author: O’QUINN, Justice.

text:
    AMERICAN TRANSFER AND STORAGE COMPANY, Appellant, v. Bob BULLOCK, Comptroller of Public Accounts, Appellee.
    No. 12228.
    Court of Civil Appeals of Texas, Austin.
    July 9, 1975.
    Rehearing Denied July 23, 1975.

      Claude R. Wilson, Jr., Golden, Potts, Boeckman & Wilson, Dallas, for appellant.
    John L. Hill, Atty. Gen., Alberto Garcia, Asst. Atty. Gen., Austin, for appellee.
   O’QUINN, Justice.

American Transfer and Storage Company brought this suit to recover $11,654.67 in sales taxes paid under protest to the Comptroller of Public Accounts of Texas. The trial court rendered judgment that appellant take nothing by its suit.

Appellant contends the Comptroller had no legal basis for collection of the tax because (1) the statute levying the tax “is, in its entirety, violative of Article VIII, Section 1 of the Texas Constitution of 1876 [Vernon’s Ann.St.]”; (2) designated sections of the statute “violate that part of Article VIII, Section 1 . which states that ‘taxation shall be equal and uniform,’ ” and (3) the designated sections of the statute “violate the equal protection clause of the 14th Amendment of the Constitution of the United States.”

We will overrule all points of error and affirm the judgment of the trial court.

Appellant, American Transfer and Storage Company, is a Texas corporation engaged in the business of moving and storing household properties. Appellant purchases packing and packaging materials which the company uses in the sale of its services connected with moving and storing household effects. When appellant renders its services the packing containers and materials do not become the property of its customers, title to the containers and materials being retained by the company. Appellant sells only its services in moving and storing goods and does not sell any tangible property-

It appears undisputed that appellant belongs to an industrial class that purchases packing and packaging materials in furtherance of selling services, and that a charge for services to the customer “includes labor plus the furnishing of material.” Industries other than the moving and storage business are required, under enforcement practices of the Comptroller pursuant to tax statutes, to pay sales and use taxes in connection with use of wrapping and packaging material in furtherance of sales of services.

The Texas “Limited Sales, Excise and Use Tax” is Chapter 20 of Title 122A, Taxation-General, V.A.T.S. Under this Act a “limited sales tax” is imposed on the “receipts from the sale at retail of all taxable items within this State.” (Art. 20.02) An “excise tax” is imposed on “the storage, use or other consumption ... of taxable items purchased, leased or rented from any retailer for storage, use or other consumption . . . at the same percentage rate” as provided in Article 20.02. (Art. 20.03) Chapter 20 thus imposes a tax on the sale and use of certain tangible personal property, but the statutes do not impose the tax on services.

As a result of an audit of appellant’s books and records, the Comptroller made a determination of deficiency for sales and use taxes due on purchases by appellant of packing and packaging materials used in the sale of its services in moving and storing household goods. The Comptroller takes the position that the mechanism is available to appellant under the statutes by which appellant may include in the rates it charges its customers all sales and use taxes paid to the State on purchase of such materials used in the business of moving and storing goods. The record shows that appellant customarily includes in its charges “labor plus the furnishing of material,” but not the tax, since none was paid prior to the Comptroller’s audit.

Under its first point of error appellant contends that Article VIII, section 1, of the Constitution of Texas limits the legislature’s taxing power to four subjects only, those being property, polls, occupations, and income. “The provisions of Article VIII, section 1 are limiting,” appellant urges, “and, by virtue of these limitations, the Legislature was without power to levy the Limited Sales, Excise and use Tax — a question on which Texas courts have avoided a clear-cut adjudication.”

Section 1 of Article VIII has remained unchanged since its adoption as part of the Constitution of 1876 and provides:

“Section 1. Taxation shall be equal and uniform. All property in this State, whether owned by natural persons or corporations, other than municipal, shall be taxed in proportion to its value, which shall be ascertained as may be provided by law. The Legislature may impose a poll tax. It may also impose occupation taxes, both upon natural persons and upon corporations, other than municipal, doing any business in this State. It may also tax incomes of both natural persons and corporations other than municipal, except that persons engaged in mechanical and agricultural pursuits shall never be required to pay an occupation tax; Provided, that two hundred and fifty dollars worth of household and kitchen furniture, belonging to each family in this State shall be exempt from taxation, and provided further that the occupation tax levied by any county, city or town for any year on persons or corporations pursuing any profession or business, shall not exceed one half of the tax levied by the State for the same period on such profession or business.”

Section 17 of Article VIII, which also was adopted in 1876 and has remained unchanged, provides that:

“Sec. 17. The specification of the objects and subjects of taxation shall not deprive the Legislature of the power to require other subjects or objects to be taxed in such manner as may be consist ent with the principles of taxation fixed in this Constitution,” (Emphasis added)

Both section 1 and section 17 were offered in the Constitutional Convention of 1875 as parts of a comprehensive substitute for the original proposal on taxation prepared by the standing committee on Revenue and Taxation. (Journal of the Constitutional Convention, secs. 1 and 13, pp. 423— 4). Section 1 was amended ten days later to read as finally adopted (pp. 525-6), but section 17 (then sec. 13) remained unchanged, except for section number, (p. 541).

Appellant argues that section 17 “does not grant to the Legislature a general power to tax. By its terms, any tax levied under this Section must be ‘in such a manner as may be consistent with the principles of taxation fixed in this Constitution’ (emphasis added). Thus, Article VIII, Section 1 governs tax legislation in Texas, and the power to levy a sales, excise or use tax falls beyond the purview of both Article VIII, Section 1 and Article VIII, Section 17.”

To adopt the view that the enumeration in section 1 of four specific types of taxes the Legislature may levy constitutes a limitation upon the subjects of taxation available to the Legislature requires that section 17 be disregarded, or regarded as without meaning or purpose. Section 17 plainly affirms that “specification of the objects and subjects of taxation [as in section 1] shall not deprive the Legislature of the power” to tax other subjects and objects if “consistent with the principles of taxation fixed” in the Constitution. The limitation placed on the power of the Legislature is that no tax levy may contravene the principles of taxation set by the Constitution.

Principles of taxation found in section 1 are that all taxation must be equal and uniform, property must be taxed in proportion to value, occupation and income taxes may not be levied upon municipal corporations, and persons in mechanical and agricultural pursuits are exempt from occupation taxes. Further, household and kitchen furniture of families, to the worth of $250, must be exempt from taxation, and local occupation taxes, levied by cities and towns on professions and business, may not exceed one half the tax levied by the Legislature for the same period and on the same occupation.

Some of the identical principles of taxation stated in the Constitution of 1876 were placed in the first state constitution of Texas. The Constitution of 1845 required that taxation be equal and uniform “throughout the State” and that all property be taxed “in proportion to its value,” except property the Legislature by “two-thirds of both Houses” should exempt from taxation. The Legislature was empowered to “lay an income tax” and to levy occupation taxes except on “pursuits either agricultural or mechanical.” Specifically, the Legislature was authorized “to provide by law for exempting]” $250 worth of household furniture “or other property belonging to each family in this State.” (Constitution of Texas, 1845, Article Seventh, Secs. 27 and 28).

Numerous principles of taxation are fixed in the Constitution, of 1876, in addition to the principles found in section 1. In section 2 principles particularly applicable to occupation taxes are stated, and section 3 requires that taxes be levied and collected by general laws and only for public purposes. Principles governing the taxation of corporations are found in section 4, and in sections 5 and 8 railroads are considered and principles of taxation with respect to them are there laid down. In other sections of Article VIII principles are fixed as to assessment and the place of assessment and collection of taxes. The principle by which inhabitants of counties and cities may be released from payment of taxes levied for state or county purposes is stated in section 10. Further enumeration of underlying principles of taxation found in the Constitution is not necessary to illustrate the nature of the principles which the Legislature must observe in passing laws to tax the “objects and subjects of taxation.”

The Supreme Court of Texas in 1907 recognized authority in the Legislature under section 17 of Article VIII to tax intangible assets of railroads “as a subject or object of taxation omitted from those specified in the previous sections of the article.” Missouri, Kansas & Texas Railway Company of Texas v. Shannon, 100 Tex. 379, 100 S.W. 138, 142 (1907).' Under section 8 of Article VIII the principle is fixed that all property of railroads “shall be assessed, and the taxes collected in the several counties in which said property is situated, including so much of the roadbed and fixtures as shall be in each county.” In addition, section 11 requires that all property, “whether owned by persons or corporations, shall be assessed for taxation, and the taxes paid in the county where situated.”

With the levy of a tax on intangible assets of railroads, the Supreme Court was concerned with the question, “. can this value which proceeds from the working whole of the business be held to be situated in a county in which only a part of the physical properties are located?” As pointed out by Chief Justice Gaines, if the makers of the Constitution had had that problem in mind, “. . . they would probably have made some- specific provisions in reference to it as was made in case of the rolling stock” by which assessment in gross is made in the county of the company’s principal office, with apportionment to the several counties by the State Comptroller.

The Court found the solution in section 17. “But that they [the framers of the Constitution] apprehended that some question of a like character might arise . is shown as we think in a subsequent section of that article, which is” section 17 of Article VIII. The Court held that section 17 “affords ample authority to the Legislature to tax such intangible assets as a subject or object of taxation omitted f"om those specified in the previ us sections . . .” (100 "W. 142)

Later cases dealing with a tax on intangible assets and holding the statutes valid under the doctrine of Shannon, supra, include Texas Pipe Line Company v. Anderson, 100 S.W.2d 754, 763 (Tex.Civ.App. Austin 1937, writ ref.) and Reagan County Purchasing Company v. State, 110 S.W.2d 1194, 1201 (Tex.Civ.App. El Paso 1937, writ ref.).

The Comptroller relies upon three cases in support of the contention that the Legislature has plenary power to tax objects and subjects not specified in section 1 of Article VIII by reason of the language of section 17. In State v. Jones, 290 S.W. 244 (Tex.Civ.App. Amarillo 1926, rev. on other grounds 5 S.W.2d 973), the state’s inheritance tax was held constitutional as a tax on the privilege to succeed to property. The Supreme Court in State v. Wynne, 134 Tex. 455, 133 S.W.2d 951 (1939), upheld a statute affording a lien as a means of enforcing collection of a motor fuel tax, and stated, “The burden of levying taxes rests on the Legislature, and that body has plenary power of prescribing the mode of taxation to raise revenue . ■ . .’’by reason of the provisions found in section 17 of Article VIII. In City of Beaumont v. Fertitta, 415 S.W .2d 902 (Tex.Sup.1967), the Supreme Court said, “The Legislature through its general powers inherent in sovereign governments could provide for taxation of property not covered by Article VIII, Section 1, unless prohibited by the Constitution,” and quoted section 17 of Article VIII.

Appellant argues that decisions in these cases do not meet the issue in this case that a limited sales, excise and use tax, not being specified in section 1 of Article VIII, is not a tax the Legislature has power to levy, despite the enlargement seemingly afforded under section 17. Appellant argues that Jones, when considered by the Commission of Appeals, did not hold the inheritance tax constitutional even though not a tax named in section 1; that Wynne upheld only an enforcement procedure, and the tax by its own terms was an occupation tax mentioned in section 1; and that Fertitta held only that the Legislature may tax property owned by a city but not used for public purposes.

Appellant states that the Comptroller “is unable to cite one case . . . [that] expressly holds that a tax of a type other than one of the four enumerated in Article VIII, Section 1 is constitutional,” but concedes that “. . . Appellant is unable to cite any case which expressly holds that a tax of the type other than one of the four enumerated is not constitutional.”

The interpretive commentary under section 17, in Vernon’s Annotated Constitution of Texas, observes:

“Although Art. 8, sec. 17 would seem to indicate that any taxing power inherent in sovereign governments would of necessity also belong to the government of Texas unless specifically denied it by the constitution, the courts have avoided a clear cut decision as to whether or not the legislature has power to levy sales or excise taxes without being designated and intended as occupation taxes. Although recent years have indicated a wide acceptance of the opinion that the legislature has a general taxing power, the issue has not been finally settled, and the seemingly limiting provisions of Art. 8, sec. 1 rather than the broad grant of power given by this article still govern tax legislation.” Thomas: Interpretive Commentaries, vol. 2, p. 565 (1955).

At least one legal writer has concluded that the “listing [in section 1] is not exclusive . . . because elsewhere it is provided that ‘the specification of the objects and subjects of taxation shall not deprive the Legislature of the power to require other subjects or objects to be taxed in such manner as may be consistent with the principles of taxation fixed in this Constitution.’ ” (Section 17). But the writer continues, “In the absence of clear cut judicial construction of the latter provision with respect to taxes not specifically mentioned in article VIII, section 1, such as a retail sales tax, the provisions of the section can nevertheless be said to govern tax legislation and development at the state level in several respects.” Anderson: “Constitutional Aspects of Revenue and Taxation in Texas,” 35 Texas L.Rev. 1011, 1013 (1957).

We hold that although the types of taxes imposed by the Limited Sales, Excise and Use Tax Act are not enumerated in section 1 of Article VIII of the Constitution, the Act is not by reason of such omission invalid and in violation of the Constitution. We hold that the Legislature has plenary power to require other subjects and objects to be taxed if that power is exercised in a manner consistent with the principles of taxation fixed in the Constitution.

Under its last two points of error appellant contends (1) that certain exemptions contained in the Act are in violation of the Constitution of Texas because the exemptions render the tax unequal and not uniform and (2) the exemptions deny appellant equal protection guaranteed under the Fourteenth Amendment of the Constitution of the United States.

Appellant’s position is that the sections of the Act which exempt wrapping, packing and packaging supplies and containers, when used in the furtherance of sales, lead to a taxation scheme that is not uniform and equal because the same materials, when used in the furtherance of services, are not exempted.

One exemption is under Article 20.-04(E)(2) of the Act, as follows:

“(E) Property Used in Manufacturing, Packaging and Containers.
* * * * * *
“(2) Wrapping, Packing and Packaging Supplies.
“(a) There are exempted from the taxes imposed by this Chapter the receipts from sales of all internal and external wrapping, packing, and packaging supplies and materials to any person for use in wrapping, packing or packaging any tangible personal property for the purpose of expediting or furthering in any way the sale of that property.
“(b) For the purpose of this Section, wrapping, packing and packaging supplies shall include, but shall not be limited to:
“(i) Wrapping paper, wrapping twine, bags, cartons, crates, crating materials, tape, rope, labels, staples, glue and mailing tubes.
“(ii) Property used inside a package in order to shape, form, preserve, stabilize or protect the contents, such as, but not limited to, excelsior, straw, cardboard fillers, separators, shredded paper, ice, dry ice, cotton batting, shirt boards, hay and laths.”

Another exemption is under Article 20.-04(E)(3) of the Act, as follows:

“(E) Property Used in Manufacturing, Packaging and Containers.
* ⅜ ⅜ * * *
“(3) Containers.
“(a) There are exempted from the taxes imposed by this Chapter the receipts of sales, leases, or rentals of, and the storage, use or other consumption in this State of:
“(i) Nonreturnable containers when sold without the contents to persons who place the contents in the container and sell the contents together with the container.
“(ii) Containers when sold with the contents if the sale price of the contents is not required to be included in the measure of the taxes imposed by this Chapter.
“(iii) Returnable containers when sold with the contents in connection with a retail sale of the contents or when resold for refilling.
“(b) As used in this Article, the term ‘returnable containers’ means containers of a kind customarily returned by the buyer of the contents for reuse. All other containers are ‘nonreturnable containers.’ ”

It is settled that the Legislature, in determining classifications for purposes of taxation, has broad powers, and that the courts will interfere only when there is a clear showing that there is no reasonable basis for an attempted classification. Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d 896 (1937). In passing upon the constitutionality of a classification, the test applied by the courts is whether the classification made by the Legislature is essentially arbitrary, unreasonable, and not based upon reality. Dallas Gas Co. v. State, 261 S.W. 1063, 1069 (Tex.Civ.App. Austin 1924, writ ref.). We have carefully examined the record and the decisions relied upon by appellant, and we conclude that appellant has failed to demonstrate that the classification resulting from the exemptions in the Act, as between container materials used in furtherance of sales and the same or similar materials used to further services, is without reasonable basis in the nature of the businesses and that the law operates unequally upon subjects between which there is no real difference to justify separate treatment. Texas Company v. Stephens, 100 Tex. 628, 103 S.W. 481 (1907).

The effect of the Act and the exemptions allowed in the Act is to permit the user of container materials, sold with the merchandise contained in the packaging, to recover the cost of the materials when the cost is included in the total sales price, upon which total the sales tax is based. Appellant is engaged in a business which does not sell tangible personal property upon which taxes are levied. Appellant sells services, in furtherance of which container materials are used, but title to the containers is retained by the business rendering the service. Appellant made proof that its charges for services include both labor and “furnishing materials” for packing and containers. Since appellant had not paid the tax, until required by the Comptroller, the sales or use tax was not included in its charges for services.

Appellant suggests that moving and transfer companies are the only businesses using packing and packaging materials in furtherance of a service, but the undisputed evidence is that, in addition to moving and transfer companies, laundry and dry cleaning industries, transportation industries, and “lump-sum” contractors are liable for the sales or use tax. Materials used by transportation companies include lumber for shoring and bracing to prevent shifting of cargo in trucks, trailers, and railroad boxcars. It appears from the record that the class to which appellant belongs, being those engaged in selling services or engaged in moving and transferring goods, is taxed equally and uniformly as a class, and that all of the businesses with which appellant is competitive are treated equally under the statute.

The only difference created by the exemptions in the Act, between sellers of tangible goods using container materials and sellers of services using container materials, is that the former may postpone payment of the tax until the packaged tangible goods are sold and the latter must pay the tax on purchase of the container materials and look to recovery, if any, in service charges which may include labor, use of containers, and the use tax. This difference is not an unreasonable or arbitrary tax procedure, and the two treatments, though different, are not in the final result a discrimination against the class in which appellant operates.

The attack appellant makes on the statute under the final point of error must fail because there is no showing that the exemptions under the Act result in a form of invidious discrimination or that they are manifestly arbitrary, a burden required of appellant in attacking the statute as viola-tive of its rights under the Fourteenth Amendment.

The Supreme Court, in Hart v. Cooper, supra, stated that on the question of uniformity and equality within the different classes taxed “the requirements under the Fourteenth Amendment ... as interpreted by” the Supreme Court of the United States “are essentially the same as the requirements under” the Constitution of Texas. “Each requires,” the Court added, “that all persons falling within the same class must be taxed alike. Each recognizes the power of the Legislature to make classifications, and each requires that such classifications, when made, must not be unreasonable, arbitrary, or capricious.” (110 S.W.2d 901)

In a recent case the Supreme Court of the United States stated:

“The Equal Protection Clause does not mean that a State may not draw lines that treat one class of individuals or entities differently from the others. The test is whether the difference in treatment is an invidious discrimination. * * * Where taxation is concerned and no specific federal right, apart from equal protection, is imperiled, the States have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation.” Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 359, 93 S.Ct. 1001, 1003, 35 L.Ed.2d 351.

In Lehnhausen the Court cited and quoted from its earlier decision in Allied Stores of Ohio v. Bowers, 358 U.S. 522, 526-527, 79 S.Ct. 437, 440-441, 3 L.Ed.2d 480. In Allied Stores the Court stated, “Of course, the States, in the exercise of their taxing power, are subject to the requirements of the Equal Protection Clause of the Fourteenth Amendment. But that clause imposes no iron rule of equality, prohibiting the flexibility and variety that are appropriate to reasonable schemes of state taxation. The State may impose different specific taxes upon different trades and professions and may vary the rate of excise upon various products. It is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use or value.”

In Madden v. Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84 L.Ed. 590, on the subject of classification, the Court stated, “The broad discretion as to classification possessed by a legislature in the field of taxation has long been recognized. This Court fifty years ago [in 1890] concluded that ‘the fourteenth amendment was not intended to compel the state to adopt an iron rule of equal taxation’ [Bell’s Gap R. Co. v. Pennsylvania, 134 U.S. 232, 237,10 S.Ct. 533, 535, 33 L.Ed. 892, 895], and the passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a legislature in formulating sound tax policies. Traditionally classification has been a device for fitting tax programs to local needs and usages in order to achieve an equitable distribution of the tax burden. It has, because of this, been pointed out that in taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes. The burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it." (Emphasis added)

Appellant has failed under its burden to show that the classifications resulting from exemptions provided under the Act constitute a hostile and oppressive discrimination against appellant as one of the entities engaged in the moving, transfer and storage business.

The judgment of the trial court is affirmed.

      . The substitute proposal was offered by James Richard Fleming, a member of the standing committee, and the later amendment to section 1 was offered by Fletcher S. Stockdale, with the concluding proviso by Andrew Todd McKinney. All three delegates were lawyers. Fleming and Stockdale were natives of Kentucky and McKinney of Illinois. Webb and Carroll: The Handbook of Texas (1952).


source: Caselaw Access Project

author: TUNKS, Chief Justice.

license: Public Domain

text:
    COMMISSIONERS COURT OF HARRIS COUNTY, Texas, Appellants, v. Richard E. MOORE et al., Appellees.
    No. 1209.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 16, 1975.

      Joe Resweber, County Atty., Edward J. Landry, Senior Asst. County Atty., Michael R. Davis, Asst. County Atty., Houston, for appellants.
    John G. Gilleland, Virgil H. Barfield, C. Anthony Friloux, Jr., Gerald A. Woolf, Houston, for appellees.
   TUNKS, Chief Justice.

This is an appeal from an order denying a temporary injunction.

The controversy arises out of the procedure whereby the Commissioners Court of Harris County, by an order effective on July 1,1973, reformed the boundaries of the Justice of the Peace and Constable precincts of Harris County, as authorized by Article V, Section 18 of the Texas Constitution, Vernon’s Ann.St. Suit was filed by two individuals who were constables in Harris County before the effective date of that order, by three individuals who were Harris County Justices of the Peace before the order, and by one individual who sued as a voter of some of the old precincts affected by the order. Named as defendants were the individuals who had been members of the Commissioners Court at the time of adopting the order, those who, on January 1, 1975, succeeded some of those who had been members of the Commissioners Court at the time of the order, and the County Attorney of Harris County. Harris County, itself, was not named as a party defendant, and those who succeeded to the offices of those plaintiffs ousted from office by the redistricting order were not made defendants.

In their petition those of the plaintiffs who had been removed from office alleged that their removal was caused by a conspiracy between the Commissioners Court and the County Attorney to make an illegal and unconstitutional application of Vernon’s Tex.Rev.Civ.Stat.Ann. art. 2351½(0) (1971) to their situations to their damages, actual and punitive, in the amount of $1,000,000 each. The voter plaintiff alleged that the unconstitutional application of Article 235lV2(c) illegally deprived him and other voters of the effect of their votes.

In the prayer of plaintiffs’ petition, it was asked they be granted a temporary injunction against the Commissioners Court, restraining them from enforcing the redistricting order and from preventing the plaintiff former office holders from exercising the functions of their former offices. It was prayed that on final trial the injunction be made permanent, that they have a declaratory judgment declaring Article 2351½ (c) to be unconstitutional, that they recover judgment for their damages as alleged, and that they be granted general relief.

Plaintiffs’ application for temporary injunction was set for hearing. The Honorable Robert W. Hamilton was assigned to hear it as judge presiding over the 190th District Court of Harris County. The court’s order recites that there came on to be heard the plaintiffs’ application for temporary injunction, that the parties “announced ready for trial on said application for temporary injunctive relief” and that:

It is the holding of the Court that the Plaintiff Officers, Constables and Justices of the Peace, Plaintiffs herein, were and/or are entitled to complete the terms of offices to which they were elected in the numbered precincts to which they were elected, as redrawn by the Order of the Commissioners Court of Harris County on June 28th, 1973.
It is the holding of the Court that insofar only as Article 2351¾⅞0 of the Civil Annotated Statutes mandates otherwise, it is unconstitutional. These officers were and/or are entitled to complete the terms of their offices to which they were elected and to receive the emoluments thereof.
The Court further finds that the Order of the Commissioner’s Court which became effective July 1st, 1973 declaring the offices of these Plaintiffs vacant and filling those offices by appointees is invalid.
The Court further holds that the Commissioner’s Court in passing the Order was complying strictly with the Statute as is written; that the Commissioners Court, and the members thereof have completed their role in this matter. There remains nothing further for said Defendants to do towards enforcing that Order.
The Court holds that the passing of said Order making appointments to fill these offices did result in the Plaintiffs’ emoluments of office being withheld from them by Harris County and did result in their being excluded from their offices by the appointments made in said Order.
The Court further finds that any in-junctive order issued by this Court would grant these Plaintiffs no relief.
It is therefore ADJUDGED and DECREED that the temporary' injunction prayed for is denied.
To which above order denying the temporary injunction the Plaintiffs objected and excepted and gave notice of appeal; and to which above order declaring Article 2351½(0), V.A.C.S., to be unconstitutional, the Defendants objected and excepted and gave notice of appeal.
SIGNED, RENDERED AND ENTERED this 9th day of April. 1975.

While both parties gave notice of appeal, only the defendants perfected appeal by filing a bond. The only point of error in the defendants’ appellate brief reads as follows:

THE TRIAL COURT ERRED IN ADJUDGING THE SUBSTANTIVE RIGHTS OF THE PARTIES AND RENDERING DECLARATORY JUDGMENT RELIEF PURSUANT TO THE HEARING ON THE APPLICATION OF AP-PELLEES FOR A TEMPORARY INJUNCTION PENDING A TRIAL OF THIS CASE ON THE MERITS, SINCE SUCH COURT WAS ONLY AUTHORIZED TO ENTER AN ORDER EITHER DENYING OR GRANTING A TEMPORARY INJUNCTION FOR THE SOLE PURPOSE OF MAINTAINING THE STATUS QUO OF THE SUBJECT MATTER PENDING A PROPER TRIAL OF THIS CASE ON THE MERITS.

That point of error is sustained. Houston Belt & T. Ry. Co. v. Texas & New Orleans R. Co., 155 Tex. 407, 289 S.W.2d 217 (1956). Since the hearing at which the appealed from judgment was rendered was ancillary only, designed to maintain the status quo pending a trial on the merits, the trial court was not authorized to render a declaratory judgment on the constitutionality of Article 235lV2(c). That is one of the items of relief, for which the plaintiffs sought judgment, that could properly be rendered only after a trial of this case on the merits.

The plaintiffs gave notice of appeal but did not file any bond and, therefore, did not perfect appeal. This Court’s jurisdiction was effectively invoked by the defendants’ perfection of appeal. The defendants’ notice of appeal did not meet the requirements of Texas Rules of Civil Procedure 353(c) so as to limit the scope of this appeal. Therefore, this Court’s jurisdiction over that portion of the trial court’s judgment denying the temporary injunction is invoked.

The plaintiffs, assuming the position of appellees, have not stated any cross-points in their briefs. However, since this is an appeal from an order denying a temporary injunction, the formal rules as to briefing are not applicable and we will consider the plaintiffs’ vigorous contentions that the trial court erred in denying the temporary injunction.

The parties against which the plaintiffs asked for a temporary injunction were the Harris County Commissioners Court and its members. The trial court correctly recited “. . . that the Commissioners Court, and the members thereof have completed their role in this matter.” The trial court correctly further recited “. . . that any injunctive order issued by this Court would grant these Plaintiffs no relief.” The only parties against which an injunctive order could conceivably grant the plaintiffs effective relief, Harris County and the individuals occupying the contested offices, were not even parties to the suit. Furthermore, the only plaintiffs who were elected to a term of office which has not yet expired were elected to the office of Constable. This Court has today held, in case # 1182, styled Ed “Tracy” Maxon v. Ralph D. Franz, that Article 235lV2(c), at least as applied to the office of Constable, is constitutional. We disagree with the plaintiffs’ contention that the trial court erred in denying the temporary injunction for which they asked.

The judgment of the trial court is reformed so as to delete therefrom those portions purporting to adjudicate the constitutionality of Article 235lV2(c) and the validity of the redistricting action taken by the Harris County Commissioners Court. As so reformed the judgment is affirmed.


author: COLEMAN, Chief Justice.

text:
    Arthur G. HENDRICKS, Appellant, v. The BOARD OF TRUSTEES OF the SPRING BRANCH INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 16505.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 17, 1975.
    Rehearing Denied Aug. 14, 1975.
    Carroll J. Boudreaux, Houston, for appellant.
    Grant Cook, Houston, Reynolds, White, Allen & Cook, Houston, of counsel, for ap-pellee.
   COLEMAN, Chief Justice.

This is an appeal from the judgment of the District Court of Harris County, Texas, denying appellant’s application for writ of mandamus to compel the Board of Trustees of the Spring Branch Independent School District to furnish him access to various records of that school district without requiring him to reimburse the school district for its costs incurred in the retrieving, assimilation and production of those records. The principal issue is the question of whether Article 6252-17a, Vernon’s Ann. Texas Revised Civil Statutes, authorizes a governmental agency to make a charge for access to public records where such agency incurs expense in making such records available for inspection. We conclude that such a charge is authorized by law and accordingly affirm the action of the trial court in denying mandamus.

The petitioner properly requested the custodian of the public records of the Spring Branch Independent School District to produce for his inspection certain of the district’s financial records for a 7-year period, some four or five hundred thousand documents. In his answer to this letter Dr. Landrum, the custodian of the records, stated:

“The magnitude of the records search that you now demand is of such tremendous proportions that we are, in accordance with Article 6252-17(a), Section 9(b), setting about to consult with the State Board of Control to ascertain a fair and equitable, but sufficient, charge for access to those records and documents and will advise you as soon as possible of the cost, which we will require in advance, for such access after that figure has been determined through consultation with the State Board of Control.”

The demand letter was dated October 16, 1974. Superintendent Landrum’s letter in response was dated October 28, 1974, and the original petition for mandamus was filed by Mr. Hendricks on November 13, 1974.

The location and form of the material requested were not fully established at the hearing. Some of the items requested were readily available in the business office. One such item was the minutes of the Board of Trustees which, it appears from the briefs, petitioner was later permitted to examine without charge. Other records were kept on micro-film and in computer data banks. Some of the records are stored in warehouses; others, in the form of computer printouts, are available in the business office. It is not established where or how bank statements, cancelled checks, or deposit slips are kept.

House Bill No. 6 passed at the regular session of the 63rd Legislature [Vernon’s Annotated Civil Statutes, Art. 6252-17(a), paragraphs 1 to 15] was entitled “An Act relating to the accessibility of information in the custody of certain governmental agencies and bodies; prescribing penalty; and declaring an emergency.” Section 1 of this Act reads:

“. . . It is hereby declared to be the public policy of the State of Texas that all persons are, unless otherwise expressly provided by law, at all times entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. . To that end, the provisions of this Act shall be liberally construed with the view of carrying out the above declaration of public policy.”

Section 4 of House Bill No. 6 provides:

“On application for public information to the custodian of information in a governmental body by any person, the custodian shall promptly produce such information for inspection or duplication, or both, in the offices of the governmental body. If the information is in active use or in storage and, therefore, not available at the time a person asks to examine it, the custodian shall certify this fact in writing to the applicant and set a date and hour within a reasonable time when the record will be available for the exercise of the right given by this Act . . ”

Paragraph (a) of Section 5 of the Act makes it a duty of the custodian of public records to see that the public records are made available for public inspection and copying. Paragraph (b) of said section provides:

“Neither the custodian nor his agent who controls the use of public records shall make any inquiry of any person who applies for inspection or copying of public records beyond the purpose of establishing the proper identification and the public records being requested; and the custodian or his agent shall give, grant, and extend to the person requesting public records all reasonable comfort and facility for the full exercise of the right granted by this Act.”

Section 18 provides that “each governmental body may promulgate reasonable rules of procedure by which public records may be inspected efficiently, safely, and without delay.”

Paragraph (b) of Section 14 provides that the Act “does not authorize the withholding of information or limit the availability of public records to the public, except as expressly so provided.”

Section 8 of the Act provides that on refusal of a governmental body to supply public information the person requesting the information “may seek a writ of mandamus compelling the governmental body to make the information available for public inspection.”

Paragraphs (a) and (b) of Section 9 appear in House Bill 6 under the heading “Cost of copies of public records.” Paragraph (a) reads:

“The cost to any person requesting noncertified photographic reproductions of public records comprised of pages up to legal size shall not be excessive. The State Board of Control shall from time to time determine the actual cost of standard size reproductions and shall periodically publish these cost figures for use by agencies in determining charges to be made pursuant to this Act.”

Paragraphs (c), (d), (e), and (f) all relate to copies of public records.

Paragraph (b) of Section 9 reads:

“Charges made for access to public records comprised in any form other than up to standard sized pages or in computer record banks, micro-film records, or other similar record keeping systems, shall be set upon consultation between the custodian of the records and the State Board of Control, giving due consideration to the expenses involved in providing the public records making every effort to match the charges with the actual cost of providing the records.”

This paragraph does not speak of copies of public records; it speaks of charges made for access to public records and to providing public records. We consider that it authorizes the public body to make a charge for access to public records corresponding to the actual cost of making the records available for inspection if the records are larger than standard size or if they are maintained in computer record banks, micro-film records, or other similar record keeping systems.

Petitioner contends that read literally this paragraph authorizes charges to be made for access to public records kept in a manner other than up to standard size pages, computer record banks, micro-film records or other similar record keeping systems. Under this construction of the paragraph in question the public body is authorized to make charges for access only in the case records are kept on larger than standard size pages. Such a construction is unreasonable. The purpose of the provision appears to be to allow the agency to recover the actual cost of providing a service to the public, and this provision of the Act should be construed to effectuate that purpose. 53 Tex.Jur.2d, Statutes, §§ 132, 133, 134.

The proper rule for construing a statute is found in Texas Highway Commission v. El Paso Building & Construction Trades Council, 149 Tex. 457, 234 S.W.2d 857 (1950), approved in Railroad Commission of Texas v. James F. Miller, 434 S.W.2d 670 (Tex.1968). There the court said:

“Courts must take statutes as they find them. More than that, they should be willing to take them as they find them. They should search out carefully the in-tendment of a statute, giving full effect to all of its terms. But they must find its intent in its language, and not elsewhere. They are not the law-making body. They are not responsible for omissions in legislation. They are responsible for a true and fair interpretation of the written law. It must be an interpretation which expresses only the will of the makers of the law, not forced nor strained, but simply such as the words of the law in their plain sense fairly sanction and will clearly sustain.”

We think, however, that the word “or” in line 2 of said paragraph (b) was inserted or written by inadvertence or mistake. It is unlikely that the legislature intended to authorize a public agency to charge a citizen a fee for looking at public records which were larger than legal size, or standard size, but not for access to records kept in computer record banks or on micro-film records.

Section 11 of House Bill 6 reads:

“A bond for payment of costs for the preparation of such public records, or a prepayment in cash of the anticipated costs for the preparation of such records, may be required by the head of the department or agency as a condition precedent to the preparation of such record where the record is unduly costly and its reproduction would cause undue hardship to the department or agency if the costs were not paid.”

In this section the legislature uses the words “for the preparation of such public records” in the sense of preparation for reproduction of such records. This paragraph does not authorize the public agency to require a bond, or prepayment in cash, of the anticipated cost of access to the record.

A persuasive argument may be made that the purpose of this legislation was to insure the public’s right of access to all public records, except those specifically excluded, and to guarantee to the public the right to copy any such record, and that an interpretation of the Act as authorizing a fee to be charged those who exercise such rights would be contrary to the spirit of the Act. Nevertheless it appears that the legislature has authorized a fee to be charged for the right to inspect certain records. The size of the fee is restricted by the provision requiring that it approximate the actual cost of preparing the material for inspection. The record does not establish that none of the material demanded by the petitioner falls within the class for which no charge may be made. Petitioner has failed to establish a clear right of access to the records free of charge. Mandamus will not issue to compel a public official to perform an official act unless the petitioner’s right to have the act performd is clear. Cobra Oil & Gas Corporation v. Sadler, 447 S.W.2d 887 (Tex.1968).

The judgment is affirmed.


author: PEDEN, Justice.

text:
    D_F_, Appellant, v. The STATE of Texas, Appellee.
    No. 16478.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 17, 1975.
    Rehearing Denied Aug. 14, 1975.

      Bounds, Fitzgerald, McGilvray & Grimm, Martin J. Grimm, Houston Legal Foundation, Ronnie E. Bounds, Jr., Ronald G. Fitzgerald, James L. McGilvray, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Joseph T. Terracina, Chris Hanger, Kay L. Burkhal-ter, Asst. Dist. Attys., Houston, for appel-lee.
   On Motions for Rehearing

PEDEN, Justice.

Our opinion filed on May 1, 1975, in this cause is withdrawn and the opinion that follows is substituted for it.

This suit was brought by the State to have an infant girl declared dependent and neglected, to terminate parental rights, and to place her with Harris County Child Welfare Unit as managing conservator with authority to place her for adoption. The mother appeals from a judgment in favor of the State entered after a non-jury trial.

Appellant complains that there was no evidence to sustain the trial court’s finding that termination of her parental rights would be in the best interest of the child and says that such finding was so against the great weight of the evidence as to be clearly wrong. No findings of fact or conclusions of law were requested or filed in this case. In determining “no evidence” points of error we view the record in the light most favorably in support of the findings of the trial court. Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126 (1959). Great weight points require us to consider all the evidence.

The court’s “paramount concern is with the best interests of the children. . There is a presumption that the interests of a young child are best served by award of its custody to its natural parents. The presumption is based upon a logical belief that the ties of the natural relationship of parent and child ordinarily furnish strong assurance of genuine efforts on the part of the custodians to provide the child with the best care and opportunities possible. . . ” Mumma v. Aguirre, 364 S.W.2d 220 (Tex. 1963).

The burden of proof on the issue of the best interest of the child is upon the one seeking to deprive the natural parent of custody. Herrera v. Herrera, 409 S.W.2d 395, 396 (Tex.1966). Before the drastic remedy of declaring a child dependent and neglected can be applied, the unfitness of the parent should clearly appear from the evidence. Martin v. Cameron County Child Welfare Unit, 326 S.W.2d 31, 36 (Tex.Civ. App.1959, writ ref’d n. r. e.). The evidence must be clear and convincing to give custody to another who is not the natural parent. Calhoun v. Ruffer, 425 S.W.2d 50 (Tex.Civ. App.1968, no writ). The evidence in the record authorizes the trial court to measure the appellant’s future conduct by her recent deliberate past conduct as it may be related to the same or a similar situation. De Llano v. Moran, 160 Tex. 490, 333 S.W.2d 359, 361 (1960).

We review all the evidence. The appellant, D- F-, was called as an adverse witness. She is 19 years old and is the mother of T- F-, an infant born on October 21, 1973. The father is H- B-, Jr. She has never been married to him and she only lived with him for about a month. He has never contributed to the baby’s support. At the time of trial, September 18,1974, she had had six or seven jobs in the last nine months, working two or three weeks at each, and had lived in six different places. She was living with James Thompson when her daugher was placed in foster care. He had been put in jail and she had gone to see him when she was picked up by the police. She had just gotten over pneumonia. She lived with David Thomas for about six months, but is no longer doing so. They plan to marry.

She said she has been in Rusk State Hospital because her father beat her up and she thought she needed a rest. She stayed four days once and eight days the other time. She said she had a nervous breakdown the second time. She went there a third time and stayed three months. Her health is now excellent.

She plans to finish Career Academy, where she is studying to be a dental assistant, in six more months. She has been there three weeks. She is supposed to get food stamps right away. She said she works about three days a week and makes $35 from Mrs. Elnora Thomas, but she has no income now and no money in the bank. She borrowed $100 from Mrs. Thomas. She spent $45 of it to get into school and paid a $50 deposit on her apartment. Her rent is $140 per month. David Thomas’ sister is helping her out with food until she can get food stamps.

If her daughter is returned to her she plans to continue in the academy, where she will attend from eight until one, then work from two until eight or ten. One of David’s sisters will keep the appellant’s daughter while the appellant works and goes to the academy. She would be with her daughter on weekends and would later get a nine-to-five job.

Appellant admitted she had sometimes left her baby alone for a long time. She said she didn’t know what to do with her baby, since she had not had one before and didn’t have any kind of help. She couldn’t recall having been referred to Jeff Davis ' for child-rearing classes, but would be willing to do anything she was asked to do. She admitted refusing to cooperate with the Child Welfare Unit in some things but said she has been to the Family Service Bureau five or six times. She denied leaving her baby alone longer than about ten minutes. Mrs. Price’s daughter wanted her baby, but she refused and they kept bothering her.

Appellant said the apartment she lived in with James Thompson was junky, but not dirty. She had just gotten over pneumonia and was sick and weak. She thinks she can give her baby security, love and a good home, the most important things to her, by staying in school and getting a good job. She said she would die and go to hell for her baby; that she may have been immature, but she thinks she has learned from her experience and should be given a second chance.

She testified that she has a job where she can start tomorrow, making $3 an hour. Mrs. Thomas will help her get furniture for her apartment. After five months’ more training she will be able to earn $500 to $600 per month. She said she has not missed a visit with her child. Her child is clean and healthy at present but cries during each visit. Admitting that in less than four weeks at the academy she has missed four or five days, she explained that she had to find an apartment, find a lawyer, and come to court.

Concerning her condition when she and her child were picked up by the police, she testified:

“Q. Do you recall Officer Craddock of the Houston Police Department coming up to assist you at that time?
“A. All I remember was that this young white man came up and asked me if I was hurt, and he had this lady with him, and I said no, I was just weak because I hadn’t eaten, and I asked him would they carry me home, and the lady didn’t know where this place was, and she stopped a policeman, and I was real upset, so he carried me to the Police Station and they took the baby, because she was sick. Her milk had soured on her and I didn’t know it. I know that was kind of dumb not to check the milk and everything, because it could have messed up her health.
“Q. Do you recall that T- was vomiting and had diarrhea at that time?
“A. Yes. I had been trying to feed her, you know, and I had asked that lady that had checked the baby at the hospital if I could feed her baby food and the baby food, I guess it hadn’t adjusted to her stomach, but her milk had soured, but I didn’t know it.”

Officer Craddock testified that he was in the 1200 block of Congress across the street from the Courthouse when it was brought to his attention that “the woman was in a bad way and had a small baby with her.” He said when he first saw relator she was on the sidewalk sitting down on the curb and had a baby in her arms. He described her condition as:

“Well, the baby seemed . . . well, the baby had . . . the mother was carrying a little bottle of milk. It must have had about a third of the milk in it was left in there, and the milk had . I looked inside, because the nipple had kind of gotten stuck together, and as I looked inside the bottle, I noticed that the milk inside the bottle had clabbered. It was, you know, that old. And the baby’s diapers were pretty dirty. In fact, them diapers was hard, they had been on the diaper so long.
“Q. It had crusted up?
“A. Yes, sir. Sure had. And this was what prompted my attention. I talked to the mother about it, and she couldn’t seem to come up with any kind of particular answers as to where she lived and you asked her her name and she hesitated and asked her why she was up in this vicinity and she said she had been up to see a boy friend of hers in the County Jail at that time.”

Mrs. Sandra Price, the owner of an apartment building in which appellant had lived with several different tenants, testified that she knows the child was left alone for four hours on one occasion in November, 1973. When appellant moved in with one James Thompson the apartment was a total wreck; it was filthy, with dirty diapers and dirty clothes all over the place. Mrs. Price called Child Welfare because of complaints from her tenants about the baby’s being left alone.

Mr. Wm. Eignus, a Welfare worker, testified that when he visited the apartment where appellant was living he found it in disarray, with piles of clothing on the floor and the odor of soured milk in the air. The oven was on, and the handle of a fork in the oven had melted.

He discussed with the appellant the possibility of her getting her baby back and told her that she would need to show some stability as to a place to live, income from Welfare or a job and to show that she was able to take care of the child herself. She said she would do what was needed, and he gave her a list of places where she might get help for herself and training in child care. She contacted those places but did not follow through on any of the programs he suggested. He said that during the past year she had introduced him to three men she had been living with at different times during the year, referring to each as her fiance. He found a good deal of the baby food had been left open on the counter and had spoiled. He didn’t consider that the baby could have been adequately fed and cared for in view of the lack of cleanliness he found.

Dr. Ken Vincent, a clinical psychologist, testified that he had given the appellant five psychological tests in March of 1974. As a result, his opinion is that she is in the range of dull normal intelligence, is immature, her ego development is below normal, she is at odds with herself and society, and is not apt to follow through with long-range goals. She has. deep-seated unresolved dependency needs and her life script is self-defeating and destructive. It is his opinion that she is quite manipulative and that her sexual acting out of her current life style is unconsciously directed at getting back at her parents, as is her desire to keep her child. She is also motivated by her desire to have a devoted love object of her own. He did not feel qualified to judge whether she could adequately perform the tasks of a mother.

Carol Linda Proctor of Harris County Child Welfare Unit testified that the appellant’s case was assigned to her from December of 1973 until May of 1974, during which time she had many contacts with the appellant. She advised the appellant that she needed to find some place to stay and to stay there, to get a job or job training, and to get counseling. Appellant was referred to vocational rehabilitation therapy in December and went there once but did not go back until March of 1974. She made no effort to cooperate and never followed any suggestions. She had six places of residence. She would wait until a court appearance was coming up before she would do anything. She would not follow through with anything she started. She finally got into job training, lasted two or three weeks, then dropped out. She is back in job training now. She was referred to two places where she would be trained to care for her child and get help for her own personal problems, but she didn’t follow through. The child cried the whole time when the mother came to visit her but did not do so with others.

Mr. Trent Piper, a counselor for Texas Rehabilitation Commission, said the appellant applied with the agency twice in 1973. He got her a job interview. She was offered counseling and guidance, and an opportunity to work with them to let them help her set up goals toward stable employment, but she didn’t cooperate or follow through on any of their suggestions. She was to let him know on the following day how her job interview came out, but he didn’t hear from her until just before this hearing.

Karen Nelson of Harris County Child Welfare Unit testified that she has been assigned to this case since June 12, 1974. The appellant was then in job training, but she droppéd out five days later. When it was necessary during the appellant’s visits with her daughter, she was told to change her or clean her up, but Miss Nelson usually ended up doing it. Miss Nelson recommends that parental rights be terminated. Since the child has been in foster care the appellant has seen the child once a month.

Mrs. Elnora Thomas was called as a witness by the appellant. She has known the appellant for about six months. Mrs. Thomas owns a thrift shop and lives about a block from the appellant, whom she has been helping to get employment, an apartment, and furniture. She would help the appellant any way she could as long as the appellant shows she is trying. She feels that the appellant is trying to straighten her life out. Mrs. Thomas has made arrangements with her daughter to look after the appellant’s baby while the appellant is at school and work.

Her son David, who is twenty, and the appellant were talking about getting married about a month ago but haven’t mentioned it lately. Mrs. Thomas said that during a visit with T- F- she thought the appellant handled her child like any mother would. She handles Mrs. Thomas’ daughter’s children well, feeds and changes them.

The appellant was called back to the witness stand. She said that when she was pregnant and shortly thereafter there was nobody she could go to for help. She tried to get her parents to help, but they wouldn’t. Mrs. Thomas and her daughter and son would help her now, and with their help she can care for the child. She will do anything that will help. She will complete the dental assistant’s training and try to make the best grades she can, because her whole life depends on it. She has a high school equivalency diploma.

She plans to marry David Thomas, maybe in six months or a year, when she gets financially able and through with school. They were thinking about living together, but she told- him it would mess up her child’s life, and it would be better if they got married. She had left her daughter with a baby sitter the time she was alone for several hours. She said the baby sitter must have left.

No other evidence was offered. A copy of the report of a social study authorized by Section 11.12 of the Family Code, V.T.C.A., is in the transcript of this appeal, but it was never introduced in evidence in the trial court. Section 11.12 states that the report shall be made part of the record of the suit, but Sections 11.14 and 11.15 state that the rules of evidence apply as in other civil cases and that the trial court’s finding shall be based on a preponderance of the evidence under rules generally applicable to civil cases. For these reasons and for others stated in our opinion filed on May 1, 1975, in Magallon v. State, we hold that the report was not properly before the trial court. A number of the persons whose impressions were noted in the report testified in the trial in this case.

The provisions of Section 15.02 of the Family Code which are applicable to the facts developed in this case state that a petition requesting termination of the parent-child relationship, with respect to a parent who is not the petitioner, may be granted if the court finds:
“(1) the parent has . (D) engaged in conduct which endangers the physical or emotional well-being of the child; . and
“(2) termination is in the best interest of the child.”

The evidence as to the condition in which the child was found when she was taken from the appellant supports the trial court’s presumed finding that the appellant had engaged in conduct which endangers the child’s physical well-being. The appellant explained that she had been ill, but we hold that the trial court was warranted in presumably finding that her physical condition as well as that of her child and of her living quarters were the result of her own neglect and not of some cause over which she had no control.

The trial court was not required to accept the truth or accuracy of appellant’s testimony, either as to her past actions or her future intentions. The testimony of other witnesses and inconsistencies in her own testimony tended to create a doubt as to the truth of her statements.

We do not suggest that the courts should terminate the parent-child relationship when the parent through lack of intelligence or training, illness; or misfortune is unable to provide a desirable degree of physical care and support for his or her children. Where love and affection exist between a parent and child some lack of material comforts is not, in our opinion, detrimental to the child’s well-being, but a lack of adequate love and affection may be evidenced by the parent’s deliberate neglect in failing to provide a reasonable measure of care and comfort for the child. The trial court was entitled to accept the psychologist’s opinion testimony suggesting that the appellant wants to keep her baby to get back at her parents, to use as a symbol of personal accomplishment, and as a means of providing a feeling of love to herself. In this case the trial court could have concluded that the parent’s conduct indicated deliberate neglect and lack of care for the child, so an alternative rearing situation would be a much preferable solution.

We can only speculate as to the factors which the trial judge determined to be most important, influenced his decision, and formed the basis of his judgment. No findings of fact were requested or made to guide us in our review. The trial judge had an opportunity to view the demeanor of the appellant during trial and to weigh her testimony in the light of human experience and the testimony of the other witnesses. He could have concluded from the evidence that the appellant’s conduct demonstrated a basic lack of care and affection for the child and this lack would probably continue to be demonstrated in her future conduct. Further, that the appellant’s “recent deliberate conduct” demonstrated she would probably not muster the determination and persistence to obtain and hold a job necessary for her self-support and the care of her child. Standing alone, this latter factor would not suffice as a ground for termination of the parent-child relationship. Presumably, under Sec. 15.02, a parent may elect not to work at all and to provide subsistence for his family from welfare. However, in deciding whether termination is in the best interest of the child, a court may consider whether the failure of a parent to gain and hold steady employment demonstrates an emotional weakness and instability.

We hold that the evidence supports the trial court’s presumed finding that the appellant has engaged in conduct which has had and will have a detrimental effect upon the physical and emotional well-being of the child, as demonstrated by her recent past conduct, and that it would be in the best interest of the child to terminate the parent-child relationship.

We will notice the appellant’s other points of error.

In her eighth point she complains of an irreconcilable conflict between the State’s pleadings and the judgment. This suit was filed before January 1, 1974, the effective date of Title 2 of the Texas Family Code, but the State’s petition was amended and this cause was tried after that date. Appellant says the State’s second amended petition seeks relief provided in Title 2 of the Family Code, termination of parental rights and appointment of a managing conservator with authority to place the child for adoption, but alleges dependency and neglect under the old Articles 2330-2337, Vernon’s Ann.Texas Civil Statutes. It is true that the allegations follow the provisions of the prior statutes rather than those of Section 11.08 of the Family Code, but they were not excepted to or pointed out by written motion before rendition of judgment, so this defect in pleading was deemed waived under Rule 90, Texas Rules of Civil Procedure. In determining child custody cases the technical rules of pleading and practice need not be strictly followed. It is the best interests of the child that are paramount. Hendrick v. Voss, 334 S.W.2d 308 (Tex.Civ.App.1960, no writ); Ex Parte Gallop, 486 S.W.2d 836 (Tex.Civ.App.1973, ref d n. r. e.).

Apparently this case was tried under the Family Code, Title 2. Section 4 of the enactment provision of Title 2 states that all proceedings in actions pending on January 1, 1974 shall be governed by Title 2 of the Code “except to the extent that in the opinion of the court its application in an action pending when this act takes effect would not be feasible or would work injustice.” We find no indication that the trial court was of such opinion.

Appellant attempts to raise “no evidence” and “insufficient evidence” points as to the termination of the natural father’s rights, but the appellant has no standing to assert these points of error as neither the appellant nor her counsel represents the natural father. He was served with citation but did not appear to contest the matter. He is married and lives in Palestine, Texas.

Appellant further complains that in effect the trial court denied appellant her right to counsel, which was a denial of due process and equal protection, by allowing the attorney of record to withdraw one day prior to the trial date and not granting appellant’s new counsel a continuance, alleging that he had but one day to prepare for trial of the case. We overrule this point. Appellant’s attorney failed to comply with the requirements of Rules 251-253, Texas Rules of Civil Procedure, in that no written motion for continuance pointing out sufficient cause supported by affidavit was ever filed, only an unsworn oral motion for continuance made on the date of trial. If an application for continuance does not conform to the provisions of a statute or rule regulating continuances, the granting of relief is within the sound discretion of the trial court. It will be presumed, in the absence of a showing to the contrary, that the court has not abused its discretion. Watson v. Godwin, 425 S.W.2d 424 (Tex.Civ. App. — Amarillo 1968, ref’d n. r. e.).

Appellant’s ninth point of error contends that Sec. 15.02(2) of the Texas Family Code is unconstitutional .because it is vague and overly broad. As we have noticed, Section 15.02 requires that there be findings under both sub-section (1) and subsection (2) before termination may be granted. We find no merit in this point.

The judgment of the trial court is affirmed.


author: WARD, Justice.

text:
    CHILICOTE LAND COMPANY and Beacon Hill Farms, Inc., Appellants, v. HOUSTON CITIZENS BANK & TRUST COMPANY, Appellee.
    No. 6443.
    Court of Civil Appeals of Texas, El Paso.
    July 23, 1975.
    Rehearing Denied Aug. 13, 1975.

      Stubbeman, McRae, Sealy, Laughlin & Browder, W. B. Browder, Jr., Rodney W. Satterwhite, Harrell Feldt, David K. Brooks, Midland, for appellants.
    Goodman, Hallmark & Akard, P. C., Kenneth L. King, Gerald P. Keith, El Paso, for appellee.
   OPINION

WARD, Justice.

This is a summary judgment case. Ap-pellee, Houston Citizens Bank & Trust Company, filed suit on a series of promissory notes executed by Appellants, Chilieote Land Company and Beacon Hill Farms, Inc. The trial Court entered summary judgment for the bank on the balance due on the promissory notes and severed out the cross-action of the Appellants, whereby they sought damages from the bank for wrongful sequestration, unreasonable collection efforts, and conversion. That judgment is reversed and the cause remanded as the trial Judge had previously disqualified himself from sitting in the case under the terms of Article 15, Vernon’s Tex.Rev.Civ. Stat.Ann.

The bank’s motion for summary judgment was heard in May, 1974. On July 9, 1974, the Court advised counsel for all parties that the motion for summary judgment was sustained, that judgment would be entered on the claims of the bank, and that the Appellants’ cause of action asserted in the cross-action would be severed. On August 19, 1974, the trial Judge disqualified himself from participating in any further proceedings under the provisions of Article 15, Tex.Rev.Civ.Stat.Ann., and Article 30.-01, Vernon’s Tex.Code Crim.Proc.Ann. On October 1, 1974, the summary judgment appealed from was signed and entered by the same trial Judge.

The Appellants by their third and last point present the matter of the trial Judge’s voluntary disqualification, and it is this point which is now considered. The record of disqualification is reflected by the statement in the Appellants’ brief and by a copy of the Court’s docket sheet in the transcript. The latter shows the Court’s decision on the summary judgment, the order of severance of July 9, 1974, and the trial Judge’s disqualification of August 19, 1974. No formal order of disqualification is found of record, but the parties agree that the trial Judge disqualified himself on the date stated by his notation on the docket sheet that the “Court disqualifies itself in any further proceedings under provisions of Art. 15 VATS; CCP Art. 30.01.” We accept the statement made in the Appellants’ brief as true. Rule 419, Texas Rules of Civil Procedure. While the reference to Article 30.01 can be regarded as immaterial to this civil proceeding, Article 15 does apply and it merely restates the provisions of the Constitution, art. V, § 11, Vernon’s Ann. St. Since he disqualified under Article 15, the disqualified Judge was incapacitated from taking any action in the cause which required the exercise of judicial discretion. As defined by the above constitutional and statutory provisions, the disqualification destroyed the power of the Court to act. It cannot be waived by the parties, and it rendered the purported judgment signed by him void. Postal Mut. Indemnity Co. v. Ellis, 140 Tex. 570, 169 S.W.2d 482 (1943); Indemnity Insurance Company of North America v. McGee, 356 S.W.2d 666 (Tex.1962); 1 McDonald, Texas Civil Practice, § 1.23; 33 Tex.Jur.2d Judges § 58 at 429. Appellee argues that the trial Judge merely rescued himself from a case where a delicate question of his indirect bias or prejudice was presented and that no constitutional or statutory disqualification is involved; that the grounds enumerated by the Constitution have in the past been held to be both inclusive and exclusive and mere bias and prejudice are not disabling factors. Maxey v. Citizens National Bank of Lubbock, 489 S.W.2d 697 (Tex.Civ.App. — Amarillo 1972), rev’d on other grounds, 507 S.W.2d 722 (Tex.1974); 1 McDonald, Texas Civil Practice, § 1.22.1. This argument is rejected in the face of the record presented. Certain letters purportedly written by the Judge and attached to the Appellee’s brief are not properly before us and cannot be considered. Further, the Code of Judicial Conduct with its Canon 3, subsection C, became effective on September 1, 1974, prior to the entry of the summary judgment. Its adoption by the Supreme Court establishes the rule that when a judge now disqualifies he is without power to act for broader reasons than existed heretofore. The point is sustained, as the trial Judge was powerless to enter the judgment appealed from.

The remaining points are not reached. The judgment of the trial Court is reversed and the cause is remanded.


text:
    Shirley Nesmith ALLEN, Appellant, v. Robert E. NESMITH et al., Appellees.
    No. 16513.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 24, 1975.
    Rehearing Denied Aug. 21, 1975.

      Urban, Coolidge, Pennington'& Scott, T. J. Sims, Michael D. Stewart, Houston, for appellant.
    Jamail & Gano, Joseph D. Jamail, William J. Stradley, Houston, for appellees Walter D. Allen and David Byron Allen.
    Hofheinz & Harpold, Lew W. Harpold, Houston, Guardian Ad Litem for appellee Minor Ann Valesca Allen.
    John L. Hill, Atty. Gen. of Texas, David Kendall, First Asst. Atty. Gen., J. C. Davis, Scott Garrison, Asst. Attys. Gen., Austin, for appellee University of Houston.
   COLEMAN, Chief Justice.

This is an appeal from a judgment denying the petition of appellant, Shirley Nes-mith Allen, to set aside the probated self-proven will of her deceased mother. The defendants in the trial court, appellees here, moved for judgment at the conclusion of the plaintiff’s testimony, and judgment in their favor was granted. The judgment will be reversed and the cause remanded to the trial court.

The trial was to the court without a jury. On its face Mrs. Nesmith’s will appears to have been executed in compliance with the provisions of Section 59 of the Probate Code, V.A.T.S., relating to self-proved wills. It had been admitted to probate and the executor had qualified and had entered upon the administration of the estate. The concluding paragraph of Sec. 59, supra, provides:

“A self-proved will may be admitted to probate without the testimony of any subscribing witness, but otherwise it shall be treated no differently than a will not self-proved. In particular and without limiting the generality of the foregoing, a self-proved will may be contested, revoked or amended by codicil in exactly the same fashion as a will not self-proved.”

Mr. William T. Mixon, II, one of the witnesses to the will in question, was called as a witness by appellant. Mr. Mixon’s signature on the will appears below the statement that the testatrix signed the will in his presence and that he signed it in her presence. He also signed the self-proving affidavit which states again that he signed the will in the presence of the testatrix. At the trial he testified that the testatrix was not present at the time he signed the will. The other subscribing witness to the will was deceased at the time of trial. Appellant attempted to introduce the deposition of the notary public who took the acknowledgments to the self-proving affidavit. The trial court sustained an objection to this evidence. At this point the plaintiff, appellant herein, rested. Appellees then moved for judgment. The attorney for the minor defendant, Ann Valesca Allen, specifically stated that he was not waiving his right to produce testimony in the event the motion for judgment was denied. The trial court sustained the motion and entered judgment denying the petition to set aside the will.

By a long line of cases this court has affirmed the proposition that in a non-jury trial, when the plaintiff rests the defendant may move for judgment, and in such event the court must apply to the motion the same rules which would determine the propriety of instructing a jury to return a verdict. Under such a test the court must presume to be true the evidence of the opposite party, who is entitled to the most favorable construction that such evidence will properly bear and to the benefit of all reasonable inferences arising therefrom. Casey v. Sanborn’s, Inc. of Texas, 478 S:W.2d 234 (Tex.Civ.App. — Houston [1st Dist.], 1972, no writ hist.); Olshan Lumber Company v. Bullard, 395 S.W.2d 670 (Tex.Civ.App. — Houston [1st Dist.], 1965, no writ 'hist.); Rhinetubes, Inc. v. Norddeutscher Lloyd, 335 S.W.2d 269 (Tex.Civ.App.— Houston [1st Dist.], 1960, writ ref’d n. r. e.); Donaldson v. Oak Park Cemetery, Inc., 110 S.W.2d 119 (Tex.Civ.App. — Galveston, 1937, no writ hist.); Lorino v. Crawford Packing Co., 169 S.W.2d 235 (Tex.Civ.App. — Galveston, 1943, aff’d 142 Tex. 51, 175 S.W.2d 410); Higgins v. Mossier Acceptance Co., 140 S.W.2d 532 (Tex.Civ.App. — Galveston, 1940, error dism.). This line of cases has been followed by the Austin Court of Civil Appeals in Burkhardt v. Harris, 200 S.W.2d 445 (Tex.Civ.App. — Austin, 1947, no writ hist.). No other cases have been called to our attention, nor have we found any, in which this point of law has been considered.

The attestation clause in proper form together with the self-proving affidavit was prima facie evidence of the validity of the will, even though the attesting witness contradicts the fact stated in the attestation clause. Wilson v. Paulus, 15 S.W.2d 571 (Tex.Comm’n App.1929); Nichols v. Rowan, 422 S.W.2d 21 (Tex.Civ.App. — San Antonio, 1967, writ ref’d n. r. e.).

The testimony of an attesting witness cannot destroy the prima facie case established by the attestation clause, and thereby require the proponents of the will to go forward with evidence to avoid an instructed verdict. Wilson v. Paulus, supra. The declarations found in such a clause are competent evidence of the facts stated. Reese v. Franzheim, 381 S.W.2d 329 (Tex. Civ.App. — Houston [1st Hist.], 1964, writ ref’d n. r. e.).

Whether or not a prima facie case is established must be determined from a consideration of the evidence favoring the proponent. The adverse evidence is considered to determine the existence of a fact issue for the trier of facts. Page v. Lockley, Tex.Civ.App., 176 S.W.2d 991, rev’d Lockley v. Page, 142 Tex. 594, 180 S.W.2d 616 (1944).

There is no rule of law which prohibits an attesting witness from contradicting the statements contained in the attestation clause. The testimony of such a witness must be considered by the trier of facts, who alone can determine the credibility of the witness and the weight to be given his testimony.

There is a fact issue as to whether the will in question was signed by the testatrix in the presence of the attesting witnesses as required by the Probate Code. In such a case the trial court would not have been authorized to grant an instructed verdict had the case been tried to a jury. Morgan v. Morgan, 519 S.W.2d 276 (Tex. Civ.App. — Austin 1975, writ ref’d n. r. e.).

The evidence does not establish, as a matter of law, that the will was executed with the formalities required by law. The trial court erred in granting appellees’ motion for judgment.

Other points are raised by the appellant in her brief, but they will not likely occur on a retrial. We find it unnecessary, therefore, to determine these points.

Reversed and remanded.


author: McDONALD, Chief Justice.

text:
    MOSER COMPANY, Appellant, v. FIRST CHURCH OF CHRIST, SCIENTIST, Appellee.
    No. 5451.
    Court of Civil Appeals of Texas, Waco.
    July 24, 1975.

      Mark Mueller, Dallas, for appellant.'
    Hultgren, Jewell & Kolb, James J. Hult-gren, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Moser Company from summary judgment it take nothing in suit for real estate commission against defendant Church.

Plaintiff sued defendant alleging its agent Lawrence Moser contacted defendant’s agent William M. Morris seeking employment as a real estate broker to sell defendant Church property in Dallas; that Moser secured a purchaser for the church property for $315,000 and providing a $15,-000. commission be paid plaintiff; that Moser and Morris signed a contract to such effect; that defendant Church refused, to close such sale. Plaintiff prayed for judgment for the $15,000. commission plus interest and attorneys’ fees.

Defendant answered that it had never consented to a sale of substantially all of its property and assets because the contract of sale was never authorized by a two-thirds vote of the members present at any membership meeting, as required by Article 1396-5.09(A) of the Texas Non-Profit Corporation Act.

Defendant thereafter filed motion for summary judgment that plaintiff take nothing because the contract of sale upon which plaintiff seeks to recover is illegal and unenforceable as a matter of law; that Article 1396-5.09(A) of the Texas NonProfit Corporation Act requires that the sale of substantially all the property and assets of a non-profit corporation be authorized by two-thirds of the members present at a meeting called for the purpose of considering future disposition of said property; that the November 16, 1972, meeting of defendant Church was called to consider such sale and only 28 of the 49 members present voted for confirmation.

In support of such motion defendant attached the affidavit of Mozelle Jowell, Church Clerk who testified she was custodian of all church records; that none of the records or minutes contain an approval of the contract of sale plaintiff sues on by a vote of two-thirds of the members present at any meeting held by the church; that on her personal knowledge the Contract of Sale has never been approved by a vote of two-thirds of the members present at any church membership meeting. Mrs. Jowell attached copy of minutes of the Semi-Annual Business Meeting for Membership November 16, 1972, which recites “Forty nine members were present”, and that “twenty eight members” voted to accept the offer “to purchase the church property for $315,-000.”

Attached also to defendant’s motion was the affidavit of Willie Anita Flowers which testified that she was President of the Board of the Church; that on November 16, 1972, there was a business meeting at the church at which forty nine members were present; that only twenty eight members voted to sell the property; that to her own personal knowledge the Contract of Sale has never been approved by a vote of two-thirds of the members present at any church membership meeting.

Plaintiff filed the affidavit of Mrs. Marion A. Bolin in opposition to the Motion for Summary Judgment. Such affidavit states “at the time of the membership meeting in November 1972, approximately 6 members of the church, or more, wrote to the Church Board requesting that the sale be approved. All letters were read to the Board”. And Mrs. Bolin by supplemental affidavit stated, “I have been thinking about the membership meeting of November 1972, to the best of my recollection approximately 9 people or more wrote letters in asking that the sale be approved”.

Plaintiff also filed affidavit of William M. Morris in opposition to the motion for summary judgment which stated, “I am not sure how many people wrote in, but all that wrote in, that I'remember, favored the sale and desired it to go through. Those peoples wishes were not counted in the vote on record at all; * * * on Thursday November 16, 1972, the church had a membership meeting and passed the sale * * * at the meeting there were 49 present, 28 voted for the sale, 2 voted against and 19 abstained”.

The trial court rendered summary judgment that plaintiff take nothing.

Plaintiff appeals on 3 points contending the trial court erred in rendering summary judgment against plaintiff because:

1)There existed a material fact issue as to whether or not the agreement was approved by a 2/s’s majority of the members of defendant Church.
2) Alleged illegality did not render the agreement unenforceable as to plaintiff’s commission.
3) There were equitable grounds of enforcement as to plaintiff’s commission.

Plaintiff asserts there is a fact question since Article 1396-5.09(A) provides “Such authorization (for sale of property) shall require at least ⅜⅛ of the votes which members present at such meeting in person or by proxy are entitled to east * * * and that only the votes of those present at the meeting were counted.

Plaintiff’s affidavits do not show that any proxy votes were present at the membership meeting; they only show that 6 or possibly 9 members wrote to the church board that they favored the sale.

Defendant’s affidavits and evidence reflect 49 members present at the membership meeting; that 28 voted for the sale. Two-thirds of the 49 present would be 33; and further that at no time was the contract of sale ever approved by ⅜⅛ of the vote at a membership meeting; thus ⅜⅛ of the membership present did not vote for the sale. Even if the 6 who “wrote in to the Board favoring the sale” should be counted, the total number present in person or by proxy would be 54; and ⅜⅛ of 54 would be 36; so the 28 plus 6 or 34 would not be 2/s’s of those present in person or by proxy; and if it be considered that 9 wrote to the Board and should be counted, 49 plus 9 is 58 present in person or by proxy, and ⅜⅛ of 58 would be 39. The 28 plus 9 or 37 favoring the sale is still short of the required ⅜⅛.

The record on summary judgment is without dispute that ⅜⅛ of the membership at a meeting, in person or by proxy, never approved the contract of sale. Thus there was no contract to sell the church property.

A broker is precluded from recovering a commission where the contract of sale is in violation of the law. Campbell v. Hood, Com.App. adopted, 35 S.W.2d 93. The courts will enforce no part of an illegal contract. Montgomery Ward & Co. v. Lusk, CCA, Er.Ref., 52 S.W.2d 1110; Morrison v. City of Ft. Worth, 138 Tex. 10, 155 S.W.2d 908. An illegal contract cannot be ratified by either party and the parties to such illegal contract cannot render it enforceable. Continental Fire & Cas. Ins. Corp. v. American Mfg. Co., CCA, Er.Ref., Tex.Civ.App., 221 S.W.2d 1006. And as between the parties to a contract prohibited by law, estoppel cannot give such contract validity. Farha v. Elam, CCA, NRE, Tex. Civ.App., 385 S.W.2d 692.

All plaintiff’s points are overruled.

Affirmed.