author: DAVIS, Commissioner.

text:
    Alvin WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 51834.
    Court of Criminal Appeals of Texas.
    June 23, 1976.

      W. E. Walton, III, and Levi N. Curl, Dallas, for appellant.
    Henry Wade, Dist. Atty., Donald H. Fla-nary, Jr., Fred Davis and Brian Blessing, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for burglary of a building. Punishment, enhanced under the provisions of V.T.C.A. Penal Code, Sec. 12.42(d), was life.

The indictment alleged that the primary offense occurred on or about May 14, 1974, and the record reflects that trial was in April, 1975.

At the outset, appellant contends that the court erred in refusing to grant his motion for an instructed verdict in that the evidence would not support a conviction.

During the early morning hours of May 14, 1974, Fred Bonial, patient service technician at Baylor Hospital, observed appellant in the chaplain’s office at said hospital. Bonial called hospital security and Ray Long, a security guard, came to the scene and along with Bonial saw appellant “slip” into a restroom. Appellant was stopped and questioned and “he just said something to that effect that he wanted to get caught.” Upon being asked if he “minded emptying his pockets,” appellant replied that he had no objection. The contents of his pockets included a number of items identified as belonging to Baylor Hospital, including pens, a cassette tape, and penlight batteries.

V.T.C.A. Penal Code, Sec. 30.02, “Burglary,” provides in pertinent part:

“(a) A person commits an offense if, without the effective consent of the owner, he:
“(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft

Appellant urges that the State failed to show that Baylor Hospital was not open to the public. While there was evidence that the visiting period at the hospital was “between 2:00 and 4:00 and 6:00 to 8:00” and that the general public is not allowed in the hospital after 10:00 p. m., appellant points to the testimony of Long that there were no signs in the lobby of the various entrances to the hospital saying not to enter after 10:00 p. m. and no one is stationed at the eight or nine entrances for the purpose of preventing people from entering the hospital.

Assuming, arguendo, that the hospital gave the appearance of being open to the public, Sec. 30.02, supra, prohibits the entry of “any portion of a building.” While the former code was not explicit in this respect, the cases construing same held that burglary may be committed by entering a room which is closed, although the outer doors of the house are open. Babcock v. State, Tex.Cr.App., 473 S.W.2d 941; Davidson v. State, 86 Tex.Cr.R. 243, 216 S.W. 624.

Bonial testified that there were three offices in the chaplain’s suite. The outer door to the visiting ministers’ office was open, but the doors to the adjoining offices were closed. Bonial stated that the offices were not open to the public but were for chaplains’ use when consulting with families who had a relative in the hospital. Bonial first observed appellant in the visiting ministers’ office where the door was open, but upon checking a second time Bonial observed appellant “slipping into the smaller office on the right.” Bonial stated that the door to the smaller office was closed and appellant had to open the door to enter the office.

V.T.C.A. Penal Code, Sec. 30.02, 3(b), provides:

“For purposes of this section, ‘enter’ means to intrude: (1) any part of the body; or (2) any physical object connected with the body.”

Clearly, entry was made into the smaller office when appellant opened the door and entered same.

We are next faced with the question of whether such office was open to the public.

In addition to the testimony of Bonial that these offices were not open to the public, the record reflects that Long testified:

“Q. What’s the general appearance of the visiting ministers’ office and its two adjoining offices in regards to being open to the public?
“A. Well, it’s open to the public because this is the offices [sic] that the chaplain uses to counsel with families that have had a death.
“Q. Is it open to the public between 1:00 and 2:00 o’clock in the morning?
“A. Not per se.
“Q. In other words, you would have to be with the chaplain?
“A. Yes.
“Q. How about the inner offices where the doors were closed? Now, does that give the appearance of being open to the general public?
“A. I wouldn’t say that it does.
“Q. Does it give that general appearance at 1:00 or 2:00 o’clock in the morning?
“A. No.”.

Appellant did not testify, nor did he offer any testimony at the guilt stage of the trial. While the testimony of Long appears to be in some degree of conflict, there was sufficient evidence from which the jury could conclude that the chaplain’s offices were not open to the public and that they did not give the appearance of being open to the public at the time in question.

Appellant urges that the evidence in insufficient to support the conviction for the additional reason that there is no evidence that entry was made by appellant with the intent to commit theft.

We find that the jury could infer from the circumstances surrounding the alleged offense that the entry made by appellant was with the intent to commit theft. See Hawkins v. State, Tex.Cr.App., 467 S.W.2d 465; Garcia v. State, Tex.Cr.App., 502 S.W.2d 718; Shelby v. State, Tex.Cr.App., 479 S.W.2d 31.

Appellant contends that the evidence is insufficient to support the conviction in that the evidence failed to prove that Long was the owner of Baylor Hospital and that there was an absence of proof that appellant did not have the consent of the owner to enter.

V.T.C.A. Penal Code, Secs. 1.07(a)(24) and (28) provide:

“ ‘Owner’ means a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.
* * * * * *
“ ‘Possession’ means actual care, custody, control, or management.”

The record reflects that Long testified:

“Q. I will ask you whether or not you, as the person who is in charge of security at the hospital, whether or not you had the care, custody and management over the hospital and all those things within the hospital. In other words, you’re in charge of their care and custody, is that right?
“A. Yes.
“Q. And you were at that time?
“A. Yes.
“Q. I will ask you whether or not you gave Alvin Williams or any other person permission to enter that building at that time.
“A. No, sir.
⅜: ⅜ ⅜ * sfc sfc
“Q. At that time was the Baylor Hospital or those offices open to the general public?
“A. They were not locked. These offices are never locked.
“Q. But, were they open for the public? “A. No.
“Q. Where those items that were taken your corporeal personal property? In other words, did you have custody and control of them. I know they don’t actually belong to you.
“A. Yes.”

Long’s testimony that he had care, custody and management of the hospital established that he had “possession of the property.” Further, Long clearly had a greater right to possession of the property than appellant, and his testimony that he did not give appellant permission to enter the building or the offices in question is undisputed. See Eaton v. State, Tex.Cr.App., 533 S.W.2d 33. The testimony of Long that a person did not have to have his consent to visit someone in the hospital in the early morning hours does not negate the necessity of appellant obtaining his consent to enter the offices in question.

We find the evidence sufficient to support the conviction.

Appellant contends that the court erred in overruling his objection to the court’s charge.

Appellant objected to the court’s charge for failure of the charge to conform to the indictment. The indictment in pertinent part charged that appellant,

. . knowingly and intentionally, with intent to commit theft, enter a building which was not open to the public without the effective consent of Ray Long, the owner thereof. . . .”

Appellant objected to that portion of the charge which read:

“Our law provides that a person commits an offense, if without the effective consent of the owner he enters a building (or any portion of the building) not then open to the public with intent to commit a felony or theft.” (Emphasis supplied.)

Inclusion of “(or any portion of the building)” in the definition of the offense in the charge forms the basis of appellant’s complaint.

The court correctly stated the law in its charge as same is set forth in Sec. 30.02, supra. The decisions under the old Code are relevant which held that evidence which showed entry of a room which is closed will support a conviction for burglary of a house even though the outer doors of the house are open. Babcock v. State, supra; Davidson v. State, supra.

We find that the indictment was sufficient to apprise appellant of the charge against him and conclude that the charge of the court did not authorize a conviction on a different theory from that on which appellant was indicted.

Appellant next contends that the court erred in overruling his objection to the court’s charge on “special ownership, which objection was based upon the fact that there was no evidence produced at trial which could make Ray Long qualify as a special owner.”

The pertinent portion of the court’s charge reads:

“ ‘Owner’ means a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the defendant.”

The definition of ownership given by the court in its charge follows V.T.C.A. Penal Code, Sec. 1.07(a)(24).

We find that the testimony of Long that he had the care, custody and management of the hospital was sufficient evidence to authorize the charge on ownership. Further, such evidence supports the jury’s implied finding that Long was the owner.

Appellant contends that the court erred in not granting his requested charge on mistake of fact.

V.T.C.A. Penal Code, Sec. 8.02(a), provides:

“It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.”

It appears to be appellant’s position that evidence which showed an absence of guards at the hospital and the failure of the hospital to have signs “warning the public that the hospital is not open to the public” entitled the appellant to a charge on mistake of fact.

We find no evidence which would have given appellant a “reasonable belief” that an office with door closed in the chaplain’s suite of offices was open to the public in the early hours of the morning.

yfe find no error in the court’s refusal to grant- appellant’s requested instruction on mistake of fact.

Appellant’s last contention relates to the court’s charge on ownership, and we find that our disposition of prior grounds of error decides same adversely to appellant.

The judgment is affirmed.

Opinion approved by the Court.

      . See Title 17, Chapter V, V.A.P.C., 1925, “Burglary.


source: Caselaw Access Project

author: BROWN, Commissioner.

license: Public Domain

text:
    Jay COOPER, Appellant, v. The STATE of Texas, Appellee.
    No. 52187.
    Court of Criminal Appeals of Texas.
    June 23, 1976.

      Frank D. Kerbow, Austin, for appellant.
    Robert O. Smith, Dist. Atty., and Stephen Capelle, Asst. Dist. Atty., Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for felony theft of an automobile under V.T. C.A. Penal Code Section 31.03. Appellant pleaded nolo contendere, waived his right to a jury, and was found guilty by the trial court. Punishment was assessed at ten (10) years in the Texas Department of Corrections and the sentence was suspended and appellant placed on probation.

The undisputed facts show that during the night of May 11-12, 1974, a 1968 Chevrolet Corvette belonging to Carl Wiltsey was stolen from the parking lot of an apartment complex in the 1900 block of Burton Drive in Austin. The car was stripped of the engine, transmission, seats and other parts. The fiberglass body was burned and the remaining frame was cut into several pieces and buried in the rear area of appellant’s auto wrecking yard near Garfield.

Several weeks later, J. L. Cox was arrested by Austin police for burglary. He confessed to participating in as many as twenty-five crimes, including the theft of the Corvette, and told officers where the remains could be found. Armed with a search warrant, officers went to appellant’s wrecking yard on July 30 and uncovered the remains of an automobile which they were able to verify as the stolen Corvette. Appellant was arrested and charged with felony theft.

At the trial, the State brought in as witnesses the officers who uncovered and identified the automobile, the owner Wiltsey, a credit union manager who testified as to the car’s value, and Cox, who testified as an accomplice witness and as a party to the crime.

Cox stated that he and John Lesley Rhymes discussed with appellant the stealing of a 1969 Corvette because of the engine, a 327, and the four-speed transmission with which such a car was likely to be equipped. Cox stated that he and Rhymes located the car they wanted in an apartment parking lot off Riverside Drive in Austin; that he and Rhymes hot-wired the car and drove it to the rear end of appellant’s wrecking yard, tore the fiberglass sides off and then left; that they returned the next morning at about 11:30 a. m. and, with the appellant, they cut the engine and transmission out of the car and then burned the car. He then stated that “They pushed it down to the scrap pile and covered it up,” using a bulldozer which was kept in the wrecking yard. On cross-examination, it was brought out that he did not actually see “them” bury the car and that he assumed that the appellant had assisted in the burial but that he did not see him participate, nor was appellant present the previous night when Cox and Rhymes delivered the ear. Cox further stated that they took the engine and transmission to the front of the wrecking yard to a garage area and removed the transmission and that he installed it in a ’37 coupe which he said he had traded for or bought from the appellant. He said he went back the next day and that the transmission had been stolen out of the coupe and that he had no idea what had happened to the 327 Corvette engine. Cox also testified that he had known appellant for years, that he had been on his wrecking yard property several times, and that he had burned the insulation off of stolen copper wire on the same location that the burning of the car took place. John Lesley Rhymes did not testify.

Appellant testified in his own defense and stated that he had not known Cox for years; that he had met him for the first time in March of 1974; and that he had never discussed the stealing of a car with Cox or Rhymes. He stated that he had no need for a 327 engine since he already had two in his yard. He said that Cox and Rhymes had come to his wrecking yard looking for auto parts and that Cox offered to buy a 1947 Chevrolet coupe which was sitting at the front of the yard near the garage and office buildings. Appellant stated that Cox told him he did not have the money right then but that he would get it and that he wanted to buy the coupe.

Appellant further testified that Cox came back the next day and again on other occasions to talk about the purchase of the 1947 coupe, but that Cox never did come up with the money. He said that Cox also offered to buy the transmission out of the coupe to install in his car and that they agreed on a price of $100 for the transmission. Appellant allowed Cox to take the transmission out of the coupe and put it in his car, but he stated that he was never paid for it. He stated that Cox came to the garage to install some seats (the Corvette seats) in the coupe and then came back on a later date for the transmission and that he had not seen Cox since that date. Regarding the burning of the copper wire, appellant stated that he had given Cox his permission to burn the wire on the rear of his yard, but that he did not know it was stolen. Appellant described his premises as an eight-acre tract which was not fenced and was open to anyone who wanted to go into the yard. He said that he allowed customers to find and remove their own parts from the wrecked autos and that he remained at the front of the yard in the garage area. On the date that the stripping of the Corvette was alleged to have taken place, May 12, appellant testified that he had spent the entire day moving his household effects to a new home and that he went to the wrecking yard only to get a pickup to use in the moving. This portion of his testimony was corroborated by Charles Tarket who testified that he met appellant at the wrecking yard in his own pickup at about 11:00 a. m. on Sunday, May 12, and that the two spent the remainder of the day moving appellant to Garfield from Webberville. Tarket said that he also met appellant at the yard on the following day and that they spent that day working on his truck and riding motorcycles to Lake Travis until late in the evening. Appellant’s father also testified and corroborated appellant’s statement that he did not know Cox until March 1 of 1974. He also stated that he had known Cox for years and that he knew him to be a construction worker capable of operating a bulldozer. He also corroborated appellant’s testimony that appellant had been arrested only once for driving while intoxicated in 1966 or 1967.

In his first ground of error, appellant contends that the State failed to prove the fair market value of the stolen car at the time and place of the offense as required by V.T.C.A. Penal Code Section 31.08(a)(1).

The record reflects that the owner of the car testified that he paid $2900 for the car, that he had had it about one year and that he still owed $1500 on it. When asked what he thought the reasonable value of the car was on May 12,1974, he answered, “Between $2500 and $3000.” The credit union manager who testified for the State stated that his opinion was based on the NADA “Blue Book” and his experience in making auto loans and that he felt the car had a value of $2500. We find the evidence sufficient to establish the reasonable value of the ear as more than $200.00. Nitcholas v. State, 524 S.W.2d 689 (Tex.Cr.App.1975); Trammel v. State, 511 S.W.2d 951 (Tex.Cr.App.1974).

Appellant’s first ground of error is overruled.

In appellant’s second ground of error he contends that the uncorroborated evidence of the accomplice witness was not sufficient to support the court’s finding of guilty.

We note at the outset that appellant pleaded nolo contendere rather than not guilty, and we have previously held that the effect of such a plea is the same as a plea of guilty insofar as the criminal prosecution is concerned. Sowell v. State, 503 S.W.2d 793 (Tex.Cr.App.1974). However, it was still incumbent upon the State to introduce evidence sufficient to prove the elements of the offense in order to support the conviction where a bench trial is involved. V.A.C. C.P. Art. 1.15; Jones v. State, 505 S.W.2d 903 (Tex.Cr.App.1974).

We note also that when the evidence introduced makes evident the innocence of the accused or if it is clear that the evidence sufficiently raises a defensive issue the court is required to withdraw the guilty or nolo plea on its own motion. Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974); Burks v. State, 165 S.W.2d 460, 145 Tex. Cr.R. 15 (Tex.Cr.App.1942).

The appellant took the stand and testified that on the day the car was alleged to have been stripped, burned and buried, he was involved in moving his household effects to a new home. He also denied having any conversation with Cox concerning the car, and denied participation in any way with the theft, destruction and burial of the car or its pieces. This alibi testimony was corroborated by the witness Tarket, who said he spent the entire day of May 12 helping the appellant move. We find that this alibi testimony and the additional defense evidence contradicting the accomplice testimony were sufficient to raise a defensive issue and it was reversible error for the court to fail to withdraw the plea of nolo contendere.

With regard to the sufficiency of the corroboration of the accomplice witness testimony, V.A.C.C.P. Art. 38.14 provides that a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed, and that the corroboration is not sufficient if it merely shows the commission of the offense.

The standards by which this Court reviews a ease built around accomplice testimony were set out in detail in Bentley v. State, 520 S.W.2d 390 (Tex.Cr.App.1975). Quoting from our opinion in Edwards v. State, 427 S.W.2d 629, 632 (Tex.Cr.App.1968), we reiterated:

“The test as to the sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of other witnesses with the view to ascertain if there be inculpatory evidence which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise, it is not. Dalrymple v. State, 366 S.W.2d 576 (Tex.Cr.App.1963).”

Appellant was convicted under the theft statute of the new Penal Code. Since the evidence in no way indicates that he participated in the actual taking of the car, his offense must fall within Subsection (b)(2) of Section 31.03, which states:

“(b) Obtaining or exercising control over property is unlawful if:
(2) the property is stolen and the actor obtains it from another or exercises control over the property obtained by another knowing it was stolen.”

The State therefore has the burden of proving (1) the exercise of control over property (2) with the knowledge that it was stolen. Subsection (c) is significant with regard to the proof necessary under Subsection (b)(2):

“(c) For purposes of Subsection (b)(2) of this section:
(1) evidence that the actor has previously participated in recent transactions other than, but similar to, that which the prosecution is based is admissible for the purpose of showing knowledge or intent and the issues of knowledge or intent are raised by the actor’s plea of not guilty;
(2) the testimony of an accomplice shall be corroborated by proof that tends to connect the actor to the crime, but the actor’s knowledge or intent may be established by the uncorroborated testimony of an accomplice.”

In other words, when the offense falls within Subsection (b)(2), which is essentially the same as receiving stolen property under the old Code Art. 1430, Pool v. State, 528 S.W.2d 255 (Tex.Cr.App.1975), then the quantum of proof necessary under Art. 38.-14, V.A.C.C.P. is modified to the extent that the State must introduce corroborating evidence as to the possessory link between the defendant and the stolen property, but the accomplice’s testimony will be sufficient to establish the element of knowledge without corroboration.

While not directly applying Subsection (c)(2), we held in Deas v. State, 531 S.W.2d 810 (Tex.Cr.App.1976) that an accomplice’s testimony that the defendant was engaged in a conversation about the sale of cattle with a co-defendant and a third party was not sufficient to show that the conversation involved stolen cattle or that the defendant, Ronnie Mack Deas, knew that the cattle he was attempting to sell were stolen.

An examination of the non-accomplice testimony presented by the State in the present case shows that a 1968 Corvette was stolen on the night of May 11-12,1974; that the car was stripped, burned, cut into pieces and buried in the appellant’s wrecking yard. The only corroborating testimony brought out in the evidence put on by the defense was that the appellant was acquainted with the accomplice, but the time of the acquaintance and the circumstances of the relationship testified to by the defense witnesses completely contradicted the testimony given by the accomplice Cox. The appellant’s evidence also shows that anyone had access to the wrecking yard at any time of the day or night, which might tend to explain how a car could be stripped, burned and buried on appellant’s property without his knowledge. Clearly the State’s non-accomplice evidence showing unexplained presence of the car in appellant’s wrecking yard would, standing alone, be insufficient to support a finding of guilty. Crain v. State, 529 S.W.2d 774 (Tex.Cr.App.1975); Pool v. State, supra.

Considering the totality of the evidence presented by both the State and the appellant, we find that even though some of the non-incriminating details recited by the accomplice are supported by the testimony of the witnesses, the corroborating evidence fails to meet the requirement that it tend to connect the appellant with the offense alleged. Moore v. State, 521 S.W.2d 263 (Tex.Cr.App.1975).

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

ROBERTS and ODOM, JJ., concur only in that part of the opinion which holds that the court reversibly erred in failing to withdraw appellant’s plea of nolo contendere.

DOUGLAS, J., dissents.

      . This Section has been amended to make the “appropriation” of property unlawful. “Appropriate” is defined as to acquire or otherwise exercise control over property. Subsection (b)(2) now says a person commits an offense if the property is stolen and the actor appropriates the property knowing it was stolen by another.


author: REYNOLDS, Justice.

text:
    In the Interest of Shawn Jerome HERD, a minor.
    No. 8677.
    Court of Civil Appeals of Texas, Amarillo.
    May 24, 1976.
    Rehearing Denied June 21, 1976.
    C. J. Humphrey, Amarillo, for appellants.

      Oth Miller, Amarillo, for appellees.
   REYNOLDS, Justice.

Denying appellants’ petition for adoption of the minor child, the trial court ordered the child removed from the home of appellants, who were temporary managing conservators, appointed an agency the managing conservator, and replaced the child with appellants who were given full and exclusive rights as possessory conservators. Because the judgment provisions expressly or by necessary implication finding that it is in the best interest of the child to remove him from and to replace him in appellants’ home are contradictory, the judgment is reversed and, in the interest of justice, the entire cause is remanded.

Shawn Jerome Herd, a male child not yet five years of age, is the subject of this continuing litigation. His father died in 1971 and, at the age of two months, Shawn was placed in the Borger, Texas, home of his maternal grandparents, appellants Ray Calvin Adams and Florence Pearl Adams. In late 1972, a representative of the Hutchinson County Child Welfare Unit of the State Department of Public Welfare initiated proceedings to have Shawn declared dependent and neglected. In January of 1973, the child’s paternal grandparents, J. D. Herd and June Herd, intervened, alleged the child was dependent and neglected, and prayed for custody. The Adams filed in the cause in November of 1974 their petition to terminate the parent-child relationship and to adopt Shawn. His natural mother, Doneta Marie Herd, joined in the petition and executed an affidavit asking that her relationship with her child be terminated, designating the Adams to serve as managing conservators if her parental rights were terminated, and agreeing that the petition for termination may be joined with a petition for adoption.

Following a hearing, the trial court adjudged Shawn a dependent child, terminated the parental rights of his natural mother, denied the Adams’ petition for adoption, appointed as managing conservator the supervisor of the Hutchinson County Child Welfare Unit of the State Department of Public Welfare, who took physical possession of Shawn, and appointed all the grandparents possessory conservators with reasonable visitation privileges under the regulation and control of the managing conservator. On appeal by the Adams, the Waco Court of Civil Appeals, receiving the cause on a transfer to equalize the dockets, reversed the judgment and remanded the cause. This action resulted from determinations that the record conclusively showed that Shawn was not a dependent and neglected child on the date of the hearing or at any time during the previous two years, and that both the denial of the adoption by the Adams and the removal of Shawn from their home was so against the great weight and preponderance of the evidence as to be wrong and manifestly unjust. Adams v. Herd, 526 S.W.2d 295 (Tex.Civ.App.—Waco 1975, no writ).

After remand, the Herds moved for appointment as temporary managing conservators, but the court appointed the welfare supervisor to serve in that capacity until a hearing could be had. The Adams withdrew their stipulation that Shawn was dependent and neglected and moved for dismissal of that action. On hearing the matters, the court dismissed the dependent and neglected action, appointed as temporary managing conservators the Adams who took Shawn back into their home, and appointed the Herds temporary possessory conservators. The court set a hearing for the Adams’ application for adoption. The Herds then filed in the cause a petition affecting the parent-child relationship, but process not having been served on the day of the adoption hearing, the court granted the Adams’ motion to sever that action.

At the adoption hearing, the Herds appeared, testified in opposition to the Adams’ application for adoption and indicated their desire for custody of Shawn. Witnesses not previously testifying were also heard by the trial court and the evidence bearing on the welfare of Shawn, recorded on 454 pages with twelve exhibits, was more comprehensive than that presented to the court on the prior hearing.

Having heard the evidence, the court found that the adoption “is not for the best interest of” Shawn and denied the petition for adoption. Then the court, reciting and exercising the authority stated in V.T.C.A., Family Code § 16.10, found that the removal of Shawn from the Adams’ home “is in the child’s best interest” and ordered that Shawn “be removed from the home of Ray C. Adams and Pearl Adams,” appointed the supervisor in Hutchinson County of the Child Welfare Unit of the State Department of Public Welfare the managing conservator of Shawn, “subject to the rights, privileges, duties and powers of the posses-sory conservators as hereinafter set forth in this judgment,” and then ordered, subject to the Herds’ possessory conservatorship every other week-end and visitation at times agreeable to the Adams, that

. Ray C. Adams and Pearl Adams, the petitioners for adoption, be granted all of the rights, privileges, duties and powers of possessory conservators as set forth in Paragraph 14.04 of the Family Code of Texas, and that the managing conservator appointed above deliver said child, Shawn Jerome Herd, to the said Ray C. Adams and Pearl Adams. It is the ORDER of this Court that the said Ray C. Adams and Pearl Adams shall have the full and exclusive right as pos-sessory conservators of said minor child,

Appealing, the Adams present twenty-three points of error, the seventh of which is that the judgment is so contradictory that it clearly reflects an abuse of discretion in the application of “the best interest of the child” standard. We agree and sustain the point.

In determining questions of adoption, managing and possessory conser-vatorship, and support of and access to a child involved in domestic relations, the primary consideration is the best interest of the child. V.T.C.A., Family Code § 16.08, § 14.07. To protect the best interest of the child where there is no jury, broad discretion is entrusted to the trial court, Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, 790 (1955), who has the opportunity to observe the appearance and demeanor of the witnesses, Valentine v. Valentine, 203 S.W.2d 693, 696 (Tex.Civ.App.—Amarillo 1947, no writ), to evaluate the personalities of the contending claimants, to weigh the credibility of the testimony, to assess the physical, mental, moral and emotional needs of the child, Mumma v. Aguirre, 364 S.W.2d 220, 223 (Tex.1963), and to experience the forces and influences that cannot be discerned by merely reading the record. Lanford v. Carruth, 186 S.W.2d 368, 369 (Tex.Civ.App.—Amarillo 1945, no writ). Thus positioned, the trial court is better able to analyze all of the circumstances and to arrive at the judgment which, in its discretionary opinion, will protect the best interest of the child. Once made, that judgment will not be disturbed unless it appears from the record as a whole that there was an abuse of the discretion entrusted to the trial court. Mumma v. Aguirre, supra.

Here, the self-contradictory removal-replacing dichotomy in the judgment reflects an abuse of discretion in applying the best-interest standard mandated by § 16.08 and § 14.07. After finding that Shawn’s best interest required that the adoption be denied and that he be removed from the Adams’ home and so decreeing, which the court was authorized to do by §§ 16.08 and 16.10, the court, as equally bound by the § 14.07 requirement that any appointment of a managing and possessory conservator be in the best interest of the child, then ordered the appointed managing conservator to deliver the physical possession of Shawn to the Adams who, as possessory conservators and subject only to the Herds’ right of limited possession, were given the full and exclusive right of his possession. The net effect of the judgment is to physically, and for all practical purposes to permanently, place Shawn in the Adams’ home from which the court had just ordered that he be removed. In short, the court found that what was not in Shawn’s best interest was in his best interest and rendered judgment accordingly. The resulting judgment contains contradictory provisions, each of which purports to be, but both of which cannot be, in the best interest of the child, and constitutes an abuse of discretion in determining what is in the best interest of the child.

We are not to be understood as holding that the trial court can never appoint one as managing conservator and appoint another as possessory conservator with the right of full physical possession of the child. What we do hold is simply that, under this record, the removal of the child from the Adams’ home and the instant physical replacement of him permanently in the same home cannot both be in his best interest. Logically, the evidence must preponderate in favor of either the removal from or the retention in the home.

From the viewpoint that, independent of the contradictory provisions of its judgment, the trial court had denied their application for adoption and, alternatively, their plea for appointment as managing conservators, the Adams have challenged these determinations on grounds of legal and factual sufficiency of the evidence. But, except for the legal sufficiency points mentioned hereafter, our view is that these matters are so inextricably interwoven and interrelated with the ultimate best-interest-of-the-child issue which has not been, and is yet to be, decided by the trial court that any attempt by us to weigh all of the evidence at this stage would be speculative of the decision the trial court must first make.

As a necessary corollary to the broad discretion entrusted to the trial court to protect the best interest of the child, the law commits the trial court to initially determine what course is in the best interest of the child. It matters not what the appellate court would have done under the circumstances; the appellate court can only determine after the trial court has acted whether it abused its entrusted discretion. So, in this case, the trial court must first make a definitive determination. If, in the exercise of its discretion, the trial court believes the evidence that it would be in Shawn’s best interest to deny the adoption and to remove him from the Adams’ home, then under this record it could not be in Shawn’s best interest to replace him permanently in the same home; or, conversely, if the court believes the evidence that Shawn’s best interest requires his physical placement permanently in the Adams’ home, it could not be in Shawn’s best interest to deny the adoption and remove him from that home. Until the trial court has rendered judgment clearly disposing of all the issues, any expression we might make on the weight of the evidence would be predicated on contingent and future decisions to be made by the trial court.

The Adams say that there is no evidence to support the findings upon which the court predicated the denial of the application for adoption, the removal of Shawn from their home, and the appointment of the welfare supervisor as managing conservator, and that the court erred as a matter of law in denying their application for adoption, in ordering the removal of Shawn from their home, and in failing to appoint them managing conservators. These are issues upon which the Adams had the burden to persuade the trial court that, in the best interest of Shawn, their petition for adoption should be granted or, alternatively, that they should be appointed managing conservators. Although the judgment expresses or implies findings opposite to the vital facts necessary to be established for the Adams to prevail, the technical effect is that the trial court was not persuaded that the Adams discharged their burden. It, therefore, avails them nothing to say that there is no evidence to support the failure of the trial court to find in their favor, for the failure to find a vital fact necessary to be established for recovery is not required to be supported by affirmative evidence. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973); Hatchell and Calvert, Some Problems of Supreme Court Review, 6 St. Mary’s L.J. 303, 323 (1974). On the other hand, within the evidence heard by the trial court there is some admissible, probative evidence in support of the express and implied findings. We cannot, therefore, hold as a matter of law that there is no evidence in support of the findings, Rourke v. Garza, 530 S.W.2d 794, 799 (Tex.1975), or that the evidence is so clear and unequivocal that it disproves the adverse findings and conclusively establishes that it is in Shawn’s best interest to grant the adoption or, alternatively, to appoint the Adams the managing conservators. Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164, 166 (1948); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361, 364 (1960). Consequently, the no evidence points and the established-as-a-matter-of-law points are overruled.

. The Adams have presented other points, but we do not reach them. They are cast in the alternative role of requiring resolution only if the judgment is otherwise affirmed.

Because we may not substitute our judgment for that required of the trial court in the first instance, we are unable to render the judgment that the trial court should have rendered, and in the interest of justice, we remand the entire cause. Scott v. Liebman, 404 S.W.2d 288, 294 (Tex.1966). Additionally, the Herds have suggested and identified other evidence that should be brought to the attention of the trial court. Cf. Jackson v. Ewton, 411 S.W.2d 715, 719 (Tex.1967).

For the reasons stated, the judgment is reversed and the cause is remanded to the trial court.

       Sections subsequently cited are those sections of the Texas Family Code.


author: SHANNON, Justice.

text:
    Herman STIELER et al., Appellants, v. Robert Real STIELER et al., Appellees.
    No. 12341.
    Court of Civil Appeals of Texas, Austin.
    June 1, 1976.
    Rehearing Denied June 23, 1976.

      Broadus A. Spivey, Gibbins & Spivey Associated, Inc., Austin, for appellants.
    Daniel F. Derrick, W. R. Savage, Jim M. Cross, Derrick & Savage Law Offices, Marble Falls, for appellees.
   ON MOTION FOR REHEARING

SHANNON, Justice.

The opinion of this Court filed on March 17, 1976, is withdrawn, and the following opinion replaces it.

This is an appeal from a judgment canceling deeds which conveyed about five hundred twenty-seven acres of land located in Blanco County. Appellants are Herman and Emil Stieler, and appellees are Robert Real Stieler, Clarence Victor Stieler, and Gussie Stieler Mitchell. Appellants and ap-pellees are brothers and sister, and all are children of the grantor, Gus Stieler, deceased.

Appellees filed suit in the district court of Blanco County to cancel the deeds executed by their father conveying the acreage to their brothers. The jury answered that Gus Stieler did possess mental capacity at the time that he signed the deeds, but that at the time that he signed the deeds, Gus Stieler was acting under undue influence, exercised by appellants, their wives, or children.

At the outset, we are confronted with appellees’ motion to dismiss the appeal for want of jurisdiction for the stated reason that appellants did not show good cause why the transcript and the statement of facts could not have been filed within the time prescribed by the Rules of Civil Procedure. We are of the opinion that appellees’ motion is not well taken, and, accordingly, we will overrule the motion.

The judgment was signed on September 20, 1974. The motion for new trial was filed on September 26, 1974, and was overruled by operation of law on November 10, 1974. Appellants timely requested the preparation of the transcript and statement of facts.

This Court granted appellants’ first motion for extension of time for filing the statement of facts and transcript. The time for filing the record was extended to March 4,1975. The basis for the motion for extension of time was that the court reporter was unable to prepare the statement of facts within the prescribed time because of the press of official business.

Before March 4, this Court granted appellants’ second motion for extension of time for filing the statement of facts and transcript. The time for filing the record was extended to May 5, 1975. The basis for the second motion for extension of time was that the official court reporter died on December 17, 1974. At the time of death, the court reporter had not completed the transcription of his shorthand notes of the testimony. Thereafter the district court spent considerable time and effort searching for a reporter who could interpret and transcribe the shorthand notes.

On April 10, 1975, appellants’ counsel wrote the district clerk of Blanco County requesting the clerk to begin the preparation of the transcript. In his letter to the clerk, counsel wrote, “The Transcript and Statement of Facts is [sic] due to be filed in the Court of Civil Appeals on [sic] the above case on May 7, 1975.”

On May 6, one day after the date when the record was to have been filed with the Clerk of this Court, appellants filed their third motion to extend time for filing the statement of facts and transcript.

As grounds in support of their third motion for extension of time appellants alleged that (1) the completed statement of facts contained numerous errors and that it required “extensive time” on the part of the three attorneys for appellants to reconcile the errors, and (2) that one of appellants’ attorneys who participated in the trial underwent emergency surgery on April 21, 1975, and was not in a condition to complete an examination of the statement of facts until May 6, 1975.

In appellees’ sworn response in opposition to the third motion for extension, it was shown that the substitute court reporter obtained by the district court to complete the statement of facts had sent the statement of facts to appellants’ counsel in Austin by bus. The statement of facts arrived in Austin on March 26, 1975.

As is apparent, appellants’ third motion for extension of time was filed in 1975 and the cause was submitted and argued in 1975.

Appellees argue that our consideration of appellees’ motion to dismiss is governed by Tex.R.Civ.P. 386 prior to its amendment. That rule formerly provided that by timely motion filed with the Clerk of the Court of Civil Appeals “good cause” may be shown why the statement of facts could not have been filed within the prescribed time.

Appellees point out that appellants’ counsel had possession of the statement of facts as of March 26, 1975. Appellants’ counsel had thirty-eight days before May 5, to review the statement of facts, to ascertain the errors therein, and to correct those errors. Appellees direct our attention to the fact that three attorneys for appellants participated in the trial of the case, and though one of their number became incapacitated by surgery twenty-eight days after the receipt of the statement of facts, the other two attorneys could have completed review of the statement of facts and could have corrected the errors.

Under former Rule 386, the appeal would be dismissed. The statement of facts was in the possession of appellants’ counsel long before the time for filing, and it should have been filed on or before May 5, 1975. Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (Tex.1952), Pollard v. American Hospital and Life Insurance Company, 472 S.W.2d 116 (Tex.1971).

With respect to the application of Rule 21c to their motion to extend time, appellants remind us, for the first, time on motion for rehearing, of Tex.R.Civ.P. 814. Rule 814 provides in part as follows:

“These rules shall take effect on September 1st, 1941. They shall govern all proceedings in actions brought after they take effect, and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible or would work injustice, in which event the former procedure shall apply.”

Though Rule 814 refers to the effective date of the original Rules of Civil Procedure, that rule has been applied to subsequent amendments to the Rules. Commercial Insurance Co. of Newark, N. J. v. Lane, 480 S.W.2d 781 (Tex.Civ.App.1972, writ ref’d n. r. e.), Arana v. Gallegos, 279 S.W.2d 491 (Tex.Civ.App.1955, no writ). Appellants’ argument is well taken, and we agree that by virtue of Rule 814, Rule 21c governs our considerations of appellants’ effort to perfect their appeal.

Rule 21c provides as' follows:

“The failure of a party to timely file a transcript, statement of facts, motion of rehearing in the court of civil appeals or application for writ of error, will not authorize a dismissal or loss of the appeal if the defaulting party files a motion reasonably explaining such failure in the court whose jurisdiction to make the next ruling in the case would be affected by such failure. Said motion must be filed within fifteen (15) days of the last date for timely filing provided in the applicable rule or rules sought to be avoided, although it may be acted upon by the court at a date thereafter.” (Emphasis added)

Rule 21c requires of the movant a reasonable explanation for his failure to file the record within the time prescribed. In our view, “reasonable explanation” permits a showing that such failure to file timely was not deliberate or intentional, but rather was the result of inadvertence, mistake, or mischance. See dissenting opinion of Justice Clarence Guittard in Sloan v. Passman, Tex.Civ.App., 536 S.W.2d 575, Dallas, March 11, 1976 (not yet reported). Under the facts, set out above, we are of the opinion that appellants reasonably explained their failure to file the record within the required time.

Appellants attack the judgment of the district court by two points of error, the first being that there was no evidence to support the jury’s answer that appellants exercised undue influence over Gus Stieler. Their second point of error is that the jury’s answer that appellants exercised undue influence over Gus Stieler was contrary to the great weight and preponderance of the evidence.

A summary of the facts follows. In 1916, Gus and Meta Stieler were married. They had six children: Herman, Emil, Robert, Gussie, Alton, and Clarence. In 1933, Gus and Meta Stieler bought a 1,010-acre ranch in Blanco County near Cypress Mill. A portion of that ranch is the subject of this appeal.

Mrs. Stieler died intestate in 1962. The six children inherited, in equal portions, their mother’s one-half of the ranch. Differences in the family arose concerning whether or not the children’s one-half of the ranch should be partitioned. Herman and Emil, appellants, lived away from the ranch and wished to partition their shares. The other children did not want the ranch to be partitioned. At that time, so appel-lees say, Mr. Stieler did not favor a partition. The difference in attitudes toward the partitioning of the ranch resulted in severe family disagreements. After Alton died in 1967, Herman and Emil caused their shares to be partitioned.

Mr. Stieler lived on the ranch from 1933 to 1967. In 1967, while Alton was in the hospital, Mr. Stieler lived with Clarence and his family at Sherwood Shores. Clarence and his family then moved to the ranch where Mr. Stieler lived with them for about seven months. In early 1968, Clarence decided that his father had “got a little too much for us to take care of.” Clarence, and his sister, Gussie, agreed to have their father move from the ranch and stay with Gussie in Oklahoma City.

In April, 1968, while in Oklahoma City, Mr. Stieler suffered a heart attack. He was treated by Dr. Hugh Stout who diagnosed the cause of the attack to be arteriosclerosis and hypertension. On the physician’s recommendation, Gussie placed her father in a nursing home. Though the evidence is conflicting, there was some testimony that Herman and Emil helped pay for Mr. Stieler’s stay in the nursing home.

While Mr. Stieler was still in Oklahoma he leased the ranch for grazing purposes to Robert, Gussie, and Clarence.

In May of 1970, Mr. Stieler wrote Herman, “I would indeed enjoy if it isn’t asking to [sic] much if you could get me because I haven’t seen any of you all for some time.” A few days later Herman and his wife drove to Oklahoma City, picked up Mr. Stieler, and toured the western states before returning to central Texas. Gussie testified that Herman promised to return their father to Oklahoma a short time after the trip and the visit in Texas.

When he returned to Texas, Mr. Stieler stayed with Herman’s family in Austin. In early August, 1970, he wrote Robert and Clarence informing them that he was moving to the ranch with Herman’s family and requesting them to move “. . . what you have there within a week.” In the same correspondence the elder Stieler requested Robert and Clarence “. . .to take their mother’s part [of the ranch] so my land will be clear.”

Mr. Stieler and Herman with his family moved to the ranch in August, 1970. When they arrived they discovered that the locks to the house had been changed. They broke the locks and went into the house to spend the night. Clarence and his family arrived at the house about midnight. Clarence and Herman began a heated argument, and an ugly brawl ensued with Herman and his wife pitted against Clarence. According to Clarence’s version of the facts, Herman knifed him during the course of the fight. Gus Stieler was in the room during the struggle, but he “just sat there with his head down.”

Shortly after the fight, Mr. Stieler decided to partition his half of the ranch from that part owned by appellees. On the recommendation of a friend, who was also the brother-in-law of Herman’s wife, he hired an Austin attorney, Jon N. Coffee. Mr. Stieler explained to Coffee that he wanted to do whatever was necessary to get his part of the ranch “fenced off,” so that he could be “left alone” by his family.

The attorney prepared a petition for partition which Stieler signed. By that suit Stieler sought to have the court partition out his interest in the ranch. The partition was agreed upon in February of 1971, and judgment was entered later awarding Mr. Stieler 525 acres of the ranch.

During the spring and autumn of 1971, Mr. Stieler wrote Coffee that he continued to have troubles with appellees respecting their animals which remained on his part of the ranch. He also wrote of disputes concerning a fence to be built separating the parcels of land which had been partitioned.

In February of 1971, he wrote Coffee of his intention to deed his part of the ranch to Herman and Emil. He asked the attorney to prepare and to send him deeds to effectuate that result. After the execution of the deeds in June, 1972, Stieler expressed his satisfaction to Coffee with his having deeded the land to appellants.

After Coffee mailed the deeds to Stieler, Herman and his wife drove Stieler to Marble Falls where a justice of the peace witnessed the execution of the deeds on May 13, 1972. When asked by the justice of the peace if he wanted to sign the deeds, Mr. Stieler said that he did and that “These two kids have taken care of me.”

Appellee Robert Stieler testified that after his father began living with Herman’s family he had difficulty in visiting with his father alone. Clarence and Gussie were of the same view. Alton Kneese, a friend and neighbor of Gus Stieler, also testified that Herman’s wife always seemed to be present during his visits with the elder Stieler and that she did not hesitate to interrupt Stieler and “take over” the conversation.

Mr. Stieler died on November 23, 1972.

In Rothermel v. Duncan, 369 S.W.2d 917, 922, 923 (Tex.1963), the Supreme Court announced the principles which control the disposition of this case:

“. . Thus, before a testament may be set aside on the grounds of undue influence the contestant must prove: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence. See: Stewart v. Miller, Tex.Civ.App. (1925), 271 S.W. 311, wr. refused; Olds v. Traylor, Tex.Civ.App. (1944), 180 S.W.2d 511, wr. refused.
“. . . It is the law in Texas that a will cannot be set aside on proof of facts which at the most do no more than show an opportunity to exercise influence. Burgess v. Sylvester, Tex.Civ.App. (1944), 177 S.W.2d 271; affirmed, 143 Tex. 25, 182 S.W.2d 358. The establishment of the circumstances of having an opportunity to exert such influence due to being in a position of caring for the person upon whom the influence is supposed to be exerted is equally consistent with the theory of innocence as it is with the theory of wrongdoing. Price v. Taliaferro, Tex.Civ.App. (1952), 254 S.W.2d 157, wr. ref. n. r. e.”

These principles were quoted and approval by the Supreme Court in Dulak v. Dulak, 513 S.W.2d 205 (Tex.1974) and referred to in Stephens County Museum, Inc. v. Swenson, 517 S.W.2d 257 (Tex.1974).

The principles quoted from Rother-mel apply to the execution of deeds as well as to the execution of wills. Self v. Thornton, 343 S.W.2d 485 (Tex.Civ.App.1960, writ ref’d n. r. e.).

The facts in Dulak, supra, were stronger in support of the jury’s finding of undue influence than the facts in support of the jury’s finding in the instant case.

In Dulak, the Supreme Court reversed the judgments of the district court and of this Court upon the basis that there was no evidence to support the jury’s finding of undue influence. In that case the father lived with his son, Joe. At noon, the father fell and broke his leg in Joe’s trailer house. Joe and his wife, Helen, were present at the time of the fall. Though Joe telephoned a physician, the physician did not return his call for a long period of time and Joe did not take his father to the hospital until about nine o’clock in the evening. In the meantime, according to Joe and Helen, the father asked Helen to type a release of a promissory note given by them for the purchase of a farm from the father. He signed the release “a good while after his fall.”

In reviewing those facts, this Court was of the opinion that there was sufficient evidence to support the jury’s answer of undue influence exercised by Joe in obtaining the release of the note. On appeal, however, the Supreme Court held that, “The most that the evidence in this record shows is that Joe had an opportunity to exert undue influence upon his father.”

Since the elder Stieler lived with Herman and his family before and at the time of the execution of the deeds, the opportunity to influence the disposition of his property might be inferred. We find no evidence, however, that appellants or their families did in fact exercise undue influence upon Gus Stieler. The mere opportunity to exercise undue influence will not support a jury finding of undue influence. Rother-mel v. Duncan, supra, Dulak v. Dulak, supra, Stephens County Museum, Inc. v. Swenson, supra.

We grant appellants’ no evidence point. The judgment of the district court is reversed and judgment is here rendered that appellees take nothing.

Reversed and Rendered on Motion for Rehearing.

      . Rule 386 was amended effective January 1, 1976. The amendment repeals that part of the rule which permitted extensions of time on motion filed within fifteen days after expiration of the sixty-day period when the motion showed good cause why the record could not be filed timely. Texas R.Civ.P. 21c now governs the consideration of motions for extensions of time.


author: GUITTARD, Justice.

text:
    David L. SLOAN et al., Appellants, v. Sam PASSMAN, Appellee.
    No. 21156.
    Court of Civil Appeals of Texas, Dallas.
    March 11, 1976.
   GUITTARD, Justice.

I do not agree that new rule 21c of the Texas Rules of Civil Procedure requires a showing of “reasonable diligence” for extension of the time for filing the record on appeal. The rule requires rather a “reasonable explanation” for failure to file it within the time prescribed. In my view, “reasonable explanation” permits a showing that such failure resulted from inadvertence, mistake, or mischance. This interpretation would tend to avoid the harsh result of loss of the right to appeal because of an error of appellant’s counsel or his secretary.

Decisions under old rule 386, such as Patterson v. Hall, 430 S.W.2d 483 (Tex.1968), do not illuminate the meaning of rule 21c except to illustrate the injustices which occurred with distressing frequency under the old rule. In Thompson v. Carter, Jones, Magee, Rudberg, Moss & Mayes, 514 S.W.2d 131 (Tex.Civ.App., Dallas 1974, no writ), we called attention to the harshness of the old rule and suggested a more lenient standard for cases in which inadvertent failure to meet the deadline would not result in substantial delay. We may reasonably infer that the supreme court intended to move in this direction by deleting the “good cause” requirement of rule 386 and substituting the requirement of a “reasonable explanation.” I cannot accept the majority view that this language was intended to continue the practice exemplified in Patterson v. Hall of making the appellants’ rights depend on our determination of the diligence of counsel, as disclosed by affidavits. Such a requirement of diligence would represent too slight a departure from the old requirement of “good cause” to relieve the harshness of loss of the right to appeal because of an error of counsel.

In my view, the requirement of a “reasonable explanation” implies no stricter standard than that applicable to avoidance of a default judgment. In Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 125 (1939), the supreme court held that the defaulting defendant must show some excuse, but not necessarily a good excuse, in order to be entitled to a new trial. In explaining what kind of excuse would be acceptable, the court announced the rule that defendant must show that his failure to answer was not intentional or the result of conscious indifference, but was due to mistake or accident. Id., 133 S.W.2d at 126. Application of this standard to extensions of time for filing the appellate record would not seriously interfere with the orderly and timely disposition of appeals because of the requirement in rule 21c that the motion for extension be filed within fifteen days after expiration of the sixty-day period. Consequently, I would hold that any plausible statement of circumstances indicating that failure to file within the sixty-day period was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance, may be accepted as a “reasonable explanation,” even though counsel or his secretary may appear to have been lacking in that degree of diligence which careful practitioners normally exercise. I would also hold that the reasonableness of the explanation should be considered in the context of the length of the delay, so that a delay of only two days after expiration of the sixty-day period, as in this case, could be treated with more leniency than one of longer duration.

I concede that the present motion would have to be denied under old rule 386 because it does not show “good cause” why the record could not have been filed within the sixty-day period. I concede also that the practically equivalent standard of “reasonable diligence,” which the majority find “implicit” in new rule 21c, has not been met. I do not find such a requirement in the rule, however, and I would hold that the facts shown and recited in the majority opinion constitute a “reasonable explanation” for failure to tender the transcript to the clerk until two days after expiration of the sixty-day period. Consequently, I would grant the motion and hear the appeal.


author: PEDEN, Justice.

text:
    Ex parte Stephen W. McCRARY, Relator.
    No. 16743.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 13, 1976.
    Fred Reynolds, Houston, for appellant.
    Joe Mills, Houston, for appellee.
   PEDEN, Justice.

In this original habeas corpus proceeding the relator, Stephen W. McCrary, seeks his discharge from custody to which he was committed after being found in contempt of court for failure and refusal to make child support payments in the amount of $7,000. He was ordered held in custody until payment of all arrearage and costs of court plus an attorney’s fee of $150.

Evidence of the relator’s ability to pay the arrearage was offered at the hearing on the motion for contempt filed by the relator’s former wife. The relator contends that the order of commitment is void and that he is entitled to be discharged because the evidence offered at the hearing establishes that he is unable to pay the arrear-age.

It is well settled that where it is not within the power of the person to perform the act which alone will purge him of contempt and he had not voluntarily brought the disability to perform on himself, the court is without power to imprison him for an indefinite term as punishment for an offense already committed. Ex parte De Wees, 146 Tex. 564, 210 S.W.2d 145 (1948). A proceeding in this court is a collateral attack upon the order of contempt and the court treats the order as void if the evidence offered at the hearing conclusively establishes that at the time of the contempt hearing the relator did not have, and had no source from which he might reasonably expect to obtain, the amount in arrears plus any costs and attorney’s fee adjudged against him. Ex parte Rohleder, Jr., 424 S.W.2d 891 (Tex.1967); Ex parte Howe, 457 S.W.2d 642 (Tex.Civ.App.1970, no writ).

The relator testified at the contempt hearing that he works on a commission basis and that his take-home pay averages $210 to $215 per week. He stated that he has five children born of his present marriage and is sending his former wife all the money he can without completely depriving his other five children of support.

Mrs. Molly Ann McCrary, the relator’s present wife, testified that their total monthly bills amount to $650. She borrowed money to pay the relator’s $750 child support debt in December and they haven’t been able to repay that.

His previous employer testified that the relator was a good worker when he was there; the work was available, but he seldom worked a 40-hour week.

This evidence falls short of the relator’s burden of establishing as a matter of law that he is unable to comply with the trial court’s order; he did not show that he had no source from which he might reasonably be expected to obtain the arrearage.

The relator is remanded to the custody of the Sheriff of Harris County, Texas.


author: DUNAGAN, Chief Justice.

text:
    GENERAL MOTORS CORPORATION, PONTIAC MOTOR DIVISION, Appellant, v. COURTESY PONTIAC, INC., a corporation, Appellee.
    No. 951.
    Court of Civil Appeals of Texas, Tyler.
    May 27, 1976.
    Rehearing Denied June 24, 1976.

      Charles F. Potter, Potter, Lasater, Guinn, Minton & Knight, Tyler, for appellant.
    Jack Norwood, Holcomb & Norwood, Tyler, for appellee.
   DUNAGAN, Chief Justice.

This is an appeal by General Motors Corporation, Pontiac Motor Division, defendant, from an order overruling its plea of privilege. Hereafter, the appellant will be referred to as “General Motors” and the appellee as “Courtesy Pontiac.” This suit was brought by Courtesy Pontiac against General Motors in the Seventh Judicial District Court of Smith County, Texas, alleging fraudulent representations made in Smith County, Texas, by the agents, servants and employees of General Motors. Courtesy Pontiac further alleged that it relied on these fraudulent representations and prayed for actual damages in the sum of $7,100, together with exemplary damages in the sum of $25,000.

General Motors timely filed its plea of privilege to be sued in Dallas County, Texas. This plea of privilege was controverted by Courtesy Pontiac under subdivisions 7 and 27, Tex.Rev.Civ.Stat.Ann. art. 1995. However, Courtesy Pontiac conceded in the Trial Court that subdivision 27 was inapplicable and relied solely on subdivision 7. After a hearing, the Trial Court entered its order overruling the plea of privilege. Appeal therefrom has been timely perfected to this Court.

Courtesy Pontiac is an automobile dealer which operates in Tyler, Texas, under a written Sales and Service Agreement with General Motors. This controversy arose out of the Demonstrator and Fleet Incentive Program set forth in letters and attachments thereto from the General Sales Manager of General Motors. These letters and attachments were sent to all Pontiac dealers on March 12th and 13th, 1974. They provided for incentive payments on Pontiac motor vehicles which met the following requirements:

(1) The vehicles must have been new and unused 1974 models when placed in demonstrator service.
(2) The vehicles must have been produced prior to March 12, 1974.
(3) The vehicles must have been placed in demonstrator service by the dealers after March 12, 1974, and prior to June 30, 1974.
(4) The vehicles must have been retained in such service for a minimum of 90 days.

The Sales and Service Agreement provided as follows:

“ . . .no agreement between the parties which is at variance with any of the provisions of this Agreement or which imposes definite obligations upon either party not specifically imposed by this Agreement . . . shall be binding upon either party unless it bears the signature of the General Sales Manager of Pontiac Motor Division of General Motors Corporation . . . (Emphasis added.)

Carl Westcott, the President of Courtesy Pontiac, testified that he read both letters and “examined the Dealer Demonstrator and Fleet Incentive Program very carefully . to see if it was of possible use” to Courtesy Pontiac.

Courtesy Pontiac’s suit is based on allegations that the agents of General Motors represented to Westcott that sixteen (16) of Courtesy Pontiac’s automobiles were eligible for the rebate when in fact they were not.

General Motors, in its first two points of error, contends that the trial court erred in overruling its plea of privilege because (1) no exception to exclusive venue in Dallas County has been shown and (2) there is no competent evidence that General Motors committed fraud in Smith County, Texas, so as to confer venue in such county under subdivision 7 of Art. 1995. In determining this “no evidence” point, we look only at the evidence and the inferences therefrom which are favorable to Courtesy Pontiac. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas.L.Rev. 361, 364 (1960).

On March 28, 1974, A. C. Huckelbury, the Assistant Zone Manager for General Motors, and Don DeLo, the District Manager for General Motors, met in Tyler, Texas, with Carl Westcott. The Demonstrator and Fleet Incentive Program was discussed during this meeting. Prior to the meeting in Tyler, Westcott had not enrolled any cars in the program. Although Courtesy Pontiac had twenty (20) cars in demonstrator service, Westcott did not think any of these cars were eligible for the rebate. During the meeting, DeLo said that his records indicated that Courtesy Pontiac had only three (3) demonstrators in service. An inquiry of Ms. Barr, an employee of Courtesy Pontiac, revealed that many of Courtesy Pontiac’s automobiles which were then in demonstrator service had not been “registered” with General Motors.

General Motors has, since 1970, required a dealer to notify the manufacturer when an automobile is placed in demonstrator service. IBM cards for that purpose were furnished to the dealers and were to be returned to General Motors. This “registration” informs General Motors as to the number of new and unused cars a dealer has on hand and facilitates the proper distribution of new cars.

Westcott testified that Huckelbury told him on March 28, 1974, that those cars which were actually in demonstrator service but which had not been registered with General Motors were eligible for the Demonstrator Incentive Program. The IBM cards on such unregistered demonstrators were completed that day and were given to Huckelbury who returned them to the zone office of General Motors in Dallas, Texas. Pursuant to other provisions of the Demonstrator Incentive Program, Courtesy Pontiac made written applications on April 2, 1974, and May 21, 1974, for rebates on a total of twenty-seven (27) automobiles. Also following the procedure outlined in the program, credit of $12,000 was automatically given to Courtesy Pontiac for all cars listed, subject to cancellation after an audit by General Motors as provided for in the letters of agreement. These cars were subsequently sold at a reduced price. The audit by General Motors showed that the information certified to by Courtesy Pontiac regarding sixteen (16) of the automobiles was incorrect and that the cars were not eligible. On September 19, 1974, General Motors notified Courtesy Pontiac that a rebate in the sum of $7,100 theretofore credited to Courtesy Pontiac on those sixteen (16) demonstrator automobiles had been disallowed. Courtesy Pontiac does not question the accuracy of the auditor’s report showing the ineligibility of the sixteen (16) automobiles. It was stipulated at the hearing that the auditor’s report was true and correct. This suit was instituted on the theory that Courtesy Pontiac relied on and was damaged by Huckelbury’s misrepresentation of eligibility. General Motors contends that there was no evidence of fraud by General Motors because Huckelbury had no actual or apparent authority to modify the eligibility requirements of the demonstrator program.

The letters of March 12th and 13th, 1974, in conjunction with the Sales and Service Agreement, clearly provide that any modification of the plan would be upon and after written notice by Pontiac Motor Division of Genera] Motors Corporation to the dealers and then, only by the General Sales Manager. There is no evidence, and Courtesy Pontiac does not contend, that Westcott was unaware of this limitation upon the authority of the agents of General Motors to waive or alter any provision in the Demonstrator Incentive Program. “It is well settled that one dealing with an agent, and knowing his lack of authority to act for his principal in making given representations, cannot set up the falsity of the representations as a ground for a recovery of damages of the principal.” L. D. Powell Co. v. Sturgeon, 299 S.W. 274 (Tex.Civ.App.-Texarkana 1927, n. w. h.) and cases therein cited. “Notice of limitations upon the agent’s authority to waive or alter the contract may be given by the terms of the contract itself and will be effective.” Kasch v. Williams, 251 S.W. 816 (Tex.Civ.App.-San Antonio 1923, n. w. h.). We find no evidence of probative force in the record to support any contention that Huckelbury had actual or apparent authority to alter or modify the terms of the Demonstrator Incentive Program.

Courtesy Pontiac also argues “that the statements made by Mr. Huckelbury were an ‘interpretation’ of the eligibility requirements of the program, and not a variance of the written terms of the program itself.” The provision that only new and unused cars were eligible for the rebate was clearly set out in the letters of March 12th and 13th, 1974. Therefore, call it what you may, the statements attributed to Mr. Huckelbury which were contrary to the provision of the Demonstrator Incentive Program could only have been a modification of that program.

In Prosser on Torts 3rd Ed., sec. 103, p. 731, we find this statement:

“Not only must here be reliance, but the reliance must be found to be justifiable under the circumstances. But in some cases where the plaintiff’s reliance in fact, and his good faith, are unquestioned, it may still be held that his conduct was so foolish as to bar his recovery. If he is a person of normal intelligence, experience and education, he may not put faith in representations which any such normal person would recognize at once as preposterous ... or which are shown by facts within his observation to be so patently and obviously false that he must have closed his eyes to avoid discovery of the truth, and still compel the defendant to be responsible for his loss.”

We believe this rule of law is applicable to the facts in this case as Westcott well knew that the statements attributed to Huckel-bury were completely contrary to the requirements outlined in the agreements. Since Courtesy Pontiac’s reliance was not justified under the circumstances existing here, it follows that one of the necessary elements of its cause of action for fraud was not established.

The general rule of venue is that a defendant must be sued in the county of his domicile. In order to defeat defendant’s plea of privilege to be sued in the domiciliary county, the burden is on the plaintiff to allege and prove by a preponderance of the evidence that the case comes within one of the exceptions to Tex.Rev.Civ.Stat.Ann. art. 1995. Admiral Motor Hotel of Texas, Inc. v. Community Inns of America, Inc., 389 S.W.2d 694 (Tex.Civ.App.-Tyler 1965, n. w. h.); Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935); Berry v. Pierce Petroleum Corporation, 120 Tex. 452, 39 S.W.2d 824 (1931).

Venue facts must be proved just as the allegations of any plea or in the usual way in which proof is required by the party upon whom the burden of proof rests. Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63 (1941). In a venue hearing the plaintiff has the same burden of proving a cause of action as on a trial on the merits; a prima facie case is not sufficient. Compton v. Elliott, supra; Lynch v. Millican, 304 S.W.2d 410, 412 (Tex.Civ.App.-Waco 1957, n. w. h.); Young v. Young, 340 S.W.2d 521 (Tex.Civ.App.-Waco 1960, n. w. h.).

The burden imposed upon Courtesy Pontiac is one the courts have predicated upon the belief that the defendant’s right to be sued in a county of his domicile is an invaluable right and this right should be vitiated only when the evidence clearly supports the maintenance of venue in some other county. The right to be sued in one’s own domicile is a right jealously guarded by the courts and exceptions to the venue statutes must clearly appear. Goodrich v. Superior Oil Company, 150 Tex. 159, 237 S.W.2d 969, 972 (1951); Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825 (1950). Unless the plaintiff clearly discharges his burden by proof, the defendant is entitled to have the case transferred to the county of his domicile. Calhoun v. Padgett, 409 S.W.2d 890, 893 (Tex.Civ.App.-Tyler 1966, n. w. h.); Reynolds & Huff v. White, 378 S.W.2d 923 (Tex.Civ.App.-Tyler 1964, n. w. h.).

Plaintiff must produce extrinsic evidence sufficient to establish the allegations in his petition by a preponderance of the evidence. This requirement is supported by considerations of public policy grounded upon the premise that otherwise it would be too easy by mere allegations and statements of conclusions to defeat the defendant’s right to be sued at his domicile. Ideal Baking Co. v. Boyd, 417 S.W.2d 613, 617 (Tex.Civ.App.-Tyler 1967, n. w. h.); 1 McDonald, Texas Civil Practice, sec. 4.55(b) at 612, 613. Venue may not be established by implication. Reynolds & Huff v. White, supra.

The appellee has failed to discharge the burden required of it to hold venue in Smith County.

The judgment of the Trial Court is reversed and the cause is remanded to the Trial Court with instruction that the cause be transferred to one of the civil district courts of Dallas County, Texas, in accordance with Rule 89, T.R.C.P.

McKAY, J., not participating.

      . The apparent purpose of the incentive program was to increase the sale of automobiles by providing dealers with rebates on vehicles which were used as demonstrators, thus permitting the dealers to sell these demonstrators at a reduced price.

      . “7. Fraud and defalcation. — In all cases of fraud suit may be brought in the county where the fraud was committed or where the defalcation occurred, or any of such suits may be brought where the defendant has his domicile.”


author: HALL, Justice.

text:
    Billy R. PATTON, Appellant, v. James L. WELCH, Appellee.
    No. 5559.
    Court of Civil Appeals of Texas, Waco.
    May 27, 1976.
    Rehearing Denied June 24, 1976.
    Donald A. Smyth, Brazoria, for appellant.
    John D. Cabaniss, Waco, Ad Litem for minor.
    Joe N. Johnson, Waco, for appellee.
   HALL, Justice.

The appellant is the natural father of the child in question. On petition of the appel-lee, who is the stepfather of the child, the trial court terminated the parent-child relationship between the appellant and the child and granted the stepfather’s petition for adoption. The termination order and the resulting adoption are based on findings that the appellant “has engaged in conduct which endangers the physical or emotional well-being of said child” and that “said termination would be in the best interest of said child,” made by the court after a hearing without a jury. A part of the evidence upon which the findings are grounded is proof of the appellant’s criminal activities both before and after the child was born. We must decide whether the evidence is legally sufficient and factually sufficient to support the findings. We hold that it is, and affirm the orders.

The appellant was born in September, 1950. In 1964, at age 14, he was charged with theft of a car and was handled as a juvenile for this offense by the authorities in Harlingen, Texas. In 1965, he was convicted in the federal courts for stealing another car and driving it across state boundaries. For this offense he was granted probation under the Federal Youth Corrections Act. He successfully served the probationary period. In 1968, he was convicted of aggravated assault in Bell County, Texas, and assessed punishment of six months in jail. The offense was committed by the appellant striking and inflicting serious injuries upon another with a soft drink bottle. In 1968, while serving the sentence, he escaped from the Bell County Jail. While at large, he burglarized a private residence. He was convicted of the burglary and assessed a term of six years in the Texas Department Of Corrections. He was released on parole in May, 1971. He secured a job with a construction company in McLennan County as a welder, a trade he learned while in the penitentiary. He married Stephen’s natural mother, now Mrs. Linda Kay Welch, in August, 1971. She was born in 1951. The appellant passed a forged instrument at the store where his wife was working, and his parole was revoked in December, 1971. At this time, the appellant knew that his wife was pregnant with Stephen. He was returned to the Department Of Corrections to finish the burglary sentence. Stephen was born in April, 1972, while the appellant was in the penitentiary. The appellant completed the burglary sentence in October, 1972. By this time, his wife had filed suit for divorce. Upon release from the penitentiary, he immediately came to Waco for a one-day visit with his wife and Stephen, and with some friends. After the visit, he went to Harlin-gen where he lived with an aunt and uncle and secured a job with the Cameron County tax appraiser, earning $600-$800 monthly. In March, 1973, Mrs. Welch was awarded a divorce from the appellant. She was made managing conservator of the child. The appellant was granted reasonable visitation upon reasonable notice, with the provision that he could not remove Stephen from the mother’s home until Stephen attained the age of six years. The appellant was ordered to pay $100 per month child support. He has made one payment. In April, 1973, the appellant quit his job with Cameron County. In this same month, he married Nellie Salinas, the mother of two children by a prior marriage. They are still married. No children have been born of this marriage. On June 1, 1973, the appellant committed the burglary of a private residence at night, stealing several guns. On June 8, 1973, he committed the offense of armed robbery. In the course of the robbery he threatened harm to a woman and her small child by pointing two loaded revolvers at them. He was arrested for these crimes on June 13, 1973, and placed in the Cameron County jail. He perfected an escape from jail, but was rearrested the next day. He was convicted of the robbery charge in 1973 and is now confined in the Texas Department of Corrections. He was convicted also in 1973 of a federal firearms law violation and assessed a term in the federal penitentiary. This sentence has not been served.

In September, 1973, Mrs. Welch married the appellee, James L. Welch. He was born in 1952. This was his first marriage. One child, also a boy, has been born of this marriage. Stephen was 1½ years of age when the appellee and Mrs. Welch married. Since then, a strong, wholesome father-son-brother relationship has developed between the appellee and Stephen and the younger son. Stephen is now four years of age. The appellee and Mrs. Welch have established a home environment for their sons and for themselves that is economically, emotionally, and spiritually sound now and for the future.

Among other grounds set forth in § 15.02, V.T.C.A., Family Code, which support the court’s termination of the parent-child relationship upon proper petition are findings that (1) the parent has engaged in conduct which endangers the physical or emotional well-being of the child, and (2) the termination is in the best interest of the child.

The appellant is now 26 years of age. Since age 14, most of his time has been concerned with satisfying punishments assessed for serious law violations. All but one of the nine crimes committed in that time span were committed with specific criminal intent. Two involved intentional physical and emotional harm to others, including a small child. The record shows that while on probation and while in the Department of Corrections, the appellant was accorded efforts toward his rehabilitation by state and federal authorities, but none helped. He has expressed but little concern in Stephen’s welfare; and by his intentional actions he has defeated any chance for the development and of a father-son relationship between them.

The appellant testified to facts which would indicate a change in his attitude during his present incarceration. The trial court was not required to believe there has been a change. “An adult person’s future conduct may well be measured by his recent deliberate past conduct as it may be related to the same or a similar situation.” De Llano v. Moran, 160 Tex. 490, 333 S.W.2d 359, 361 (1960). Under the record, the trial court was justified in believing that the appellant’s past conduct shows that he is an incorrigible criminal; that he has a heart regardless of social duty and is dangerous; that he will continue his criminal activities when he is again released from state and federal penal institutions; that he does not truly love the child;, that any contact between him and Stephen during the boy’s childhood could have only a deleterious effect upon the child’s emotional stability and health; and that such contact between the boy and the father who is constantly in trouble with law enforcement officials could and probably would damage healthy mental attitudes which the record shows have been developed in Stephen through gentle, loving nurture and parental care exerted by Mr. and Mrs. Welch.

It is our conclusion that the evidence is legally sufficient to support the questioned findings. Moreover, a review of the entire record convinces us that the findings are not against the great weight and preponderance of the evidence.

The judgment is affirmed.


author: PER CURIAM:

text:
    The CITY OF AUSTIN, Appellant, v. Marion B. FINDLAY et al., Appellees.
    Nos. 12392, 12419.
    Court of Civil Appeals of Texas, Austin.
    June 9, 1976.

      Don R. Butler, City Atty., Austin, for appellant.
    James R. Sloan, Larry W. Wise, Sloan & Wise, Austin, for appellees.
   PER CURIAM:

This appeal concerns an effort on the part of the City Council of Austin to change the name of “19th Street” to “Martin Luther King, Jr., Boulevard.”

On April 10, 1975, the City Council of Austin by formal motion changed the name of 19th Street to Martin Luther King, Jr., Boulevard. Thereafter, appellees Marion B. Findlay, Harris L. Johnson, and Bert Johnson, individually and as representatives of the members of the “West 19th Street Association,” and other property owners fronting that street, filed suit in the district court of Travis County against the City of Austin, appellant. By their suit appellees sought a declaration, among other things, that inasmuch as the action taken by the City Council in changing the name of the street was by motion instead of ordinance, the change was void and of no legal effect. Upon application and after hearing, the district court entered a temporary injunction in favor of appellees and enjoined the City of Austin from funding the construction of street signs reflecting the change in the street name. The City of Austin has appealed from the entry of the temporary injunction. In due course, appellees filed a motion for summary judgment, as did appellant. After hearing, the district court denied appellant’s motion for summary judgment and granted that of appellees. Upon motion, this Court consolidated the appeals of the City of Austin from the entry of the temporary injunction and the summary judgment. We will affirm the judgment of the district court.

In their trial petition appellees contended that since the action taken by the City Council in changing the name of 19th Street was by motion instead of by ordinance, the City Council’s action was void and of no legal effect. This was so, appel-lees claimed, since the changing of the name of the street was “legislative” in nature and constituted “legislation.” Article II, Section 11 of the Charter of the City of Austin, requires that all “legislation” be by ordinance.

The summary judgment recited in part that “. . . the City of Austin, on April 10, 1975, attempted to rename 19th Street in the City of Austin to Martin Luther King, Jr., Boulevard by motion, but that changing the name of a street is a legislative act which can be accomplished only by ordinance, as required by Section 11 of Article II of the City Charter of the City of Austin which provides that the City Council shall legislate by ordinance only, and such action is therefore void and of no force and effect.”

The summary judgment declared further that “. . . the action of the City Council of Austin, Texas on or about April 10, 1975, attempting to change the name of 19th Street to Martin Luther King, Jr., Boulevard by motion is hereby declared to be of no force or effect, is null and void, and Plaintiffs’ Motion for Summary Judgment to such effect is hereby granted.”

By one point of error Appellant City contends that the district court erred in holding that the street name change must be effected by ordinance and cannot be effected by motion.

If the change of the name of the street was “legislative” in nature, then, according to the Charter, the change had to be effected by ordinance rather than by motion or resolution.

We are unable to find authority directly in point. The term “legislative,” however, has been discussed often in connection with the right of referendum. In that context, at least, “legislative” relates to subjects of a general or permanent character, as distinguished from those subjects which are transitory, temporary, or routine. An enactment originating a permanent law or laying down a rule of conduct or course of policy is legislative in character, but an enactment which puts into execution previously declared policies is administrative or executive in character. Denman v. Quin, 116 S.W.2d 783 (Tex.Civ.App.1938, writ ref’d).

“Actions relating to subjects of a permanent and general character are usually regarded as legislative, and those providing for subjects of a temporary and special character and regarded as administrative. In this connection an ordinance which shows an intent to form a permanent rule of government until repealed is one of permanent operation. Obviously, details which are essentially of a fluctuating sort, due to economic or other conditions, cannot be set up in and by an ordinance to be submitted to the vote of the people.
“The test of what is a legislative and what is an administrative proposition, with respect to the initiative or referendum, has further been said to be whether the proposition is one to make new law or to execute law already in existence.” 5 McQuillin, Municipal Corporations § 16.55 (3rd Ed. 1969 Rev. Vol.).

Several out-of-state cases indicate that the naming or changing the name of a street is a “legislative” action. See People v. City of Chicago, 413 Ill. 315, 109 N.E.2d 201 (1952), Hagerty v. City of Chicago, 360 Ill. 97, 195 N.E. 652 (1935), Bacon v. Miller, 247 N.Y. 311, 160 N.E. 381 (1928), Eldridge v. Fawcett, 128 Wash. 615, 223 P. 1040 (1924).

Applying the facts of this appeal to the standards set out in Denman, supra, and in the quoted section of McQuillin, we are of the opinion that the change of the street name was a “legislative” action by the City Council and was one required to be effected by ordinance instead of by motion. The name change was intended to be permanent. By changing the name the Council did not put into execution any previously declared policy or law. More important, the change of the name of the street was not based upon a minute investigation of facts and figures, and did not involve the application of expert or technical knowledge as is characteristic of administrative or executive actions.

The judgment is affirmed.


author: O’QUINN, Justice.

text:
    Bob ARMSTRONG, Commissioner of the General Land Office and the State of Texas, Appellants, v. PENROC OIL AND GAS CORPORATION, Appellee.
    No. 12403.
    Court of Civil Appeals of Texas, Austin.
    June 9, 1976.
    Rehearing Denied June 30, 1976.
    John L. Hill, Atty. Gen., of Texas, J. Milton Richardson, Asst. Atty. Gen., Austin, for appellants.
    Martin L. Allday, D. Bruce Pope, Tom C. McCall, Lynch, Chappell, Allday & Al-dridge, Midland, for appellee.
   O’QUINN, Justice.

Penroc Oil Corporation brought this suit against the State of Texas in August of 1973, pursuant to permission obtained from the Legislature, to recover $57,778, furnished by Penroc, and paid by International Sulphur and Minerals, Inc., as bonus consideration and filing fees to the Commissioner of the General Land Office for certain mineral leases covering mineral classified lands in Hudspeth County.

Penroc claimed position of a cestui que trust by reason of false and fraudulent representations made by International Sulphur to Penroc, resulting in a constructive trust. Alternatively, Penroc claimed, as a stockholder and judgment creditor of International Sulphur, that the state sulphur leases granted to International were void ab initio and Penroc was entitled to refund of $57,-778 paid for the leases.

The position of the State is that (1) no person or entity, except the State, has authority to question validity of the sulphur leases, and (2) money paid as bonus and filing fees for the leases, voluntarily tendered the State Treasury, may not be recovered by suit.

Both Penroc and the State moved for summary judgment in district court, and the trial court entered judgment against the State and for Penroc awarding recovery of $57,778. We will reverse the judgment of the trial court and render judgment that Penroc take nothing by its suit.

All the leases by their own terms expired on June 1, 1969, when delay rentals were not paid and no sulphur production had been obtained. In two actions in Midland County, Penroc obtained final judgments against International Sulphur and other parties on the basis of fraud, but in this suit Penroc does not allege fraud as to the bonus money and filing fees in its motion for summary judgment. Penroc urged that the leases were void because in violation of Article 5421c-10 (V.A.C.S.) which prescribes percentages of bonus money which Penroc says the State did not receive. International Sulphur’s right to do business in Texas was forfeited in April of 1970 and its charter was forfeited in April of the following year. Penroc claims right to $57,778 paid to the State for the leases as stockholder of the defunct corporation.

The State contends that the consideration the State received for the leases was equal to or greater than the percentage required by statute, that the State received valuable benefits for the Public Free School Fund, and the leases were approved by the Commissioner of the General Land Office and afterwards received by International Sul-phur. Under these facts, the State insists, Penroc is without standing to challenge validity of the leases, which can be questioned in court only by the State.

We hold that Penroc may not recover for two reasons: First, Penroc is without standing to question validity of the leases, and, second, money paid voluntarily into the State Treasury by a party on a void or voidable demand with full knowledge of all the facts may not recover from the State in the absence of fraud.

It is settled that only the State may challenge validity of leases on state owned mineral classified lands. Colquitt v. Gulf Production Company, 52 S.W.2d 235, 238 (Tex.Comm’n App.1932, judgment adopted). In Colquitt the court clearly stated the rule: “Being, in law, the only lessor of the mineral estate and all its incidents, the state is the only one who could maintain an action to avoid the transaction, even if good cause existed therefor * * So long as the contract is not canceled at the suit of the state, it is apparently a valid one, and all the parties thereto having an interest in the subject-matter are bound thereby.” (52 S.W.2d 238)

The principle of law announced in Col-quitt has not been overruled or altered in subsequent decisions. See Lewis v. Oates, 145 Tex. 77, 195 S.W.2d 123, 126 (1946); Norman v. Giles, 148 Tex. 21, 219 S.W.2d 678, 684 (1949). The rule was recognized and the same conclusion reached in Phillips Petroleum v. Ham, 228 F.2d 217 (5th Cir.1955).

The second basis for our holding that Penroc may not recover is the rule of State v. Perlstein, 79 S.W.2d 143, 148 (Tex.Civ.App. Austin 1935, writ dism’d). There this Court said, “If it be conceded that the conveyance was void . . appellees are nevertheless precluded a recovery herein under the rule that money voluntarily paid on a void demand, in absence of fraud and with full knowledge of all facts, cannot be recovered back.” Penroc argues that the State had notice of International Sulphur’s fraud on Penroc and that Perlstein therefore is not controlling. The record fails to establish that the General Land Office had any notice of possible fraud before the leases were approved and filed.

Since both parties moved for summary judgment and the trial court granted one motion and expressly denied the other, this Court will render judgment the trial court should have rendered. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958); State v. Rope, 419 S.W.2d 890, 899 (Tex.Civ.App. Austin 1967, writ ref. n. r. e.).

We reverse the judgment of the trial court and render judgment that Penroc take nothing by its suit.

Reversed and Rendered.