Act, Tex.Rev.Civ.Stat.Ann. art. 911b, § 20, to nullify an order of the Respondent, Railroad Commission of Texas amending the permanent certificate of convenience and necessity which the Respondent, Morgan Express, Inc., is operating.

The trial court set aside the Commission’s order on the ground that it was not supported by substantial evidence and overruled the Commission’s motion to remand the order to the Commission for further consideration pursuant to the remand provision of the Texas Administrative Procedure Act, Tex.Rev.Civ.Stat.Ann. art. 6252-13a, § 19(e). The Court of Civil Appeals held that remand pursuant to Section 19(e) was proper and concluded that the Commission’s order granting Morgan a change in freight rates was defective for want of procedural predicate. Without considering other points of error the court reversed the judgment of the trial court and remanded the cause to that court with instructions that it remand the order, pursuant to Section 19(e), to the Commission to give that agency “an opportunity to correct any errors” in its order. 545 S.W.2d 198.

This appeal presents several problems. The primary questions are (1) whether the remand provision of Section 19(e) is applicable to this action; (2) whether the Court of Civil Appeals erred in failing to affirm the trial court judgment that the Commission’s order was not supported by substantial evidence; and (3) whether remand for further Commission consideration or reversal and rendition is appropriate under the circumstances of this record. I would hold that Section 19(e) is applicable, that the Court of Civil Appeals did not err in failing to affirm the trial court judgment and that the judgment of the Court of Civil Appeals remanding the cause should be modified and affirmed.

I.

APPLICABILITY OF SECTION 19(e)

Before enactment of Section 19(e) of the Texas Administrative Procedure Act a suit to set aside a Railroad Commission’s order was governed by Section 20 of the Motor Carriers Act. Under Section 20 a court could only affirm or reverse an agency order. Railroad Commission v. Oilfield Haulers Association, 442 S.W .2d 874 (Tex.Civ.App.1969). See also Trapp v. Shell Oil Company, Inc., 145 Tex. 323, 198 S.W.2d 424 (1946). In contrast, Section 19(e) provides that a reviewing court may affirm, reverse or remand agency orders.

The Commission’s order was entered June 11, 1975 and suit was instituted August 13, 1975. Introduction of evidence began in the trial court August 18, 1975, and was concluded within three days. The trial judge took the case under advisement. On January 1,1976, Section 19(e) became effective and on January 12, the trial judge rendered judgment. Thus, all proceedings and acts preliminary to judgment occurred while Section 20 was solely applicable although judgment was actually rendered after Section 19(e) became effective.

The petitioners assert that the Commission’s order exceeded Commission authority and was not supported by substantial evidence, and that they are entitled to rendition of judgment nullifying the order under Section 20 practice as it existed June 11, 1975, the date the order was rendered. Accordingly, they claimed to be harmed because remand to the Commission deprives them of a pre-existing right to rendition. Stated more concisely, the petitioners contend that the Section 19(e) authorized remand by the Court of Civil Appeals gives retroactive effect to a statute that did not exist when the Commission acted and deprives them of a favorable judgment, which they claim as a vested right. As a general proposition retroactive statutes are prohibited by fundamental law. Tex.Const. art. 1, § 16. Nevertheless, the petitioners’ claim runs counter to the posture of this action and the firmly settled principle that a litigant has no vested right in a particular mode of procedure.

It is evident that Section 19(e) remand authority is procedural, as it directs the course a court is empowered to follow in the enforcement of a litigant’s rights. The procedural nature of the Section is also revealed by the declaration in a preceding Section (art. 6352-13a, § 19(a)) that the Texas Administrative Procedure Act is cumulative of other “means of redress.” Although Texas courts have not directly ruled thereon, courts of other jurisdictions support the statement in 16 Am.Jur.2d, Const.Law, § 427 (1964) that “. . .it has become firmly established that there is no vested right in any particular mode of procedure or remedy.” Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207 (1949); Winter v. Barrett, 352 Ill. 441, 186 N.E. 113, 89 A.L.R. 1398 (1933). See also Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404 (1932); Church v. Crites, 370 S.W.2d 419 (Tex.Civ.App.—San Antonio 1963, writ ref’d n. r. e.); City of Fort Worth v. Morrow, 284 S.W. 275 (Tex.Civ.App.—Fort Worth 1926, writ ref’d). Moreover, a procedural statute, as Section 19(e) clearly is, controls proceedings pending at the time the statute becomes effective. Phil H. Pierce Company v. Watkins, 114 Tex. 153, 263 S.W. 905 (1924). See also Ex parte Collett, supra; Exxon Corporation v. Brecheen, 526 S.W.2d 519 (Tex.1975); Wilson v. Work, 122 Tex. 545, 62 S.W.2d 490 (1933). Section 19(e) is not in fact a retroactive enactment as the record shows it effective before final judgment was rendered in the trial court and application of its remand provision is available as the remand authorized is procedural.

II.

COURT’S DUTY TO DETERMINE ISSUES

While the Court of Civil Appeals determined that remand pursuant to Section 19(e) was proper and the certificate amendment granting Morgan a change in freight rates was defective, it did not consider other issues pending before it relative to Commission action and substantial evidence. The full extent of a court’s duty to consider and decide pending issues pertaining to agency error when reviewing an agency’s order has not had the attention of our courts. The Texas Administrative Procedure Act is silent on the question.

In First Savings & Loan Association of Del Rio v. Lewis, 512 S.W.2d 62 (Tex.Civ.App.—Austin 1974, writ ref’d n. r. e.), the trial court found a Savings and Loan Commissioner’s order defective in three particulars because recitations of fact therein were not supported by evidence in the record. The trial court remanded the case to the Commissioner for further proceedings “consistent with this opinion” expressly by-passing determination of “any questions with regard to substantial evidence.” The Court of Civil Appeals affirmed saying the trial court “. . . may draw upon its general equity powers and adjust its relief to the exigencies of the case in accordance with equitable principles . . . .” The United States Supreme Court has said that when a court finds a ground sufficient to set aside an administrative order no principle or procedure governing the review of the administrative order requires a court to examine other grounds of attack. Ford Motor Company v. N. L. R. B., 305 U.S. 364, 59 S.Ct. 301, 83 L.Ed. 221 (1938). And in this jurisdiction it is said that courts of civil appeals need not decide questions unnecessary to disposition of a cause. Mooneyhan v. Benedict, 284 S.W.2d 741 (Tex.Civ.App.—Austin 1955, writ ref’d n. r. e.).

However, in Lewis v. Gonzales County Savings and Loan Association, 474 S.W.2d 453 (Tex.1971), the Court of Civil Appeals did not consider a point of error pending before it that an agency’s order was not supported by substantial evidence. The Supreme Court decided the evidence issue should be addressed and proceeded to a determination that there was substantial evidence to support the order. A concurring opinion expressed doubt about the propriety of considering substantial evidence points before an otherwise valid order was before the court. A problem similar to that in Gonzales was dealt with in Bay City Savings and Loan Association v. Lewis, 474 S.W.2d 459 (Tex.1971), with a similar disposition and concurring opinion.

All of these cases, including First Savings and Loan Association of Del Rio v. Lewis, supra, as later discussion will demonstrate, are basically consistent with and do not limit broad judicial policy that favors expeditious disposition and termination of litigation. This favored policy may at times require consideration of issues by courts reviewing agency orders which are not strictly necessary to disposition, but which will expedite termination of litigation.

First Savings and Loan Association of Del Rio is distinguishable from the case before the Court in that the reviewing district court found three errors underlying the Commission’s order and remanded it for “further proceedings consistent with this opinion.” In the present case one Commission error is pointed out by the reviewing court and remand is ordered to give the agency “an opportunity to correct any errors in its order.” More specific court guidance in First Savings and Loan Association of Del Rio would have been salutary. However, delay in disposition would have been approximately equal whether remand was first to the trial court or first to the agency. A remand to the trial court at that point in the progress of the case would not have assured a more expeditious end to the litigation than would acceding to the trial court’s disposition.

In the present appeal the Commission was given no guidance, except as to the deficiency in the rate amendment, and was told to search out and correct any errors underlying its order. To remand without guidance suggests and sanctions a system of winnowing out error by successive remands until an errorless order is produced by the Commission. A “merry-go-round” correction procedure of this nature seriously violates the policy of expeditious disposition and termination of litigation. A rational observance of the imperatives of precedent and policy requires the reviewing court to consider all of the issues before it, and if remand is appropriate, to give the administrative agency as much legal guidance as sound judicial discretion and the exigencies of a case permit. In the present case the Court of Civil Appeals should have examined the several allegations of Commission error that were before it to determine proper disposition of the appeal and, if remand was indicated, should have given the Commission appropriate guidance.

Four of the six points of error in respondents’ (appellants’) brief in the Court of Civil Appeals questioned Commission action. One of these points, that the Commission did not have jurisdiction to prescribe or adjust rates under Morgan’s application, was determined by the intermediate court and is no longer in the case. Another point raised the issue of whether substantial evidence supported the Commission’s order. Although the Court of Civil Appeals did not dispose of the substantial evidence issue, it should be considered by this Court as writ of error was granted on a similar point. The remaining points pertaining to Commission error are concerned with matters that are correctable by the Commission if further Commission consideration is found appropriate. The questions raised by these points are not before this Court and additional comment will be omitted.

III.

SUBSTANTIAL EVIDENCE ISSUE

Morgan’s permanent certificate authorized it to transport over designated routes on a fixed schedule goods, wares, merchandise, newspapers, films and theater supplies subject to weight and freight rate restrictions. Morgan’s application to amend the certificate sought authority to transport general commodities moving in express service to, from and between points specified in the application; to eliminate the existing certificate weight and rate restrictions; to coordinate proposed service with existing service, and to interline with other express carriers at appropriate points; as well as, to replace the rate restriction with another that provided a formula for the calculation of rates. The Commission amended the certificate by eliminating existing weight and rate restrictions and added authority for Morgan to transport general commodities, not to exceed 350 pounds in weight, including newspapers, newsreels, films, and theater supplies along designated routes slightly different from Morgan’s existing routes at rates to be calculated by a prescribed formula.

The voluminous record contains evidence showing the scope of transportation services offered and provided by petitioners along their routes of operation. Witnesses produced by petitioners testified to the public’s general satisfaction with petitioners’ existing service and facilities. For individual business reasons, witnesses relied upon existing service and said they would be adversely affected if petitioners’ service was impaired by favorable Commission action on Morgan’s application. Morgan’s witnesses testified in general terms, and without reference to shipments of less than 350 pounds in weight, to their need, and probable use of Morgan’s proposed additional services and to the inadequacy of petitioners’ service to meet their business needs.

Petitioners focus upon transit time performance, pick-up and delivery service and direct service to smaller authorized service points as elements of Morgan’s cause before the Commission and assert that these areas of carrier service are not supported by substantial evidence. No evidence was produced showing Morgan’s past or prospective dependable transit time performance while evidence and documents were offered to show petitioners’ favorable performance in this regard. No complaint as to dependable pick-up and delivery service by petitioners (existing carriers) was tendered but evidence of dissatisfaction with the dependability and adequacy of Morgan’s service and prospective service was produced. Some evidence was offered of failure or refusal of petitioners to perform direct service to, from and between, some of their smaller authorized service points. On the other hand evidence was produced that Morgan presently and prospectively failed and refused to provide direct service to one-third of its smaller service points. Morgan’s delivery practice at smaller service points, according to the evidence, is to notify a consignee by mail of arrival of freight which may be picked up at Morgan’s closest larger town agency.

Evidence is characterized as substantial when reasonable minds might accept it as adequate to support a conclusion. Consolidated Edison v. N. L. R. B., 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938). This Court has said that evidence is substantial when “. . . the evidence as a whole is such that reasonable minds could have reached the conclusion that the Railroad Commission must have reached in order to justify its action.” Auto Convoy Company v. Railroad Commission, 507 S.W.2d 718, 722 (Tex. 1974). See also Trapp v. Shell Oil Company, Inc., 145 Tex. 323, 198 S.W.2d 424 (Tex.1946); Shupee v. Railroad Commission of Texas, 123 Tex. 521, 73 S.W.2d 505 (1934). The burden is upon an applicant, Morgan in this instance, to show by substantial evidence that existing transportation facilities are not reasonably adequate as well as satisfying other statutory prerequisites to a grant of highway carrier authority. Article 911b, §§ 8 and 9.

From the facts noted above there is substantial evidence that in isolation would support a Commission finding that existing service is adequate. On the other hand there is evidence of a public need for and probable use of Morgan’s proposed service as well as testimony of the inadequacy of existing carrier’s service. The evidence favorable to Morgan’s application is substantial in nature and tends to rebut a prima facie showing by the petitioners that existing service was adequate. That existing carrier service provides incidental conveniences, or advantages in limited areas of service that proposed carrier service does not contemplate, match or exceed will not deprive the Commission of discretion to determine the ultimate question of adequacy of existing service, need of or demand for additional service, and other statutory prerequisites to a grant of transportation authority. The weight of evidence is for Commission determination. North East Texas Motor Lines, Inc., v. Texas and Pacific Motor Transport Company et aL, 159 S.W.2d 926 (Tex.Civ.App.—Austin 1941, no writ). The Commission as arbiter decided in Morgan’s favor. This Court has no power to substitute its own judgment for that of the Commission. Auto Convoy Company v. Railroad Commission, supra; Gulf Land Company v. Atlantic Refining Company, 134 Tex. 59, 131 S.W.2d 73 (1939). I would conclude that substantial evidence supports the Commission’s order. The Court of Civil Appeals did not err in refusing to affirm the trial court judgment that this order was not supported by substantial evidence.

IV.

DISPOSITION OF APPEAL

Discretion to issue motor carrier certificates of convenience and necessity and to authorize transportation of freight for compensation over Texas highways is vested in the Railroad Commission. Texas Motor Carriers Act, Tex.Rev.Civ.Stat.Ann. art. 911b. In this instance the amendment to Morgan’s certificate altering rates was adjudged a nullity by both the trial and intermediate appellate courts. No party now questions these adjudications. Morgan’s application was unitary in nature and a change in rates appears to have been an integral part of the application and the Commission’s order. It cannot be assumed that the Commission would have granted the several certificate amendments mentioned apart from the change in the rate structure. Accordingly, Morgan’s application should be reconsidered and determined in the light of the fact that the rate structure cannot be adjusted in this proceeding. The Commission should be completely free to exercise the discretion vested in it in making a determination of issues properly presented by Morgan’s application. To that end the judgment of the Court of Civil Appeals should be modified by vacating the Commission’s order of June 11, 1975, and the cause should be remanded to the trial court, as ordered by the Court of Civil Appeals, for remand by that court to the Commission with instructions to redetermine the issues presented by Morgan’s application and any proper amendments thereto. Modified as indicated, I would affirm the judgment of the Court of Civil Appeals.

      . All statutory references are to Vernon’s Annotated Texas Civil Statutes unless otherwise noted. Sec. 20 of Art. 911b provides in part as follows:
      “Sec. 20. If any motor carrier or other party at interest be dissatisfied with any decision, rate, charge, rule, order, act, or regulation adopted by the Commission, such dissatisfied person, association, corporation, or party after failing to get relief from the Commission may file a petition setting forth the particular objection to such decision, rate, charge, rule, order, act or regulations, or to either or all of them in the District Court in Travis County, Texas, against said Commission as defendant. . . Either party to said action may appeal to the Appellate Court having jurisdiction of said cause and said appeal shall be at once returnable to said Appellate Court having jurisdiction of said cause . . . .”

      . Article 6252-13a (1975), known as the Administrative Procedure and Texas Register Act, effective January 1, 1976, which will be referred to herein as the Administrative Procedure Act or the APA.

      . For instance, in Phil H. Pierce Co. v. Watkins, supra, the relevant statute provided: “[A]ll inconsistent laws and rules of practice and procedure shall be inoperative in the civil district courts of the class included within this act.”

      . The only exception prior to 1976 was under the Savings and Loan Act of 1963, Art. 852a, Sec. 11.12(5)(b), in which the Legislature first limited judicial review to the record made before the administrator.

      . See Reavley, Substantial Evidence and Insubstantial Review in Texas, 23 Sw.L.J. 239 (1969) and Walker, The Application of the Substantial Evidence Rule in Appeals from Orders of the Railroad Commission, 32 Tex.L.Rev. 639 (1954).

      . Article 911b, Section 20.
      If any motor carrier or other party at interest be dissatisfied with any decision, rate, charge, rule, order, act, or regulation adopted by the Commission, such dissatisfied person, association, corporation, or party after failing to get relief from the Commission may file a petition setting forth the particular objection to such decision, rate, charge, rule, order, act or regulations, or to either or all of them in the District Court in Travis County, Texas, against said Commission as defendant. Said action shall have precedence over all other causes on the docket of a different nature and shall be tried and determined as other civil causes in said court. Either party to said action may appeal to the Appellate Court having jurisdiction of said cause and said appeal shall be at once returnable to said Appellate Court having jurisdiction of said cause and said action so appealed shall have precedence in said Appellate Court over all causes of a different character therein pending; provided, that if the court be in session at the time such right of action accrues the suit may be filed during such term and stand ready for trial after ten days’ notice. In all trials under this section the burden of proof shall rest upon plaintiff, who must show by the preponderance of evidence that the decisions, rates, regulations, rules, orders, classifications, acts, or charges complained of are unreasonable and unjust to it or them. The Commission shall not be required to give any appeal bond in any cause arising hereunder and no injunction shall be granted against any order of the Commission without hearing unless it shall clearly appear that irreparable injury will be done the complaining party if the injunction is not granted.

      . The 84 conclusions of law filed by the trial judge are a classic example of judicial overkill. By finding fatal error in almost every act performed by the Commission the credibility of the trial court judgment is put in question. It seems highly unlikely that the Commission might commit error in its every meaningful act in view of its long experience in the regulatory field. I am inclined to assume that the trial judge left it to the prevailing parties to write conclusions and that they prepared an instrument that would fix the opposition’s “little red wagon.”

      .Article 6252-13a, Section 19(e).
      The scope of judicial review of agency decisions is as provided by the law under which review is sought. Where the law authorizes appeal by trial de novo, the courts shall try the case in the manner applicable to other civil suits in this state and as though there had been no intervening agency action or decision. Where the law authorizes review under the substantial evidence rule, or where the law does not define the scope of judicial review, the court may not substitute its judgment for that of the agency as to the weight of the evidence on questions committed to agency discretion but may affirm the decision of the agency in whole or in part and shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
      (1) in violation of constitutional or statutory provisions;
      (2) in excess of the statutory authority of the agency;
      (3) made upon unlawful procedure;
      (4) affected by other error of law;
      (5) not reasonably supported by substantial evidence in view of the reliable and probative evidence in the record as a whole; or
      (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

      . The Commission’s order restricted the general commodity authority granted Morgan to shipments not exceeding 350 pounds in weight. Morgan’s application did not propose such restriction.

      . Morgan’s application did not comply with Commission regulations prescribing rules governing rate applications and procedure thereunder. Error in this respect cannot be corrected in this proceeding.


source: Caselaw Access Project

author: DENTON, Justice.

license: Public Domain

text:
    Charlie CASE et al., Relators, v. Honorable Dee Brown WALKER, Judge, Respondent.
    No. B-7966.
    Supreme Court of Texas.
    Nov. 8, 1978.
    Rehearing Denied Dec. 13, 1978.

      Kammerman, Yeakel & Overstreet, Adrian M. Overstreet, Jr., Austin, for relators.
    R. C. Slagle, Roger D. Sanders, Sherman, Elvin E. Tackett, Bedford, for respondent.
   DENTON, Justice.

In this original mandamus proceeding we are requested to set aside a district court order restraining property owners in Gray-son County from prosecuting an injunction suit to prohibit the certification of the Grayson County tax rolls. The controlling issue is whether a district court, on the basis of an agreed judgment, can exercise continuing jurisdiction over all matters relating to reappraisal and revaluation of taxable property in a county.

The factual background of this proceeding includes two separate lawsuits. In the first suit, James R. Newman, a real property owner in Grayson County, sued the Gray-son County tax officials in the 15th District Court of Grayson County. Newman alleged that real property in the county is taxed at a lower percentage of its market value than personal property, and requested a complete, fair and uniform reassessment of the values of all taxable property in the county. Because of a possible conflict of interest as a county taxpayer, Judge R. C. Vaughan recused himself and Judge Dee Brown Walker of Dallas County was assigned to hear the case.

On November 12, 1972, Judge Walker, respondent here, rendered an agreed judgment stating that “the parties have settled and compromised all matters at issue between them growing out of said suit . . . and an agreed judgment should be entered. . . .” The judgment provided that Newman would pay delinquent taxes on his property, that the Tax Assessor-Collector of Grayson County would employ personnel necessary to effect a revaluation and reappraisal of all taxable property in Grayson County, and that the Commissioners Court of Grayson County would budget the funds necessary to pay the personnel. Judge Walker then decreed that the court would “retain continuing jurisdiction of this cause and of all matters of controversy herein for whatever period of time is necessary to effectuate the necessary revaluation and appraisal of all taxable property in Grayson County.”

In the second suit, Charlie Case, et al., a group of property owners in Grayson County [hereinafter referred to as the Case plaintiffs], sued the Grayson County tax officials in the 59th District Court of Gray-son County on October 5, 1978. The Case plaintiffs alleged that they would have to pay more than their fair share of the ad valorem tax burden of Grayson County because of the failure of the tax officials to list all personal property subject to taxation on the tax rolls. They requested emergency injunctive relief. Because of a possible conflict of interest as a county taxpayer, Judge Ralph Elliott recused himself and Judge W. C. Boyd of Denton County was assigned to hear the case. On October 5, 1978, Judge Boyd of the 59th District Court issued a temporary restraining order prohibiting the Grayson County tax officials from certifying the tax roll until a temporary injunction hearing could be held.

On October 9, 1978, Judge Dee Brown Walker, on the strength of his assignment to the 15th District Court, issued a temporary restraining order prohibiting the Case plaintiffs from “further pursuing or prosecuting in any manner” their cause in the 59th District Court. The order was based in part on a motion filed by Newman in the 15th District Court entitled “Second Motion to Declare Status of Relief Previously Granted and for Ancillary Relief” and in part on Judge Walker’s own motion. The temporary restraining order states that the prosecution of the Case cause will “substantially and materially destroy the remedy previously allowed the Plaintiff [Newman] and will . . . directly and substantially interfere with and disrupt this Court’s exercise of its continuing jurisdiction in this cause [the Newman cause].” The order concluded by setting a hearing for the temporary injunction on October 16, 1978.

The Case plaintiffs then petitioned this court for a writ of mandamus to direct Judge Walker to set aside his temporary restraining order. Judges Walker and Boyd cancelled the temporary injunction hearings and renewed the temporary restraining orders. On October 18, 1978, the attorneys for all the parties signed an agreement and waiver in both the Newman case and the Case cause. The agreement states that the temporary restraining orders of each court are to stay in effect until this mandamus proceeding is ruled upon. The Grayson County tax officials have intervened on behalf of the respondent Judge Walker.

The agreed judgment rendered by Judge Walker on November 12, 1972, simply provides that Newman would pay his delinquent taxes and that county officials would budget the funds and employ the personnel necessary to effect a revaluation and reappraisal of taxable property in the county. The judgment correctly states that all matters at issue between Newman and the Grayson County officials were settled and compromised. We therefore conclude that the judgment became final thirty days after its rendition. See, e. g., Ferguson v. Ferguson, 161 Tex. 184, 338 S.W.2d 945 (1960); Hargrove v. Insurance Investment Corp., 142 Tex. 111, 176 S.W.2d 744 (1944).

We hold that a district court, on the basis of an agreed and final judgment that settled a controversy between one county taxpayer and county tax officials, cannot exercise continuing jurisdiction over all matters relating to reappraisal and revaluation of taxable property in a county. The temporary restraining order prohibiting the Case plaintiffs from prosecuting their suit is therefore void. To conclude otherwise would, in effect, permit a district judge to resolve a controversy between one taxpayer and the county tax officials and simultaneously retain unlimited jurisdiction over all county taxpayers, despite the failure to notify them and afford them an opportunity to be heard in a lawsuit that affects their rights as ad valorem taxpayers.

After oral argument had been heard in this mandamus proceeding, Judge Walker filed a motion to dismiss. An “Order Releasing Parties” was attached to the motion. Judge Walker issued this order in the Newman case in the 15th District Court. The order releases all parties, including Newman and the Case plaintiffs, from the previous orders of the court and specifically dismisses the temporary restraining order against the Case plaintiffs. The order also declares that the tax plan and tax rolls of Grayson County are approved and found to be in accordance with law, and that an October 5,1978, certification of the tax rolls of Grayson County is approved and found to be valid.

Judge Walker’s approval of the tax rolls and tax roll certification not only conflicts with the 59th District Court’s previously entered restraining order prohibiting the certification of the tax rolls, but also has no jurisdictional predicate under the conclusions and holding in this proceeding. As we interpret the agreed judgment, and events occurring subsequent to that judgment, Judge Walker’s jurisdiction to hear tax controversies in Grayson County ended thirty days after rendition of the November 12, 1972, judgment. Any orders issued after that date, including that part of the October 26, 1978, order approving the tax rolls and tax roll certification, are void. Because Judge Walker has dismissed the temporary restraining order against the Case plaintiffs, it is not necessary for this Court to issue a writ of mandamus.

      . Rule 329b(5) states: “Judgments shall become final after the expiration of thirty (30) days after the date of rendition of judgment or order overruling an original or amended motion for new trial.” Tex.Rules Civ.Proc. 329b(5). Newman did not file a motion for new trial. The November 12, 1972, judgment therefore became final thirty days after rendition.


author: DALLY, Judge.

text:
    Bernard FERGUSON, Appellant, v. The STATE of Texas, Appellee.
    No. 58706.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 20, 1978.
    Appellant’s Motion for Rehearing En Banc Denied Oct. 18, 1978.

      Troy C. Hurley, Killeen, Gerald M. Brown, Temple, for appellant.
    Arthur C. Eads, Dist. Atty., James T. Russell and Ralph Petty, Jr., Asst. Dist. Attys., Belton, for the State.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for capital murder; the punishment is death.

Appellant contends that: (1) the court erred in denying his request for a postponement of the jury selection when a venire member failed to timely appear; (2) a sample of appellant’s blood was obtained by an unlawful search and seizure and should not have been admitted in evidence; (3) other items were obtained by an unlawful search and seizure and should not have been admitted in evidence; (4) the court erred in refusing to submit to the jury the appellant’s requested charge on accomplice witnesses; (5) the court erred in refusing to submit to the jury the appellant’s requested charge on circumstantial evidence; and (6) the court erred in failing to declare a mistrial after the prosecutor made a sidebar remark.

The offense occurred at approximately 11:45 p. m. on January 25, 1977. The deceased, Randy Tingle, was an attendant at a convenience store in Killeen. He died from loss of blood caused by four stab wounds in the back. It was established by expert medical testimony that the size of the wounds was compatible with a knife having been twisted after it was thrust into the body. Approximately $28 was taken from the cash register of the store.

Appellant was arrested at approximately 3:30 a. m. on January 26 as he and one Jody Persons arrived in a car at a residence on Avenue J in Killeen. Blood was found on the jacket and pants which appellant was wearing as well as the cuff of the jacket, which had been torn off and stuffed into appellant’s boot. There also was blood on a knife which was found at the residence, on gloves which appellant had been wearing, and on currency found in appellant’s billfold. The blood on the knife, jacket and cuff was shown to be of the same type as that of the deceased; tests of the blood on appellant's pants were inconclusive, but it was shown to be of a type similar to that of the deceased. A .357 magnum pistol was found in the car which appellant had been driving.

Jody Persons and Bob McGuinn were accomplice witnesses as a matter of law, and the jury was so charged. McGuinn, who owned the automobile which appellant had been driving, testified as follows concerning the events surrounding the commission of the offense: On the morning of January 25, 1977, he saw appellant at a bowling alley in Killeen. Appellant had a .357 magnum in a brown paper bag and told McGuinn that he planned to “rob a store.” Later that day McGuinn was present at a duplex on Avenue J in Killeen with appellant, Persons, Louis Ferguson and Frank Robbins; appellant had the same gun and also had a knife which McGuinn testified was the knife recovered from the apartment the next day. Appellant told the others present of his plan for “robbing a store” that night and asked them to accompany him. Robbins and Louis Ferguson declined to participate, but Persons and McGuinn agreed to go with appellant. During this discussion appellant cocked the pistol and pointed it at McGuinn’s head; appellant told the others he would kill them all if they turned on him. Later that evening, appellant left with McGuinn and Persons in McGuinn’s car, a 1973 silver Dodge Charger with black stripes. They drove around Killeen for some time looking for a store at which to commit a robbery and finally went to the store at which the deceased worked. McGuinn parked at the fuel pump outside the store and put $5 worth of fuel in the car while appellant and Persons entered the store. McGuinn then parked the car in front of the store. Shortly thereafter, appellant and Persons came out of the store; appellant was carrying a package which contained money, and Persons was carrying a carton of cigarettes. After appellant and Persons got into the car with McGuinn and the three of them departed, appellant took a pair of gloves out of the glove compartment of the car and put one on. McGuinn noticed that appellant had blood on his arm and hand and was carrying a knife. Before they left, McGuinn looked through the store window and saw the deceased using the telephone; something was covering the deceased’s face. Persons, McGuinn and appellant returned to the duplex on Avenue J; on the way there, McGuinn noticed that appellant had “more or less a half-smile.” Upon arriving at the apartment, appellant took some money from a cigarette carton and gave $2 each to McGuinn, Robbins, and Louis Ferguson. Some time later, McGuinn gave Persons permission to drive his car, and appellant and Persons again left the apartment. McGuinn, Robbins, and Louis Ferguson then went and bought some food, ate it, and went to sleep. They were awakened at approximately 3:30 in the morning, when appellant and Persons returned and were arrested.

Persons testified to substantially the same facts as did McGuinn concerning the conversation during which appellant outlined his plan for committing a robbery and threatened to shoot his companions if they did not cooperate with him. Persons testified that appellant was carrying the pistol and knife when they entered the store and that appellant handed him the pistol after they were in the store. After Persons had placed several items on the store counter as if he wished to purchase them, appellant told Persons to point the gun at the store attendant and tell him he was being held up and to lie down on the floor. Appellant and Persons then went to the counter together, and Persons pointed his gun at the deceased and told him he was being held up and to lie on the floor. After the deceased did so, appellant opened the cash register and removed some money. The appellant then squatted over the deceased, pulled out the knife and raised it over his head, and began stabbing the deceased in the back with all his force. Just before appellant stabbed the deceased the last time, the deceased groaned and said, “that’s enough.” Persons looked at the deceased and saw that blood was gushing from his mouth onto the floor. Persons and appellant then left, and on the way out of the store appellant took a package of cookies. After appellant, McGuinn and Persons returned to the apartment, appellant and Persons left again in McGuinn’s car and went to a house on Patton Street where the girl whom appellant had been dating lived and where appellant had been staying. As they were sitting in the car, which was parked on the street, they saw a police patrol vehicle approach. Appellant, who was in the driver’s seat, started the car, drove approximately two blocks without any lights, and turned around. Proceeding in the opposite direction they again saw the patrol vehicle approaching them, at which time appellant turned on the car lights. The police vehicle then followed them to the apartment, where subsequently they were arrested.

Robbins, in whose name the apartment was leased, testified that on the day of the offense appellant asked him if he were interested in “robbing some stores” and showed Robbins the pistol. He testified that he was present with appellant, McGuinn, Persons and Louis Ferguson when appellant spoke to them about “robbing a store” and threatened to kill them if they went to the police. He said he knew that appellant, McGuinn and Persons planned to commit a robbery when they left. He attempted to siphon fuel out of his van to put in McGuinn’s car. When they returned, he saw blood on appellant’s hands and on a knife he was carrying. Appellant gave $2 each to him, McGuinn and Louis Ferguson, and he assumed the money had been taken in a robbery. After appellant and Persons left again, the other three bought food with the money appellant had given them and then went to sleep.

Louis Ferguson, appellant’s older brother, testified to substantially the same facts as did Robbins. He also testified that he loaned the knife which was used to kill the deceased to Jody Persons. When appellant and Persons returned at 3:30 a. m. the next day, appellant opened the door of the apartment and threw in the knife, hitting his brother in the mouth.

Lisa Pruitt and Chip Turner, acquaintances of appellant, both testified that they spoke with appellant on the day of the robbery, and he told them he was planning to “rob several stores.” He also asked Turner to accompany him and told him how to kill with a knife by twisting it after stabbing.

Sherry Marion testified that she was speaking with the deceased on the telephone shortly before midnight on the night of the offense. Suddenly the deceased stopped talking; shortly thereafter, Marion heard the deceased scream and the sound of cracking metal, and then she heard the cash register open. She heard the deceased scream again, and after a period of silence the deceased came to the phone. He was “crying and choking and coughing real bad” and pleaded with Marion to call the police. She then hung up to do so.

Appellant’s first contention concerns venireman Forrest Andrews. Andrews was assigned number 76 on the list of prospective jurors. When he failed to appear for voir dire examination at the proper time, the court instructed the district clerk to attempt to locate him, but she was unable to do so. The clerk then testified that Andrews did not personally contact her regarding his absence, but that she had called his place of employment and had been advised that he had left the state to attend his father-in-law’s funeral and would be gone for several days. Appellant objected to continuing with voir dire until Andrews was present; the court overruled the objection and called the next venire member.

Andrews subsequently appeared in court over a week later, after venire member number 215 had been examined. Appellant objected to taking the venire member out of order, and the court sustained the objection. The court then questioned Andrews concerning his failure to appear, and he testified that he had been out of the state to attend his father-in-law’s funeral and had forgotten that he was supposed to appear in court the previous week.

Appellant urges that the court erred in continuing with the voir dire examination after Andrews failed to appear when his number was called. Art. 35.20, V.A.C.C.P., provides as follows:

“In selecting the jury from the persons summoned, the names of such persons shall be called in the order in which they appear upon the list furnished the defendant. Each juror shall be tried and passed upon separately. A person who has been summoned, but who is not present, may, upon his appearance before the jury is completed, be tried as to his qualifications and impaneled as a juror, unless challenged, but no cause shall be unreasonably delayed on account of such absence.” (Emphasis added.)

It is clear that the statute does not require that voir dire be postponed whenever a prospective juror is not present at the time his name is called. See Barnett v. State, 76 Tex.Cr.R. 555, 176 S.W. 580 (1915); Giesecke v. State, 64 Tex.Cr.R. 531, 142 S.W. 1179 (1912); Sinclair v. State, 35 Tex.Cr.R. 130, 32 S.W. 531 (Tex.Cr.App.1895). The court did not err in continuing with voir dire after Andrews failed to timely appear in court.

After appellant had been arrested, a sample of his blood was taken while he was in custody. Appellant’s motion to suppress this blood sample and the results of tests conducted on it was overruled. Those tests established, and it was revealed to the jury, that the blood on the knife, jacket, cuff and pants was not of the same type as that of appellant.

John Carlson, an officer of the Killeen Police Department, testified at the hearing on the motion to suppress that he accompanied appellant to the House Medical Clinic on January 28, 1977, when a sample of his blood was taken. Carlson testified that when he went to take appellant from his cell, “I told him that we were going to draw some blood from him for comparison and asked him if he objected to this and he said no.” At the time, appellant had been incarcerated for approximately fifty-two hours and had not consulted with an attorney. Appellant had been advised of his right to counsel, and a telephone and telephone book were available to appellant had he desired to call an attorney. Carlson testified that appellant did not make a request to him for counsel, but he did not know whether appellant had made such a request to other officers.

The State argues that appellant has not properly preserved error, if any, regarding the taking of his blood sample because his objection at the time of trial is not the same as that urged on appeal. See Bouchillon v. State, 540 S.W.2d 319 (Tex.Cr.App.1976); Taylor v. State, 508 S.W.2d 393 (Tex.Cr.App.1974). Although there is considerable merit in the State’s position, we shall nonetheless address the constitutional issue raised by appellant on appeal.

The taking of a defendant’s blood is a search and seizure under Art. I, Sec. 9 of the Texas Constitution. Escamilla v. State, 556 S.W.2d 796 (Tex.Cr.App.1977); Smith v. State, 557 S.W.2d 299 (Tex.Cr.App.1977). If the defendant is in custody, either a warrant must be obtained or the defendant must consent to the taking of his blood. Smith v. State, supra. In any case in which consent is in issue, the burden is upon the State to show the consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Smith v. State, supra; Escamilla v. State, supra; Evans v. State, 530 S.W.2d 932 (Tex.Cr.App.1975). The prosecution must show the consent given was positive and unequivocal, and there must not be duress or coercion, actual or implied. Evans v. State, supra; Allen v. State, 487 S.W.2d 120 (Tex.Cr.App.1972). The burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. Bumper v. North Carolina, supra; Smith v. State, supra; Escamilla v. State, supra; Evans v. State, supra. Given the totality of the circumstances in this case, including Carlson’s testimony and the fact that appellant was only seventeen years old at the time, we are reluctant to say the State affirmatively established that appellant freely and voluntarily consented to the search of his body and seizure of his blood.

Even were we to hold that the State had not met its burden of showing consent, however, the admission in evidence of the blood sample would not require that the judgment be reversed. This evidence established only that the blood on the knife and on appellant’s clothes was not that of appellant. It was shown that the blood on the knife and clothes was of the same type as that of the deceased. There is no indication in the record that appellant had been bleeding or that the blood on the knife and clothes could have been his. Two accomplice witnesses, one of whom was an eyewitness to the offense, testified positively and unequivocally to appellant’s guilt. Other witnesses testified that appellant told them he planned to commit a robbery and possibly a murder, and that if he used a knife to commit murder, he would stab and then twist. The deceased’s wounds were compatible with a knife being used in such a manner. Appellant was found in possession, shortly after the offense, of bloodstained money in an amount comparable to that taken from the store where the deceased worked. Given the wealth of evidence of appellant’s guilt, we conclude that the admission in evidence of the blood sample was harmless error beyond a reasonable doubt. See Smith v. State, supra; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Appellant also urges that his clothes and the money which was taken from his wallet, both of which were bloodstained, should not have been admitted in evidence because they were the product of an unlawful search and seizure.

At approximately 5:00 p. m. on the day of the offense, Terry Barnett, an officer of the Copperas Cove Police Department, called Bell County Deputy Sheriff Danny Johnson on the telephone and advised him that an informer had stated that he had heard appellant and another person named Bob bragging about having committed a murder when they robbed a woman at a grocery store a few days earlier. The informer told Barnett that the two persons in question would probably be in a silver Dodge Charger in the vicinity of Patton Street in Kil-leen. Barnett testified at the hearing on appellant’s motion to suppress that he had known the informer, whom he named, for more than a year; that the informer had no criminal record; and that the informer’s reputation for truthfulness and for being a peaceful and law-abiding citizen was good. Barnett also testified that the informer had given him information in the past concerning narcotics; Barnett did not know whether the information which the informer previously had given him was true or whether any arrests had been made.

Deputy Johnson testified that after talking with Barnett he relayed the information he had received to Deputy Burt Wilkerson of the Harker Heights Police Department, who was investigating the murder which had occurred several days previously. After he talked with Wilkerson, Johnson drove around in the vicinity of Patton Street looking for the car in question. Shortly after midnight the next morning Johnson was summoned to the Killeen Police Department to assist in the investigation of the murder for which appellant was convicted. Johnson then related the information which he had received to Captain Dennis Lewis of the Killeen Police Department. On the way home after that conversation, Johnson again drove by the house on Patton Street, where he saw a silver and black Dodge Charger parked by the curb. After he passed the car, Johnson turned his patrol vehicle around and again drove down Patton Street, at which time he noticed the car no longer was parked where it had been. He then saw a pair of headlights come on on an oncoming ear; when the car passed his, Johnson noticed that it was the Dodge Charger which had been parked on the street. Johnson again turned his vehicle around and attempted to pursue the car, but lost sight of it. Johnson then made a call on his police radio to request assistance in locating the vehicle, which he reported was being driven without headlights; he subsequently received a call from the radio dispatcher advising him that the car in question was being followed by a police vehicle on Highway 190. Johnson went to the duplex on Avenue J where the car had stopped and saw Joe Brennan, an officer of the Killeen Police Department, speaking with the driver of the car. Johnson approached the car to ask the passenger for identification and saw a long silver knife on the dashboard and the butt of a pistol sticking from beneath the seat on the floorboard of the car. The driver of the car, who was identified as appellant, then went into the duplex to summon the owner of the car. Other police officers arrived very shortly, and one of them, Officer Lewis, asked Brennan if appellant had a driver’s license; when Brennan replied that he did not, Lewis arrested appellant.

Officer Brennan testified that after hearing a radio report that a black and silver Dodge Charger was being sought for driving without headlights he saw such a car being driven very slowly. He followed the car to the duplex on Avenue J and parked behind it. Brennan called to appellant and Persons as they were walking to the doorway of the apartment and said, “Would you mind coming back over and talking with me?” When appellant and Persons complied with Brennan’s request, he asked them for identification; appellant replied that he did not have any identification.

Appellant insists that the bloodstained clothing and money seized during the search of his person should not have been admitted in evidence because that search was incident to an unlawful arrest. We do not agree. The record does not reflect that Brennan initially did anything more than stop appellant to investigate and inquire about possible criminal behavior, i.e., driving without headlights. See Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Milton v. State, 549 S.W.2d 190 (Tex.Cr.App.1977); Crawford v. State, 544 S.W.2d 163 (Tex.Cr.App.1976).

Circumstances falling short of probable cause for an arrest may justify temporary detention for purposes of investigation, since an investigation is considered to be a lesser intrusion upon the personal security of an individual than is an arrest. See Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976); Milton v. State, supra; Crawford v. State, supra. To justify an investigative stop, an officer, in light of his experience and general knowledge, must point to specific and articulable facts which, taken together with rational inferences from those facts, warrant the intrusion on the person stopped for further investigation. Terry v. Ohio, supra. See also Milton v. State, supra. A police radio call may provide sufficient basis for an investigative stop, Ablon v. State, supra, as may an anonymous telephone call, Mann v. State, 525 S.W.2d 174 (Tex.Cr.App.1975). Once Brennan had initiated the investigation and it was revealed that appellant did not have a driver’s license, probable cause existed for his arrest for driving without a license. Art. 6701d, Sec. 153, V.A.C.S.; Art. 14.01(b), V.A.C. C.P.; see Smith v. State, 456 S.W.2d 90 (Tex.Cr.App.1970); Myricks v. United States, 370 F.2d 901 (5th Cir. 1967), cert. denied, 386 U.S. 1015, 87 S.Ct. 1366, 18 L.Ed.2d 474.

Appellant relies on Hooper v. State, 533 S.W.2d 762 (Tex.Cr.App.1976) and Fatemi v. State, 558 S.W.2d 463 (Tex.Cr.App.1977) for the proposition that his person was searched as the result of a pretext arrest. Those cases are clearly distinguishable from the case at bar. In Hooper, the defendant was arrested ostensibly for defective brake lights. The State offered no evidence that the brake lights of the defendant’s truck were defective, and this Court held that the State had not refuted the prima facie case of a pretext arrest which the defendant had made out. In Fatemi we held that a temporary detention of the defendant’s automobile ostensibly for a driver’s license check could not be upheld where the actual purpose of the detention was to further the officer’s investigation for an unrelated offense. In the instant case, Brennan possessed specific and articulable facts which afforded the basis for his initial detention of appellant. It is uncontroverted that appellant was driving without a driver’s license, and Lewis therefore was justified in arresting appellant.

Appellant urges that the court should have instructed the jury that Robbins and Louis Ferguson were accomplice witnesses as a matter of law. In the alternative, he contends that the court erred in refusing to submit to the jury the question of whether Robbins and Louis Ferguson were accomplice witnesses. Appellant argues that Robbins was an accomplice witness because: (1) he allowed his apartment to be used to plan the offense and for appellant to clean himself and the murder weapon after the offense was committed; (2) he obtained or attempted to obtain gasoline which was used in the automobile in which appellant and his accomplices rode before and after the offense; (3) he helped appellant obtain the pistol which was exhibited during the commission of the offense; and (4) he received money from appellant which he knew was taken in a robbery and used it to buy food. Appellant argues that Louis Ferguson was an accomplice witness because: (1) he furnished the murder weapon and hid it after the commission of the offense; (2) he furnished a jacket which Persons wore during the robbery; (3) he at one time agreed to participate in the commission of the offense; and (4) he, too, received and spent money which he knew was obtained during a robbery.

The record does not bear out all of appellant’s assertions concerning the actions of Robbins and Louis Ferguson. The only evidence that Robbins helped appellant obtain a gun is Robbins’ statement that he told a third party known as “Wild Bill Cody” that appellant might want to purchase a gun. Robbins testified that he did not tell appellant that this person had a gun for sale and that he did not know whether appellant in fact bought a gun from Wild Bill Cody. Robbins testified that he attempted to siphon fuel from his van into McGuinn’s ear, and was able to secure “a couple of drops.” The record does not show, however, that appellant or his accomplices requested that Robbins provide them with fuel for their criminal activities. Robbins had driven McGuinn’s car earlier on the night of the offense, and to repay McGuinn for the fuel he had used, he bought some gas and attempted to siphon more from his van. Likewise, the record does not show that Louis Ferguson furnished the murder weapon to appellant. Both Robbins and Louis Ferguson testified that Jody Persons borrowed the knife from Louis Ferguson on the afternoon of the offense to clean his fingernails and did not return it. Louis Ferguson also denied that he hid the murder weapon, which was found under a pillow in the apartment. He testified that when appellant came to the door of the apartment on the morning after the offense, just before he was arrested, he threw the knife into the apartment hitting him (Louis Ferguson) in the mouth. The appellant’s brother testified that he picked up a pillow and wiped his mouth with it to determine if he were bleeding, and then placed the pillow down. Nobody testified that Louis Ferguson intentionally hid the murder weapon. Louis Ferguson testified that he lent Persons the jacket that he wore on the night of the offense, but we cannot say that by so doing he aided in the commission of the offense of capital murder.

An accomplice witness is someone who has participated with another before, during or after the commission of a crime. Jackson v. State, 552 S.W.2d 798 (Tex.Cr.App.1977); Singletary v. State, 509 S.W.2d 572 (Tex.Cr.App.1974). One is not an accomplice witness who cannot be prosecuted for the offense with which the accused is charged. Easter v. State, 536 S.W.2d 223 (Tex.Cr.App.1976); Morgan v. State, 171 Tex.Cr.R. 187, 346 S.W.2d 116 (1961); Silba v. State, 161 Tex.Cr.R. 135, 275 S.W.2d 108 (1954); Liegois v. State, 73 Tex.Cr.R. 142, 164 S.W. 382 (1914). A witness is not deemed an accomplice witness because he knew of the crime but failed to disclose it or even concealed it. Easter v. State, supra; Gausman v. State, 478 S.W.2d 458 (Tex.Cr.App.1972).

Appellant has cited a number of cases which hold that a witness who receives stolen property, knowing it to be stolen, is an accomplice witness as a matter of law. See Kirkendoll v. State, 132 Tex. Cr.R. 104, 102 S.W.2d 214 (1937); Stephenson v. State, 152 Tex.Cr.R. 624, 216 S.W.2d 586 (1949); Odom v. State, 438 S.W.2d 912 (Tex.Cr.App.1969); Ysasaga v. State, 444 S.W.2d 305 (Tex.Cr.App.1969); Anders v. State, 501 S.W.2d 665 (Tex.Cr.App.1973). Kirkendoll and Stephenson involved prosecutions for robbery, Odom was a prosecution for being an accomplice to a robbery, and Ysasaga and Anders involved prosecutions for burglary. These cases were all convictions under the former penal code. The facts of the instant case are more similar to those of Ballard v. State, 519 S.W.2d 426 (Tex.Cr.App.1975), also a conviction under the former penal code. There, the accused was convicted for a murder in the course of which several items of property were taken from the deceased’s home. This Court held that a witness who received an item of the stolen property, knowing it to be stolen, was not an accomplice witness to the offense of murder:

“We are not presented here with the question of whether Dempsey would be an accomplice witness in the trial of the appellant for acquiring the diamond ring by committing the offense of robbery or theft. The question is whether Dempsey was an accomplice witness in the appellant’s trial for murder. Since there is no evidence to show that Dempsey was an accomplice, principal, or accessory to the murder of Currie, he is not an accomplice witness in the trial of the appellant for the murder of Currie. See Ham v. State, 4 Tex.App. 645 (1878); Warren v. State, 60 Tex.Cr.R. 468, 132 S.W. 136 (1910); Liegois v. State, 73 Tex.Cr.R. 142, 164 S.W. 382 (1914); Chandler v. State, 89 Tex.Cr.R. 599, 232 S.W. 337 (1921); Car-nathan v. State, 478 S.W.2d 490 (Tex.Cr.App.1972); 23 C.J.S. Criminal Law § 786(2). Cf. Washburn v. State, 167 Tex.Cr.R. 125, 318 S.W.2d 627 (1958); Morgan v. State, 171 Tex.Cr.R. 187, 346 S.W.2d 116 (1961).”

The court did not err in refusing to charge that Robbins and Louis Ferguson were accomplices as a matter of law or to submit that issue to the jury. Ballard v. State, supra, and authorities cited therein. See also Jackson v. State, supra; Singletary v. State, supra; Hunt v. State, 492 S.W.2d 540 (Tex.Cr.App.1973); Silba v. State, supra.

Appellant acknowledges that he is well award that a charge on circumstantial evidence is not required when the only direct evidence is the testimony of an accomplice witness. Gutierrez v. State, 423 S.W.2d 593 (Tex.Cr.App.1968); White v. State, 385 S.W.2d 397 (Tex.Cr.App.1964). He urges, nonetheless, that the refusal of his requested charge on circumstantial evidence constituted reversible error in the instant case because “if the jury did, in fact, disregard the testimony of the accomplice witness if they felt it was not true or had not been corroborated, then their verdict was based on circumstantial evidence.”

This Court charged as follows on accomplice witnesses and the necessity for corroboration of their testimony:

“You are instructed that a conviction cannot be had upon the testimony of an accomplice unless the jury first believes that the accomplice’s testimony is true and that it shows the defendant guilty of the offense charged against him, and even then you cannot convict unless the accomplice’s testimony is corroborated by other evidence tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission.”

The charge required the jury to find, in order to convict appellant, both that the accomplice witness’ testimony was true and that it was sufficiently corroborated. The jury, as evidenced by the verdict of guilt, obviously made both these findings. Since the charge did not allow the jury to convict without believing the accomplice witness’ testimony, there was no necessity to charge on the circumstantial nature of the nonac-complice incriminating evidence. The court did not err in refusing to submit appellant’s requested charge on circumstantial evidence.

Appellant’s final contention is that the court erred in overruling his motion for a mistrial when the prosecutor made a sidebar remark during his examination of the accomplice witness McGuinn. The following colloquy occurred as McGuinn was being questioned about his observations of the deceased after he was stabbed:

“Q. Okay. Could you see him through that window all right when you were sitting in the car?
“A. I just glanced at him, Sir, whenever I was backing away.
“Q. Was he on the phone?
“A. Yes Sir he was.
“Q. Did you notice anything about his mouth or nose unusual?
“A. He had something covering, I believe it was the right hand side of his face, Sir.
“Q. Could you tell what it was?
“A. No, Sir, I couldn’t.
“Q. Did you have an idea?
“[DEFENSE COUNSEL]: Your Hon- or, I would object to this, he has answered the question.
“THE COURT: Sustained.
“Q. Just trying to get the truth. Where did you drive—
“[DEFENSE COUNSEL]: Your Hon- or, I’m trying to object.
“[COUNSEL FOR THE STATE]: Excuse me, I didn’t even hear the objection.
“[DEFENSE COUNSEL]: We object to Mr. Eads’ sidebar remarks and request that he be instructed not to make such remarks and the jury be instructed to disregard it.
“THE COURT: I sustain and ask counsel not to comment on the questions and answers and ask the jury to disregard his comment he just made.”

Appellant’s motion for a mistrial was overruled.

Appellant argues that the prosecutor’s remark was meant to imply that appellant’s counsel wished to prevent the jury from learning the truth. The cases cited by appellant in which the judgments were reversed because the prosecutor argued that defense counsel was trying to hide the truth from the jury involved statements measurably more blatant than that involved here. See Lewis v. State, 529 S.W.2d 533 (Tex.Cr. App.1975); Lopez v. State, 500 S.W.2d 844 (Tex.Cr.App.1973). We construe the prosecutor’s remark, rather than being an attack on appellant’s counsel, as an attempt to elicit a responsive answer from the witness. Apparently the trial court, which instructed the prosecutor “not to comment on the questions and answers,” construed this remark in the same way. The cautious trial court’s instruction protected the appellant’s rights. See Stein v. State, 514 S.W.2d 927 (Tex.Cr.App.1974); Barnes v. State, 502 S.W.2d 738 (Tex.Cr.App.1973).

The death penalty is a harsh penalty; it is especially harsh when assessed against a person who is seventeen years of age as was the appellant when he committed the offense. However, in view of the savage, ruthless murder for which appellant was convicted and in view of the entire record, we cannot say that the death penalty assessed is unjust.

The judgment is affirmed.

VOLLERS, J., not participating.


author: VOLLERS, Judge. ODOM, Judge,

text:
    Ex parte Michael J. PAPRSKAR.
    No. 57049.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 4, 1978.
    Rehearing Denied Nov. 22, 1978.

      Ken Anderson, Huntsville, for appellant.
    Michael J. Paprskar, pro se.
    Tim Curry, Dist. Atty., Marvin Collins and Howard M. Fender, Asst. Dist. Attys., Fort Worth, for. the State.
   OPINION

VOLLERS, Judge.

This is a purported appeal from an order dismissing a petition to expunge arrest records filed pursuant to Chapter 55, V.A.C. C.P. in Tarrant County, Texas.

In 1972 this Court reversed petitioner’s conviction for murder, Paprskar v. State, 484 S.W.2d 731 (Tex.Cr.App.1972), and he thereafter entered a plea of guilty and was assessed a twenty (20) year sentence. He is presently confined in the Texas Department of Corrections pursuant to such conviction.

On July 27,1977, petitioner filed a single “petition for Expunction of Records of Arrest” in the Criminal District Court No. 4 of Tarrant County alleging that some 37 prior arrests contained in the records of fifteen (15) different County, State and Federal Agencies had not resulted in the return of an indictment or information against petitioner; the petition further alleged that petitioner had been released and the charges against him dismissed subsequent to such arrests and that petitioner had not been convicted of a felony in the five (5) years preceding the dates of each arrest. The arrests alleged had occurred between June 21, 1955 and November 24, 1967, a span of twelve years.

On November 3,1977, the Honorable Gordon Gray, Judge of Criminal District Court No. 4 of Tarrant County, entered an order dismissing the petition “because of the unconstitutional infirmity of the Expunction of Records Act,” basing such disposition upon a finding of vagueness. Petitioner thereafter filed notice of appeal on November 10, 1977.

By supplemental brief, petitioner argues only that this Court should find that it has jurisdiction of this cause either (1) by construing this action as a writ of habeas corpus pursuant to Section 11.23 V.A.C.C.P., or in the alternative, (2) by re-evaluating our prior decisions “which appear to hold that this action is not a criminal case” within the meaning of Article V, Section 5 of the Texas Constitution.

The Court of Criminal Appeals has jurisdiction to determine whether it has jurisdiction. Reid v. State, 169 Tex.Cr.R. 261, 333 S.W.2d 140 (1960); Nichlos v. State, 158 Tex.Cr.R. 367, 255 S.W.2d 522 (1953); Hinman v. State, 54 Tex.Cr.R. 434, 113 S.W.2d 280 (1908). The allegations raised by the petition for Expunction of Arrests patently reveal that petitioner is neither confined nor restrained pursuant to any State action which is made the subject of his petition. See Articles 11.22 and 11.23 V.A.C.C.P. Nor would the disposition of petitioner’s claim affect the fact or duration of his confinement. CF. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). We therefore hold that this action is not, and cannot be construed as a petition for writ of habeas corpus which would invoke the jurisdiction of this Court. Articles 11.22 and 11.23, supra.

The petitioner concedes in his brief before this Court that the jurisdiction of this Court is limited to the appeal of criminal cases by Article V, Section 5 of the Texas Constitution. He further recognizes that this case does not fall within the standard definition of a criminal matter, and that the fact that the statutory basis of this action is contained in the Code of Criminal Procedure will not confer jurisdiction on this Court. Bretz v. State, Tex.Cr.App., 508 S.W.2d 97. While petitioner admits that the only way that this Court would have jurisdiction of this matter would be by treating it as a writ of habeas corpus, he invites us to reexamine our prior decisions which appear to hold that this action is not a criminal case. We decline the invitation. It would not be appropriate to reclassify this proceeding as a criminal case simply because this might be an appropriate forum to handle the matter complained of.

On the issue of whether or not this case is a criminal case it should be noted that the petitioner has not been placed in jeopardy in a matter from which he can appeal. There are no criminal penalties attached to the order of the court or involved in this expunction act, except for violation of any court order entered. The action in question is not brought by or in the name of the State and the persons against whom the action was brought are not charged with having committed a crime or violated any penal statute. Cf. Hogan v. Turland, Tex., 428 S.W.2d 316.

Furthermore, it should also be noted that there is no right of appeal given by Chapter 55, V.A.C.C.P., whatever the action of the trial court might be. It is well settled in this State that the right to appeal generally is a statutory right. Ex parte Spring, No. 57,268 (Decided June 7, 1978) (Tex.Cr.App.1978); Savage v. State, 155 Tex.Cr.R. 576, 237 S.W.2d 315 (1950). The constitutional jurisdiction of the Court of Criminal Appeals is subject to such statutory exceptions and limitations as may be prescribed by the legislature. Article V, Section 5, supra; Ex parte Spring, supra; Ex parte Bennett, 211 S.W. 934 (Tex.Cr.App.1919). We find neither constitutional nor statutory authority which would confer jurisdiction on this Court to entertain a direct appeal from an order entered pursuant to a motion for expunction of arrests under Chapter 55, V.A.C.C.P. When a proceeding from which an appeal is attempted comes within none of the statutory or constitutional provisions conferring appellate jurisdiction, this Court has no power to entertain the cause. Basaldua v. State, 558 S.W.2d 2 (Tex.Cr.App.1977); Ex parte Minor, 115 Tex.Cr.R. 634, 27 S.W.2d 805 (1930).

This cause is dismissed for lack of jurisdiction.

ON PETITIONER’S MOTION FOR LEAVE TO FILE MOTION FOR REHEARING

ODOM, Judge,

dissenting.

I dissent to the majority’s decision to overrule petitioner’s motion for leave to file motion for rehearing without written opinion. The case presents a serious question of constitutional magnitude regarding criminal law matters in this State, and the recently expanded mandamus jurisdiction of this Court should be exercised to resolve the matter. Art. 5, Sec. 5, Texas Constitution. I dissent for the reasons more fully set forth in my opinion in State v. Henson, 573 S.W.2d 548 (No. 60,141, this day decided, Roberts, J.).

ONION, P. J., joins this dissent.

      . Though petitioner fails to allege that he is confined in the Texas Department of Corrections, this Court takes judicial notice of our records in such related proceedings. Ex parte Flores, 537 S.W.2d 458 (Tex.Cr.App.1976).

      . The effective date of Chapter 55 is August 29, 1977.

      . Tarrant County District Clerk and District Attorney; Dallas City Police, County Sheriff and District Clerk; Harris County District Clerk, District Attorney and 180th Judicial District Court; Texas Department of Corrections; Texas Department of Public Safety; Texas Board of Pardons and Paroles; Federal Bureau of Investigation; United States Department of Justice. However, this petition does not involve the charge under which petitioner is presently confined.

      . Article 55.01, V.A.C.C.P. provides:
      A person who has been arrested is entitled to have all records and files relating to the arrest expunged if:
      (1) an indictment or information has not been presented against him for an offense arising out of the transaction for which he was arrested;
      (2) he has been released and the charge, if any, has been dismissed; and
      (3) he has not been convicted of a felony in the five years preceding the date of the arrest.

      .Cf. Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975); Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973); Braden v. Judicial Circuit of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) [wherein the Court discusses the requirement that a habeas petitioner must be “in custody” pursuant to the conviction attacked at the time of filing his petition in order to invoke federal jurisdiction under 28 U.S.C. Sections 2254 or 2255],