author: ROBERTSON, Justice.

text:
    Monte M. DENNETT and Jim G. Bray, Appellants, v. FIRST CONTINENTAL INVESTMENT CORPORATION, Appellee.
    No. 19278.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 24, 1977.

      R. W. (Bill) Glenn, Glenn & Houser, Plano, for appellants.
    Craig Spangenberg, Cleveland, Ohio, for appellee.
   ROBERTSON, Justice.

Monte M. Dennett and Jim G. Bray, defendants in a suit in a district court of Dallas County, filed a third-party action against First Continental Investment Corporation for indemnification of losses sustained via liability in the primary suit. First Continental, an Ohio corporation, filed a special appearance to contest the court’s jurisdiction of its person. The contest was opposed on the basis that the motion was unsworn and that it was filed by the corporate president instead of an attorney. After allowing an amendment inserting the proper jurat, the trial court sustained the special appearance. The third-party action was then severed, and Dennett and Bray appealed. We affirm.

As their initial argument, Dennett and Bray urge that an unsworn special appearance motion cannot be amended and that the submission of such a defective motion resulted in a general appearance. This was the holding in Stewart v. Walton Enterprises, Inc., 496 S.W.2d 956 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.), upon which Dennett and Bray primarily rely. However, since the rendition of Stewart, rule 120a of the Texas Rules of Civil Procedure has been amended to provide, in applicable part:

Such special appearance shall be made by sworn motion filed prior to a plea of privilege or any other plea, pleading or motion; . . . and may be amended to cure defects. [Emphasis added]

Since this amendment supersedes the holding of Stewart, we must hold that a special appearance motion may be amended to cure defects.

Although Dennett and Bray argue that such an amendment must be made prior to the special appearance hearing, we find no basis for such a limitation in the language of the rule. While they analogize this case to Fitzgerald v. Browning-Ferris Mach. Co., 49 S.W.2d 489, 492 (Tex.Civ.App.—Waco 1932, writ dism’d), which seems to hold that an unsworn controverting affidavit to a plea of privilege was not a nullity because it was amended prior to the time it was attacked by the opponent, a closer examination of that ease and other authorities reveals that the time of the amendment was not material to the holding. See e. g., Duncan v. Denton County, 133 S.W.2d 197, 198 (Tex.Civ.App.—Fort Worth 1939, writ dism’d) (unsworn controverting affidavit may be amended even after an objection to its insufficiency had been made); Hoffer Oil Corp. v. Brian, 38 S.W.2d 596 (Tex.Civ.App.—Eastland 1931, no writ) (Trial court’s allowance of amendment to controverting plea on date of hearing held not an abuse of discretion.) Accordingly, we hold that in special appearances, as in affidavits controverting pleas of privilege, the crucial focus is on the allowance of amendment, and the timing of the amendment is not determinative.

As their next contention, Dennett and Bray urge that the'filing of the special appearance motion by the corporate president, rather than an attorney, resulted in a general appearance. This argument is based upon Globe Leasing, Inc. v. Engine Supply and Machine Service, 437 S.W.2d 43 (Tex.Civ.App.—Houston [1st Dist.] 1969, no writ), which held that corporations may not appear in Texas courts by their officers who are not attorneys. Even assuming the viability of this doctrine, however, the record before us demonstrates the involvement of counsel at the time the motion was filed. The motion was prepared and notarized by counsel, and the same attorney appeared to represent the corporation at the hearing. No objection to the special appearance by First Continental was made until after the trial court had recognized that First Continental was represented by counsel. Under these circumstances, we are not convinced that the mere signature of the corporate president on the motion instead of that of an attorney rendered the motion a nullity.

Lastly, Dennett and Bray argue that the trial court erred in finding that First Continental did not engage in business in Texas so as to justify assertion of jurisdiction over its person. In support of this contention, Dennett and Bray note that First Continental engaged in contract negotiations in Texas, which negotiations ultimately culminated in the contract which forms the basis of this suit. They submit that these negotiations are a sufficient basis for personal jurisdiction. We do not agree. Assumption of personal jurisdiction over a non-resident defendant must be in accord with the constitutional guarantee of due process of law, and in order to satisfy this requirement, the defendant must have purposefully done some act or consummated some transaction in Texas, and the assertion of jurisdiction by the Texas Court must not offend traditional standards of fair play and substantial justice. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); U-Anchore Advertising, Inc. v. Burt, 553 S.W.2d 760, 762-63 (Tex.1977); See Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). As stated in Hanson v. Denckla, supra at 253, 78 S.Ct. at 1240:

[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, this invoking the benefits and protections of its law.

In the present ease, the contacts of First Continental with Texas are minimal and fortuitous, and it cannot be said that activities were “purposefully” conducted in Texas. The contract negotiations were not grounded upon any expectation or necessity of invoking the benefits or protections of Texas law, nor were they designed to result in profit from a business transaction undertaken in Texas. No contract was consummated in this state, and no part of the contract was to be performed here. Under these circumstances, the due process clause of the Fourteenth Amendment barred the trial court from assuming personal jurisdiction over First Continental. Accordingly, the special appearance was properly sustained.

Affirmed.


source: Caselaw Access Project

author: RAY, Justice.

license: Public Domain

text:
    DELTA COUNTY LEVEE IMPROVEMENT DISTRICT NO. 2, et al., Appellants, v. Obie P. LEONARD, Jr., et al., Appellees.
    No. 8447.
    Court of Civil Appeals of Texas, Texarkana.
    Oct. 25, 1977.
    Rehearing Denied Nov. 22, 1977.

      Hardy Moore, Paris, for appellants.
    Gene Dozier, Kleber C. Miller & Co., Fort Worth, for appellees.
   RAY, Justice.

This is an appeal from a judgment rendered pursuant to the mandate issued by the Texas Supreme Court on a prior appeal directing the issuance of a writ of mandamus in order to effect the collection of three judgments against Delta County Levee Improvement District No. 2.

The mandamus directed the appellants to raise funds to extinguish the judgment debts owed to the appellees. The debts are the result of default on bonds sold in 1919 to finance proposed projects of the Delta County Levee Improvement District. Ap-pellees are the assignees of judgment liens secured when the district defaulted on the bonds. The appellants are the Delta County Levee Improvement District No. 2, its supervisors and the Delta County Commissioner’s Court.

Action was initiated by the appellees to collect on the judgment liens. Mandamus was sought to compel the appellants to levy and assess new taxes and collect delinquent taxes to raise the necessary funds.

The continuing validity of the appellees’ claims was established in prior appeals to this Court and to the Supreme Court of Texas. Leonard v. Delta County Levee Improvement Dist. No. 2, 507 S.W.2d 333 (Tex.Civ.App.Texarkana 1974), aff’d 516 S.W.2d 911 (Tex.1975), cert. denied, 423 U.S. 829, 96 S.Ct. 48, 46 L.Ed.2d 46 (1975). Upon remand of the case the trial court directed the clerk to issue a writ of mandamus. From that order the appellants have perfected this appeal.

The appellees assert that all of the appellants’ points of error were overruled in the prior appeal of this ease, and that the law of the case doctrine precludes further consideration of those points. The application of the law of the case doctrine constitutes a threshold issue for this appeal.

This Court had occasion to apply the doctrine most recently in Dessommes v. Dessommes, 543 S.W.2d 165, 169 (Tex.Civ.App.Texarkana 1976, writ ref’d n. r. e.). The law of the case was said to be established when a question of law is determined in an appeal to a court of last resort, and to be controlling in all subsequent stages including retrial and subsequent appeal. See generally 4 Tex.Jur.2d, Rev., Part 2, Appeal & Error — Civil Cases, Sec. 997, p. 730.

The various jurisdictions have been noted to differ on the application of the doctrine to points which were not necessarily involved in the former appeal or which would have been, but were not raised there. 5 Am.Jur.2d, Appeal and Error, Sec. 752, p. 196.

In Texas, the doctrine of the law of the case has been held inapplicable to questions of law that were not decided by the appellate court on the prior appeal. Magnolia Park Co. v. Tinsley, 96 Tex. 364, 73 S.W. 5 (1903); 4 Tex.Jur.2d, Rev., Part 2, Appeal & Error—Civil Cases, Sec. 1004, p. 738.

The prior appeal of the instant case was concerned only with the possible legal justification for an order of mandamus which had been refused by the trial court. At issue was whether or not there was a valid, enforceable obligation owed the appellees for which mandamus of the appellants would lie. This Court and the Supreme Court of Texas both answered in the affirmative and the case was remanded to the trial court.

The present appeal concerns the validity of the mandamus as directed to be issued by order of the trial court after the remand of the case. The asserted flaws in the mandamus were not considered in the prior appeal because the order directing the mandamus to be issued was not then in being. This conclusion is unaffected by the fact that the issues now before this Court may have been foreshadowed by the briefs of the parties in the prior appeal. The order for the mandamus not being viable at that time, any shortcomings it might have had when finally decreed were not ripe for consideration.

This Court must proceed then to rule on the merits of the appellants’ points of error. At issue is how, not whether, the appellees will be paid.

The appellants’ first point of error complains of the order of the trial court that taxes be levied, assessed and collected from 1919 to date. The appellants assert the application of Article 7336f, Tex.Rev.Civ.Stat.Ann. (Supp. 1976-1977), which bars the collection of ad valorem taxes which became delinquent prior to December 31, 1939.

The collection of these delinquent taxes was coupled by the trial court with the assessment of new taxes in a complex order aimed at retiring the debt by the year 1982. The order requires that new taxes retire 20% of the debt each year beginning in 1978, but allows any proceeds received from the collection of delinquent taxes to be credited against the amount to be raised the following year.

The delinquent taxes in the instant case date back to the time of the creation of the District in 1919. When the sale of construction and maintenance bonds was authorized, so was the levying of a tax to pay the interest on the bonds and to provide a sinking fund for their retirement at maturity.

The appellees assert that assessment of these taxes was part of the contractual obligation between its assignors and the appellants. Cited as authority is Edwards v. Kearzey, 96 U.S. 793, 24 L.Ed. 793 (1877), which holds that the remedy subsisting when a contract is made is part of its obligation. Insofar as Article 7336f impairs that obligation, the appellees contend that the statute is in violation of the contract clause of the U. S. Constitution, article I, Sec. 10.

The appellants respond that Article 7336f has no effect on the obligation to pay off the bonds, but merely changes the remedy by which payment can be sought by narrowing the scope of taxable years. Permissible changes of remedy have often been distinguished from prohibited impairments of obligation. Aikens v. Kingsberry, 247 U.S. 484, 38 S.Ct. 558, 62 L.Ed. 1226 (1918); Simmons v. City of El Paso, 320 F.2d 541 (5th Cir. 1963), rev’d on other grounds, 379 U.S. 497, 85 S.Ct. 577, 13 L.Ed.2d 446 (1965); Paschal v. Perez, 7 Tex. 348, 365 (1851); and see generally 8A Texas Digest, Constitutional Law, The basis of this distinction lies largely in reasonableness unguided by definitive rules. 16 Am. Jur.2d, Constitutional Law, Sec. 456, p. 810. A total or substantial impairment of remedy will be held to have a corresponding impairment of obligations. 3 Corbin On Contracts, Sec. 551, p. 200. A change in remedy which leaves adequate and substantial alternative remedies will be upheld. 12 Tex.Jur.2d, Constitutional Law, Sec. 128, pp. 475, 476; Lingo Lumber Co. v. Hayes, 64 S.W.2d 835 (Tex.Civ.App.Dallas 1933, no writ). If the value of the contract has not been diminished, then its obligation has not been impaired. Dallas County Levee Improvement Dist. No. 6 v. Rugel, 36 S.W.2d 188, 189 (Tex.Com.App.1931, jdgmt. adopted).

Texas authorities most nearly on point have held that when an act of the state legislature authorizing a bond issue creates or authorizes the creation of a certain fund for the bonds’ payment, such provision of the act cannot be repealed without the substitution of something of equal efficacy. City of Aransas Pass v. Keeling, 112 Tex. 339, 247 S.W. 818, 821 (1923); City of Austin v. Cahill, 99 Tex. 172, 88 S.W. 542 (1905). The constitutional issue is not what the subsequent legislation takes in the way of contract remedies, but what it leaves untouched. If the surviving or newly created remedies provide a satisfactory means of recovery, then the contract clause has not been offended. This was the rule applied by the Supreme Court of Arkansas in Beaumont v. Faubus, 239 Ark. 801, 394 S.W.2d 478 (1965). There the obligation of the state relative to highway funding bonds was said to have been unimpaired by the statutory substitution of federal government bonds as security for certain state highway revenues. The right of bond holders to be repaid was said not to include the right to be repaid from a particular source.

The only case which has been discovered adjudicating the validity of statutory cancellation of delinquent taxes is San Bernardino County v. Way, 18 Cal.2d 647, 117 P.2d 354 (1941). The court upheld the validity of the statute noting that debts owed the bond holders could be satisfied by an additional levy upon the taxable property in the district. The California case is interesting by way of contrast to the case at bar. There the taxpayers challenged the validity of the remission statute, asserting that imposition of new taxes would alter their contractual obligation to pay off the bonds as per the original structure. Their argument was rejected upon a fact finding that the change in remedy was to their advantage. Here the remission statute is assailed by the judgment lien holders, the appellees. Ap-pellees have, however, failed to present any evidence of any hardship which would befall them if they were repaid out of contemporary rather than delinquent tax assessments.

The order of the trial court imposed a tax structure under which 20% of the debt owed would be repaid each year with credit given against the debt for collection of delinquent taxes. The order must be reformed to disallow collection of taxes delinquent before December 31, 1939. Such a modification will fulfill the will of the legislature and provide an adequate remedy without impairing any contractual obligation owed or owned by the parties.

The appellants’ second, third and fifth points of error complain of the severity of the order of mandamus as issued by the trial court. Their fourth point of error complains, without elaboration, of deprivation of due process by the promulgation of the trial court’s plan of taxation.

The appellees contend that the appellants, acting in their official capacities, lack the standing to raise these issues. A ministerial officer cannot question the constitutionality of the law fixing his ministerial duties. 16 Am.Jur.2d, Constitutional Law, Sec. 128, pp. 325, 326.

The courts cannot, however, compel a public official to act in compliance with an unconstitutional law, and the public official may question the legality of such a law. Holman v. Pabst, 27 S.W.2d 340 (Tex.Civ.App. Galveston 1930, writ ref’d); 37 Tex.Jur.2d, Mandamus, Sec. 10, p. 598. See also Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645, 654 (1951), for a discussion of this problem. Although the Holman case dealt with a constitutional challenge to a statute, there is no apparent reason why the same rule should not be applied to a constitutional challenge to a judicial decree. We find appellants’ points to be without merit. The constitutional obligation to levy and collect taxes is one that can be enforced by mandamus sought by creditors of the taxing unit. City of East St. Louis v. United States ex rel. Amy, 120 U.S. 600, 7 S.Ct. 739, 30 L.Ed. 798 (1887); Voorhies v. City of Houston, 70 Tex. 331, 7 S.W. 679 (1888); City of Austin v. Cahill, supra. This same authority establishes that the severity of the order is within the sound discretion of the trial court and that appellate courts will not sympathize when the debts were voluntarily incurred and allowed to accumulate by neglect. See City of Breckenridge v. Avenius, 75 S.W.2d 916 (Tex.Civ.App. East-land 1934, no writ).

The judgment of the trial court is modified to reflect that the clerk of the District Court of Delta County shall issue a peremptory writ of mandamus ordering appellants and their successors to assess the property in Delta County Levee Improvement District No. 2 for each and every year since 1939 that such property was not assessed rather than the year 1919 as set out in the trial court’s judgment and the tax levy upon the property within the district is hereby changed in the trial court’s judgment from 1919 to the year 1939 such that the Commissioner’s Court is ordered to make a lawful tax levy upon the property within the levee district for each and every year that such levy was not made from 1939 to the present, according to the laws of the State of Texas for making tax levies.

The judgment of the trial court as modified is affirmed. Tex.R.Civ.P. 435.


author: COULSON, Justice.

text:
    The CITY OF CLUTE, Texas, Appellant, v. The CITY OF LAKE JACKSON, Texas, Appellee.
    No. 1506.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 31, 1977.
    Rehearing Denied Dec. 21, 1977.

      W. N. Shaw, City Atty., City of Clute, Freeport, Waggoner Carr, Chris D. Hars-dorff, Austin, for appellant.
    William S. Olson, Jr., Olson & Olson, Houston, John E. Dewey, City Atty., Lake Jackson, for appellee.
   COULSON, Justice.

This is an appeal from a consolidated action in which both the appellant, City of Clute, and the appellee, City of Lake Jackson, sought a declaratory judgment invalidating the ordinances by which the other had annexed certain areas. After a nonju-ry trial, the district court rendered judgment upholding the validity of the Lake Jackson annexation and declaring all of the Clute annexation ordinances invalid. At the request of Clute, the court filed findings of fact and conclusions of law. We affirm in part and reverse and render in part.

Lake Jackson and Clute are home rule cities situated in Brazoria County. According to the 1970 federal census, Lake Jackson has a population of 13,376 and Clute has a population of 6,023. Clute lies basically east of Lake Jackson; less than one mile separates the two cities.

On July 2, 1960, the City Council of Lake Jackson passed Ordinance No. 248. This ordinance, together with its subsequent amendment, annexed a large tract of land to the west and south of Lake Jackson, plus a strip of land encircling an area occupied by a Dow Chemical Company plant.

The City Council of Clute passed Ordinance No. 309 on October 10, 1968; Ordinance No. 336 on October 23, 1969; Ordinance No. 362 on April 13,1972; Ordinance No. 375 on November 27, 1972; and Ordinance No. 73-11 on August 9,1973. Part of the territory annexed by Ordinances No. 309, 362, and 375 lies between the eastern boundary of Lake Jackson and the western boundary of Clute. The remaining ordinances annexed land to the south of Clute.

The City of Clute appeals on seventeen points of error, which relate to four different topics: Lake Jackson’s Ordinance No. 248, the effect of two agreements entered into by the cities, and the Clute ordinances. We will discuss each of these matters separately.

LAKE JACKSON ORDINANCE NO. 248

Clute’s first two points of error contend the trial court erred in holding that the issue of non-adjacency of the territory annexed by Lake Jackson Ordinance No. 248 was not raised in Clute’s pleadings, was not tried by consent, and these matters notwithstanding, the territory annexed by No. 248 was at the time of passage of the ordinance, and is now, adjacent to Lake Jackson. While we agree with all the conclusions of the trial court, we need only discuss the issue of adjacency since our holding on that matter obviates discussion of the others.

Among the enumerated powers granted to home rule cities is the power to annex adjacent territory. Tex.Rev.Civ.Stat.Ann. art. 1175(2) (1963); State ex rel. Pan Am. Prod. Co. v. Texas City, 157 Tex. 450, 452, 303 S.W.2d 780, 781 (1957). The Texas Supreme Court reviewed the law on adjacency in Fox Dev. Co. v. City of San Antonio, 468 S.W.2d 338, 339-41 (Tex.Sup.1971):

Rules of long standing in our State were reaffirmed in State ex rel. Pan American Production Co. v. Texas City, supra. It was there repeated that the only limitation on the power of a city to annex additional territory is that it be adjacent to the city and not included within the boundaries of any other municipality; and “that the Legislature used the term [adjacent] in the sense of being ‘contiguous’ and ‘in the neighborhood of or in the vicinity of,’ without reference to the character of the land or the use to which it is put.” .
City of Pasadena v. City of Houston, 442 S.W.2d 325 (Tex.Sup.1969) and City of Irving v. Dallas County Flood Control District, 383 S.W.2d 571 (Tex.Sup.1964), upon which petitioner principally relies, are not apposite. The problem in each of these cases was whether the respective territories, which were contiguous to each of the competing Home Rule cities and patently adjacent to the contesting cities, would also be considered adjacent in law to the cities attempting annexation. The holdings were not that there could be no adjacency in the statutory sense as to the annexing cities, which had lesser contiguity, but that the other cities had controlling adjacency. This rested upon the disproportionate touching of the respective city boundaries, and not upon the size, shape or character of the strips of land in question in relation to the cities involved. [Emphasis added.]

In the Pasadena and Irving cases, the territory attempted to be annexed abutted the boundaries of another city over a much greater distance than it abutted the boundaries of the annexing city. None of the territory annexed by Ordinance No. 248 touches the boundaries of Clute as they existed when the ordinance was enacted. There is some evidence in the record that the City of Freeport is adjacent to a portion of the territory annexed, but we are unable to determine the extent of the “touching”, if any. We realize that much of the territory annexed is closer to Clute than it is to Lake Jackson, but that is not the test set out in Fox Development.

In 1976, the supreme court was urged to re-examine and overrule Fox Development in City of Wichita Falls v. State ex rel. Vogtsberger, 533 S.W.2d 927, appeal dismissed, 429 U.S. 908, 97 S.Ct. 298, 50 L.Ed.2d 276 (1976). Instead, the court strengthened the holding of Fox Development :

Traditionally, the courts of this State have not scrutinized the purpose of annexation ordinances or the use or character of the occupation of the annexed territory. Nor have our courts prescribed shape limitations. These are legislative prerogatives. . . . Where there is compliance with statutory requirements, as here, the annexation ordinance must stand whether the attack is direct by quo warranto or collateral.

533 S.W.2d at 929, 930.

We affirm the trial court’s conclusion of law that the territory annexed by Ordinance No. 248 was at the time of passage and is now adjacent to the City of Lake Jackson.

Clute’s third and fourth points of error attack the trial court’s finding of fact and conclusion of law that the description of the territory annexed by Ordinance No. 248 closes, constitutes a continuous, unbroken line, is sufficient to locate the territory on the ground, and effectively describes territory contiguous to Lake Jackson. Clute contends that the ordinance omits a call or calls necessary to properly and sufficiently describe a point for a corner. The call in issue reads:

THENCE continuing in a northwesterly direction on a line 10 ft. from and parallel to the corporate limits of the said Village of Lake Barbara said corporate limits being along the north and northeast lines of Tracts No. 551, 553 and 555 all of said Subdivision No. 14, A. Calvit League, Abstract No. 49, to a point for a corner, said corner being on the intersection between the said northeast line of said Tract No. 555 and the proposed southerly right-of-way line of the new location of State Highway No. 332.

Clute bases its contention that the description fails on disputes, extensively developed during the trial, as to the location of Lake Barbara’s corporate limits and the effects of changes in the right-of-way line along State Highway 332.

Expert witnesses testified for both parties. Robert Adams, a registered public surveyor licensed by the State of Texas, testified for Clute that the property description in Ordinance No. 248 does not close; David Lawson, a registered engineer licensed by the State of Texas, testified for Lake Jackson that it does.

A city annexation ordinance containing a description which does not close is void, and a call cannot be added to such ordinance by showing that the enacting body intended the call to be included. State ex rel. Rose v. City of La Porte, 386 S.W.2d 782, 788-89 (Tex.Sup.1965). But that is not the case here. The dispute between the parties does not involve a call that was omitted, but rather the location of physical points referred to in a call. As such, the issue was one of fact.

The trial found that Ordinance No. 248 closes. The findings of the trial court are entitled to the same weight and conclusiveness on appeal as is the verdict of a jury. The fact findings will not be disturbed on appeal if there is some evidence of probative force to support them, viewing the evidence in the light most favorable to the successful party and indulging every legitimate conclusion that is favorable to him. Mitchell’s, Inc. v. Nelms, 454 S.W.2d 809, 813 (Tex.Civ.App.—Dallas 1970, writ ref’d n. r. e.). The trial court was faced with a difference in opinion by two qualified expert witnesses, and he resolved the issue in favor of Lake Jackson.

An ordinance is to be construed in such a manner as to uphold it, if this can reasonably be done. Town of Port Acres v. City of Port Arthur, 340 S.W.2d 325, 331 (Tex.Civ.App.—Beaumont 1960, writ ref’d n. r. e.). The interpretation of the call given by Lawson, Lake Jackson’s expert, is a reasonable one and it, together with other evidence in the record, amply supports the finding by the trial court that Ordinance No. 248 closes.

We hold that Ordinance No. 248 is valid. Appellant’s third and fourth points of error are overruled. In light of our holding on these points, Clute’s fifth point of error need not be considered.

THE 1965 AGREEMENT

Clute’s sixth point of error asserts the trial court erred in holding that a 1965 agreement between Clute and Lake Jackson

affected only that overlapped extraterritorial jurisdiction North of a line extending from the intersection of the center line of Flag Lake Road and the North right-of-way line of State Highway 332 to the most Southern point on the most Western line of the corporate limits of the City of Clute .... [Emphasis added.]

On December 17, 1965, the Cities of Clute, Lake Jackson and Richwood Village (which lies north of Clute and Lake Jackson) entered into a written agreement apportioning the unincorporated areas within the overlapping extraterritorial jurisdiction of these cities in accordance with the provisions of the Municipal Annexation Act, Tex. Rev.Civ.Stat.Ann. art. 970a, § 3B (1963). The area between Clute and Lake Jackson intended to be apportioned is described in the agreement as follows:

Between the Cities of Clute and Lake Jackson, Texas, lies a tract of land east of the City of Lake Jackson, and northeast of that city; such being west of and northwest of the City of Clute as their corporate boundary lines exist as of the date of this Agreement. [Emphasis added.]

The question involved here is where the southern boundary line of the territory apportioned Clute lies. There is agreement as to the location of the line’s western terminus, but dispute as to its eastern terminus. The trial court concluded that it is the southernmost western city limit line of the City of Clute, while Clute contends it is simply the westernmost limit.

While the termination point suggested by Clute would effectively apportion territory to the east and northeast of Lake Jackson, it would extend the agreement to more than just the territory to the west and northwest of Clute. Much of the territory would lie to the south of Clute. Notwithstanding some evidence to the contrary, we believe the clear intention of the parties is reflected in the trial court’s conclusion.

Appellant’s sixth point of error is overruled.

THE 1970 AGREEMENT

The trial court found that the Cities of Clute and Lake Jackson did not, on January 15, 1970, enter into an agreement in writing, approved by an ordinance or resolution adopted by the city councils, to apportion an area of overlapped extraterritorial jurisdiction. The court held that cities may voluntarily apportion overlapped extraterritorial jurisdiction only by mutual written agreement of the governing bodies of such cities, approved by an ordinance or resolution adopted by such governing bodies. Clute’s seventh and eighth points of error attack this finding of fact and conclusion of law.

Section 3(B) of the Municipal Annexation Act provides in pertinent part:

B. In the event that on the effective date of this Act the area under the extraterritorial jurisdiction of a city overlaps an area under the extraterritorial jurisdiction of one or more other cities, such overlapped area may be apportioned by mutual agreement of the governing bodies of the cities concerned. Such agreement shall be in writing and shall be approved by an ordinance or resolution adopted by such governing bodies. [Emphasis added.]

Clute contends that the following letter is a written agreement between the two cities to apportion overlapped extraterritorial jurisdiction:

TO WHOM IT MAY CONCERN:
This is to advise that by verbal agreement between the Mayors and City Councils of the Cities of Lake Jackson and Clute it has been mutually agreed that along State Highway 332, between Flag Lake Road and State Highway 288, the jurisdictional line separating the two cities will be along the South Right-of-Way Line of State Highway 332.
/s/ Jack Reid Jack Reid, Mayor
City of Lake Jackson, Texas.
/s/ Bruce Runnels 1-Bruce Runnels, Mayor
bity of Clute, Texas

January 15, 1970

On February 12,1970, the City Council of Clute, by motion, unanimously authorized Mayor Runnels to sign the letter. The entire text of the letter was read verbatim into the minutes of the council meeting. On February 16, 1970, the City Council of Lake Jackson, by motion, unanimously authorized Mayor Reid to sign the letter. Although the entire letter is not reproduced in the minutes, the operative terms of the agreement are set out:

It was previously agreed that along State Highway 332, between Flag Lake Road and State Highway 288, the jurisdiction line separating the two cities will be along the south right-of-way line of State Highway 332.

Lake Jackson contends that this letter is not an agreement in writing and was not approved by an ordinance or resolution adopted by the governing body of either Lake Jackson or Clute. We disagree. The letter is brief and informal, but clearly and concisely provides that Lake Jackson is relinquishing all jurisdiction (necessarily including extraterritorial jurisdiction) north of the south right-of-way line of State Highway 332, between Flag Lake Road and State Highway 288, to the City of Clute. By comparison, the 1965 agreement, with its long and laborious metes and bounds description of the territory included therein, is so vague and confusing that the mayors, •city councils, attorneys and courts involved in this litigation have spent ten years attempting to decipher and abide by it. It may well be that the 1970 agreement was the result of an effort by the mayors of the two cities to clarify the 1965 agreement. It is also evidence that, in 1970, Clute recognized the validity of Lake Jackson Ordinance No. 248; Lake Jackson would have no extraterritorial jurisdiction in the area but for the annexation by Ordinance No. 248.

Lake Jackson does not contend, and the trial court did not find, that the cities did not enter into the 1970 agreement. The contention is that no formal resolution or ordinance was passed by either council. More specifically, the approval of the agreement by Lake Jackson did not comply with its charter requirement relating to the printing and recording of resolutions.

Surely the legislature in drafting the Municipal Annexation Act did not intend that its provisions be subject to the vicissitudes of the hundreds of city charters in force across the state. Our task is to construe the provisions of a state statute, and we are not concerned with whether the cities involved complied with the technicalities of their city charters.

The Act permits cities to adopt such agreements by resolution. The distinction between legislative enactments, such as statutes and ordinances, and resolutions has long been recognized in this state. Tex.Const. art. III, § 34; City of San Antonio v. Micklejohn, 89 Tex. 79, 33 S.W. 735 (1895); State v. Delesdenier, 7 Tex. 76 (1851); McCarthy v. McElvaney, 182 S.W. 1181 (Tex.Civ.App.—Dallas 1916, writ ref’d); Conley v. Texas Div. of United Daughters of Confederacy, 164 S.W. 24 (Tex.Civ.App.—Austin 1913, writ ref’d).

A resolution has been defined as “[a]n expression of the opinion or mind of a municipal council concerning some matter of administration and providing for the disposition thereof, being less formal than an ordinance and requiring no set form of words.” Ballentine’s Law Dictionary (3d ed. 1969); McCarthy v. McElvaney, 182 S.W. at 1183. “The term is usually employed to denote the adoption of a motion. . ” Black’s Law Dictionary (rev. 4th ed. 1968).

It was held in El Paso Gas, Electric Light & Power Co. v. City of El Paso, 22 Tex.Civ.App. 309, 312, 54 S.W. 798, 799 (1899, writ ref’d):

A “resolution,” in the sense used in the charter, is nothing more than the formal expression of the will of the city council, and a “motion” is a proposal made to evoke action upon the part of the council or other assembly. When the motion had been acted upon, it became the formal expression of the will, or resolution, of the city council.

We hold that the approval and adoption of the 1970 agreement by the city councils of Clute and Lake Jackson was in substantial compliance with the requirements of the Municipal Annexation Act. We note that the 1970 agreement was prepared by Lake Jackson Mayor Reid, and Lake Jackson does not challenge the 1965 agreement even though it was adopted by Clute by motion. We should not be understood as condoning the degree of informality with which this agreement was approved. But neither should we allow Lake Jackson’s failure to comply with its own charter to defeat the obvious intent of the parties. Moreover, we believe that by enacting the Municipal Annexation Act, the legislature intended to foster voluntary agreements between adjacent cities as to overlapped extraterritorial jurisdiction. A liberal construction of such agreements is in the public interest and furthers one of the purposes of the Act. Clute’s eighth point of error is sustained; its seventh point is overruled.

THE CLUTE ORDINANCES

Several findings of fact and conclusions of law of the trial court are affected by our interpretation of the 1965 agreement and validation of the 1970 agreement. All of Clute’s ordinances were enacted between 1968 and 1973, and at least a portion of the territory annexed by each of the ordinances was outside of the extraterritorial jurisdiction of Clute, as that jurisdiction existed after the 1965 agreement. After the effective date of the 1970 agreement, however, all of the ordinances annexed territory within the exclusive extraterritorial jurisdiction (either by statute or apportionment) of Clute. Therefore, only those ordinances enacted between 1965 and 1970 annexed territory within the exclusive or overlapped extraterritorial jurisdiction of Lake Jackson, j. e., Ordinances No. 309 (1968) and No. 336 (1969). Since “a city may annex territory only within the confines of its extraterritorial jurisdiction . . .”, Tex.Rev. Civ.Stat.Ann. art. 970a § 7(A) (1963), Ordinances No. 309 and 336 violate the Municipal Annexation Act and cannot stand.

The record clearly establishes that because of substantive and procedural defects in the enactment of the Clute ordinances, none of them were valid when passed. This was essentially the finding of the trial court. Nevertheless, the legislature has the power to validate an otherwise void annexation ordinance. State ex rel. Armstrong v. City of Gladewater, 242 S.W.2d 650, 652 (Tex.Civ.App.—Texarkana 1951, writ ref’d). Clute contends that its ordinances were validated by Tex.Rev.Civ.Stat.Ann. arts. 974d-19, 974d-20, 974d-21 (Supp.1976-77).

Article 974d-20 refers to consolidation proceedings and has no bearing on this case. Articles 974d-19 and 974d-21 are effective to validate Clute Ordinances No. 362, 375, and 73-11. Those validation statutes cannot save Ordinances No. 309 and 336 since both statutes expressly provide that a boundary line extended by annexation into the extraterritorial jurisdiction of another city is not validated.

The trial court’s findings of fact that all of the Clute ordinances annexed territory within the extraterritorial jurisdiction of Lake Jackson were based on its conclusion that the 1970 agreement was a nullity. Our conclusion as to the 1970 agreement is to the contrary. Hence, appellant’s ninth, tenth, eleventh, and twelfth points of error, to the extent that those points pertain to the validity of Ordinances No. 362, 375, and 73-11, are sustained. We need not consider points thirteen through seventeen.

In summation, we hold:

(1) Lake Jackson Ordinance No. 248 is valid.
(2) Clute Ordinances No. 362, 375, and 73-11 are valid.
(3) Clute Ordinances No. 309 and 336 are void.
(4) The City of Clute has exclusive extraterritorial jurisdiction over that territory north of the south right-of-way line of State Highway 332 between Flag Lake Road and State Highway 288, including the territory it attempted to annex in Ordinances No. 309 and 336.

The judgment of the trial court is affirmed in part; reversed and rendered in part. Costs are taxed one-half against appellant and one-half against appellee.


author: GUITTARD, Chief Justice.

text:
    Enrique BARRIENTOS, Sr., Appellant, v. Candleria GARZA, Appellee.
    No. 19330.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 2, 1977.
    James A. Rupard, Dallas, for appellant.
    Paul M. Rothermel, Jr., Dallas, for appel-lee.
   GUITTARD, Chief Justice.

The question for our decision is whether a grandparent may maintain an independent suit for access to a child under Texas Family Code Annotated, Section 14.-03(d) (Vernon Supp.1976), when no managing conservator has been appointed. We hold that the grandparent may not maintain such a suit.

The children in this case were born to appellant, Enrique Barrientos and his wife Mary Lou, now deceased. In Mary Lou’s lifetime her mother, Candleria Garza, lived in the home and helped with the children, and after her death Mrs. Garza assumed the mother’s responsibility. After the father remarried, differences arose, and Mrs. Garza was required to move out. When further problems developed over Mrs. Garza’s contacts with the children, she brought this suit to establish access rights under Texas Family Code Annotated, Section 14.03(d) (Vernon Supp.1976). After trial without a jury, the court entered an order awaiting Mrs. Garza “access to and visitation with the children ... on every other Saturday from 9:00 A.M. until 5:00 P.M.” The father appeals, contending that section 14.-03 does not provide a grandparent an independent cause of action for access rights to a child in the custody of a fit custodial parent.

The question so presented requires interpretation of section 14.03, which provides:

(a) If a managing conservator is appointed, the court may appoint one or more possessory conservators and set the time and conditions for possession of or access to the child by the possessory conservators and others.
(b) On the appointment of a possessory conservator, the court shall prescribe the rights, privileges, duties, and powers of the possessory conservator.
(c) The court may not deny possession of or access to a child to either or both parents unless it finds that parental possession or access is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child.
(d) The court may grant reasonable access rights to either the maternal or paternal grandparents of the child and issue any necessary orders to enforce the decree. [Emphasis added.]

The precise question is whether the condition expressed in subdivision (a), “If a managing conservator is appointed,” applies to the subsequent subdivisions. We hold that it does. Unless a managing conservator has been appointed, then, by the express language of subdivision (a), no possessory conservator may be appointed. The same condition necessarily applies to subdivision (b), which concerns the rights of a possessory conservator appointed as authorized in subdivision (a). Likewise, subdivision (c), which concerns limitation or denial of possession or access of parents, can have no application unless a managing conservator has been appointed under subdivision (a) and a question arises concerning the rights of a parent who has not been appointed managing conservator.

Subdivision (d), like subdivisions (b) and (c), is not by its own language conditioned on appointment of a managing conservator. Nevertheless, our consideration of the entire section persuades us that subdivision (d), also, is subject to the condition expressed in subdivision (a). This conclusion is supported by that provision of subdivision (a) which authorizes the court to “set the time and conditions for possession of or access to the child by the possessory conservator and others.” [Emphasis added]. We do not know what “others” may be referred to unless they include parents, whose access rights are mentioned in subdivision (c), and grandparents, whose access rights are governed by subdivision (d). Certainly, grandparents are included. This provision for determination of access rights, like the provision for appointment of possessory conservators, is expressly conditioned on appointment of a managing conservator.

Thus we read subdivision (a) to mean that if a managing conservator is appointed, the court may appoint possessory conservators and set the terms and conditions of their possession, and may also set the terms and conditions of access for other persons, including grandparents who may be granted rights of access under subdivision (c) or (d). If no managing conservator is appointed, then no terms or conditions of possession or access may be set.

The result of this interpretation is that if a child is in the custody of a parent whose rights and responsibilities do not depend on his appointment as managing conservator, that parent has responsibility and authority to determine what persons may have access to the child, and the terms and conditions of their access, and no order by the court is appropriate or authorized.

This interpretation is based on the language of section 14.03, but it is reinforced by considerations of policy. Before enactment of the Code, Texas decisions had settled the rule that a grandparent had no legal right of visitation with his minor grandchild over the objection of the parents or of a single parent having custody. Green v. Green, 485 S.W.2d 941 (Tex.Civ.App.—Eastland 1972, writ ref’d n. r. e.); Smith v. Painter, 408 S.W.2d 785 (Tex.Civ.App.—Eastland 1966, writ ref’d n. r. e. per curiam, 412 S.W.2d 28 (Tex.1967). This has been the general common law rule. Veazey v. Stewart, 251 Ark. 334, 472 S.W.2d 102 (1971); Odell v. Lutz, 78 Cal.App.2d 104, 177 P.2d 628 (Dist.Ct.App.1947); Succession of Reiss, 46 La.Ann. 347, 15 So. 151 (1894); Flannery v. Sharp, 151 Pa.Super. 612, 30 A.2d 810 (1943). That rule is based on a policy of non-interference with the authority and control of the custodial parent so as to avoid any harm likely to result to children from litigation over rights of visitation. Gault, Grandparent—Grandchild Visitation, 37 Tex.B.J. 433 (1974). Litigation concerning children is frequently bitter and emotionally charged, and the resulting harm to the children can be justified only on the ground of necessity to protect their best interests. Although grandparents usually have strong emotional ties to their grandchildren, and contact with grandparents are usually in the best interest of the children, we are persuaded that the children’s interest will be better served, in the long run, by leaving such contacts to the discretion of the custodial parent rather than by permitting judicial intermeddling through the process of litigation.

We recognize that section 14.03(d) has changed the common law rule to the extent of authorizing courts to grant the grandparents rights of access in some circumstances. We think it unlikely, however, that the legislature intended to create an occasion for litigation whenever a disagreement might occur between a grandparent and the custodial parent concerning the grandparent’s access to the child. We conclude that the intent was, rather, that when litigation affecting the parent-child relationship has already arisen, and the court has occasion to appoint a managing conservator, then the court may determine the access privileges of grandparents, as it may then determine the privileges of possession or access of a parent who is not appointed managing conservator. This conclusion is consistent with our understanding of the language of section 14.03 and would avoid the problems arising from independent suits by the grandparents, as recognized in the pre-Code Texas cases and the other authorities above cited.

We recognize also that this conclusion is contrary to that reached in Goolsbee v. Heft, 549 S.W.2d 34 (Tex.Civ.App.—Tyler 1977, no writ). That opinion, however, bears no evidence that the contentions raised were the same as those presented here. Thus, the Tyler court does not seem to have considered the language of subdivision (d) in the light of the preceding subdivisions of section 14.03, and neither does it discuss the possibility that the court’s authority to grant rights of access to grandparents may be limited to cases in which a managing conservator has been appointed. Consequently, we do not consider that decision persuasive in the present case.

The judgment of the trial court is reversed and judgment is here rendered that the relief prayed for be denied.


text:
    Ex parte Paul HENNIG.
    No. 19444.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 4, 1977.

      Norman H. Ewert, Mesquite, for appellant.
    L. W. Anderson, Dallas, for appellee.
   ROBERTSON, Justice.

This is a habeas corpus proceeding under Article 1824a of the Texas Revised Civil Statutes. Paul Hennig, relator, seeks discharge from the custody of the Sheriff of Dallas County. He was detained pursuant to a commitment order issued by a Judge of Domestic Relations Court, who found relator in contempt for failing to pay child support. We deny relator’s application for writ of habeas corpus, and remand him to the custody of the sheriff.

The sole question in this case is whether the relator has conclusively shown his inability to purge the contempt by paying the delinquent support. Where a person cannot perform the act necessary to purge the contempt, indefinite imprisonment cannot be imposed for nonperformance. Ex parte Ramzy, 424 S.W.2d 220 (Tex.1968); Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184 (1948). However, before habeas corpus relief will issue, the relator must conclusively establish that he has no source from which he might be expected to obtain the arrearage. Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.1968); Ex parte Hart, 524 S.W.2d 365, 366 (Tex.Civ.App.—Dallas 1975, no writ).

In the present case, relator testified that he has not been employed regularly, and that his income is very limited. He also stated that he had mortgaged his furniture to raise $400.00, and concluded that was all the money he could “come up with.” To support the sufficiency of this showing, relator cites Ex parte Gonzales, 414 S.W.2d 656 (Tex.1967), in which habeas corpus relief was granted on a similar showing. We recognize the similarities between the relator’s testimony and that held sufficient in Gonzales; however, the relator’s testimony was not the sole consideration in Gonzales. Another factor was that no attempt was made to contradict the relator’s testimony, “even though it was of a nature that could have been contradicted either directly or circumstantially, if untrue,” 414 S.W.2d at 657. In this case, however, the relator’s testimony regarding his financial ability was contradicted; the record reflects that he had voluntarily assumed new obligations, such as a mortgage on a new home, a second car, and the responsibility to support a new family by his second marriage. There is also evidence that relator consistently discharged these new obligations in preference to his primary duty to support his children. The discharge of these new obligations, despite relator’s alleged financial woes is evidence that he has not exhausted all sources so as to pay the delinquent support. In order to establish the inability to pay, the relator must show not only that he lacks the financial resources to pay the delinquency, but also that he knows of no source from which the sum might be obtained. This ultimate fact can be established by proof of the following:

(1) that the relator lacks sufficient personal or real property which could be sold or mortgaged to raise the needed sum; and
(2) that the relator has unsuccessfully attempted to borrow the sum from financial institutions such as banks, credit unions, and loan companies; and
(3) that the relator knows of no other source, including relatives, from whom the sum could be borrowed or otherwise secured.

See Ex parte Rohleder, supra at 892; Ex parte Hart, supra at 366. Of course, these are only conclusory elements which must be supported by specific evidence according to the facts of each particular case.

Here, although relator testified that he had raised some money by mortgaging his furniture, there is no testimony that he attempted to borrow additional funds with other collateral, or that he sought an unsecured loan from any institution. Neither is there testimony regarding any attempt to borrow or otherwise secure the money from friends or relatives. Consequently, we hold that relator has failed to meet his burden of proving his inability to pay the delinquent support. Accordingly, the application for writ of habeas corpus is denied and relator is remanded to custody.

GUITTARD, C. J., not participating.


author: CORNELIUS, Chief Justice.

text:
    TEXAS POWER & LIGHT COMPANY, Appellant, v. Robert M. WALKER et ux., Appellees.
    No. 8464.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 8, 1977.
    Rehearing Denied Dec. 6, 1977.

      Robert M. Rolston, Russell & Rolston, Mount Pleasant, for appellant.
    Coy Johnson, Sulphur Springs, Woodrow H. Edwards, Mount Vernon, for appellees.
   CORNELIUS, Chief Justice.

Texas Power & Light Company appeals from a district court judgment in eminent domain proceedings. The judgment was based upon jury findings, and awarded Mr. and Mrs. Robert M. Walker $750.00 per acre compensation for damages to 4.863 acres of their land over which an easement was taken, together with $75.00 per acre for damage to the remaining 135.1 acres of their land. The only disputed issue in the trial was the proper amount of compensation to be awarded.

The appeal is based upon six points of error which contend generally that (1) as appellees’ land was divided into two tracts, the trial court erred in treating those tracts as a whole under the “unity of use rule” when submitting the issue of damages to the remainder; (2) the trial court erroneously permitted appellees’ counsel to comment on appellant’s failure to call Tom Ramsay as a witness; and, (3) there is insufficient evidence to support the jury finding of damages to the remainder of the land.

The land consisted of approximately 140 acres. It is bisected by a county road which roughly divides it into a northeastern half and a southwestern half. The easement crosses only the southwestern half. It was undisputed that, at the time of the taking, all of the land was used as a cattle ranching operation and was operated as one unit despite its physical division by the county road.

The parties agree that where land is divided into separate tracts, but in the aggregate is being devoted to a unity of use which unites all of the parcels as an entity of use, the separate parcels will be considered as an entirety for the purpose of estimating the damage to the remainder after a portion thereof has been taken for public use. Calvert v. City of Denton, 375 S.W.2d 522 (Tex.Civ.App. Fort Worth 1964, writ ref’d n. r. e.); State v. South Main Baptist Church, 361 S.W.2d 898 (Tex.Civ.App. Houston 1962, writ ref’d n. r. e.); McLennan County v. Stanford, 350 S.W.2d 208 (Tex.Civ.App. Waco 1961, no writ); An-not., 6 A.L.R.2d 1202; Rayburn, Texas Law of Condemnation, Sec. 160(1), p. 455. Appellant contends, however, that the unity of use rule was inapplicable to this case, or at least a fact issue was raised as to its applicability, because appellees produced evidence that the highest and best use for which their land was reasonably adaptable was for subdivision and sale as ranchettes or residential tracts. Some cases have held that, although separate parcels were being used as a unit at the time of the taking, where the owner has abandoned that unity of use for another and inconsistent use, or tries his case on a theory of the adaptability of the land to a purpose inconsistent with a unity of use, he cannot maintain his claim of unity. Wagoner v. City of Arlington, 345 S.W.2d 759 (Tex.Civ.App. Fort Worth 1961, writ ref’d n. r. e.); Haines v. St. Louis, D.M. & N. Ry. Co., 65 Iowa 216, 21 N.W. 573 (1884); Annot., 6 A.L.R.2d 1203. But from a careful study of the evidence in this case, we do not believe it can fairly be said that appellees abandoned their unity of use or tried their case on a theory of adaptability to a different and inconsistent use. There is no testimony or other evidence in the record which would justify such a conclusion. It is true that several of appellees’ witnesses testified that in their opinion the highest and best use of the land would be for subdivision and sale of ranchettes or residential tracts of from 5 to 10 acres each. But the mere expression of opinions by value witnesses that the highest and best use of land is different from that to which it is actually being put by the owner should not preclude the owner from claiming the advantages of the unity of use rule when the land is in fact being used as a unit. If the mere production of evidence as to the highest and best use of property should be held to govern the applicability of the unity of use rule, then it would seem that appellant should be precluded from contesting unity of use in this case, because its value witnesses testified that the highest and best use of the land was for cattle ranching purposes, as it was actually then being used by appellees. In our judgment such a result should not apply in this case, either as to appellees or as to appellant. As the undisputed evidence established that the land was devoted to a unity of use at the time of the taking, and there was no evidence that appellees had abandoned that use or had tried their case on a theory of adaptability to a different or inconsistent use, the trial court correctly applied the damage issue to the remainder of appellees’ land as a unit.

Prior to the voir dire examination of the jury panel, appellant’s counsel informed ap-pellees’ counsel that he intended to call Mr. Tom Ramsay as a witness. Mr. Ramsay was not, however, used as a witness either by appellant or by appellees. In his summation to the jury, appellees’ counsel was permitted, over appellant’s objection, to make the following argument:

“You can assume that because the Plaintiffs did not call Tom Ramsay as a witness that his testimony would not be favorable to them and that Tom Ramsay would not buckle under and testify the way the Power Company wanted him to.”

Evidence adduced on the hearing of appellant’s motion for new trial, which complained of the court’s action in permitting the argument, revealed that Mr. Ramsay had been engaged by appellees to appraise their land for the purpose of possibly testifying in their behalf as a value witness. Mr. Ramsay’s appraisal was less than what appellees contended was the value of their land, and they consequently decided not to use him as a witness. Appellant’s counsel, knowing that Mr. Ramsay had appraised the land and having learned the amount of his appraisal, asked him to testify for appellant, but upon being informed by Mr. Ramsay that he had promised appellees not to testify, he was not called.

Counsel may properly comment upon, and the jury may draw unfavorable inferences from, the failure of a party to use a witness where the record reveals that such witness is within the control of, or stands in some special relationship to, that party. Gifford v. Woodruff, 448 S.W.2d 804 (Tex.Civ.App. Beaumont 1969, no writ); Johnson v. Smith, 446 S.W.2d 357 (Tex.Civ.App. San Antonio 1969, writ ref’d n. r. e.); Sanders v. St. Paul Fire & Marine Insurance Company, 429 S.W.2d 516 (Tex.Civ.App. Texarkana 1968, writ ref’d n. r. e.); Gulf, Colorado & Santa Fe Railway Co. v. Hampton, 358 S.W.2d 690 (Tex.Civ.App. Eastland 1962, writ ref’d n. r. e.); 3 McDonald’s, Texas Civil Practice, Sec. 13.06, pp. 472-477. Absent facts which would slant the witness toward a party, however, the general rule is that argument concerning the non-production of a witness who is equally available to both parties is improper. Jarbet Co. v. Hengst, 260 S.W.2d 88 (Tex.Civ.App. Austin 1953, no writ); Texas Employers’ Insurance Association v. Hicks, 237 S.W.2d 699 (Tex.Civ.App. Amarillo 1951, writ ref’d n. r. e.); Stewart v. Shoemake, 225 S.W.2d 873 (Tex.Civ.App. Fort Worth 1949, writ ref’d n. r. e.); 3 McDonald’s, Texas Civil Practice, Sec. 13.06, p. 477. Mr. Ramsay was not employed by, nor was he under the control of or standing in any special relationship to the appellant. He was equally available to appellant and appellees. Indeed, he had been engaged by appellees to make the appraisal. In those circumstances it was improper for counsel to comment upon and draw unfavorable inferences from the failure of appellant to use Mr. Ramsay’s testimony. Nevertheless, we have concluded that under the record here the comment was harmless and did not constitute reversible error. From the testimony presented at the hearing on appellant’s motion for new trial, it appears that Mr. Ramsay’s testimony would have related only to the value of appellees’ land and the resulting damage to it. That issue had been explored in great detail with the presentation of abundant evidence which conflicted sharply. Appellees produced six value witnesses who testified that the land was worth from $900.00 to $1,000.00 per acre. Appellant produced three value witnesses who testified that the land was worth only from $500.00 to $600.00 per acre. The jury was well aware that there was a great discrepancy in the witnesses’ estimates of value. We are unable to conclude that the comment, inferring to the jury that one more witness might have valued the land higher than appellant contended it should be valued, was of such a prejudicial nature as probably affected the jury’s verdict or caused the rendition of an improper judgment. Tex.R.Civ.P. 434.

Appellant’s last contention argues there was insufficient evidence to support the jury’s answer to the issue on damage to the remainder. The basis of the. contention is that, as appellees’ witnesses did not give the reasons for or the basis of their opinion of the value of the land and the damage done to it, those opinions were mere conclusions and were therefore insufficient according to the decisions of Tennessee Gas & Transmission Co. v. Zirjacks, 244 S.W.2d 837 (Tex.Civ.App. San Antonio 1951, writ dism’d), and City of Cedar Hill v. Wheeler, 326 S.W.2d 236 (Tex.Civ.App. Dallas 1959, writ ref’d n. r. e.). In Zirjacks it was stated:

“One claiming damages to land must show the nature of the damage, the effect upon various portions of the tract and the relationship of the same to market value. A mere conclusion as to market value is insufficient for this purpose.”

Our Supreme Court has recently held that the rule in Zirjacks applies only to the testimony of a party claiming damages, and not to the testimony of expert value witnesses. Texas Electric Service Co. v. Wheeler, 551 S.W.2d 341 (Tex.1977). Lack of supportive data goes to the weight, not the competency, of the expert value testimony. See also Southwestern Bell Tel. Co. v. Ramsey, 542 S.W.2d 466 (Tex.Civ.App. Tyler 1976, no writ); Texas Electric Service Company v. Yater, 494 S.W.2d 271 (Tex.Civ.App. El Paso 1973, writ ref’d n. r. e.); Texas Power & Light v. Trinity Valley, 395 S.W.2d 866 (Tex.Civ.App. Dallas 1965, no writ); and, Texas Electric Service Company v. Etheredge, 324 S.W.2d 322 (Tex.Civ.App. Eastland 1959, no writ). As the testimony of all the value witnesses was competent, its weight was for the jury, and from a consideration of all the evidence we cannot say that the jury’s finding is so against the great weight and preponderance of the evidence as to be manifestly unjust.

The judgment of the trial court is affirmed.


author: PHILLIPS, Chief Justice.

text:
    Sally A. FOX, Petitioner, v. Roy F. FOX, Jr., Respondent.
    No. 12625.
    Court of Civil Appeals of Texas, Austin.
    Nov. 16, 1977.
    Rehearing Denied Nov. 30, 1977.

      Mickey Wade, Curtis & Wade, Belton, for petitioner.
    W. B. Phillips, Duncan, Bragg, Barron & Phillips, Killeen, for respondent.
   PHILLIPS, Chief Justice.

We withdraw our opinion handed down November 2,1977, and in lieu substitute the following opinion.

Petitioner, Sally Fox, is before this Court by writ of error brought to challenge a judgment of divorce rendered in favor of respondent, Roy F. Fox, Jr., by the district court in Bell County. Sally Fox was respondent and Roy Fox was petitioner in the court below.

The judgment of the trial court is affirmed in part and in part reversed and judgment is here rendered.

In a single point of error, petitioner contends that the court was in error in refusing to reform its judgment to exclude those portions regarding the managing con-servatorship of the children, child support, and the division of the property located outside the state of Texas.

The facts of this appeal are as follows. Mr. Fox, while serving in the Army and stationed at Fort Hood, Texas, brought suit for divorce against Mrs. Fox, a resident at that time of Mount Gilead, Ohio. Fox’s original petition was filed October 1, 1976. Mrs. Fox was served with personal service in Ohio; however, she did not answer or otherwise appear. On December 15, 1976, the district court rendered judgment in favor of Mr. Fox. The court in its decree of divorce appointed Mrs. Fox managing conservator of the children, set the child support, and divided the property of the parties, including that property located in Ohio.

Mrs. Fox then filed a special appearance on December 20, 1976. In her special appearance she objected to the exercise of jurisdiction by the district court over her person, over the property of the parties not located in Texas, and with respect to the setting of child support to be paid by Mr. Fox. She contended that neither the respondent nor the minor children named in the petition for divorce were ever residents of Texas and that petitioner was not domiciled in Texas nor had any intention of making Texas the state of domicile of the marriage or of the family. Mrs. Fox prayed that as a result of lack of jurisdiction over all aspects of the divorce proceeding, except the divorce itself, the district court should reform its decree so as to exclude all portions of the decree except the •actual divorce. No one has questioned the propriety and effect of petitioner’s special appearance filed after judgment. As a result, that matter is not before this Court and is not considered.

A hearing on the motion to the jurisdiction was held by the district court on January 4, 1977. A motion for a judgment reforming the judgment rendered on December 15,1976, was then filed by Mrs. Fox on January 19, 1977. The district court overruled the motion for judgment.

Petitioner contends that the evidence adduced at the hearing on her special appearance established conclusively that the court had no personal jurisdiction over her.

Respondent, however, contends that petitioner was cited by personal service pursuant to Rule 108 of the Texas Rules of Civil Procedure, which service was never contested by petitioner. Respondent also contends that petitioner did not contest the constitutionality of Rule 108 or question its applicability to divorce cases.

Rule 108, Tex.R.Civ.P., as amended, provides in part:

“. . .A defendant served with such notice shall be required to appear and answer in the same manner and time and under the same penalty as if he had been personally served with citation within the State to the full extent that may be required to appear and answer under the Constitution of the United States in an action in rem or in personam.” (Emphasis added)

The italicized portion above was added by amendment in 1975. The stated purpose of the amendment was to extend in personam jurisdiction to the constitutional limits. See U-Anchor Advertising, Inc. v. N. H. Burt, d/b/a Grant Lodge, 553 S.W.2d 760 (Tex.1977).

Similarly, Article 2031b, the Texas general long-arm statute, has been construed to be limited by the United States Constitution. The Texas Supreme Court has stated that “the Article reaches as far as the federal constitutional requirements of due process will permit.” U-Anchor Advertising, Inc. v. N. H. Burt, supra. Therefore, Rule 108, like Article 2031b, must be construed with reference to the constitutional requirements of due process — namely “minimum contacts” and notions of fairness. See generally International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

The Texas Supreme Court in O’Brien v. Lanpar Co., 399 S.W.2d 340 (Tex.1966), concluded that three elements must exist to allow the assertion of jurisdiction over a nonresident: (1) “The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state”; (2) “the cause of action must arise from, or be connected with, such act or transaction”; and (3) “the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice . . . ” See U-Anchor Advertising, Inc. v. N. H. Burt, supra.

On the Federal level, the United States Court of Appeals for the Fifth Circuit in Products Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir. 1974), noted that Federal decisions established a two-pronged test to determine whether a court may exercise its jurisdiction over a nonresident defendant within the requirements of due process. First, “there must be some minimum contact with the state which results from an affirmative act of the defendant.” Second, “it must be fair and reasonable to require the defendant to come into the state and defend the action.” Cousteau at 494. See U-Anchor Advertising, Inc. v. N. H. Burt, supra.

In the instant case, although Rule 108 may be construed as a long-arm statute by which personal jurisdiction may be obtained, it is evident that there were no contacts between petitioner and this state. Petitioner neither availed herself nor submitted herself to the jurisdiction of this state. Simply stated, petitioner did nothing in Texas and therefore, the district court wrongfully asserted in personam jurisdiction over her.

As to the divorce itself, the district court did have jurisdiction to dissolve the marital relationship between petitioner and respondent since it was an in rem proceeding. Divorce jurisdiction is extended to Texas courts regarding military personnel stationed in the state meeting certain requirements, pursuant to Tex.Family Code Ann. § 3.23 (1975). Even though the spouses are domiciled in different states, a Texas court may grant an ex parte divorce under sec. 3.23 if one of the parties falls within the statute. See generally Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942); Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945). Under these circumstances a court may even divide property within its jurisdiction. In the absence of in personam jurisdiction, however, a court may not enter an order binding on both parties regarding such matters as division of property outside the state, alimony, and other decrees involving personal obligations. Resolution of these latter issues depends on the court having personal jurisdiction over both parties. See Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948); Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957); Sampson, Jurisdiction in Divorce and Conservatorship Suits, 8 Tex.Tech.L.Rev. 159, 163 (1976).

Inasmuch as the court had jurisdiction to dissolve the marriage and to order the respondent to pay child support, the court properly refused to alter its judgment as to these matters. However, the court should have excluded those portions regarding the managing conservatorship of the children and the division of the property located outside this state. The judgment, therefore, is void as it relates to these matters.

The judgment insofar as it dissolves the marriage and provides for child support is affirmed; however, we reverse the remaining portion of the judgment, and render judgment holding for naught those portions of the judgment regarding the managing conservatorship of the children and the division of the property located outside this state.

The judgment of the trial court is affirmed in part and in part reversed, and as reversed judgment is here rendered.

Affirmed in Part and in Part Reversed and Rendered.