text:
    Mrs. Nellie B. (Nell) WATSON et al., Appellants, v. Ben WATSON, Jr. et al. Appellees.
    No. 5948.
    Court of Civil Appeals of Texas, Waco.
    Dec. 28, 1978.

      Mac L. Bennett, Jr., Bennett & Bennett, Normangee, for appellants.
    Joe B. Cannon, Cannon, Cannon & Reed, Groesbeck, for appellees.
   OPINION

McDONALD, Chief Justice.

This is a suit by plaintiff (appellant) Mrs. Nellie B. (Nell) Watson against defendants (appellees) three of her sons Ben Jr., Elmo and Grant Watson, for interpretation of the will of plaintiff’s deceased husband Ben Watson, Sr., to remove cloud from title to 668.71 acres of land in Leon County, and to declare a deed to 96.8 acres of land from plaintiff to Virgil Watson (another son) to be a valid deed.

Defendants Ben, Jr., Elmo and Grant Watson sought to have the deed to Virgil Watson set aside, and sought interpretation of the will of Ben Watson, Sr.

The trial court (without a jury) rendered judgment finding: 1) The wills of Nellie B. Watson and Ben Watson, Sr. joint and mutual wills “consistent with their agreement regarding the manner in which their community estate was to be divided upon their respective deaths”. 2) The deed to Virgil Watson of 96.8 acres was upon inadequate consideration and constitutes a fraud on the part of Nellie B. Watson to circumvent the terms of the mutual and contractual wills; and decreed: 1) The wills of Nellie B. Watson and Ben Watson, Sr. are joint and mutual wills; 2) the deed from plaintiff to Virgil Watson to 96.8 acres of land is void and is set aside.

Appellants appeal on 7 points contending among other matters:

1) The trial court erred in holding that the sale by Nell Watson to Virgil Watson of the 96.8 acres constituted a fraud upon the remaindermen and in setting such deed aside.

2) The trial court erred in setting the deed to Virgil Watson aside and in failing to remove the cloud cast on appellants’ title for the reason that even if the will of Ben Watson, deceased, is a joint, mutual and contractual will, appellant Nellie B. Watson took a fee simple title with power of disposition (a defeasible fee to appellees) and the remainder of the corpus, if any, passes to appellees on the death of Nellie Watson.

The record reflects that appellant on December 30,1977 conveyed by deed 96.8 acres to her son Virgil Watson for a recited consideration of $10. but that $100. per acre was the actual consideration. It is further in evidence that adjacent land had sold for some $650. per acre.

The question for determination is whether the will of decedent authorized appellant to convey the title to the real property she did convey.

The pertinent provisions of the will are:

“Paragraph IV
“In the event my wife, Nell Watson survives me * * * she shall have and take all of my estate and property of whatsoever kind or character and wheresoever located and in such event I do hereby will, bequeath and demise all of my said estate and property unto my said wife, Nell Watson, in fee simple”.
Paragraph V, appoints Nell Watson independent executrix without bond.
“Paragraph VI
“In the event my wife shall have predeceased me, * * * or upon her death there should remain on hand any of the corpus of my estate that passes to her in fee simple, under this my Last Will and Testament, or the proceeds of the sale of any of the corpus of my said estate that passed to her under this my Last Will and Testament, it is my will and desire that the same shall pass to and vest in our four sons, namely, Elmo Eugene Watson, Virgil B. Watson, Ben Watson, Jr., and Lee Grant Watson, to share and share alike in fee simple and in such event I do hereby will, bequeath and demise all of my estate or the remainder of said estate upon the death of my wife, in the event she shall survive me or any of my said estate that passes to her in fee simple under this will remains on hand or any of the proceeds of the sale of any of the corpus of my said estate shall remain on hand to our four sons hereinabove named, to share and share alike in fee simple”.

Appellant Mrs. Nellie B. (Nell) Watson testified:

Q. Alright, now, prior to the making of this Will, you and your husband, Mr. Ben Watson, had gotten together in an attempt to settle the land and the property that ya’ll owned, didn’t you?
A. Yes, sir.
Q. Alright, and ya’ll went to * * * Mr. Bennett’s office together, is that correct?
A. Yes, sir.
Q. And prior to the time that you were going there, ya’ll agreed, you and your husband, that you would leave it to each other, but at the end — at the death of the survivor of you two, that it would be divided equally among the four boys, didn’t you?
A. That’s right.
Q. And this was the agreement that ya’ll made between each other and as a result, he signed this particular Will, did he not?
A. Yes, sir.
Q. And you signed a Will almost identical to this Will, is that not correct?
A. That’s right.
Q. And together, they completed the agreement that you and your husband made with each other that at the death of the last of you, the four boys would get the land equally, is that correct?
A. That’s correct, but they are not going to get it”.

The clear, plain and unambiguous language of Paragraph IV of the will leaves the property to appellant in fee simple, and Paragraph VI provides that if upon her death any of the estate that passes to her in fee simple should remain on hand it should pass to the four named sons. No provision in the will places any limitation whatever on the right of appellant during her lifetime to dispose of the estate in any manner she might see fit.

Thus, testators in language free of ambiguity have clothed the survivor with the unqualified right to convey the property during her lifetime and have limited the rights of the remaindermen to whatever estate remained in the survivor at her death, and we are not authorized to impose a limitation upon that right or by implication to grant any right to the remaindermen other than to acquire that which might remain after the appellant’s death. Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876; McGuire v. Worsham, (Tex.Civ.App., Waco) NWH, 461 S.W.2d 428; Howard v. Neary, (Tex.Civ.App., Waco) NWH, 485 S.W.2d 591; Boyett v. Mathews, (Tex.Civ.App., Waco) NWH, 370 S.W.2d 916; Stover v. Seitz, (Tex.Civ.App., Waco) NRE, 527 S.W.2d 829.

And we must assume that the language used in decedent’s will was correct and intentional. Mitchell v. Mitchell, 151 Tex. 1, 244 S.W.2d 803, 806; Williams v. Bartlett, (Tex.Civ.App., Waco) NRE, 254 S.W.2d 559, 563. The intention of the testator must be determined from the language used in the will. Bryan v. Melvin, (Tex.Civ.App., Waco) NWH, 499 S.W.2d 17, Stewart v. Selder, Tex.S.Ct., 473 S.W.2d 3; Rekdahl v. Long, Tex.S.Ct., 417 S.W.2d 387; Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885.

In Huffman, supra, the court says “the intent of the testator must be drawn from the will, and not the will from the intent”.

And the court cannot give to an unambiguous will a meaning different from that warranted by its words, merely to carry into effect conjecture or hypothesis as to the testator’s intention. McMullen v. Sims, Tex.Com.App., 37 S.W.2d 141. See also: Price v. Austin National Bank, Tex.Civ.App., Austin) NRE, 522 S.W.2d 725.

Appellant’s contentions, supra, are sustained. We hold appellant had the right under decedent’s will to convey the 96.8 acres.

The judgment is modified to decree the sale of the 96.8 acres to Virgil Watson valid.

MODIFIED AND AFFIRMED.


source: Caselaw Access Project

author: KLINGEMAN, Justice.

license: Public Domain

text:
    John S. McCONNELL, Appellant, v. ALAMO HEIGHTS INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 16002.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 29, 1978.
    Rehearing Denied Jan. 24, 1979.

      Craig L. Austin, San Antonio, for appellant.
    George H. Spencer, Randolph P. Tower, Clemens, Spencer, Welmaker & Finck, San Antonio, for appellee.
   OPINION

KLINGEMAN, Justice.

This is a teacher termination case. Appellant John S. McConnell brought suit in the district court of Bexar County, Texas, seeking a temporary restraining order, temporary injunction and permanent injunction requiring his reinstatement as a teacher, back pay, and attorney’s fees. Both the temporary restraining order and the temporary injunction were denied after hearing. Appellant subsequently filed a motion for summary judgment which was also denied by the trial court. In a subsequent hearing the trial court, after a non-jury trial, granted appellant judgment for back pay, attorney’s fees and costs for the period of appellant’s suspension as a teacher from January 25, 1977, through February 8, 1977, but found that appellant was lawfully terminated by appellee, Alamo Heights Independent School District, on February 8, 1977, and denied all other relief sought by appellant, including reinstatement, back pay, attorney’s fees, and costs, for the period since February 8, 1977. Appellant will sometime hereinafter be referred to as “McConnell” and appellee as “School District.”

Appellant asserts seven points of error which cover the following general areas: (a) alleged violations of the Texas Open Meetings Act; (b) alleged violations of the Texas Education Code; (c) lack of proper notice; (d) denial of a jury trial; (e) application of the substantial evidence rule; and (f) alleged violations by the School District of its own rules in terminating the teacher.

McConnell was employed by the School District as a probationary teacher in September, 1972, and at that time taught vocational subjects in the high school. The School District has adopted the “continuing contract law” under the Texas Education Code, and in August, 1975, at the end of a probationary teaching period, entered into a continuing contract with McConnell, who then began teaching high school English courses. In late 1975 or early 1976 McConnell was transferred from the high school to junior school and in August, 1976, he assumed duties as a teacher of English in junior school. Apparently McConnell and the school principals had some policy differences. Both the principal and the assistant principal contend that McConnell was making excessive student disciplinary referrals to the principal’s office, and noted that during the period from August, 1976, to approximately October 1, 1976, McConnell was responsible for ninety-one student referrals to the assistant principal’s office for disciplinary reasons. The next highest number of disciplinary referrals from another teacher for the same period was twenty-seven. The matter of excessive referrals was discussed with McConnell by the principal and the assistant principal, and a letter was sent to him suggesting remedial actions. The problem continued, however, and according to the records of the assistant principal, as of January 24, 1977, McConnell had referred 147 student disciplinary problems to his office while the next highest teacher made only forty-three such referrals. One of the counselors observed and recorded problems and complaints relating to McConnell’s handling of student discipline during this period, and there were other complaints from students, parents and other staff members.

Another problem arose with regard to McConnell’s teaching of English. The principal received student, parent and faculty complaints about appellant’s failure to teach English in accordance with the prescribed curriculum. McConnell was counseled on numerous occasions by the principal, assistant principal, counselor, and other personnel concerning the teaching of spelling and grammar from the State- and School District-approved textbooks, and a letter concerning his deficiencies in these areas of the curriculum was sent to him. On a number of occasions the principal or assistant principal visited McConnell’s classes and wrote critical reports.

In addition, the principal received complaints from parents relating to appellant’s deficiencies in grading of assignments completed in his classes. The principal examined McConnell’s grade book and found it to be incomprehensible, and incomplete in comparison with the grade books of other teachers at the junior school.

On January 24, 1977, the junior school principal wrote McConnell that he was recommending to the superintendent of the School District that McConnell be terminated for reasons set forth in the letter. The reasons for such recommendation included (a) failure to comply with specific requests and directives regarding curriculum; (b) failure to maintain routine classroom management and discipline; (c) continual problems with students, teachers, parents, counselors and administrators concerning his attitude and methods. On January 25, 1977, an emergency meeting of the Board of Trustees was called, at which time the superintendent of schools recommended the immediate suspension of McConnell without pay based on the reasons stated in the principal’s letter. The superintendent’s recommendation in this regard was reduced to writing in the Board’s minutes of said emergency meeting. On the same day, the vice-president of the Board wrote McConnell of his suspension and notified him that the Board would conduct a hearing at its next regular meeting to consider the recommendations of the superintendent to terminate appellant’s contract immediately for reasons which were set forth in the letter and which have been summarized heretofore. McConnell, acting through counsel, requested a hearing before the Board on February 8,1977. At such meeting McConnell appeared with his counsel and actively participated in such hearing.

Some of appellant’s points of error overlap to some extent and we will discuss all points of error under areas hereinafter set forth.

Notice

Appellant asserts that the Board’s action in terminating him was void because of alleged violations of the Texas Open Meetings Act. Tex.Rev.Civ.Stat.Ann. art. 6252-17 (Vernon Supp.1978-1979). In particular, he urges that (1) the County Clerk did not receive or post notice of the meeting until 26 hours after it occurred; (2) no notice by telephone or telegraph was given to any news media; and (3) the subject of such meeting is not disclosed in the notice.

These allegations apparently refer to the emergency meeting of January 25, 1977, which resulted in action suspending McConnell and notifying him of the Board’s proposed action to terminate his employment at a subsequent meeting of the Board in February. The January 25, 1977, meeting was held at 8:00 a. m., and one of appellant’s exhibits shows that the notice sent to the County Clerk was not received until January 26, 1977, at 10:22 a. m. Appellant also asserts that no notice of such meeting was given to the news media. As to the subject matter of this meeting, the agenda shown on an exhibit consists of the following recitations:

AGENDA
A. Call meeting to order
B. EXECUTIVE SESSION
1. Personnel
C. Adjourn

We agree with appellee’s contention that such alleged violations are not fatal and do not render the subsequent termination void. McConnell’s termination did not occur until the Board meeting of February 8, 1977, at which meeting appellant and his counsel both appeared and participated.

The statute regarding the notice to the County Clerk imposes no requirement, such as that alleged by appellant, since the meeting of January 25, 1977, was an emergency session. The pertinent section of the statute provides that in the event of an emergency meeting it shall be sufficient if the notice or supplemental notice is posted two hours before the meeting is convened. Tex. Rev.Civ.Stat.Ann. art. 6252-17, § 3A(h) (Vernon Supp.1978-1979). The Act makes no mention whatsoever of providing a copy of such notice of an emergency meeting to the County Clerk.

While no notice of the emergency meeting was given to the news media, the applicable statutory provision requires the giving of such notice if request therefor has been previously filed at the headquarters of the governmental body, and then only if the media requesting such notice consents to pay any and all expenses incurred by the governmental body in providing such special notice. Id. § 3A(e) (Vernon Supp.1978-1979). It is undisputed that no request for such notice was received from the news media.

With regard to notice of the subject matter of the emergency meeting, the notice which the School District posted merely described the purpose as relating to “Personnel,” and the session did deal with personnel matters. The Education Code does not require that specific notice of such an emergency meeting be given the teacher involved. The law appears settled that the notice provisions of the Texas Open Meetings Act are subject to the substantial compliance rule. Burton v. Ferrill, 531 S.W.2d 197 (Tex.Civ.App.—Eastland 1975, writ dism’d); Stelzer v. Huddleston, 526 S.W.2d 710 (Tex.Civ.App.—Tyler 1975, writ dism’d).

This court in Santos v. Guerra, 570 S.W.2d 437 (Tex.Civ.App.—San Antonio 1978, writ ref’d n. r. e.), has recently passed on the matter of notice under the Texas Open Meetings Act. The case involved the validity of the action of the Webb County Commissioners Court in discharging an employee. The jury found that there was a failure to post notice of the commissioners court meeting as required by the Texas Open Meetings Act, and judgment was entered on the jury verdict in favor of the employee. On appeal, this court held that the substantial compliance rule was applicable, and that under the facts of such case substantial compliance with the Open Meetings Act was established as a matter of law.

We are of the opinion that there was substantial compliance with the provisions of the Texas Open Meetings Act in regard to the meeting of January 25, 1977. Moreover, that meeting resulted only in McConnell’s suspension, and the judgment now before us awards McConnell full pay and attorney’s fees for the period between his suspension and his ultimate termination. As a result of that meeting, McConnell was notified of the proposed action to dismiss him and of his right to request a hearing regarding such proposed action. McConnell through his counsel requested such hearing which was held on February 8, 1977, at which time he and his counsel appeared and participated in proceedings which culminated in the Board’s action to terminate appellant’s employment with the School District. We are of the opinion in view of the events above set forth, that any discrepancy in the notice as to the emergency meeting, if there was any, is immaterial.

Applicability of the Substantial Evidence Rule

Two of the appellant’s points of error basically involve the applicability of the substantial evidence rule. By such points of error appellant asserts that if the action of the Board in dismissing the teacher is reviewable under the substantial evidence rule, there is a want of substantial evidence to support the dismissal; and that the teacher was improperly denied a trial by jury.

Appellant contends that a rule of strict compliance should apply rather than the substantial evidence rule. We do not agree. It is well settled that an appeal to a court from a hearing before the board of trustees of a school district is governed by the substantial evidence rule. Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970); Gerst v. Nixon, 411 S.W.2d 350 (Tex.1966); Cruz v. City of San Antonio, 424 S.W.2d 45 (Tex.Civ.App.—San Antonio 1968), aff'd, 440 S.W.2d 924 (Tex.1969); Rock Island Independent School District No. 907 v. County Board of School Trustees of Colorado County, 423 S.W.2d 665 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.); 51 Tex.Jur.2d Schools § 88 (1970). See also Simard v. Board of Education of Town of Groton, 473 F.2d 988 (2d Cir. 1973); Conley v. Board of Education of the City of New Britain, 143 Conn. 488, 123 A.2d 747 (Conn.1956); Mims v. West Baton Rouge Parish School Board, 315 So.2d 349 (La.App.1975). In Gerst v. Nixon, the Supreme Court of Texas by analogy found that:

[T]he order of a regulatory body, namely, the Railroad Commission, was likened to that of a commissioners’ court or a board of school trustees and it was held that the issue was not whether the regulatory agency came to the proper fact conclusion on the basis of conflicting evidence, but ‘whether or not it acted arbitrarily and without regard to the facts’.

411 S.W.2d 350, 354 (Tex.1966), citing Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 (1942) (emphasis added).

The substantial evidence rule is set forth in Rock Island Independent School District No. 907 v. County Board of School Trustees of Colorado County, 423 S.W.2d 665 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.), as follows:

In a trial under the substantial evidence rule, on appeal to the district court from an order of an administrative agency, the proceeding is not a trial de novo. The plaintiff has the burden of proving the absence of substantial evidence, that is, the burden of proving that the action of the board was illegal, arbitrary, capricious, unreasonable or discriminatory. It is the evidence adduced in the trial court, not in the hearing, if any, conducted by the administrative agency, which is determinative of the issue of substantial evidence. The issue of substantial evidence is one of law to be answered by the court — not a question of fact to be answered by the jury. Under the substantial evidence rule, the administrative order in question will be upheld if, considering the entire record in the trial court, that order finds reasonable support in the evidence.

Id. at 669. The courts have consistently held that the findings of an administrative tribunal will be sustained by the court if it is reasonably supported by substantial evidence, which question must be determined by the court from a consideration of the entire record of the case as that record has been made in the trial court. Board of Firemen’s Relief & Retirement Fund Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181 (1951); Hawkins v. Texas Co., 146 Tex. 511, 209 S.W.2d 338 (1948); Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1946); Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 (1942); Royal Crest, Inc., v. City of San Antonio, 520 S.W.2d 858 (Tex.Civ.App.—San Antonio 1975, writ ref’d n. r. e.).

As hereinbefore discussed, appellant’s termination was recommended on grounds of failure to comply with official directives and established school board policy; failure to maintain routine classroom management and discipline; and constant problems with students, teachers, parents, counselors and other administrative personnel, as to attitudes and methods.

We have generally set forth the applicable factual background, which is summarized immediately hereinafter. In the area of classroom management and discipline, there is evidence that in a period of less than three months appellant made ninety-one student referrals to the principal’s office for disciplinary reasons, greatly in excess of the next highest number of twenty-seven referrals by another teacher during the same period of time. As of January 24, 1977, McConnell had referred 147 disciplinary problems to the office of the principal while the next highest teacher had referred only forty-three such incidents. Other administrative and teaching personnel had recorded complaints regarding McConnell’s handling of student discipline. It could reasonably be concluded by the Board from such complaints that McConnell was having disciplinary problems either from lack of ability to handle his students, or due to some dereliction \of his duty. Regarding appellant’s failureVto comply with official directives and established school board policy, there was testimony that the junior high school principal received student, parent, and teacher complaintsNrelating to McConnell’s failure to teach English in accordance with the prescribed curriculum. There was further testimony with regard to deficiencies in grading of school work completed in McConnell’s classes.

We hold that there is substantial evidence that McConnell’s termination was in conformity with the provisions of the Texas Education Code. While there is some conflicting evidence in the record before us, it cannot be concluded therefrom that the Board’s action was arbitrary, capricious, or without regard to the facts. Appellant has not sustained his burden of showing that the order appealed from was not supported by substantial evidence.

Appellant’s point of error that he was entitled to jury trial is also without merit. We have already held that this is a case governed by the substantial evidence rule. This court in Cruz v. City of San Antonio held

In a trial under the substantial evidence rule the issue is whether the evidence introduced before the trial court shows facts in existence as of the time the order was entered, of such a substantial nature as to reasonably support the order. This issue is one of law and trial of the fact issues by a judge or jury is avoided. Firemen’s & Policemen’s Civil Service Commission v. Hamman, 404 S.W.2d 308 (Tex.Sup.1966); Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619 (1958); Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198 (1949).

424 S.W.2d 45, 47 (emphasis original). In City of San Antonio v. Texas Water Commission, 407 S.W.2d 752 (Tex.1966), the Supreme Court of Texas stated:

Under the substantial evidence rule the issue to be decided and on which evidence is to be heard is the reasonableness of the Commission’s order; this is a question of law and an appellate court cannot render its decision based upon facts found by [the] trial court because the legal test of the reasonableness of an order of the Commission is whether it is reasonably supported by substantial evidence and not whether it is supported by a preponderance of the evidence. Furthermore, trial of fact issues by a judge or jury is avoided; it is the Commission’s fact finding that is before the trial and appellate courts. (Citations omitted).

Id. at 756 (emphasis original).

Texas Education Code

Two of appellant’s points of error pertain to alleged violations of the Texas Education Code. By such points he asserts that the written recommendation for termination which was reviewed by the Board was not in compliance with the Texas Education Code because it was not the superintendent’s recommendation; and that the causes for discharge alleged by the Board are legally inoperative to state either “repeated failure to comply with official directives” or “repeated and continual] neglect of duties.”

In support of such points, appellant asserts that the recommendation for termination relied on by the Board was not that of the superintendent, but rather that of a principal, in violation of Section 13.111(b) of the Texas Education Code. This section provides that any proposed action to terminate a teacher for inability or failure to perform assigned duties shall be based upon written recommendation by the superintendent of schools, filed with the board of trustees. Tex.Educ.Code Ann. § 13.111(b) (Vernon 1972). Here, the principal of the school involved drafted a letter recommending appellant’s immediate suspension and ultimate termination. A copy of this letter was given to the superintendent who scheduled an emergency Board meeting for the morning of January 25, 1977, to consider such recommendation. At this meeting, the superintendent read the letter to the Board and added his concurrence thereto. This was reduced to writing in the minutes of said meeting and filed with the Board of Trustees.

We hold that the School District substantially complied with section 13.111(b) of the Texas Education Code by the superintendent’s reading of the principal’s recommendation to the Board; by giving his concurrence thereto; and by the filing of such written recommendation in the transcribed minutes of the Board meeting. Appellant was immediately informed in writing of the proposed termination of his employment. The letter set forth in full the grounds for such proposed termination. It is to be remembered that appellant and his counsel appeared at the meeting of February 8, 1977, which resulted in his ultimate termination.

The grounds assigned for appellant’s termination fall squarely into either subsection 4 or subsection 6 of the provisions of Section 13.109 of the Texas Education Code, set out as follows:

Any teacher, whether employed under a probationary contract or a continuing contract, may be discharged during the school year for one or more of the following reasons, which shall constitute lawful cause for discharge:
(1) immorality;
(2) conviction of any felony or other crime involving moral turpitude;
(3) drunkenness;
(4) repeated failure to comply with official directives and established school board policy;
(5) physical or mental incapacity preventing performance of the contract of employment; and
(6) repeated and continuing neglect of duties.

Tex.Educ.Code Ann. § 13.109 (Vernon 1972) (emphasis added).

We hold that there has been substantial compliance with the applicable provisions of the Texas Education Code. The School Board’s charges were adequate and gave sufficient notice to appellant of the nature of the charges.

Although we have held that there is substantial compliance with the procedural and notice provisions of the Texas Education Code, there is also respectable authority from other jurisdictions that where a teacher participates in the hearing for his dismissal he waives any purported insufficiencies or defects in the notice. Dugan v. Bollman, 31 Colo.App. 261, 502 P.2d 1131 (1972); Board of Public Education in Wilmington v. Delaney, 52 Del. 213, 155 A.2d 51 (1959); Van Peursem v. Consolidated Independent School District of Laurens, 240 Iowa 1100, 38 N.W.2d 615 (1949); Million v. Board of Education of Wichita, 181 Kan. 230, 310 P.2d 917 (1957); Alexander v. School District No. 17 of Thurston County, 197 Neb. 251, 248 N.W.2d 335 (1976); 68 Am.Jur.2d Schools § 188 (1973); 78 C.J.S. Schools and School Districts § 204 (1952).

By one point of error appellant contends that in discharging McConnell the district violated or refused to follow its own regulations pertaining to academic freedom, discipline, and teacher evaluation. We find no merit in this point of error. Appellant’s testimony that his method of teaching was better than the prescribed curriculum and that the administrative directives and Board’s holding violated academic freedom and freedom to teach, does not overcome the ample testimony in the record of appellant’s repeated failures to comply with official directives and failure to maintain classroom management and discipline. The record before us does not substantiate appellant’s claim that the School District failed to adhere to its policies of academic freedom, discipline, teacher evaluation and authority of the school principal.

We have carefully considered the entire record as that record has been made in the trial court. Under the applicable rules hereinbefore set forth, the trial court did not err in holding there was substantial evidence to support the Board’s order which resulted in appellant’s termination of employment with the School District.

All of appellant’s points of error have been considered and all are overruled.

The judgment of the trial court is affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    CHEM-SPRAY AEROSOLS, INC., Appellant, v. Martha A. EDWARDS, Appellee.
    No. 1904.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Jan. 3, 1979.
    Rehearing Denied Jan. 24, 1979.

      Andrew F. Spalding, William Fred Ha-gans, Bracewell & Patterson, Houston, for appellant.
    R. M. Sharpe, Jr., Robert Hanley, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

In this products liability suit, the trial court overruled the defendant manufacturer’s plea of privilege, sustaining venue in Brazoria County under subsection 4 of the venue statute.

Martha A. Edwards (appellee), was injured while using a can of WD-40 aerosol spray. She sued Chem-Spray Aerosols, Inc. (appellant), whose home office is in Harris County, and G. A. Wilson (Wilson), a resident of Brazoria County when suit was filed there. The principal theories of liability were strict liability in tort and breach of implied warranties. Appellant, a manufacturer of the suspect spray, filed a plea of privilege to be sued in Harris County, however the plea was denied by the trial court.

The general rule that a defendant has a right to be sued in the county of his residence or domicile is subject to numerous exceptions. Tex.Rev.Civ.Stat.Ann. art. 1995 (1964). The party seeking to sustain venue other than in the county of defendant’s residence has the burden of establishing the applicability of one of the exceptions. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935); Socony Mobil Co., Inc. v. Southwestern Bell Tel. Co., 518 S.W.2d 257 (Tex.Civ.App.—Corpus Christi 1974, no writ).

Under the exception contained in subdivision 4 of article 1995, the venue facts to be established are: (1) one defendant is a resident of the county of suit; (2) the party asserting the plea of privilege is a proper party to the claim against the resident defendant; and (3) the plaintiff is asserting a bona fide claim against the resident defendant. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936); Socony Mobil, supra; McDonald, Texas Civil Practice, § 4.10.2 (1965). The first question presented is whether the appellee proved the residence of any defendant in Brazoria County. In its findings of fact, the trial court found G. A. Wilson was a resident of Brazoria County when suit was filed. The critical time with regard to the existence of venue facts is the time of filing suit. Socony Mobil, supra, at 264; Chesbrough v. State, 465 S.W.2d 224 (Tex.Civ.App.—San Antonio 1971, no writ); Haney v. Henry, 307 S.W.2d 649, 653 (Tex.Civ.App.—Amarillo 1957, no writ). Thus, “[tjhe death of a codefendant gives no right to surviving defendants to raise the propriety of the venue under the altered circumstances.” McDonald, Texas Civil Practice, § 4.06(a) (1965). The evidence produced at the hearing on the plea of privilege supports the trial court’s finding that Wilson was a resident of Brazoria County when suit was filed. Wilson’s subsequent death would not affect this determination.

In order to prove a bona fide claim in strict liability in tort against Wilson, the appellee would have to show that Wilson was engaged in the business of selling such products at the time of sale; that the product was expected to reach a user or consumer without substantial change in the condition in which it was sold; that the product contained a defect; that the defect existed at the time Wilson relinquished control of the product; and that the defect was a producing cause of the appellee’s injuries. McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967); Restatement (Second) of Torts, § 402(a) (1965). See also, Ethicon, Inc. v. Parten, 520 S.W.2d 527 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ); Heilicoid Gage Div. of Am. Chain & Cable Co. v. Howell, 511 S.W.2d 573 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref’d n. r. e.). Appellant argues there was no evidence to show the existence of a defect when the product left the control of Wilson, the resident defendant, and no evidence to show the defect was a producing cause of the appellee’s injuries.

In considering a no evidence point, it is our duty to consider only the evidence favorable to the finding of the trial court and if there is any evidence of probative force to support the finding, it is binding and conclusive. Lee v. Lee, 424 S.W.2d 609 (Tex.1968). The evidence presented at the hearing was that the appellee purchased a can of WD-40 from G. A. Wilson’s Western Auto Associate Store in Brazoria County. As she prepared to use the spray for the first time five days after purchase, she removed the protective cap and pressed the button on the top of the can. The button flew off, allowing the spray to escape. A source of ignition present in the same room about ten to fifteen feet away from appel-lee caused the escaping spray to ignite and burn the appellee. Appellee has thus shown that the questioned product consisted of an aerosol can WD-40, the triggering device to which was enclosed in a protective cap at the time of purchase. She has further shown that the triggering device was the source of the defect. “When it is shown that the product involved comes in a sealed container, it is inferable that the product reached the consumer without substantial change in the condition in which it was sold.” McKisson, supra, at 792. Appellant has not rebutted the inference and therefore it is applicable here. That inference, in addition to appellee’s testimony, provides probative evidence in support of the trial court’s finding of a defect existing at the time of sale that was a producing cause of the appellee’s injuries. Therefore, the trial court’s finding of a bona fide claim in strict liability in tort against Wilson was sufficiently supported by the evidence, and venue was properly sustained in Brazoria County under subsection 4 of article 1995. On that basis the trial court’s decision is affirmed.

Affirmed.


text:
    EMPLOYERS REINSURANCE CORPORATION, Appellant, v. James R. BEATY, Appellee.
    No. 1877.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Jan. 3, 1979.
    Rehearing Denied Jan. 24, 1979.
    E. R. Rhodes, W. H. Faulk, Jr., Houston, for appellant.
    David L. Grissom, Jim Richards, Crawford & Grissom, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

In this workers’ compensation case the issue is whether money received by an employee for holidays, vacations, and disability is included within the scope of “average daily wage” as defined in the Texas Workers’ Compensation Act.

Appellee, James Beaty, sued appellant, Employers Reinsurance Corporation, for compensation for work related back injuries. After trial to the jury, the trial court, upon appellee’s motion, disregarded the answer to Special Issue 13, which provided:

Find from a preponderance of the evidence the average daily wage which plaintiff earned during the days that he actually worked in such year .
Answer: $51.40.

Instead, the trial court found as a matter of law that appellee’s average daily wage prior to injury was $72.71. The trial court’s finding was based on the following answers to interrogatories propounded to appellant:

9. State the total number of days actually worked by Plaintiff for Shell Oil Company in the 12 months immediately preceding December 29, 1975 .
[Response] Full days worked 212 . . .
10. State the total amount of money paid Plaintiff by Shell Oil Company in the 12 month period immediately preceding December 29, 1975.
[Response] $15,416.61.

Appellant contends that the amount “paid” represents 15 days disability, four weeks paid vacation, and nine paid holidays in addition to remuneration for 212 full days appellee “actually worked.” It is appellant’s position that the amount “paid” to appellee should be reduced to the amount “earned” by appellee on the days he “actually worked” by deducting the pay for disability, holidays and vacations. However, we find as a matter of law that remuneration for holidays, vacations, and disability constitute part of appellee’s “wages” for the purpose of determining average daily wage. See, Morris v. Transport Insurance Company, 487 S.W.2d 780 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.). The relevant statute provides:

“Average weekly wages” shall mean . If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same employer or not, for at least two hundred ten (210) days of the year immediately preceding the injury, his average weekly wage shall consist of three hundred (300) times the average daily wage or salary which he shall have earned during the days that he actually worked in such year, divided by fifty-two (52) . . .
Said wages shall include the market value of board, lodging, laundry, fuel and other advantage which can be estimated in money which the employee receives from the employer as a part of his remuneration.

Tex.Rev.Civ.Stat.Ann. art. 8309, § 1(1) and (4) (1967) (emphasis added).

Hence, the trial court correctly determined that the jury answer did not comply with the requirements of the statute and that the proper response was to be obtained by dividing the number of days actually worked, admitted by appellant to be 212 days, into the amount of wages earned, admitted by appellant to be $15,416.61, resulting in an average daily wage of $72.71. The judgment appealed from is affirmed.

Affirmed.


author: SUMMERS, Chief Justice.

text:
    Georgia GRIFFIN et al., Appellants, v. John Buford NEHLS, Appellee.
    No. 1186.
    Court of Civil Appeals of Texas, Tyler.
    Jan. 11, 1979.
    Rehearing Denied Feb. 1, 1979.

      Roger M. Norman, Norman & Bates, Fort Worth, for appellants.
    Gordon Wellborn, Wellborn, Houston, Bailey & Perry, Henderson, for appellee.
   SUMMERS, Chief Justice.

This appeal is from a summary judgment construing the will of testatrix, Lois Griffin Nehls, deceased. Suit was brought by Georgia Griffin and four other collateral kin, as plaintiffs, against defendant, John Buford (J. B.) Nehls, for a declaratory judgment construing said will. Plaintiffs are the mother, nephews, niece and brother of testatrix and defendant is the surviving husband of testatrix.

Both the plaintiffs and the defendant filed their respective motions for summary judgment. The trial court granted the defendant’s motion for summary judgment and overruled the plaintiffs’ motion, from which action plaintiffs have appealed. We affirm.

Lois Griffin Nehls, testatrix, and J. B. Nehls, defendant, were married on May 21, 1950 and lived together until her death on December 10,1972, at which time she was a resident of Gregg County, Texas. No children were born or adopted to their marriage nor to her one previous marriage to one Ben Franklin which ended in divorce prior to 1950. All of the property owned by testatrix and defendant at her death was community property of their marriage. Testatrix was survived by her husband, defendant Nehls, and by her collateral kin who are plaintiffs herein. On August 4, 1972, testatrix executed her last will and testament which is the subject of this litigation. On September 4, 1974, defendant Nehls filed his affidavit with the original of said will for recording in the Deed Records of Gregg County, Texas, as an election not to probate said will but to take under the Laws of Descent and Distribution. On February 7, 1977 the will was admitted to probate as a muniment of title by the County Court of Gregg County, Texas, upon the application of Leslie Griffin, a plaintiff herein. Plaintiffs filed this suit to construe the will on July 5, 1977.

After making a special bequest of a mink coat and other clothing in Paragraph III, the will provided as follows:

“IV. I give, devise and bequeath all the rest, residue and remainder of property that I might own on the date of my death, whether real, personal or mixed and wheresoever situated, to my husband, J. B. Nehls, for his use and benefit during his natural life.”

The part of Paragraph V pertinent to this appeal reads as follows:

“V. Should my husband and I die in a common calamity, irrespective of the order of our death, or should he die before I do, I make the following specific bequests: . . . .”

Paragraph V then named the plaintiffs as beneficiaries of such specific bequests.

Plaintiffs predicate their appeal on two points of error which contend that the trial court erred in (1) granting the defendant’s motion for summary judgment and (2) failing to grant plaintiffs’ motion for summary judgment because the phrase in Paragraph V, “irrespective of the order of our death,” should be construed to dispose of the remainder interest.

Plaintiffs contend that the will should be construed as creating via Paragraph IV a life estate in the residue of J. B. Nehls, defendant, and then creating a remainder interest in favor of plaintiffs, via Paragraph V of the will. It is without dispute that Paragraph IV recites a life estate in the residue to J. B. Nehls, testatrix’s surviving husband. The dispute between the parties centers around the construction to be given Paragraph V of the will. The plaintiffs further contend that defendant failed to establish as a matter of law that extrinsic evidence of the intentions of the testatrix should not be received in evidence for purposes of construction of the will and that the phrase “irrespective of the order of our death,” should be construed to dispose of the remainder interest. We disagree. The defendant responds that the phrase “irrespective of the order of our death,” refers back to common calamity and is not a separate and independent alternative which would dispose of a remainder interest. It is clear from a reading of Paragraph V that the residue of testatrix’s property was devised (that is the clause became operative) only in the event of the death of both parties as the result of a common calamity or should J. B. Nehls die before testatrix dies. There is no ambiguity and the meaning of the parties must be determined from the words selected for use in the will, not from some undisclosed intent which might be shown by parol evidence. Smith v. Williams, 449 S.W.2d 359 (Tex.Civ.App.—Beaumont 1969, ref’d n. r. e.).

In Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885 (1960), the court said:

“. . . The intent must be drawn from the will, not the will from the intent.
“The rule of law applicable here is expressed in Page on Wills:
‘. .In determining the testator’s intention, the true purpose of the inquiry is to ascertain not what he meant to express apart from the language used, but what the words he has used do express. Accordingly, when there is no dispute as to what words were written in the will, it is a fundamental principle that extrinsic evidence cannot be received to show that the testator intended something outside of, and independent of such written words, to add words to those in the will, to contradict its language, or to take words away from those in the will, . .’ 4 Page on Wills (Lifetime Ed.) 662 et seq., sec. 1617.”

Regarding the presumption that a testator intends to dispose of the whole estate, the court in Huffman, supra, said:

“. . . This presumption is but one of the factors to be considered in arriving at the intention of the testatrix as expressed in the will itself. It cannot be invoked to add to or to change the express language of a will. Kostroun v. Plsek, Tex.Com.App.1929, 15 S.W.2d 220.”

Casey v. Kelley, 185 S.W.2d 492 (Tex.Civ.App.—Fort Worth 1945, writ ref’d), is another authority cited and relied upon by defendant to sustain his contention. The court there said:

“It will be observed that whether property passes under a will or by descent and distribution, the title vests immediately upon the death of the owner; there is never a time when the title is not vested in somebody. The cardinal rule in the interpretation of wills is that the intention of the testator is to be ascertained, if possible, by the language of the whole will. It is also true that a presumption prevails that a testator intends to dispose of the whole estate; Sanger v. Butler, 45 Tex.Civ.App. 527, 101 S.W. 459, 461, writ refused. But the same authority lays down the universal rule to the effect that the intention of the testator, as expressed in the will, must prevail. No presumption will supplant plain and unambiguous language; the parties here have stipulated that only a life estate in Mary Casey was created by the will and that testator died intestate as to the remainder. It is held in Hagood v. Hagood, Tex.Civ.App., 186 S.W. 220, writ refused, that a person may die testate as to part of his estate and intestate as to other parts.”

Plaintiffs further contend that the defendant failed to present proper summary judgment proof to support the trial court’s summary judgment in favor of defendant. Defendant submitted its motion for summary judgment under the provisions of Rule 166-A, T.R.C.P., on the ground that there was no genuine issue as to any material fact and that he was entitled to judgment as a matter of law.

Rule 166-A(b), T.R.C.P., states:

“For Defending Party. A party against whom a claim ... is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor . . . .”

Subdivision (c) of that rule states in part:

“. . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that . '•. there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues as expressly set out in the motion or in an answer or other response.”

In Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970), the court stated that in summary judgment cases:

“[T]he question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s claim or cause of action, but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action.” (Emphasis theirs.)

In the instant case, the trial court in its summary judgment stated that consideration was given to the pleadings, depositions, exhibits and affidavits on file. Attached to the deposition of J. B. Nehls as Exhibit 2 thereto, were his affidavit as an election not to probate said will but to take under the laws of descent and distribution and also the original of the will which is the instrument in question. We hold that plaintiffs’ contention that there was not proper summary judgment proof is without merit.

In granting the defendant’s motion for summary judgment, the trial court found that the last will of Lois Griffin Nehls recited the provision for a life estate for her surviving husband, J. B. Nehls; that the phrase “irrespective of the order of our death,” in Paragraph V of the will refers to common calamity and is not a separate and independent alternative so as to dispose of a remainder interest; that J. B. Nehls and Lois Griffin Nehls did not die in a common calamity nor did J. B. Nehls die before Lois Griffin Nehls and J. B. Nehls was alive at the date of said judgment; and that Paragraph V never became operative. From this finding, the trial court concluded that Lois Griffin Nehls died intestate as to all remainder property and the same vested in John Buford Nehls at the time of her death under the Texas Laws of Descent and Distribution, V.A.T.S. Probate Code secs. 37 and 45.

For the reasons stated above points 1 and 2 are overruled, and the judgment of the trial court is affirmed.


author: CIRE, Justice.

text:
    AMERICAN HOME ASSURANCE COMPANY, Appellant, v. Winfred E. HARBISON, Appellee.
    No. 1932.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Jan. 17, 1979.
    Rehearing Denied Feb. 7, 1979.

      Donald H. Flintoft, Houston, for appellant.
    Vaughn 0. Stewart, Stewart & Willis, Lake Jackson, for appellee.
   CIRE, Justice.

This is a suit brought by appellee Winfred E. Harbison to recover on a disability insurance policy issued by appellant American Home Assurance Company.

Under the terms of the policy, American was to pay 100% of the principal sum of $25,000.00 to appellee, the named insured, in the event of injury resulting in permanent total disability. “Injury” was defined as “bodily injury caused by an accident occurring while this insurance is in force as to the Insured Person and resulting directly and independently of all other causes in loss covered.”

In 1976 appellee submitted a claim for benefits, alleging total permanent disability as a result of exposure to chlorine gas in connection with his work at Dow Chemical Company in November of 1974. Appellee claimed that such exposure caused permanent lung damage resulting in his inability to undertake any type of employment. American denied the claim on the ground that the disability was not an injury “resulting directly and independently of all other causes . . . ” from an accident. American based this conclusion on appel-lee’s history of obstructive lung disease beginning in 1972. As a result of the denial of his claim appellee brought this suit.

The trial judge, sitting without a jury, found that appellee’s “total disability was the reasonable and natural consequence of his accidental injury” and that “said injury was the principal cause of said total disability, independent of other causes.” Judgment was awarded to appellee. We affirm.

Appellant’s first point of error complains of the trial judge’s findings that ap-pellee’s total disability was the reasonable and natural consequence of his accidental injury and that such accident was the principal cause of the disability, independent of other causes. According to appellant, the finding of principal cause necessarily recognizes the existence of one or more subordinate contributing causes and therefore excludes appellee from the terms of the policy. We disagree.

The trial judge made the following additional finding of fact:

12. Any prior diseases or bodily infirmities did not materially or substantially contribute to Plaintiff’s total disability.

Neither of these two findings by the judge was attacked on appeal on the basis of no evidence or insufficiency of the evidence.

The combination of these two findings brings appellee within the terms of the policy. The finding that appellee’s prior lung disease did not materially contribute to the condition of total disability corresponds to the policy requirement that injury result “directly and independently of all other causes” from accidental means. Appellant’s first point of error is overruled.

Appellant’s second point of error alleges that the trial judge erred in failing to find as a matter of law that the exposure to chlorine gas was not the sole cause of appellee’s disability. We disagree. The supreme court in Stroburg v. Insurance Company of North America, 464 S.W.2d 827 (Tex.Sup.1971), citing with approval Mutual Benefit Health and Accident Association v. Hudman, 398 S.W.2d 110 (Tex.Sup.1965), held that while “independent cause” means “sole cause”, “[rjecovery is not defeated when a preexisting condition or disorder is so remote in the scale of causation, so dormant and insubstantial, or so temporary and transient that it does not materially contribute to the death or injury.” 464 S.W.2d at 829. The trial judge so found in finding of fact number 12. We overrule appellant’s second point of error.

In his third point of error appellant alleges that the trial court erred in not finding as a matter of law that appellee’s total disability commenced on or about December 30, 1975. Under the terms of the policy, injury was required to result within one year of the date of the accident, which occurred on November 12, 13, and 14, 1974. The trial judge found that appellee’s total disability commenced on or about September 26, 1975.

We treat this as a no evidence point. When a party asserts that there is no evidence to support a finding, the appellate court must view the evidence and all inferences which may be drawn therefrom in the light most favorable to the finding and reject all evidence and inferences contrary thereto. Butler v. Hanson, 455 S.W.2d 942 (Tex.Sup.1970).

Appellee testified that the last day he worked for Dow was some time in September of 1975, and further that since that date he has worked for no one else. This was evidence from which the trial judge could conclude that appellee’s disability began in September of 1975. Since any date in September would fall within the one year limit, it is not essential that the 26th be established as the precise date of disability. Appellant’s third point of error is overruled.

Affirmed.


author: JAMES, Justice.

text:
    Hulen Ervin STRUNCK, Appellant, v. Carol Ann PEOPLES, Appellee.
    No. 5944.
    Court of Civil Appeals of Texas, Waco.
    Jan. 18, 1979.
    Rehearing Denied Feb. 8, 1979.

      Ricky Sims, Teague, for appellant.
    L. L. Geren, Bradley & Geren, Groesbeck, for appellee.
   OPINION

JAMES, Justice.

This appeal is from an order of the trial court construing and clarifying that portion of a divorce judgment pertaining to the summer visitation for the Appellant-father concerning the child born to the former marriage of the Appellant-father and Ap-pellee-mother.

On July 27, 1977 a Domestic Relations Court of Dallas County, Texas, entered an agreed judgment of divorce between Carol Ann Strunck (now Peoples) and Hulen Er-vin Strunck. The parties had one minor child born to their marriage, to wit, Michelle Ann Strunck, a girl born March 16, 1973. The judgment appointed Mrs. Strunck managing conservator of said child and Mr. Strunck the possessory conservator thereof, and made detailed provisions concerning when and under what circumstances the visitation rights would be exercised.

After the divorce was granted, Mrs. Strunck married a man by the name of Peoples and moved to Limestone County, Texas. Thereafter, Mrs. Peoples filed a motion to transfer continuing jurisdiction of this cause to the 77th District Court of Limestone County (hereinafter called the Limestone Court), whereupon the Dallas Court on March 23, 1978, granted said motion and entered its order transferring said cause to said Limestone Court. Shortly after such transfer, the cause was docketed in the Limestone Court, and at all times material to the present controversy, said court has been the court of continuing jurisdiction under the provisions of Section 11.05 of the Family Code, Vernon’s Texas Civil Statutes. Section 11.05(a) reads as follows:

“Except as provided in Subsections (b), (c), and (d) of this section [none of which is applicable to the case at bar], when a court acquires jurisdiction of a suit affecting the parent-child relationship, that court retains continuing jurisdiction of all matters provided for under this subtitle in connection with the child, and no other court has jurisdiction of a suit affecting the parent-child relationship with regard to that child except on transfer as provided in Section 11.06 of this code.”

Section 11.01(4) provides:

“ ‘Parent-child relationship’ means the rights, privileges, duties, and powers existing between a parent and child as provided by Section 12.04 of this code.”

On May 10, 1978, the Appellee-mother Mrs. Peoples filed in the Limestone Court a pleading labelled, “Motion for Contempt and Motion for Interpretation of Order”, in which she sought to have the Appellant-father Mr. Strunck held in contempt of court for alleged arrearages in child support payments, and in which pleading she further requested the court to interpret and clarify a certain portion of the divorce decree concerning the summer visitation rights of the father. She alleged that Mr. Strunck on May 2,1978, had given her notice in writing of his intention to exercise visitation rights for the summer of 1978 which was in conflict with her interpretation of the divorce judgment, and that there was a dispute between the parties which would require a clarification by the court for the best interest and welfare of the child.

The crux of the dispute was this: Aside from specific holidays and occasions, the divorce judgment provided that Mr. Strunck was allowed on a regular monthly basis, possession of the child once each month from the first Friday thereof until the second Sunday thereafter, same being a regular monthly visitation of some nine days.

Then in another place the divorce decree provided:

“That until Michelle Ann Strunck begins the first grade in school, Respondent Hulen Ervin Strunck shall have possession of Michelle Ann Strunck one (1) week during the summer months of June, July, and August, provided he give Petitioner Carol Ann Strunck thirty (30) days notice of the time he intends to begin said visitation.”

Mr. Strunck took the position that the paragraph last quoted gave him one week extra during each of the summer months over and above the regular nine day visitation period, whereas Mrs. Peoples took the position that during the summer months Mr. Strunck merely had the option to take his regular monthly nine day visitation at a time other than beginning on the first Friday of each such summer month.

Hearing was had before the trial court upon both the contempt motion as well as the motion to interpret, at which both parties appeared in person and by counsel. It is undisputed that both parties consented that the trial court hear the “Motion to Interpret” and clarify the disputed visitation provisions of the divorce judgment.

The trial court on June 1, 1978, entered its order interpreting the divorce judgment, in effect clarifying the disputed visitation provisions in favor of Appellee Mrs. Peoples, from which the Appellant Mr. Strunck appeals.

Appellant’s two points of error assert that the trial court (1) had no jurisdiction to enter the order in question, and (2) erred in ruling as he did in his interpretation of the divorce decree. We overrule these contentions and affirm the trial court’s judgment.

By Appellant’s first point he contends in effect that the order in question is in truth and in fact a declaratory judgment under the provisions of Article 2524-1, V.T. C.S., commonly called the Uniform Declaratory Judgments Act; that said Act makes no provision empowering a court to interpret a judgment, and therefore the trial court in the case at bar had no jurisdiction to interpret the divorce decree. We do not agree.

The order in question is not governed by the Uniform Declaratory Judgments Act, but instead is a matter affecting the par-3nt-ehild relationship under the Family Code. Therefore, the Limestone Court, being the trial court herein, had continuing jurisdiction of the subject matter of the case at bar.

Here, it is undisputed that the Appellant consented that the trial court interpret the disputed provisions of the divorce judgment. Having so invoked the jurisdiction of the court (the court having jurisdiction over the subject matter) Appellant cannot now be heard to question that jurisdiction. It is a part of the public policy enforced by the courts of Texas that where a party invokes the exercise of a jurisdiction within the court’s general powers, he will not thereafter be heard to complain that the court was without jurisdiction to render the order or judgment rendered. In Spence v. State Nat. Bank of El Paso (Comm.App.1928) 5 S.W.2d 754 the court said:

“But this irregularity, even though it be jurisdictional, will not avail plaintiffs in error. The plaintiffs in error having invoked the jurisdiction of the court to appoint a receiver of their property (the court having jurisdiction over the subject-matter), they will not thereafter be permitted to question the validity of such appointment for the want of jurisdiction. [Citing authorities.] * * * To permit one to invoke the exercise of a jurisdiction within the general powers of a court and then to reverse its orders upon the ground that it had no jurisdiction would be to allow one to trifle with the courts. The principle is one of estoppel in the interest of a sound administration of the laws whereby the regularity or even validity of an act procured by one himself cannot be raised — not that the act is valid, for it may not be, and estoppel does not make valid the thing complained of, but merely closes the mouth of the complainant.”

For other applications of the above rule, see Short v. Short (1962), 163 Tex. 287, 354 S.W.2d 933, 935; Knollhoff v. Norris (Tex.1953) 152 Tex. 231, 256 S.W.2d 79, 82; Moore v. Moore (Tex.Civ.App. Dallas CA 1968) 430 S.W.2d 247, 250, NRE; Anderson v. Martin (Tex.Civ.App. Amarillo CA 1953) 257 S.W.2d 347, 352, NRE.

In the case at bar, the Appellant cannot now be heard to complain of lack of jurisdiction on the part of the trial court, in the light of the above-stated well-settled rule of law.

Appellant further attacks the propriety of the trial court’s interpretation of the divorce decree. We overrule this contention. The trial court’s construction in our opinion is a reasonable and correct interpretation and clarification of the divorce judgment. To follow the Appellant’s construction would not only put a strained construction upon the language of the divorce judgment, but would in effect provide for a divided custody of the child during the summer months.

For the foregoing reasons, judgment of the trial court is affirmed.

AFFIRMED.


author: HUGHES, Justice.

text:
    Walter MIDDAUGH et ux., Appellants, v. Robert Dale MERRITT, Appellee.
    No. 18043.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 18, 1979.

      Thornton, Thornton & Price and W. W. Price, Jr., Olney, for appellants.
    Everett, Law & HeLal and Jim Law, Dallas, for appellee.
   OPINION

HUGHES, Justice.

Walter Middaugh and wife, Bertha, have appealed a judgment of the trial court on a writ of habeas corpus which gave right of possession of their granddaughter, Kristi Lynn Merritt, to Robert Dale Merritt, bereaved husband of their deceased daughter, Pamela June Merritt. Trial was to the court. Findings of fact and conclusions of law were made on request of the Mid-daughs.

We affirm.

Point of error one avers that the evidence submitted to the trial court was not sufficient to support a finding that the husband is the biological father of Kristi.

It is undisputed that: the child was conceived and born out of wedlock on April 30, 1975; Pamela and Robert were married about two months after the birth of the child; a substituted birth certificate reflected a change in the surname of the child from “Middaugh” to “Merritt” and that Robert Merritt was her father; the substituted birth certificate was obtained by Pamela and her mother in Wichita Falls after , the marriage and brought to Robert for his signature; Robert signed the same; Robert met Pamela at a birthday party at Mike Mueller’s house; Pamela is dead.

In dispute is the time of Robert’s and Pamela’s first meeting. Robert testified to May or June, 1974 at Mike Mueller’s birthday party. Linda Leatherwood, close friend to Pamela, said it was late August or early September, 1974 after the New Mexico trip at Ricky Garlington’s birthday party at Mike Mueller’s house on a lease. She also said Pamela returned on August 3rd or 4th from New Mexico.

We overrule point of error one and hold that there was sufficient evidence to support trial court’s finding that Merritt is the father of the child. We note that trial court did not use either of the terms “biological father” or “natural father” but, in its finding of facts and conclusions of law, it simply finds Merritt to be “the father” of Kristi. The trial court’s order refers to him as “the father of said child.”

Regardless of the terminology, we hold that there is evidence in the record for trial court to have found Merritt to be the biological father of Kristi. This viewed in the light most favorable to the court’s ruling and disregarding testimony to the contrary after reviewing all of the evidence which we hold not to be so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We are bound by trial court’s findings of fact in this case since they are not manifestly erroneous and are supported by sufficient evidence. City of Garland v. S. H. Lynch & Associates, 413 S.W.2d 480 (Tex.Civ.App.—Dallas 1967, no writ); Bavousett v. Bradshaw, 332 S.W.2d 155 (Tex.Civ.App.—Amarillo 1959, writ ref’d n.r.e.).

Since we have not found trial court’s factual conclusion of Merritt’s paternity erroneous, we overrule point of error two A. The Middaugh’s cite Esparza v. Esparza, 382 S.W.2d 162, 167 (Tex.Civ.App.—Corpus Christi 1964, no writ) interpreting Tex.Prob. Code Ann. § 42 (1977) “where a man and woman have children and thereafter marry .. The essentials to legitimating in such cases are paternity and the actual subsequent marriage of the parents.” Trial court found these essentials.

Tex.Family Code Ann. ch. 13 (1975) providing means for legitimation under a court order has no necessity of application here, since it is our holding that Merritt legitimated Kristi under Tex.Prob.Code Ann. § 42 (1977). Point of error two B is overruled.

We affirm.


author: PER CURIAM.

text:
    Jim TATUM et ux., Appellants, v. The STATE of Texas, Appellee.
    No. 18052.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 18, 1979.
    Jim Tatum & Associates, Houston, for appellants.
    Gerald D. Cobb, Denton, for appellee.
   OPINION

PER CURIAM.

In a felony criminal case in the District Court of Denton County, Texas, Vertice Calloway was (prior to the time set for her trial) at liberty by reason of a bail bond whereon Jim Tatum and Elizabeth Tatum were sureties. Calloway failed to appear for trial.

On 23 August, 1976 a judgment nisi in forfeiture of the bail bond was entered. Thereafter, on 15 March 1978, a “Default Judgment Declaring a Forfeiture” was entered. It awarded the State of Texas judgment against Calloway and the two sureties, the Tatums, in the amount of $3,000.00 and costs.

From that judgment Jim and Elizabeth Tatum (but not Vertice Calloway) filed with the clerk of the trial court an instrument styled “Petition for Writ of Error for Review by the Court of Civil Appeals”. The clerk of the trial court, treating it the same as an appeal writ of error, prepared a transcript of the record and forwarded it to the clerk of this court. It was filed and docketed as an appealed case by the clerk of this court. The circumstances were drawn to the attention of the judges at time the appeal was scheduled to be heard.

We find we have no jurisdiction to entertain the appeal. By answer to a certified question, the Supreme Court held, in 1894, that a Court of Civil Appeals has no jurisdiction to entertain an appeal such as here presented; that the Court of Criminal Appeals has jurisdiction for an appeal from a judgment of forfeiture of a bail bond in a criminal case. Jeter v. State, 86 Tex. 555, 26 S.W. 49 (1894). The law persists, unchanged, as applied to the matter of jurisdiction of such appeals.

The appeal is dismissed for want of jurisdiction.


author: CADENA, Chief Justice.

text:
    Anne LITTLE, NCM, Appellant, v. Margaret LITTLE, Appellee.
    No. 16226.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 7, 1979.

      R. H. Wester, Jr., Seguin, C. Dayle Bebee (amicus curiae), Peter Brooks, Sandra Hale Adams, Advocacy, Inc., Austin, for appellant.
    Threlkeld, Saegert, Saegert, Kirkendall & Frost, W. C. Kirkendall, Seguin, for appel-lee.
   OPINION

CADENA, Chief Justice.

Anne Little, who has been adjudged incompetent, appeals through her attorney ad litem from an order of the probate court of Guadalupe County authorizing her mother and guardian, Margaret Little, to consent to a surgical procedure involving the removal of a kidney from Anne’s body for the purpose of transplanting such kidney into the body of Anne’s younger brother, Stephen, who is suffering from endstage renal disease.

On August 8, 1978, Anne, then aged 14, was declared to be of unsound mind and her mother, appellee here, was appointed guardian of the person and of the estate of Anne. No effort was made to proceed under the Limited Guardianship provisions of the Probate Code which make possible the appointment of a guardian without requiring a finding of mental incompetency. Tex. Prob.Code Ann. § 130A (Vernon Supp.1978-1979). One week later, on August 15, 1978, the guardian filed this application for an order authorizing the transplant operation. The guardian, after alleging the nature of Stephen’s illness and the fact that a kidney transplant is the only acceptable medical alternative to continued dialysis treatment for Stephen, pointed out that Anne is the only living related donor with acceptable matching characteristics and that permitting Anne to donate her kidney to her brother would be in Anne’s best interest and would result in “great and tangible” benefits to her. The guardian added that the operation would present no threat to Anne’s life and that “to the best of her ability and comprehension” Anne desires to donate her kidney to her brother and would do so if she were competent to make such decision.

The attorney ad litem appointed by the court to represent Anne’s interests filed an answer opposing the operation and the authorization sought by the guardian on the ground that there was no constitutional or statutory provision empowering the probate court to authorize removal of an incompetent’s kidney for the purpose of benefiting a person other than the incompetent. In this ease this court has had the benefit of extremely helpful briefs by counsel for the guardian and the attorney ad litem as well as an extensively researched amicus brief filed by Advocacy, Incorporated, a nonprofit federally funded corporation dedicated to the protection of the rights of “developmentally disabled Texans.” The brief filed by amicus in this case truly deserves the designation as a gesture by a “friend of the court”; it expresses no opinion on the question of whether the judgment of the probate court in this case should be affirmed or reversed, but limits itself to an effort to insure that this court be furnished with as much relevant information as possible.

The general rule in this State is that a minor cannot consent to medical or surgical treatment. No claim is here made that this case comes within the statutory exceptions to this rule. See Tex.Fam.Code Ann. § 35.03 (Vernon 1975). Persons adjudged to be mentally incompetent share the same disability to consent to medical or surgical treatment. See 45 Tex.Jur.2d, Physicians and Other Healers § 101 (1963). Parents whose parental rights have not been terminated and managing conservators of minors are authorized to consent to medical and surgical treatment of minors. Tex.Fam.Code Ann. §§ 12.04(6), 14.02(b)(5). The guardian of a mentally incompetent person has the same powers and duties as does the managing conservator of a minor. In re Guardianship of Henson, 551 S.W.2d 136 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.). Significantly, however, for our purposes, this power of parents, managing conservators and guardians to consent to surgical intrusions upon the person of the minor or ward is limited to the power to consent to medical “treatment.” See Tex.Fam.Code Ann. § 12.04(6) (Vernon Supp.1978-1979); Tex.Prob.Code Ann. § 229 (Vernon 1956); In re Guardianship of Henson, 551 S.W.2d 136 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.). Even ascribing to the word “treatment” its broadest definition, it is, nevertheless, limited to “the steps taken to effect a cure of an injury or disease . . . including examination and diagnosis as well as application of remedies.” Black’s Law Dictionary 1673 (rev. 4th ed. 1968).

We cannot accept the guardian’s argument that a donor nephrectomy constitutes medical treatment for the donor. In this case the ward’s mental incompetency results from the fact that she suffers from Down’s Syndrome, often called “mongolism,” which is caused by a “specific chromosomal abnormality which occurs most frequently as an unpredicatable non-disjunction of autosome 21” or, less frequently, “as the Mendelian transmission of a translocat-ed portion of autosome 21.” See President’s Comm, on Mental Retardation, Mental Retardation: Past and Present, at 149 (1977). Since the guardian does not contend that removal of a kidney is a medically acceptable method of curing or treating Down’s Syndrome, Family Code Sections 12.04(6) and 14.02(b)(5) are inapplicable. We think it is clear that the medical procedure authorized by the probate court in this case constitutes “treatment” of the ward’s brother, Stephen, and that the proposed medical procedure has as its purpose curing, remedying or ameliorating the condition of the proposed donee of the ward’s kidney. The fact that the proposed surgical procedure cannot be classified as medical treatment of the ward in this case is made apparent by the medical testimony that a donor nephrectomy is medically acceptable, generally, only if the donor is in good health. All of the testimony in this case stresses the fact that the wtrd is being considered as a donor only because she is in good health and there are no signs of the upper respiratory problems and hypertension frequently associated with mongolism.

Our legislature has not specifically addressed the problem of organ transplants in cases where the proposed donor is a minor or a non-resident mental incompetent who is incapable of giving legally adequate consent to the surgical invasion of his body. The Anatomical Gift Act deals exclusively with anatomical gifts to take effect upon the death of the donor and limits such donations by living persons to those who have testamentary capacity under the Probate Code, although it does provide for gifts of bodies, or parts of bodies, of deceased persons by specified survivors. Tex.Rev.Civ. Stat.Ann. art. 4590-2 (Vernon 1976).

We are not persuaded by the guardian’s argument that the Mentally Retarded Persons Act of 1977 can be construed as a legislative recognition of the right of a minor or mental incompetent to participate as a donor in an organ transplant operation. Tex.Rev.Civ.Stat.Ann. art. 5547-300 (Vernon Supp. 1978-1979). Subchapter E, section 24(c) of that statute expressly prohibits the Texas Department of Mental Health and Mental Retardation from performing unusually hazardous treatment procedures, experimental research, nontherapeutic surgery for experimental research or organ transplantations on residents of state institutions for the mentally retarded. The guardian contends that the legislature, by enacting such restrictions on the Department, must have acted on the belief that the Department, absent such prohibition, would have the authority to engage in these prohibited activities. The guardian further infers that since the statute imposes no restrictions on donations of organs by “nonresident” incompetents, the legislature must therefore have intended to permit the donation of organs by such non-residents.

We reject guardian’s argument as being untenable. If guardian’s theory of statutory construction is adopted a court would have to hold that a guardian or court can consent to the performance of unusually dangerous nontherapeutic surgery on a nonresident ward, which may have no benefit to the ward. We think that section 24(c) can be explained as reflecting legislative familiarity with widespread reports, whether true or not, regarding exploitation of “residents” of governmental institutions who are unwilling or less than fully informed participants in programs sought to be justified as attempts to achieve medical or scientific “progress.” Further, we cannot logically construe section 24(c) as permitting transplants on non-residents while rejecting such interpretation as to experimental nontherapeutic surgery or other highly dangerous experimental medical procedures.

The guardian relies heavily on the decision of the Kentucky Court in Strunk v. Strunk, 445 S.W.2d 145 (Ky.1969). In that case, the proposed donee of the kidney was suffering from endstage renal disease, as is Stephen in the case before us, and, again, like Stephen, he was being kept alive by hemodialysis, which consists of filtering the blood of the afflicted person through an external artificial kidney. The donee’s brother in Strunk was an institutionalized ward of the state who had an I. Q. of about 35, was tested and was found highly compatible as the donor of the required kidney. The “committee” of the incompetent (analogous to a guardian under the Texas law), who was the mother of both the incompetent and the victim of the renal disease, petitioned the court for authority to consent to the transplant, using the kidney of the incompetent. The court, by a 4-3 decision, authorized the transplant, apparently relying on four grounds:

(1) The power of equity to provide for others from the estate of an incompetent, as the incompetent himself would do if not disabled, applies to matters of “personal affairs” as well as to matters of property. This doctrine of “substituted judgment” is broad enough to encompass “all matters touching on the well-being of the ward,” including the donation of a kidney for his psychological benefit. 445 S.W.2d at 148;

(2) Psychiatric testimony supported the conclusion that the operation would be beneficial to the incompetent because his brother’s death would be psychologically detrimental. The court was also apparently impressed by the argument of amicus, the Kentucky Department of Mental Health, which pointed out that mental defectives have a need for close intimacy and that since the defective identified with his ill brother and the family, the sick brother’s life was vital to the incompetent’s well-being. Amicus also argued that the incompetent’s awareness that he could play a vital role in easing familial tensions would generate feelings of guilt if the incompetent failed to act and his brother died. Id. at 146-47;

(3) The chance of a successful kidney transplant is greatly increased where donor and donee are genetically related. Id. at 148;

(4) The operation involved only minimal risk to the donor. Id. at 148-49.

No useful purpose would be served by detailing the evidence in this case. We will merely say that the evidence before us closely parallels that on which the Kentucky court relied in Strunk. Additionally, there was medical testimony in this case that, for purposes of a kidney transplant, the ward and Stephen were a perfect “match,” and that the use of any other member of the family or a non-related donor would significantly lessen the chances for a successful transplant. The undisputed testimony here also established that the chances of obtaining a suitable kidney from a cadaver were extremely remote.

Judicial approval for intra-family transplants from incompetent donors has been granted in most cases. Robertson, Organ Donations by Incompetents and the Substituted Judgment Doctrine, 76 Colum.L.Rev. 48, 53 (1976). In at least two cases, however, courts have refused to authorize transplants from incompetent donors. Lausier v. Pescinski, 67 Wis.2d 4, 226 N.W.2d 180 (1975); In re Richardson, 284 So.2d 185 (La.Ct.App.), cert. denied, 284 So.2d 338 (La.1973). In Lausier, the court justified its refusal to authorize a transplant by noting the absence of specific statutory authority and calling attention to Wisconsin decisions denying the power of a guardian to make gifts from the estate of his ward. However, the following language in the opinion is, perhaps, significant:

An incompetent particularly should have his own interests protected. Certainly no advantage should be taken of him. In the absence of real consent on his part, and in a situation where no benefit to him has been established, we fail to find any authority for the county court, or this court, to approve this operation.

226 N.W.2d at 182. The lone dissenter brushed aside “benefit” to the incompetent as “pretty thin soup on which to base a decision as to whether or not the donee is to be permitted to live,” but would have permitted the transplant by applying the substituted judgment doctrine’s standard which would make the decision turn on what the donor would do if he were competent, concluding that in all probability the incompetent would consent because for him “it would be a short period of discomfort which would not affect his ability either to enjoy life or his longevity.” Id. at 182-83. The dissenter did not choose to explain how ignoring benefits to the incompetent while speculating as to the choice the donor would make if competent would result in a “thicker soup.”

In Richardson, the Louisiana court, in refusing to authorize the operation, pointed out that the facts in Strunk, “particularly the conclusion relative to the ‘best interest’ of the incompetent, are not similar to the facts in the instant case . . ..” 284 So.2d at 187. The court also pointed out that under Louisiana law a guardian is prohibited from making any donations of the ward’s property.

Since our law affords this unqualified protection against intrusion into a comparatively mere property right, it is inconceivable to us that it affords less protection to a minor’s right to be free in his person from bodily intrusion to the extent of loss of an organ unless such loss be in the best interest of the minor.

Id. The court then noted that such statement and its conclusion were “restricted to the facts of the present case.”

The substituted judgment doctrine was apparently first applied in 1816 by Lord Eldon. Its stated purpose was to authorize gifts from an incompetent’s estate to persons to whom the incompetent owed no duty of support. Ex parte Whitebread, 35 Eng.Rep. 878. The doctrine is based on the principle that a court will not refuse to act if it is probable that the incompetent would have taken the same action had he been normal. The doctrine requires that the court “substitute itself as nearly as may be for the incompetent and to act upon the same motives and considerations as would have moved” the incompetent. City Bank Farmers Trust Co. v. McGowan, 323 U.S. 594, 599, 65 S.Ct. 496, 498, 89 L.Ed. 483 (1945).

The substituted judgment doctrine has been adopted in some jurisdictions and rejected in others. See Comment, Gifts by Guardians: Texas Rejects Substitution of Judgment Doctrine, 19 Baylor L.Rev. 411, 418-30 (1967). In Texas, it has been held that the guardian of the estate of an incompetent lacks the power to make a gift from the estate of the ward, even though the evidence establishes that the ward, if competent, would have made such a gift. In re Guardianship of Estate of Neal, 406 S.W.2d 496 (Tex.Civ.App.—Houston [1st Dist.]), writ ref'd n.r.e. per curiam, 407 S.W.2d 770 (Tex.1966). Significantly, in refusing the application for writ of error, the Supreme Court expressly approved the holding of the Court of Civil Appeals that the proposed gift did not satisfy the requirements of the Probate Code and that “the probate court is without power to authorize the same even though it appears (1) that the ward, if competent, would make the gift, and (2) that a prudent man owning and managing the ward’s estate would make the gift.” 407 S.W.2d at 771. The purpose of the gift to the residuary legatees under the ward’s will was to minimize estate taxes which would become due upon the death of the ward, and the trial court found that the proposed gift, if permitted, would reduce estate taxes by a minimum of $240,000.00. The evidence showed that prior to the onset of her incompetence, the ward had made gifts to the proposed donees totaling approximately $2,500,000.00 and that such gifts were at least partially motivated by a desire to minimize estate taxes by reducing the size of her estate. Subsequent to the Neal decision the Probate Code was amended to permit a guardian to make gifts from the ward’s estate under certain circumstances for the purpose of minimizing estate taxes. Tex.Prob.Code Ann. § 230(b)(2) (Vernon Supp.1978-1979).

It is clear in transplant cases that courts, whether they use the term “substituted judgment” or not, will consider the benefits to the donor as a basis for permitting an incompetent to donate an organ. Although in Strunk the Kentucky Court discussed the substituted judgment doctrine in some detail, the conclusion of the majority there was based on the benefits that the incompetent donor would derive, rather than on the theory that the incompetent would have consented to the transplant if he were competent. We adopt this approach. As already pointed out, the courts in Lausier and Richardson, in refusing to approve the transplant operations on the basis of the substituted judgment doctrine, pointed to the lack of evidence showing that the incompetent donors would realize benefits from the operations. In Neal, the case which is frequently referred to as rejecting the substituted judgment doctrine in Texas, the detailed findings of fact by the trial court made no mention of any benefit to the person of the incompetent, as distinguished from benefit to the estate of the ward — a benefit which would not be realized until after the death of the ward. The Supreme Court’s approval of the civil appeals holding in Neal does no more than assert that a gift of the ward’s property is not authorized merely because it is established that the ward, if competent, would make the gift and that a prudent man owning and managing the estate would make the gift. Thus, there is no Texas case holding that an action by a guardian is unauthorized where the ward, if competent, would so act, and such action would result in benefits to the ward which he would enjoy during his lifetime.

We do not assert that the evidence in this case is sufficient to establish that Anne has the mental capacity to fully understand the concept of death. The suggestion, accepted in Strunk, that an incompetent potential donor would be subjected to feelings of guilt if his sibling died because the transplant did not take place may also, perhaps, be taken with a grain of salt. But the testimony in this case conclusively establishes the existence of a close relationship between Anne and Stephen, a genuine concern by each for the welfare of the other and, at the very least, an awareness by Anne of the nature of Stephen’s plight and an awareness of the fact that she is in a position to ameliorate Stephen’s burden. Assuming that Anne is incapable of understanding the nature of death, there is ample evidence to the effect that she understands the concept of absence and that she is unhappy on the occasions when Stephen must leave home for hours when he journeys to San Antonio for dialysis. It may be conceded that the state of development of the behavioral arts is such that the testimony of psychiatrists and psychologists must still be classified as speculative, but, as of today, that has not been accepted as justifying a judicial rejection of the value of such testimony. Indeed, on the basis of such speculative testimony, citizens are deprived of their freedom so that they may be treated for mental illness, and in criminal prosecutions persons are condemned to death on the basis of psychiatric testimony concerning their propensity to engage in certain types of conduct in the future.

Nor is it fair to say that the evidence concerning “psychological” benefits to Anne consists merely of testimony as to the prevention of detrimental effects which she may suffer if Stephen dies. The testimony is not limited to the prevention of sadness. There is uncontradicted testimony relating to increased happiness. Studies of persons who have donated kidneys reveal resulting positive benefits such as heightened self-esteem, enhanced status in the family, renewed meaning in life, and other positive feelings including transcendental or peak experiences flowing from their gift of life to another. Robertson, supra, 76 Colum.L.Rev. at 68; Arrow, Gifts and Exchanges, 1 Philos. & Public Affairs 343 (1972); Fellner, Organ Donation—For Whose Sake?, 79 Annals of Internal Medicine 589 (1973). The record before us indicates that Anne is capable of experiencing such an increase in personal welfare from donating her kidney.

The medical experts who testified in this case conceded that Anne would experience pain and discomfort, but they all referred to it as minimal, and there is evidence that Anne has a high pain threshold. There is however, the possibility that Anne, because of her limited intellectual development, may be less able to understand the transplant procedures or to adapt to the unfamiliar surroundings of a hospital, so that her ordeal may be more burdensome than that of a normal adult. We must assume that all of these possibilities were carefully weighed by the trial judge, who had the opportunity to observe Anne and to hear her unsworn answers to questions, some of which were suggested by the court.

The circumstances of this case may be fairly summarized as follows:

(1) The parents and guardian of Anne consent to the kidney donation by Anne;
(2) Although Anne’s statement that she was willing to donate her kidney to her brother cannot be realistically viewed as a knowing consent, there is no evidence indicating that she has been subjected to family pressure and the trial judge took the precaution, at the close of the testimony and before he announced his decision, of requesting and obtaining a physical and psychological evaluation of Anne;
(3) The evidence establishes that without a transplant Stephen will, at the very least, suffer severe and progressive deterioration, and that there are no medically preferable alternatives to a kidney transplant for Stephen;
(4) The dangers of the operation are minimal. Since she is in good health, the risks to Anne are small, and there is evidence that she will not suffer psychological harm;
(5) The evidence establishes that neither long-term dialysis nor a cadaver transplant or transplant from other living donors is medically acceptable;
(6) Stephen will probably benefit substantially from the transplant, and the risk to him from the operation, including long-term risks, are medically acceptable;
(7) The trial court’s decision to authorize the operation was made only after a full judicial proceeding in which the interests of Anne were championed by an attorney ad litem, appointed by the court. The attorney ad litem has assumed an adversarial role, asserting the child’s interest in not being a donor and vigorously questioning the power of the court to authorize the operation. This is not a case where the attorney ad litem assumed a purely passive role, participating in the hearing merely to rubber-stamp the guardian’s decision while giving to the proceedings the outward appearance of compliance with due process requirements.

Given the presence of all the factors and circumstances outlined above, and limiting our decision to such facts and circumstances, we conclude that the trial court did not exceed its authority by authorizing the participation of Anne in the kidney transplant as a donor, since there is strong evidence to the effect that she will receive substantial psychological benefits from such participation. Nothing in this opinion is to be construed as being applicable to a situation where the proposed donee is not a parent or sibling of the incompetent.

We consider it proper and judicious to suggest that the problem of organ donations by incompetents can be more effectively addressed by the legislature, whose members can promulgate standards based on expert medical, psychiatric and psychological information, as well as testimony and experience of social workers which is not readily available to the judiciary. While we believe that the limited nature of our decision in this case will prevent the exploitation of minors and mental incompetents, we acknowledge that legislators are better qualified to conduct the necessary investigations which will yield a system of rules to adequately protect minors and other incompetents from exploitation without denying them such benefits as competent adults may derive from the organ-donating experience.

The judgment of the trial court is affirmed.

      . See generally Tex.Rev.Civ.Stat.Ann. art. 5547-300 § 3 (Vernon Supp.1978-1979).