author: POPE, Justice.

text:
    Ex parte Orlando L. BENITEZ, Relator.
    No. B-8840.
    Supreme Court of Texas.
    Nov. 21, 1979.
    Rehearing Denied Dec. 31, 1979.
    Librado Pena, Humberto L. Juarez, Jr., Laredo, for relator.
    Maria Elena Quintanilla, George J. Person, Ada Cronfel, Argentina Cronfel, Laredo, Tony Martinez, Brownsville, for respondent.
   POPE, Justice.

Relator Orlando L. Benitez in this habeas corpus proceeding says that he should be released from confinement in the Webb County jail because the orders which he is charged with violating were not clear, specific and unambiguous as required by Ex parte Slavin, 412 S.W.2d 43 (Tex.1967). The judge of the 111th District Court of Webb County, by an order dated September 24, 1979, confined relator for contempt because he had violated two previously issued court orders, one dated October 29, 1976, and the other dated August 17, 1979.

The Order of October 29, 1976

Victor Manuel Salinas on October 5,1976, commenced the underlying suit against relator Benitez and several of his business enterprises. Salinas sought a declaratory judgment construing a contract that Beni-tez had made to assign some of his accounts receivable. Benitez was in the business of subdividing property and selling lots. On October 29, 1976, Benitez and the several other parties to that action agreed to an' order appointing a receiver who was charged with the duty of taking control of all Benitez’s contracts, as well as the accounts receivable that were owing him and his co-defendants. That agreed order provided:

All Defendants are hereby ordered to turn over to said Receiver all contracts, cancelled checks, deposits, memorandum and any other documents relating to the above described properties, and the collection of any monies therefrom That all parties hereto are enjoined from soliciting, directly or indirectly, the collection or receiving of money from any persons, firms and corporations owing any money on any contract for Deed or directing or suggesting to any person who owes money, that such money be paid to any person other than the Receiver or his agent and from selling any of said property except for the Receiver All parties are enjoined from taking any steps to divest themselves of any interest in and to said properties .

On May 4,1979, the trial judge conducted a hearing upon a motion to hold Benitez in contempt for his violation of the October

29,1976, order. The trial judge found Beni-tez in contempt and ordered him placed in the custody of the Webb County sheriff until he purged himself of contempt by paying the sum of $7,300 into the registry of the court. The trial judge also ordered that Benitez would not be placed in jail if he paid into the registry of the court $3,650 by June 4, 1979, and a like amount by July 4,1979. The validity of neither the October 29 order nor the May 4 contempt order are here questioned, and relator has not supplied any record which discloses that either of them is void.

Upon motion that Benitez had not complied with the terms of the order suspending enforcement of the May 4 contempt order, the trial court on September 6, 1979, ordered Benitez to appear on September 24 to show cause why the suspended judgment of contempt of May 7 should not be made operative and why the court “should not impose its penalty and sentence of Contempt.” The show cause order incorrectly referred to the earlier May 4 contempt order as the order of May 7. Benitez had already been found in contempt; the only purpose for the hearing about the May 4 order was to determine whether he had failed to purge himself of the contempt as that order permitted.

The Order of August 17, 1979

On July 20, 1979, Benitez and the parties to the suit entered into another agreement that the trial court embodied in an order signed on August 17, 1979. By that order relator Benitez was “enjoined from receiving any monies of any kind be they in the form of payments, remunerations, in collection of any indebtedness and cease from dealing in all of the following described properties for a period of thirty (30) calendar days from this date to August 20, 1979, or as soon thereafter as Ordered by the Court.” The order described and listed the real estate; designated the receiver as the only person with power to deal with the property; enjoined Benitez from making any contracts, conveyances, exchanges or in any way dealing with the property; and enjoined him from interfering with the receiver’s duties. The court further ordered:

that if within the 30 days covered by this Order Orlando L. Benitez presents evidence by way or [sic] recorded and certified copies of recorded releases having to do with the lands in question, and executed by Cecil McDonald, Cash and Carry Buildings Materials, Inc., and/or Laredo Cash and Carry Building Materials, Inc., El Rancho Palmito Estates and/or Palmi-to Estates, Inc., and that such releases are verified as having been executed by Cecil McDonald or said companies, on which he had authority to act, then and in that event, Orlando L. Benitez and his controlled corporations which he represents will be entitled to a Quit Claim Deed on those portions of land on which he presents authenticated releases as set out above.
IT BEING FURTHER UNDERSTOOD that said releases must be approved by the Receiver and the attorneys for all parties of this suit excluding the interve-nors;
IT IS FURTHER AGREED AND ORDERED that such Quit Claim Deeds shall name the Receiver as grantee and as the stated consideration shall reflect that said deeds are given pursuant to this Order;

On September 5,1979, Johnny Morris and wife, who had previously intervened in the action and had participated in the agreed injunction orders of August 17, 1979, filed their motion for contempt and specified Benitez’s violations in these words:

1. That ORLANDO L. BENITEZ did solicit, receive transfer and collect land •and monies directly and indirectly from WILLIAM BRADLEY of Laredo, Webb County, Texas, on account of land located in Webb County, Texas, and subject to and in violation of said Order.
2. That ORLANDO L. BENITEZ, Individually and on behalf of his various business entities, has engaged in conduct calculated to harass, molest, injure and degrade the Court-appointed Receiver, the Honorable Argentina Cronfel; That at a hearing held in this Court on August 23,1979, Defendant ORLANDO L. BENI-TEZ caused his attorney Humberto Juarez to state that ORLANDO L. BENI-TEZ had received and deposited various payments for third persons under Contract of Sale, which funds were not turned in to the Receiver; Furthermore, that Humberto Juarez delivered to the Receiver a xerox copy, of a check made payable to the Receiver, together with copies of the payments received by Corona Air Conditioning, Inc., in reimbursement for said funds, but to date hereof the Receiver has not received the check, and information provided to the Receiver indicates that the account of Corona Incorporated No. 11-732-3, with the International Bank of Commerce, is overdrawn at this time. Attached hereto and made a part hereof as Exhibit “B” is an affidavit of Honorable Argentina Cronfel, Receiver in said Cause No. 31,129, the basis of the aforesaid allegations.
3.That there are numerous other acts of which Movants herein are unaware of, and that said acts are being engaged in by the said ORLANDO L. BENITEZ, and his respective business entities, all to the detriment of Movants and in violation of this Court’s Order; that Movants have no adequate remedies at law, that unless the alleged conduct is enjoined and Defendants found in contempt of this Court’s Order, Movants will suffer immediate permanent and irreparable harm for which they have no adequate remedy at law.

It is apparent that the Motion for Contempt asserts violations of matters different from the commands of the August 17 order. On September 6, the judge issued a separate order to Benitez commanding him to appear and show cause why he should not be held in contempt for violation of the August 17, 1979, order. Attached to the show cause order was the motion for contempt which is quoted above.

Thus, on September 6, the trial court issued two orders — one requiring Benitez to show whether he had purged himself of contempt of the 1976 agreed order as the contempt order of May 4, 1979, permitted him to do; and the other charging him with disobedience of the August 17, 1979, order. Both of these September 6 show cause orders were set for hearing on September 24, 1979.

The September 24, 1979 Hearing

On September 24, the trial judge heard both of the September 6 show cause orders. The court then embodied a number of rulings in a single order. He ruled that Beni-tez had not purged himself of his contempt of the 1976 agreed order as the decree of May 7, 1979, permitted, and ordered that Benitez be remanded to the sheriff of Webb County until he purged himself of that contempt. The court also in general terms found Benitez “in all things” in contempt of the August 17 order but did not specify what particular part of the August 17 order Benitez had violated. The court then made a number of new orders in the nature of commands that Benitez should obey in the future, but these commands did not state that they were violations of past orders. The court also denied a request by Benitez’s lawyer to withdraw as counsel, denied a motion that the judge recuse himself, and stated new .orders for the guidance of the receiver.

Enforcement of the May 4 Contempt Order

Benitez makes no attack upon the clarity or specificity of the May 4 order finding him in violation of the 1976 agreed order. Neither does he attack the proceedings which led to that contempt order. The only part of that order that was before the court in the present proceeding was whether Ben-itez had purged himself of the contempt. Benitez does not assert here that he has purged himself; his only attack is that the September 6 show cause order required him to excuse himself from a contempt order dated May 7 rather than May 4.

The variance between the date of the original contempt order (May 4) and the mistaken date (May 7) does not invalidate the order remanding Benitez to the sheriff because of his failure to purge himself of contempt. The May 4 contempt order was described in both the motion to show cause and the order remanding Benitez to the sheriff in identical terms except for the date. Criminal convictions are sustained notwithstanding greater variance in dates. In Jackson v. State, 501 S.W.2d 660 (Tex.Cr. App.1973), an indictment charged the defendant with an offense committed on August 29, 1972, and the conviction was affirmed even though the proof was that the offense occurred on July 29, 1972. In Washington v. State, 492 S.W.2d 473 (Tex. Cr.App.1973), the indictment stated the date of the offense was on or about May 5, 1968, but the evidence was that it happened on May 5,1967. The one-year variance did not defeat the clarity and specificity required for a charge against the defendant.

Contempt of the August 17, 1979 Order

The court’s order of September 24, 1979, so mixes a number of new orders with the old ones that there is uncertainty about the violations for which Benitez was additionally in contempt. There are also substantial variances between the commands in the August 17 order and the grounds for contempt stated in the motion to show cause why Benitez is not in violation of the August 17 order. The motion to show cause, stated above, includes charges of disobediences of commands that we do not find in the August 17 order. We are unable to locate the August 17 orders of which Benitez has been adjudged in contempt. That part of the order of September 24 will not support the contempt order.

That part of the September 24 order effectuating the earlier order of May 4, 1979, and remanding Orlando L. Benitez to the custody of the sheriff of Webb County until he purges himself of the contempt satisfies the rule of clarity and certainty required by Ex parte Slavin, 412 S.W.2d 43 (Tex.1967).

The petition for writ of habeas corpus is denied and the relator is ordered remanded to the custody of the sheriff of Webb County until he purges himself of contempt of the May 4, 1979, contempt order.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DAVIS-KEMP TOOL CO., INC., Petitioner, v. Bob BULLOCK, Comptroller of Public Accounts, Respondent.
    No. B-8782.
    Supreme Court of Texas.
    Nov. 28, 1979.
    Rehearing Denied Jan. 9, 1980.
    Vickery Law Firm, C. Ed Harrell, Houston, for petitioner.
    Mark White, Atty. Gen., Myra A. McDaniel, Asst. Atty. Gen., Austin, for respondent.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

Pursuant to the Limited Sales, Excise and Use Tax, Title 122A, Texas Revised Civil Statutes Annotated, Article 20.01, et seq., Bob Bullock, Comptroller of Public Accounts, assessed a tax and penalty on the consideration paid by Davis-Kemp Tool Co., Inc. for the rental of tools and equipment from its suppliers. The Comptroller considered charges made by Davis-Kemp to its customers for oil well services it performed to be tax exempt, and no tax was assessed on these charges. After Davis-Kemp paid the taxes under protest and its claim for refund was denied, Davis-Kemp brought this suit in district court. The district court held that the transactions between Davis-Kemp and its suppliers were taxable leases, and rendered judgment for the Comptroller.

The court of civil appeals held that the transactions between Davis-Kemp and its suppliers were tax exempt, and that the transactions between Davis-Kemp and its customers were taxable. It then affirmed the district court’s judgment. 584 S.W.2d 579.

We affirm the judgments of the court of civil appeals and the district court. Contrary to the holding of the court of civil appeals, we hold that the Comptroller correctly taxed the transactions between Davis-Kemp and its suppliers, and correctly treated the transactions between Davis-Kemp and its customers as tax exempt. Davis-Kemp’s application for writ of error is refused, no reversible error.


author: ONION, Presiding Judge.

text:
    Anthony Earl WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 62935.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Dec. 12, 1979.
    Robert T. Baskett, Dallas, court appointed on appeal only, for appellant.
    Henry M. Wade, Dist. Atty., Ronald D. Hinds, Hugh Lucas, Jr. and Martin L. Lenoir, Asst. Dist. Attys., Dallas, and Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and DOUGLAS and W. C. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This appeal is from an order revoking probation. On December 4,1975, appellant pled guilty in a bench trial to the offense of burglary of a habitation, and his punishment was assessed at five (5) years’ imprisonment, probated.

Subsequently a motion to revoke probation was filed, a hearing thereon was held and probation was revoked. Sentence was imposed and notice of appeal was given.

On appeal the appellant contends that the judgment must be reversed and the revocation must be dismissed because he was not given a hearing within twenty (20) days following his motion for such hearing in accordance with Article 42.12, § 8(a), V.A.C. C.P.

Said § 8(a) of Article 42.12, supra, provides in pertinent part:

“If the defendant has not been released on bail, on motion by the defendant the court shall cause the defendant to be brought before it for a hearing within twenty days of filing of said motion, and after a hearing without a jury, may either continue, modify, or revoke the probation. The court may continue the hearing for good cause shown by either the defendant or the state." (Emphasis supplied.)

On May 7, 1979, a report of probation violation was filed with the court stating that appellant was reported to have committed the offenses of burglary of a building and possession of marihuana, one of the offenses allegedly committed in an adjoining county. On that very same day, the appellant filed a motion requesting a speedy revocation hearing pursuant to Article 42.12, § 8(a), supra.

On May 25, 1979, the State filed its motion to revoke probation alleging the appellant had committed the above described offenses in violation of probation. On the very same day the revocation hearing commenced. The State presented appellant’s probation officer as a witness, then asked for a “continuance” or postponement until other witnesses from out of the county could be obtained. Four days later on May 29, 1979, the court concluded the hearing and revoked probation. Appellant does not challenge the sufficiency of the evidence to sustain revocation.

What appellant complains of is that while the revocation hearing commenced within eighteen (18) days of his motion for a speedy hearing under Article 42.12, § 8(a), that it was “continued” for four days without good cause being shown and that it was twenty-two (22) days before it commenced again and was concluded.

What appellant overlooks is that the express language of said Article 42.12, § 8(a), provides that upon motion of a probationer he is entitled to a hearing within twenty (20) days of the filing of the State’s motion to revoke probation. Here the motion for speedy hearing was filed on the same date as the report of probation violation. The revocation motion was not filed until May 25, 1979, and on that very day the hearing was commenced. After some testimony, it was passed for four days and then commenced and concluded. It clearly appears from the record before us that the revocation hearing commenced within twenty (20) days of the filing of the motion to revoke probation. We decline to hold that a probationer may trip the timetable provided by filing a motion for speedy revocation hearing prior to the filing of the State’s motion to revoke probation and count the twenty (20) days from the filing of his motion rather than from the filing of the State’s motion to revoke probation.

For the reasons stated, we find no abuse of discretion. The judgment is affirmed.


author: W. C. DAVIS, Judge.

text:
    Billy Ray HUTCHINS, Appellant, v. The STATE of Texas, Appellee.
    No. 57564.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 19, 1979.
    Douglas R. Bergen, Waco, for appellant.
    Felipe Reyna, Dist. Atty., Randall L. Rogers, Asst. Dist. Atty., Waco, Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for aggravated robbery, wherein a jury assessed punishment at fifteen years confinement.

In a pro se ground of error, appellant contends that the court’s charge to the jury was fundamentally defective in that it provided an alternative culpable mental state, although such was not alleged in the indictment. We agree.

The indictment, in pertinent part, alleged that appellant,

“did then and there while in the course of committing theft and with intent to obtain and maintain control of property of James Schlemmer, to wit: United States Currency without the effective consent of the said James Schlemmer and with intent to deprive the said James Schlemmer of said property, did then and there by using and exhibiting a deadly weapon, to-wit: a revolver intentionally and knowingly threaten and place Margaret Durham in fear of imminent bodily injury and death . . .” (Emphasis added)

In its charge, the trial court additionally charged the jury on the culpable mental state of recklessness as provided in V.T.C.A. Penal Code, Sec. 6.03(c) although this was not alleged in the indictment. The court further charged the jury that they could find appellant guilty of the offense if they found that he:

“intentionally, knowingly or recklessly threatened or placed Margaret Durham in fear of imminent bodily injury or death . . . ” (Emphasis added)

This same charge was held to be fundamentally defective as authorizing a means of conviction on a theory not alleged in the indictment. Hawkins v. State, 579 S.W.2d 923 (Tex.Cr.App.1979); Jackson v. State, 576 S.W.2d 88 (Tex.Cr.App.1979); Dowden v. State, 537 S.W.2d 5 (Tex.Cr.App.1976). Further, V.T.C.A. Penal Code, Sec. 29.02 does not provide for any robbery offense involving the reckless threatening or placing another in fear of imminent bodily injury or death. See Sec. 29.02, supra; Hawkins v. State, supra.

Accordingly, the judgment is reversed and the case remanded.


author: DOUGLAS, Judge.

text:
    Mark Houston KOLBERT, Appellant, v. The STATE of Texas, Appellee.
    No. 58487.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Dec. 19, 1979.
    Robert M. Rose, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Stephen J. Wilensky, and Les S. Eubanks, Jr., Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and DOUGLAS and W. C. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

The conviction was for the possession of opium. The court assessed punishment at fifteen years.

Kolbert, on appeal, argues that the indictment is fundamentally defective because it cannot be ascertained whether a felony or misdemeanor is charged.

The indictment alleges that Kolbert did “. . knowingly and intentionally possess a controlled substance, namely, opium.”

The Controlled Substances Act, Article 4476-15, Section 4.02, V.A.C.S., sets out various penalty groups and the drugs assigned to each. Opium and its extracts, including tincture of opium, are assigned to Penalty Group 1 as a second degree felony. Penalty Group 3, which provides for punishment as Class A misdemeanors, includes narcotics that are “not more than 500 milligrams of opium per 100 milliliters or per 100 grams . . . .” Article 4476-15, Section 4.02(d)(5)(H), V.A.C.S. Penalty Group 4, which provides for punishment as Class B misdemeanors, includes narcotics that are “not more than 15 milligrams of opium per 29.5729 milliliters or per 28.35 grams.” Article 4476-15, Section 4.02(e)(5), V.A.C.S.

In Benoit v. State, 561 S.W.2d 810 (Tex. Cr.App.1977), an indictment for the delivery of codeine which failed to state facts to show the appropriate penalty group was fundamentally defective because the proper range of punishment could not be determined from the allegation. It could not be determined from the face of the indictment whether the district court had jurisdiction to try the case. The Benoit case is controlling.

The indictment alleging the possession of opium charges at most a misdemeanor. Therefore, we reverse and remand this case back' to the trial court with instructions that the case be transferred to the court having misdemeanor jurisdiction. See Whitaker v. State, 572 S.W.2d 956 (Tex.Cr.App.1978); Suarez v. State, 532 S.W.2d 602 (Tex.Cr.App.1976).

      . An indictment alleging an amount of opium to make it a felony offense is not precluded by this opinion.


author: TOM G. DAVIS, Judge. DOUGLAS, Judge,

text:
    Ex parte Willie Charles CURRY, Appellant.
    No. 62651.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 19, 1979.

      No appearance for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

TOM G. DAVIS, Judge.

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

Petitioner contends that he was subjected to double jeopardy when he was convicted upon the same evidence for two offenses arising out of the same continuous assaultive transaction involving a single victim.

The record reflects that petitioner was convicted of aggravated rape and assessed punishment of 50 years on March 5, 1976 in Cause No. F76-174-NP in the 203rd Judicial District Court of Dallas County. On the same day in that court appellant was convicted of.aggravated robbery and as-, sessed punishment of 30 years in Cause No. F76-1518-P. Appeals were perfected in both causes to this Court and were affirmed in Curry v. State, 555 S.W.2d 126 (Tex.Cr.App.1977) in per curiam opinions numbered 53,768 and 53,769.

The trial court entered findings that the offenses for which petitioner was convicted were the product of one continuous assaultive transaction against a single victim. The trial court further found that the conviction in Cause No. F76-1518-P for aggravated robbery was subsequent to the conviction in Cause No. F76-174-NP for aggravated rape and that petitioner’s conviction in Cause No. F76-1518-P for aggravated robbery should be declared void.

The trial court’s findings, unchallenged by the State and petitioner, reflect that both convictions arose out of one continuous assaultive transaction against a single victim. See Orosco v. State, 590 S.W.2d 121 (Tex.Cr.App.1979); Ex parte Hillard, 538 S.W.2d 135 (Tex.Cr.App.1976). The second conviction for aggravated robbery in Cause No. F76-1518-P is violative of the double jeopardy provisions of the State and Federal Constitutions. Duckett v. State, 454 S.W.2d 755 (Tex.Cr.App.1970); Ex parte Jewel, 535 S.W.2d 362 (Tex.Cr.App.1976).

The relief sought is granted as to the conviction for aggravated robbery. The conviction therein is set aside.

DALLY, J., dissents.

ROBERTS, J., not participating.

DOUGLAS, Judge,

dissenting.

The majority sets aside the conviction for aggravated robbery because an aggravated rape arising out of the same transaction had resulted in a conviction. This case follows prior erroneous decisions of this Court. When prior decisions are wrong, they should be overruled. What this and like holdings do is to permit one to threaten a victim with a weapon and commit as many crimes as he wishes without the possibility of being convicted of but one crime.

In this situation, he committed aggravated rape and aggravated robbery, but only one conviction stands. Had he committed sodomy, assault to murder, maiming, kidnapping and any other offenses where an assault is an element of the offense, only one conviction could be upheld under the reasoning by the majority.

There is no constitutional or statutory provision requiring the result reached in this case. See the dissenting opinion in Orosco v. State, 590 S.W.2d 121 (Tex.Cr. App.1979), for many additional reasons.

The relief sought should be denied.

W. C. DAVIS, J., joins in this dissent.


author: DALLY, Judge.

text:
    Carlos A. CABALLERO, Appellant, v. The STATE of Texas, Appellee.
    No. 56745.
    Court of Criminal Appeals of Texas, En Banc.
    March 12, 1980.
    Robert A. Valdez, Antonio G. Cantu, on appeal only, San Antonio, for appellant.
    Bill M. White, Dist. Atty., Keith W. Burris, Bill Blagg, Alan E. Battaglia, Dick Ryamn and Lisa M. Beck, Asst. Dist. Attys., San Antonio, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DALLY, Judge.

Appellant appealed from a conviction for the offense of murder in which punishment was assessed at imprisonment for ten years. In his appeal this Court held on the State’s Motion for Rehearing in Caballero v. State, 587 S.W.2d 741 (Tex.Cr.App.1979) that no error had been committed in the trial on the merits. However, error had occurred in the hearing on appellant’s competency to stand trial. This Court abated the appeal and remanded the cause to the trial court to impanel a jury and conduct a competency hearing within 90 days to determine whether appellant was competent to have stood trial at the time of his trial on the merits. See Brandon v. State, Tex.Cr.App., - S.W.2d- (No. 59,348, decided April 23, 1979). At the jury trial on competency after the abatement the appellant was found to have been competent.

At the post trial competency proceeding the only evidence was testimony from one psychiatrist and written reports submitted from another psychiatrist and a psychologist. Each had examined the appellant pri- or to his trial and each concluded that he was competent to stand trial. This evidence is sufficient to sustain the jury’s finding of competency and a careful review of the record reveals no error committed during the competency hearing. We, therefore, find that the appellant was competent to stand trial and as we held earlier there was no error in the trial on the merits.

The judgment is affirmed.


author: WARREN, Justice.

text:
    Evelyn SEBESTA, Appellant, v. Anton STAVINOHA et al., Appellees.
    No. 17408.
    Court of Civil Appeals of Texas, (Houston 1st Dist.).
    Sept. 27, 1979.
    Rehearing Denied Nov. 1, 1979.

      Les Fleming, Houston, for appellant.
    Conner, Odom & Clover, C. E. Clover, Jr., Sealy, for appellees.
    Before WARREN, PEDEN and EVANS, JJ.
   WARREN, Justice.

. Evelyn Sebesta appeals from a judgment of the probate court which set aside and declared void a previous order admitting the will of Celestina Stavinoha to probate. The testatrix was the grandmother of one of appellees and the mother of the remaining parties.

The issues on appeal are 1) whether there was evidence to support the jury’s finding that the testatrix did not have testamentary capacity on the date the will was allegedly executed, 2) whether testimony and exhibits concerning savings certificates should have been admitted into evidence and 3) whether testimony of nursing home employees was too remote and inadmissible.

Appellant’s first five points of error assail the evidence supporting the verdict.

Since appellant’s other points of error complain of the trial court’s admitting certain evidence, the latter points will be considered first.

Appellant contends the trial court erred in allowing a bank employee to testify about certain savings certificates and admitting these savings certificates into evidence because the testimony and exhibits were not relevant or material to any issue in the cause.

Appellees (contestants) pled that the testatrix did not have testamentary capacity, that the will was the product of undue influence exerted by appellant on testatrix, that the testatrix could not have executed the will on the date recited therein, and that the will was not executed in accordance with the formalities and solemnities required by law.

Testamentary incapacity implies want of intelligent mental power, while undue influence implies existence of testamentary capacity subjected to and controlled by dominant influence or power. Rothermel v. Duncan, 369 S.W.2d 917 (Tex.1963)

The testatrix, who was of foreign ancestry, could not read or write English. Some witnesses testified that she could only speak broken English, whereas, others testified that she spoke and understood English with little trouble. On April 24, 1973, the date the will was allegedly executed, Mrs. Sta-vinoha was 83 years old.

When called as an adverse party, appellant testified that she generally helped her mother take care of business affairs and that on February 6, 1973, she helped her mother fill out a sworn application for food stamps. The application required testatrix to list property owned by her. A certificate of deposit with the Port City State Bank issued in the name of the testatrix, was not listed as an asset. ' Appellant denied owning or having any knowledge of the certificate of deposit or that the original certificate had been cashed and a new one issued in appellant’s name on August 24, 1973. Testamentary capacity requires, in part, that the testator know the nature and extent of his property and the natural objects of his bounty. See Gayle v. Dixon, 583 S.W.2d 648 (Tex.Civ.App.-Houston [1st Dist.] 1979, no writ). The omission of the certificate of deposit from the list on the application for food stamps was competent evidence that the testatrix did not know thfe nature and extent of her property shortly before the will was executed. McNaley v. Sealy, 122 S.W.2d 330 (Tex.Civ.App.-Austin 1938, writ dism’d). To prove undue influence the contestant must prove (1) the existence and exertion of an influence (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament and (3) the execution of a testament which the maker would not have executed but for such influence. Rothermel v. Duncan, supra. This testimony would tend to show that appellant had the confidence of testatrix and was in a position to exert an influence over her.

Mrs. Kmiec of Port City Bank testified that the original certificate of deposit was in the name of the testatrix, that it was cashed by appellant, deposited in the testatrix’s checking account and the funds in the checking account were used to buy a new certificate of deposit in the name of appellant. Mrs. Kmiec also testified that appellant could write checks on the checking account of testatrix, a fact which appellant had previously denied when testifying. These were material facts on which appellant could properly be impeached.

The exhibits and the testimony of Mrs. Kmiec were properly admitted into evidence.

Appellant contends that the trial court erred in admitting the testimony of Kathy Steger and Adrion Wilson, employees of the Four Seasons Nursing Home, because the testimony related to events which occurred more than two years after the execution of the will and were too remote to be of any probative value.

The two witnesses testified as to the physical and mental condition of the testatrix after July and September of 1975, over two years after the will was purportedly executed. Without other testimony of a continuing infirmity, this testimony would be of no probative value. There was, however, testimony that the physical and mental health of the testatrix deteriorated after an illness in 1966, that she had hardening of the arteries, heart trouble and arthritis and that as she aged, her general, physical and mental condition grew worse.

The proper inquiry in a will contest on the ground of testamentary capacity is the condition of the testator’s mind on the day the will was executed. Only that evidence of incompetency at other times has probative force which demonstrates that the condition persists and has some probability of being the same condition which obtained at the time of the will’s making. Lee v. Lee, 424 S.W.2d 609 (Tex.1968).

After reviewing the entire record, we think it clear that this testimony did not cause the rendition of an improper verdict. T.R.C.P. 434.

Appellant, in her first two points of error, claims the trial court erred in overruling her motion for judgment notwithstanding the verdict because (1) the appel-lees did not prove by a preponderance of the probative evidence that the testatrix was of unsound mind on April 24, 1973 and (2) that the verdict was so contrary to the overwhelming preponderance of the evidence as to be manifestly unjust and clearly wrong.

It would have been proper for the trial court to grant appellant’s motion for judgment notwithstanding the verdict only if a directed verdict would have been proper. T.R.C.P. 301. A directed verdict is proper only where there is no evidence to support submission of an issue to the jury. Associated Sawmills, Inc. v. Peterson, 366 S.W.2d 844 (Tex.Civ.App.-Dallas 1963, no writ). The two points of error are “no evidence” points.

In the next three points of error, appellant alleges that the trial court erred in granting judgment because (1) the jury’s finding was not supported by sufficient probative evidence and (2) the jury’s finding was against the great weight and preponderance of the evidence.

A point of error alleging that a court erred in granting judgment is a “no evidence” point. In Chemical Cleaning, Inc. v. Chemical Cleaning & Equipment Service, Inc., 462 S.W.2d 276 (Tex.1970) the supreme court held that a point of error alleging the trial court erred in “entering judgment” constituted a “no evidence” point. See, Fox v. Boese, 566 S.W.2d 682 (Tex.Civ.App.-Houston [1st Dist.] 1978, writ ref’d n. r. e.). In Clardy v. Dresser Industries, Inc., 559 S.W.2d 922 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ) this court held that a point of error alleging that the trial court erred in rendering judgment on a jury verdict constituted a “no evidence” point.

Appellants points of error one through five are “no evidence” points. In evaluating these five points of error, it must be determined whether all the evidence of testamentary incapacity was so remote that it should have been excluded and whether all of the competent evidence of testamentary incapacity amounted to no more than a scintilla'of evidence.

In reviewing “no evidence” points, the court will consider only that evidence which is favorable to the jury’s finding and will disregard all other evidence. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

Testimony concerning her testamentary capacity follows:

The testatrix was 87 years old when she died on March 5, 1977. In 1966 she was afflicted with shingles and after that time she was unable to live by herself. During the years 1972 and 1973 she lived with her daughter Evelyn Sebesta, her daughter Molly Roberts and her son Joe Stavinoha on a rotating basis because she could not care for herself. She was suffering from hardening of the arteries, arthritis and a heart condition. That during 1972 and 1973 she sometimes could not remember the names of her children and it was difficult for her to carry on conversations with family friends and acquaintances. She owned real property and a certificate of deposit which she failed to list on a sworn application for food stamps approximately two months before the purported execution of the will. She had a good relationship with her children and stated that she did not need a will. In 1972 and 1973 she had difficulty remembering, she would frequently repeat the same conversation and questions and would sit “starey eyed and vacant” in 1971.

Although most of this testimony was disputed by witnesses testifying on behalf of appellant, it nevertheless is of sufficient probative force to support the jury’s finding that the testatrix did not have testamentary capacity on the date the will was executed.

The judgment is affirmed.


author: PEDEN, Justice.

text:
    SEISMIC & DIGITAL CONCEPTS, INC., Appellant, v. DIGITAL RESOURCES CORPORATION, Appellee.
    No. 17453.
    Court of Civil Appeals of Texas, Houston (First Dist.).
    Oct. 4, 1979.

      Bakke & Bradshaw, 0. Otis Bakke, Houston, for appellant.
    Lapin, Totz & Mayer, William A. Petersen, Houston, for appellee.
    Before PEDEN, WALLACE and WARREN, JJ.
   PEDEN, Justice.

Digital Resources Corporation sued Seismic & Digital Concepts, Inc., for nonpayment on a contract under which Digital furnished computer software programs for use by Seismic. Seismic entered a general denial and brought a $50,000 counterclaim for profits lost due to Digital’s failure to deliver the software by the date agreed upon in the contract. The trial court, sitting without a jury, entered judgment for Digital in the amount sued for, $6,750, but did not allow attorneys’ fees, and awarded nothing on Seismic’s counterclaim. We affirm.

The trial judge made and filed findings of fact and conclusions of law, but Seismic failed to timely file a statement of facts, and we have, by written opinion, denied its tardy motion for an extension of time to file it. Seismic assigns these points of error:

(1) The evidence does not support the judgment of the court in this matter.
(2) The findings of the trial court do not support the judgment.
(3) The judgment of the court is against the preponderance of the evidence. (Appellant’s Brief, p. 3)

Digital raises this cross-point: “Appellant has failed to timely file its brief so as to present its points of error for review by the Court of Civil Appeals.” Seismic does not appeal from the denial of its counterclaim, nor does Digital appeal from the denial of attorneys’ fees.

The claims raised in Seismic’s first and third points of error, asserting insufficiency of the evidentiary support of the trial court’s findings, are not reviewable without a statement of facts. In its absence, we must presume on appeal that sufficient evidence was introduced to support the findings of the trial court. Englander Co. v. Kennedy, 428 S.W.2d 806 (Tex. 1968); Lane v. Fair Stores, Inc., 150 Tex. 566, 243 S.W.2d 683 (1951); McRae Oil Corporation v. Guy, 495 S.W.2d 31 (Tex.Civ. App.1973, writ ref’d n. r. e.). Seismic’s first and third points of error are overruled.

In its second point of error Seismic contends that even if the trial court’s findings are conclusive, they do not support the judgment. Seismic argues that Digital breached whatever contractual arrangement the parties may have had by failure to deliver the software program to appellant within the contract time, and that Digital is itself in default on the contract and cannot now maintain a suit for its breach.

The relevant findings of fact of the trial court are:

That the Plaintiff, Digital Resources Corporation and the Defendant, Seismic & Digital Concepts, Inc., executed an agreement on September 6, 1974.
2. Under the agreement, the Plaintiff was to write up certain software programs for use by the Defendant in work it anticipated doing for Exxon Corporation. The software programs were scheduled for completion 45 days after September 6, 1974.
3. The defendant furnished Plaintiff with materials and specifications provided by Exxon Corporation for use in writing the software programs.
4. Plaintiff wrote the software program and furnished same to Defendant during the first part of November, 1974.
5. The data furnished by Exxon and the Defendant was found to have errors and required that the software programs be corrected.
6. On or about November 25, 1974, the software programs were completed and several test runs made which indicated additional adjustments were necessary.
7. On December 20, 1974, the software was delivered to the Defendant with the errors and adjustments completed.
8. Plaintiff invoiced Defendant on December 20, 1974 for the completed software program.
9. On or about February 19, 1975, Defendant wished the software programs reworked to increase the speed of the “run.”
10. Defendant agreed to payment of $800.00 for the additional work required to increase the speed of the software programs.
11. The modifications to increase speed on the software programs were completed by Plaintiff on or about April 16,1975 and the systems delivered to Defendant.
13. Following April of 1975, the software programs were approved as to speed and performance by Defendant and Exxon Corporation.
14. The Defendant has not rejected the software programs and has retained same as of the time of trial.
15. Payment under the contract price of $6,750.00 has not been made by Defendant.

Seismic did not challenge the findings of fact when they were filed, nor did it request any supplemental findings.

It is clear from findings two and four that Digital did not deliver the software programs by October 21, 1974, the date agreed upon in the contract, but it does not follow that such late delivery necessarily precludes Digital’s recovery of the contract price. Finding number four states that the programs were furnished to Seismic “during the first part of November, 1974,” showing a delay of from ten to twenty-five days, depending on whether “the first part" was closer to November 1 or to November 15. Findings five through eleven indicate that although Digital continued to work on the programs from November to April, this additional work was initially necessary because of errors in the data supplied by Seismic. Moreover, we note that 1) the complete absence of evidence that the speed of the programs delivered in November was less than that required under the contract, 2) the December 20 invoice for the “completed” program, and 3) Seismic’s agreement to pay $800 more for the “additional work” to increase the speed are all factors supporting the conclusion that the later work done to increase the speed of the programs was performed at Seismic’s request on software programs which then conformed to the agreement.

When, as here, there is no indication that time was of the essence, failure to perform a contract on the exact date specified is not such a breach as justifies nonperformance by the other party Dibrell v. Ramsey Bros., 294 S.W. 645 (Tex.Civ.App. 1927, writ ref’d Oct. 19, 1927); Laredo Hides Company, Inc. v. H & H Meat Products Company, Inc., 513 S.W.2d 210 (Tex.Civ.App.1974, writ ref’d n. r. e.); Houston Belt & Terminal Railway Company v. J. Weingarten, Inc., 421 S.W.2d 431 (Tex.Civ.App. 1967, writ ref’d n. r. e.). In our case, Digital’s delivery of the software programs from ten to twenty-five days after the date agreed upon was followed by some five months of additional work performed either at Seismic’s request or because of its errors. During those five months Seismic never rejected the programs. On the contrary, the trial judge explicitly found that Seismic accepted them and approved them “as to speed and performance” sometime after April, 1975. Under these circumstances, Digital’s failure to comply exactly with the delivery schedule did not justify Seismic’s refusal to perform its own obligations.

Even if Digital’s initial delay in delivering the software programs had constituted a breach of the agreement, we agree with the trial court’s conclusion that as a matter of law Seismic effectively waived strict compliance with the delivery schedule.

Waiver of strict performance may be inferred from the circumstances or course of dealings between the parties. Puckett v. Hoover, 146 Tex. 1, 202 S.W.2d 209 (1947); Broady v. Mitchell, 572 S.W.2d 36 (Tex.Civ.App.1978, writ ref’d n. r. e.); Laredo Hides Company, Inc. v. H & H Meat Products Company, Inc., supra. A waiver may result from one party’s express or implied assent to the continued performance of the other party without objection to the delay, as in Broady v. Mitchell, supra, and Ryan v. Thurmond, 481 S.W.2d 199 (Tex.Civ.App.1972, writ ref’d n. r. e.). In addition, express representations by one party that strict compliance with a deadline will not be required, or other actions that reasonably lead the other party to believe such, will also cause an effective waiver of a time provision in a contract. Puckett v. Hoover, supra; Broady v. Mitchell, supra; Laredo Hides Company, Inc., v. H & H Meat Products Company, Inc., supra. Finally, a party may effectively waive a breach of agreement by the other party by continuing to insist on performance by the other party even after the breach. Dibrell v. Ramsey Bros., supra; Houston Belt & Terminal Railway Company v. J. Weingarten, Inc., supra. In our case, Seismic waived the contract provision as to time of performance through its failure to object to the delay. Its failure to reject the software programs when delivered, and its subsequent conduct in both assenting to the delay and requesting additional work from Digital on the completed programs.

The trial court’s findings support its judgment.

Having overruled the appellant’s points of error, we need not detail our reasons for having extended the time for the filing of its brief.

Affirmed.


author: PAUL PRESSLER, Justice.

text:
    COPE CONSTRUCTION COMPANY et al., Appellants, v. Randy POWER, Appellee.
    No. A2066.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 10, 1979.
    Rehearing Denied Nov. 14, 1979.
    Kurt T. Nelson, Vinson & Elkins, Houston, for appellants.

      John O’Quinn and Ernest H. Cannon, Riddle, Murphrey, O’Quinn & Cannon, Michael Phillips, Boswell, O’Toole, Davis & Pickering, Houston, for appellee.
    Before MILLER, PRESSLER and SALAZAR, JJ.
   PAUL PRESSLER, Justice.

This is an appeal from the overruling of appellants’ plea of privilege.

On June 13, 1975, Randy Power suffered injuries when thrown from the tailgate of a moving pick-up truck. The truck was owned by appellant Cope Construction Co. (Cope), and driven by Herman Yeager (Yeager), a construction foreman employed by Cope. Yeager was driving the truck from where they had eaten lunch to the job site. Power and another employee were riding on the tailgate, and Power was thrown off and injured. Appellee filed a workers’ compensation claim with Cope’s carrier, Liberty Mutual Insurance Company. The Industrial Accident Board found total and permanent disability. Liberty Mutual filed suit in Galveston County, where the injury occurred, questioning whether Power was in the course of his employment. Power then filed a common-law tort claim in Galveston County against appellants. Appellants filed a plea of privilege in accordance with Tex.R.Civ.P. 86, and Power filed a Controverting Affidavit. Power then filed a Motion to Consolidate the two causes and an amended Controverting Affidavit. Both parties participated in a hearing on April 27, 1978, concerning the Motion to Consolidate. The trial court granted this motion. Appellants filed a Motion to Reconsider the Consolidation which was heard on August 31. At this hearing the Motion to Reconsider was denied, and the court then proceeded to hear arguments on the plea of privilege which was later overruled.

Appellants allege two points of error. First, the trial court erred in overruling appellants’ plea of privilege insofar as the decision was based upon the negligence exception to the Venue Statute, Tex.Rev.Civ. Stat.Ann. art. 1995 § 9a. They alleged that any negligence on the part of the appellants could not be actionable being barred by the Workers’ Compensation Statute, Tex.Rev. Civ. Stat.Ann. art. 8306 § 3. Second, the trial court erred in sustaining venue in Galveston County insofar as that decision rested upon the multiple defendants exception to the Venue Statute, Tex.Rev.Civ.Stat. Ann. art. 1995 § 29a, since appellants were not necessary parties to the suit filed by Liberty Mutual against appellee as required by Section 29a. The consolidation of the cases which permitted appellee to rely on Section 29a was claimed to be error.

While both of these contentions raise interesting questions of law, resolving them would not control this case. Appellants, without reserving the rights asserted by filing the plea of privilege, waived their plea of privilege “. . . by actions which invoke[d] the judicial power of the court in a manner inconsistent with a continuing intention to insist upon the plea.” 1 McDonald, Texas Civil Practice, Venue § 4.40, pages 572-574 (1965 rev.). These actions consisted of urging the trial court to deny appellee’s Motion to Consolidate and, after consolidation was ordered, filing and urging a Motion to Reconsider the court’s decision ordering consolidation. The Motion to Reconsider was denied and the ruling thereon was recorded on the court’s docket prior to commencement of the plea of privilege hearing.

Although there are no decisions specifically holding that such actions alone constitute a waiver of a plea of privilege, to so hold is consistent with the standards set by prior decisions. O'Neal v. Texas Bank and Trust Co. of Sweetwater, 118 Tex. 133, 11 S.W.2d 791 (Tex.1929) (waived by submitting, for determination by the court, a plea in abatement); Douglas v. Baker, 79 Tex. 499, 15 S.W. 801 (Tex.1891) (waived by pleading to a cross action in which affirmative relief was sought); Southwestern Bell Telephone Company v. Thomas, 535 S.W.2d 686 (Tex.Civ.App.—Corpus Christi 1976), rev’d on other grounds, 554 S.W.2d 672 (Tex.1977); First State Bank and Trust Company of Rio Grande City v. Colpaugh, 489 S.W.2d 675 (Tex.Civ.App.—San Antonio 1973, no writ) (waived by urging a motion to dismiss prior to disposition of defendant’s plea of privilege); Olympic Trampolines Inc. v. Bashaw, 462 S.W.2d 345 (Tex.Civ. App.—Houston [14th Dist.] 1970, no writ) (waived by filing a motion to strike plaintiff’s “Motion for Suggestion”); Mooney Aircraft Inc. v. Adams, 377, S.W.2d 123 (Tex.Civ.App.—Dallas 1964, no writ) (waived by filing a motion to consolidate).

We hold that the appellant waived his plea of privilege. The judgment is, therefore, affirmed.


author: CADENA, Chief Justice.

text:
    Horace W. HILL, Appellant, v. FLOATING DECKS OF AMERICA, INC., d/b/a Floating Decks of Texas, Appellee.
    No. 16162.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 17, 1979.

      John D. Wennermark, John W. Primomo, Rizik & Wennermark, San Antonio, for appellant.
    Mallory L. Miller, Jr., San Antonio, for appellee.
   OPINION

CADENA, Chief Justice.

This is a suit on a sworn account under Rule 185 of Texas Rules of Civil Procedure. Defendant, Horace W. Hill, appeals from a summary judgment in favor of plaintiff, Floating Decks of America, Inc., d/b/a Floating Decks of Texas.

The sole question before us is whether the pleading of defendant is sufficient to put plaintiff on proof of its claim.

Rule 185 provides that where plaintiff’s properly verified pleadings seek recovery on an account, the allegations in plaintiff’s petition shall be taken as true unless defendant files a “written denial, under oath, stating that each and every item is not just or true, or that some specified item or items are not just and true.” Rule 93(k) contains identical language concerning the content of the sworn denial. Compare Tex.R.Civ.P. 185 with Tex.R.Civ.P. 93(k).

The relevant portion of defendant’s answer in this case is as follows:

Defendant would show the Court that each and every item in Plaintiff’s petition which is the foundation of plaintiff’s action is not just or true. (Emphasis added.)

The summary judgment is based partly on the theory that defendant’s answer does not comply with the requirements of the rules because of the insertion, between the words “item” and “is not,” of the words “in Plaintiff’s petition which is the foundation of Plaintiff’s action.” The argument is that the addition of such language, which is not found in the rules, requires that defendant’s pleading be held insufficient.

In Goodman v. Art Reproductions Corporation, 502 S.W.2d 592, 593 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.), the Court said:

Several Courts of Civil Appeals have held that Rule 185 as amended must be strictly followed, that the “failure to file such an answer is fatal,” and that the courts “have been extremely exacting in the nature of the language used in sworn denials of verified accounts.”

Such a statement is undoubtedly true, and, perhaps surprisingly, our intermediate appellate courts have experienced no difficulty in requiring that the denial be “in the language stated in Rule 185,” while proclaiming that the rule requires “no particular form of affidavit.” McDonald v. Newlywed's, Inc., 483 S.W.2d 334, 337 (Tex.Civ. App.—Texarkana 1972, writ ref’d n. r. e.); Duncan v. Butterowe, Inc., 474 S.W.2d 619, 620 (Tex.Civ.App.—Houston [14th Dist.] 1971, no writ).

The decisions which insist on a word-for-word parroting of the statutory language lead to results which can be explained only by adopting a principle which ignores what is said and concentrates solely on how it is said. There is no other explanation for the holdings, such as in Sigler v. Frost Brothers, Inc., 555 S.W.2d 813, 816 (Tex.Civ.App.—El Paso 1977, no writ), that a defendant who wishes to challenge only a portion of the account falls fatally short of his goal if he swears that the specified items “are not just or true,” because the rules require that a partial denial state that the specified items “are not just and true.” Except for the cavalier insistence on a literal repetition of the formula embodied in the rules, no defensible argument can be presented in support of such holdings.

A valiant attempt to justify the Sigler result was made in Oliver Bass Lumber Company, Inc. v. Kay and Harris Butane Gas Company, Inc., 524 S.W.2d 600, 603 (Tex.Civ.App.—Tyler 1975, no writ), where the Court sought to support its holding by analyzing the language of the rules. The argument may be summarized as follows: (1) ordinarily, “and” and “or” are not interchangeable, i. e., “and” is conjunctive, meaning “also” and “in addition to,” while “or” is disjunctive; (2) the words “just” and “true,” while sometimes synonymous, may have different meanings, i. e., “just” can mean “fair,” and “true" can mean “correct”; (3) unless we assume that the drafters of the rules used two words with identical meaning side by side, it is clear that the intention was to require that a defendant challenging only a portion of the account deny both the “justness” and the “truth” of the specified items. Apparently, the court did not notice that the draftsmen, in specifying the form of a challenge to every item in the account, engaged in redundancy by using the word “each” and the word “every” side by side.

The Oliver Bass rationale is intriguing because it not only fails to support the holding in the case, but rather compels the contrary conclusion that a partial challenge asserting that specified items are not just or true unequivocally meets the requirement that the partial challenge deny both the justness and the truth of the specified items. A statement that the specified items are not just and true does not unequivocally assert the absence of both justness and truth.

Another failure of a court to give effect to the plain meaning of the language used is found in Duncan v. Butterowe, Inc., supra, where defendant denied that the verified account “is just or true, in whole or in part.” 474 S.W.2d at 620. Since the pleading did not specify any particular items challenged by defendant, the court correctly held that the plea was not effective as a partial denial. But the conclusion that the plea was insufficient as a challenge of “each and every item” cannot be defended. It can be, perhaps, reasonably argued that-a denial that an account is just or true .“in whole” does not preclude the possibility that some of the individual items are true and just. But no such contention can be seriously advanced when defendant denies that the account is just or true “in whole or in part.”

The insistence on a verbatim repetition of the incantation provided for in the rules would necessarily lead to a holding that a sworn pleading stating, “Each item is unjust and untrue,” is insufficient to permit defendant to question any part of the account because the plea omits the phrase “and every” and uses words not found in the rule. Certainly, a defendant who merely swore that he owed nothing because he had paid the account in full would meet with the same fate.

In the absence of a controlling decision by the Supreme Court of Texas requiring that we adopt a rule leading to such strange results, we choose to emphasize what the pleading asserts rather than the manner in which the assertion is made. Fortunately, there is authority supporting this approach and rejecting the technical insistence on form, which was the hallmark of the old common law courts when dealing with the common law forms of action. In J. E. Earnest & Co. v. Word, 137 Tex. 16, 18, 152 S.W.2d 325, 326 (1941), defendant’s plea was held sufficient although it denied the “correctness” of the account rather than its justness or truth.

In Dollie Adams Oil Corp. v. Roberts, 259 S.W.2d 311, 312 (Tex.Civ.App.— Amarillo 1953, no writ), the verified answer stated that the account “is wholly not just and true and that it [defendant] owes nothing . , in that all accounts due the plaintiff by the defendant, have been paid in full.” At the time of this decision, Rule 185 provided that the denial state that the “account is not just or true, in whole or in part . . . .” Tex.R.Civ.P. 185 (1941). Although the pleading used the word “wholly” instead of the phrase “in whole”; omitted the phrase “or in part”; used the conjunctive “just and true,” instead of “just or true”; and contained language alleging payment of the account which stated that defendant owed nothing, the court in Roberts held the plea sufficient. 259 S.W.2d at 312. Necessarily, the Amarillo court was of the opinion that neither the deviant language nor the addition of words not found in the rule rendered the plea ineffective. Id. at 312.

After the present wording of Rule 185 was adopted by amendment in 1971 to provide that a denial of the entire claim state that “each and every item is not just or true,” the Waco Court of Civil Appeals held sufficient a denial which stated: “The claim alleged in Plaintiff’s petition which is the foundation of Plaintiff’s action is wholly not just or true.” Cal-Tex Processors v. Frozen Food Express, 530 S.W.2d 143, 144 (Tex.Civ.App.—Waco 1975, writ ref’d n. r. e.). The explanation for the holding was the simple statement that the pleading “unequivocally and unambiguously states in effect ‘that each and every item is not just or true’.” 530 S.W.2d at 145. The use of language referring to the “claim in Plaintiff’s original petition which is the foundation of Plaintiff’s cause of action,” although a departure from the formula embodied in the rules, did not blind judicial sight to the plain meaning of the allegation.

Plaintiff argues that Cal-Tex is not controlling here because defendant’s plea in the instant case referred to “each and every item in Plaintiff’s petition,” while in Cal-Tex the answer referred to the “claim” in plaintiff’s petition. It is not easy to understand how substitution of the word “claim” for the language “each and every item,” which is found in the rules, is a more literal compliance with the provisions of the rules than the actual use of “each and every item.” If we eliminate the reference to plaintiff’s petition, the plea in Cal-Tex would state that “the claim is wholly not just or true,” while in the case at bar defendant asserted, “each and every item is not just or true.” See Cal-Tex Processors v. Frozen Food Express, 530 S.W.2d 143, 144 (Tex.Civ.App.—Waco 1975, writ ref’d n. r. e.). Except for the reference to plaintiff’s petition, defendant’s plea in this case is a haec verba repetition of the statutory formula. The same cannot be said of the plea in Cal-Tex.

The reference to “each and every item” in plaintiff’s petition is clearly a challenge of “each and every item” of the account. The itemized and verified account attached to plaintiff’s petition is clearly a part of the petition. Additionally, plaintiff’s pleading alleges the sale and delivery “to Defendant” of “the goods, wares, merchandise and labor and services (hereafter referred to as ‘items’) described in the itemized and verified account attached.” There can be no doubt that a reference to each and every “item” in plaintiff’s petition is, according to plaintiff’s pleading and definition, a reference to the “items” which make up the attached verified account. At the very least, defendant’s pleading unambiguously stated that each and every one of those “items” was not just or true. No more is required. See 2 R. McDonald, Texas Civil Practice § 7.31(f), at 240 (rev. 1970).

Plaintiff next argues that summary judgment was proper on the pleadings because defendant’s denial was not properly verified as required by Rule 185 and Rule 93(k).

The verification is as follows:

Before me, the undersigned authority, on this day personally appeared Horace W. Hill, known to me to be the person whose name is subscribed hereto, who, being by me first duly sworn, on his oath stated that all matters and allegations set out herein are true and correct.

This is followed by the signature of defendant and the certificate of the notary.

Plaintiff first contends that the affidavit is insufficient because it does not assert that the affiant has personal knowledge of the facts to which he purports to swear.

It is well settled that affidavits in support of, or in opposition to a motion for summary judgment must state that they are made on personal knowledge. However, such decisions are based on judicial interpretation of Rule 166-A(e), which requires that the affidavit be made on personal knowledge, set forth such facts as would be admissible in evidence, and “show affirmatively that the affiant is competent to testify to the matters stated therein.” In Youngstown Sheet and Tube Company v. Penn, 363 S.W.2d 230, 233 (Tex.1962), the holding that the affidavits must contain such recital was immediately preceded by a reference to the provisions of Rule 166— A(e). Although the statement in Youngstown that “hearsay may not be made the basis of a summary judgment, and the trial judge should not be required to speculate as to whether the affiant could establish the facts stated in his affidavit if he were testifying from the witness stand,” would indicate that the recital of personal knowledge was required only in the affidavit of the movant for summary judgment, 363 S.W.2d at 233; the provisions on which the decision was based are applicable to all affidavits in summary judgment proceedings, since the provisions prescribing the contents of the affidavits are not limited to those filed in support of the motion. See 4 R. McDonald, Texas Civil Practice § 17.26.5, at 144 (rev. 1971).

Rule 185 contains no language applicable to all affidavits, such as that found in Rule 166 — A. Rule 185 requires that the affidavit of the plaintiff seeking to recover on an account state that the claim “is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed . . . .” Tex.R.Civ.P. 185. The portion of the rule applicable to defendant’s pleading contains no such language concerning the contents of defendant’s affidavit. The only provision relating to the content of the opposing sworn denial is that it state “each and every item is not just or true, or that some specified item or items are not just and true.”

Although plaintiff insists that the provisions concerning plaintiff’s affidavit must be made applicable to defendant’s pleading, it is clear that plaintiff’s position is limited to the statement, required to be included in plaintiff’s affidavit, concerning the personal knowledge of the affiant. The other requirements applicable to plaintiff’s pleadings cannot be made applicable to defendant’s sworn denial. There is no basis for such selective incorporation of one portion of the rules expressly made applicable to plaintiff into that portion of the rule prescribing the contents of defendant’s pleading. The rule clearly contains two sets of provisions, one applicable to plaintiff and one applicable to defendant.

Plaintiff calls our attention to Edinburg Meat Products Company v. Vernon Company, 535 S.W.2d 432, 436-37 (Tex.Civ.App.— Corpus Christi 1976, no writ), where the court, without citation of supporting authority, ruled that affidavits signed by defendant’s agent and by his attorney did not meet the requirements of Rule 185 because of the absence of a statement of the affi-ant’s personal knowledge.

We recognize that there may be instances in which the facts which are made the subject matter of the affidavit may be peculiarly within the knowledge of the client. In such cases it is reasonable to require that the attorney or agent making the affidavit state that he has personal knowledge of the facts. But no such requirement should be imposed, in the absence of a statute requiring a recital of-personal knowledge, where the facts are of such a nature that they may be reasonably considered to be within the personal knowledge of the affiant, whether the affiant be the party to the suit or his attorney or agent. Doll v. Mundine, 84 Tex. 315, 318, 19 S.W. 394, 395 (1892).

There are at least two decisions by intermediate appellate courts holding, contrary to Edinburg Meat Products, that a Rule 185 denial need not be supported by an affidavit reciting personal knowledge of the affiant. Dunlop Tire & Rubber Corp. v. Slack, 276 S.W.2d 400, 401 (Tex.Civ.App.—Fort Worth 1955, no writ); Tucker v. Neal Oil Corp. 255 S.W.2d 302, 303 (Tex.Civ.App.—Galveston 1953, no writ). Both of these decisions were completely ignored by the court in Edinburg Meat Products, although Tucker also involved an affidavit signed by an agent of the party.

Decisions holding that the recital of personal knowledge is not required are also found in cases dealing with the sufficiency of an affidavit controverting a plea of privilege. See Nunneley v. Weiler, 244 S.W.2d 707, 709 (Tex.Civ.App.—Fort Worth 1951, no writ).

Cases, such as King v. United Distributing of Texas, Inc., 463 S.W.2d 456, 457 (Tex.Civ.App.—Dallas 1971, no writ), where the affidavit recites that it is made on the basis of information and belief, are, of course, not applicable where, as in the case before us, the affidavit contains no such recital.

Rule 14, which provides that whenever it is proper or necessary for a party in a civil suit to make an affidavit, the.affidavit may be made by the party, his agent or his attorney, is not pertinent. The rule merely described the persons by whom the affidavit may be made. See Tex.R.Civ.P. 14. It contains no provisions relating to the contents of the affidavit. The holding by the Supreme Court of Texas in Doll v. Mundine, supra, that a recital of personal knowledge is not required unless such recital is required by statute, was made in that ease because the applicable statute contained language substantially similar to that found in Rule 14.

In this case plaintiff’s petition alleges that: (1) the items described in the verified account were sold and delivered to defendant; (2) plaintiff demanded payment of defendant; (3) defendant refused to pay. The record thus establishes that all transactions were between plaintiff and defendant, a private individual. The affidavit is signed by the defendant, and the record furnishes no basis for speculation concerning the personal knowledge of such affiant. In fact, the record conclusively establishes that the affiant had personal knowledge of the facts. The oath is positive and unambiguous and there can be no doubt that it would support a prosecution for perjury.

Plaintiff next argues that, in any event, the affidavit is fatally defective because defendant has not sworn to anything. This argument is based on the fact that the affidavit recites that defendant stated that all matters and allegations “set out herein are true and correct.” Plaintiff insists that there are no matters and allegations set out in the affidavit and that, therefore, the affidavit “verifies nothing.”

Plaintiff’s argument assumes that the affidavit consists only of the jurat. In fact, the jurat is but a part of the affidavit, and is merely evidence of the fact that the affidavit was made before a duly authorized officer. Stated differently, the jurat is merely a certificate by a competent officer that the writing was sworn to by the person who signed it. Murphy v. State, 132 Tex. Cr.R. 202, 103 S.W.2d 765, 766 (1937).

An affidavit is a statement in writing “of facts signed by the party making it, and sworn to before some officer authorized to administer oaths, and officially certified to by such officer under his seal of office.” Tex.Rev.Civ.Stat.Ann. art. 23 (Vernon 1969). The statement of the facts being sworn to is necessarily an essential part of an affidavit. Since the jurat is but part of an affidavit, the word “herein” refers to the entire affidavit, including the statement of facts. The certification or jurat will not be interpreted to mean that affiant swore to something other than the instrument to which the jurat is attached. See Matagorda Canal Co. v. Markham Irr. Co., 154 S.W. 1176 (Tex.Civ.App.—Galveston 1913, no writ).

In addition to the Rule 185 denial, defendant’s answer contained a statement that the contract on which plaintiff’s cause of action is based was not executed by him or by his authority. We do not regard this plea as inconsistent with the Rule 185 denial. It cannot be said that an account based on a forgery is true or just. The presence of such plea does not prevent defendant’s verification from being positive and unequivocal. Cf. Golub v. Nelson, 441 S.W.2d 220, 221 (Tex.Civ.App.—Houston [14th Dist.] 1969, no writ).

The judgment of the trial court is reversed and the cause is remanded for further proceedings.

      . The incorrect conclusion in Oliver Bass results from a failure to recognize the difference between affirmative and negative statements. To say that an item is just and true clearly asserts that the item is both just and also true. The statement that an item is not just and true unequivocally asserts only that the item does not possess both characteristics. Such negative statement is correct if the item possesses only one of the characteristics, or if it possesses neither of the two characteristics. Therefore, it does not unambiguously assert the lack of justness and, in addition, the lack of truth.
      A statement that an item is just or true categorically asserts that the item possesses at least one of the characteristics. In the absence of the phrase, “but not both,” or language of similar import, such statement is not an unequivocal assertion that only one of the attributes is present, unless the attributes are mutually exclusive. A statement that an item is not just or true unambiguously asserts the absence of both justness and truth, and, therefore, denies both the justness and the truth of the specified item.
      The fact that the rules state a challenge of the entire account should assert that each and every item is not just or true, while a challenge limited to particular items must allege that the specified items are not just and true presents some interesting problems if we accept the Oliver Bass approach, which stresses that “and” and “or” are not interchangeable, and that “just” and “true” are not used in the rule as synonyms.

      . At the time Word was decided, actions on sworn accounts were governed by the statutory forerunner of Rule 185. The statute provided that defendant’s plea state “that such account is not just or true, in whole or in part, and if in part only, stating the items and particulars which are unjust.” Tex.Rev.Civ.Stat.Ann. art. 3736 (1931). Although this differs from the present language of Rule 185, there is nothing in the present provisions of the rule which supports the conclusion that the exact language of the formula must be used. It is interesting to note that Article 3736, while requiring that the plea state that the account “is not just or true, in whole or in part,” required that a partial denial point out only “the item or items which are unjust.” Apparently, the legislature believed that a statement that an item is “unjust” is equivalent to a statement it is “not just or true.”


author: KLINGEMAN, Justice.

text:
    BROWNING-FERRIS, INC., Appellant, v. The CITY OF LEON VALLEY et al., Appellees.
    No. 16192.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 17, 1979.
    Rehearing Denied Nov. 14, 1979.

      George J. Carson, Morrison, Dittmar, Dahlgren & Kaine, San Antonio, for appellant.
    Harvey L. Hardy, San Antonio, for appel-lees.
   OPINION

KLINGEMAN, Justice.

This case involves the question of whether certain ordinances of the City of Leon Valley and contracts entered into pursuant thereto granting Sanitas Waste Disposal of San Antonio, Inc., d/b/a Industrial Disposal Service [Sanitas] an exclusive franchise for garbage collection without competitive bids are null and void. Appellant Browning-Ferris, Inc., brought suit seeking a declaration that these ordinances and contracts are unconstitutional, null and void, and also sought injunctive relief and damages. San-itas filed a petition in intervention but subsequently took a non-suit. Both appellant and appellee filed motions for summary judgment. The trial court denied appellant’s motion and granted appellees' motion, ordering that appellant take nothing in its suit.

The City of Leon Valley "is a municipal corporation organized and deriving its powers from the general laws of the State of Texas. Browning-Ferris, Inc., is a corporation in the business of collection, removal and disposal of commercial, industrial and residential solid waste. Appellant, at the time of enactment of said ordinances and awarding of the exclusive franchise and contract here involved, was collecting solid waste material within the City of Leon Valley pursuant to contracts with its customers.

A chronological summary of the pertinent ordinances here involved is as follows:

September 17,1974 — Leon Valley, after receiving competitive bids, granted an exclusive franchise for garbage collection except for container service to Hill Country Disposal, Inc., by Ordinance 579.
August 25, 1975 — When Hill Country was unable to perform the contract Ordinance 621 was enacted, without competitive bids, granting an exclusive franchise to Sanitas for all garbage collection within the city limits, except for container service.
September 6, 1977 — Ordinance 714 was enacted, without competitive bids, to amend Ordinance 621, granting Sanitas the sole authority and exclusive franchise to provide ail collection service, including commercial container service.

The franchises granted are for limited terms: Ordinance No. 621 from September 1, 1975, to September 30, 1977, and Ordinance No. 714 from October 1, 1977, through September 30, 1979.

Appellant by three points of error asserts that the trial court erred in granting appel-lee’s motion for summary judgment and in denying its motion for summary judgment because, as a matter of law, (1) a municipal corporation is prohibited from granting an exclusive franchise and contract to a private corporation for the collection, hauling and disposal of all solid waste material within the city; (2) -a municipal corporation cannot award a contract for the collection, hauling and disposal of solid waste material on behalf of the city to a private corporation without competitive bids; and (3) a municipal corporation cannot by contract barter away its governmental powers.

Applicable constitutional and statutory provisions relied upon by appellant may be summarized as follows:

(1) Tex.Const. art. I, § 17: “. . . no irrevocable or uncontrollable grant of special privileges or immunities, shall be made; . . .”;
(2) Tex.Const. art. I, § 26: “Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed . . . .”;
(3) Article 2368a section 2 states, in effect, that no county or city shall make any contract calling for or requiring the expenditure of payment of $3,000 or more without competitive bids, with certain exceptions hereinafter discussed Tex.Rev. Civ.Stat.Ann. art. 2368a § 2 (Vernon’s Supp. 1978-79);
(4) Another pertinent statute is “County Solid' Waste Control Act” Tex.Rev.Civ. Stat.Ann. art. 4477-8 (Vernon’s 1976). This Act applies to both cities and counties as seen from the definitions of “city” and “public agency” contained in Section 3(d) and (e).
Section 13 of this article states that any public agency or any county may offer solid waste disposal service to persons within its boundaries and may require the use of such services for any or all persons. Section 4 authorizes “operating agreements” with any person to carry out such disposal.

Appellant, in support of its Points of Error Nos. One and Three relies on the constitutional provisions above referred to, and on two early Texas Supreme Court decisions, City of Brenham v. Brenham Water Co., 67 Tex. 542, 4 S.W. 143 (1887), and Ennis Water Works v. City of Ennis, 105 Tex. 63, 144 S.W. 930 (1912). These cases both involve a city’s attempt to grant to an individual an exclusive franchise indefinitely or for a long period of time to sell to its inhabitants an essential commodity, such as water. The court struck down these ordinances as illegal and void condemning them as monopolies and perpetu-ities repugnant to Article I, Sections 17 and 26, of the Texas Constitution. The power thus sought to be exercised by the city was held to be legislative in character. 4 S.W. at 152.

These cases are discussed and distinguished in a later Commission of Appeals decision, City of San Antonio v. San Antonio Irrigation Co., 118 Tex. 154, 12 S.W.2d 546 (Tex.Comm’n App.1929, opinion adopted). That case involved an exclusive franchise between the City of San Antonio and an individual for a term of 99 years covering sewage of the City of San Antonio and the disposal thereof. The court in reply to the certified question “Did the members of the city council of the city of San Antonio, in office at the time the contract in question was entered into, have the power, under the Constitution and laws of the state, and under the provisions of the city charter, to enter into said contract so as to bind their successors in office thereto during the period stipulated in said contract, to wit, 99 years?”, answered in the affirmative.

McQuillin on Municipal Corporations states:

Generally a municipal corporation can contract with one or more persons or corporations for the collection and removal of waste matters, garbage, filth, trash, refuse, carcasses, and offal. It may grant an exclusive privilege to a contractor or licensee to make such collection and removal for a specified period.
In any event, it is within municipal legislative competency to decide to have the service performed under a contract. Accordingly, an exclusive contract for the removal of these substances constitutes a proper exercise of the police power.
The common law doctrine that monopolies are odious and therefore illegal refers to franchises and agreements in restraint of trade, and has no application to police regulations designed to promote the health or morality of the public, and, hence, it has no application to an exclusive contract for the removal of waste products such as garbage, refuse, decaying carcasses, and similar waste matters,

7 E. McQuillin, Municipal Corporations § 24.251 at 96-98 (3rd ed. 1968).

40 Tex.Jur.2d, Rev., Part 1, Municipal Corporations § 409 (1976) states:

It is within the police power of a city to pass ordinances and adopt regulations governing the removal of garbage, . (p. 166)
The Council may enter into contracts relating to the disposal of garbage . (p. 167)
The constitutional provision prohibiting the creation of perpetuities and monopolies is not violated by an ordinance giving a particular person the exclusive right to haul garbage, (p. 168)

In the City of Wichita Falls v. Kemp Hotel Operating Co., 162 S.W.2d 150 (Tex.Civ. App.—Fort Worth) affirmed, Kemp Hotel Operating Co. v. City of Wichita Falls, 141 Tex. 90, 170 S.W.2d 217 (1943), the court held:

The City, acting through its Board of Aldermen, had the right — indeed it was its imperative duty — to provide some means of accomplishing the end sought. It could have provided for gathering garbage by means of its own employees supplied with proper equipment. We also hold that it could, with equal propriety, and authority, employ an individual or corporation to perform the necessary functions in carrying out the plan.

162 S.W.2d at 153. See also, Town of Ascarate v. Villalobos, 148 Tex. 254, 223 S.W.2d 945 (1949); Ex Parte London, 73 Tex.Crim. 208, 163 S.W. 968 (1915); and City of Breckenridge v. McMullen, 258 S.W. 1099 (Tex. Civ.App.—Fort Worth 1923, no writ).

In Gardner v. The City of Dallas, 81 F.2d 425, (5th Cir. 1936), cert. denied, 298 U.S. 668, 56 S.Ct. 834, 80 L.Ed. 1391, it was held that a contract by the City of Dallas granting an individual an exclusive garbage disposal contract for a period of 15 years was a valid exercise of the police power and not objectionable as a perpetuity, nor repugnant to anti-monopolistic provisions of the Texas Constitution, Tex.Const. art. I, §§ 17, 26. In that case, the court had before it the same contentions made by appellants in this suit. In rejecting such contentions, the court stated:

Where, as in Texas, the disposal of garbage is regarded as a corporate function, exclusive contracts for the disposal thereof over a fixed period of years, as well as ordinances having the same purposes, are sustained by the overwhelming weight of authority as a lawful exercise, not an abdication, of the police power. The principle has been specially sustained in Texas as with respect to sewage, in San Antonio v. Irrigation Company, 118 Tex. 154, 12 S.W.2d 546, 549, which in principle is not distinguishable from the case at bar.

Id. at 426.

The Court further said

This is not a case, such as Brenham v. Brenham Water Co., 67 Tex. 542, 4 S.W. 143, 153, or Ennis Water Works v. Ennis, 105 Tex. 63, 144 S.W.2d 930, and others cited by appellee involving a city’s attempt to grant to an individual an exclusive franchise, indefinitely or for a long period of time, to seil to its inhabitants an innocuous and essential commodity, such as water, and which was condemned as a monopoly and perpetuity, and repugnant to article I, §§ 17 and 26, Constitution of Texas. The power thus sought to be exercised by the city was held to be legislative in character.

Id. at 428.

The Fifth Circuit court also overruled a contention, similar to the one made here by appellants in its third point of error, that a municipal corporation cannot by contract barter away its governmental power, again citing City of San Antonio v. San Antonio Irrigation Co., supra, wherein that court stated:

Sound discretion, then, was lodged in the city’s councilmen to determine what means should be employed for disposal of sewage and safeguarding of health in that regard. That discretion was not bargained; it was used in making the contract.

12 S.W.2d at 549.

Here, the City of Leon Valley did not barter away its governmental power by approving this contract. A careful reading of the contract shows numerous safeguards and restrictions requiring supervision by the city. In the City of Wichita Falls v. Kemp Hotel Operating Co., supra, the court said: “We are not concerned with whether or not the contract was a provident one; it evidently was one which the City thought proper. The whole contract is replete with reservations of supervision of the work by the City through the facilities of its health department.” 162 S.W.2d at 154.

Appellant’s only remaining point of error is its second point of error in which it asserts that, as a matter of law, a municipal corporation cannot award a contract for the collection, hauling, and disposal of solid waste material on behalf of the City to a private corporation without competitive bids.

In support of this point of error, it relies on the provisions of Article 2368a, Section 2, the pertinent parts of which read as follows:

No county, acting through its Commissioners Court, and no city in this state shall hereafter make any contract calling for or requiring the expenditure of payment of Three Thousand Dollars ($3,000.00) or more out of any fund or funds of any city or county or subdivision of any county creating or imposing an obligation or liability of any nature or character upon such county or any subdivision of such county, or upon such city, without first submitting such proposed contract to competitive bids. * * * Provided, that in case of public calamity, where it becomes necessary to act at once to appropriate money to relieve the necessity of the citizens, or to preserve the property of such county, subdivision, or city, or when it is necessary to preserve or protect the public health of the citizens of such county or city . . . the provisions hereof requiring competitive bids shall not apply . . . (Emphasis added.)

Tex.Rev.Civ.Stat.Ann. art. 2368a § 2 (Vernon’s Supp. 1978-1979).

Appellant cites no cases in support of its second point of error. The only Texas case we have found passing directly on the point is Hoffman v. City of Mount Pleasant, 126 Tex. 632, 89 S.W.2d 193 (1936). The article there under construction was a predecessor statute to the article involved here. However, the applicable provisions are basically similar and the exclusion provision as to public health is identical. In construing the identical provision of Article 2368a § 2, the Commission of Appeals, in an opinion adopted by the Supreme Court of Texas, held that a county could validly expend funds to protect the public health without the necessity of requiring competitive bids otherwise required by that article and that the public health exception to the competitive bid requirement was operative at all times whether or not there was a “case of public calamity.” The Court stated:

The matter is one purely of statutory construction. After careful consideration of the whole act as well as the peculiar language of the exception, in light of the rules usually applicable when statutes concerning public health are involved, we have reached the conclusion that the use of the word ‘when’ clearly indicates the introduction of a new condition and exception not dependent upon a ‘public calamity,’ and that the requirement of competitive bids with publication of notice of letting the contract is dispensed with when such exception exists. In other words, we are of the opinion that, ‘when it is necessary to preserve or protect the public health of the citizens of a county or city,’ a condition requiring prompt and unrestrained action in order to remedy such a situation exists, regardless of whether such condition has been brought about by a public calamity or in some other way. The words ‘preserve’ and ‘protect,’ as applied to public health, carry the idea of timely, efficient, and effective action which keeps intact and unimpaired the good health of the citizens in advance of its impairment.

Id. at 194.

After a careful consideration of the entire record and the applicable authorities, we have concluded that all of appellant’s points of error should be overruled. The judgment of the trial court is affirmed.

      . Both appellant and appellee refer to garbage and solid waste material in the same context and use the terms interchangeably, and we will do so in this opinion.


author: MILLER, Justice.

text:
    ALLRIGHT, INC., Appellant, v. Talmage M. GUY, Appellee.
    No. A2162.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 17, 1979.
    Rehearing Denied Nov. 7, 1979.
    George M. Bishop, Houston, for appellant.
    W. Richard Ellis, III, Ramsey & Murray, Houston, for appellee.

      Before BROWN, C. J., and MILLER and PRESSLER, JJ.
   MILLER, Justice.

This is a bailment case brought about by the fact that Talmage M. Guy’s automobile was stolen from an Allright Inc. parking lot. Appellee, Guy, filed suit in a county civil court at law of Harris County, claiming in his original petition three times his actual damages of $1,807.51, for a total of $5,422.53. The suit was brought under the provisions of the Texas Deceptive Trade Practices — Consumer Protection Act. Alternatively he alleged breach of bailment contract damages of $1807.51 in his original petition. We reverse and dismiss for want of jurisdiction.

In his second amended original petition, filed after the trial court overruled appellant’s motion to dismiss for want of jurisdiction, appellee alleged damages of $1855.25 and pled for alternate recoveries of either three times this amount plus reasonable attorney’s fees, “so as not to exceed the jurisdictional limits of (the) court” or the sum of $1855.25 by reason of the breach of the bailment contract.

In his point of error number one, appellant contends that the county court at law had no jurisdiction to hear the case because appellee’s original petition asserted an amount of actual damages, $1,807.51, which when tripled exceeds the $5,000.00 maximum statutory jurisdiction of the court. Tex.Rev.Civ.Stat.Ann. art. 1970a (Vernon Supp. 1978-1979). We agree.

It is a settled rule of law in this state that the good faith allegations of the petition are determinative of whether the cause of action is justiciable by the court whose jurisdiction is sought to be invoked. Brannon v. Pacific Employers Ins. Co., 148 Tex. 289, 224 S.W.2d 466, 469 (1949).

In Woods v. Littleton, 554 S.W.2d 662 (Tex.Sup.1977) our Supreme Court laid down the rule that in Deceptive Trade Practices Act cases “the consumer who proves all the elements required to recover actual monetary damages shall recover three times the actual monetary damages and, supported by adequate proof, reasonable attorneys’ fees and court costs.” 554 S.W.2d at page 669. (Emphasis added.) “Considering the structure of the statute as a whole and its declared purpose, it is clear the award of treble damages is made mandatory.” Id. at page 671. Therefore, neither the court nor the plaintiff may waive the right to treble damages in order to preserve the jurisdiction of the court. Alfred v. Earl Hayes Rents Cars & Trucks, 390 S.W.2d 839 (Tex.Civ.App.—San Antonio 1965, no writ).

Appellee urges that the recent Supreme Court decision in the case of Flynt v. Garcia, 587 S.W.2d 109 (Tex.1979), stands for the proposition that when he pleaded, as an alternative to the violation of the Consumer Protection Act, a breach of bailment contract loss of $1,807.51, the county court at law obtained jurisdiction of any and all alternative theories of recovery and had the power to enter judgment for any amount that flowed as a natural result therefrom.

Appellee’s argument misses the mark. Flynt v. Garcia holds that if the original amount sued for is within the jurisdictional limits of the court, subsequent amendments seeking only additional damages that accrued because of passage of time do not defeat the court’s jurisdiction. To hold that any alternative theory of recovery that is within the statutory monetary limits supports a court’s jurisdiction of claims that are outside of such limits would destroy the statutory limitations. Thus, for example, if a county court at law had a case in which one claim was for damages of $4,500.00, and an alternative claim of $450,000.00 was asserted, the court would have jurisdiction of both claims. Such a result is untenable.

Inasmuch as we hold that the trial court had no jurisdiction, its judgment must be reversed and the case dismissed. We, therefore, do not reach appellant’s other points of error.

Since the county court at law was without jurisdiction in this case, appellee may, of course, refile in the proper court within sixty days of the date that this decision becomes final. Tex.Rev.Civ.Stat.Ann. art. 5539a (Vernon 1958),

Judgment reversed and cause dismissed for want of jurisdiction in the trial court.