text:
    Ex parte Bobby Lee EVANS.
    No. 51210.
    Court of Criminal Appeals of Texas.
    Dec. 19, 1975.
    Conviction for felony theft voided and indictment dismissed; conviction for robbery affirmed.

      Bobby Lee Evans, Pro Se.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

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

Petitioner was convicted of the offense of robbery by assault, enhanced under Article 62, V.A.P.C., in cause No. C-72 — 21-JN, in the 195th District Court of Dallas County and assessed a mandatory life term of imprisonment on July 14, 1972. An appeal of that conviction was affirmed. See Evans v. State, 499 S.W.2d 123 (Tex.Cr.App.1973). On October 6, 1972, petitioner entered a plea of guilty to the offense of felony theft in cause No. C — 71—9508-LN in the same trial court and was assessed a ten-year sentence on that same date. No appeal was taken of this conviction.

Petitioner filed an application for writ of habeas corpus with the trial court alleging “illegal indictment” and double jeopardy. This case was filed and set for submission on the sole question as to whether or not petitioner’s ten-year sentence assessed in the theft case was obtained in violation of the “carving” doctrine after petitioner had already been convicted' of the offense of robbery by assault, both offenses arising out of the same operative set of facts. See Duckett v. State, 454 S.W.2d 755 (Tex.Cr.App.1970). Martinez v. Beto, 398 F.2d 542 (5th Cir. 1968).

The trial court’s findings of fact and conclusions of law recite:

“. . . the facts of the two offenses — robbery by assault and felony theft — formed a continuous sequence of events. . . . The facts, as supported by the record on appeal, show that Petitioner requested the aid of the victim, a service station manager, in starting his automobile some distance from the station. At the site of the crime Petitioner produced a pistol, took the victim’s wallet, shot the victim in the stomach without reason, forced the victim to run away, and then, in the absence of the owner, stole the victim’s automobile.”

In reviewing the appellate record, we are of the opinion that the trial court’s summary of the facts is correct. See Evans v. State, supra, at p. 124. However, the trial court found that the prosecutor properly carved two offenses since the time intervening between the running away of the victim and the stealing of the automobile constituted two offenses. Also, the trial court found that petitioner made no complaint or objection prior to his entry of the plea to the theft case on the grounds that the prosecution was barred by the “carving” or double jeopardy doctrines, therefore implying that petitioner waived his complaint.

Initially, it should be noted that the failure to object at trial to a violation of the “carving” or double jeopardy doctrine does not constitute a waiver of such objections in a post-conviction, collateral habeas corpus attack. See Duckett v. State, supra; Ellis v. State, 502 S.W.2d 146 (Tex.Cr.App.1973); Ex parte Calderon, 508 S.W.2d 360 (Tex.Cr.App.1974); Ex parte Scelles, 511 S.W.2d 300 (Tex.Cr.App.1974); Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29; Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).

In the record before this Court, the facts show that the property stolen as a basis for the “theft over fifty dollars” indictment in cause No. C-71 — 9508-LN was “one automobile of the value of over fifty dollars”, and there is no question that the automobile in question was taken during the robbery for which appellant had been previously convicted. The robbery indictment charged appellant with taking “one billfold, twelve dollars current money of the United.States of America”, but did not mention the taking of the automobile. Even though the record indicates that the complaining witness had fled the scene, after being shot by petitioner, the record also reflects that petitioner used actual, antecedent violence against the complaining witness in order to accomplish the theft of the vehicle.

Robbery and theft (under the old Code) are closely related crimes, and the only distinction between the two offenses lies in the antecedent violence, either actual or threatened, which is perpetrated on the victim of the robbery. See Reese v. State, 91 Tex.Cr.R. 457, 239 S.W. 619 (1922); Flores v. State, 145 Tex.Cr.R. 134, 166 S.W.2d 706 (1942); Alaniz v. State, 147 Tex.Cr.R. 1, 177 S.W.2d 965 (1944). Compare also Byrd v. State, 490 S.W.2d 575 (Tex.Cr.App.1973). In the case at bar, the evidence clearly shows that there was antecedent violence committed on the person of the victim, thus causing him to flee, which is sufficient to take this case out of the felony classification of “theft.” See also Jemmerson v. State, 482 S.W.2d 201 (Tex.Cr.App.1972); Rayford v. State, 423 S.W.2d 300 (Tex.Cr.App.1968).

Since the antecedent violence in the case at bar was so closely intertwined with the theft of the victim’s money, billfold and vehicle, it is obvious that the State could have, had it desired, also included in the robbery indictment in cause No. C-72 — 21-JN the allegation that the petitioner appropriated the victim’s vehicle. The fact that the State did not seek to allege all the items stolen from the victim within the robbery indictment cannot be a justification for allowing multiple prosecutions. To allow the State to employ a multiplicity of technical pleadings which would permit successive prosecutions based upon the same conduct has been condemned by the United States Supreme Court. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, at footnotes 9 & 10 (1970). In the case at bar, the time sequence of events was continuous and did not break the chain of antecedent violence perpetrated upon the complaining witness so as to give rise to the inception of another separate and distinct offense. See Lamberson v. State, 509 S.W.2d 328 (Tex.Cr.App.1974).

Therefore, we hold that the continuous nature of the assaultive action by the petitioner in this case would have permitted prosecution for one offense; i. e., robbery. The prosecution for theft should have been barred by the “carving” doctrine. See Duckett v. State, supra; Price v. State, 475 S.W.2d 742 (Tex.Cr.App.1972); Ex parte Calderon, supra.

The relief requested by petitioner is granted to the extent that the judgment and sentence in cause No. C-71-9508-LN is voided, and the indictment in that case is dismissed. However, the conviction for robbery in cause No. C-72-21-JN is still a valid sentence and is not disturbed by this ruling.

It is so ordered, and a copy of this opinion shall be forwarded to the Texas Department of Corrections.

Opinion approved by the Court.

      . We call attention to errors appearing in headnote 3 and footnote 2 in Duckett v. State, supra, in which the word not was omitted. The headnote should recite that a “. . . special plea was not required” rather than a “. . . special plea was required.” The footnote should read “. it would appear that a special plea would not be required” rather than “. . . it would appear that a special plea would be required.”


source: Caselaw Access Project

author: BROWN, Commissioner.

license: Public Domain

text:
    David Ray ROBINSON, Appellant, v. The STATE of Texas, Appellee.
    No. 51231.
    Court of Criminal Appeals of Texas.
    Dec. 19, 1975.
    Paul R. Lawrence, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Larry Meyer, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

Appellant was convicted of the Class A misdemeanor grade of theft and his punishment was assessed at 30 days, probated.

Appellant on May 15, 1974 entered the grounds of the University of Houston without authority and stole a bicycle which was the property of the University. He entered a plea of guilty to the offense of criminal trespass and paid the fine assessed. Thereafter, appellant filed a motion to dismiss the theft of the bicycle information on the grounds that the criminal trespass and the theft were one transaction and, under the doctrine of carving, the State was precluded from proceeding in the theft case. The motion to dismiss was denied whereupon the appellant entered a plea of nolo conten-dere to the bicycle theft charge. Appellant’s sole ground on appeal is that his conviction is void as being violative of the doctrine of carving. Appellant relies on Douthit v. State, Tex.Cr.App., 482 S.W.2d 155. In Douthit we held that under the “carving doctrine” the State may carve as large an offense out of a single transaction as it can, but it must cut only once. This clearly is the settled law of this State. However, the problem at issue is whether the criminal trespass and the subsequent bicycle theft were in fact one transaction.

Under V.T.C.A. Penal Code, Sec. 30.05, the offense of criminal trespass was committed the moment appellant without authority entered the prohibited area of the University grounds. The subsequent theft was a separate transaction. In Douthit, supra, the doctrine of carving was held not to apply to an assault with intent to rape in Travis County and the subsequent rape in Williamson County. A similar conclusion was reached in Lee v. State, Tex.Cr.App., 505 S.W.2d 816, where three different acts of sodomy were committed against the same individual on the same day. Although both Douthit, supra, and Lee, supra, were by a divided court, they have not been overruled and are the authority which controls the instant case. See also Pena v. State, Tex.Cr.App., 442 S.W.2d 691.

The judgment is affirmed.

Opinion approved by the Court.

MORRISON, J., dissents for the same reasons stated in Douthit and Lee.


author: McCLOUD, Chief Justice.

text:
    Marda Jackie Joiner SHAFER et al., Appellants, v. Rita Shafer WILLIS, Appellee.
    No. 4836.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 10, 1975.
    L. A. Nelson, Denton, for appellants.
    John R. Lively and Carl T. Clarke, Fort Worth (Walker, Bishop & Larimore), Fort Worth, for appellee.
   McCLOUD, Chief Justice.

Rita Shafer Willis sued Marada Jackie Joiner Shafer, Davis-Morris Funeral Home, and Eastlawn Memorial Park, alleging defendants wrongfully caused the body of plaintiff’s deceased father to be disinterred and removed from a grave in Brown County, and interred in a grave in Eastland County. Shafer filed a plea of privilege which was controverted. Willis failed to appear at the plea of privilege hearing and the court signed and entered an order sustaining Shafer’s plea of privilege on January 15, 1975. On March 5, 1975, Willis filed a motion to set aside the January 15, 1975 order. The motion does not contain essential allegations to qualify as a bill of review. On April 21, 1975, the court signed and entered an order setting aside the January 15, 1975 order sustaining Shafer’s plea of privilege. Shafer has appealed the April 21, 1975 order.

Shafer contends the order is void because the trial court had no jurisdiction. Willis contends the order is interlocutory and we have no jurisdiction.

The judgment entered by the trial court on January 15, 1975, sustaining the plea of privilege became final thirty days thereafter, and the trial court had no jurisdiction to enter the April 21, 1975 order. Rule 329b(5), T.R.C.P.; McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961); Wichita Falls & S. R. Co. v. McDonald, 141 Tex. 555, 174 S.W.2d 951 (1943); Inland Refining Co. v. Robinson, 152 Tex. 289, 256 S.W.2d 843 (1953); Davis v. Campbell, 319 S.W.2d 758 (Tex.Civ.App.—Amarillo 1958, no writ); Gillette Motor Trans. Co. v. Wichita Falls & South R. Co., 170 S.W.2d 629 (Tex.Civ.App.—Fort Worth 1943, no writ); Eli Lilly and Company v. Casey, 457 S.W.2d 82 (Tex.Civ.App.—Eastland 1970, no writ).

The April 21, 1975 order which Shafer has appealed is not a final appeal-able judgment and we have no power to review it by appeal. Tindall v. Rhodes, 493 S.W.2d 733 (Tex.1973), and Banks v. Sada, 527 S.W.2d 522 (Tex.Civ.App.—San Antonio 1975).

The appeal is dismissed.


author: CURTISS BROWN, Justice.

text:
    CITY OF SPRING VALLEY et al., Appellants, v. Darryl HURST et al., Appellees.
    No. 1154.
    Court of Civil Appeals of Texas, (14th Dist.).
    Oct. 22, 1975.
    Rehearing Granted in Part and Denied in Part Nov. 19, 1975 with opinion.

      C. B. Stephenson, Schlanger, Cook, Cohn & Mills, Beyrt H. David, David & Wanzong, Houston, for appellants.
    J. Leonard Gotsdiner, Ranseler, 0. Wyatt, Houston, for appellees.
   CURTISS BROWN, Justice.

This is a zoning case.

The City of Spring Valley and the Board of Adjustment of Spring Valley (City or appellants) appeal from a judgment of the 11th Judicial District Court of Harris County, Texas, reversing an order of the Board of Adjustment.

Darryl Hurst and others (Hurst or appel-lees) applied to the building inspector of the City of Spring Valley for a building permit to construct a “metallic steel” building with a concrete floor containing approximately 6800 square feet. At least since 1948 appel-lees have been operating a motorcycle, bicycle, and lawnmower sale and repair facility on this location. The business extends to the sale and repair of other small motors and appliances. Appellees’ tract fronts 175 feet on Bingle Road and extends west from Bingle Road a distance of some 420 feet. Appellee has buildings erected on the tract at the present time which form a rough “L”. The steel building, if permitted, would essentially fill in the empty portion of the “L” so as to form a rough rectangle.

Appellees’ use of these premises for the purpose for which they are being used predates the incorporation of the City of Spring Valley and, of course, the zoning ordinances in question. The business represents a non-conforming use of the property, being located in an area zoned for single family residences. A seven foot board fence surrounds the entire property except for the frontage on Bingle Road. The steel building on a concrete foundation would not be visible from beyond the fence. On each side of this property are residences owned by appellees and used as rent houses. To the south of the property is a large tin barn which the City of Spring Valley uses for storage of equipment.

The building inspector denied the permit to construct the steel building on the concrete foundation. Acting under the authority of Tex.Rev.Civ.Stat.Ann. art. lOllg (Supp.1974) Hurst appealed the denial to the Board of Adjustment. After a public hearing the Board denied the application. Appellees filed for a writ of certiorari which was granted by the district court. Following a non-jury trial the court concluded that the order of the Board was not supported by substantial evidence. Judgment was entered reversing the decision of the Board of Adjustment and ordering appellants to issue a building permit to appel-lees, conditioned upon appellees’ compliance with certain court-imposed construction requirements.

Appellants have assigned appropriate points on this appeal asserting that: there was substantial evidence to support the Board’s decision; the trial court substituted its judgment for that of the Board; there was no evidence to overcome the presumption of the validity of the decision; the court erred in imposing construction requirements; the judgment went beyond appropriate scope and extended a non-conforming use.

In reviewing a decision of a board of adjustment to determine if there was an abuse of discretion the substantial evidence rule is to be applied. Board of Adj. v. Whitlock, 442 S.W.2d 437 (Tex.Civ.App.—Corpus Christi 1969, writ ref’d n. r. e.); Davis v. Zoning Bd. of Adjustment, 362 S.W.2d 894 (Tex.Civ.App.—Amarillo 1962, writ ref’d n. r. e.). Substantial evidence de novo review was finalized in general by our supreme court in Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424, 441 (1946), wherein the Court stated:

In such a case the issue is not whether or not the 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. Hence it is generally recognized that where the order of the agency under attack involves the exercise of the sound judgment and discretion of the agency in a matter committed to it by the Legislature, the court will sustain the order if the action of the agency in reaching such conclusion is reasonably supported by substantial evidence. This does not mean that a mere scintilla of evidence will suffice, nor does it mean that the court is bound to select the testimony of one side, with absolute blindness to that introduced by the other. After all, the court is to render justice in the case. The record is to be considered as a whole, and it is for the court to determine what constitutes substantial evidence. The court is not to substitute its discretion for that committed to the agency by the Legislature, but is to sustain the agency if it is reasonably supported by substantial evidence before the court. If the evidence as a whole is such that reasonable minds could not have reached the conclusion that the agency must have reached in order to justify its action, then the order must be set aside.

The presumption of validity is in favor of the order of the Board. The court may not substitute its discretion for that of the Board. City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67 (1945). Spring Valley’s Zoning Ordinance provides in subsection c of Section 8 that “[a] NonConforming Use shall not be extended.

Keeping in mind the provision of the ordinance above set forth and the heavy burden upon appellees to sustain their attack against the presumed valid order of the Board, we must now review the record as a whole to determine whether there is substantial evidence to support the order. There is no evidence that the non-conforming use will be “extended.” On the contrary, it affirmatively appears that the business will continue just as it has in the past. The steel building will be used to reduce the noise level of some of the activities already being carried out and to store materials that are presently left in boxes outside the premises. No new or added activities will be carried out and there is no showing that the volume of business will be increased.

The Deputy Fire Chief of the City testified that it would be difficult to fight any fire on the premises in question because of the necessity of running hoses a distance of some 2,300 feet. However, this difficulty exists regardless of the building in question. The steel building would not make-the fire problem greater or less. He ended up testifying that the present conditions constitute a greater fire hazard than would exist if the materials now left outside were stored in a steel building. A police captain of the City testified that a traffic difficulty presently exists in the vicinity because of two factors: (a) Bingle widens from a normal two-way street into a four-lane street about 175 feet south of the Hurst property; (b) Hurst’s customers have some difficulty backing out onto Bingle. He further testified that the traffic conditions would neither be helped nor hurt by the existence of the building in question. In summary, the representatives of the fire and police departments testified as to the existence of some problems but that these problems would exist whether the building was built or not.

We agree with the trial court that the action of the Board was not reasonably supported by substantial evidence. This conclusion compels us to overrule appellants’ points one, two, three and six. See Davis v. Zoning Bd. of Adjustment, 362 S.W.2d 894 (Tex.Civ.App.—Amarillo 1962, writ ref’d n. r. e.).

In points four and five the City complains of the action of the trial court in requiring appellees to comply with some six conditions. These conditions concern the requirement of an automatic sprinkler system, lights to be no more than seven feet high, etc. These requirements were within the power of the trial court since Article lOllg expressly provides that the trial court may “modify” the order of the Board. Since these requirements are favorable to the appellants, the City is in no position to complain. The judgment of the trial court is affirmed.

Affirmed.

ON MOTION FOR REHEARING

In their Motion for Rehearing, appellants urge that we erred in assessing costs against them. Tex.Rev.Civ.Stat.Ann. art. 1011g(n) (Supp.1974) provides that: “Costs shall not be allowed against the Board unless it shall appear to the court that it acted with gross negligence, or in bad faith or with malice in making the decision appealed from.” The judgment of this court recited that the costs of this appeal should be paid by the City of Spring Valley and the Board of Adjustment of the City of Spring Valley. Since it does not appear that the Board acted with gross negligence, or in bad faith or with malice in making its decision, it was improper to allow costs against the Board. Therefore, the judgment of this court shall be reformed to assess all costs of appeal against the City of Spring Valley.

Otherwise, Appellants’ Motion for Rehearing is overruled.


author: McDONALD, Chief Justice.

text:
    STERLING PROJECTS, INC., et al., Appellants, v. F. D. FIELDS and Ward Thomas, Individually and d/b/a Fields & Thomas Construction Company, Appellees.
    No. 5429.
    Court of Civil Appeals of Texas, Waco.
    Oct. 23, 1975.
    Rehearings Denied Dec. 18, 1975.

      John B. McNamara, Waco, for appellants.
    B. N. Hamilton, Waco, for appellees.
   OPINION

McDONALD, Chief Justice.

This suit grows out of a carpentry subcontract on a 250 unit housing project. Plaintiffs Fields and Thomas were the carpentry subcontractors. Defendant Sterling Projects was general contractor, and defendant Industrial Indemnity had executed performance bond for Sterling.

Sterling fired plaintiffs off the job before plaintiffs completed their work. Plaintiffs sued Sterling (and its bondsman) for damages for wrongful breach of plaintiffs’ subcontract; additionally sought special damages to their business reputation and credit resulting from the wrongful breach; and pay for extra work and payments made to idle employees.

Defendants answered by general denial, asserted plaintiffs failed to perform according to contract, and by cross action sought damages for excess cost in completing the contract.

Trial was to a jury which found:

1) At time of their discharge plaintiffs had substantially performed their subcontract.
5) Sterling acted without just cause in discharging plaintiffs.
6) Such discharge resulted in damages to plaintiffs' business reputation.
7) At the time the subcontract was entered, Sterling should have reasonably known that a wrongful discharge would result in damages to plaintiffs’ business reputation.
8) $20,000 will reasonably compensate plaintiffs for damage to their business reputation, proximately resulting from the discharge without cause.
9) Such discharge resulted in damages to plaintiffs’ credit standing.
10) At the time the subcontract was executed Sterling should have reasonably anticipated that a discharge without just cause would result in damage to plaintiffs’ credit.
11) $10,000 will reasonably compensate plaintiffs for damages to their credit resulting from their discharge without just cause.
12) Plaintiffs performed 10 items of extra work.
13) Sterling ordered plaintiffs to perform such extra work.
14) Sterling accepted the benefits of such extra work.
15) $4755.15 is the reasonable value of such extra work.
16) Studs and other lumber on certain buildings were damaged by exposure to the weather.
17) Sterling failed to properly supervise the concrete subcontractor in pouring porches on such buildings.
18) Such failure resulted in weather damage to the studs and other lumber.
19) $1500. was the reasonable cost to repair and replace such damage.
20) Sterling failed to supply plaintiff with sufficient materials to perform labor required by the carpentry subcontract.
21) Sterling failed to exercise reasonable care to supervise the job performance of the concrete subcontractor.
22) Such failure proximately resulted in plaintiffs making payment to its employees who were substantially idle.
23) At the time the carpentry subcontract was entered Sterling should have reasonably known that a failure to furnish adequate materials and to properly supervise the concrete subcontractor, would result in additional labor expense to plaintiff.
24) Plaintiffs acted as a reasonable and prudent subcontractor in making such payments to their employees.
25) $7500. was the reasonable cost to plaintiffs in making such payments to their employees.
28) Plaintiffs did not fail to cooperate with the general contractor in scheduling its work so as to avoid conflict with the work of others.
32) Plaintiffs did not fail to perform good quality work.
34) Plaintiffs did not fail to properly man the job with sufficient personnel.
36) Plaintiffs did not constructively abandon its contract by failing to properly man the job with sufficient personnel.

The trial court rendered judgment on the verdict for plaintiffs against both defendants for $64,995.87 ($21,240.72 for breach of contract; $20,000. damage to plaintiffs business reputation; $10,000. damage to plaintiffs’ credit; $4755.15 for extra work; $1500 repair of weather damages; $7500. labor expense to idle employees).

Defendants appeal on 29 points contending:

1) The trial court erred in rendering judgment for $20,000. damage to plaintiffs’ business reputation, and $10,000. damage to plaintiffs’ credit, because such items are not recoverable as actual damages for breach of contract; and because there is no evidence and factually insufficient evidence of such items of damage.
2) The trial court erred in rendering judgment for the $4755.15 extra work performed because plaintiffs did not comply with the contractual requirements necessary to be entitled to payment for such; and such is not recoverable in suit for breach of contract.
3) The trial court erred in rendering judgment for the $1500. damage for plaintiffs repairing and replacing studs and lumber exposed to weather due to failure of defendant to properly supervise performance of the concrete subcontractor, because plaintiffs failed to comply with specific contractual requirements to be entitled to such claim; and there is no evidence and factually insufficient evidence to support such findings.
4) The trial court erred in rendering judgment for the $7500. payments made by plaintiffs to idle employees, because plaintiffs failed to comply with specific contractual requirements to be entitled to such claim; there is no finding such employees were substantially idle; and there is no evidence or factually insufficient evidence to support the findings upon which same is based.
5) The trial court erred in rendering judgment against the surety company on all items except the $21,240.72 awarded against defendant Sterling for breach of contract.

Defendants make no complaint of the finding that Sterling wrongfully fired plaintiffs from the job, or of the award of $21,240.72 damages for such breach of contract. Plaintiffs concede contention 5, supra, is correct, and that judgment against the surety company should be limited to the sum of $21,240.72.

Contention 1 asserts, among other matters, that damages to credit and reputation are not recoverable items of actual damages for breach of contract.

Actual damages are either general or special. The term “general damages” is applied to loss, damage or injury which is conclusively presumed to have been foreseen or contemplated by the party as a consequence of his breach of contract or wrongful act, whereas, “special damage” signifies injurious consequences which are not deemed as a matter of law to have been foreseen, but which are shown to have been contemplated or anticipated by the parties. First National Bank of Hico v. English, NWH (Waco, Tex.Civ.App.), 240 S.W.2d 503.

The foregoing is the general rule and is recognized in Humble Oil & Refining Co. v. Wood, Tex.Com.App., 292 S.W. 200; National Bank of Cleburne v. Pittman Roller Mills, Tex.Com.App., adopted S.Ct., 265 S.W. 1024; New Amsterdam Cas. Co. v. Bettes, NRE (Dallas, Tex.Civ.App.) 407 S.W .2d 307, and 22 Am.Jur.2d, p. 86.

Plaintiffs sought $30,000. special damage to their credit and business reputation as a result of Sterling’s breach of contract. The jury found that Sterling discharged plaintiff without cause, which resulted in $30,-000. damage to plaintiffs’ credit and business reputation; and at the time the subcontract was entered Sterling should have reasonably anticipated that a wrongful discharge of plaintiff would result in damage to their credit and business reputation. The parties treat damage to credit and business reputation under the facts of this case as almost synonymous, and we do likewise.

Our Supreme Court has addressed itself specifically to whether loss of credit may be actual damages in Texas, and held in Traweek v. Martin-Brown Co., 79 Tex. 460, 14 S.W. 564. “Wallace v. Finberg [46 Tex. 35] is authority for the doctrine that loss of credit is not an element of actual damages. Whatever may be the rule in other jurisdictions, that is well settled in this court.” Streetman v. Lasater, NWH (El Paso, Tex.Civ.App.) 185 S.W.2d 930 holds that damage to reputation and credit are not proper elements of actual damage, but may be rendered in fixing exemplary damages; First National Bank of Littlefield v. Cooper, Er. Ref. (Amarillo, Tex.Civ.App.) 12 S.W.2d 271 holds: “Loss of credit is an element of exemplary rather than actual damages”; and Kauffman v. Armstrong, 74 Tex. 65, 11 S.W. 1048 holds that loss of credit and prospective profits are exemplary damages. See also Security State Bank and Trust v. Craighead, NRE (San Antonio, Tex.Civ.App.) 440 S.W.2d 701.

Plaintiffs rely on Southwest Bank and Trust Co. v. Executive Sportsman Ass’n., NRE (Dallas, Tex.Civ.App.) 477 S.W.2d 920, and assert such case “Specifically overturns the Traweek, Streetman and First National Bank of Littlefield cases”. We disagree, and hold that in the case at bar damages to plaintiffs’ credit and business reputation are not recoverable as actual or special damages. Contention 1 is sustained.

Contention 2 asserts the trial court erred in rendering judgment on the $4755.15 extra work performed by plaintiff.

The jury found plaintiffs performed 10 items of extra work outside of the contract; that Sterling ordered plaintiffs to perform such work; accepted the benefits of such work; and that $4755.15 is the reasonable value of such work.

Defendants assert such cannot stand because plaintiffs failed to comply with that portion of the contract which “Required that all claims by subcontractor for additional costs, extension of time, damages for delays or otherwise with respect to subcontracted portions of the work shall be submitted to the contractor in sufficient time so that the contractor may comply in the manner provided in the contract documents for like claims by the contractor upon the owner.” The foregoing is not applicable to extra work outside the contract, which was ordered performed by the general contractor; and thus knew about same and could have made appropriate claims on the owner, if it so desired. See Collins v. Hall, Er.Ref.W.M., Tex.Civ.App., 161 S.W.2d 311; City of Galveston v. O’Mara, (Galveston, Tex.Civ.App.) 146 S.W.2d 416; affm’d. 138 Tex. 16, 155 S.W.2d 912.

Moreover since defendant wrongfully breached the contract, it cannot take advantage of provisions of same favorable to it. Halbert v. Standley, (Waco, Tex.Civ.App.) NRE, 488 S.W.2d 887; Wellington Railroad Committee v. Crawford, Tex.Com. App., adopted S.Ct., 216 S.W. 151; Casanova v. Falstaff Beer, (Eastland, Tex.Civ.App.) NRE, 304 S.W.2d 207; Sutton County v. Security Trust Co., (Amarillo, Tex.Civ.App.) Er.Ref. 61 S.W.2d 862.

Contentions 3 and 4 assert the trial court erred in rendering judgment for $1500. and the $7500. because plaintiffs failed to comply with specific contractual requirements to be entitled to such claim, and there is no evidence or factually insufficient evidence to support such findings.

Since defendant wrongfully breached the contract it cannot take advantage of provisions of same favorable to it. See authorities cited above. We think the evidence ample to sustain the jury’s findings supporting these items.

Contention 5 has been conceded by plaintiffs, and is sustained.

The judgment is reformed to delete recovery by plaintiffs of $30,000. awarded as special damages to credit and business reputation; and is further reformed to delete recovery against defendant Industrial Indemnity of all amounts except $21,240.72 awarded plaintiffs for breach of the contract.

Costs of appeal are taxed against appellants and ½ against appellees.

Reformed and affirmed.


author: TUNES, Chief Justice.

text:
    Frederick P. ADAMS, Appellant, v. HARRIS COUNTY, Texas, Appellee.
    No. 1227.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 29, 1975.
    Rehearing Denied Nov. 19, 1975.

      W. James Kronzer, Rockne Onstad, Kron-zer, Abraham & Watkins, Houston, for appellant.
    Joe Resweber, County Atty., Gus Drake, Asst. County Atty., Houston, for appellee.
   TUNES, Chief Justice.

Appellant Frederick Adams was injured on March 26,1967 while riding a motorcycle on a drawbridge operated by Harris County' across Cedar Bayou. He sued the county in federal district court, claiming federal maritime jurisdiction. By order of the United States Court of Appeals for the Fifth Circuit, the cause was dismissed for want of federal jurisdiction. Adams v. Harris County, 452 F.2d 994 (5th Cir. 1971), cert. denied, 406 U.S. 968, 92 S.Ct. 2414, 32 L.Ed.2d 667 (1972). Appellant also obtained permission of the Texas Legislature to sue the county in the state courts and brought this action in the 55th District Court of Harris County. The county moved for summary judgment on the basis that it has governmental immunity from liability for its torts, and those of its agents, which occurred prior to the effective date of the Tort Claims Act, Tex.Rev.Civ.Stat.Ann. art. 6252-19 (1970). The trial court granted summary judgment, from which Adams appeals, asserting that, for various reasons, the doctrine of governmental immunity should not be applied in this case, and also that the doctrine violates the 14th Amendment of the United States Constitution.

The legislative resolution granting appellant permission to bring this action waives the county’s immunity to suit and grants jurisdiction specifically to the courts of Harris County. The resolution reserves all “defense[s] of fact or law, that may be asserted by, or available to Harris County . .” House Concurrent Resolution No. 10, 61st Legislature (August 28, 1969). Appellant contends that governmental immunity from liability is not a “defense” as contemplated by this language, but is, rather, part of the “totality” of governmental immunity which has been waived in this case by the legislature. The weight of authority in Texas holds the government’s immunity from suit is independent from its immunity from liability. Missouri Pacific R R v. Brownsville Nav. Dist., 453 S.W.2d 812, 813 (Tex.Sup.1970); Childs v. Green-ville Hospital Authority, 479 S.W.2d 399 (Tex.Civ.App.—Texarkana 1972, writ ref’d n. r. e.). Legislation authorizing suits against the state is to be strictly construed against interpretation as an admission of liability. Buchanan v. State, 89 S.W.2d 239 (Tex.Civ.App.—Amarillo 1936, writ ref’d). Indeed, while the state may waive immunity from suit, it may not waive its immunity from liability by means of special legislation for the benefit of a particular party, thus denying all citizens the equal protection of the law as guaranteed by the Texas Constitution. Martin v. Sheppard, 145 Tex. 639, 201 S.W.2d 810, 812 (1947); State Highway Dept. v. Gorham, 139 Tex. 361, 162 S.W.2d 934, 937 (1942).

Appellant urges that, even if the legislature has not waived the county’s immunity from liability, immunity is not effective in this case because the function of operating a drawbridge is proprietary rather than governmental, and because appellant has alleged negligence on the part of the county itself in hiring an incompetent operator. The supreme court has held, however, that the distinction between proprietary and governmental functions does not apply to counties, Bennett v. Brown County Water Imp. Dist. No. 1, 153 Tex. 599, 272 S.W.2d 498 (1954), and that an allegation of negligence in hiring does not circumvent the government’s immunity from liability for the torts of its agents and officers. City of Dallas v. Smith, 130 Tex. 225, 107 S.W.2d 872, 879 (1937).

Appellant further alleges that appel-lee may not benefit from its governmental immunity in this suit because its ownership and operation of the drawbridge falls within federal regulation by virtue of the federal statute prescribing standards of care for drawbridge operations, 33 U.S.C., § 499 (1970):

It shall be the duty of all persons owning, operating, and tending the drawbridges built prior to August 18, 1894, or which may thereafter be built across the navigable rivers and other waters of the United States, to open, or cause to be opened, the draws of such bridges under such rules and regulations as in the opinion of the Secretary of Transportation the public interests require to govern the opening of drawbridges for the passage of vessels and other water crafts, and such rules and regulations, when so made and published, shall have the force of law. Every such person who shall willfully fail or refuse to open, or cause to be opened, the draw of any such bridge for the passage of a boat or boats, or who shall unreasonably delay the opening of said draw after reasonable signal shall have been given, as provided in such regulations, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not more than $2,000 nor less than $1,000, or by imprisonment (in the case of a natural person) for not exceeding one year, or by both such fine and imprisonment, in the discretion of the court.

In finding no federal jurisdiction in this ease the Court of Appeals for the Fifth Circuit determined that federal jurisdiction extends to the operation of drawbridges only where there is an accident caused by or involving a vessel on navigable waters. The court found appellant’s injuries were “in no way caused by a vessel on navigable water. [T]he injuries in question occurred on a permanently fixed extension of land and in the absence of any maritime causation other than the approach of a vessel, without more.” Adams v. Harris County, 452 F.2d 994, 997 (5th Cir. 1971), cert. denied, 406 U. S. 968, 92 S.Ct. 2414, 32 L.Ed.2d 667 (1972). In the opinion of the Fifth Circuit, then, there is no “federally created cause of action” in this case.

Appellant’s final contention is that the rule of sovereign immunity should be discarded by the Texas courts, at least in this case. This court has refused to do so in the past; such a sweeping and fundamental change should be made, if at all, by the supreme court or the legislature.

Calhoun v. Pasadena Independent School District, 496 S.W.2d 131 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ ref’d n.r.e.). See also Jones v. City of Dallas, 451 S.W.2d 271 (Tex.Civ.App.—Dallas 1970, writ ref’d n.r.e.).

The appellant’s points of error are overruled. The judgment of the trial court is affirmed.

Affirmed.

CURTISS BROWN, J., not participating.


author: COULSON, Justice.

text:
    Ex parte Fred C. WAGLEY, Relator.
    No. 1186.
    Court of Civil Appeals of Texas, (14th Dist.).
    Nov. 5, 1975.

      Ruth Jackson Blake, Garner W. Beck, Houston, for appellant.
    Macklin K. Johnson, Michael D. Stewart, Urban, Coolidge, Pennington & Scott, Houston, for appellee.
   COULSON, Justice.

This is an original Habeas Corpus proceeding. Fred C. Wagley, relator, was held in contempt by the Court of Domestic Relations of Harris County for failing to comply with certain provisions of that court’s orders.

A decree of divorce and judgment in favor of Mozelle Walker Wagley was entered in the matter of the marriage between Mo-zelle Walker Wagley and Fred C. Wagley on March 12, 1970. As a part of that judgment the trial court found that Fred C. Wagley, as a member of the armed forces of the United States of America, had earned retirement benefits amounting to $178.06 a month for his lifetime. The trial judge declared the benefits to be community property. Mozelle Walker Wagley was granted judgment against Fred C. Wagley for one-half of the retirement benefits. The judgment stated:

It is further ORDERED, ADJUDGED AND DECREED that plaintiff have and recover judgment of and against the defendant of one-half of his Air Force retirement benefits as such benefits accrue or are received by him, paid by the United States Government or its administrative agency or upon such obligation of the Government or administrative agency to pay the same.

In September of 1972, Mozelle Walker Wagley sought to have Fred C. Wagley held in contempt of court for failure to make payments to her of one-half of the retirement benefits. A show cause hearing was held April 23, 1973. The trial judge refused to hold the relator in contempt. However, the trial judge entered an order dated May 22, 1973, stating that:

It is therefore ORDERED, ADJUDGED and DECREED that said FRED C. WAG-LEY shall from this day forward and each and every month hereafter deposit one-half (¾⅛) of the retirement check he receives from the federal government by reason of his being a retired member of the United States Air Force in the sum of $89.03 to the account of MOZELLE W. McGAUGHEY, in the Pearland State Bank, Pearland, Texas, and
It is further ORDERED that this Court’s Order entered on March 12, 1970, is clarified by this Order.

In August of 1974, Mozelle Walker Wag-ley again sought to hold Fred C. Wagley in contempt for failing to make payments of one-half of his retirement benefits as required by the court’s orders of March 12, 1970 and May 22, 1973.

After a hearing on September 12, 1974, a judgment was entered dated November 22, 1974, holding Fred C. Wagley in contempt of court. He was ordered to be confined in the Harris County Jail for a period of three days and to be further detained by the sheriff until he should purge himself of contempt by paying the sum of $1,424.48 to Mozelle Walker Wagley McGaughey. Commitment was made contingent upon the relator’s failure to pay to Mozelle Walker Wagley McGaughey the sum of $1,424.48 before 4:00 p. m., September 23, 1974. On February 18, 1975, Mozelle Walker Wagley McGaughey filed her motion for commitment seeking to have Fred C. Wagley confined for failure to meet the contingencies provided for in the trial court’s contempt order of November 22, 1974. At a hearing on March 11, 1975, relator was committed to the sheriff of Harris County for confinement in accordance with the terms of the contempt order of November 22, 1974. This court thereafter granted leave to file for writ of habeas corpus, and Fred C. Wagley was released on bond.

The question presented in this proceeding is whether the trial court had jurisdiction to enter its order of May 22, 1973, clarifying the original order of the court entered on March 12, 1970. We hold that it did not.

The effect of the May 22nd order was to impose upon relator an affirmative obligation to place one-half of the proceeds of his monthly government retirement check into a checking account in the name of Mozelle W. McGaughey. Under the terms of the original order, entered on March 12, 1970, Mozelle W. McGaughey recovered judgment against the relator for one-half of his air force retirement benefits. However, under the original order, relator was placed under no obligation to deal affirmatively with the distribution of that asset. Hence, the May 22nd order substantively changed the terms and conditions of the earlier final judgment.

Under the provisions of Tex.R.Civ.P. 329b, the trial court retained for thirty days the power to amend or change its judgment rendered on March 12,1970. At the expiration of thirty days after the date of rendition of the judgment the trial court lost jurisdiction over the judgment subject to the possibility of review under writ of error or a bill of review. Fuller v. Walter E. Heller & Company, 483 S.W.2d 348 (Tex.Civ.App.—Dallas 1972, no writ). This is not a case involving the mere correction of a clerical error in the judgment and the subsequent entrance of a judgment nunc pro tunc. Arrington v. McDaniel, 119 Tex. 148, 25 S.W.2d 295 (1930). The trial court was without jurisdiction to enter its order of May 22, 1973, altering the terms and conditions of the earlier final judgment. For that reason the trial court had no authority to hold the relator in contempt for the violation of that void order. McCullough v. McCullough, 483 S.W.2d 869 (Tex.Civ.App.—Tyler 1972, no writ); Ex parte Helle, 477 S.W.2d 379 (Tex.Civ.App.—Corpus Christi 1972, no writ).

The issue before this court is distinguished from the issue before the supreme court in Ex parte Sutherland, 526 S.W.2d 536 (Tex.Sup.1975). In Sutherland the divorce judgment rendered by the trial court awarded the wife one-half of all fleet reserve payments received by the husband. The judgment ordered the husband to pay the wife’s one-half share into the Registry of the Court and the clerk was ordered to pay same to the wife. The husband failed to comply with the judgment rendered by the trial court and his commitment for contempt was upheld.

In the case before this court, the judgment rendered by the trial court on March 12, 1970 contained no such provision and after 30 days from rendition of the judgment of divorce the court under the procedure undertaken here lost jurisdiction to clarify its judgment.

The contempt order of the Court of Domestic Relations is void and the relator is ordered discharged from the custody of the sheriff.


author: KLINGEMAN, Justice.

text:
    John E. FOSTER, Appellant, v. LAREDO NEWSPAPERS, INC., Appellee.
    No. 15428.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 12, 1975.
    Rehearing Denied Dec. 10, 1975.

      J. G. Hornberger, Laredo, for appellant.
    Mann, Castillon, Freed & Kazen, Laredo, for appellee.
   KLINGEMAN, Justice.

This is a suit by appellant, John E. Foster, against appellee, Laredo Newspaper, Inc., for damages for alleged libelous statements made about appellant in a newspaper article in the Laredo Times, a newspaper published by appellee. This is an appeal from a summary judgment granted to ap-pellee that appellant take nothing.

Appellant is the duly elected county surveyor of Webb County, Texas, and has also served as consultant engineer for Webb County over a period of years on various and sundry projects. The alleged libelous statements appeared in a newspaper article published in the Laredo Times on Sunday, June 17, 1973. The newspaper article discussed flooding in the Del Mar Hills Subdivision near Laredo in Webb County and is in the nature of a conversation by the City Editor with Mr. Earl Rice, a developer of some homes in the subdivision. The alleged libelous statement is as follows: “The Rice development official said the flooded area in question was platted by Jack Foster, who doubles as consultant engineer for Webb County.” The statement that the area in question was platted by Foster is incorrect.

Since this is a summary judgment proceeding, appellee, as movant for the summary judgment, had the burden of demonstrating the absence of any genuine issue of material fact as to one or more of the essential elements of appellant’s cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970). Appellee had the burden to establish as a matter of Taw that appellant had no cause of action and all doubts as to the existence of an issue of fact must be resolved against him. Parrott v. Garcia, 436 S.W.2d 897 (Tex.1969).

We first consider appellant’s point of error that the appointment of the Hon. Walter Loughridge, a retired judge of this state, by the presiding judge of the Fourth Administrative Judicial District to preside at the trial of this case was not a proper appointment and was not made in accordance with the laws of this state, and that therefore all proceedings had in this case before Judge Loughridge and any judgment rendered therein by him is null and void for all purposes.

The record discloses that on September 16, 1974, the presiding judge of the Fourth Administrative Judicial District assigned Judge Loughridge, a retired judge, to the 111th District Court of Webb County, Texas, for the period beginning October 6, 1974, for the trial and disposition of any and all matters pending on the dockets of such court and which may come before him while filling such assignment. This assignment was never cancelled or withdrawn. By order dated January 21, 1975, the same presiding judge assigned another retired judge to the 111th District Court for the purpose of trying this particular case, but this assignment was cancelled and withdrawn by such presiding judge on January 29, 1975. The summary judgment herein was heard by Judge Loughridge on February 3, 1975, and various other proceedings in this case were also heard before Judge Loughridge.

Appellant cites no cases in support of his point of error. Appellant argues that, under the record, there is absolutely no reason for the assignment of Judge Loughridge to try this case; that Judge E. D. Salinas is the duly elected, qualified, and acting judge for such court, and the record is silent as to any disability or disqualification on his part; and there is no indication that there is an overcrowded docket. He contends that to permit a presiding judge to assign a retired judge to a court without a written request by the elected judge usurps the power of the elected judge and disenfranchises the electorate of the services of the judge that it has chosen; and that such power in the hands of the presiding judge is not permitted under the constitution and laws of the State of Texas.

It is clear that the applicable constitutional and statutory provisions pertaining to transfer, assignment and exchange of benches of judges confer broad and discretionary powers. Article 5, Section la, Texas Constitution; Article 5, Section 11, Texas Constitution; Article 200a, Section 5, Tex. Rev.Civ.Stat.Ann.; Article 1916 Tex.Rev. Civ.Stat.Ann.; Article 6228b, Section 7; 33 Tex.Jur.2d, Judges, Section 106. It was pointed out in Randel v. State, 153 Tex.Cr.R. 282, 219 S.W.2d 689 (1949), that under these constitutional and statutory provisions, district judges have broad discretionary power to exchange benches or hold courts for each other, and that no limitations as to time, place, or occasion when the exchange of benches might occur has been fixed.

It appears from the record that in addition to rendering the summary judgment herein complained of, Judge Loughridge also presided over and heard various other court proceedings in this cause and that, in connection therewith, appellant, through his lawyers, appeared therein and filed extensive pleadings. In none of these pleadings or anywhere else in the record is there any suggestion that appellant at any time questioned the right, power or authority of Judge Loughridge to preside over this case.

A complaint that the trial judge was without right to sit for another district judge is not fundamental error and cannot be urged for the first time on appeal. Hawkins v. Everts, 91 S.W.2d 1086 (Tex.Civ.App.—Fort Worth 1936, writ ref’d). Where no objection is made in the trial court to the right of a judge from another district to sit in a case, and no question as to his qualification is made, all objections and exceptions to his power and authority to try the case are considered waived. 33 Tex.Jur.2d, Judges, Section 108. In Moye v. Houston Oil Co., 260 S.W. 294 (Tex.Civ.App.—Beaumont 1924, writ dism’d), it was held that, where no timely exception to the power and authority of the trial judge to try a case was made, the appellant was estopped from complaining on appeal that the judge had no authority to try it, and it must be presumed that the trial judge was in the regular discharge of his duties under one of the statutory provisions authorizing him to preside. See also Shultz & Bro. v. Lempert, 55 Tex. 273, 280 (1881); Lewis v. State, 481 S.W.2d 139 (Tex.Crim.1972); Buchanan v. State, 471 S.W.2d 401 (Tex.Crim.1971); Pendleton v. State, 434 S.W.2d 694 (Tex.Crim.1968); Carter v. State, 95 S.W.2d 447, 450, 130 Tex.Cr.R. 569 (1936). Appellant’s first point of error is without merit and is overruled.

Appellant’s other points of error complain that the trial court erred in granting a summary judgment because: (1) appellant was neither a public official nor a public figure as those terms are defined by the courts of this state and of the United States; (2) questions of fact exist as to (a) whether the alleged libelous statement was made with malice, (b) whether such statement made substantial damages to appellant’s reputation apparent, (c) whether ap-pellee was guilty of negligence in publishing such statement, (d) damages, and (e) punitive damages.

Implicit in the judgment of the trial court is the holding that at the time of the publication of the alleged libelous article, appellant was either a public official or a public figure as those terms have been defined by federal and state courts in libel cases. The nature and extent of a publisher’s constitutional privilege against liability for defamatory statements has been the subject of a number of decisions of the Supreme Court of the United States. In the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Court concluded that a rule compelling a critic of official conduct to guarantee the truth of all his factual assertions would deter protected speech, and announced the constitutional privilege designed to counter that effect (frequently referred to as the “New York Times rule”) which is as follows: “The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’— that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. 254 at 279-80, 84 S.Ct. at 726.

Three years after the New York Times decision, the Supreme Court extended this constitutional privilege to defamatory criticisms of “public figures,” in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), and its companion case, Associated Press v. Walker, 388 U.S. 130, 162, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). In these cases the Court held that the New York Times rule should apply to criticism of “public figures” as well as “public officials,” and also extended that privilege to protect defamatory criticism of non-public persons who are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.

Three years later in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), Mr. Justice Brennan, speaking for a plurality of the Court, took the New York Times privilege one step further and concluded that the protection should extend to defamatory falsehoods relating to private persons if the statements concern matters of general or public interest. However, in this case, no majority of the Court could reach a controlling rationale, but affirmed the decision of the court below that the New York Times privilege was applicable to a libel suit by a distributor of a nudist magazine against a local radio station.

Later in Gertz v. Welch, 418 U.S. 322, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), a majority of the Court held that the first amendment protection afforded news media against defamatory statements by public persons is not extended to defamatory suits by private individuals.

The Court, however, in Gertz stated: “We would not lightly assume that a citizen’s participation in community and professional affairs rendered him a public figure for all purposes. Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public figure question to a more meaningful context by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.” 418 U.S. 322 at 351, 94 S.Ct. at 3013.

It is undisputed from the record that (a) Foster is the public surveyor of Webb County, (b) such office is an elective office provided for under the laws of this state, (c) Foster’s name has appeared on the public ballot in Webb County on numerous occasions, and he has been elected to such office by the voters of Webb County on numerous occasions, (d) at the time of the alleged libel and for many years before, Foster was the county surveyor of Webb County.

It is also undisputed that Foster, over a period of years, had been employed by Webb County as the consultant engineer on various public projects, including construction of county swimming pools, development of recreational areas, drainage problems in the Del Mar Hills Subdivision, road improvements, jail house improvements, design of a children’s park, and work at a county dam. There is testimony that these projects covered the vast majority of all the major county projects during the last ten years and that Foster was the engineer in charge of such projects. It is clear from the record that Foster was hired by Webb County for these projects and was paid out of public funds for such work.

It is also clear that Foster had taken an active part in the particular activities giving rise to the defamation. The newspaper article in which the alleged libelous statement was made involved the problem of flooding in the Del Mar Hills Subdivision, which was a matter of considerable public interest in Laredo and in Webb County, and had resulted in citizen’s complaints and public meetings in Laredo. Such flooding problems had been the subject of a previous article in the Laredo Times which covered a public meeting of the Commissioner’s Court on June 11, 1973, at which time, a private citizen, Mr. Anderson, a resident of the Del Mar Hills Subdivision had complained about the flooding problem. This same citizen had previously complained to the Commissioner’s Court in 1972 about such floods and, as a result of such complaint, Foster was called in by the Commissioner’s Court to investigate and make a study of the drainage problem. Such study was made by Foster and he reported to the Commissioner’s Court in this regard. Foster was paid for such services by Webb County. When Anderson returned to the Commissioner’s Court a second time in June, 1973, Foster was again called by the Commissioner’s Court because of his familiarity with the problem and participated in the public meeting.

It would appear that Foster was not only involved in the particular controversy giving rise to the suit here involved but that his participation and involvement was connected with and arose out of his official duties and services for Webb County, either as a public official of Webb County or as a paid consultant engineer for such county.

In our opinion, Foster clearly falls within the most restrictive definition of a “public official” or a “public figure,” and we hold that he was both a public official and a public figure as those terms are defined by the courts of this state and of the United States.

Assuming that Foster was either a public official or a public figure, as we have held, he cannot recover damages for the alleged defamatory statement in the absence of actual malice. New York Times Co. v. Sullivan, supra; Curtis Publishing Co. v. Butts, supra; El Paso Times v. Trexler, supra. Actual malice is defined in these cases as a statement made with actual knowledge that it was false or with reckless disregard of whether it was false or not.

Appellant’s contention that the alleged libelous statement was made with malice is founded upon the following grounds: (a) the responsible representatives of appellee knew that there was a great deal of public resentment over the fact that the particular area was flooded, (b) the name of the person platting the area involved was a matter of public record, and that appellee was under a duty to investigate the truth of the statement, (c) the use of the word “doubles” in the article has a connotation of duplicity and deceitfulness and implies malice, (d) the alleged libelous statement was not “hot news” and haste in publication was not essential.

Our Supreme Court in Dunn & Bradstreet, Inc. v. O’Neil, 456 S.W.2d 896, 900 (Tex.1970), stated:

“We hold that there is no probative evidence to raise a fact issue of actual malice. . . . The New York Times definition of actual malice which this Court applied in El Paso Times is likewise applicable in the instant case, all three cases being libel suits, all three cases involving publishers’ privileges, and all three cases requiring malice to overcome the privileges. Insofar as the definition of malice is concerned we do not think the instant case involving a conditional privilege is distinguishable from the New York Times and El Paso Times cases which involve First Amendment Constitutional privileges. In El Paso Times, this court held:
‘Failure to investigate the truth or falsity of a statement before it is published has been held insufficient to show actual malice. Negligence or failure to act as a reasonable prudent man is likewise insufficient.’
. Plaintiff’s evidence may establish that defendant was negligent in failing to verify the bankruptcy information but the evidence does not raise a fact issue regarding whether or not the defendant acted ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ ”

The United States Supreme Court in St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), in holding that malice requires proof that the false publication was made with a knowledge or awareness of probable falsity said: “These cases are clear that reckless conduct is not measured by whether a reasonable prudent man would have . . . investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of the publication. Failure to investigate does not itself establish bad faith. ... St. Amant’s mistake about his probable legal liability does not evidence a doubtful mind on his part. That he failed to realize the import of what he broadcast — and was thus ‘heedless’ of the consequences for Thompson — is similarly colorless.” 390 U.S. 721 at 731, 733, 88 S.Ct. at 1325.

In Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 84-85, 88 S.Ct. 197, 200, 19 L.Ed.2d 248 (1967), the Court said: “[I]t cannot be said on this record that any failure of petitioner to make a prior investigation constituted proof sufficient to present a jury question of whether the statements were published with reckless disregard of whether they were false or not.”

See also Mayfield v. Gleichert, 484 S.W.2d 619 (Tex.Civ.App.—Tyler 1972, no writ); Carey v. Hume, 390 F.Supp. 1026 (D.C.D.C.1975); Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965 (1966), cert. denied, 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967).

The pertinent summary judgment evidence here involved may be summarized as follows: Appellant, in his summary judgment affidavit, expressed the opinion that the statement was made with malice, and in support of such contention, stated that the public records of Webb County revealed that he did not plat the area involved, and that a check of such records here involved would have so revealed, and that therefore appellee had constructive knowledge of the falsity of such statement. He further stated that the word “doubles” as used was meant to indicate that he was guilty of deception.

Both the publisher and managing editor of the Laredo Times testified that they had not seen the alleged libelous article until after it was published.

The City Editor of the Laredo Times, Mr. Arambula, who wrote the article, testified that the statement in the article that Foster platted the affected area was exactly what Mr. Rice said; that he took shorthand notes of the conversation and his shorthand notes reflected that Rice made such statement. He testified that there was no doubt in his mind that Rice was telling him the truth and that he believed the statement was true at the time he printed it.

Earl Rice, the developer, testified that he went to Arambula’s office on his own accord; that Arambula was taking notes during the conversation; that he (Rice) did about 90% of the talking; that he injected the name of Foster into the conversation; that he did tell Arambula that Foster had platted an area in Del Mar Hills Subdivision, but that he meant a different area than that which was experiencing the flooding problem; but that the nature of the conversation was such that Arambula could have easily misunderstood him on this point.

The summary judgment proof at most shows only that the statement that Foster platted the area was incorrect, and does not in any way indicate that Arambula knew it was incorrect or published it with a reckless disregard of whether it was false or not.

Appellant’s contention that the word “doubles” as used in the article evidences malice is without merit. It is undisputed that Foster was not only County Surveyor of Webb County, but also frequently served as consultant engineer for such county. A common and accepted use of the word doubles is “serves two purposes.” Under the record, the term “doubles as consultant engineer,” is both true and correct. The word “doubles” is frequently used to mean “to serve in an additional capacity” or “to perform an additional duty.” Webster’s New Twentieth Century Dictionary 547 (2d ed., unabridged, 1964). We see nothing odious, offensive or malicious about the term as used, and it is an accurate and correct portrayal of the services performed by Foster for Webb County.

With regard to appellant’s contention that the matter discussed in the article was not “hot news,” it is clear that the subject matter involved in the news article was of considerable public interest in Laredo and Webb County and had been the subject of a previous article in the Laredo Times only a few days before. The newspaper article in which the alleged libelous statement was made resulted after an interview with Mr. Earl Rice who had some complaint about the previous article. There is nothing in the record to indicate or even suggest that the article here under attack was published with undue haste, and certainly it was timely news.

There is nothing whatsoever in the record to indicate that the alleged libelous statement was made with actual knowledge that it was false, or with reckless disregard of whether it was false or not. The summary judgment establishes as a matter of law that such publication was not made with malice as that term is defined in the applicable state and federal court decisions.

Appellant’s other points of error are predicated upon a finding that appellant is neither a “public figure” nor a “public official.” In view of our holding that appellant is either a “public official” or “public figure,” and that the alleged defamatory statement was not published with malice, appellant’s other points of error are without merit and all are overruled.

The summary judgment evidence establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of appellant’s cause of action. Appellee is entitled to a take nothing judgment as a matter of law. The trial court did not err in granting appellee’s motion for summary judgment, and the judgment is affirmed.

      . This was the suit by an attorney who represented a murder victim’s family in a civil suit against a police officer who had been convicted of the murder, against a publisher of a magazine for an article in the magazine which inaccurately (1) portrayed the attorney as the author of a “frame-up" against the officer, (2) implied that the attorney had a criminal record, (3) identified the attorney as a “Leninist” and a “Communist-fronter.” The attorney, several years prior to the incident here involved, had briefly served on housing committees appointed by the mayor of Chicago but had never held a remunerative governmental position. The court held that the attorney was neither a public official or a public figure within the first amendment rule.

      . Some pertinent cases in which a plaintiff has been held to be either a public official or a public figure may be summarized as follows:
      In Texas, a professor in the University of Texas at El Paso, who led an anti-Vietnam demonstration was held to be a public figure as a matter of law. El Paso Times, Inc. v. Trexler, 447 S.W.2d 403 (Tex.1969).
      In Klahr v. Winterble, 418 P.2d 404 (Ariz.1966), a student elected to the student senate of a state university was held to be a public official under the New York Times rule. Summary judgment was entered against the plaintiff in a libel action.
      In Ryan v. Dionne, 28 Conn.Sup. 35, 248 A.2d 583 (1968), plaintiff was a Delinquent Tax Collector for the City of Waterbury, where a plaintiff was held to be a public official in a libel suit. The court said: “To the office of collector of delinquent taxes are attached a right and a duty both created and conferred by operation of law. . During his tenure, the incumbent of that office has the duty and correlative power to perform certain defined and continuous functions in the public interest.” Summary judgment was granted for defendant.
      In Bishop v. Wometco Enterprises, Inc., 235 So.2d 759 (Fla.Ct.App.1970), the plaintiff was employed in his professional capacity as an investigator for the City of Miami in an investigation of tax assessment practices in the tax assessor’s office. The court held that plaintiff, as a paid professional employee of the City of Miami, brought himself into the public arena and subjected himself to criticism and fair comment and held that plaintiff was subject to the New York Times rule which requires proof that the alleged libels were published with actual malice.
      In Standke v. B. E. Darby & Sons, Inc., 291 Minn. 468, 193 N.W.2d 139 (1971), cert. denied, 406 U.S. 902, 92 S.Ct. 1608, 31 L.Ed.2d 813 (1972), the plaintiffs were members of a grand jury who brought suit against a newspaper publisher for alleged libelous statements. A summary judgment for the publisher was affirmed by the appellate court who said: “Although we have found no decisions involving grand jurors it is clear under the New York Times doctrine that, in view of the public interest in the performance of functions delegated by law to the grand jury, the interests of free and open discussion demand that grand jurors in this case must be considered public officials or figures.”
      In Turley v. W.T.A.X., Inc., 94 Ill.App.2d 377, 236 N.E.2d 778 (Ill.Ct.App.1968), the plaintiff was a professional architect and the alleged libel related to his services as an architect in a new county building. The plaintiff was held to be a public official with the comí: stating that the privilege of the press to criticize public officials extends to the work of independent contractors paid out of public funds.
      In News-Journal Co. v. Gallagher, 233 A.2d 166 (Del.1967), Gallagher sued the publisher for alleged libelous statements. The court said: “Mr. Gallagher was at all pertinent times Chairman of the Wilmington City Republican Committee. His business was that of realtor, including collection of rents for property owners. . . [I]t cannot be disputed that he was a public figure in the city and county by virtue of his political position. Moreover, the publicity arose out of work he was performing for a state agency, as to which the people of the state were entitled to information.”
      In Greenbelt Cooperative Publishing Association v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970), the plaintiff was a reai estate developer and builder in Greenbelt and also a member of the Maryland House of Delegates from a neighboring district. He had engaged in negotiations with the city council of Greenbelt to obtain certain zoning variances and other negotiations relative to the purchase of lands owned by Bresler for the construction of a new school. Such negotiations evoked substantial local controversy and several city council meetings were held at which many members of the community expressed their views. The Supreme Court stated that Bresler was deeply involved in the future development of the city and that negotiations of significant public concern were in progress both with school officials and the city council and that Bresler’s status clearly fell within the most restrictive definition of a “public figure.”

      . “Jack Foster, who doubles as consultant engineer for Webb County.


author: BARROW, Chief Justice.

text:
    The FIRST NATIONAL BANK OF MIDLAND, Texas, Appellant, v. STOUTCO, INC., et al., Appellees.
    No. 15452.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 12, 1975.
    Rehearing Denied Dec. 17, 1975.

      William R. Simcock, R. Laurence Macon, Cox, Smith, Smith, Hale & Guenther, San Antonio, Charles C. Aldridge, Ken W. Nordeman, Tom C. McCall, Lynch, Chap-pell, Allday & Aldridge, Midland, for appellant.
    James N. Martin, Richard C. Danysh, San Antonio, for appellees.
   BARROW, Chief Justice.

Appellant, a national bank located in Midland County, Texas, has perfected its appeal from an order overruling its plea of privilege in appellees’ suit to recover damages for wrongful garnishment of its bank accounts in the Brooks Field National Bank located in Bexar County, Texas. The question presented is whether appellant waived its mandatory right under 12 U.S.C. Sec. 94 to be sued in the county in which said national bank is located.

On October 4, 1973, appellant filed Cause No. 26065 in the 142nd Judicial District Court of Midland County seeking to recover on a debt allegedly owed by appellees, Stoutco, Inc., et al. On the same date, Bank filed Cause No. 26067 in said 142nd Judicial District Court wherein it sought a writ of garnishment from the Brooks Field National Bank. Appellant filed a bond with Western Surety Company as surety, and, on the same date, a writ of garnishment was issued by the District Clerk of Midland County. This writ was mailed by the District Clerk to the Sheriff of Bexar County and served on the Brooks Field National Bank on October 9, 1973. Brooks Field National Bank filed an answer wherein it admitted that it was indebted to appel-lees in the following amounts: Stoutco, Inc. —$2,193.25; Stoutco Mfg. Corp. — $4,931.29; and to Eugene Stout and wife Audie Mae Stout — $4,289.38. On February 27, 1974, the funds were ordered released by the Midland District Court on motion of appellant and a non-suit was taken in Cause No. 26065.

Appellees filed this suit in Bexar County on December 11, 1974, wherein they sought damages against appellant and its surety for the alleged wrongful garnishment of their bank accounts. Appellant timely filed its plea of privilege and asserted its right to be sued in Midland County under the federal statute. Appellees controverted and urged that venue was maintainable in Bex-ar County under Article 1995, Subdivision 23, Tex.Rev.Civ.Stat.Ann. (1964), in that the cause of action or a part thereof arose in Bexar County. They further alleged that any mandatory right of appellant was waived by appellant’s acts in causing the accounts in Bexar County to be wrongfully frozen. The trial court overruled appellant’s plea of privilege after a non-jury hearing.

The United States Supreme Court in Mercantile National Bank v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963), after an analysis of the legislative history of the statute, held that the provisions of 12 U.S.C. Sec. 94 are mandatory and overrule any conflicting state venue statutes. This case involved the plaintiff’s right to join a national bank in a liquidation suit brought in Travis County as authorized by Texas venue statutes. The bank had sought to change the venue as to it to Dallas County under the authority of Sec. 94. The Supreme Court of Texas concluded that the federal statute was permissive only and held that venue could be maintained in Travis County under the Texas venue statute. The Supreme Court of the United States pointed out in its opinion that prior to the adoption of this section by the 1864 amendment to the National Banking Act, there might be grave doubt as to the suability of national banks in the state courts. Accordingly, it was reasoned that the phrase “suits may be had” was, in every respect, appropriate language for the purpose of specifying the precise courts in which Congress consented to have national banks subject to suit, and Congress intended that in those courts alone could a national bank be sued against its will. It was therefore held that Sec. 94 must be given a mandatory reading.

Appellees concede that the federal statute gives national banking associations, such as appellant, a mandatory right to be sued in the County or District Court of its residence, but that such right was waived by appellant. The doctrine of waiver of the statutory venue right was first enunciated in First National Bank of Charlotte v. Morgan, 132 U.S. 141, 10 S.Ct. 37, 33 L.Ed. 282 (1889) wherein it was held that the bank had waived its personal privilege by appearing and making defense of a suit without claiming the immunity in the trial court. Under this waiver doctrine, it has been held that if the national bank seeks to enforce obligations which are due it through the use of non-resident courts or self-help repossession laws, it may be subject to countersuit in the non-resident county for matters arising out of that transaction. See Fort Worth National Bank v. Stiff, 482 S.W.2d 337 (Tex.Civ.App.—Eastland), cert. denied, 410 U.S. 932, 93 S.Ct. 1375, 35 L.Ed.2d 594 (1972); Reaves v. Bank of America, 352 F.Supp. 745 (S.D.Cal.1973); Lichtenfels v. North Carolina National Bank, 260 N.C. 146, 132 S.E.2d 360 (1963); Michigan National Bank v. Superior Court, 23 Cal.App.3d 1, 99 Cal.Rptr. 823 (1972); Okeechobee County v. Florida National Bank, 112 Fla. 309, 150 So. 124 (1933).

The self-help doctrine was followed by the Fort Worth Court of Civil Appeals in Texas Commerce Bank National Association v. Tripp, 516 S.W.2d 256 (Tex.Civ.App.—Fort Worth 1974, writ granted), wherein it was held that the national bank had waived its venue right. This suit, to recover damages for wrongful garnishment, was based on a prejudgment writ of garnishment which was obtained from the District Court in Lubbock County and hand-carried to Wise County by the defendant bank’s attorney. The writ was then served upon Tripp’s bank in Wise County by the Wise County Sheriff. The court held that the Lubbock bank had waived its venue rights under Sec. 94 in that it had “tied up the funds in Wise County, Texas, by personally coming to the county and delivering the citation to the sheriff for service, thus invoking the sheriff’s services as an officer of the court in Wise County.” The case became moot before the Supreme Court passed upon Bank’s application for writ of error; accordingly, the Supreme Court set aside the judgments of the trial court and the Court of Civil Appeals “without passing on the merits.” See 18 Tex.Sup.Ct.J. 278 (April 12, 1975). This case is therefore without precedential value.

It has been held that “waiver” requires an intentional relinquishment of a known right or intentional conduct inconsistent with claiming it. See Texas & P. Ry. Co. v. Wood, 145 Tex. 534, 199 S.W.2d 652 (1947); First National Bank of Marshall v. Texas Foundries, Inc., 512 S.W.2d 690 (Tex.Civ.App.—Beaumont, 1974, no writ).

We do not believe that appellant’s act in obtaining a writ of garnishment in Midland County, which resulted in freezing appellees’ bank accounts in Bexar County, constituted a waiver of the mandatory venue rights granted by Congress under Sec. 94. Appellant did not file any proceeding in the Courts of Bexar County; nor did the appellant commit any acts evidencing an intent to relinquish its venue right. The record would probably support a finding that a part of the cause of action arose in Bexar County within the meaning of Subdivision 23 of Article 1995, Tex.Rev.Civ.Stat. Ann. (1964). Nevertheless, the provisions of Sec. 94 are mandatory and overrule conflicting state venue statutes. Otherwise the congressional enactment permitting suit to be brought in the bank’s home county could become largely meaningless.

We conclude that appellant has not waived its mandatory right to be sued in the county of its residence. The judgment of the trial court overruling appellant’s plea of privilege is overruled and the cause is remanded to the trial court with instructions to transfer the cause of action against appellant to Midland County.

      . 12 U.S.C. Sec. 94, provides:
      “Actions and proceedings against any association under this chapter may be had in any district or Territorial court in the United States held within the district in which such
      association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.”