author: FONES, Justice.

text:
    STATE of Tennessee, Petitioner, v. Jo Ann LITTLE, and Cheryl Szeigis, Respondents.
    Supreme Court of Tennessee.
    Jan. 3, 1978.

      Brooks McLemore, Jr., Atty. Gen., William W. Hunt, III, Asst. Atty. Gen., Thomas H. Shriver, Dist. Atty. Gen., Edward M. Yarbrough, Asst. Dist. Atty. Gen., Nashville, for petitioner.
    Dale Quillen, Richardson R. Lynn, Nashville, for respondent Little.
    William C. Wilson, Richardson R. Lynn, Nashville, for respondent Szeigis.
   OPINION

FONES, Justice.

The State appeals from a decision of the Court of Criminal Appeals reversing and dismissing two (2) convictions for possession of a controlled substance (heroin) for the purpose of resale.

The appellate court held that (1) the trial court erred in not excluding evidence obtained pursuant to a search warrant issued upon the affidavit of a police officer who knowingly made false representations of material facts necessary to obtain the warrant, and that (2) there was insufficient evidence to connect defendant Szeigis to the heroin seized because the State did not prove that Szeigis was more than a casual visitor in the premises searched.

We affirm the decision that the evidence should have been excluded; our affirmance on this ground pretermits the other questions raised by defendants.

On the morning of March 8, 1973, Lt. Richard Ordway of the Metro Police Vice Squad executed an affidavit and appeared before a magistrate seeking a search warrant to search the residence of defendant Little. The pertinent part of the affidavit reads as follows:

“Your affiant (recieved [sic] information from) a reliable informant who is an adult citizen of Nashville, Davidson County, Tennessee. Said informant was in the above described location on this date, 3/8/73, and did see Jo Ann Little in possession of a large quantity of narcotics. Said informant knows and can recognize narcotics as such. Said informant has supplied the affiant with information concerning narcotics in the past and at all times said informants information has been correct. There are two cases awaiting the courts as a result of information supplied to the affiant from said informant. The name of said informant was supplied to the judge issuing this search warrant.”

A hearing on a motion to suppress was held prior to trial, and Lt. Ordway admitted that a number of averments in the affidavit were false, to wit, that the informant had never supplied Lt. Ordway with information in the past, that there were no cases awaiting trial as a result of information supplied Lt. Ordway by the informant, and that the name of the informant was not supplied to the issuing magistrate.

Jo Ann Little arrived in Nashville from California at approximately 8:00 A.M. on March 8th. Lt. Ordway talked to the informant, either late in the evening of March 7th or in the early morning hours of March 8th. These facts are uncontradicted and it follows that the informant’s alleged statement that he saw Jo Ann Little in possession of narcotics “at the above described location on 3-8-73” (in Nashville) was false.

Lt. Ordwáy testified that he thought that the informant had supplied other policemen with reliable information in the past and that he thought that there were two cases pending as result of this information. His testimony was equivocal and demonstrated that he did not have actual knowledge of the informant’s reliability, and was uncertain with respect to his hearsay information.

The Court of Criminal Appeals held “that the frank admissions of the officer-affiant in the present case constitute sufficient evidence of glaring disregard for the proper procedure to be followed in obtaining a valid search warrant so as to constitute actual fraud in its procurement.”

I

During the oral argument of this case, the Court raised the preliminary question of whether defendants had waived their right to contest the facts on which the warrant was issued by not doing so before the issuing magistrate, as authorized by T.C.A. § 40-514, which reads as follows:

“Contest of facts before magistrate. — If the grounds on which the warrant was issued be controverted, the magistrate must proceed to hear the testimony, which must be reduced to writing, and authenticated in the manner prescribed in § 40-504.”

We note at the outset that this statute does not expressly provide for waiver of the defense for failure to assert it before the magistrate; on its face, the statute merely provides an early opportunity for one searched without probable cause to attack the validity of the warrant; the mandatory provisions of the statute direct themselves only to the magistrate. However, our courts have held, on the authority of both the common law and the statute, that the only forum available to the criminal defendant to challenge the grounds on which the search warrant is issued is that of the issuing magistrate. O’Brien v. State, 205 Tenn. 405, 326 S.W.2d 759 (1959); Solomon v. State, 203 Tenn. 583, 315 S.W.2d 99 (1958); Gallimore v. State, 173 Tenn. 178, 116 S.W.2d 1001 (1938); Reed v. State, 162 Tenn. 643, 39 S.W.2d 749 (1931); Woods v. State, 552 S.W.2d 782 (Tenn.Cr.App.1977); Squires v. State, 525 S.W.2d 686 (Tenn.Cr. App.1975); Anderson v. State, 512 S.W.2d 665 (Tenn.Cr.App.1974); Poole v. State, 4 Tenn.Cr.App. 41, 467 S.W.2d 826 (1971).

The rule has sometimes been stated with the qualifying words “except for fraud or collusion,” but we are unaware of any case wherein the defendant has been allowed to attack the warrant for fraud or collusion. See Solomon v. State, supra; Woods v. State, supra; Poole v. State, supra. In Poole v. State, supra, the Court of Criminal Appeals held that the admission of the affi-ant that he had lied as to the underlying circumstances supporting his informant’s conclusions did not require suppression of the warrant at a hearing to suppress evidence on the basis that the defendant had not gone before the issuing magistrate to contest the grounds on which the warrant was issued. In Woods v. State, supra, the Court of Criminal Appeals stated that it was error for the trial judge to permit a hearing on the question of the veracity of the affidavit on which the warrant was issued without an initial showing by affidavit of fraud.

This Court has not considered the precise question here presented since the passage of T.C.A. § 40-519, in 1965. Because of the uncertainty of the law relative to when a defendant must contest the grounds on which a warrant is issued, we address the question.

We hold that the passage of T.C.A. § 40-519 has abrogated the rule of law that a criminal defendant must contest the grounds on which a search warrant is issued before the magistrate or the right is waived. That statute provides, in pertinent part, as follows:

“Any person aggrieved by an unlawful search and seizure may move the trial court for the county in which the property was seized for the return of the property and to suppress for the use as evidence anything so obtained on the ground that ... (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued. .
⅜ ⅜ ⅝: ⅜ ‡ ⅜
The motion to suppress evidence may also be made in the county where the trial is to be had. The motion may be made before trial or at the trial. Provided, that nothing herein shall be construed as prohibiting or in any way affecting the existing right of any person aggrieved by an unlawful search and seizure to obj'ect to the admissibility of evidence so seized at or during any hearing or trial.”

This statute expressly provides for a contest in the trial court of the grounds on which a warrant is issued.

Thus, while jurisdiction remains with the magistrate, the question may be presented to him as provided in T.C.A. 40-514, but after jurisdiction passes to the trial court, the issue may be presented to it, as authorized by T.C.A. 40-519.

II

Although a valid warrant may be issued where the knowledge of the affiant is based on hearsay, in such cases, due process requires that the affiant must aver the underlying circumstances upon which the informant based his conclusions, and the affiant must state why he has concluded that the informant is credible. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States v. Jenkins, 525 F.2d 819 (6th Cir. 1975); Owens v. State, 217 Tenn. 544, 399 S.W.2d 507 (1965); Woods v. State, 552 S.W.2d 782 (Tenn.Cr.App.1977).

The law is uncertain as to the effect misrepresentations in an affidavit have on the validity of a warrant issued on the strength of that affidavit, the courts being divided over the weight to be given to findings that misrepresentations were negligently or recklessly made, or that such misrepresentations are material or immaterial; but the law is settled that a fraudulent misrepresentation of a material fact will invalidate a search warrant. See United States v. Lee, 540 F.2d 1205 (4th Cir. 1976); United States v. Luna, 525 F.2d 4 (6th Cir. 1975); United States v. Morris, 477 F.2d 657 (5th Cir. 1973); United States v. Harwood, 470 F.2d 322 (10th Cir. 1972); United States v. Upshaw, 448 F.2d 1218 (5th Cir. 1971); United States v. Bowling, 351 F.2d 236 (6th Cir. 1965).

To hold otherwise would effectively destroy the protections against unreasonable searches and seizures. See United States Constitution, Amendments IV, XIV; Tennessee Constitution, Article 1, § 7. It is fundamental that probable cause must be determined by a neutral and detached magistrate before the warrant can issue; otherwise “the act of the magistrate in issuing the warrant would not be based upon any judicial discretion, but upon the discretion of the affiant.” Owens v. State, 217 Tenn. 544, 552, 399 S.W.2d 507, 510 (1965), quoting Elliott v. State, 148 Tenn. 414, 416, 256 S.W. 431 (1923); see Spinelli v. United States, supra; Auguilar v. Texas, supra; Lea v. State, 181 Tenn. 378, 181 S.W.2d 351 (1944); Gallimore v. State, 173 Tenn. 178, 116 S.W.2d 1001 (1938); see also T.C.A. §§ 40-502-40-505.

The State insists that innocent or merely negligent misrepresentations of fact will not justify either delving below the surface of a facially sufficient affidavit or suppressing the evidence obtained; that the misrepresentation must be intentional or grossly reckless.

We are in accord with U. S. v. Luna, supra, that there are two circumstances that authorize the impeachment of an affidavit sufficient on its face, (1) a false statement made with intent to deceive the Court, whether material or immaterial to the issue of probable cause, and (2) a false statement, essential to the establishment of probable cause, recklessly made. Recklessness may be established by showing that a statement was false when made and that affiant did not have reasonable grounds for believing it, at that time.

Lt. Ordway’s admittedly false statement that the informant had supplied him with narcotic information in the past that was at all times correct, was essential to the establishment of probable cause, and we have no difficulty in finding that it was recklessly made. The extent of Lt. Ord-way’s acquaintance and dealings with the informer were obviously matters entirely within his own knowledge. In these circumstances it is unnecessary to find that the officer was guilty of actual fraud in the procurement of the search warrant. He admitted that the statements were false. His deliberate act of making a false affidavit to procure a search warrant, naturally bespeaks an intent to deceive the Court.

In this Court the State insists that defendant’s motion to suppress should have been denied without a hearing for the reason that a facially sufficient affidavit cannot be attacked, absent a preliminary showing by affidavit that the search warrant was fraudulently obtained. In Woods v. State, supra, the Court of Criminal Appeals so held, in dictum, relying on U. S. v. Luna, supra.

The State did not make that contention in the trial court, the hearing was held and the uncontroverted proof is properly in the record before this Court revealing that, in truth, the entire substance of the probable cause elements of the affidavits are false, and the false statements were knowingly made. Faced with a similar factual situation, in U. S. v. Upshaw, the Court said

“Once it came to the attention of the court, from the testimony at the motion to suppress hearing, that evidence had been seized on the basis of statements of facts erroneously made by the affiant which struck at the heart of the affidavit’s showing of probable cause, the court was required to grant the motion. The judicial system cannot be a party to the use of tainted evidence on the basis that, arguably, the defendant was not entitled to bring to the attention of the court what the court has come to know anyhow.” 448 F.2d at 1222

We agree and accordingly affirm the judgment of the Court of Criminal Appeals.

      . It must be noted that in Woods, the trial court found no fraud, and the facts indicate that there was none, so this statement is dictum.

      . In Owens v. State, 217 Tenn. 544, 399 S.W.2d 507 (1965), and State ex rel. Hogue v. Butler, 225 Tenn. 137, 464 S.W.2d 550 (1971), observations touching this issue were pure dicta.


source: Caselaw Access Project

author: COOPER, Justice.

license: Public Domain

text:
    PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Petitioner, v. Ruby Dean FEW, Respondent.
    Supreme Court of Tennessee.
    Jan. 9, 1978.

      Thomas M. Bottoms, Harwell, Bottoms & Plant, Lawrenceburg, for petitioner.
    Wade, Forrester, Hays & Wallace, Pulaski, for respondent.
   OPINION

COOPER, Justice.

We granted certiorari in this case to review a finding by the Court of Appeals that the respondent, Ruby Few, is entitled to benefits under a disability policy issued by the petitioner, Provident Life & Accident Insurance Company.

On September 1, 1968, the petitioner issued an insurance policy to the respondent. The policy provided in part that the petitioner would pay the respondent a monthly benefit of $160.00 if the respondent became totally disabled as the result of accidental injuries. For the purposes of this provision, “total disability” was defined as:

. during the first two years of any period of disability covered hereunder, inability of the Insured to perform the duties of his occupation, and thereafter, during any further period of disability . [the] complete inability of the Insured to engage in any gainful occupation for which he is qualified by training or experience.

After the policy had entered into force, the respondent was involved in two automobile accidents, the first in 1970 and the second in early 1972. On May 4,1972, the respondent left her job as a bookkeeper, complaining that she could no longer work as the result of the pain caused by the injuries she sustained in those accidents. The petitioner paid total disability benefits under the terms of the policy for the period ending January 2, 1973. The respondent filed this action to recover total disability benefits from January 2, 1973, to date. The chancellor found that the respondent “is not totally disabled within the terms of the policy,” and dismissed the action. On appeal, the Court of Appeals concurred in the chancellor’s implicit finding that the respondent was not totally disabled on or after December 17, 1975. However, the court below also found that the evidence established that the respondent was disabled from January 2,1973, until December 17, 1975, and gave judgment to her in the amount of the benefits owed her under the policy for that period, together with interest of eight percent on each payment computed from the date on which it became due. The petitioner has asked that this court reinstate the chancellor’s judgment.

The finding of the two courts below that the respondent was not disabled at any time on or after December 17, 1975, is supported by the testimony of two physicians who examined the respondent at the request of the petitioner, and is not questioned before this court.

The material issue presented is whether the evidence shows that the respondent was disabled within the terms of the policy for the period from January 3, 1973, until December 17, 1975. On this question, the courts below differed. Where the chancellor and the Court of Appeals differ on a finding of fact based in part upon oral testimony, this court reviews the evidence de novo, with a presumption that the determination of the chancellor is correct unless the evidence preponderates against it. Lanius v. Donnell, 222 Tenn. 58, 432 S.W.2d 659 (1968). Applying this standard, we find that the evidence preponderates in favor of the finding of the Court of Appeals that the respondent was totally disabled from January 2, 1973, until December 17, 1975.

The substance of the respondent’s testimony, and that of other lay witnesses, was that the respondent’s condition has shown no improvement since the 1972 accident, and that she was and is totally disabled. The medical evidence of the respondent’s condition during the period from January 2, 1973, until December 17, 1975, consists of the testimony or reports of three doctors. Dr. William Sims, an orthopedic specialist, submitted a report to the petitioner, dated January 2, 1973, in which he indicated that the respondent was totally disabled, and that her disability would continue for an indeterminate period. Dr. Ralph Morrow, a chiropractor, was first consulted by the respondent in May, 1972, soon after her accident, and treated her on numerous occasions thereafter. According to the reports that he submitted to the petitioner and his testimony taken by deposition on October 22, 1975, the respondent was totally disabled throughout this period and showed no immediate prospects for improvement. Dr. John Black, an orthopedic surgeon, examined the respondent on January 21 and August 5, 1975. It was the opinion of Dr. Black that, on the dates of his examinations, the condition of the respondent was such as to “completely [prevent] her from returning to any type of gainful employment.”

There is no credible direct evidence in the record to rebut the testimony of these three doctors that the respondent was totally disabled from some time prior to January 2, 1973, until some time after October 22, 1975. The physicians who, at the request of the petitioner, examined the respondent on December 17,1975, and July 8,1976, respectively, reported that the respondent was not totally disabled. However, their testimony is only evidence of the respondent’s condition on and after the dates of their respective examinations. Neither ventured an opinion as to whether or not the respondent was disabled at any time prior to the date on which he examined her. The petitioner urges that the testimony of the respondent and other lay witnesses to the effect that the respondent suffered from the same degree of disability at the date of trial as at any time after her accident, coupled with the medical testimony that the respondent was not disabled on or after December 17, 1975, implies that the respondent was not disabled prior to that date. Even assuming that such an inference is reasonable, lay testimony, even that of the respondent herself, concerning the respondent’s condition and how that condition has or has not changed is hardly convincing in view of the clear medical evidence to the contrary.

The petitioner also insists that the Court of Appeals erred in allowing the respondent interest of eight percent on the unpaid benefits, in that the award of interest amounts to a penalty. This award is not a penalty. The respondent is entitled to interest at the legal rate on the liquidated obligation of the insurance company. T.C.A. § 47-14-104; T.C.A. § 47-14-107. See Loftis v. Stuyvesant Insurance Company, 54 Tenn.App. 371, 390 S.W.2d 722 (1964). However, the legal rate of interest is six percent on the benefit payments to which the respondent has been found to be entitled, computed from the date on which each became due until the date of judgment. Interest on the judgment remains at eight percent. T.C.A. § 47-14-101.

The judgment of the Court of Appeals, as modified, is affirmed. The costs will be taxed to the petitioner.

HENRY, C. J., BROCK and HARBISON, JJ., and DAUGHTREY, Special J., concur.


author: GALBREATH, Panel Presiding Judge.

text:
    Ricky LATHAM, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 9, 1977.
    Certiorari Denied by Supreme Court Jan. 16, 1978.
    Charles Deas, Maryville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Nashville, Jack E. Seaman, Asst. Atty. Gen., Nashville, H. Kenneth Deatherage, Dist. Atty. Gen., Kingston, John C. Crawford, III, Asst. Dist. Atty. Gen., Maryville, Edward P. Bailey, Jr., Asst. Dist. Atty. Gen., Lenoir City, Charles E. Hawk, Asst. Dist. Atty. Gen., Kingston, for appellee.
   GALBREATH, Panel Presiding Judge.

OPINION

Ricky Latham appeals from his conviction by the Criminal Court of Blount County finding him guilty of selling Lysergic Acid Diethylamide (LSD), a Schedule I controlled substance. He was sentenced to confinement in the State Penitentiary for a period of not less than eight nor more than ten years and ordered to pay a fine of $8,000.

An agent for the Tennessee Bureau of Investigation testified that he purchased 100 tablets of what a State toxicologist testified was LSD on October 25, 1975, while in the company of an informant who introduced him to the appellant and non-appealing co-defendant. The appellant and his co-defendant represented that the tablets were LSD and they divided the purchase money in the undercover agent’s presence. Both defendants offered alibi defenses. There was no other proof. The evidence is legally sufficient to support the verdict of the jury. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

Appellant first assigns as error that the trial court failed to provide his counsel adequate opportunity to argue pre-trial motions filed in advance of trial. Apparently, defense counsel had indicated to the trial judge that there were some pre-trial motions before the Court which were left un-disposed of prior to the impanelling of the jury but failed to have his request heard on the record before the jury was selected, sworn and accepted by both sides. However, the trial court permitted extensive argument on the motions after the jury was selected.

Basically, defense counsel was asking for a continuance in order to find the informant who introduced the undercover agent to the appellant, to have an expert witness of his own choosing analyze the LSD, and to have his other pre-trial motions, previously granted by the Court, complied with.

Continuances address the sound discretion of the trial judge. A manifest abuse of the discretion must be shown to justify reversal. Wilson v. State, 2 Tenn.Cr.App. 138, 452 S.W.2d 355 (1969). There are no affidavits to show what testimony the missing witness would have offered.

“ * * * (I)n the nature of things, much must be left to the discretion of a circuit judge, who is presumed to have, and who has in fact so large an experience upon the subject of criminal trials, who knows the shifts, and devices, and false pretenses to which defendants resort in the hope of escape from justice, and that to disturb the exercise of his discretion, there should be something developed in the after trial to show that the defendant might have been prejudiced in some way by the refusal to grant a continuance.” State v. Rigsby, 74 Tenn. 554 (1880)

The assignment is overruled.

Appellant also challenges the failure of the trial court in not requiring the State to allow defense counsel to inspect and duplicate, copy, photograph, or otherwise reproduce any and all tests, graphs, charts, photographs, records and any and all other documents or tangible objects used, produced and/or manufactured in regard to and as a result of the analysis of the alleged controlled substance by the State toxicologist. T.C.A. § 40-2044 does not require the State to make available its work products to the accused. Hudgins v. State, 3 Tenn.Cr.App. 148, 458 S.W.2d 627 (1970).

A meritorious assignment complains that the trial court erred in not requiring the State to comply with T.C.A. § 40-2044 by permitting the appellant to have an independent analysis made of the alleged controlled substance by an expert of his own choosing. The trial court conditionally denied this motion unless the defendant was able to secure an individual or laboratory properly qualified to conduct an analysis. Upon representation for the co-defendant that no registered expert could be obtained unless a continuance was granted, the trial judge ordered the cause to trial.

In State v. Gaddis, 530 S.W.2d 64 (Tenn.1975), it was held that, pursuant to the provisions of T.C.A. § 40-2044, a defendant is entitled to “receive a sample or specimen of a controlled substance in order to have an independent analysis made by an expert of his own selection, and at his own expense, but under such conditions as the trial judge may impose.”

The State insisted that it would be unlawful for the trial judge to permit any expert other than one registered with the Federal Government to have possession of a sample of the drug for the purpose of making the inspection. This was not a sound position.

It violates no law to be in possession of contraband property obtained lawfully in furtherance of law enforcement. A policeman, for example, violates no law when he takes into his possession from an arrestee narcotic drugs to be processed as evidence. Carrying the State’s insistence to its ultimate absurdity, members of this Court would be in violation of law since we now are in literal possession of the contraband. It is not possession, but unlawful possession, that is proscribed by applicable federal statute. See U.S.C. 21, § 841 et seq.

The fact that a laboratory technician, toxicologist, physician, chemist, or other expert whose qualifications satisfies the trial judge is, or is not, licensed or registered by a governmental agency is not controlling on the discretionary power of the court to permit an examination.

The trial judge, if otherwise satisfied that the expert chosen by the defense was competent, should have permitted the inspection under such reasonable conditions as he deemed appropriate. Accordingly, error was committed in refusing to allow the inspection.

As did the Supreme Court in Gaddis, we conditionally vacate the judgment and remand for an examination of the contraband under such conditions as the trial court deems suitable by an expert chosen on behalf of the defendant. “In the event the analysis demonstrates that the seized materials are controlled substances, the judgment will be reinstated and immediately carried into execution. If the analysis demonstrates they are not controlled substances, a new trial will be t awarded.” State v. Gaddis, supra at 70.

Counsel for appellant is admonished that if there is no real basis in fact for a belief that a probability exists that the inspection now made available will produce different results than tests already made of the controlled substance, then the assignment of error, upon which the remand is predicated, will approach frivolity. If the appellant knows personally that the report of the State toxicologist was accurate, it profits little to force the considerable expenditure of time, effort, and money involved in the procedure mandated by Gaddis. In such instances in the future, it would be well for the trial judge to make available a small sample of the material to be tested after trial in order that the defense may make such determination of chemical composition as necessary to support or refute the State’s evidence on the vital evidentiary point. The result could then be considered on motion for new trial.

We have carefully considered all other assignments and find them unmeritorious.

Conditionally vacated and remanded.

DAUGHTREY, J., concurs in the result.

SAM L. LEWIS, Special Judge, concurs.


author: TATUM, Judge.

text:
    Chester Lee SUMMERALL, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 6, 1977.
    Certiorari Denied by Supreme Court Jan. 23, 1978.
    Brett B. Stein, Memphis, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, Michael W. Hughes, Asst. Dist. Atty., Memphis, for appellee.
   OPINION

TATUM, Judge.

The defendant, Chester Lee Summerall, was convicted in the Criminal Court of Shelby County of assault and battery with intent to commit rape. He seasonably filed his written motion for a new trial and it was dismissed by the trial judge “for want of prosecution.” The defendant appeals from the action of the trial judge in dismissing his motion for a new trial without considering it on its merits.

The case is before us on the technical record only, but we glean that the defendant’s attorney failed to appear at the appointed hour and argue the defendant’s motion for a new trial. The State moved that the motion be dismissed for want of prosecution and the State’s motion was sustained. The defendant excepted and prayed an appeal to this court.

While we think that a defendant should be granted an opportunity to argue his motion for a new trial in criminal cases, there is no requirement that a defendant avail himself of this opportunity. If an unsuccessful litigant waives argument either expressly or by implication, then it is the duty of the trial judge to consider the motion on its merits without hearing argument of such litigant, and rule accordingly. Jerkins v. McKinney, 533 S.W.2d 275 (Tenn.1976). It was error for the trial judge to dismiss the defendant’s motion for a new trial “for want of prosecution.” It was his duty to either grant or overrule the motion, thereby preserving the right of the defendant to appeal from an unfavorable ruling.

The State relies on Bradford v. State, 184 Tenn. 694, 202 S.W.2d 647 (1947) holding that when a defendant is a fugitive from justice while his motion for a new trial is pending, he waives his motion and also the right of appeal. The technical record reflects that we do not have this situation here. We think that if the defendant’s attorney, without reasonable excuse, did not appear to make oral argument, then the trial judge might have found that oral argument was waived, but not the motion itself.

We reverse the order of the trial judge dismissing the motion for a new trial for want of prosecution. The case is remanded to the Criminal Court of Shelby County. The trial judge is directed to either grant or overrule the defendant’s motion for a new trial after considering it on its merits.

DWYER, P. J., and WALKER, J., concur.


author: DAUGHTREY, Judge.

text:
    Roy MURPHY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 26, 1977.
    Certiorari Denied by Supreme Court Jan. 16, 1978.
    R. Bruce Ray, Jamestown, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert E. Kendrick, Deputy Atty. Gen., Nashville, Arzo Carson, Dist. Atty. Gen., William Paul Phillips, Asst. Dist. Atty. Gen., Huntsville, for appellee.
   OPINION

DAUGHTREY, Judge.

Roy Murphy was convicted of shooting into an occupied dwelling, in violation of T.C.A. § 39-613, and he was sentenced to a term of two to four years in the penitentiary. On appeal he attacks (1) the sufficiency of the evidence to support the jury’s verdict, and (2) the qualifications of one of the trial jurors. A jointly convicted co-defendant, Billy Foster, does not appeal.

From the record it appears that Foster and Bernard Cook, the prosecuting witness, were married to sisters, and Foster and his wife had been experiencing marital difficulties. During an argument between the Fosters on June 7, the defendant was present and delivered some sort of veiled threat against Mrs. Cook, who was also present at the time.

On the afternoon of June 8, 1975, the defendant drove Foster to the Cook’s home, and while the defendant and Foster remained in the ear, Foster shouted for Cook to come outside. There followed a brief exchange of words between Foster and Cook, which caused Cook to return to the house, retrieve his shotgun, and fire it into the ground near the defendant’s car. He then ordered Foster and the defendant to leave, which they did, but only after threatening to return with guns of their own. A short time later they did return, and according to Cook, Foster aimed a shotgun out the car window and fired into the Cook’s house. When Cook grabbed his own shotgun and returned the fire, he saw the defendant firing the shotgun. Some five loads of shot hit the house before the defendant and Foster drove off. As it turned out, Foster had been wounded in the cross-fire and ultimately lost his sight in one eye.

Cook’s story was corroborated in some respects by the testimony of his wife and a neighbor. While both the defendant and Foster testified, saying that they did not fire until fired upon, their description of the events was not consistent with physical evidence found at the scene.

Although the trial amounted to little more than a “swearing contest,” there was evidence from which the jury could have found a violation of T.C.A. § 39-613, and we are unable to say that the proof preponderates against their verdict. The assignments relating to the sufficiency of the evidence are therefore overruled.

The day after the jury returned their verdict, it was discovered that one of the jurors was related by marriage to Cook, the prosecuting witness. This was an apparent violation of T.C.A. § 22-105, which disqualifies jurors related to either party within the sixth degree, as computed by civil law. At a post-trial hearing it was proven that Cook’s mother was a half-sister of the grandmother of the juror’s spouse, a fifth degree relationship by affinity. By undisputed proof it was also established that the juror had no knowledge of this fact until after the verdict was returned. The defendant, however, now insists that he is entitled to a new trial because of the juror’s statutory disqualification. We disagree.

Under Tennessee case law, the defect in question is considered a disqualification propter defectum, which is deemed waived if no objection is entered prior to the swearing of the jury. Clariday v. State, 552 S.W.2d 759, 772 (Tenn.Cr.App.1976). The waiver rule has long been applied to prohibited relationships between a juror and one of the parties, despite the fact that the defendant had no knowledge of the defect at the time of jury’s selection. See, e. g., Draper v. State, 63 Tenn. 246, 252-3 (1875); Cartwright v. State, 80 Tenn. 620, 628 (1884).

Furthermore, we note that here, as in Cartwright, supra, the juror had no knowledge of her relationship to one of the parties at the time she was seated, and did not learn of the relationship until after the trial was completed. Under such circumstances, no prejudice to the defendant can be shown. There being no merit to the assignment, it is therefore overruled.

The judgment of the trial court is affirmed.

RUSSELL, P. J., and GALBREATH, J., concur.


author: KEITH, Justice. DIES, Chief Justice,

text:
    TENNECO, INC., Appellant, v. POLK COUNTY et al., Appellees.
    No. 7850.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 27, 1977.
    Stanley B. Binion, Houston, for appellant.
    E. E. Tackett, Bedford, for appellees.
   KEITH, Justice.

Pursuant to the instructions of the Supreme Court of Texas included in its opinion in Polk County v. Tenneco, Inc., 554 S.W.2d 918 (1977), we have reviewed the assignments of error which escaped mention in our earlier opinion reported in 546 S.W.2d 63. At our request, the parties submitted additional briefs confined to the issues remaining after remand, and the case was submitted on oral arguments by counsel. We affirm for the reasons now to be stated.

We concur with the Chief Justice: the determination in a contested case of the market value of a small segment of a transcontinental gas pipeline is “not an easy question to resolve.” 554 S.W.2d at 921 However, our task has been simplified by the holding of our Supreme Court “that there was evidence tending to support the trial court’s factual determination of a market value of $3,144,880 for the pipelines.” 554 S.W.2d at 924 This was an adverse determination of Tenneco’s “no evidence” point after the Court had considered only the evidence and inferences which supported the trial court’s finding. Lucas v. Hartford Acc. & Indem. Co., 552 S.W.2d 796, 797 (Tex.1977).

Our review of the factual sufficiency of the evidence to support the findings of the trial court has been under a different standard: we have reviewed the record as a whole under the standards laid down for our use. See, e. g., In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Calvert, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error”, 38 Tex.L.Rev. 361 (1960).

The trial court filed extensive findings of fact accompanied by many conclusions of law, all of which were favorable to the taxing authority and adverse to the taxpayer. Additionally, the court refused many of the additional findings requested by Tenneco. In a case handed down very recently, Central National Bank v. Booher, 557 S.W.2d 563 (Tex.Civ.App.—Beaumont, 1977), Justice Clayton announced the rule applicable to the case at bar in these words:

“It is well-settled that the trial court’s findings carry the same weight as jury findings by which we are bound, if such findings are supported by probative evidence. In a non-jury case, the trial court is the judge of the credibility of the witnesses and the weight to be accorded their testimony. Johnson v. Lane, 524 S.W.2d 361, 363 (Tex.Civ.App.—Dallas 1975, no writ), and cases cited therein; accord, Gulf States Theatres of Texas v. Hayes, 534 S.W.2d 406 (Tex.Civ.App.—Beaumont 1976, writ ref’d n. r. e.). From a review of the evidence we are of the opinion the findings of the trial court are supported by probative evidence. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).” 557 S.W.2d p. 564

As noted by the Supreme Court: “When the question of market value is central to the taxpayer’s claim, as here, that question is one of fact for the fact finder.” 554 S.W.2d at 920 From our earlier statement, it is apparent that the trial court, acting as the fact finder in this nonjury trial, found market value in favor of the county taxing authority. Our sole responsibility, under these circumstances, is to determine the factual sufficiency of the evidence to support the finding.

It would serve no useful purpose to recount at length the testimony of the witness Pritchard concerning market value. Tenneco’s counsel criticizes this testimony, saying that he confused gross profit with net profit and was badly mistaken in his so-called “cap rate”. Nevertheless, Pritch-ard’s testimony was accepted by the trier of the facts and Tenneco’s present criticism goes to the weight and not to the admissibility of such testimony. Considering the record as a whole, as we are required to do in this review, we find that the evidence is factually sufficient to support the trial court’s findings of fact and the judgment upholding the assessment.

Under these circumstances, we do not find it necessary to pass upon the weight, if any, to be given to the testimony of the witness Bledsoe. Too, Tenneco’s expert testimony as to the market value of its system simply raised a question of fact for determination by the court. Such expert testimony did not require acceptance by the trial court. Broussard v. Moon, 431 S.W.2d 534, 537 (Tex.1968), and authorities therein cited.

We have applied the law contained in the three cases brought to our attention with the recommendation that they might be “helpful”, to the facts established in the trial. Having done so, we are of the opinion that Tenneco has not discharged the onerous burden cast upon it by the law set forth in such cases. Tenneco has failed to establish, factually, either an unequal or discriminatory assessment (as required in Bernhardt) and has also failed in its effort to show that the assessment (if in excess of market value) was grossly excessive under the rationale of Conlee Seed.

Having reviewed the record in accordance with the mandate of the Supreme Court, and finding no error, the judgment of the trial court is AFFIRMED.

DIES, Chief Justice,

concurring.

I concur with the majority that since our Supreme Court has found that the matters complained of by Tenneco go to the weight rather than the propriety of the evidence, we should affirm the judgment of the trial court.

However, since all agree of the difficulty of assessing a segment of a gas pipeline for ad valorem taxes, it is hoped that these comments may improve the task in future assessments.

It is undisputed that Tenneco, Inc., is regulated by the Federal Power Commission as to the rates it may charge for interstate gas. These rates or earnings are mostly determined by the net book value, which is the original cost less depreciation set by the commission. The lines involved here were constructed many years ago, and it is undisputed the cost of reproduction (same materials) or replacement would be several times more today. So, today’s cost of reproduction, since it is not considered by the Federal Power Commission in setting rates, is at best an uncertain method to determine market value.

Realizing this, Mr. Pritchard (for Polk County) and Mr. Green (for Tenneco) made their appraisals on the capitalization of income approach — the relationship between net value and the total cost of operating a business. Mr. Pritchard used the 1975 net income of Tenneco as its probable future earnings — about $119,000,000. Mr. Green used a slightly smaller figure.

Their main difference was in the selection of the “cap rate”. Pritchard chose 7.6 percent, Green 11 percent. The higher the “cap rate”, the lower value figure obtained. A one percent change in the “cap rate” in Tenneeo’s case results in an almost 10 percent change in the estimated value ($100,-000,000).

Pritchard’s 7.6 percent “cap rate” (13.1 times the net profit of $119,000,000) results in a total value of $1,574,033,184 for the entire system, of which Polk County has .198 percent.

The depreciated net book value of Tenne-co as allowed by the Federal Power Commission (on which their rates are based) is $1,180,263,117. Applying Pritchard’s 7.6 percent to this would produce an income of some $89,000,000, an insufficient sum to satisfy the requirements of Federal Power Commission v. Hope National Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1943).

Tenneco’s annual interest charge on bonds and long term debt is $78,971,297. The annual dividend on preferred stock is $21,638,241; so, using the income of Pritch-ard’s “cap rate” would produce a deficit of over $10,000,000 and leave nothing for the common stockholders.

Of course, net book value and market value are not the same, but unless a prospective buyer was willing to accept a lesser rate of return than the regulatory commission allows, he would want to stay close to the net book value.

It is for these reasons I feel Mr. Pritch-ard’s “cap rate” is unrealistic.

The other witness value for the County, Mr. Bledsoe, made a schedule based on present costs of reproduction, less depreciation. He would not identify his source of data, admitted his figures were a “guide”, and stated that the schedule covered pipelines other than gas.

A prospective purchaser of a regulated gas pipeline would only be interested in buying income. If that income is wholly regulated by the Federal Power Commission, the market value of that pipeline would be mainly determined by the allowed income. Any assessment by any taxing authority should take this into account.

        Bernhardt v. Port Arthur Independent School District, 159 Tex. 488, 324 S.W.2d 163 (1959); Dallas County v. Dallas National Bank, 142 Tex. 439, 179 S.W.2d 288 (1944); and City of Waco v. Conlee Seed Co., 449 S.W.2d 29 (Tex.1969).

      . If a purchaser wanted a return of 10 percent on his investment on a $10,000 income, this would indicate the purchaser would pay $100,-000 for the property.

      . Enough revenue not only for operating expenses but also for the capital costs of business (service on the debt and dividends on the stock); return to the equity owner commensurate with return on investments in other enterprises having corresponding risks; a return sufficient to assure confidence in the financial integrity of the enterprise, so as to maintain its credit and attract capital.


author: KEITH, Justice.

text:
    Lee SCHEFFER et al., Appellants, v. Billy Frank CHRON et al., Appellees.
    No. 7969.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 3, 1977.
    Rehearing Denied Nov. 23, 1977.

      Garrett & Letbetter, George Payne and Max Garrett, Houston, for appellants.
    J. Robert Liles, Conroe, for appellees.
   KEITH, Justice.

We are called upon today to reaffirm and apply the rule that the negligence, inadvertence, or mistake of counsel is attributable to his client so that counsel’s failure to defend the case properly or to develop fully the available evidence does not constitute “good cause” authorizing a new trial. See generally, Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 246 (Tex.1974); Reynolds v. Volunteer State Life Ins. Co., 80 S.W.2d 1087, 1094-1095 (Tex.Civ.App.-Eastland 1935, writ ref’d). And, we must also adhere to the rule that a motion for new trial may not be used as a vehicle by which the case may be tried over and differently. Tees v. Tees, 546 S.W.2d 912, 917 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ).

However, before we turn to the contentions advanced upon appeal, we must first dispose of a troublesome threshold question involving our jurisdiction to even consider the appeal.

Appellants’ amended motion for new trial was overruled by operation of law on November 14, 1976, and their counsel waited until the 59th day thereafter to request a transcript or statement of facts. He made a timely motion under Tex.R.Civ.P. 21c for an extension of time within which to file such record claiming that the delay was the result of a mistake in his calculations. We accepted the statements contained in the application at face value and granted the extension requested. Meshwert v. Mesh-wert, 543 S.W.2d 877 (Tex.Civ.App.-Beaumont 1976), affirmed 549 S.W.2d 383 (Tex.1977).

While we have serious doubts as to the validity of the excuse offered in the “21c motion” and entertain some doubts as to the correctness of our order extending the time, we nevertheless overrule appellees’ motion to dismiss the appeal. Upon the face of the record as originally presented to us, there was a plausible explanation of the mistake and the failure to file did not appear to be deliberate or intentional. We are not persuaded that we should set aside our earlier order permitting the record to be completed and filed. Appellees’ motion to dismiss the appeal is overruled.

The foregoing is but the prelude to the unhappy sequence of events leading up to the entry of judgment for appellees which we now present in the form of a chronological table:

Date Event
June 24,1970 Suit filed
July 21,1970 Appellants answered
September 14,1970 Appellees demanded abstract of title from appellants [Rule 791]
October 2,1970 20-day extension of time for filing abstract granted [Rule 792]
October 22,1970 Abstract due but not filed
May 7,1971 Second motion for extension of time filed by appellants and an extension was granted
May 21,1971 Abstract due but not filed
August 81,1976 Trial commenced

To this chronology we add these sidelights: two defendants — the Webbs — answered by other counsel claiming a specific five-acre tract. Appellees and the Webbs, pursuant to mutual demands for abstracts, duly filed such instruments in the record in late 1970. On the morning of the trial (August 31,1976), without notice or leave to file, appellants’ counsel filed an instrument among the papers whereby he purported to adopt certain portions of the abstracts filed by appellees and the Webbs, but our record does not disclose that notice of the filing was made known to appellees’ counsel or to the court.

In the non-jury trial, appellees offered their record title from the agreed common source in accordance with their abstract and rested. Appellants then sought to utilize their so recently “adopted” abstracts and the instruments noted therein. Appellees’ objection having been sustained and no record proof having been tendered, the court entered judgment for appellees.

Appellants’ trial counsel then became extremely diligent and prompt by the timely filing of an original and an amended motion for new trial wherein he sought to excuse his failure to file the abstract, attempted to show superior title, claimed newly discovered evidence, etc. After a protracted hearing on the amended motion, it was overruled. Newly employed counsel now presents the appeal upon a myriad of points, each of which seeks to secure relief by an appeal to our abstract sense of justice. These sentences taken from the conclusion are fair samples: “This is not a case where there was a fair hearing and one side lost. It is a case where an extremely technical rule was literally interpreted and a horrible injustice resulted.”

Abstract justice achieved by a complete disregard of the rules governing trials in our courts may appeal to some as a means of arriving at an end thought to be desirable. It is not a proper philosophy to use in affirming or reversing judgments. See Chief Justice Calvert’s dissent in Colonia Oil & Gas Corporation v. Railroad Commission, 163 Tex. 483, 358 S.W.2d 566, 570 (1962), quoting copiously from Duncan v. Magette, 25 Tex. 245 (1860).

The present rules of civil procedure involved in this appeal [Rules 791, 792, 793, and 794] were all lifted from earlier statutes which had governed the trial of such cases for many years. A case from this court, Davis v. Dowlen, 136 S.W.2d 900, 904 (Tex.Civ.App.-Beaumont 1939, writ dism’d jdgmt. cor.), noted that the reason for the rules was to give notice to the opposite party of the documentary evidence relied upon by the party in the suit.

The earlier cases gave the statutes a strict construction. See, e. g., Davis v. Cisneros, 220 S.W. 298, 299 (Tex.Civ.App.—San Antonio 1920, writ dism’d), where the court said:

“When such a demand [under old art. 7376 or present Rule 791] is seasonably made, there must be a strict compliance therewith, [citations omitted]”

While the strictness of Rule 791 has been relaxed to some extent, we have not been cited to any case wherein it has been completely abrogated. See McCraw v. City of Dallas, 420 S.W.2d 793, 797 (Tex.Civ.App.—Dallas 1967, writ ref d n. r. e.). Indeed, as was held in Corder v. Foster, 505 S.W.2d 645, 648 (Tex.Civ.App.—Houston [1st Dist.] 1973, writ ref’d n. r. e.):

“It is within the spirit of the Rules that the time for filing an abstract in response to a demand will be extended where the grant of additional time will not prejudice the party making the demand and the refusal of an extension would result in injustice.”

In our case, appellees’ demand was served in 1970 and appellants having secured two extensions — the last of which expired more than five years before trial— did not seek any relief from the sanctions of the rule. The unexplained failure of appellants’ counsel to comply with the rule governing the filing of the abstract does not constitute any compliance with the “good cause” provision of Rule 792.

Appellants argue that their abstract contains no surprises since it is based on abstracts of other parties that were filed early in the suit and, consequently, the trial court abused its discretion in refusing appellants the right to use the “adopted” abstract belatedly filed upon the day of the trial. We disagree.

The court in Means v. Protestant Episcopal Church Council of Diocese of Texas, 503 S.W .2d 591, 592-593 (Tex.Civ.App.—Houston [1st Dist.] 1973, writ ref’d n. r. e.), was confronted with a situation similar to this one. In Means, the appellants complained that the court erred in refusing to admit two deeds into evidence. The court disposed of the contention by saying:

“These documents were objected to, among other grounds, on the basis that the appellants had failed to comply with Rule 792, Texas Rules of Civil Procedure requiring listing in an abstract of title responsive to appellee’s demand. Appel-lee’s demand for abstract had been served on appellants approximately two years prior to the trial and the record does not indicate that any abstract of title was filed until the date of trial. While appellants argue that appellee was not surprised by the instruments in question there is nothing in the record before us which would constitute any basis for our holding that the trial court erred in excluding these instruments.”

We are unwilling, as an intermediate court, to ignore or to change the rule of procedural law which has governed the trial of land suits for almost a century. If there is to be a change, it should come about in an orderly way through action of our Supreme Court in a decision or by modification of the rule. Under the undisputed facts found in our record, we find no error in the order overruling appellants’ amended motion for new trial and overrule the first three points of error.

Appellants’ fourth point of error complains that the trial court erred in overruling their amended motion by refusing to consider a prior judgment by the same trial court in a partition suit involving the land in controversy.

Tex.R.Civ.P. 94 requires that affirmative defenses, such as res judicata, must be specially pleaded. In this case, appellants failed to plead res judicata in their answer. Therefore, this defense has been waived. Allandale Nursing Home, Inc. v. John Bremond Co., Inc., 514 S.W.2d 958, 959 (Tex.Civ.App.—Austin 1974, writ ref’d n. r. e.).

Moreover, even if res judicata had been properly pleaded, appellants did not make proof upon the hearing of a valid prior judgment precluding appellees’ suit. One of the requirements of res judicata is that the parties in the second suit must have been parties in the first suit or those in privity with them. Swilley v. McCain, 374 S.W.2d 871 (Tex.1964). In the present case, the appellees were not parties or in privity with the parties involved in the partition suit on which appellants rely. Benson v. Wanda Petroleum Company, 468 S.W.2d 361, 363 (Tex.1971). See also, Z. Steakley and W. Howell, Jr., “Ruminations on Res Judicata”, 28 Sw.L.J. 355, 358 (1974).

Appellants further argue that the prior partition judgment should have the effect of stare decisis. We cannot agree. Stare decisis attaches to “a principle, rule or proposition of law [that] has been squarely decided by the Supreme Court, or the highest court of the State having jurisdiction of the particular case." (emphasis added) Swilley, supra, at 875. See also, Steakley & Howell, supra (28 Sw.L.J. at 357). The fourth point is overruled.

Appellants’ points of error five and six complain that the trial court abused its discretion by denying a new trial based on (1) the newly discovered evidence that the three tracts of land were acquired during the marriage of D. 0. Scheffer and Sarah Gandy Scheffer and, therefore, anyone claiming under D. 0. Scheffer could claim only one-half of the land; and (2) the newly discovered evidence that Frank Scheffer had lived on the land in excess of twenty-five years which would allow appellants to plead and prove title by limitations upon retrial.

One of the prerequisites for the granting of a new trial on the basis of newly discovered evidence is “that it could not have been sooner discovered by the exercise of diligence.” Conwill v. Gulf, C. & S. F. Ry. Co., 85 Tex. 96, 19 S.W. 1017, 1020 (1892). Accord, New Amsterdam Casualty Company v. Jordan, 359 S.W.2d 864, 866 (Tex.1962); Dorbandt v. Jones, 492 S.W.2d 601, 603 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.); Vance v. Obadal, 256 S.W.2d 139, 141 (Tex.Civ.App.—El Paso 1953, writ ref’d). As said in Dorbandt, supra:

“It is said that diligence has not been exercised if the same effort used to procure the testimony subsequent to trial would have had the same result if exercised prior to trial.”

In this case, Sarah and D. O. Schef-fer’s marriage license had been on record since 1893, and appellants could have easily obtained a copy of it prior to trial. Appellants knew that Frank Scheffer had lived on the property in controversy for more than twenty-five years but failed to tell their attorney. However, with diligence, he could have discovered this information prior to trial. Finding no abuse of discretion, the fifth and sixth points are overruled.

We have reviewed the remaining points in appellants’ brief and find no merit therein. The judgment of the trial court is affirmed.

AFFIRMED.

      . Appellants discharged trial counsel at about the time of the filing of the motion for extension of time in this court and have been represented on appeal by other and diligent counsel.

      . A few days before the trial of this case, the Webbs and appellees entered an agreed judgment whereby the Webbs recovered the five acres they sought in their pleading.

      . These rules governing the trial of trespass to try title actions spell out the law which has been in effect for practically a century. The historical notes following Articles 7376, 7377, 7378, and 7379 found in Vol. 20B Tex.Rev.Civ. Stat.Ann. (1960), show that the present rules go back at least as far as the 1879 revision of the statutes.


author: DIES, Chief Justice.

text:
    Bill GRIERSON, a/k/a William John Grierson, Appellant, v. Pat SREENAN, Appellee.
    No. 7987.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 3, 1977.

      T. D. Sullivan, Houston, for appellant.
    Robert W. Coleman, Dallas, for appellee.
   DIES, Chief Justice.

Defendant Bill Grierson appeals from an order granting plaintiff Pat Sreenan’s motion for summary judgment in a dispute involving title to a 1973 Cadillac convertible. Grierson complains that admissions by the Texas Highway Department, the original defendant, and affidavits from Sreenan and one of the original owners of the Cadillac were improperly used against him. We agree that these admissions and affidavits do not constitute adequate summary judgment proof to establish as a matter of law that there are no disputed issues of fact, and we consequently reverse and remand for trial.

Sreenan claims to have bought the Cadillac for cash on April 20, 1975, from the two original owners, Nancye K. Martin and Robert J. Smith, and at that time he acquired possession of the automobile and the original certificate of title. Grierson obtained his interest in the automobile in November 1975, under a certified copy of a certificate of title issued to Robert J. Smith in January 1975, though Grierson denied that he held an interest under a certified copy of a certificate of title. At no time prior to July 16, 1976, did Grierson actually have possession of the Cadillac.

On February 3, 1976, Sreenan applied to the Texas Highway Department for a new certificate of title, and attached to his application the original certificate of title allegedly acquired on April 20, 1975. The Texas Highway Department denied Sreen-an’s application because of Grierson’s prior certificate of title on file. On May 13,1976, Sreenan brought this suit against the Texas Highway Department, which interpled Gri-erson on July 6, 1976.

The Texas Highway Department responded to Sreenan’s request for admissions on July 14,1976, and admitted that Sreenan had included the original certificate of title in his application and that Grierson’s certificate of title was a certified copy. On July 16, 1976, the Cadillac was removed from Sreenan’s residence, allegedly by agents of Grierson. Sreenan amended his petition on July 20, 1976, to include Grierson as a defendant, and Grierson was served with citation on August 6, 1976.

The trial court granted Sreenan’s request for a temporary restraining order against Grierson on July 20,1976, and for a preliminary and temporary injunction on August 3, 1976. The court granted. summary judgment in favor of Sreenan on October 21, 1976, awarding him title to the Cadillac, and permanently enjoining Grierson from interfering with Sreenan’s possession and enjoyment of the automobile. Sreenan’s motion for summary judgment was supported by affidavits by himself and Nancye K. Martin. Grierson subsequently filed this appeal.

The movant for summary judgment assumes the burden of proving that “there is no genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.” Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952); Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972); Mitchell v. Baker Hotel of Dallas, Inc., 528 S.W.2d 577 (Tex.1975). Answers to a request for admissions may only be used against the party making the admissions. Such admissions are hearsay and do not constitute legally admissible evidence with respect to other defendants. Black v. Frank Paxton Lumber Co., 405 S.W.2d 412 (Tex.Civ.App.—Dallas 1966, writ ref’d n.r.e.); Davis v. Coastal States Petrochemical Co., 405 S.W.2d 854 (Tex.Civ.App.—Houston 1966, no writ); Bryant v. Kimmons, 430 S.W.2d 73 (Tex.Civ.App.—Austin 1968, no writ). The Texas Highway Department was not authorized to make admissions against Gri-erson’s interest, and the admissions will therefore not support Sreenan’s summary judgment against Grierson.

Tex.RCiv.P. 166-A(e) states that:

“Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. . .

In Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.1962), a supporting document was attached to a pleading, but not to the motion for summary judgment or to an affidavit supporting the motion. A supporting affidavit did attempt to incorporate the pleading and the document by reference. Our Supreme Court observed that the affidavit could have been excepted to, but held that the complaint that the document was unverified and uncertified should have been raised in the trial court, and not for the first time on appeal.

Pleadings, either sworn or un-sworn, do not constitute acceptable summary judgment evidence. Hidalgo v. Surety Savings and Loan Ass’n, 462 S.W.2d 540 (Tex.1971). A motion for summary judgment should be supported by its own proof, attached to either the motion or to an affidavit supporting the motion. Documents attached to pleadings should not be incorporated by reference into the motion for summary judgment or supporting affidavit. Texas Nat. Corp. v. United Systems International, Inc., 493 S.W.2d 738 (Tex.1973).

An unverified document attached to pleadings (sworn or unsworn) does not constitute proper summary judgment evidence regardless of whether or not it is incorporated into the affidavit. Thus, the defect may be raised for the first time on appeal. Boswell v. Handley, 397 S.W.2d 213 (Tex.1965). The same result obtains when an affidavit refers to a document that is simply not in the record. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961); Schuster v. Reid, 544 S.W.2d 800 (Tex.Civ.App.-Austin 1976, no writ).

In the present case, the affidavits of both Sreenan and Nancye K. Martin refer to an original certificate of title that was never put into evidence, even though it was in the hands of the Texas Highway Department and could easily have been introduced. Mere reference in the affidavits to the original certificate of title does not establish its existence or that Sreenan holds it, and consequently the summary judgment evidence does not establish as a matter of law that there are no disputed issues of fact.

REVERSED and REMANDED.


author: CLAYTON, Justice.

text:
    A. L. TRAMEL et ux., Appellants, v. CITY OF DALLAS, Appellee.
    No. 7992.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 3, 1977.
    Rehearing Denied Nov. 23, 1977.

      John F. Jordan, Carl M. Weisbrod, Dallas, for appellants.
    Linda R. Lawson, Dallas, for appellee.
   CLAYTON, Justice.

The City of Dallas filed suit against A. L. Tramel and wife, seeking the recovery of certain paving costs and. foreclosure of a paving lien upon property of the defendants. Thereafter, pleas of intervention were filed by certain owners of property similarly situated as defendants, joining defendants in seeking a judgment declaring the paving assessments against their respective property to be null and void, on the grounds that the “statutory scheme” under which the paving assessments were made denies them equal protection of the law and violates the due process clause of the 14th Amendment to the United States Constitution. This cause was tried before the court, and judgment was entered for the plaintiff City, and denying the relief sought by defendants and intervenors from which they appeal.

Appellants are owners of property abutting upon either Lake June Road or Elam Road in the City of Dallas, which properties were assessed under an improvement plan for the widening and improvement of such streets, jointly undertaken by the City of Dallas and the County of Dallas. Under this plan, the City assumed responsibility for improving Lake June Road from 370 feet west of Buckner Boulevard to Prairie Creek Road with the County improving the street from Prairie Creek Road eastward to L. B. J. Freeway; and the City assumed responsibility for improving Elam Road from Pemberton Hill Road to St. Augustine Road, and the County improving such street from St. Augustine Road eastward to Hickory Tree Road. The portions of the street improved by the City were situated wholly within the City of Dallas. The portions improved by the County were partly within and partly without the city limits of the City of Dallas.

Appellants were assessed approximately one-half the cost of paving and widening along their abutting property of those streets which are being converted into main thoroughfares by the City and Dallas County. Other property along the same streets was not assessed because it abutted portions of the streets being improved by the County.

Appellants concede that the decision to assess owners of property abutting city-improved portions of the project was made by the City Council in accordance with Tex. Rev.Civ.Stat.Ann. art. 1105b (Supp.1977) ' with the exception of prior notice or hearing, such exception to be discussed in connection with appellants’ second point.

Appellants’ first point urges that “the statutory scheme under which appellants’ property was assessed violates the equal protection clause of the 14th Amendment to the United States Constitution.”

Appellants concede that under the statute it is discretionary with municipalities whether to undertake street widening projects; and if they do, whether to assess abutting property. While counties have not been granted the assessment power, they can and do, as in this case, undertake street projects inside city limits. Often, as in this case, a city and county will cooperate in improving particular streets. Property abutting city-improved portions is assessed; property abutting county-improved portions is not.

Under Section 3 the City has the legislative authority to determine the propriety and advisability of undertaking street improvement projects. It is within its discretion to determine whether a street should be improved or not; and if so, the same discretion should apply as to the advisability of improving a portion of a street or the entire street regardless of its length. If it determines to improve only a portion thereof, it would be exercising those acts in the exercise of powers entrusted entirely to its discretion.

The parties stipulated and agreed prior to the hearing in the trial court that “Public hearings were held by the City of Dallas on January 5, 1970, regarding the paving of Elam Road, and on August 21, 1972, concerning the paving of Lake June Road. Said hearings were held pursuant to and in accordance with Article 1105b. No other hearing was afforded the abutting property owners in connection with said paving assessment.”

Appellants make no complaint against the proceedings had under the statute leading up to the assessments or to the amount of the assessment.

The only complaint made is that the City has made improvements for which assessments were made against the abutting property owners along the street where improvements were made by the City, and no assessment was made as to those abutting owners along the street where the improvements were made by the County. Appellants concede that the County, having the power and authority to make such improvements, does not have the power to make assessments.

Basically, it is the contention of the appellants that the legal act of making the improvements by the City and making assessments therefor, combined with the legal act of the County in making improvements with no assessments, constitutes a “statutory scheme” under which paving charges were assessed which denies them “equal protection” of the law and violates the due process clause of the 14th Amendment of the United States Constitution.

It is not mandatory that the City, when making a determination to improve a street within its limits, that it shall improve the entire street from beginning to end. Section 1 provides that the cities “shall have the power to cause to be improved, any highway, within their limits . . .” The statute further provides “that whenever the term ‘highway’ is used herein it shall include any street . . . , or any portion or portions thereof . . . .” Under this statutory provision, the City had the power to determine that improvements would be made upon the entire street or a portion thereof. It is to be noted that appellants, even though they alleged in their pleadings that Article 1105b was unconstitutional, they did not take that position in the points presented and discussed in their brief. Their only complaint was as to the “scheme” of the assessments.

There can be no question as to the constitutional right to make the assessments against the appellants as was done in this case. It is stated in Gast Realty & I. Co. v. Schneider Granite Co., 240 U.S. 55, 58, 36 S.Ct. 254, 255, 60 L.Ed. 523 (1916):

“The legislature may create taxing districts to meet the expenses of local improvements, and may fix the basis of taxation without encountering the 14th Amendment unless its action is palpably arbitrary or a plain abuse. [Citing] Houck v. Little River Drainage Dist., 239 U.S. 254, 36 S.Ct. 58, 60 L.Ed. 266.”

In Hancock v. Muskogee, 250 U.S. 454, 459, 39 S.Ct. 528, 63 L.Ed. 1081 (1919), the United States Supreme Court holds:

“. . . it is settled . . . that whether the entire amount or a part only of the cost of a local improvement shall be imposed as a special tax upon the property benefited, and whether the tax shall be distributed upon a consideration of the particular benefit to particular lots, or apportioned according to their frontage upon the streets, their values, or their area, is a matter of legislative discretion, subject, of course, to judicial relief in case of actual abuse of power or of substantial error in executing it, neither of which is here asserted.”

We also point out that appellants have not been injured, or suffered any harm whatsoever, by the County of Dallas’ failure to assess. Paving assessments are limited by the amount of benefit conferred; so, therefore, even if the County of Dallas did assess its abutting property owners, the appellants’ assessment would be the same. Appellants have raised no complaint about the benefits conferred upon their property.

Appellants have not shown any abuse of power, or any substantial error in executing it, and have not shown that the action of the City was palpably arbitrary in any particular. We therefore hold that the statutory method of assessment complained of is not invalid as being in contravention of the equal protection clause of the 14th Amendment of the United States Constitution.

Appellants’ second point, in essence, is that the due process clause of the 14th Amendment of the United States Constitution requires a hearing for the appellants prior to the decision of the City to pay for the street improvements by private assessment. They concede that it is wholly discretionary with the City Council whether to pay for a street improvement entirely out of general funds or partially out of assessments of abutting property owners. They object to the fact that the City Council adopted assessment resolutions affecting their property without affording them prior notice or hearing. In this argument, appellants discuss at length matters relating to benefits to the property and to themselves and also a very lengthy discussion on the subject of hardships involved in paying the assessments.

The ordinance levying the assessments refers to a resolution ordering the improvements which determined the necessity of making an assessment for a portion of the cost of improvements and “fixing a time and providing for a hearing to such property owners, ... at which hearing said owners were to be heard as to the benefits of the said improvements to their property, as to any error or invalidity in said proceedings, or to any matter or thing connected with the said improvements,” and “at said hearing, all desiring to contest the said assessments, correct the same, or in any manner be heard concerning the benefits thereof, or in any related matter, were heard, and errors and all matters of error or mistake or inequalities or other matters requiring rectification which were called to the attention of the Council were rectified and corrected.” Dallas, Texas, Ordinance 12836, December 8, 1969.

In Londoner v. Denver, 210 U.S. 373, 385, 28 S.Ct. 708, 714, 52 L.Ed. 1103 (1908), the United States Supreme Court states:

“In the assessment, apportionment, and collection of taxes upon property within their jurisdiction, the Constitution of the United States imposes few restrictions upon the States. . . . But where the legislature of a state, instead of fixing the tax itself, commits to some subordinate body the duty of determining whether, in what amount, and upon whom it shall be levied, and of making its assessment and apportionment, due process of law requires that, at some stage of the proceedings, before the tax becomes irrevocably fixed, the taxpayer shall have an opportunity to be heard . . . .”

• The assessments were made under the authority of Article 1105b § 3 (1963) thereof which provides:

“That the governing body of any city shall have power to determine the necessity for, and to order, the improvement of any highway, ... or parts thereof within such city, . . . and to provide for the payment of the cost of such improvements by the city, and partly by assessments as hereinafter provided.”

Section 9 (Supp.1977) provides:

“No assessment herein provided for shall be made against any abutting property or its owners . . . until after notice and opportunity for hearing as herein provided, and no assessment shall be made against any abutting property or owners thereof in excess of the special benefits of such property. . . .”

Under the guidelines as stated in Londoner, supra, the required hearing, to meet the constitutional requirements of due process, must be given before the assessments become irrevocably fixed. In the case before us, appellants were afforded a hearing on the question of benefits, and to any matter or thing connected with said improvements, and had the right under Section 9 to contest the amounts of the proposed assessments, the special benefits to the abutting property and owners thereof by means of the improvements for which assessments are to be levied, the accuracy, sufficiency, regularity, and validity of the proceedings and contract in connection with such improvements and proposed assessments. If appellants were dissatisfied with the action of the City in regard to those matters to which they were entitled to be heard, they had the right to appeal therefrom and would be entitled to a judicial review. City of Houston v. Blackbird, 394 S.W.2d 159 (Tex.1965). We think it significant that appellants did not complain in any manner as to the hearing afforded them under the statute. They did not appeal therefrom as they had the right to do.

As we view the complaints urged by appellants, the matters relating to the City’s right to determine the necessity, advisability, or propriety in making the street improvements and to determine that the portion of the cost should be borne by the abutting property owners are matters solely with the discretion of the City.

Appellants were afforded a proper and adequate hearing prior to the time the assessment actually became irrevocably fixed. Under these circumstances, we hold that the hearing afforded appellants was sufficient and the appellants were not deprived of due process of law under the United States Constitution by not being given a hearing on the discretionary power to determine the necessity for street improvements and the decision to provide that payment of the costs thereof be made entirely by the City or partly by the abutting property owners.

The judgment of the trial court is AFFIRMED.

       All subsequent statutory references are to sections of said article relating to street improvements and assessments in cities having more than 1,000 inhabitants.


author: CLAYTON, Justice. ■

text:
    Nelson KIEFFER et ux., Appellants, v. E. R. MILLER, M.D., et al., Appellees.
    No. 7996.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 3, 1977.
    Rehearing Denied Nov. 23, 1977.
    Randy Taylor and Paul W. Pearson, Dallas, for appellants.
    James S. Maxwell, Dallas, for appellees.
   CLAYTON, Justice. ■

This is a malpractice case in which a directed verdict was entered for defendant. Plaintiffs have perfected an appeal urging that the trial court erred in refusing to grant plaintiffs’ motions for continuance and their request for a writ of attachment to compel the attendance of a medical witness at the trial.

The evidence shows that approximately four years had transpired since the plaintiffs’ cause of action accrued and the time of trial. The case had been on file for approximately two years, and, during that period of time, plaintiffs made no effort to avail themselves of the various remedies provided in our Rules of Civil Procedure for preserving the testimony of any medical witness. Plaintiffs, during their sworn testimony in support of their first motion for continuance, stated that Dr. Michael Duren had never announced his willingness to testify on their behalf. Plaintiffs’ attorney testified that he had told opposing counsel the week preceding trial that he “ . still didn’t have my medical proof. . . ” A subpoena was not issued for this witness until the first day of trial and was not served upon him until late in the afternoon of the first day of trial.

It is settled law that the matter of granting a continuance rests with the discretion of the trial judge, and that an order denying a motion should not be disturbed on appeal unless it can be shown that the trial judge abused his discretion. Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.1963); Sralla v. Sralla, 524 S.W.2d 557 (Tex. Civ.App.-San Antonio 1975, no writ). In view of the record in this case, it is clear that proper diligence in securing the medical testimony was not shown. See Aetna Casualty and Surety Company v. Burns, 490 S.W.2d 879 (Tex.Civ.App.-Austin 1973, writ ref’d n.r.e.); Hill v. Hill, 423 S.W.2d 943 (Tex.Civ.App.—Houston [1st Dist.] 1968, no writ); Fritsch v. J. M. English Truck Line, 151 Tex. 168, 246 S.W.2d 856 (Tex.1952); Shockley v. Payne, 348 S.W.2d 775 (Tex.Civ.App.—Amarillo 1961, writ ref’d n.r.e.).

Plaintiffs further urge error on the part of the trial judge in denying their request for the issuance of a writ of attachment to compel the attendance of their medical witness, Dr. Duren. In addition to the facts stated above, it is to be noted the plaintiffs’ second motion for continuance, filed on the second day of trial, states that plaintiffs and their attorney were informed by Dr. Duren’s attorney that Dr. Duren had denied having made the statements (favorable to plaintiffs) set forth in the motion and that defendant “acted on the occasions in question with that degree of skill required of him, and not in a negligent manner”.

Tex.R.Civ.P. 179 specifically provides that:

“ . . . nor shall such attachment issue in a civil suit until it shall be shown to the court, by affidavit of the party, his agent or attorney, that all lawful fees have been paid or tendered to such witness.”

Plaintiffs’ motion for a writ of attachment for Dr. Duren contained no affidavit that “all lawful fees” had been paid or tendered to Dr. Duren. This, in and of itself, was adequate grounds for the trial judge to deny plaintiffs’ request for a writ of attachment for Dr. Duren.

In determining whether or not a lower court had erred in denying a defendant a writ of attachment to compel the attendance of a witness, the court, in City of Dallas v. Lentz, 81 S.W. 55 (Tex.Civ.App.—Dallas 1904, writ ref’d), held that the trial court did not err in refusing to grant a writ of attachment despite the fact that the witness had been subpoenaed and had been paid witness fees where the application for attachment did not show “any specific reason why the testimony could not be secured by deposition”.

The refusal to issue an attachment for a doctor in a medical malpractice action is not an abuse of discretion where the circumstances show that, while the case was pending on the court’s docket for a lengthy period of time, the moving party made no attempt to take the deposition of the doctor. Shockley v. Payne, supra. The record before the trial court reflected a lack of diligence on the part of plaintiffs to secure the testimony they so vitally needed for the presentation of their case. In addition, their own sworn affidavits (contained in their second motion for continuance) state that the prospective testimony of Dr. Duren would not be supportive of plaintiffs’ cause of action. The trial judge, in refusing to carry out a useless procedure, did not hinder plaintiffs’ ability to present their case.

Under the facts of this case, we are of the opinion the trial court did not abuse its discretion in overruling the motion for continuance and request for a writ of attachment. The judgment of the trial court is affirmed.

AFFIRMED.


text:
    NEW YORK UNDERWRITERS INS. CO., Appellant, v. Oran UPSHAW, Appellee.
    No. 8037.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 3, 1977.
    Rehearing Denied Nov. 23, 1977.

      William Drew Perkins, Lufkin, for appellant.
    Richard C. Hile, Jasper, for appellee.
   CLAYTON, Justice.

This is a workman’s compensation case wherein the jury found that the plaintiff sustained an injury while working in the course of his employment, that he was totally incapacitated, and that such incapacity was permanent. Judgment was entered based upon such findings.

Appellant (defendant below) challenges the jury findings on the grounds of insufficient evidence and that such findings were so against the great weight and preponderance of the evidence as to be manifestly unjust.

Appellee testified that on the date of his injury, he was working for his employer as a custodian, and that while carrying boxes of merchandise from the loading dock to the second floor storage area of his employer’s premises, something “just popped” in his back. He was off from work the next day and returned to the job the following day, but terminated his employment when he asked for assistance, and it was denied. Appellee continued to have pain in his lower back, and within a week sought medical care. His doctor hospitalized appellee and kept him in back traction for seven days; and that at time of trial he was still having trouble with his back, and both legs; and that he had been unable to do any kind of work. Appellee’s medical witness testified that his diagnosis was low back syndrome and sacroiliac strain; that he had a nerve root pressure involving the right lower limb; that the strain on the joint was caused by “carrying the box up”; that the pain in his right leg resulted from nerve root pressure and “the old football injury”. He further testified that appellee was disabled because of a bulging disc syndrome; that appellee had been totally disabled since he had been seeing him; and that the duration of such disability would be permanent.

We are of the opinion that the evidence presented by appellee raises a fact issue to be decided by the jury, even though, as pointed out by appellant, his witnesses were “interested” witnesses. The general rule as stated in Reed v. Aetna Cas. & Sur. Co., 535 S.W.2d 377 (Tex.Civ.App.—Beaumont 1976, writ ref’d n.r.e.) is “ ‘that evidence given by an interested witness, even though uncontradicted, presents an issue to be determined by the trier of fact.’ ” Gevinson v. Manhatten Construction Co. of Okl., 449 S.W.2d 458 (Tex.1969). Evidence being sufficient to raise the issues, the jury had the sole right to accept or reject the testimony of each witness in whole or in part. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (Tex.1951); Texlan, Incorporated v. Freestone County, 282 S.W.2d 283 (Tex.Civ.App.—Waco 1955, no writ).

Appellant’s points with reference to the sufficiency of the evidence are overruled.

Appellant’s seventh and eighth points complain of the trial court’s action in not permitting it to cross-examine appellee about his prior back injuries, and in refusing appellant to cross-examine appellee’s medical witness about such prior injuries.

The only purpose for introducing evidence of other injuries is the determination of whether the injury is the producing cause of any claimed incapacity. Prior to September 1, 1971, the defense of prior compensable injuries provided a diminution of the recovery. However, with the amendment to Tex.Rev.Civ.Stat.Ann. art. 8306 § 12c (Supp.1977) prior compensable injuries no longer reduce the recovery of a workman because of such prior injury. Texas Employers’ Insurance Association v. Creswell, 511 S.W.2d 68 (Tex.Civ.App.—Eastland 1974, writ ref’d n.r.e.). Thus, with this amendment, evidence concerning prior injuries is of no consequence, unless the prior injury was the sole cause of the present incapacity, and would be admissible only if offered for the purpose of establishing sole cause.

The record in this cause does not show any attempt to connect any prior injury to sole cause. The record further shows that there was no attempt to question the medical witness as to any prior injury or its sole cause aspects. Appellant did not attempt to perfect a bill of exception concerning the testimony of the doctor in regard to prior injuries sustained by appellee. The record does not show that any of the doctor’s testimony was excluded. Even if some evidence was excluded, error is not shown in the exclusion of evidence unless the appellant brings before the appellate court a record that shows clearly not only what the evidence would have been if admitted but also its relevancy. Swinney v. Winters, 532 S.W.2d 396 (Tex.Civ.App.—San Antonio 1975, writ ref’d n.r.e.); Victoria Comfort Air Co. v. Alamo Express, 529 S.W.2d 250 (Tex.Civ.App.—Corpus Christi 1975, no writ).

No error being shown, the judgment of the trial court is AFFIRMED.

       This case was tried before the effective date of S.B. No. 1275, Acts of 65th Legislature, Regular Session, 1977.


text:
    Billie Jean BROOM, Appellant, v. TYLER COUNTY COMMISSIONERS COURT, Appellee.
    No. 8015.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 10, 1977.

      James A. Clark, Woodville, for appellant.
    John E. Kinney, James M. Allison, Wood-ville, for appellee.
   KEITH, Justice.

Plaintiff below appeals from an adverse judgment rendered in a bench trial wherein she sought additional compensation claimed to be due her as Justice of the Peace of Precinct 2 of Tyler County. We have no statement of facts but, by a stipulation filed in this court simultaneously with the filing of the transcript, the parties have agreed “that the Findings of Fact made by the Trial Court shall constitute [the] Statement of Facts proven at the trial of said cause,” and we have twenty-five findings followed by five conclusions of law.

Additionally, the parties entered into a formal stipulation in the trial court which we now summarize:

(1) Plaintiff took office on January 2, 1975;

(2) Her salary, as fixed by the Commissioners Court, was and is $50 per month; and,

(3) The salary of her predecessor in office, from January 9,1973, until October 25, 1973, was $400 per month and, thereafter, was fixed at $50 per month.

The individual members of this Court—as individuals and not as judges—have little sympathy with a rule of law which requires a county to pay a justice of the peace a salary of $400 per month when the sole official function consists of presiding at a couple of speeding cases a month. While we may agree—again personally and not officially—with the trial court’s findings of “unjust enrichment”, etc., a plain error of law is apparent on the face of the record which commands the entry of a judgment against the county. With this preface, we enter, somewhat reluctantly, upon our assigned task of applying the statutory law of the State to the undisputed facts confronting us in the record.

Tex.Rev.Civ.Stat.Ann. art. 3912k, § 1 (Supp.1977), reads:

“Except as otherwise provided by this Act and subject to the limitations of this Act, the commissioners court of each county shall fix the amount of compensation, office expense, travel expense, and all other allowances for county and precinct officials and employees who are paid wholly from county funds, but in no event shall such salaries be set lower than they exist at the effective date of this Act.” (emphasis added)

The italicized language compels the result which we must reach in this case. Under § 9 of the Act, its effective date was fixed at January 1, 1972, but the italicized language set out above was added in 1973 and thus became effective on May 25, 1973.

The parties have not cited, nor have we discovered in our own research, any appellate decision squarely in point on the question. However, there are at least two opinions from the Attorney General of Texas construing the statute as it is involved in the case at bar. Opinions of the attorney general rendered in due course are quite generally regarded as highly persuasive and are entitled to great weight unless clearly wrong. See generally Jones v. Williams, 121 Tex. 94, 45 S.W.2d 130, 131, 79 A.L.R. 983 (1931), and Royalty v. Nicholson, 411 S.W.2d 565, 572 (Tex.Civ.App.-Houston 1967, writ ref’d n. r. e.).

We agree with this language found in Opinion No. H-572 (April 1, 1975) by the Honorable John L. Hill, Attorney General of Texas:

“The effective date of article 3912k was January 1, 1972. That article was amended to include justices of the peace by Acts 1973, 63rd Leg., ch. 188, p. 423. This statute was effective May 25, 1973.”

The parties have stipulated that on May 25,1973, the Commissioners Court had fixed the salary of the Justice of the Peace of Precinct 2 of Tyler County at $400 per month. Under the plain language of the statute, such salary cannot be set lower than it was on that date. Attorney General Hill so held in the opinion noted above and we have reached the same conclusion. See also Opinion No. H-39 (May 14,1973), relating to constables.

Defendant argues that plaintiff knew that the salary was only $50 per month when she ran for and was elected to the office of justice of the peace. From this premise, it argues that she is now es-topped to claim the full salary she is entitled to under the provisions of the statute considered above. Moreover, defendant claims that plaintiff’s complete lack of qualification to discharge the duties of the office and the low volume of business results in her unjust enrichment if the statute is held applicable. Indeed, the trial court so found in its findings of fact and conclusions of law. Again, and as a matter of law, we find that the trial court erred.

In Morrison v. City of Fort Worth, 138 Tex. 10, 155 S.W.2d 908, 910 (1941), our Supreme Court laid down this rule:

“[W]e think it is the law in this State that a public officer cannot estop himself from claiming his statutory salary by agreeing to accept, or by accepting, less than the salary provided by law.”

See also Fannin County v. Dobbs, 202 S.W.2d 950, 951 (Tex.Civ.App.—Texarkana 1947, no writ), and cases therein cited.

We have reviewed the authorities cited by the defendant and do not find them to be persuasive, much less controlling on the record before us.

Although plaintiff contends that the amount of money to which she is entitled is simply a matter of arithmetical calculation, we believe it would be more appropriate for us to direct the trial court to make such computation and to include it in a judgment. Therefore, we reverse the judgment of the trial court and remand the cause to the trial court with these instructions:

(1) The Court will determine the amount of money plaintiff has earned as Justice of the Peace of Precinct 2 of Tyler County calculated upon the basis of $400 per month from the date she took office less the amount which she has received; (2) the Court will compute interest upon each such monthly installment at the rate of nine percent per annum from the date such monthly installment became due until the date of the judgment and such interest shall be added to the salary found under subdivision (1) of this decree. (3) The two sums shall then be added and judgment entered whereby plaintiff shall have and recover such sums from the defendant, Tyler County, Texas.

Additionally, the judgment of the trial court will order the defendant, Commissioners Court of Tyler County, Texas, to pay such judgment forthwith from any current funds from which such a payment may be made legally.

In the event there are no current funds available from which such payment can be made legally, the Court’s judgment shall include a writ of mandamus requiring the defendant to levy and collect a tax sufficient to discharge the said judgment and interest thereon. (4) The Court shall issue the writ of mandamus directing the said defendant to pay plaintiff her salary of $400 per month as and when it comes due for the remainder of her term of office and until such salary is lawfully changed. All costs in all courts are adjudged against the defendant but we do not order execution to issue thereon.

The result which we have reached is required by a legislative enactment. Under these circumstances, we follow the rule announced by our Supreme Court in Fire Ass’n of Philadelphia v. Love, 101 Tex. 376, 108 S.W. 158, 160 (1908),

“It is not permissible for a court, no matter what its opinion might be of the policy of the enactment or of the justice of its effect, to substitute its own opinions with regard to such matters for the plain and clearly stated intention of the legislative department.”

The judgment of the trial court is reversed and the cause is remanded with instructions.

REVERSED and REMANDED with instructions.