author: WALKER, Justice. McGEE, Justice

text:
    LOWER COLORADO RIVER AUTHORITY, Petitioner, v. CITY OF SAN MARCOS, Texas, Respondent.
    No. B-4663.
    Supreme Court of Texas.
    May 7, 1975.

      Small, Craig & Werkenthin, C. C. Small, Jr. and Lawrence S. Smith, Austin, for petitioner.
    McGinnis, Lochridge & Kilgore, James W. Wilson, Austin, for respondent.
   WALKER, Justice.

The opinion delivered in this case on December 11, 1974, is withdrawn, and the following is substituted therefor:

This suit was brought by the City of San Marcos against the Lower Colorado River Authority to obtain: (1) a judgment declaring that San Marcos has power to regulate the rates charged by LCRA for the sale of electricity at retail within the city limits and that resolutions of LCRA’s Board of Directors increasing rates were void for noncompliance with the open meeting law, Art. 6252-17, and (2) for an injunction restraining LCRA from collecting rates in excess of those authorized by San Marcos. LCRA counterclaimed for declaratory relief to the contrary and an adjudication that the City’s rate ordinance was void for lack of notice to LCRA.

The trial court entered judgment declaring that San Marcos has no jurisdiction over rates charged by LCRA for the sale of electricity, that the City’s rate ordinance is void, and that rate increases ordered by LCRA in 1972 and 1973 are invalid. Both parties perfected appeals, although San Marcos did not complain of the trial court’s action in holding its rate ordinance invalid. The Court of Civil Appeals: (1) reversed the trial court’s judgment with respect to the regulatory jurisdiction of San Marcos and rendered judgment that San Marcos has exclusive power, after notice and hearing, to regulate by ordinance LCRA’s rates for electricity sold within the city limits; and (2) affirmed the trial court’s judgment in all other respects. Tex.Civ.App., 508 S.W.2d 403. We modify the judgment of the Court of Civil Appeals to declare that the 1973 rate increase ordered by the LCRA is not invalid, and as so modified the judgment of the Court of Civil Appeals is affirmed.

All of the material facts were stipulated in the trial court. San Marcos is a municipal corporation located in Hays County, and is incorporated as a home rule city under Article XI, Section 5, of the Texas Constitution, Vernon’s Ann.St. The city charter expressly authorizes the City Council to regulate by ordinance the rates of every public utility operating in the city. LCRA was created by Article 8280-107 as a conservation and reclamation district under the authority of Article XVI, Section 59, of the Texas Constitution. It is authorized to develop and generate water power and electric energy within its boundaries and to distribute and sell the same within and without its boundaries. San Marcos and Hays County are not within the boundaries of LCRA. In 1939 LCRA acquired from Texas Power & Light Company the electrical distribution system serving the residents of San Marcos, including a 50-year franchise granted by the City in 1925. The system is now operated by LCRA under a 10-year franchise granted by the City in 1967.

Prior to 1972 San Marcos made no attempt to regulate rates charged by LCRA for electric service, but it has from time to time claimed regulatory jurisdiction over rates. LCRA has consistently denied that San Marcos has any power with respect to rates, and there has been a continuing controversy between the parties on that question. On October 19, 1972, the LCRA Board of Directors adopted a resolution substantially increasing its retail electric rates, including those charged in San Marcos, effective with the first monthly billing period after January 1, 1973. On December 15, 1972, the City Council passed on first reading an ordinance regulating electrical rates in the city. The rates prescribed by the ordinance are those that were being charged in San Marcos at that time. The ordinance was finally adopted on December 19, 1972, and LCRA was notified the following day. LCRA made no reply but put its increased rates into effect in January, and this action was brought shortly thereafter.

The brief of LCRA in the Court of Civil Appeals refers to “the power claimed by San Marcos under § 12 of Article 1175.” It argued that the words “person, firm or corporation” as used in the statute do not embrace a municipal corporation such as LCRA, and that the statute does not contemplate regulation of rates charged by a governmental agency. This was treated by the Court of Civil Appeals as an “implied limitation” argument, and with good reason since Article 1175 could have no other bearing on the case. The intermediate court concluded that Subdivision 12 of Article 1175 simply makes clear the constitutional power of home rule cities to regulate the rates of all utilities, including LCRA, rendering service to their inhabitants. We do not attempt to explore that question, because LCRA now recognizes, and properly so, that “any construction of Article 1175 is immaterial” in the present case.

A home rule city derives its power not from the Legislature but from Article XI, Section 5, of the Texas Constitution. Accepting cities and towns of more than 5,000 population have “full power of self-government, that is, full authority to do anything the legislature could theretofore have authorized them to do. The result is that now it is necessary to look to the acts of the legislature not for grants of power to such cities but only for limitations on their powers.” Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282. Where Article 1175 indicates that a power is to be exercised by the “governing authority” or specifies the procedure to be followed, the statutory provisions may be regarded, in some instances at least, as limitations on the power of the city to delegate the power to other officials or act in any other manner. See Burch v. City of San Antonio, Tex.Sup., 518 S.W.2d 540. In view of the explicit provisions of Article 1176, however, the enumeration of powers in Article 1175 may never be construed as an implied limitation on the exercise by a home rule city of all powers incident to the enjoyment of local self-government.

The powers of home rule cities are subject to and may be limited only by their charters or by the Constitution or by general law. In this instance there is no limitation in either the Constitution or the charter, and the parties agree that the case turns on whether Section 8 of the LCRA Act, Article 8280-107, constitutes a legislative limitation upon the power of San Marcos as a home rule city with respect to LCRA rates. Section 8 of the Act provides as follows:

Sec. 8. The Board shall establish and collect rates and other charges for the sale or use of water, water connections, power, electric energy or other services sold, furnished, or supplied by the District which fees and charges shall be reasonable and nondiscriminatory and sufficient to produce revenues adequate;
(a) to pay all expenses necessary to the operation and maintenance of the properties and facilities of the District;
(b) to pay the interest on and principal of all bonds issued under this Act when and as the same shall become due and payable;
(c) to pay all sinking fund and/or reserve fund payments agreed to be made in respect of any such bonds, and payable out of such revenues, when and as the same shall become due and payable; and
(d)to fulfill the terms of any agreements made with the holders of such bonds and/or with any person in their behalf.
Out of the revenues which may be received in excess of those required for the purposes specified in subparagraphs (a), (b), (c) and (d) above, the Board may in its discretion establish a reasonable depreciation and emergency fund, or retire (by purchase and cancellation or redemption) bonds issued under this Act, or apply the same to any corporate purpose.
It is the intention of this Act that the rates and charges of the District shall not be in excess of what may be necessary to fulfill the obligations imposed upon it by this Act. Nothing herein shall be construed as depriving the State of Texas of its power to regulate and control fees and/or charges to be collected for the use of water, water connections, power, electric energy, or other service, provided that the State of Texas does hereby pledge to and agree with the purchasers and successive holders of the bonds issued hereunder that the State will not limit or alter the power hereby vested in the District to establish and collect such fees and charges as will produce revenues sufficient to pay the items specified in subparagraphs (a), (b), (c) and (d) of this Section 8, or in any way to impair the rights or remedies of the holders of the bonds, or of any person in their behalf, until the bonds, together with the interest thereon, with interest on unpaid installments of interest and all costs and expenses in connection with any action or proceedings by or on behalf of the bondholders and all other obligations of the District in connection with such bonds are fully met and discharged.

LCRA emphasizes: (1) the provision that the Board shall establish and collect rates and other charges for the sale or use of electric energy supplied by the District, and (2) the statutory pledge that the State will not limit or alter the power vested in the District to establish and collect such fees and charges as will produce revenue sufficient to pay the items specified in sub-paragraphs (a), (b), (c) and (d) of Section 8 or in any way to impair the rights or remedies of bondholders. LCRA then argues that in view of these provisions and under our holding in Lower Colorado River Authority v. McCraw, 125 Tex. 268, 83 S. W.2d 629, it is clear that the Legislature intended to withdraw from home rule cities power to regulate rates charged by LCRA for the sale of electric energy within the city limits. We do not agree.

A limitation on the power of home rule cities by general law or by charter may be either an express limitation or one arising by implication. “Such a limitation will not be implied, however, unless the provisions of the general law or of the charter are clear and compelling to that end.” Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645. The intention of the Legislature to impose such limitations must “appear with unmistakable clarity.” City of Sweetwater v. Geron, Tex.Sup., 380 S.W. 2d 550. The statute here: (1) authorizes the Board to establish and collect rates and other charges; (2) provides that nothing therein shall be construed to deprive the State of its power to regulate rates and charges; and (3) further provides that the power reserved to the State will not be exercised in such manner as to impair the rights and remedies of bondholders or deprive LCRA of the right to fix and collect such fees and charges as will produce revenue sufficient to meet certain specified obligations.

The decision in Lower Colorado River Authority v. McCraw, 125 Tex. 268, 83 S.W.2d 629, is not helpful here. The question there was not whether LCRA was exempt from rate regulation but whether there was unlawful delegation of power to the Board. In our opinion the statute means precisely what it says, i.e., that the LCRA Board will establish rates and charges in the first instance, that its action in that respect is subject at all times to the power of regulation reserved to the State, and that this reserved power will not be exercised in a manner that will prejudice bondholders or prevent the collection of revenues required for the purposes designated in the four subparagraphs. The proviso is the only express limitation on the power of home rule cities to regulate rates charged by LCRA for service to customers within their corporate limits, and no additional limitation is clearly compelled or even warranted by the provisions of the statute. The Legislature reserved to the State power to regulate LCRA rates subject only to the terms of the proviso, and this reserved power may be exercised by San Marcos with respect to rates for electricity sold within the city limits.

The present case is thus somewhat similar to Trinity River Authority v. Texas Water Rights Commission, Tex.Civ.App., 481 S.W.2d 192 (wr. ref. n.r.e.). The original 1955 statute creating the Trinity River Authority provided that nothing therein would impair the authority granted to the State Board of Water Engineers under the general laws to prescribe rates governing the sale of surface water by or to the Authority. It further provided that where revenue bonds were outstanding, the Board of Directors were under the duty to fix rates and charges for sales and services sufficient to pay expenses, meet bond maturities, and comply with the resolution authorizing, and the trust indenture securing, the bonds. The statute was amended in 1969 to authorize acquisition of the “Devers Canal System” but with the requirement that only revenue bonds be used for that purpose. It was contended by the Authority and its bondholders that the Texas Water Rights Commission, successor to the Board of Water Engineers, had no power to fix rates charged by the Authority on the Devers system. The court concluded that the Legislature had established “a regulatory scheme in which two rate making bodies have serial jurisdiction.” It observed that under Article 7560 et seq. the Commission was authorized to fix reasonable rates for furnishing of water on petition by anyone served by a water improvement or irrigation district. Nothing was in the original statute creating the Authority or in the subsequent amendments conflicting or inconsistent with the regulatory power of the Commission, and it was accordingly held that water rates fixed by the Authority were subject to revision by the Commission on petition by the Authority’s customers.

There is no essential conflict or inconsistency in the scheme of regulation provided by the Lower Colorado River Authority Act. In the absence of a valid rate ordinance adopted by San Marcos, the LCRA Board will continue to set rates as in the past. If and when San Marcos wishes to adopt a rate ordinance, it will notify LCRA, give due consideration to the rates fixed or requested by the LCRA Board of Directors, and prescribe rates determined to be proper under the circumstances. If San Marcos should exercise its power in a manner that violates the proviso in Section 8 of Article 8280-107, the ordinance will be subject to attack in the courts just as an ordinance regulating the rates of a private utility may be attacked on the ground that it is confiscatory or does not provide a reasonable return.

San Marcos has not complained of the trial court’s holding that its rate ordinance of December 19, 1972, is void for lack of notice to LCRA, and that question will not be considered. LCRA does complain of the holding that its 1972 and 1973 attempts to increase rates were ineffectual. The first effort to increase rates was made at a meeting of the Board of Directors on October 19, 1972. The notice of that meeting made no reference to rates. Another meeting was held on May 24, 1973, the day the present case went to trial, and the notice of this meeting concluded with a statement that the Board would consider other matters concerning the Authority’s operations “including the ratification of the prior action of the Board taken on October 19, 1972, in response [sic] to changes in electric power rates for electric power sold within the boundaries of the City of San Marcos, Texas.” Two resolutions adopted by the LCRA Board at the 1973 meeting purported to: (1) ratify, confirm and readopt “all actions heretofore taken by the Board on October 19, 1972, with respect to rates for the sale of electricity at retail”; and (2) order that, in the event it should be determined by any court of competent jurisdiction that the action of the Board at the earlier meeting was ineffective for any reason, the same rate increases be adopted with the changes to be effective June 1, 1973.

The notice of the 1972 meeting did not comply with the open meeting law, Art. 6252-17, § 3A, in so far as the subject of rates is concerned, and the trial court properly held invalid the action of the Board at that meeting purporting to increase rates. We approve the holding in Toyah Ind. Sch. Dist. v. Pecos-Barstow Ind. Sch. Dist., Tex.Civ.App., 466 S.W.2d 377 (no writ), that a violation of the open meeting law subjects the action taken to judicial invalidation.

The notice of the 1973 meeting is not as clear as it might be, but it would alert a reader to the fact that some action would be considered with respect to charges for electric power sold in San Marcos. In our opinion the notice was sufficient to comply with the statute. The attempted ratification of the action taken at the 1972 meeting was ineffective, however, for two reasons. In the first place, the purported ratification cannot be given retrospective operation to increase rates for power sold before the 1973 meeting. See Railroad Commission v. Houston Natural Gas Corp., 155 Tex. 502, 289 S.W.2d 559; Texas Natural Gas Utilities v. City of El Campo, Tex.Civ.App., 135 S.W.2d 133; Amarillo Gas Co. v. City of Amarillo, Tex.Civ.App., 208 S.W. 239 (no writ). In the second place, it has now been finally determined by a court of competent jurisdiction that the action taken at the 1972 meeting was ineffective, and the LCRA Board ordered that in such event the rate increases would become effective on June 1, 1973. We hold that the ratification resolution adopted at the 1973 meeting had no legal effect but that the rate increases ordered at that meeting to become effective on June 1, 1973, were not invalid for want of compliance with the open meeting law.

Respondent’s motion for rehearing is granted, and the judgment rendered in this cause on December 11, 1974, is set aside. The judgment of the Court of Civil Appeals is modified to declare that the rate increases adopted at the 1973 meeting of the LCRA Board and effective June 1, 1973, are not invalid for failure to comply with Art. 6252-17, Vernon’s Ann.Civ.Stat, and as so modified the judgment of the Court of Civil Appeals is affirmed.

McGEE, Justice

(dissenting).

I respectfully dissent. I cannot agree with the court’s holding that the LCRA Act is not a legislative limitation upon the power of San Marcos, as a home rule city, to regulate the utility rates charged to its residents.

Section 5 of Article XI of the Texas Constitution, the Home Rule Amendment, provides:

“Cities having more than five thousand (5,000) inhabitants may . . . adopt or amend their charters, subject to such limitations as may be prescribed by the Legislature, and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with . . . the general laws enacted by the Legislature of this State-, . . . ” [Emphasis added].

As expansive as the power of a home rule city may be in the absence of legislation, it is clear that the legislature can always limit or withdraw that power by general law." City of Beaumont v. Fall, 116 Tex. 314, 291 S.W. 202 (1927); Dry v. Davidson, 115 S.W.2d 689 (Tex.Civ.App. — Galveston 1938, writ ref’d); City of Baytown v. Angel, 469 S.W.2d 923 (Tex.Civ.App. — Houston [14th Dist.] 1971, writ ref’d n. r. e.). It is not necessary that the general law expressly withdraw the power from the home rule city; it is sufficient if the provisions of the general law are inconsistent with the power remaining in the home rule city. Burch v. City of San Antonio, 518 S.W.2d 540 (Tex.1975); Berry v. City of Fort Worth, 132 Tex. 599, 124 S.W.2d 842 (1939) ; City of Fort Worth v. McDonald, 293 S.W.2d 256 (Tex.Civ.App. — Fort Worth 1956, writ ref’d n. r. e.).

Contrary to the conclusion of the court of civil appeals below, this court has expressly held that the LCRA Act is a general law since it operates upon a subject in which the state at large is interested. Lower Colorado River Authority v. Mc-Craw, 125 Tex. 268, 279-280, 83 S.W.2d 629, 636 (1935). The majority opinion does not suggest otherwise. Therefore, the City of San Marcos cannot possess any power inconsistent with the LCRA Act.

As the court notes, Section 8 of the LCRA Act expressly provides that the LCRA Board of Directors “shall establish and collect rates and other charges for the sale of electric energy . . ..” The court interprets the power to “establish” rates narrowly and concludes that such power does not conflict with San Marcos’ power to “regulate” rates. However, the court ignores the fact that the LCRA is also expressly given the power to “collect” the rates which it has established. Surely when the legislature empowered the LCRA to “establish and collect rates,” it gave the LCRA more power than merely to initially suggest rates which San Marcos may accept or reject. This broad grant of power to the LCRA seems to me to be clearly inconsistent with San Marcos’ retaining the right to regulate LCRA rates. The same constitutional provision under which San Marcos derives its general powers to legislate expressly forbids any such action which is “inconsistent with . the general laws enacted by the Legislature of this State.”

The court relies on the proviso that “[n]othing herein shall be construed as depriving the State of Texas of its power to regulate and control fees and/or charges . ” and reasons that since the state reserves the right to regulate rates and since home rule cities can exercise any legislative power not forbidden them, the effect of the proviso is to reserve regulatory power to the home rule cities. This reasoning does not take into account the “well settled rule that statutes are always held to operate prospectively, unless a contrary construction is evidently required by their plain and unequivocal language.” Piedmont & Arlington Life Ins. Co. v. Ray, 50 Tex. 511, 519 (1878); Government Personnel Mut. Life Ins. Co. v. Wear, 151 Tex. 454, 461, 251 S.W.2d 525, 529 (1952). Finding no language in the LCRA Act indicating a legislative intent that the proviso operate retrospectively, I would follow the above rule and hold that it operates prospectively only. Thus, the legislature may, in the future, invoke its reserved power to regulate LCRA rates and either exercise that power itself or delegate that power to any appropriate agency. But until the legislature chooses to activate that reserved power, I find nothing in the proviso indicating an intent to restrict the LCRA’s express power to “establish and collect rates.” Further, the proviso, which reserves to the State of Texas the power to regulate and control LCRA rates and charges, in itself negates the court’s construction that it effectively reserves that power to the home rule cities served by the LCRA. The reservation is to the state and any assumption of such power by the City of San Marcos is inconsistent with such reservation to the state.

There is a further reason why I feel that the legislature did not intend for LCRA rates to be regulated by home rule cities. That is the additional proviso in Section 8 of the LCRA Act that:

“ . . . the State of Texas does hereby pledge to and agree with the purchasers and successive holders of the bonds issued hereunder that the State will not limit or alter the power hereby vested in the District to establish and collect such fees and charges as will produce revenues sufficient to pay [all operating expenses and the interest and principal of all bonds issued].”

We held in Lower Colorado River Authority v. McCraw, supra, that this pledge is a valid method of promoting the marketability of LCRA bonds. The court says that if San Marcos refuses to approve rates sufficient to raise the revenue necessary to keep this pledge “the ordinance will be subject to attack in the courts just as an ordinance regulating the rates of a private utility may be attacked on the ground that it is confiscatory or does not provide a reasonable return.” It is a well known fact in the commercial world that a prospective bond purchaser is hot anxious to buy a potential lawsuit. The court’s construction of Section 8 defeats the very purpose for the legislative pledge and ignores the essential difference between a private utility, which should be regulated since it operates for profit, and the LCRA, which, no less than a home rule city, exists to serve the public and can charge rates no higher than necessary to pay operating costs and retire indebtedness. It raises the unwelcome possibility of the LCRA collecting widely divergent rates for identical service in different cities and incurring additional expenses, with corresponding utility rate increases, in its attempts to justify its rates to various city councils and maintain a revenue level sufficient to fulfill the statutory pledge to bondholders. Again, I cannot believe the legislature intended this result when it created the LCRA as a governmental agency and gave it the express power to establish and collect rates sufficient only to maintain its existence.

For the foregoing reasons, I would hold that the LCRA Act, a general law which grants to the LCRA the power to establish and collect rates for electric energy, is inconsistent with any previous authority that San Marcos had to regulate such rates under the general powers vested in it as a home rule city and, therefore, any such previous authority was superseded by the LCRA Act. I would further hold that the LCRA can establish and collect its rates without regulation until the time, if ever, that the legislature decides to exercise its reserved power to regulate such rates.

GREENHILL, C. J., and DANIEL, J., join in this dissent.

      . All statutes are referred to by the article number under which they appear in Vernon’s Ann. Tex.Civ.Stat.


source: Caselaw Access Project

author: McGEE, Justice. POPE, Justice

license: Public Domain

text:
    The CITY OF WACO, Petitioner, v. The CITY OF McGREGOR, Respondent.
    No. B-4748.
    Supreme Court of Texas.
    Feb. 12, 1975.
    Dissenting Opinion on Rehearing May 7, 1975.

      W. Earl Bracken, Jr., Bryan, Wilson, Olson & Stem, Lyndon Olson, Waco, for petitioner.
    Amsler, Amsler & Associates, Margaret Amsler, McGregor, Haley, Fulbright, Win-niford & Bice, W. C. Haley, Waco, for respondent.
   McGEE, Justice.

The City of Waco (Waco) brought this action against the City of McGregor (McGregor) for declaratory judgment declaring the Annexation Ordinance No. 7058 of McGregor to be void. This ordinance was passed as an emergency measure, without publication or public hearing by the McGregor City Council on December 12, 1966. The ordinance purports to annex a strip of land 261 feet wide, beginning at a point in the east city limit line of McGregor and extending in a northeasterly direction down U.S. Highway 84, approximately five miles, at which point it extended in a northerly direction to include a 900 acre tract of land owned by McGregor and used as a municipal airport. The trial court entered a take-nothing judgment and the court of civil appeals affirmed. 510 S. W.2d 637.

We reverse the judgments of the courts below and render judgment that the Annexation Ordinance of McGregor is void.

At all relevant times McGregor is a general law city having a population of less than 5,000 inhabitants. Waco is a home rule city and there is a dispute in the record as to whether Waco’s population at the relevant time was in excess of 100,000 or fell into the 50,000-100,000 classification. Regardless of the applicable population bracket, the airport and part of the stem extending out to it lie within the exclusive extraterritorial jurisdiction of Waco. The following map shows that the ordinance attempts to annex a strip and the airport which lie outside the extraterritorial jurisdiction of McGregor and within the extraterritorial jurisdiction of Waco.

Article 970a, Vernon’s Tex.Rev.Civ. Stat., commonly referred to as the Municipal Annexation Act, became effective August 23, 1963. It establishes certain limits on annexation and establishes extraterritorial jurisdiction of cities. Section 3, subd. A provides as follows:

“In order to promote and protect the general health, safety, and welfare of persons residing within and adjacent to the cities of this State, the Legislature of the State of Texas declares it to be the policy of the State of Texas that the unincorporated area, not a part of any other city, which is contiguous to the corporate limits of any city, to the extent described herein, shall comprise and be known as the extraterritorial jurisdiction of the various population classes of cities in the State and shall be as follows:
“(1) The extraterritorial jurisdiction of any city having a population of less than five thousand (5,000) inhabitants shall consist of all the contiguous unincorporated area, not a part of any other city, within one half (½) mile of the corporate limits of such city.
“(4) The extraterritorial jurisdiction of any city having a population of fifty thousand (50,000) or more inhabitants, but less than one hundred thousand (100,000) inhabitants shall consist of all the contiguous unincorporated area, not a part of any other city, within three and one half (3½) miles of the corporate limits of such city.
“(5) The extraterritorial jurisdiction of any city having a population of one-hundred thousand (100,000) or more inhabitants shall consist of all the contiguous unincorporated area, not a part of any other city, within five (5) miles of the corporate limits of such city.” (Emphasis added).
Section 7 A provides as follows:
“A city may annex territory only within the confines of its extraterritorial jurisdiction; provided, however, that such limitation shall not apply to the annexation of property owned by the city annexing the same.”

In City of West Lake Hills v. State ex rel. City of .Austin, 466 S.W.2d 722 (Tex. 1971) this court found that the legislature has consistently required the extension of any town or city to be limited to contiguous and adjacent areas.

When read together, Section 7A of the Municipal Annexation Act and City of West Lake Hills permit McGregor to annex all property which is within its extraterritorial jurisdiction or which it owns so long as the annexed land is contiguous and adjacent to its corporate limits. In the ordinance attacked here, McGregor has attempted to annex a strip of land which is neither owned by McGregor nor within its extraterritorial jurisdiction. If the annexation of this stem is invalid, then the airport, although owned by McGregor, is not validly annexed as it would not be contiguous to the corporate limits of McGregor. City of West Lake Hills, supra.

It seems clear that McGregor’s Annexation Ordinance No. 7058 was void when it was passed since it attempted to annex territory (the stem from its extraterritorial jurisdiction limits to the airport) which Section 7 of the Municipal Annexation Act prohibited McGregor from annexing. Deacon v. City of Euless, 405 S.W.2d 59 (Tex.1966); State ex rel. Howard v. City of Wichita Falls, 465 S.W.2d 459 (Tex.Civ.App. — Fort Worth 1971, writ ref’d n. r. e.). McGregor does not contend otherwise. McGregor’s position is that the attempted annexation has been validated by Article 974d-12, a general validating statute which became effective June 18, 1967.

Article 974d-12 applies to home rule cities with a population of 6,900 to 7,100 and to all general law cities. Section 2 provides :

“The boundary lines of all such cities and towns, including both the boundary lines covered by the original incorporation proceedings and any subsequent extensions thereof, are hereby in all things validated. No boundary extension of any kind shall be deemed invalid by failure to comply with requirements of publication, whether such requirements are imposed by statute, general law or charter, and such extensions are hereby in all things validated. In the event of multiple annexations covering the same territory, the proceedings prior in time shall prevail despite any irregularities hereby validated.”

The outcome of this case thus depends on the applicability of the above validating act. The question is not one of the power of the legislature — we do not doubt that the legislature could validate an attempted annexation such as this. Rather the question here is one of construction of the validation act, whether the legislature intended to validate attempted annexations such as the one before us. Tex.Rev.Civ.Stat.Ann. art. 10, subd. 6; Calvert v. Texas Pipe Line Co., Tex., 517 S.W.2d 777 (1975).

McGregor asserts that Article 974d-12 is a curative and remedial measure and should be given a liberal construction, relying upon City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273 (1951), and similar cases. However, Mc-Gregor overlooks the important qualification, made clear in City of Mason, that curative statutes are liberally construed only to effectuate the intent of the legislature in enacting them and not to other ends. City of Mason v. West Texas Utilities Co., supra; Burch v. City of San Antonio, Tex., 518 S.W.2d 540 (1975); 2 Sutherland Statutory Construction § 41.11 (4th ed. C. Sands 1973). Therefore, the rule of construction cited by McGregor does not obviate our duty to determine and apply legislative intent.

McGregor’s interpretation of Article 974d-12 would impart to the legislature an intent to put its stamp of approval upon any conceivable annexation by any general law city, no matter how extensive or preposterous the annexation might be. We do not believe the legislature intended such a result by passing a validation act in the general terms of Article 974d-12. Rather we read Article 974d-12, as we read the validating statutes involved in City of West Lake Hills, supra, in the light of the traditional annexation requirements of contiguity and adjacency. As we said in City of West Lake Hills:

“We find no statute which has expressly permitted the creation or extension of a municipal area with intervening territory interrupting the contiguity and adjacency of the corporate area. The Legislature has repeatedly required the extension of any town or city to be limited to ‘contiguous and adjacent area,’ or ‘territory joining the limits of any city’ or ‘additional territory lying adjacent to said city’ or ‘the adjacent territory desired to be annexed’ or ‘the territory contiguous to said city and proposed to be annexed’. In view of the repeated requirement of adjacency in the statutes, we do not believe that the validating statutes should be construed to a different effect in the absence of specific and express provision.” 466 S.W.2d 722, 729.

We reaffirm our belief expressed above that the legislature in passing a general validating statute such as Article 974d-12 did not intend to validate the annexation of noncontiguous or nonadjacent territory.

The remaining problem is to determine whether the annexation attempted by Mc-Gregor falls within the scope of Article 974d-12. There is no doubt that the entire area of the attempted annexation is contiguous to McGregor since it is touching in a geographical sense. It seems obvious that the only purpose for including the stem along Highway 84 was to make the airport contiguous to McGregor.

The question of adjacency is more difficult to determine. We said in State ex rel. Pan American Production Co. v. Texas City, 157 Tex. 450, 303 S.W.2d 780 (1957), that the term “adjacent” is usually accorded “the meaning of ‘neighboring or close by’ or ‘in the vicinity of and not necessarily contiguous or touching upon.’ ” Adjacency is a question of law which must be determined in the context of the facts of each particular case. City of Irving v. Dallas County Flood Control District, 383 S.W.2d 571 (Tex.1964) ; City of Pasadena v. State ex rel. City of Houston, 442 S.W.2d 325 (Tex.1969).

It is not necessary in this case to explore the limits of adjacency since we are given some legislative guidance in our determination. The legislature anticipated that conflicting claims such as the one before us would become more frequent as cities in Texas continued to grow. To avoid such situations the legislature enacted 'the Municipal Annexation Act in 1963 and established the concept of extraterritorial jurisdiction to structure the growth of cities and to protect cities from intrusions by their neighbors. In keeping with the purpose of the Municipal Annexation Act, we hold that territory within the exclusive extraterritorial jurisdiction of one city is not adjacent to any other city as a matter of law. Absent specific and express provisions in a validating statute, we will not presume that the legislature intended to validate such intrusions in violation of the Municipal Annexation Act.

In summary, we hold that Mc-Gregor’s Annexation Ordinance No. 7058 was void when passed since it violated Sections 3 and 7 of the Municipal Annexation Act. Article 974d-12 was not intended to and did not validate the annexation of either noncontiguous or nonadjacent territory. The portion of the stem along Highway 84 which intrudes into the exclusive extraterritorial jurisdiction of Waco is not adjacent to McGregor and so Mc-Gregor’s attempted annexation of that portion of the stem was not validated by Article 974d-12. Since that part of the stem is not validly annexed, the airport is not contiguous to McGregor and so McGregor’s attempted annexation of the airport was not validated by Article 974d-12.

We therefore reverse the judgments of the courts below and render judgment that the City of McGregor’s Annexation Ordinance No. 7058 is void.

Dissenting opinion by POPE, J., in which WALKER and DANIEL, JJ., join.

ON MOTION FOR REHEARING

POPE, Justice

(dissenting).

The former dissenting opinion is withdrawn and this is substituted in its place. I respectfully dissent for three reasons. First, the court fails to recognize the force of Article 46d-2, the Municipal Airports Act, which gives McGregor jurisdiction over its owned airport lands. Second, McGregor’s prior jurisdiction is recognized by Article 965 and Article 970a. Third, Article 974d-12 validated McGregor’s annexation in any event.

McGregor's Prior Jurisdiction

The McGregor municipal airport is within what would ordinarily be Waco’s extraterritorial limits. The airport constitutes all of the annexed territory in dispute save the stem which connects it with McGregor. The majority says that the airport is subject to the extraterritorial jurisdiction of Waco, but this cannot be so. McGregor acquired its airport on October 13, 1947, long before the enactment of the Municipal Annexation Act, Article 970a, in 1963. Since McGregor’s purchase of its municipal airport, it alone has possessed the jurisdiction and municipal powers over that land. The Municipal Airports Act empowers McGregor, not Waco, to plan, establish, develop, construct, enlarge, improve, maintain, equip, operate, regulate, protect and police the land. Art. 46d-2. The Municipal Annexation Act did not interrupt those prior powers of McGregor to “regulate, protect and police” its airport territory. In 1947 the airport was and continuously since then has been, by statute, under the jurisdiction of McGregor. The majority opinion leaves both cities in an awkward position. McGregor has jurisdiction under the Municipal Airports Act; Waco, by the majority opinion, has jurisdiction under the Municipal Annexation Act. In my judgment, it is Waco that is encroaching upon McGregor’s statutory territory, rather than McGregor that is encroaching upon Waco’s territory.

McGregor's Annexation Valid Under Article 965

When McGregor purchased its municipal airport site, Article 965 was in force, and that article recognized the special nature of lands owned by a municipality. That statute authorized McGregor’s annexation of lands by ordinance but had the proviso, “provided that this provision shall apply only to those cities where the additional territory so added is owned by such municipalities.”

The special nature of municipally owned tracts of land such as McGregor’s airport was again recognized and respected by Article 970a, the Municipal Annexation Act. Section 3 of that act excluded from a city’s extraterritorial jurisdiction the unincorporated area which was a part of another city.

In order to promote and protect the general health, safety, and welfare of persons residing within and adjacent to the cities of this State, the Legislature of the State of Texas declares it to be the policy of the State of Texas that the unincorporated area, not a part of any other city, which is contiguous to the corporate limits of any city, to the extent described herein, shall comprise and be known as the extraterritorial jurisdiction of the various population classes of cities in the State and shall be as follows . . . (Emphasis added.)

Section 3 then lists five brackets of cities and states the distance over which each has an extraterritorial jurisdiction. In each listing there is the phrase “not a part of any other city.” Section 3, in short, declares the area which constitutes the extraterritorial area of cities, but it excludes from the extraterritorial area that property which is a part of some other city. The airport owned by McGregor was never a part of Waco’s extraterritorial lands under the Municipal Annexation Act.

Article 974d-12 — Validation Act

The Legislature enacted Article 974d-12 to clarify and cure the McGregor-Waco problem, but the majority fears such a result will lead to “preposterous” results in some other context. With respect, I suggest that the majority opinion presently creates the very result it says we should avoid. The majority opinion compels further litigation to determine whether Mc-Gregor or Waco has jurisdiction to “regulate,” to “protect” and to “police” the annexed airport. A reasonable meaning of the validation act and one that would avoid the territorial conflict created by the majority opinion is that it intended to leave undisturbed the jurisdiction which Article 46d-2 vested in McGregor. The only way this court can avoid this conflict of jurisdiction short of giving force to the validation act is to repeal Article 46d-2, and we lack jurisdiction to do that.

Article 974d-12 is clear and inclusive. It validated the original boundary lines of general law cities; it validated “any subsequent extensions thereof,” and it did so “in all things.” Our concern is not with Mc-Gregor’s original boundary lines; it is with the subsequent extensions thereof. By definition an extension is that which expands, lengthens, prolongs, enlarges, adds to or annexes. Black’s Law Dictionary 694 (4th ed. 1951). An annexation is an extension. Validation of an extension which intrudes into another city’s extraterritorial domain in violation of the Municipal Annexation Act was the thing which the curative statute was designed to do.

The technique employed by the majority is an unwholesome departure from the universal rule to construe remedial statutes liberally. That rule, as summarized by 2 Sutherland, Statutory Construction § 41.11, at p. 290 (4th ed. 1973) is:

Because of the beneficent policy thus served by curative legislation, to sustain the reliability of official actions and secure expectations formed in reliance thereon, they are in reason entitled to liberal construction in order to achieve full fruition of their remedial purposes.

Texas has long followed that principle which is summarized in City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273, 280 (1951):

If a statute is curative or remedial in its nature, the rule is generally applied that it be given the most comprehensive and liberal construction possible. It certainly should not be given a narrow, technical construction which would defeat the very purpose for which the statute was enacted.

In Perkins v. State, 367 S.W.2d 140 (Tex.1963), we adhered to that principle, holding:

In considering the applicability of a validating act, the Court must acknowledge the principle that even though an act of incorporation is void from its inception because of an unwarranted exercise of power, or because of an entire absence of power, the Legislature may validate such act and make it live, for what the Legislature has the power to authorize, it has the power to ratify.

The application of this principle has been the basis for upholding the validation of acts done under a prior unconstitutional special statute when validated by a general law. Marfa Independent School Dist. v. Wood, 135 Tex. 223, 141 S.W.2d 590 (Tex.Com.App.1940) ; State Line Consolidated School District No. 6 v. Farwell Independent School Dist., 48 S.W.2d 616 (Tex.Com.App.1932); Pyote Independent School District v. Dyer, 34 S.W.2d 578 (Tex. Com.App. 1931).

Nineteen validation acts are found under Article 974d since it was enacted in 1937. They contain varying provisions and exceptions. Article 974d-2, enacted in 1950 by the 51st Legislature, used the terms “boundary lines” and “subsequent extension thereof.” Those terms, either in the singular or plural, have been consistently used since that time. Articles 974d-2, 974d-4, 974d-5, 974d-6, 974d-8, 974d-ll, 974d-12, 974d-13, 974d-14, 974d-15, 974d-16, 974d-17, 974d-18, and 974d-19. The terms are inclusive, clear, and have never been previously in doubt. When the Legislature has meant to limit their scope, it has always done so by exceptions stated in the statute. Some of the validation acts contain no exceptions of any kind. Except for Articles 974d-l, 974d-14, and 974d-16, all of the statutes include an exception that the boundary lines and extensions of a city will not be validated if the matters are already in litigation.

It was the 1963 enactment of the Municipal Annexation Act, Article 970a, by the 58th Legislature which introduced into the law the concept of a municipality’s extraterritorial jurisdiction. Since that time, the Legislature has enacted some validation acts which expressly provided that an overlap of another city’s extraterritorial jurisdiction was not validated. For example, in 1965 the 59th Legislature enacted Article 974d-ll the first and second sections of which validated incorporation proceedings, boundary lines covered by the original incorporation and subsequent extensions. The act then in its fourth section contained an express exception that the act would not apply when an incorporation extended into the extraterritorial lands of another city:

Sec. 4. The provisions of this Act shall not apply to any city or town incorporated or attempted to be incorporated from and after August 23, 1963, which is situated in whole or in part within the extraterritorial jurisdiction of another city or town, unless consent or permission to incorporate was obtained in the manner prescribed by Chapter 160, Article I, Acts of the 58th Legislature, Regular Session, 1963, the Municipal Annexation Act, compiled as Article 970a, Vernon’s Texas Civil Statutes. (Emphasis added.)

In 1967, the 60th Legislature enacted Article 974d-12, the one which is presently before us. While that statute continued the use of the inclusive terms, “boundary lines,” “subsequent extension thereof,” and “in all respects,” it omitted the exception concerning an encroachment upon extraterritorial jurisdiction. Significantly, in 1969 the 61st Legislature enacted two validation acts concerning boundaries and extensions. Article 674d-13, by express exception, declared that an extraterritorial overlap would not be validated as to cities within one bracket; but Article 974d-14, another bracket law, omitted the exception. In 1971, the 62nd Legislature enacted Article 974d-15 which by express exception, said that there would be no validation of an extraterritorial overlap, but omitted the exception in Articles 974d-16 and 974d-17. In 1973, the 63rd Legislature enacted Article 974d-18 without the extraterritorial exception but also enacted Article 974d-19 which included it.

The lesson we learn from these legislative examples is that for some situations, and for some brackets of cities, the Texas Legislature excepts from its validation acts any overlaps into another city’s extraterritorial jurisdiction, and in other instances, it provides for the validation to extend to the original boundary lines, as well as any subsequent extension without regard to extraterritorial lands. In the instance of Article 974d-12, extensions “are hereby in all things validated,” without exception concerning the overlap. From this comparison it seems apparent that the Legislature knows what problem its validation acts confront and knows when to make exceptions to their application. The majority, however, has added an exception to the validation act which the Legislature did not want.

Chief Justice Alexander addressed the question of exceptions contained in remedial statutes in the case of North Common School District v. Live Oak County Board, 145 Tex. 251, 199 S.W.2d 764 (1946). The court had before it a case in which the Supreme Court had already finally ruled that an attempted annexation of other school districts was ineffective. Thereafter, the Legislature enacted a validating act which contained no exception about annexation proceedings. This court ruled that the prior annexation, though finally adjudicated as void, was validated. See City of Deer Park v. State, 154 Tex. 174, 275 S. W.2d 77, 79 (1955); State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065 (1932). In reaching that conclusion, the court first examined and compared companion validating acts of the Legislature. Some of them contained exceptions, but, as this court then wrote, “[T]he act here under consideration contains no such exception.” The court also held that if the validating act contained one exception, it would not imply another and a different one. See, Federal Crude Oil Co. v. Yount-Lee Oil Co., 122 Tex. 21, 52 S.W.2d 56 (1932); First Texas State Ins. Co. v. Smalley, 111 Tex. 68, 228 S.W. 550 (1921). Likewise, Article 974d-12 contained two exceptions and surely the Legislature, if it had so intended, would have included the customary and well-known one which excluded an overlap of extraterritorial jurisdiction.

The majority opinion confuses yet another area of the law, that of adjacency. At least since this court’s decision in State ex rel. Pan American Production Co. v. Texas City, 157 Tex. 450, 303 S.W.2d 780 (1957), cert, denied, 355 U.S. 603, 78 S.Ct. 533, 2 L.Ed.2d 523 (1958), the term “adjacent” has been applied in context with the problem and from case to case. See also, City of West Lake Hills v. State ex rel. City of Austin, 466 S.W.2d 722 (Tex. 1971) ; City of Pasadena v. State ex rel. City of Houston, 442 S.W.2d 325 (Tex. 1969); City of Irving v. Dallas County Flood Control District, 383 S.W.2d 571, 576 (Tex.1964); State v. Camper, 261 S. W.2d 465 (Tex.Civ.App.1953, writ ref’d). We wrote in City of Irving:

In that case [State v. Camper] the Court stated that the meaning of the word “adjacent” is “ ‘determinable principally by the context in which it is used, and the facts of each particular case, or by the subject-matter to which it is applied.’ ”

This rule is abandoned by the majority’s new rule of adjacency:

In keeping with the purpose of the municipal annexation act, we hold that territory within the exclusive extraterritorial jurisdiction of one city is not adjacent to any other city as a matter of law. (Emphasis added.)

Once willing to accept this sharp departure from our former rule, it is easy to hold that the Legislature did not intend to protect McGregor’s prior jurisdiction over its airport, because it is no longer important to consider the validation act in the context of McGregor’s ownership of the land for an airport, nor Article 46d-2, nor its powers to annex such owned property under ’Article 965, nor the fact that the Municipal Annexation Act preserved Mc-Gregor’s rights in owned land, nor the fact that, without the validation act, both cities will continue to claim conflicting territorial rights over the same lands.

In my opinion, the judgments of the courts below should be affirmed.

WALKER and DANIEL, JJ., join in this dissent.

      . All statutory references are to Texas Revised Civil Statutes.

      . Art. 965. The bounds and limits of said municipality shall be and remain the same as fixed and defined by the provisions of the act of incorporation, substituted by the provisions of this Title; provided, that said limits of said corporation may be hereafter extended by adding additional territory to the same, whenever the majority of the qualified electors of said territory shall indicate a desire to be included within the limits of said corporation in the manner provided in Article 974 of this Title; or by ordinance of the governing body of said municipality, duly passed and spread upon the minutes thereof, describing by metes and bounds such additional territory added thereto, provided that this provision shall apply only to those cities where the additional territory so added is owned by such municipalities. (Emphasis added.)

      . Sec. 2. The boundary lines of all such cities and towns, including both the boundary lines covered by the original incorporation proceedings and any subsequent extensions thereof, are hereby in all things validated. No boundary extension of any kind shall be deemed invalid by failure to comply with requirements of publication, whether such requirements are imposed by statute, general law or charter, and such extensions are hereby in all things validated. In the event of multiple annexations covering the same territory, the proceedings prior in time shall prevail despite any irregularities hereby validated.
      Sec. 3. All governmental proceedings performed by the governing bodies of all such cities and towns and all officers thereof since their incorporation or attempted incorporation are hereby in all respects validated as of the date of such proceedings.
      Sec. 4. The provisions of this Act shall not apply to any city or town now involved in litigation questioning the legality of the incorporation or extension of boundaries or any of the acts or proceedings hereby validated if such litigation is ultimately determined against the legality thereof; nor shall this Act be construed as validating any proceeding which may have been nullified by a final judgment of a court of competent jurisdiction.


author: GREEN, Commissioner.

text:
    Christopher Woods CASEY, Appellant, v. The STATE of Texas, Appellee.
    No. 50010.
    Court of Criminal Appeals of Texas.
    June 4, 1975.
    Rehearing Denied June 25, 1975.

      Kerry P. Fitzgerald, Dallas, for appellant.
    Henry Wade, Dist. Atty., Richard W. Wilhelm and Jim Burnham, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of murder. Punishment was assessed at life.

In his second ground, appellant argues that the court erred in refusing to instruct the jury on the law of circumstantial evidence. We agree.

The record reflects without dispute that during the night of May 22, 1973, or early morning hours of May 23, 1973, a robbery occurred at the Bray Car Care Center, a Gulf service station, located at the intersection of Forest Lane and Abrams just south of L.B.J. Freeway in Dallas, and that Richard Allen O’Neill, the night attendant, was shot in the head and killed. Jim Bray, proprietor of the. station, testified that the sum of $93.74 was taken in the robbery.

The direct evidence sufficiently proved the corpus delicti of the offense. The remaining element of proof essential to the State’s case was that appellant was the guilty agent in causing deceased’s death. Self v. State, Tex.Cr.App., 513 S.W.2d 832; Brantley v. State, Tex.Cr.App., 522 S.W.2d 519 (1975).

The State relied entirely on the testimony of Deborah Ann Simmons and the written confession to connect appellant with the crime.

Simmons, a State’s witness, testified that “back in May of 1973” she, her brother Clifton Currie and appellant were in a motel in Dallas. Some time during the night, appellant and Clifton Currie left the motel. She testified:

“Q. And did Christopher Casey tell you what they were going to do ?
“A. Yes, sir.
“Q. What did he tell you they were going to do that night ?
“A. That they were going to go out and rob a store.
“Q. Did he say anything else besides that?
“A. Just that if they couldn’t find a store to rob, they were going to rob a station.
“Q. All right, rob a station. And was Clifton Currie there when he said all this?
“A. Yes, sir.
“Q. And did Clifton Currie say anything in this conversation, too ?
“A. He said that if — if they did went out and rob somebody, if they didn’t cooperate with them, that they were going to kill them.
“Q. Casey was right there in the room when he said this, is that right?
“A. Yes, sir.
“Q. And what did you do after you had this conversation ? Did you and your — did you go somewhere or did they go somewhere or what took place next?
“A. They left.
“Q. And at a later time that evening, did Christopher Casey and Clifton Cur-rie come back to the motel?
“A. Yes, sir.
“Q. And about what time would this be?
“A. About between 1:30 and 2:00.
“Q. This was in the early morning hours, right?
“A. Yes, sir.
“Q. In the a. m. When they came in the door of the motel room, would you tell the jury what mood they were in?
“A. They were laughing when they walked through the door.
“Q. And did they tell you what took place out there, what they did ?
“A. Left — Clifton spoke up and said that he walked in there and asked the guy for change for a dollar and that Chris walked up behind him and shot him in the back of the head.
“Q. And what did Chris tell you took place ?
“A. He was laughing and he said he did it.”

The witness did not at any time identify the place at which the robbery and killing happened, or who was robbed or who was shot. She did not even fix the date of the occurrence, except to say “back in May, 1973,” although on cross-examination she was asked a couple of questions about May 23, 1973. While her testimony was direct evidence that appellant had committed an offense, it was not direct evidence that appellant was guilty of the murder of Richard Allen O’Neill, the deceased in the instant case.

In his written confession, appellant admitted that “in the latter part of May of this year (1973)” he and Clifton Currie left a motel room in Dallas together and, using a .32 caliber pistol, committed a robbery at a Gulf or Exxon service station “out north” close to a big freeway, shot the attendant (not named or identified), took between sixty and seventy dollars from the cash box, and drove back to the motel. There is nothing in the statement to identify the service station or the attendant who was shot or the date of the shooting other than as just stated. There is no fingerprint evidence in the record. Although the confession admits to guilt of a robbery and shooting, there is nothing in it which directly connects appellant with the murder of Richard Allen O’Neill. The ultimate fact of whether appellant, either by his own act or as a principal with another, killed deceased, was not established by any direct evidence. Such evidence was necessary to avoid a charge on circumstantial evidence. Crawford v. State, Tex.Cr. App., 502 S.W.2d 768; Hielscher v. State, Tex.Cr.App., 511 S.W.2d 305; Powell v. State, Tex.Cr.App., 494 S.W.2d 575; Blankenship v. State, Tex.Cr.App., 481 S.W.2d 147; 31 Tex.Jur.2d, Instructions, Sec. 123, p. 689. See Parker v. State, Tex.Cr.App., 492 S.W.2d 590. Cf. Hogan v. State, Tex.Cr.App., 496 S.W.2d 594.

Appellant timely requested a charge on the law of circumstantial evidence. The court erred in refusing to give such charge.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


author: ONION, Presiding Judge.

text:
    Bobby Gene HOLCOMB, Appellant, v. The STATE of Texas, Appellee.
    No. 49957.
    Court of Criminal Appeals of Texas.
    May 28, 1975.
    Gene Storrs, Amarillo, for appellant.
    Guy Hardin, Dist. Atty., Pampa, Jim D. Vollers, State’s Atty., and David S. Mc-Angus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for burglary with intent to commit theft, wherein the punishment was assessed by the jury at five (5) years.

It appears that in the first trial on the indictment in question appellant was convicted, but a new trial was granted. He was retried, resulting in the conviction now on appeal.

In two grounds of error appellant asserts the trial court erred in permitting the State to reopen its case instead of ruling on his motion for instructed verdict of not guilty, and this abuse of discretion prejudiced his right to a fair trial since he had prepared the case law to support the granting of the said motion for instructed verdict.

The record is before this court without a transcription of the court reporter’s notes, and we are unable to pass upon appellant’s contentions. The record before us, without a transcription of the court reporter’s notes, does not support these contentions. A party desiring to have included in the record a transcription of the court reporter’s notes has the responsibility for obtaining the same. See Article 40.09, Sec. 5, Vernon’s Ann.C.C.P. There is no question of indigency. Nothing is presented for review. See and cf. Wells v. State, 516 S.W.2d 663 (Tex.Cr.App. 1975).

We observe appellant asserts in his brief that at the close of the State’s case he moved for an instructed verdict of not guilty on the ground that the State had failed to prove lack of consent since the alleged owner of the “house” involved, Bill Jobe, had not testified and the State had only offered the testimony of a co-owner (not alleged in the indictment) as to whether there was consent or not. Appellant asserts that the court granted a three day “continuance” for both parties to prepare briefs on the question involved and excused the jury until then. It appears from the brief that three days later the State showed up without a brief but with the witness Jobe, and the court, instead of ruling on the motion for instructed verdict, permitted the State to reopen its case and present further testimony, removing the legal question upon which the motion was based. It appears appellant contends it was unfair for him to have to prepare “case law” on the subject matter involved in the motion while the State used the time to locate the witness.

It is well established that this court cannot accept as fact allegations or assertions in an appellate brief which are not supported by the record. See Washington v. State, 500 S.W.2d 485 (Tex.Cr.App. 1973); Devereaux v. State, 473 S.W.2d 525 (Tex.Cr.App.1971).

Nevertheless, we observe that if the facts, as asserted, were true and were supported by a transcription of the court reporter’s notes, no error is reflected. Article 36.02, Vernon’s Ann.C.C.P., provides that the court shall allow testimony to be introduced at any time before the argument of the case is concluded if it appears that it is necessary to a due administration of justice. Northcutt v. State, 478 S.W.2d 935 (Tex.Cr.App.1972); Castillo v. State, 494 S.W.2d 844 (Tex.Cr. App.1973); Stout v. State, 500 S.W.2d 153 (Tex.Cr .App.1973).

The judgment is affirmed.


author: ODOM, Judge.

text:
    George VITAL, Appellant, v. The STATE of Texas, Appellee.
    No. 49891.
    Court of Criminal Appeals of Texas.
    June 4, 1975.

      Ken McLean, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and R. P. Cornelius, Asst. Dist. Attys.,
    Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of robbery by assault; punishment was assessed at 25 years.

Appellant was identified at trial as one of the men who committed the charged robbery at a Houston lounge. Defense witnesses testified that appellant was in Lake Charles, Louisiana, at the time of the offense. After deliberations during which the jury sent out notes requesting the reading of portions of the identification testimony and of the alibi testimony, a verdict of guilty was returned.

In his third ground of error appellant contends the trial court abused the discretion accorded it under Article 36.02, Vernon’s Ann.C.C.P., when it refused his request to reopen before argument began, in order to offer testimony regarding writings on the back of a photograph introduced in support of his defensive theory. The witness was presented to the court, and out of the hearing of the jury testified that the photograph was taken of appellant, herself and other persons on the date of the alleged offense, in Lake Charles, Louisiana, and that the writings on the back, which had not been introduced before the jury, reflected the name of the witness and the date of the photograph written by the witness in her own hand on the date there stated.

Although appellant’s motion to reopen the testimony was presented prior to the reading of the charge and argument in the cause, the court denied the motion. In Kep-ley v. State, Tex.Cr.App., 391 S.W.2d 423, this Court held:

“The trial judge fell into error in refusing to allow appellant’s counsel to adduce testimony from the two witnesses who were available to testify on Wednesday, November 4, 1964. Although the testimony of these two witnesses is brought forward by bill of exception and the state takes issue with the testimony and says that it is either cumulative or of no probative value, we feel that appellant had the right to adduce it and allow the jury to weigh its credibility and probative value. It was an abuse of discretion not to allow its submission to the jury. Art. 643 [now Art. 36.02], Vernon’s Ann.C.C.P., provides for the allowance of testimony to be introduced at any time before the argument of a cause is concluded, if it appear that it is necessary to a due administration of justice. In Meeks v. State, 135 Tex.Cr.R. 170, 117 S.W.2d 454, this Court held that it was not within the discretion of the Court to exclude the testimony of witnesses present before the Court read his charge to the jury and prior to the time the argument began. We there said: While further time would have been taken if the witnesses had been permitted to testify, it is not shown that a postponement would have resulted. No facts and circumstances are presented which would in any manner indicate that the introduction of such testimony would have impeded the trial or in any way interfered with the due and orderly administration of justice. Also, see Stanley v. State, 138 Tex.Cr.R. 486, 137 S.W.2d 34.” (Emphasis added.)

The facts of the instant case are clearly within the rulé stated in Kepley, supra. Furthermore, in Meeks v. State, supra, relied upon for the Kepley rule, reversal was required notwithstanding the fact that neither of the witnesses, for whose testimony leave to reopen was sought, “had ever been summoned as witnesses and no process issued.” Meeks v. State, 117 S.W.2d 454, 456. The important factor with respect to diligence, when leave to reopen is sought under Article 36.02, supra, is not whether the evidence was available or could have been secured at an earlier stage of the trial, but rather, whether it is available at the time the request to reopen is made. These enlightening words appear in Meeks, supra, speaking to the limited discretion vested in the trial judge under Article 36.02, when the request to reopen is made before argument begins:

“We do not understand that it was necessary for appellant to show the court that the proposed testimony was newly discovered. In Steadham v. State [119 Tex.Cr.R. 475, 43 S.W.2d 944], it is shown that the testimony of the witnesses the appellant was requesting the opportunity to present was purely impeaching. In the course of the opinion Judge Hawkins said: ‘It is well understood that ordinarily a case will not be continued or postponed, or a new trial granted, for purely impeaching testimony. Appellant was seeking none of these. . . . His only request was that he be given until 9 o’clock next morning to produce the witnesses named. The request seems not unreasonable.” (Emphasis added.) 117 S.W.2d at pp. 456-457.

In the instant case the evidence sought to be presented to the jury was of direct bearing on the defensive theory, which, as evidenced by the notes from the jury, was receiving serious consideration by them. But irrespective of its weight, or of its probative value or cumulative character, or the issue upon which it is offered, as pointed out in the above quoted language from Kepley and Meeks, if the evidence was admissible and offered before the reading of the charge and prior to arguments, unless it appears its introduction would have impeded the trial or interfered with the due and orderly administration of justice, it will be reversible error to refuse the request to reopen for its receipt. Compare Holcomb v. State, 523 S.W.2d 661 (1975).

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

      . Article 36.02, V.A.C.C.P., reads as follows:
      “The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.”

      . The requirement not met in Silva v. State, Tex.Cr.App., 502 S.W.2d 149, was here complied with. The witness tendered was sworn and the testimony which would have been presented was preserved in the record on appeal for review by this Court.


author: BROWN, Commissioner.

text:
    Cecil Lewis PARISH, Appellant, v. The STATE of Texas, Appellee.
    No. 49652.
    Court of Criminal Appeals of Texas.
    May 28, 1975.
    Rehearing Denied June 25, 1975.

      Harry Louis Zimmermann, Dallas, for appellant.
    Henry Wade, Dist. Atty., Gary Love and Jay Ethington, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

The conviction is for burglary; the punishment, assessed by the jury, eight and one-half years’ imprisonment.

Joyce Coleman returned home at approximately 7:15 P.M. and saw appellant standing on her front porch and a Chevro,let parked in her driveway. As she parked her car behind the Chevrolet, appellant ran. Mrs. Coleman found that the front door lock on her house had been broken, and a television set, rifle, shotgun, and two gun cases, all belonging to her and her husband, were found in the Chevrolet.

Appellant’s first contention is that the evidence is insufficient to sustain a conviction for burglary of a private residence in the daytime, urging that the evidence shows the offense was committed at night.

“Daytime” is any time of the twenty-four hours from thirty minutes before sunrise until thirty minutes after sunset. Article 1396, Vernon’s Ann.P.C. This Court can take judicial notice that the sunset on September 21, 1973, the day of the offense, was at 7:26 P.M. in Dallas. Pierce v. State, Tex.Cr.App., 401 S.W.2d 238. Hence, if the burglary occurred any time before 7:56 P.M., it happened in the daytime. Mrs. Coleman testified that she returned and discovered appellant between 7:00 and 7:30, and that “it was getting dark.” There is no evidence indicating that the burglary occurred after 7:56 P.M. No error is shown. For this reason, appellant’s second contention that the trial court erred in not submitting to the jury his requested issue as to whether the alleged burglary occurred in the daytime or nighttime is overruled.

Appellant’s third contention is that the trial court erred in receiving the jury’s verdict on punishment from a person other than the foreman of the jury.

The record reflects that the verdict at the penalty stage of the trial had a different name signed as foreman from the name signed as foreman on the verdict at the guilt stage. Appellant submits that the absence of the foreman’s signature creates a presumption that the verdict was rendered by less than twelve jurors.

This identical question was disposed of adversely to appellant in Shelton v. State, Tex.Cr.App., 441 S.W.2d 536. Where the discrepancy is not brought to the attention of the trial judge and there is no request to poll the jury, no harm is shown.

Appellant’s fourth contention is that improper argument was presented at the punishment stage. The arguments in question are as follows:

“[Defense Attorney]: . . . Mr. Ethington has characterized the Defendant as a seven time loser. He relies on this document there when he makes that argument. He has, in fact, been convicted of six prior offenses, but if you will look at that record, you will see that they were run concurrent; instead of going to the penitentiary for a long time, they were treated as one sentence, that being a sentence of three years, since that was the largest sentence that he received on any of these six convictions there portrayed. So, in fact, I think you would have to characterize him here as a two time loser. When you talk about rehabilitation as punishment that he had received in the past; how many times had he been punished for breaking the law and why should he be punished at this time .... I think it boils down to — there are a lot of arguments that one can make about rehabilitation and about punishment and about deterrents in a case and how people are going to read the newspaper of what’s happened here and not do these sort of things again, but it really boils down to what do you do to help this person that is on trial here to become a useful and working member of our society. . You can say, ‘Well, put him in the penitentiary for as long as we can, we’ll put him there for twelve years, as much as the law allows us to and we want him off of our streets for that long’, . . . I’m not a psychologist or mind reader or a penologist, but you can try to pick a punishment that you think would teach this man or give him an opportunity or the Texas Department of Corrections an opportunity to rehabilitate him and work with him and put him back on the streets of Dallas again . . . . that here is a man that could be rehabilitated, he could learn and should learn to follow the norms of our society and certainly the Texas Department of Corrections is set up to do that. That is the purpose for having it. I will not have an opportunity to respond to Mr. Callan’s arguments. He will close in the case. I would assume that he will join with Mr. Ethington in asking you to return a maximum sentence in this particular case. He will probably talk to you about law enforcement and about deterrents, . . . and to just put him away for twelve years and if you think that, that is the verdict you should return, ... Or should you give the Department of Corrections a chance to rehabilitate and to work him again and they will. . . .You are taking him out of society and keeping him in jail and placing him in a penal institution for a period of years. It’s easy to talk about three years or twelve years and it doesn’t sound like much, but stop and think; what does three years mean? If a man’s 25, he’s going to be 28—
* * * * * *
“[Prosecutor]: Judge, we're going to object to any comments on how long a year is or on the time. I think the jury has been instructed not to consider for any purposes how long the Defendant will actually serve.
“THE COURT: ... you will not speculate, as directed in this charge, about how long he will serve, . that is up to the Board of Pardons and Paroles as set out in the charge. Anything said to the contrary, you just disregard it.
“[Defense Attorney]: . . . You’re taking time out of a man’s life and putting him in the Texas Department of Corrections, in a penal institution and hoping that they, in their expertise, will be able to work with him and return him where he can work in your community. He’s going to come back sooner or later. If you send him down there for twelve years, he’s going to come back sooner or later. I suggest to you that he would be more likely to return as a valuable member of your community and of my community if you are reasonable in punishing him rather than he will be if you sentence him bitter him and sentence him for a maximum. .
******
“[Prosecutor]: . . . I will submit to you there is only one place that you could look to any expertise on that and that is the Texas Department of Corrections and what I am asking you to do is to give them sufficient time to work with this man and if there is any hope of rehabilitation, I don’t know whether there is or not, there is no evidence to that issue except the fact that he has done it six times before and got out and did it again, . . . give them enough time. Mr. Finstrom is right, he’ll be back some day, but give them enough time to do whatever they can do and that’s twelve years. Now, twelve years; that’s a twelve year sentence. You know that on six prior cases, he was sentenced. If you’ll look on all of them, September 8th of 1972 and he received those sentences of two and three years for six offenses. You know from the evidence before you that on September 21st of 1973, one year and a few days later this man
“[Defense Attorney]: We object to the line of this argument as asking the jury to take into consideration that this man will be paroled in this case when they’re setting punishment.
“THE COURT: Yes, you shouldn’t. I just instructed you not to do that and any argument on it, I want you to disregard it and I told you and charged you that you would base your verdict on the evidence that you received from here and the law.

“[Defense Attorney]: We would move for a mistrial.

“THE COURT: Overruled.”

The decision of this Court with which the argument appears to conflict is Hernandez v. State, 366 S.W.2d 575. It was there decided that an argument which “in effect told the jury that it did not matter how long a term was assessed” was improper. There, in his closing argument, the prosecutor said,

“Therefore, I say this, that I feel confident that when you send him, that when he has been rehabilitated that they will turn him loose.”

In Marshburn v. State, 522 S.W.2d 900; (Tex.Cr.App.1975), we reversed upon the prosecutor’s argument “. . . and you say five years and two years later they are out committing another offense.” We found that this argument did not fall within any of the permissible areas of jury argument. Alejandro v. State, Tex.Cr.App., 493 S.W.2d 230. In Alejandro an answer to argument of opposing counsel was held to be one of the permissible areas.

The situation with which we are here faced is distinguishable from both Hernandez and Marshburn. See also Jones v. State, 522 S.W.2d 225 (Tex.Cr.App. 1975).

Here, the subject of rehabilitation as is shown above was first broached by the appellant, cf. Graham v. State, Tex. Cr.App., 422 S.W.2d 922, urging that the purpose of the penal system was to provide for the re-entry into society of convicted criminals as productive citizens, and that a maximum sentence would only serve to embitter the appellant.

The State’s argument was responsive to that of the appellant. He did not urge, as in Hernandez, that the appellant’s rehabilitation would provide for his release regardless of the sentence imposed. The reference to appellant’s prior sentence and his actions scarcely a year later, considered in the context of both arguments in their entirety, was but the prosecutor’s assertion that another light sentence would not be sufficient to effect appellant’s rehabilitation.

Similar arguments, asking for a lengthy sentence to ensure a successful rehabilitation, have been upheld in Pringle v. State, 511 S.W.2d 35, and Smith v. State, Tex. Cr.App., 457 S.W.2d 58, and held to be harmless in Cooper v. State, Tex.Cr.App., 500 S.W.2d 837.

In light of 'these decisions we feel that the prosecutor’s argument is not such a direct reference to the parole law as would call for reversal under Hernandez. Further, the jury was instructed to disregard the comment, rendering the error, if any, harmless.

Appellant also complains of argument in his last ground of error. The argument complained of is as follows:

“[Prosecutor]: . . . Now, if Joyce Coleman, Mrs. Coleman, had come in the driveway and seen him in the house, in a house, excuse me, with the television set in his hand, well, then you’ve got eyeball testimony. No, she saw him standing on the front porch, you see. He had already put the television in the car, so she saw him there.
“[Defense Attorney]: Objection to the argument of this returning, that he already put the television in the car.
“THE COURT: I sustain it unless you connect it with the evidence.
“[Defense Attorney]: We would ask that the jury be instructed to disregard that.
“THE COURT: Disregard that, please.
“[Defense Attorney]: We move for a mistrial.
“THE COURT: I’ll overrule you.”

Appellant argues that these remarks were not supported by the evidence, either directly or as a reasonable deduction therefrom. The television was found in appellant’s car parked in Mrs. Coleman’s driveway. It is a reasonable deduction from the evidence that appellant placed it there. No error appears.

The judgment is affirmed.

Opinion approved by the Court.


author: ODOM, Judge. ONION, Presiding Judge DOUGLAS, Judge

text:
    Charles NORMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 49973.
    Court of Criminal Appeals of Texas.
    June 4, 1975.

      Wayne Bagley, Amarillo, for appellant.
    Tom Curtis, Dist. Atty., John J. Wheir, Asst. Dist. Atty., Amarillo, Jim D. Vol-lers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of bookmaking; punishment was assessed at eight months in jail and a fine of one thousand dollars.

In his only ground of error, appellant asserts the trial court erred in granting the State’s motion in limine limiting cross-examination of a State witness. In ruling upon the motion, the trial court explained its ruling as follows, indicating the proper purpose of a motion in limine:

“I will grant the motion until the Defendant approaches the bench and gives me a chance to rule on it outside the presence of the jury.
* * * * ⅜ *
“Counsel, I’m not telling you that if you will present this to me outside the hearing of the jury it won’t be admissible, that’s not what I’m saying. I am simply saying I want to hear it outside the presence of the jury before you go into it.”

The record reflects that the following constituted the only further consideration of the subject matter of the motion in lim-ine:

“[Defense counsel]: Your Honor, may we approach the bench ?
“THE COURT: You may.
“(The following proceedings were had at the bench out of the hearing of the jury-)
“[Defense counsel]: Your Honor, I want to go into him being fired from the Police Department in Sayre.
“THE COURT: Well, I think that’s in the Motion in Limine, and I will stand with the motion, counsel.
“[Defense counsel]: Note our exception.
“THE COURT: I will stand with the previous ruling.”

The purpose of a motion in lim-ine is to prevent particular matters from coming before the jury. It is, in practice, a method of raising objection to an area of inquiry prior to the matter reaching the ears of the jury through a posed question, jury argument, or other means. As such, it is wider in scope than the sustaining of an objection made after the objectionable matter has been expressed. However, it is also, by its nature, subject to reconsideration by the court throughout the course of the trial. This is because it may not be enforced to exclude properly admissible evidence.

From the mere granting of a motion in limine, it is not possible for the reviewing court to know what, if any, specific evidence or other matters have been excluded. It is upon a reconsideration and the offer and exclusion of specific matter that the record is made to show what in fact was excluded from presentation to the jury, and it is upon such a record that the reviewing court must make its determination of whether reversible error is reflected in the record. Consequently, it is not the granting of a motion in limine which constitutes the basis for complaint on appeal, particularly since such disposition of the motion is subject to reconsideration upon tender of admissible evidence; it is, rather, the exclusion of the particular matter offered with the request for reconsideration which must be the basis for complaint on appeal.

The record in the instant case does not reflect a tender and exclusion of particular evidence. There is no showing of what evidence, if any, was improperly excluded. Counsel merely requested to go into matters within the scope of the motion without showing what evidence he would have presented to the jury. Nothing is presented for review.

The judgment is affirmed.

ONION, Presiding Judge

(concurring).

I concur in the affirmance of this conviction, but would do so upon the basis that appellant failed to perfect his bill of exception and would not engage in an unnecessary discussion of the purpose of a motion in limine and other matters not germane here.

Appellant’s punishment was assessed at eight (8) months in jail and at a fine of $1,000 by the jury following his conviction for bookmaking.

In his sole ground of error appellant complains of the court’s action in sustaining the State’s motion limiting the cross-examination of Glen Charles Hill, a witness for the prosecution.

The record reflects that Hill, while working as an undercover agent for the Amarillo Police Department, made the case against the appellant and was thus the State’s material witness.

Prior to trial the State filed at least three motions in limine, requesting in the first that defense counsel be instructed not to mention, refer or allude to “any alleged action of misconduct, if any, on the part of” Hill, “which did not result in a conviction in a court of record for a crime involving moral turpitude” and further requested counsel be instructed not to refer to “the sentence” in the State v. Bluejacket case. The other two motions in limine by the State asked that defense counsel be instructed not to elicit the “results” of the Phillips case or the “disposition” of the Bewley case.

The court entered a written order granting all three motions. It also orally granted the three motions before the commencement of trial, stating when counsel asked for a clarification as to the motions as to Bewley and Phillips, “Well, am I correct that Bewley was dismissed and that Phillips was acquitted?” The prosecutor replied in the affirmative. In connection with the first motion mentioned, the court stated:

“Counsel, I’m not telling you that if you will present this to me outside the hearing of the jury it won’t be admissible, that’s not what I’m saying. I am simply saying I want to hear it outside the presence of the jury before you go into it. I would like to have your cases, counsel.”

On cross-examination of Hill appellant established that, among other places, Hill had lived in Sayre, Oklahoma, where he had been employed by the police department for “not quite a month.” At this point appellant’s counsel approached the bench and stated, out of the hearing of the jury, “Your Honor, I want to go into him being fired from the Police Department in Sayre.” The court indicated, “I will stand with the Motion (in limine),” to which action the appellant excepted. At no time did the appellant by informal bill of exception, offer proof by a concise statement with the court’s approval (Article 40.09, Sec. 6(d)(1), Vernon’s Ann.C.C.P.), or otherwise show what the excluded testimony would have been if he had been permitted to elicit it in the jury’s presence. This court is thus not in a position to review appellant’s contention. See Hicks v. State, 493 S.W.2d 833 (Tex.Cr.App. 1973).

Appellant asserts in his brief that Hill was fired from his employment with the Sayre, Oklahoma Police Department because of his involvement with burglaries. It is well established that this court cannot accept as fact allegations or assertions in an appellate brief which are not supported by the record. Washington v. State, 500 S.W.2d 485 (Tex.Cr.App.1973); Devereaux v. State, 473 S.W.2d 525 (Tex.Cr.App.1971).

It would be on this basis that I would affirm the case.

I would pretermit any discussion about the purpose of a motion in limine, for its discussion is totally unnecessary to the proper disposition of the case. This case simply does not turn on whether the State filed a motion in limine. Just why the majority reaches out and attempts to discuss the purpose of such motion and seemingly attempts to limit the scope of such motion is not clear. Nor would I gratuitously hold that a ruling on a motion in limine is not such an objection which need not be renewed in the presence of the jury. See Article 40.09(6)(d)(3), Vernon’s Ann.C.C. P. In the instant case, the State’s motion in limine was granted and there was no testimony offered out of the jury’s presence to which there had been an objection as contemplated by the above mentioned statute. Here, the motion in limine, as granted, prevented the appellant from offering certain testimony before the jury, without first obtaining the approval of the court. The appellant’s counsel did approach and request to elicit or attempt to elicit the testimony desired; the court refused. Under this fact situation, it puzzles this writer as to just why the majority would add footnote #1 to its opinion. It does not fit the facts of this case. If the majority means to hold that where the defendant, as opposed to the State, makes a motion in limine which is granted the defendant still must object if the State violates such ruling on the motion in limine during the trial on the merits, why make such holding where that is not the fact situation ?

But again, even where those were the facts, the favorable ruling on the defendant’s motion in limine might not necessarily relate to or involve objected to evidence offered out of the presence of the jury, and, even if it did, why make a distinction between where evidence is offered out of the jury’s presence on a motion in limine or other occasions where the evidence is offered out of the jury’s presence? Why so limit Article 40.09(6)(d)(3), supra? I am at a loss to understand why the provisions of this statute were injected into this case or why there had to be a discussion of the purpose of a motion in limine at all.

I concur in the result only.

MORRISON, J., concurs in this opinion.

DOUGLAS, Judge

(concurring).

I concur in the result reached for the sole reason that appellant did not show what evidence was excluded.

      . The ruling of a court on a motion in limine is not within the scope of the rule of Article 40.09(6) (d) (3), Vernon’s Ann.C.C.P., which provides that an objection “to offered evidence out of the presence of the jury” need not be “renewed in the presence of the jury.” Powers v. State, Tex.Cr.App., 456 S.W.2d 97, is not in conflict with the rule announced here. Involved there was the admissibility of specific evidence, which is precisely what is not the case here. This is one distinction between a motion in limine and a motion to suppress.

      . In Brazzell v. State, Tex.Cr.App., 481 S.W. 2d 130, 131, this Court said:
      “ . . . Generally, a motion in limine will not preserve error to the admission of inadmissible evidence. The violation of a motion in limine may entitle a party to relief, but any remedies available with regard to such a violation are with the trial court. If its order has been violated, the trial court may apply the sanctions of contempt or take other appropriate action. But for error to be preserved on appeal with regard to the admission of inadmissible evidence, objection thereto should be made at the time the evidence is offered.”


text:
    Henry Richard COTTON, Appellant, v. The STATE of Texas, Appellee.
    No. 49881.
    Court of Criminal Appeals of Texas.
    June 4, 1975.
    Second Motion for Rehearing Denied June 24, 1975.

      Marion G. Holt, Nacogdoches, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION ON MOTION FOR REHEARING

BROWN, Commissioner.

Our prior opinion is withdrawn and the following is substituted therefor:

This is an appeal from a revocation of probation. Appellant was charged by indictment with the offense of assault with intent to commit murder with malice aforethought. On May 18, 1971, appellant was adjudged guilty as charged in the indictment and his punishment was assessed at five years, probated. The order granting probation provided: “That during the term of probation, the Defendant shall: a. Commit no offense against the laws of this State or any other State or the United States; . . . d. Report to the Probation Officer as directed; (No later than the 10th of each month; commencing June 1, 1971.” On September 18, 1974, a motion to revoke probation was filed charging appellant with failure to pay the probation fee of $10.00 per month, and “Failed to report (sic) the Probation Officer as directed; no later than the 10th of each month; commencing June 1, 1971.” A capias was issued the same day but was not served on appellant. On November 15, 1974, an amended motion to revoke probation was filed alleging that during the term of probation, to-wit, on or about the 24th day of June, 1972, in Dallas County, Texas, appellant committed two offenses against the laws of this State, namely, did with intent to commit theft break and enter a vehicle without the effective consent of William M. Parker, the owner; and, that on or about said date appellant did then and there in Dallas, Dallas County, Texas, knowingly and intentionally carry on or about his person a handgun, both in violation of the conditions of his probation. A capias was issued the same day and was served on appellant by the sheriff of Nacogdoches County on November 22, 1974. On November 27, 1974, a hearing was had on the amended motion and probation was revoked.

Appellant first contends that the court abused its discretion in revoking appellant’s probation because the prosecution for the offense of unlawfully carrying a prohibited weapon was barred by the statute of limitations. A revocation proceeding is not a trial or prosecution as the term is used by the Constitution in reference to criminal cases. Hood v. State, Tex.Cr. App., 458 S.W.2d 662.

Article 12.05, Vernon’s Ann.C.C.P., provides :

“An indictment or information for any misdemeanor may be presented within two years from the commission of the offense, and not afterward. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.”

This was the statute of limitations in effect at all times material to this appeal. A motion to revoke, being neither an indictment nor an information, Art. 12.05, V.A. C.C.P., supra, does not apply. See also, Waters-Pierce Oil Co. v. State, 48 Tex. Civ.App. 162, 106 S.W. 918, affirmed 212 U.S. 86, 29 S.Ct. 220, 53 L.Ed. 417, holding that the “anti-trust” laws are penal, but cases prosecuted under them for the penalties therein provided are not criminal prosecutions as such and this article does not apply to these actions as to limitations.

Appellant in his second ground challenges the sufficiency of the evidence to sustain a finding that appellant committed the offense of carrying a prohibited weapon.

At the revocation hearing, Officer Jones of the Dallas Police Department testified that he observed appellant prowling cars in Dallas, Texas, on June 24, 1972. This was the only witness who testified to the violations alleged in the amended motion to revoke. The following is a portion of the testimony adduced from Officer Jones:

“Q You did, did you not, see the defendant, Henry Richard Cotton, in Mr. William M. Parker’s vehicle with a pistol in his possession ?
“A I did.
“Q All right, sir, this did take place on the 24th of June, 1972, in the City of Dallas, did it not ?
“A It did. Yes, sir.
“Q Dallas County, Texas?
“A Yes, sir.”

Appellant did not testify and offered no evidence to refute the above-quoted testimony of the arresting officer. This testimony authorized the court to find that the appellant, during the term of his probation, committed an offense against the laws of this State, to-wit: “did then and there knowingly and intentionally carry on or about his person a handgun,” as alleged in the amended motion to revoke probation.

Appellant also challenges the sufficiency of the evidence as to the burglary of a motor vehicle allegation. In view of our holding that the court had sufficient evidence to revoke for carrying a prohibited weapon, it is not necessary to discuss this ground of error.

Appellant’s final ground of error is based upon the contention that his rights under the United States Constitution were violated when the government officials failed to proceed expeditiously with the criminal prosecution. This contention is raised for the first time on appeal. As stated above, a revocation proceeding is not a criminal prosecution. Hood v. State, supra. The amended motion to revoke was filed within the probationary period. Appellant relies upon several cases, such as, Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607. These cases hold that upon request by a prisoner for a speedy trial, the State has a constitutional duty to make a diligent good faith effort to bring him to trial in compliance with his request. Appellant made no such request. Appellant, in his motion for rehearing, suggests that our holding in this cause overrules the reversal in Strickland v. State, Tex.Cr. App., 523 S.W.2d 250 (1975). Appellant is correct in his contention. Strickland, supra, has been affirmed on motion for rehearing.

Although we do not condone arbitrary delays in revocation proceedings, we do reiterate that to preserve such contention it is incumbent upon the probationer to raise and develop the issue at such hearing to secure appellate review.

The judgment is affirmed.

Opinion approved by the Court.