author: OSBORN, Justice.

text:
    Carlos AGUIRRE et al., Appellants, v. MOOR PARK INVESTMENT COMPANY, Appellee.
    No. 6732.
    Court of Civil Appeals of Texas, El Paso.
    July 19, 1978.
    Rehearing Denied Aug. 16, 1978.

      El Paso County Legal Assistance Society, Susan J. Munder, El Paso, for appellants.
    Guevara, Rebe & Baumann, Andrew R. Guevara, Sal Rebe, Susan 0. Bradshaw, El Paso, for appellee.
   OPINION

OSBORN, Justice.

Our Opinion of June 14, 1978, is withdrawn and the following Opinion submitted therefor.

This is an appeal from the granting of a writ of mandamus ordering the Sheriff of El Paso County to evict the occupants from certain apartments pursuant to writs of restitution issued by a Justice of the Peace in several forcible entry and detainer suits. We affirm.

The Appellee, Moor Park Investment Company, filed ten separate suits in Justice Court to obtain possession of ten separate apartments. Each suit was filed against “John Doe and all other occupants” of the particular apartments, being numbered 1 through 10, except as to Apartment No. 6, which was filed against Maria Barrionuevo and all other occupants. The occupants refused to open the doors and service was never obtained on any of these Appellants. Nevertheless, on June 1, 1977, a default judgment was noted on the Docket in each case, and the following day a written judgment was entered reciting that “the Defendants, John Doe and all other occupants, although being duly cited to appear and answer herein in terms of law, did fail to do so, and did wholly made [sic] default * The occupant of Apartment No. 4 has enjoined the execution of the writ of restitution in another case and is not involved in this appeal. When the Sheriff refused to carry out the writs of restitution issued following the default judgments, this suit was instituted seeking a writ of mandamus. Notice of this suit was given to the occupants by posting a notice on the doors of the apartments. The only answer in the mandamus case was filed by Carlos Aguirre, occupant of Apartment No. 10. Following the entry of the order of mandamus, an appeal was perfected by the occupants of all of the apartments, except for Apartments Nos. 2 and 4.

In granting the writ of mandamus, the trial Court in effect refused to sustain a collateral attack upon default judgments issued out of a Court having subject matter jurisdiction of forcible entry and detainer suits in cases where the judgments recited valid service on the Defendants. This is in accordance with the general rule that, in a collateral attack upon a final judgment, recitals in the judgment are considered conclusive on the issue of jurisdiction over the person, where the Court has jurisdiction over the subject matter. Texas may be the only State in which recitations in the judgment control the rest of the record, even when such record shows affirmatively a lack of jurisdiction. See Hodges, “Collateral Attacks on Judgments,” 41 Tex.L.Rev. 499 at 532 (1963).

A leading case concerning attacks on default judgments is McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961). The opinion in that case by Chief Justice Calvert points up the controlling effect of recitals of service in a judgment where the Court has subject matter jurisdiction, and the necessity for a direct attack on such a judgment, either by a direct appeal, including a writ of error, or by a bill of review. In Akers v. Simpson, 445 S.W.2d 957 (Tex.1969), that same Court said:

“ * * * It is the firmly established rule in Texas that a defendant who is not served and who does not appear may not, as a matter of public policy, attack the verity of a judgment in a collateral proceeding; the jurisdictional recitals import absolute verity. [Cases cited] * * * ”

But, unfortunately, the Appellee in this case did not choose to plead the validity of the default judgments and rely upon the conclusive recitals of service in the forcible entry and detainer eases and then, under the well established policy of this State, exclude all efforts to attack those judgments in this collateral proceeding. Instead, the Appellee attacked the judgments by both its pleadings and proof. In the application for writ of mandamus, it was alleged under oath:

“Plaintiff would further aver that the Sheriff of El Paso County, Texas has, upon demand of Plaintiff, on numerous occasions attempted to serve the Defendants herein with service of process in the forcible entry and detainer actions made the basis of Relator’s Application for Mandamus herein, to no avail * *

The Appellee called as a witness the Justice of the Peace who entered the default judgments, and he identified the citations to these Appellants, and they were offered in evidence showing conclusively that service was never perfected. He said the Appellants did not appear for trial. He also testified:

“ * * * Now, it’s a pretty common occurrence, in many instances the Sheriff will serve citations, the majority of the instances, and the citations are not returned to my Court until sometime after the case has been heard. And this is what I assumed had occurred on this particular instances, when I did not have the citation before me. I had no reason to believe that anything else had happened.
* * * * * *
“A I state that if I granted default judgment that the reason I did was because I assumed that they had all been served, and I did not have the citations before me.”

Rule 742, Tex.R.Civ.P., requires that the citation be returned to the issuing Justice on or before the day assigned for trial.

We have found no case where a party who attempts to rely upon a final judgment has conclusively proved its invalidity despite recitals to the contrary. There is no valid basis for following well established cases and policy considerations as to collateral attacks on final judgments in a case where the one relying upon such judgment proves its invalidity. There would be something basically wrong in permitting one who alleges under oath that there was no service on defendants, and who proves that fact, to have the benefit of a public policy in favor of a recital of valid service. Thus, we would be inclined to hold that in a collateral attack on a final judgment the recital of service of process is not conclusive when alleged and proven otherwise by the party relying upon such recital.

But such issue is not controlling in this case where the Appellants make a collateral attack upon a judgment entered by a Court having subject matter jurisdiction and power to enter the judgment which the Appellants now attack. Certainly, one who makes a collateral attack on a judgment does not have a less onerous burden than one making a direct attack.

In McEwen v. Harrison, supra, the Court said:

“ * * * we construe * * * Rule 329-b to mean that when the time for filing a motion for new trial has expired and relief may not be obtained by appeal, a proceeding in the nature of a bill of review is the exclusive method of vacating a default judgment rendered in a case in which the court had jurisdictional power to render it. Into this category will fall those eases in which a default judgment is asserted to be void for want of service, or of valid service, of process.
“ * * * If a defendant in a suit negligently suffers a default judgment to be rendered against him by a court having the jurisdictional power to render it, or negligently permits it to become final, he should not be heard to say that the judgment is void. And if he has no meritorious defense to the suit, the setting aside of the judgment would be a vain act and a trespass on the time of the court. * * ”

The pleading filed by the one Appellant in this case does not meet the necessary requirements for a bill of review. Those requirements include (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party (3) unmixed with any fault or negligence of his own. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950); Jensen v. Kisro, 561 S.W.2d 216 (Tex.Civ.App.—Houston [1st Dist.] 1977, writ ref’d n. r. e.); PHB, Inc. v. Goldsmith, 534 S.W.2d 196 (Tex.Civ.App.—Houston [14th Dist.]), writ ref'd n. r. e., 539 S.W.2d 60 (Tex.1976).

Our Supreme Court has made important distinctions between jurisdictional power or subject matter jurisdiction and jurisdiction over the parties in considering attacks on a judgment asserted to be void. See Deen v. Kirk, 508 S.W.2d 70 (Tex.1974); Harris v. Logue, 554 S.W.2d 168 (Tex.1977); Wycough v. Bennett, 510 S.W.2d 112 (Tex.Civ.App.—Dallas 1974, writ ref’d n. r. e.).

In this case, had Appellants timely filed a motion for new trial in the Justice of the Peace case, they would have been confronted by the rules set forth in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). Had they filed a bill of review, they would be subject to the requirements set forth in Alexander v. Hagedorn, supra. Having exercised no right to take a direct appeal, they may not accomplish the same result in a collateral attack where they meet none of the requirements of a direct attack.

The Appellee asserts that all of the occupants of the premises are trespassers. If this be so, then they would appear to have no meritorious defense to the forcible entry and detainer suit, and thus a valid reason for not taking a direct appeal with its attendant requirements.

We have considered all of the Appellants’ points of error and they are all overruled. The judgment of the trial Court is affirmed.


source: Caselaw Access Project

author: COLEMAN, Chief Justice.

license: Public Domain

text:
    Robert Louis PLAGGE, d/b/a Quail Valley Stables, Appellant, v. Sal GAMBINO et al., Appellees.
    No. 17194.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 20, 1978.

      Dale W. Felton, Houston, for appellant.
    Kronzer, Abraham & Watkins, Robert E. Ballard, Douglass F. Norman, Houston, for appellees.
   COLEMAN, Chief Justice.

This is an appeal from an order denying a temporary injunction. Findings of fact and conclusions of law have been filed. The appellant contends the trial court abused its discretion in failing to apply the.law correctly to the undisputed facts. The judgment is affirmed.

On September 1, 1977, Robert Louis Plagge leased a portion of the property known as Quail Valley Stables from a partnership comprised of James McNaughton, Stanley W. Cameron and Thomas H. Over-street, hereinafter called McNaughton partnership.

On October 31, 1977, the McNaughton partnership deeded a portion of the property to Quail Valley Car Care Center, Inc. The property conveyed contained 1.9 acres. A barn was located on this part of the property which formerly was used for indoor riding. An improved driveway or road led from the highway through the 1.9 acre tract alongside the front barn to the back barn. The appellees subsequently blocked the driveway or road when its contractor installed certain gasoline tanks in connection with the construction of a car care center.

While the property leased by Plagge had some 400 feet frontage on the highway, there was no other improved road or driveway leading into the interior of the property or to the back barn where horses were stabled. Plagge contends that he owns an implied easement over the road as it existed at the time he entered into his lease agreement and sought an injunction to prevent the car care center from blocking the roadway. There is evidence that Plagge has been damaged and will continue to be damaged by reason of the obstruction to the use of the roadway. There is also evidence that the issuance of an injunction would result in damage to appellee.

In a hearing on an application for a temporary injunction the question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. Where the applicant properly proves a case showing probable right and probable injury, the trial court is clothed with broad discretion in determining whether to issue the writ and its order will be reversed only on a showing of a clear abuse of discretion. Transport Company of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953). The trial court abuses its discretion when it fails or refuses to apply the law to conceded or undisputed facts. Southland Life Insurance Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722 (1935).

The rule of law which the appellant asserts grants him the right to use the road in question is stated in Mitchell v. Castellaw, 151 Tex. 56, 246 S.W.2d 163 (1952), in these words:

“It is universally recognized that where the owner of a single area of land conveys away part of it, the circumstances attending the conveyance may themselves, without aid of language in the deed, and indeed sometimes in spite of such language, cause an easement to arise as between the two parcels thus created — not only in favor of the parcel granted (‘implied grant’) but also in favor of the one remaining in the ownership of the grantor (‘implied reservation’). The basis of the doctrine is that the law reads into the instrument that which the circumstances show both grantor and grantee must have intended, had they given the obvious facts of the transaction proper consideration. .
“On the other hand, even in the case of an implied grant, courts do not lightly hold the grantor to convey more than stated in his deed; and he being less favored in law than his grantee, the weight of authority seems still more reluctant to imply a reservation in his favor at the expense of his grantee . . .”

The question of implied grants of easements was considered at length in Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex.1962), where the court said:

“If an owner used one part of his land for the benefit of another portion of his own land, the portion served had a ‘quasi-dominant tenement.’ The portion which was used was subject to a ‘quasi-servient tenement.’ The doctrine of implied easement appurtenant developed when the owner, under those circumstances, sold the portion of his land which had had the use of the other portion — as for drainage, support, way, or water. If use of the ‘servient’ tract was apparent, continuous, and necessary to the use of the ‘dominant’ land sold, the courts presumed that the necessary use of the ‘servient’ tract passed by implication to the purchaser.”

In Drye v. Eagle Rock Ranch, Inc., supra, the court found it unnecessary to decide whether the doctrine of “strict necessity” for an implied reservation applies also to the implied grants of easements appurtenant. The court did state that in the great majority of cases in which easements have been implied, the necessity has been economic or physical necessity for the use of the land rather than some merely desirable right for the occupant of the land. In support of this statement the court cited Howell v. Estes, 71 Tex. 690, 12 S.W. 62 (1888); Ulbricht v. Friedsam, 159 Tex. 607, 325 S.W.2d 669 (1959). Ulbricht v. Friedsam, supra, states as the correct rule of law governing an implied grant of an easement a quotation from 28 C.J.S. Easements § 31, p. 687, et seq., as follows:

“ ‘Where the owner of an entire tract of land or of two or more adjoining parcels employs a part thereof so that one derives from the other a benefit or advantage of a continuous, permanent, and apparent nature, and sells the one in favor of which such quasi easement exists, such easement, being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implication.’ ”

Two questions immediately appear when these propositions of law are applied to the facts of this ease. First, do the facts show that the road in question is necessary” to the “reasonable enjoyment” of the property granted; second, is the conveyance of an interest in the land by means of a written lease for term of years a sufficient severance of title to support the creation of an easement by implication? The Texas cases which we have considered all use such words as “grantor and grantee”, “convey”, “sell”, and “purchaser.” No Texas cases have been found holding that the grant of an easement of use could be implied from a lease agreement. However, in Adams v. Grapotte, 69 S.W.2d 460 (Tex.Civ.App—Eastland 1934), aff'd and opinion adopted in Grapotte v. Adams, 130 Tex. 587, 111 S.W.2d 690 (1938), the statement is made that access to a public highway is an incident to the ownership of land abutting thereon, and the right to such access is private property passing to the lessee.

As early as 1909 the Supreme Court of Pennsylvania had stated that where land is sold or leased and is so situated that access to it from the highway cannot be had except by passing over other land of the grantor or lessor, the grantee or lessee becomes entitled to a right to pass over the land of his grantor or lessor for the purpose of reaching the highway and returning to his own land. Commonwealth v. Burford, 225 Pa. 93, 73 A. 1064 (1909).

It is a settled rule in Massachusetts that, when a landlord lets property to be occupied by several tenants, although he retains for certain purposes control of the common doorways, passageways, stairways and the like, he grants to his tenants a right of way in the nature of an easement, appurtenant to the premises let, through those places that afford access thereto. Commonwealth v. Richardson, 313 Mass. 632, 48 N.E.2d 678 (1943). Other cases having similar holdings may be found in 49 Am.Jur.2d, Landlord & Tenant, § 198, p. 220.

We consider, therefore, that a written lease agreement for a term of years creates a sufficient separation of title to support an implied easement appurtenant.

Whether an easement arises by implication depends upon such matters as the extended character of the user, the nature of the property, the relation of the separated parts to each other, the existing degree of necessity for giving such construction to the conveyance as will give effect to what may be supposed to have been, considering the manner of use, the reasonable intention of the parties. 25 Am.Jur.2d, Easements and Licenses, § 28, p. 442.

The evidence is uncontroverted that at the time the lease agreement was made between Plagge and the McNaughton partnership the road was clearly visible and had been in use for a considerable period of time. The premises were used for boarding horses and for conducting a riding academy. The lower barn was used to stable the horses which were frequently brought in and removed in horse trailers by use of this road. The evidence is that the land abutting on the highway was gumbo and was difficult to traverse in a motor vehicle during wet weather. There was no evidence of an agreement or understanding at or prior to the lease that the easement was not to pass. There is testimony that Plagge knew that the front barn and adjacent land was to be sold before the lease was executed. There is no evidence concerning the cost of constructing a new road or driveway from the highway to the back barn. A question of fact was raised as to whether the use of the road was reasonably necessary for the fair enjoyment of the leasehold. Miles v. Bodenheim, 193 S.W. 693 (Tex.Civ.App.—Texarkana 1917, writ ref’d); Westbrook v. Wright, 477 S.W.2d 663 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ hist.).

We find no evidence sufficient to warrant the implication of an easement by reservation in favor of the McNaughton partnership at the time of the sale to Quail Valley Car Care Center. The evidence does not establish the strict necessity required for the implication of an easement since there is access from the highway to all of the property retained by the partnership.

One who purchases real estate with knowledge that it is burdened with an easement in favor of other' property takes subject to such easement. Plaster v. Stutzman, 8 S.W.2d 750 (Tex.Civ.App.—Galveston 1928, no writ hist.). There is evidence that the McNaughton partnership operated a riding stable business on the property involved here. Plagge was employed by McNaughton from April 15, 1976 to September 1, 1977, first as a director of riding and later as manager. Before August 15, 1977 McNaughton gave Plagge notice of his intention to sell the front barn and told him to stop using the barn by August 15, 1977. Plagge took possession on or about September 1, 1977. A formal lease agreement was executed October 25, 1977. There is no evidence that the lease agreement was recorded.

Mr. Gambino, who conducted negotiations for the car care center, testified that he was acquainted with the property prior to the time he purchased it for the car care center. He knew that a business was being operated on the premises. He saw the road in question and knew that it was the only one leading into the premises. He did not ask McNaughton whether there was an easement or right of way for the road. He knew that Mr. McNaughton was a member of a partnership. He did not know that the partnership did business as Quail Valley Stables.

Mr. Gambino knew before he bought the property that the building which he purchased was used as an indoor arena for horse riding. He also knew that McNaughton owned the land north and south of his property line and that there was access to the highway from that land. If it is assumed that an implied easement for use of the road flows from the lease, the facts are not such as to require a finding that the car care center had notice of this easement. Gambino had neither actual knowledge nor notice of the lease agreement and he might reasonably have assumed that the McNaughton partnership operated the riding stable as well as the indoor arena. A disputed issue of fact exists.

The trial court did not fail to apply established rules of law to undisputed facts. There is no abuse of discretion in the action of the trial court in failing to grant the temporary injunction. The judgment is affirmed.


author: PEDEN, Justice.

text:
    BAVARIAN AUTOHAUS, INC., et al., Appellants, v. David C. HOLLAND, Appellee.
    No. 17124.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 20, 1978.

      Barlow, Lacy, Smith & Pollard, John H. Harris, Houston, for appellant Bavarian Autohaus, Inc.
    Orgain, Bell & Tucker, Paul W. Gertz, Beaumont, for appellant BMW of North America, Inc.
    David C. Holland, pro se.
   PEDEN, Justice.

Bavarian Autohaus, Inc. and BMW of North America, Inc. (BMW) appeal by writ of error from a default judgment in favor of David Holland, who claimed unliquidated damages under the Deceptive Trade Practices and Consumer Protection Act (Tex. Bus. & Com.Code, Chapter 17) as a result of the defendants’ alleged misrepresentations concerning the quality of their automobiles and their repair service. The trial court heard testimony on the plaintiffs damages and entered a judgment of $5,000 plus costs against the defendants jointly and severally. Bavarian Autohaus asserts error in the trial court’s finding that citation was served on it, and both appellants contend that the plaintiff did not offer adequate proof of damages. The appellee has not responded. We reverse and remand.

Mr. Holland alleged in his petition that in March of 1974 he bought a used 1973 BMW Bavaria automobile from an individual. It had been driven 12,000 miles and was in excellent overall condition. Bavarian Auto-haus, an authorized sales and service dealership for BMW, performed normal service work requested by plaintiff in September of 1974 and charged $169.57 for it. Pour months later, when the car’s odometer showed 25,425 miles, Holland consigned it to a used ear dealer who located a purchaser willing to pay $6,950 if its engine could be made to operate smoothly and properly. Holland took the car to Bavarian Autohaus and was charged $138.35, but the rough running condition was not corrected, and the prospective purchaser cancelled the sale. In February of 1975, appellee returned the car to Bavarian Autohaus for the same problem. It kept the car until June 18, 1975, did not repair the malfunction and charged Holland $78.00. The fourth time Holland returned the car to Bavarian Auto-haus, no work was done and no charges were made, but it kept the car from July 21 through November of 1975.

Appellee further alleged that the automobile’s exterior paint began to crack and peel in early 1975, and although he asked the appellants to rectify this condition, they took no action.

During the time in question, BMW advertised itself as the importer of very high quality automobiles and encouraged the owners of its cars to have their service work performed exclusively at its factory authorized facilities such as Bavarian Auto-haus. This authorization was designed to create an impression on the owners of BMW cars that the mechanics at Bavarian Autohaus were trained at the BMW factory and that the service they gave was of the highest possible calibre. Despite its allegations of highest quality service, Bavarian Autohaus was unable to repair the malfunction in his car on any of its four efforts to do so; “Bavarian Autohaus thus misrepresented to plaintiff its expertise in the area of BMW service and in fact, performed the work in a substandard manner.” Holland pleaded that the defendants represented that the services they offered to the public, and to the plaintiff in particular, were of a particular standard, quality, or grade, when in fact they were of another, as expressly prohibited by Sec. 17.46(a)(7) of the Texas Business and Commerce Code, V.T.C.A. (should be Sec. 17.46(b)(7) of the Code).

Plaintiff’s petition also alleged that BMW misrepresented that its cars were free from manufacturing defects that were incurable by its own service agents.

The petition stated that the automobile had been diminished in value by the defendants’ misrepresentations; their failure or inability to properly repair its engine and paint prevented his selling it at an agreed price of $6,950, and its current market value is approximately $4,500. “Plaintiff claims the approximately $2,450 difference between the agreed sale price in 1975 and the current market as his measure of damages and further asserts his right under Sec. 17.50(b)(1) of the Texas Bus. & Com. Code, V.T.C.A., to treble damages, court costs and reasonable attorney’s fees.” He also prayed for general relief.

Bavarian Autohaus argues under its first eight points of error that the default judgment should be set aside because the record does not affirmatively show that citation was properly served upon it. Ordinarily, presumptions are made in support of due service when it is recited in the judgment but not when a direct attack is made upon a default judgment. McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965). In that case, jurisdiction must affirmatively appear on the face of the record. Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934 (1935).

The citation recites that it was to be issued to Bavarian Autohaus, Inc., a Texas corporation, by serving its agent, Charles Vann. The original sheriff’s return states that it was delivered to “Clint Hughes—V. Pres.”

The amended return states:

“Received this writ on the 3 day of FEB, 1977, at 10:49 o’clock A.M., and executed the same in Harris County Texas, on the 9 day of FEB, 1977, at 2:50 o’clock P.M., by summoning the BA VARIAN AUTOHAUS, INC., a corporation by delivering to Clint Hughes, in person Vice President of the said Corporation a true copy of this writ, together with accompanying certified copy plaintiff’s original petition.”

The amended return relates back and is regarded as filed when the original return was filed. Lafleaur v. Switzer, 109 S.W.2d 239, 241 (Tex.Civ.App.1937, no writ); Nash v. Boyd, 225 S.W.2d 649 (Tex.Civ.App.1949, no writ); 2 McDonald Texas Civil Practice 406, § 9.19 (1970).

Article 2.11 of the Texas Business Corporation Act makes the president, all vice presidents and the registered agent of a corporation agents for service of process. The original officer’s return did not state that Bavarian Autohaus was served by serving “Clint Hughes—V. Pres.” It did not recite, as it must, that process was delivered to the defendant, Bavarian Auto-haus, through its named agent. Brown-McKee, Inc. v. J. F. Bryan & Associates, 522 S.W.2d 958, 959 (Tex.Civ.App.1975, no writ); Firman Leather Goods Corp. v. McDonald & Shaw, 217 S.W.2d 137, 140 (Tex.Civ.App.1948, no writ).

This original return was fatally defective, but the appellee procured an amended return sometime prior to the day of the hearing. Rule 118, Texas Rules of Civil Procedure, provides:

“At any time in its discretion and upon such notice and on such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.”

When this case was before the trial judge for assessment of damages, he noted that the court file did not show service of citation on Bavarian Autohaus, whereupon the appellee produced the amended return described above from his file and related that his secretary had taken it to the constable’s office for correction. Further discussion followed, outside the hearing of the court reporter.

It is obvious that the trial court allowed the amended return to be filed before entering judgment next day. Although the statement of facts does not show that the provisions of Rule 118 were specifically invoked in the trial court, it appears that they were complied with. Bavarian Autohaus has not asserted that it was misled by the earlier return on the citation. We cannot say the trial court erred in allowing the already-amended return to be filed or in not requiring that notice of the amendment be given to Bavarian Autohaus.

Bavarian Autohaus argues that the amended return fails to comply with Rule 107, Texas Rules of Civil Procedure, because it does not show the manner of service. More specifically, Bavarian Auto-haus asserts that the use of the words “writ” and “summoning” in the return render it defective, pointing out that “writ” was used prior to the adoption of the Rules of Civil Procedure and is still being used when referring to citations. See 2 McDonald, Texas Civil Practice 398, § 9.16 (1970). A return should be given a fair, reasonable and natural construction to its plain intent and meaning. Brown-McKee, Inc. v. J. F. Bryan & Associates, 522 S.W.2d 958, 959 (Tex.Civ.App.1975, no writ). In our case the citation was directed by the clerk to the defendant; it referred both to service of “this citation” and to service of “this writ.” We hold that the return in this case fairly states the manner of service as required by Rule 107.

Bavarian Autohaus’ ninth point asserts error in the court’s entry of a default judgment without adequate proof of damages. BMW’s first three points contend that the record contains no evidence or insufficient evidence to support a finding of damages regardless of the measure used. In point of error four, BMW argues that there is no evidence to support the judgment if the measure applied is the difference between the value of the automobile accepted and the value of the automobile if it had been as warranted. BMW’s point 5 contends that the evidence is insufficient to support a finding on diminution in value from the date of purchase to the date of the hearing. Points six and seven state that the record contains no evidence or insufficient evidence to show that any repairs were reasonable and necessary. Appellant BMW argues in its eighth point of error that there is no evidence that repainting costs were incurred or that the estimate represented reasonable and necessary work on the automobile. Its ninth and final point contends that there is no evidence to support an award of attorney’s fees.

The questions presented by both appellants necessitate a determination of the correct measure of damages in this Deceptive Trade Practices case. § 17.50(b) of the Texas Business & Commerce Code states:

“In a suit filed under this section, each consumer who prevails may obtain:
“(1) three times the amount of actual damages plus court costs and attorneys’ fees reasonable in relation to the amount of work expended; [emphasis added].
* . *

The Texas Supreme Court has not delineated the bounds of “actual damages” but has determined that treble damages are mandatory. Woods v. Littleton, 554 S.W.2d 662, 669 (Tex.1977). It also cited with approval statements from McDaniel v. Dulworth, 550 S.W.2d 395, 396 (Tex.Civ.App.1977, no writ), that a liberal interpretation of the damages provision of the Act should be adopted to effectuate the legislative intent of encouraging aggrieved consumers to seek redress and deter unscrupulous sellers. See Maxwell, Damages Under The Deceptive Trade Practices — Consumer Protection Act, Damages (1977); Comment, Measure of Damages for Misrepresentation under the Texas Deceptive Trade Practices Act, 29 Baylor L.Rev. 135, 143 (1977). § 17.-50A(2) provides a defense to the trebling effect of the Act if the defendant tenders to the consumer “the cash value of the consideration received from the consumer or the cash value of the benefit promised, whichever is greater.” (emphasis added), plus expenses, including attorney’s fees.

We now consider BMW’s points of error four through nine and Bavarian Auto-haus’ ninth point. The sufficiency of the evidence to support the trial court’s determination of damages in a default judgment is subject to review. Johnson v. Brown, 218 S.W.2d 317, 320 (Tex.Civ.App.1948, ref. n. r. e.).

As to the proof of damages, we summarize the testimony of the only witness, the plaintiff.

He bought a car (used) in March of 1974 and that September took it to the dealer for servicing. It was to have been put in excellent condition. Some work was done. In January, 1975, someone agreed to buy it for $6,950 if it could be made to run smoothly. He took it to the dealer to be repaired, but it wasn’t, and he took it back around Pebru-ary 1. They had trouble in finding the cause of the problem, so he asked them to have the factory representative look at it. Four months later, in July, they said it was fixed. He again paid on the repair ticket, but the car still wasn’t fixed. He took it back and they kept it until November 15; most of this delay was caused by waiting on the factory representative to examine the car’s unusual problem. They said it suddenly started running fine and they didn’t know why. Meanwhile the local market had deteriorated because the dealer’s reputation had gotten bad.

In the spring of 1976 he got a serious inquiry, but his offer to take $4,750 was rejected. The total of the three repairs was right at $375.

Plaintiff’s counsel then stated: “Your Honor, I would like to introduce in evidence here two repair tickets. They are not very legible. One was for $169.57 and the other one $138.35; we don’t have the third repair ticket, but the total of all charges was $375. The third one was seven. The remainder will be $78 even.” (The repair tickets are not in the record before us, although the court reporter certified that all documentary evidence was included.)

The appellee testified further. The paint had some light scratches on it, but it turned out to be completely defective. All German cars have this problem: the clear lacquer coat cracks and flakes off. He asked them about it and in November of 1975 they offered to repaint it for $278. They ultimately offered him a cash settlement as authorized by their representative. (Plaintiff here introduced an estimate by the Foreign Body Shop that it would charge $1,065 to paint the ear.)

He would like to add that “it’s very difficult to decide how much you lose from a sale on these cars, because the local market runs so much less than the national market. I am confident that the fact that they had the car for a year trying to fix it and gave it a substantial amount of inattention, caused the value during that time to decrease by somewhere between $1,000 and $2,000.”

He is still driving the car, but its problem has returned and it needs other repairs.

No other proof of damages was offered.

In Texas the qualifications of a witness to give value testimony are knowledge of the general value-standard of things in that particular class and knowledge of the particular thing to be valued. The witness must have a knowledge of the market value (if there is one) in the vicinity, and it must be based in some degree on personal observation. Probably the most satisfactory rule is that anyone familiar with the values in question may testify. 2 McCormick & Ray, Texas Law of Evidence 257, Opinion Evidence § 1422 (1956).

When the owner of goods seeks to testify to their value, as distinguished from their value to him, the Texas rule is that he must show that he is qualified to do so; he is prima facie qualified to state it if he declares he knows the market value. 37 A.L.R.2d 998, citing many cases.

We agree with the appellants’ points of error stating that the plaintiff offered insufficient evidence as to his damages. Mr. Holland did not declare that he know the car’s market value. His testimony that its value decreased “by somewhere between $1,000 and $2,000” was lacking in certainty. A holding on damages may not be based on guess or surmise.

“While mathematical precision is not required to establish the extent or amount of one’s damages, one must bring forward the best evidence of the damage of which the situation admits, and there must be some basis for reasonable inferences.” Gulf Coast Investment Corp. v. Rothman, 506 S.W.2d 856, 858 (Tex.1974).

Evidence of unaccepted offers to buy or sell property is not competent evidence of its market value. Hanks v. Gulf, Colorado & Santa Fe Rwy. Co., 159 Tex. 311, 320 S.W.2d 333, 336 (1959). The paint shop’s estimate, absent testimony that the proposed work was reasonable and necessary, could not have been the basis for any recovery. Dallas Railway & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377 (1956). Further, it is impossible to determine how much of the car’s decline in market value was due to delay while waiting for the factory representative, as requested by the plaintiff. Finally, the testimony does not establish that all (or which part) of the items covered by the $375 in repair tickets were connected with efforts to make the engine run smoothly.

BMW’s ninth point asks that the judgment be set aside if any part of the judgment is for attorney’s fees because there is no evidence of the attorney’s time in preparation of the case. The plaintiff must show the reasonableness of any recovery of attorney’s fees. Volkswagen of America, Inc. v. Licht, 544 S.W.2d 442, 446 (Tex.Civ.App.1976, no writ); Texas Business & Commerce Code § 17.50(b)(1). There is no evidence to show what attorney’s fee would be “reasonable in relation to the amount of work expended” by the plaintiff’s attorney, and the judgment does not indicate that any damages were assessed for attorney’s fees.

The judgment of the trial court is reversed and remanded for a new hearing on the issue of damages.


text:
    David J. NAGLE, Appellant, v. Bill DUNCAN, Appellee.
    No. 17108.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 20, 1978.
    Rehearing Denied Aug. 17, 1978.

      David J. Nagle, Houston, for appellant.
    Conner & Dreyer, Jerry D. Conner, Houston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from a judgment for the plaintiff in an action for debt. The plaintiff, an official court reporter, sued the defendant, an attorney, for the cost of a transcript of the testimony adduced in a criminal trial which the attorney had ordered for use in an appeal.

As a general rule an agent is not personally liable on contracts made for a disclosed principal, in the absence of his express agreement to be bound. However, the agent of a known principal is not precluded from binding himself personally upon a contract if the agent has substituted his own responsibility for that of his principal, or has pledged his own responsibility in addition to that of his principal. American National Bank v. American Loan & Mortgage Company, 228 S.W. 169 (Tex.Com.App. Sec. A 1921, judgment adopted); Vincent Murphy Chevrolet Company v. Auto Auction, Inc., 413 S.W.2d 474 (Tex.Civ.App.—Eastland 1967, writ ref’d n. r. e.).

Although there are some cases for a contrary rule the majority rule has been stated by a commentator as follows:

“Applying the ordinary rule that an agent is not personally liable on a contract, made for his principal where the party with whom he is contracting knows that he is acting for another, and taking the view that an attorney incurring expenses in connection with litigation is ordinarily acting as an agent for the litigant, and that this is usually known to those with whom he deals, many courts have held that in such a situation the attorney is not personally liable for the charge in question, unless he expressly or impliedly assumes special liability therefor.” Annotation, Attorney’s Personal Liability for Expenses Incurred in Relation to Services for a Client, 15 A.L.R.3rd 531, 536.

In this case the plaintiff was the official court reporter at the trial of Cause No. 373826 entitled State vs. Excell Marks. On February 5th defendant was found guilty of a misdemeanor and by letter dated February 20th, 1974, addressed to the official court reporter, County Criminal Court No. 1, Harris County Court House, and referring to the style of the case above mentioned, a transcript of the proceedings was ordered. The letter read: “Please accept this letter as our request to you to prepare the transcript of the proceedings in the above matter as quickly as possible, in order that we may continue with the appeal of the conviction rendered February 5, 1974.” The letter was signed “Law Offices of David J. Nagle” followed by a signature line on which appears the signature of David J. Nagle.

Another letter dated March 13, 1974, addressed to Mr. Bill Duncan, Court Reporter, following the form used in the previous letter, reads: “Enclosed is the firm’s check in the amount of $150.00, as a deposit against the costs of the record to be prepared in the above matter.

“Please advise me when the record has been completed of the remaining charges.”

There was also introduced into the record a statement dated April 24,1974, billing Mr. Nagle for the costs of the statement of facts in Cause No. 373826 in the amount of $369.20, less $150.00 deposit, showing a balance due of $219.20.

A letter from Mr. Duncan addressed to Mr. Nagle dated October 7,1974, requesting payment of the sum of $219.20 was also introduced into evidence. Mr. Duncan testified that he received the $150.00 deposit and that no other money had been paid him for his services in preparing the statement of facts. He testified that it was his custom and generally the custom among court reporters in criminal courts that no transcript would be delivered to the attorney unless the charges were paid in full. He further testified that he knew the record was being ordered for the client and knew that Mr. Nagle was an attorney for the client. He did not deliver the transcript of testimony to Mr. Nagle, but he notified him that the record was ready and would be delivered on receipt of his check in the amount of $218.00.

Appellant contends by two points of error that there is no evidence that he agreed to be personally responsible for the costs of preparing the transcript of evidence. These points will not be sustained. The letter of March 13 constitutes sufficient evidence of the attorney’s intent to be personally responsible for the cost of the record to raise an issue of fact. Cowan v. Hulse & Allen, 273 S.W. 663 (Tex.Civ.App.—San Antonio 1925, no writ hist.); Currie v. Humble Oil & Refining Co., 16 S.W.2d 867 (Tex.Civ.App.—El Paso 1929, no writ hist.).

In Seale v. Nichols, 505 S.W.2d 251 (Tex.1974), the court said:

“. . . Texas law provides that in order for an agent to avoid liability for his signature on a contract, he must disclose his intent to sign as a representative to the other contracting party. Uncom-munieated intent will not suffice . .”

The cause of action on which this suit is based was for personal services rendered. By reason of Article 2226, Texas Rev.Civil Statutes, Ann. the plaintiff is entitled to recover a reasonable attorney’s fee. Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex.1962).

The judgment is affirmed.


author: PHILLIPS, Chief Justice.

text:
    Dorothy Walters PEEK, Appellant, v. Sam KELLY, Consumer Credit Commissioner, State of Texas, Appellee.
    No. 12768.
    Court of Civil Appeals of Texas, Austin.
    July 26, 1978.
    Rehearing Denied Aug. 31, 1978.
    Earl Rutledge, Fort Worth, for appellant.
    John L. Hill, Atty. Gen., Catherine Brown, Asst. Atty. Gen., Austin, for appel-lee.
   PHILLIPS, Chief Justice.

Appellant has appealed from a judgment of the trial court denying her application to do business as a pawnbroker. The trial court had granted the State’s motion for a summary judgment in the matter.

We affirm this judgment.

In 1975 appellant filed her application for a license to engage in business as a pawnbroker with the Consumer Credit Commissioner of this state. Such license is required by the provisions of Article 5069-51.-03, V.T.C.S. Pursuant to a hearing held by the Commissioner, her application was denied. The Commissioner determined that appellant had executed approximately 2900 “buy and sell” contracts during a period of time from May 10, 1973 until March 25, 1975. The Commissioner found such contracts to be pawn transactions and that appellant had acted unlawfully as a “pawnbroker” within the meaning of Article 5069-51.02 of the Texas Pawnshop Act. The Commissioner found that the appellant’s repeated violations of the Act demonstrated that she lacked such character as would warrant the belief that she would operate a pawnshop lawfully and fairly within the purposes of the Act. It was on this basis that he denied the application.

Appellant’s husband, Russell L. Peek, had engaged in business as a pawnbroker from 1955 until the Commissioner revoked his license on May 10, 1973. Prom 1955 appellant had participated on either a full or part-time basis with her husband in operating the East Gate Loan Company.

Subsequent to the May 10, 1973 license revocation, the Peeks continued to transact business at the same address using the name “East Gate Loan Company” on a publicly displayed sign while displaying a window sign reading “Pawn Shop.”

During the period from May 10, 1973 to March 25, 1975, appellant participated in the business of the East Gate Loan Company. During this time some 5800 thirty-day buy-sell contracts, described later in this opinion, were executed and appellant admits that she had knowledge of or participated in 2900 of these contracts. Not until appellant’s husband had been enjoined by the Commissioner from engaging in the business of pawnbroker without first obtaining a license as prescribed by law, and later, an order of commitment for contempt against her husband for violation of the injunction had been obtained by the Commissioner, did appellant finally cease to participate in the pawn business. Shortly thereafter, appellant made application for her own license which was denied as described above.

Appellant is before us on several points of error which, in effect, complain of the action of the trial court in granting summary judgment when there were material issues of fact to be ascertained as to whether or not appellant was engaged in pawn transactions without a license or whether or not appellant demonstrated such character and general fitness to warrant belief that she would operate a pawnshop business lawfully and fairly within the purpose of the Texas Pawnshop Act. We overrule these points.

In granting the summary judgment, the trial court found as a matter of law that appellant had engaged in at least 2900 pawn transactions without benefit of a license to engage in business as a pawnbroker between May 10, 1973, and March 25, 1975; that she was not denied due process of law in the denial of her application for a license; and that she did not demonstrate such character and general fitness as to warrant the belief that she would operate a pawnshop lawfully and fairly within the purpose of the Texas Pawnshop Act.

The threshold question here is whether appellant was engaged in the pawnshop business. We hold that she was.

“ ‘Pawnbroker’ — means any person engaged in the business of lending money on the security of pledged goods; or engaged in the business of purchasing tangible personal property on condition that it may be redeemed or repurchased by the seller for a fixed price within a fixed period of time.” (Article 5069-51.02(b), V.T.C.S.)
“ ‘Pledged goods’ — means tangible personal property other than choses in action, securities, or printed evidence of indebtedness, which property is deposited with or otherwise actually delivered into the possession of a pawnbroker in the course of his business in connection with a pawn transaction.” (Article 5069-51.-02(c), V.T.C.S.)

Appellant and her husband entered into what were called “buy-sell” contracts where persons pledged tangible personal property for money consideration on condition that it could be repurchased at a fixed price within a fixed period of time. The amounts charged for the transaction and the time' period provided under the contracts were identical to those used by the East Gate Loan Company in its pawn transactions pri- or to May 10, 1973. This “buy-sell” contract was identical to the contract used in pawn transactions, except for the title, which was changed to “30-day buy-sell contract.”

In her oral deposition, appellant admits to making loans on the security of pledged goods after the East Gate Loan Company license was revoked, to charging interest on transactions entered into after May 10, 1973, as on those executed prior to that date, when the East Gate Loan Company had a valid pawnbroker’s license. On the basis of the undisputed facts regarding the nature of the thirty-day buy-sell contracts, the Consumer Credit Commissioner and the trial court correctly found those contracts to be pawn transactions for which a pawnbroker’s license is required by Article 5069-51.03, V.T.C.S.

We also hold that the court was correct in holding, as a matter of law, that appellant did not demonstrate such character and general fitness as to warrant the belief that she would operate a pawnshop lawfully and fairly within the purposes of the Texas Pawnshop Act.

Standards for issuance a denial of a license to do business as a pawnbroker are set out in Article 5069-51.05 of the Texas Pawnshop Act:

“(a) On filing of such application, bond, proof of insurance, and payment of the annual license fee and an investigation fee of Two Hundred Dollars, the Commissioner shall investigate the facts and if he finds the financial responsibility, experience, character and general fitness of the applicant are such as to warrant the belief that the business will be operated lawfully and fairly, within the purposes of this Act, he shall grant such application and issue to the applicant a license which will evidence his authority to do business under the provisions of this Act.”

Based upon the facts evidenced by the pleadings, admissions and answers to interrogatories, depositions and affidavits on file, the trial court found, as a matter of law, that appellant does not have such character as would warrant the belief that she would operate a pawnshop lawfully and fairly within the purposes of the Act.

The uncontradicted testimony discloses, and the trial court so found, that appellant engaged in at least 2900 pawn transactions without benefit of a license to engage in business as a pawnbroker between May 10, 1973, and March 25, 1975. This evidence clearly demonstrates, as a matter of law, upon which reasonable minds could not differ, that she does not have such character as would warrant the belief that she would operate a pawn business lawfully and fairly within the purposes of the Act. See Pinkston v. Board of Insurance Commissioners of Texas, 165 S.W.2d 526 (Tex.Civ.App.1942, no writ).

Summary judgment is proper if the pleadings, depositions, affidavits, and admissions on file with the court disclose that there is no genuine issue as to any material fact. Parrott v. Garcia, 436 S.W.2d 897 (Tex. 1969).

The judgment of the trial court is affirmed.

Affirmed.


text:
    Alvin BANKS, Appellant, v. The STATE of Texas, Appellee.
    No. 12835.
    Court of Civil Appeals of Texas, Austin.
    July 26, 1978.
    Rehearing Denied Aug. 30, 1978.
    Ray Fisher, Fisher & Ashby, Austin, for appellant.
    James L. McMurtry, County Atty., B. Neal Stokey, Asst. County Atty., Austin, for appellee.
   PHILLIPS, Chief Justice.

This is an involuntary commitment case in which the State sought to have appellant involuntarily committed to a mental hospital for a period not exceeding ninety days under authority of the Texas Mental Health Code.

Trial was to the court which found that appellant was mentally ill and required observation and/or treatment in a mental hospital for his own welfare and protection or the protection of others.

Judgment was rendered that appellant be committed to a mental hospital for a period not to exceed ninety days.

We affirm this judgment.

Appellant is before us on a single point of error contending that the court erred in finding that appellant requires observation and/or treatment in a mental hospital for his own welfare and protection or the protection of others and in ordering appellant committed pursuant to said finding, because the evidence presented at the trial was factually insufficient to support the finding and the order. We overrule this point.

Article 5547-38(b) states that:

“If upon the hearing the court finds that the proposed patient is mentally ill and requires observation and/or treatment in a mental hospital for his own welfare and protection or the protection of others, the court shall order that the mentally ill person be committed as a patient for observation and/or treatment in a mental hospital for a period not exceeding ninety (90) days.” Acts 1957, 55th Leg., p. 505, ch. 243, § 38.

Here the only witness at the hearing was a medical doctor who testified that in his opinion the appellant was mentally ill, suffering from schizophrenia, paranoid type, and that he was psychotic. He stated that the factual basis for his diagnosis was formed from personal observation of and communication with appellant. The doctor testified that appellant appeared to be disoriented in time, place, and person; that he was not dangerous and that his behavior in an unstructured environment could not be predicted. The doctor further stated that in his opinion appellant required observation and/or treatment in a mental hospital for his own protection.

We hold that under the provisions of Article 5547-38(b), there was sufficient evidence to uphold the judgment.

The judgment of the trial court is affirmed.

Affirmed.

      . Article 5547, et seq., Vernon’s Civil Statutes.


text:
    The STATE of Texas, Appellant, v. Johnny Don JONES, Appellee.
    No. 12855.
    Court of Civil Appeals of Texas, Austin.
    July 26, 1978.
    James L. MeMurtry, Travis County Atty., B. Neal Stokey, Asst. County Atty., Austin, for appellant.
    Brian E. Berwick, Austin, for appellee.
   PHILLIPS, Chief Justice.

This is an appeal from an order of temporary hospitalization in a mental institution pursuant to article 5547-38 of the Texas Mental Health Code.

We dismiss the appeal.

The State sought to have Johnny Don Jones involuntarily committed to a mental hospital for a period not to exceed ninety days. Trial was to the court. It found that Jones required observation and/or treatment for his own welfare and protection or the protection of others. Judgment was rendered that Jones be committed to a mental hospital for sixty days followed by thirty days of outpatient treatment. The State has appealed.

The State is before this Court on two points of error. It contends that the court erred in entering its judgment because there is no evidence to support the judgment and because the Mental Health Code does not authorize a combination of hospitalization and outpatient treatment.

We do not reach these points because, in our opinion, the State has no appeal from an order of temporary hospitalization.

Appeal from an order of temporary hospitalization is governed by Section 39a of the Texas Mental Health Code. Section 39a provides:

“The person ordered committed may appeal the Order of Temporary Hospitalization by filing written notice thereof with the County Court within five (5) days after the Order of Temporary Hospitalization is entered.” (Emphasis added)

The Code further provides for transmittal of “a certified copy of the proceedings to the Court of Civil Appeals of the county,” for a stay of the Order of Temporary Hospitalization, and that “Such cases shall be advanced on the docket and given a preference setting over all other cases.”

Clearly, under the applicable provision of the Code only the person ordered committed may appeal the order of temporary hospitalization. The State is not entitled to appeal under these provisions.

Nor do we think that the State has a right to appeal an order of temporary hospitalization under article 2249, Tex.Rev.Civ. Stat.Ann. (1971), which provides a general right of appeal from all final judgments. That article provides that “an appeal or Writ of Error may be taken to the Court of Civil Appeals from every final judgment of the district court in civil cases, and from every final judgment in the county court in civil cases of which the county court has original jurisdiction . . . ” However, we find the omission of any right of appeal in the state from Section 39a of the Texas Mental Health Code to be controlling, cf. C_L_B_ and L_J_B_ v. State of Texas, Supreme Court of Texas, 567 S.W.2d 795 (1978).

It is a well-settled rule of statutory construction that a specific statute evidences the intention of the Legislature more clearly than a general one, and therefore should control. Townsend v. Terrell, 118 Tex. 463, 16 S.W.2d 1063 (1929); see also American Canal Company of Texas v. Dow Chemical Co., 380 S.W.2d 662 (Tex.Civ.App.1964, writ dism’d). An act containing specific provisions controls, and prevails over, a prior act dealing with the subject generally. See 53 Tex.Jur.2d statutes, § 111, at 161 (1964), and authorities cited. Moreover, “the existence or nonexistence of a particular intent may be inferred from the fact that an act does not contain a certain provision.” 53 Tex.Jur.2d statutes, § 131, at 194, and authorities cited.

In the case at bar, Section 39a of the Code gives only the “person committed” the right to appeal an order of temporary hospitalization. The State is not specifically given the right to appeal by this section. Accordingly, we hold that the State has no right of appeal from an order of temporary hospitalization, cf. C_L_B_ and L_J_B_ v. State of Texas, supra.

Appeal is dismissed.

Appeal Dismissed.

      . Article 5547-39b.

      . Article 5547-39C.

      . Article 5547-39d.


author: McKÁY, Justice.

text:
    Oliver H. THOMPSON, M. D., et al., Appellants, v. The TEXAS STATE BOARD OF MEDICAL EXAMINERS, Appellees.
    No. 1146.
    Court of Civil Appeals of Texas, Tyler.
    July 27, 1978.
    Rehearing Denied Aug. 31, 1978.

      Harry Louis Zimmermann, Zimmermann, Driscoll & Baskett, Ennis E. Walden, Walden & Trice, James G. Vetter, Elliott, Meer, Vetter, Denton & Bates, Dallas, for appellants.
    John L. Hill, Atty. Gen., Bill Campbell, David M. Kendall, R. Steve Bickerstaff, Jr., Asst. Attys. Gen., Austin, for appellees.
   McKÁY, Justice.

Appellants, Dr. Oliver H. Thompson and Dr. Raul Baptista Mascarenhas, appealed from orders of appellee, Texas State Board of Medical Examiners, revoking their licenses to practice medicine in this state. The Board stayed the orders and placed both doctors on probation for a ten-year period. On appeal the district court concluded the orders had reasonable support in substantial evidence. We affirm the judgment of the trial court.

The Board charged both doctors with violating Sections (12) and (15) of Article 4505, Tex.Rev.Civ.Stat.Ann., for permitting an unlicensed person to practice medicine in the State of Texas for the purpose of treating or offering to treat sick, injured or afflicted human beings in that they allowed unlicensed individuals to practice acupuncture in their respective offices. Article 4506, Tex.Rev.Civ.Stat.Ann., provides that the Board shall have the right to cancel or revoke the license of any practitioner of medicine for any cause for which the Board was authorized to refuse to admit persons to its examination, as provided in Article 4505. Article 4505 reads in pertinent part:

“The State Board of Medical Examiners may refuse to admit persons to its examinations, and to issue license to practice medicine to any person, for any of the following reasons:
“(12.) The impersonation of a licensed practitioner, or permitting, or allowing, another to use his license, or certificate to practice medicine in this State, for the purpose of treating, or offering to treat, sick, injured, or afflicted human beings.
“(15.) The aiding or abetting, directly or indirectly, the practice of medicine by any person not duly licensed to practice medicine by the Texas State Board of Medical Examiners.”

Appellants answered that the complaint failed to set forth sufficient information to enable them to adequately prepare a defense, did not specify with particularity the nature of the alleged violation, and did not specify how acupuncture constitutes the practice of medicine by statute or regulation within the jurisdictional limits of the Board. Appellants further answered that acupuncture does not constitute the practice of medicine and that any attempt by the Board to include acupuncture within its jurisdiction is void as being overbroad and vague, since the statute fails to specify a proper standard of conduct and permits arbitrary and erratic enforcement.

Separate hearings for each appellant were held before the Board on October 2, 1975. On October 3, 1975, the Board issued separate orders cancelling appellants’ licenses to practice medicine, but stayed the execution of such order and placed appellants on probation for ten years.

Appellants filed separate but identical petitions in district court, and the two causes were consolidated for trial. In substance, appellants alleged that the Board abused its discretion in failing to grant appellants a continuance in the administrative proceeding due to counsel’s inability to prepare for such a unique proceeding on such short notice; that the Board failed to introduce the pertinent statute into evidence, failed to establish that acupuncture was included in the practice of medicine, and failed to give appellants due process and a fair hearing. They further alleged that the Board’s order did not contain any findings of fact to support its conclusion and did not answer the constitutional issues raised by appellants. Appellants also alleged that a resolution promulgated and considered by the Board was not an effective rule or regulation of the Board and was without force and effect, or, in the alternative, was so vague that the same could not be interpreted in a rational manner and that acupuncture is a form of physiotherapy outside the definition of the practice of medicine contained in Article 4510a, Tex.Rev.Civ.Stát. Ann.

Appellants further alleged that the Board’s action violated the fundamental rights of appellants as guaranteed by the First, Fifth, Eighth and Fourteenth Amendments of the United States Constitution and Article I, Sections 3 and 19 of the Constitution of the State of Texas in that such action violated the right of a physician to pursue his chosen profession free from unnecessary interferences, the physician’s right to provide adequate medical treatment, and the right of patients to receive medical treatment of their choosing.

John T. Richter, an employee' of the Board, conducted the investigation of appellants. On July 21, 1975, Richter, using the name B. L. Thomas, went to Dr. Thompson’s office complaining of bursitis in his right shoulder. Dr. Thompson checked Richter’s blood pressure and examined him using a stethoscope. Dr. Thompson then took Richter to an examining room and introduced him to Pechi Ping, an oriental female. She placed four needles in the right shoulder area and one needle beside the right small finger. Dr. Thompson was present at that time. Ping then manipulated the needles and she and Dr. Thompson left the room. She returned on three occasions to manipulate the needles. Dr. Thompson returned with her on two of these occasions. Ping then returned and removed the needles. Richter paid a receptionist for the treatment and left.

On July 22, 1975, Richter, alias Thomas, went to the office of Dr. Mascarenhas for treatment of bursitis in his right shoulder. Richter discussed his “ailment” with Dr. Mascarenhas who then led him to an examining room and left. A Dr. Hsu then entered the examining room, placed a bowl of needles on a table and departed. Hsu then returned and inserted four needles in the top of Richter’s right shoulder and three in the lower portion of the shoulder and left the room. Dr. Mascarenhas checked on the patient momentarily during the treatment, asking if it hurt. After approximately fifty minutes Hsu removed the needles and Richter departed the premises after paying $50.00 to the receptionist.

Prior to the institution of this investigation, on December 2,1974, the Board issued a policy statement in which acupuncture was included in the practice of medicine under the Texas Medical Practice Act. The Board also stated that “any person performing Acupuncture who is not a licensed physician . . . would be practicing medicine without a license . . . ” and “a licensed physician may not delegate to any person not licensed to practice medicine in the State of Texas the authority to perform acupuncture.”

On September 10, 1975, written charges under oath were filed with the Board charging appellants with violations of subdivisions (12) and (15) of Article 4505, Tex. Rev.Civ.Stat.Ann. Copies of the charges were served upon Dr. Thompson on September 10, 1975, and upon Dr. Mascarenhas on September 15, 1975. The charges gave notice that the Board would hold a hearing upon the complaint on October 2, 1975. At the hearing on October 2, 1975, both appellants moved for a continuance in order to have more time in which to adequately prepare a defense. The motions were denied by the Board.

On October 3, 1975, the Board entered separate orders cancelling appellants’ licenses to practice medicine in the State of Texas, staying execution of the orders and placing appellants upon probation for a period of ten years, which orders are the subject of this appeal.

The cases were consolidated for trial in the court below. The judgment of the trial court affirmed the Board’s order.

Appellants challenge the constitutionality of the Board’s action and the trial court’s findings and judgment as unnecessary and unreasonable governmental interference with the rights of appellants to practice medicine, as violative of their right of equal protection of the laws, and violative of a patient’s right to free choice of medical treatment.

The Board contends that the laws and regulations used need only have a reasonable relation to the object to be attained and that such laws be neither arbitrary nor capricious; the object to be attained is to protect the public from unlicensed, fraudulent and incompetent practitioners of medicine.

Appellants filed a reply to appellee’s brief and therein for the first time on appeal asserted that the Board erroneously included acupuncture within the “practice of medicine.” Art. 4510, Tex.Rev.Civ.Stat. Ann. In our opinion acupuncture is properly included within the practice of medicine. We are supported in this view by courts of other jurisdictions. Doskow v. Nyquist, 58 A.D.2d 725, 396 N.Y.S.2d 295 (1977); State v. Rich, 44 Ohio St.2d 195, 339 N.E.2d 630 (1975); State v. Won, 19 Or.App. 580, 528 P.2d 594 (1974); People v. Amber, 76 Misc.2d 267, 349 N.Y.S.2d 604 (1973); 72 A.L.R.3d 1257.

Appellants contend that their fundamental rights have been violated requiring the Board to show a “compelling state interest” in order to support its action. We disagree. Appellants rely upon Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), to support their position that fundamental rights are involved. However, the rights asserted by appellants have not been recognized as fundamental. Therefore, the State is not required to show a compelling state interest. See Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).

The rights asserted by appellants must be tested under the rule announced by the Supreme Court of the United States in Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934):

“The Fifth Amendment, in the field of federal activity, and the Fourteenth, as respects state action, do not prohibit governmental regulation for the public welfare. They merely condition the exertion of the admitted power, by securing that the end shall be accomplished by methods consistent with due process. And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. It results that a regulation valid for one sort of business, or in given circumstances, may be invalid for another sort, or for the same business under other circumstances, because the reasonableness of each regulation depends upon the relevant facts.
“The reports of our decisions abound with cases in which the citizen, individual or corporate, has vainly invoked the Fourteenth Amendment in resistance to necessary and appropriate exertion of the police power. . . . ”

The police power of the State includes the power to enact comprehensive, detailed and rigid regulations for the practice of medicine, surgery and dentistry. Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623 (1889); Douglas v. Noble, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590 (1923); Garcia v. Texas State Board of Medical Examiners, 384 F.Supp. 434 (D.C.1974), aff’d. 421 U.S. 995, 95 S.Ct. 2391, 44 L.Ed.2d 663. There is no right to practice medicine which is not subordinate to the police power. Lambert v. Yellowley, 272 U.S. 581, 47 S.Ct. 210, 71 L.Ed. 422, 49 A.L.R. 575; Garcia v. Texas State Board of Medical Examiners, supra.

As stated in Garcia at p. 437,

“The needs of the general public for highly qualified, licensed healers and the right of the State of Texas under its police powers to regulate such practitioners must be weighed against the alleged abridgment of plaintiffs’ constitutional rights.
“This right of a State to regulate under its police powers all aspects of the practice of medicine and thereby help provide for the general health and welfare of its citizens is of such vast importance as to approach the status of a duty. Nothing is more fundamental than the rights of the various States to furnish the people competent health services and as a direct corollary to this right they have a corresponding duty to carefully prescribe minimum requirements for the licensing of those administering medical and surgical services. This is a highly specialized field of experts daily dealing with the very lives of the citizenry and the State must, therefore, insure as best it can the competency of these experts. Therefore, for this Court to disturb this right it must be clearly demonstrated that the State is in this case engaged in an unreasonable exercise of its reserved police power.”

The statutes in question and the actions of the Board clearly have a real and substantial relation to the object sought to be attained. The State seeks to protect the general health, safety and welfare of all its citizens through the actions of its Board of Medical Examiners. There can be no doubt of the potential for harm through fraud or incompetence of unlicensed practitioners of medicine.

Though acupuncture treatment may not be readily available or may be difficult to obtain, such a situation*does not present sufficient reason for holding that unlicensed persons may perform the procedure. The Board has not precluded any patient from receiving acupuncture treatments. By requiring only licensed physicians to administer acupuncture treatments, the Board fulfilled its duty to the people of this State to insure as best it can the competency of those practicing medicine.

In examining the abortion cases cited to us by appellants we find that while a pregnant woman cannot be deprived of the right to an abortion during the first trimester of her pregnancy, the State may permissibly regulate certain actions during that period of time. Two examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion and as to the licensure of that person. Roe v. Wade, 410 U.S. 113, 163, 93 S.Ct. 705, 732, 35 L.Ed.2d 201. Such language is analogous to the ease before us. While the State may not constitutionally proscribe acupuncture within its boundaries, the State Board may permissibly prescribe requirements as to the qualifications and licensure of the person who is to administer the acupuncture treatment.

We turn now to appellants’ contention that they have been denied equal protection of the law. Appellants contend that the Board condoned the use of nonli-censed and nonmedical persons to administer inoculations and draw blood and that to censure the doctors for the use of nonli-censed personnel to administer acupuncture unconstitutionally discriminates against appellants. We find no merit in this contention.

In discussing appellants’ due process theory, we noted that the courts apply a more stringent test when the rights are fundamental. A similar test is used by the courts in the equal protection area. When fundamental civil rights are in question, the courts will closely scrutinize the action of the state, and the burden, as in the due process area, then falls upon the State to show a compelling state interest. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Shapiro v. Thompson, supra; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). As previously stated we are not involved in the area of fundamental rights in the case before us.

The reasons for the classification are manifest. We have already discussed the relation to the public health, safety and welfare and the danger of fraud or incompetence on the part of acupuncture practitioners. We agree with appellee that there are very important distinctions between the use of acupuncturists and the use of nonli-censed personnel to administer shots and draw blood. A physician generally has a thorough knowledge of the treatment prescribed, its effects and the possible dangers inherent in its use. He also can easily ascertain whether such treatment is properly performed by the assistant. To a great extent, such is not the case with acupuncture. Western society now realizes that in certain instances acupuncture is of some benefit in the treatment of patients. However, all physicians licensed in this state do not have even a general knowledge of acupuncture treatments, making it difficult to discern a competent acupuncture practitioner from a fraudulent purveyor of the medicinal art.

We hold that it is properly within the power of the Board of Medical Examiners to regulate acupuncture as the practice of medicine. In our opinion the State of Texas and the Board of Medical Examiners would betray their public trust to permit unlicensed persons to practice medicine.

In the future acupuncturists may be licensed to practice their art in Texas. However, the Legislature should make that determination, not the courts. The Board has shown a reasonable basis for the classification. See Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911).

In view of the foregoing discussion we overrule appellants’ points of error one, two, three and four.

In point of error five, appellants contend the trial court erred in holding the actions of the Board have reasonable support in substantial evidence. We disagree.

Upon appeal of the Board’s order to the district court, the proceeding is under the substantial evidence rule. Tex.Rev.Civ. Stat.Ann. art. 4506 (1976). The order is presumed to be valid and the burden is upon the one appealing from the order to show that the order appealed from is not reasonably supported by substantial evidence, existing at the time of the entry of the order. Gibraltar Savings & Loan Association v. Falkner, 371 S.W.2d 548, 549 (Tex.1963), and cases cited therein.

The evidence is for the most part undisputed. Appellants themselves testified that they used unlicensed acupuncturists in their offices to administer the treatments. After examining the entire record we find there is reasonable support by substantial evidence for the Board’s order. Appellants’ point of error five is overruled.

Appellants contend in point of error six that the trial court erred in finding that the utilization by appellants of the services of oriental persons to provide acupuncture therapy constituted a violation of Tex.Rev.Civ.Stat.Ann. art. 4505, secs. (12) and (15). The argument following the point continues to attack the Board’s action on equal protection grounds. We have already discussed the equal protection argument and found such to be without merit. Therefore, appellants’ point of error six is overruled.

Practitioners in other areas of the healing arts have been excluded from the definition of “practicing medicine” by the Legislature. Tex.Rev.Civ.Stat.Ann. art. 4512b (chiropractors); art. 4512c (psychologists); art. 4512d (athletic trainers); art. 4512e (physical therapists); art. 4512f (social phycho-therapists); arts. 4513-4528c (nurses); art. 4542a (pharmacy); arts. 4543-4551h (dentists); art. 4552-1.02 (optometrists); arts. 4567-4575a (podiatrists). Accordingly, the question of whether practitioners of acupuncture should be licensed separately and apart from physicians should be answered by the Legislature.

Appellants contend in their seventh point of error that the Board abused its discretion in refusing to grant their motion for continuance and such refusal thereby violated their rights to due process. The doctors argue that they did not have sufficient time to properly prepare their defense. We do not believe that the Board abused its discretion thereby depriving appellants of their right to due process.

The proceedings of an administrative agency must meet the requirements of due process of law. However, the strict rules applicable to courts do not apply to administrative agencies. Nevertheless, they are subject to the general legal principles regulating judicial tribunals. Superior Oil Co. v. Railroad Commission of Texas, 519 S.W.2d 479, 483 (Tex.Civ.App.—El Paso 1975, writ ref’d n. r. e.). “The basic elements of due process are notice, hearing, and an impartial trier of facts. See City of Houston v. Fore, 412 S.W.2d 35 (Tex.1967). Due process does not require that the hearing conform to judicial process. F.C.C v. W.J.R., the Good Will Station, 337 U.S. 265, 69 S.Ct. 1097, 93 L.Ed. 1353 (1949); Reetz v. Michigan, 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563 (1903). . . The ultimate test of due process of law in an administrative hearing is the presence or absence of rudiments of fair play long known to our law. Reavley, Substantial Evidence and Insubstantial Review in Texas, 23 S.W.L.J. 239 (1969).” Martinez v. Texas State Board of Medical Examiners, 476 S.W.2d 400, 405 (Tex.Civ.App.—San Antonio 1972, writ ref’d n. r. e.).

Article 4506, Tex.Rev.Civ.Stat. Ann., provides that notice of a hearing to revoke or cancel one’s license shall be served upon the respondent or his counsel at least ten days prior to the hearing. The notice, hearing and review provided for in Article 4506 does not deprive a respondent of due process in violation of the United States Constitution. Martinez v. Texas State Board of Medical Examiners, supra.

According to the stipulations between the parties, copies of the charges and notice of the hearing set for October 2, 1975, were served upon Dr. Thompson on September 10, 1975, and upon Dr. Mascare-nhas on September 15, 1975. The hearing was held on that date. At the least, appellants had seventeen days notice of the hearing. This notice provided appellants with seven more days than required under Art. 4506. At the hearing appellants were represented by counsel and were able to cross-examine those witnesses testifying against them.

Appellants fail to set out what evidence, if any, they were prohibited from presenting, or what actual injury, if any, they suffered because the Board refused to grant a continuance of the hearing. Based on the record before us, we cannot say that the Board abused its discretion in failing to grant a continuance thereby depriving appellants of due process of law. Appellants’ point of error seven is overruled.

We turn finally to appellants’ contention that the cancellation and revocation of their licenses to practice medicine probated for a period of ten years with certain conditions constituted cruel and unusual punishment. Appellants direct our attention to Waller v. State, 68 S.W.2d 601 (Tex.Civ.App.—Amarillo 1934, writ ref’d), wherein the court reversed and remanded for trial the trial court’s revocation of a dentist’s license due to misrepresentation for the purpose of soliciting or obtaining business. The dentist had advertised that he was the only dentist in the Panhandle providing professional denture work, which statement the jury found to be false. The statute in question required revocation of the license for any violation. In reversing the conviction, the court stated, “We decline to set a precedent for the infliction of ‘cruel and unusual punishment.’ ” While we agree with the court in Waller, we believe the case at bar is distinguishable in several respects.

The revocation of appellants’ licenses was probated for a period of ten years. The conditions imposed upon appellants are not unreasonable. A violation of any of the grounds of probation would likewise be grounds for cancellation or revocation in and of itself. Appellants are as free to practice medicine now as they were prior to the Board’s action, with the exception that they may not permit unlicensed individuals to perform acupuncture.

Additionally, we are concerned here with a violation amounting to more than “puffing one’s wares” or “big talk.” See Waller v. State, supra at 604. Also, the court in Waller was dealing with a statute which called for a mandatory revocation regardless of the severity of the violation. We have previously discussed how the Board’s action relates to the public health, safety and welfare.

Finally, we are not concerned here with a mandatory revocation for a violation of the statute. The court in Waller expressed serious misgivings as to the statute there in question. We have no such reservations about the statute now before us. Therefore, we do not find the punishment imposed on appellants to be “cruel and unusual.” See Doskow v. Nyquist, supra. Accordingly, appellants’ point of error eight is overruled.

The judgment of the trial court is affirmed.

      . Appellants’ points of error one through four.

      . We note here an unpublished case from the Superior Court of the District of Columbia, Wensel v. Washington, relied upon by appellants and appearing as an appendix in another District of Columbia case, Lewis v. District of Coiumbia Commission on Licensure to Practice the Healing Art, 385 A.2d 1148, (D.C.App.,1978). Both cases include acupuncture within the practice of medicine, and both cases hold that the rights involved here are not fundamental.

      . We are not saying the appropriate test of the Board’s action is that enunciated in Roe. On the contrary, as stated supra, Nebbia provides the proper test. However, if such regulation is permissible when the burden is upon the State to show a compelling interest, the same regulation is certainly permissible where the State is not under so onerous a burden.

      . Tex.Const. Art. I., sec. 3, U.S.Const., Amend. 14.