text:
    WESTSIDE ENTERPRISES, INC., Plaintiff-Appellant, v. The CITY OF DEXTER, a Municipal Corporation, Defendant-Respondent.
    No. 10479.
    Missouri Court of Appeals, Springfield District.
    Dec. 6, 1977.

      Gary L. Smith, Smith & Holden, P. C., Dexter, for plaintiff-appellant.
    Paul McGhee, Dexter, for defendant-respondent.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

Plaintiff petitioned for a declaration as to the permissible uses of its property under the zoning ordinance of the City of Dexter. The petition raised issues as to whether the ordinance classified the land as single-family residential (R-l), whether plaintiff had a vested right in a commercial use and whether, if the ordinance classified the land R-l, it was invalid as applied. Although the trial court received evidence on these issues, it did not declare plaintiff’s rights but dismissed the petition. Plaintiff, on appeal, regarding the dismissal as a declaratory judgment, presents four points of error in the court’s implied findings and holdings. We view the dismissal as not having reached the merits and affirm.

The land in issue is Outlot No. 2 of Ridge-top Acres, a residential subdivision in Dexter. The plat of the subdivision shows two outlots crosshatched and marked “Commercial Area.” The Zoning Map merely copies the plat including the crosshatching and “Commercial Area” markings but places the reproduction in a boldly outlined area marked “R-l”. The ordinance incorporates the zoning map with “all its notations, references, and other information shown thereon as if the notations, references, and other matters set forth by said map were all fully described [therein].” These facts give rise to the issue of whether the ordinance includes the outlot in the single-family residential district or preserves a commercial use.

Plaintiff’s president testified that, although he frequently looked at the map, he did not believe the land was included in the R-l district until a prospective buyer, intending to build a real estate office and apartment buildings, refused to go through with the deal. The president said, “I don’t know, I think he was trying — went to get a permit.” Subsequently, plaintiff initiated procedures to get a zoning change, but the Zoning Commission refused to recommend, and the Board of Aldermen to approve, a zoning change. Although the ordinance, in conformity with § 89.100, Y.A.M.S., empowers the Board of Adjustment “[t]o hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the Zoning Inspector in the enforcement of [the] Ordinance, and may affirm or reverse, in whole or part, said decision of the enforcement officer”, the plaintiff did not seek a decision from the Zoning Inspector as to the classification of the outlot and so did not appeal such decision to the Board of Adjustment. Instead, it filed its petition for declaratory judgment which was amended, on the day of trial, to raise the issue of the classification of the outlot.

An adequate administrative remedy must be exhausted before a court may give injunctive or declaratory relief from the provisions of a zoning ordinance. Evans v. Roth, 356 Mo. 237, 244, 201 S.W.2d 357, 360-361 (banc 1947); American Hog Company v. County of Clinton, 495 S.W.2d 123, 126[6] (Mo.App.1973). Such a remedy is exclusive and failure to exhaust it deprives a court of jurisdiction to give equitable or declaratory relief. Ackerman v. City of Creve Coeur, 553 S.W.2d 490, 491[1] (Mo.App.1977). Exhaustion of adequate administrative remedies has been held to include application for such remedy as well as appeal of an unsatisfactory decision to an administrative body. Bormann v. City of Richmond Heights, 213 S.W.2d 249, 253[7] (Mo.App.1948). Since plaintiff neither applied, to the Zoning Inspector for a decision as to whether his land was classified R-l nor appealed an unsatisfactory decision to the Board of Adjustment, plaintiff failed to exhaust adequate administrative procedures. Thus, the circuit court lacked jurisdiction to declare whether the ordinance placed the outlot in the classification of R-l. We, therefore, approve its dismissal of the petition without such declaration.

Although it is generally said that the exhaustion of administrative remedies is not required where petitioner challenges the validity of a zoning ordinance [Women’s Christian Ass’n of Kansas City v. Brown, 354 Mo. 700, 709, 190 S.W.2d 900, 906[12] (1945); 82 Am.Jur.2d, Zoning and Planning, § 333, at p. 904], well reasoned cases in other jurisdictions do not except challenges to validity from the exhaustion requirement [State ex rel. Lieux v. Village of Westlake, 154 Ohio St. 412, 96 N.E.2d 414, 416-417[2] (1951)] or confine this exception to cases where the validity of the ordinance is being attacked in its entirety, and do require exhaustion where the validity of the ordinance is being challenged in its application to a particular parcel. Metcalf v. Los Angeles County, 24 Cal.2d 267, 148 P.2d 645, 647[2] (1944); West v. City of Wichita, 118 Kan. 265, 234 P. 978, 979 (1925). The following principles were held to dictate these refusals to make the exception: (1) Constitutional questions should not be decided unnecessarily, State ex rel. Lieux, supra, 96 N.E.2d at 415[1]; (2) until the application for variance or exception is made and acted upon, the legislative process remains incomplete for those procedures were included to avoid unreasonable applications, Metcalf, supra, 148 P.2d at 647[3]; (3) until a city has determined that the contemplated use is prohibited, there is no actual controversy between the owner and the city, West, supra, 234 P. at 979[2]. Equally well reasoned cases have rejected the exhaustion requirement for challenges to the validity of an ordinance as applied where the administrative remedy was found to be inadequate. Burt Realty Corp. v. City of Columbus, 21 Ohio St.2d 265, 257 N.E.2d 355, 357—358[1] (1970); Wyrostok v. Town of Hempstead, 16 Misc.2d 554, 176 N.Y.S.2d 441, 443-444[4] (1958).

Plaintiff sought a declaration that, if the ordinance classified his land R-l, it was invalid as applied because not reasonably necessary for any police power objective. He applied for and was denied a zoning change by the Zoning Commission and the Board of Aldermen; so that remedy was pursued. Since the ordinance does not permit use-variances the variance procedure is not adequate. On the other hand, there is a serious interpretive issue that could have been but was not presented to the city. If the city administrative bodies are moved, by a combination of the ambiguity of the ordinance and plaintiff’s argument as to the unreasonableness of the R-l classification, to decide that the land is not classified R-l, then there would be no issue as to the validity of the ordinance as applied. We believe, therefore, that the question of the validity of the ordinance as applied is not justiciable until the city has decided whether the ordinance does include plaintiff’s land in the single-family residential district. Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1025, 1042, 246 S.W.2d 771, 780[11] (banc 1952), appeal dismissed 344 U.S. 802, 73 S.Ct. 41, 97 L.Ed. 626. See also, Tintera v. Planned Industrial Expansion Authority, 459 S.W.2d 356, 358[3] (Mo.1970); Neidhart v. Areaco Investment Company, 514 S.W.2d 831, 832[5] (Mo.App.1974). Cf. Ewing v. City of Springfield, 449 S.W.2d 681, 687[6] (Mo.App.1970). Therefore, we approve the circuit court’s refusal to declare whether the zoning ordinance of the City of Dexter is invalid as applied to Outlot No. 2.

Plaintiff’s brief indicates that, by its petition and evidence, it sought to establish that it had a vested right in a commercial use of its undeveloped land and that the city was estopped to deny such use. Until the city has resolved the serious issue as to whether the ordinance does classify plaintiff’s land R-l, we believe that plaintiff has not been denied a commercial use and the city has not threatened to do anything it may be estopped from doing. These issues are nonjusticiable until administrative remedies are exhausted. Therefore, the circuit court was correct in dismissing plaintiff’s petition as to these issues.

The dismissal is affirmed.

All concur.


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Charles EVANS, Appellant.
    No. 37934.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 6, 1977.

      Robert C. Babione, Public Defender, Sara Harmon, Mary Louise Moran, Asst. Public Defenders, William P. Russell, St. Louis, for appellant.
    George A. Peach, Circuit Atty., Richard L. Poehling, St. Louis, John D. Ashcroft, Atty. Gen., Paul Robert Otto, Robert L. Presson, Asst. Attys. Gen., Jefferson City, for respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of stealing over $50 and his subsequent sentence of six years by the Court under the Second Offender Act. We affirm.

Three men entered the Morgan Linen Supply Company premises in St. Louis during working hours and stole ninety linen sheets worth two dollars apiece. The license plate of the car in which the thieves escaped was registered to defendant, and defendant was identified as one of the thieves by an employee who witnessed the theft. Defendant presented alibi evidence.

On appeal, defendant seeks reversal upon a claim that he had ineffective assistance of counsel. Such a claim may be raised as plain error on appeal only where the allegations arise “from isolated instances and the record as to each of them is fully developed.” State v. Hedrick, 499 S.W.2d 583 (Mo.App.1973) [5-8]. Otherwise, the proper procedure for such review is through a Rule 27.26 motion.

Defendant points to two instances to support his claim of ineffective assistance of counsel. The first is the failure of his trial counsel to object to testimony of a police officer that he conducted a line-up and the officer’s identification of a picture of that line-up. It is defendant’s contention that this testimony was improper under State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972) as it tended to bolster the identification witness’ testimony that he identified defendant in a line-up. Degraffenreid held that testimony by a police officer that a witness identified defendant in a line-up was inadmissible hearsay in the absence of impeachment of the identifying witness. The testimony of the police officer here was in no sense hearsay. He testified only to what he himself did and did not testify to any identification by the witness. See State v. Atkins, 545 S.W.2d 656 (Mo.App.1976) and State v. McKnight, 539 S.W.2d 729 (Mo.App.1976). The most that can be said against the testimony is that it was of questionable relevance. We find no basis for concluding that defendant was denied effective assistance of counsel resulting from counsel’s failure to object to the testimony.

Defendant’s second contention is that his counsel failed to preserve errors for appellate review by filing an inadequate motion for new trial. Some of the points in the motion for new trial are inadequate as too general, but these are grounds used to invoke largely discretionary rulings by the trial court and are frequently stated in motions for new trial in such terms. Defendant has argued that the remaining more specific grounds are without merit and that therefore counsel failed to preserve any matter of merit for appellate review. The difficulty with this argument is that defendant has totally failed to point out what error occurred in the trial that would warrant appellate review and which “effective” counsel should have preserved for review. Our review of the record on appeal does not disclose any obvious error. In fact, one point raised in the motion for new trial relating to an order restricting defendant’s closing argument (which defendant has persuasively argued is without merit) would appear more arguably erroneous than anything else in the record. We, therefore, cannot conclude that the motion for new trial establishes on its face that defendant was denied effective assistance of counsel.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gregory SYKES, Defendant-Appellant.
    No. 38686.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 6, 1977.

      Paul E. Corning, Jr., Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant Gregory Sykes appeals from a judgment entered upon a jury verdict in the circuit court of St. Louis County finding him guilty of robbery first degree by means of a dangerous and deadly weapon, a felony, §§ 560.120, 560.135, RSMo 1969. Defendant was sentenced to fifteen years imprisonment. For reversal defendant argues that the trial court erred in (1) admitting evidence of other crimes, (2) permitting the prosecutor to make personalized remarks and inflammatory statements to the jury in final argument, (3) giving certain oral instructions to the jury, and (4) admitting into evidence certain photographs over defendant’s objection of surprise. We reject each claim and thus affirm the judgment.

On March 6, 1976, an armed robber held up a Quick Shop market in St. Louis County, taking between $500 and $300. All five of the persons present made in-court identifications of defendant as the robber. On March 10,1976, three of the witnesses separately identified defendant from photographs and, later that day, picked defendant out of a lineup. The other two witnesses were able to identify defendant from a photograph taken of the lineup.

We reject defendant’s first claim of error pertaining to the admission of evidence of other crimes. While we agree that the police officer’s statement that he asked defendant about “some other things [he] was investigating” was inept, we do not agree that it has the prejudicial effect claimed by defendant. Defendant contends the statement prejudicially put before the jury the possibility that he had been involved in other crimes. Defendant requested the trial court to declare a mistrial — a drastic remedy. E. g., State v. Charles, 542 S.W.2d 606, 611 (Mo.App.1976).

We think the trial court’s timely instruction to the jury to disregard the police officer’s statement was adequate for three reasons. First, there was no specific crime or charge contained in the police officer’s remark. Compare State v. Lee, 486 S.W.2d 412 (Mo.1972). Second, the officer’s statement was volunteered. Third, there was no abuse of discretion in the manner in which the trial court dealt with the problem. See State v. Parker, 476 S.W.2d 513, 516 (Mo.1972); State v. Ward, 457 S.W.2d 701, 709 (Mo.1970); State v. Brunson, 559 S.W.2d 60 (Mo.App.1977).

Defendant’s second point concerns the prosecutor’s final argument. Defendant argues that the prosecutor made personalized remarks and inflammatory statements to the jury which merited the declaration of a mistrial. Our review of the record, however, indicates that none of the six statements made by the prosecutor and alleged to be prejudicial by defendant has been properly preserved for review. Three of the statements were neither objected to at trial nor contained in defendant’s motion for a new trial. Two of the statements were objected to at trial but not included in the motion for a new trial. Consequently, these five statements are matters which have been raised for the first time on appeal and are therefore not preserved for review, e. g., State v. Nevills, 530 S.W.2d 52, 54 (Mo.App.1975).

Unlike the first five contentions sought to be raised, the sixth statement was objected to at trial and set forth in the motion for a new trial. We are unable, however, to find such a statement as “put yourself in her place” in the record. When points on appeal are not set forth with particularity in a party’s motion for a new trial and are so lacking in details, nothing is preserved for review. Rule 27.20(a), V.A. M.R. (1975); e. g., State v. Madison, 537 S.W.2d 563, 565 (Mo.App.1976). Thus, none of the six statements alleged by defendant to be prejudicial has been properly preserved for review.

Furthermore, from our review of the record we find no plain error affecting substantial rights of defendant that could reasonably be deemed such that manifest injustice or miscarriage of justice has resulted from any statements made by the prosecutor, whether considered singularly or cumulatively. Rule 27.20(c), V.A.M.R. (1975). We also note that the monitoring of closing argument is traditionally a matter within the discretion of the trial court, e. g., State v. Garner, 530 S.W.2d 420 (Mo.App.1975). In this case we cannot say that the prosecutor’s statements during final argument were “plainly unwarranted and clearly injurious.” State v. Price, 541 S.W.2d 777, 778 (Mo.App.1976). Moreover, defendant was identified as the robber with certainty by five witnesses; where guilt is established by overwhelming evidence our refusal to invoke the plain error rule will not result in injustice or a miscarriage of justice. State v. Hurtt, 509 S.W.2d 14, 15 (Mo.1974); State v. Hill, 539 S.W.2d 521, 529 (Mo.App.1976).

Defendant’s next contention is that the trial court erred in giving improper instructions to the jury. Specifically, defendant argues that the trial court erred in failing to read MAI-CR 1.08(b) to the jury at certain recesses. The trial court did not read MAI-CR 1.08(b) to the jury as written. Defendant, however, failed to object to the trial court’s oral summary of the substance of MAI-CR 1.08(b). This point was not included in defendant’s motion for a new trial. Since Rule 20.08, V.A.M.R. (1975), requires that objections to instructions be raised either at trial or in the party’s motion for a new trial, this point is presented for the first time on appeal and therefore has not been properly preserved for review. State v. Grey, 525 S.W.2d 367 (Mo.App.1975).

Nor may defendant receive any consolation from the plain error rule, Rule 27.20(c), V.A.M.R. (1975). We find no misdirection or failure to instruct the jury on the law of the case so that the misdirection or failure to instruct caused manifest injustice. State v. Broomfield, 510 S.W.2d 843, 845 (Mo.App.1974).

Even if defendant’s point had been properly preserved for review, it would not merit reversal. Although failure to comply with the Missouri Approved Criminal Instructions is error, the prejudicial effect of such error is to be judicially determined. Rule 20.02(e), V.A.M.R. (1975); State v. Boyington, 544 S.W.2d 300 (Mo.App.1976). Certain minor deviations from the approved instructions which do not confuse or mislead the jury have been held not to be prejudicial. See State v. Vernor, 522 S.W.2d 312 (Mo.App.1975); State v. Fox, 521 S.W.2d 507 (Mo.App.1975). In this case the challenged instructions given by the trial court were in substance MAI-CR 1.08(b), although admittedly not in the same words. Nevertheless, the jury was neither confused nor misled by the instructions given and fully understood that they were not to discuss the case. We find the error to be harmless in this case.

Defendant’s final point is that the trial court erred in admitting into evidence five photographs, Exhibits No. 3-7. Defendant argues that because these photographs were not disclosed in response to defendant’s motion for discovery, the introduction of the photographs into evidence constituted surprise and deprived him of his right to a fair trial. Rule 25.32(A)(6), V.A. M.R. (1975), requires that the state turn over any photographs in its possession to the defense counsel in response to a motion for discovery. The imposition of a sanction for failure to comply with an applicable discovery rule, however, is a matter within the discretion of the trial court. Rule 25.45, V.A.M.R. (1975); e. g., State v. Johnson, 524 S.W.2d 97 (Mo. banc 1975); State v. Thompson, 539 S.W.2d 647 (Mo.App.1976). The question for the trial court is whether or not the failure to produce results in fundamental unfairness to the defendant. State v. Moten, 542 S.W.2d 317 (Mo.App.1976); State v. Buckner, 526 S.W.2d 387 (Mo.App.1975).

The photographs at issue are ordinary pictures of the Quick Shop market: the front of the market, the safe, the walk-in cooler, the check out area, and an empty cash register drawer. We agree with the trial court that the introduction of these photographs into evidence did not result in fundamental unfairness to defendant and find no abuse of discretion.

Accordingly, the judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.


author: FONES, Justice.

text:
    J. D. WALLACE, Commissioner of Tennessee Department of Employment Security and Tennessee Tufting Company, Appellants, v. Shirley J. STEWART, Appellee.
    Supreme Court of Tennessee.
    Dec. 12, 1977.
    Sam McAllester, E. Lee Allen, Seymour Samuels, Nashville, for appellants.
    Russell J. Overby, Legal Services of Nashville, Nashville, for appellee.
   OPINION

FONES, Justice.

This is a direct appeal by the Commissioner of Employment Security from a decree of the Chancery Court awarding benefits to claimant, Shirley J. Stewart, former employee of Tennessee Tufting Company.

Claimant was discharged for excessive absenteeism after four warnings. Her claim for benefits was denied at all three administrative levels.

The learned Chancellor held that since the material facts were not in dispute the limited scope of review provided in T.C.A. 50-1325 I. was not applicable and it was the duty of the Court to apply the law to the undisputed facts. Noting that this Court held in Troutt v. Carl K. Wilson Co., 219 Tenn. 400, 410 S.W.2d 177 (1966), that misconduct within the meaning of T.C.A. 50-1324 B. (2) must be determined on a case by case basis, there being no statutory definition, he concluded that the absenteeism in this case did not constitute misconduct.

Exhibits 8 and 9 of the employer’s proof lists 95 working days within the period from September 14, 1973, to April 23, 1976, on which claimant was absent from work or arrived late. For each date a reason for the absence or late arrival is stated. Claimant did not dispute the accuracy of any entry on the exhibits.

We summarize the entries as follows:

Claimant was absent because of the illness of one or more of her five children, or herself, 32 days and reported late for work on 10 additional days. The extent of tardiness on account of sickness ranged from one and one-half hours to five hours.

For reasons other than illness, claimant was absent 13 days and reported late for work on 40 additional days, the excuses being traffic, no ride, car trouble, flat tire, no baby sitter, business, and the like. On 17 days she was late for work less than one hour, but on 23 days her tardiness ranged from one hour to five and one-half hours.

Four additional exhibits record warnings given to claimant that her excessive absenteeism must be improved. The fourth warning, given on March 3, 1976, informed her that the company’s disciplinary rules required her discharge if she did not correct her absenteeism.

The Commissioner contends that the trial Court, in exonerating claimant, applied a dictionary definition and insists that there is a point at which absenteeism equates with an intentional disregard of an employer’s interest, and becomes misconduct.

Complainant asserts that absences due to family illness and emergencies do not constitute misconduct if notice is given.

As the Chancellor noted in his memorandum opinion, the employer recognized that claimant and her children had medical problems and that she was not “at fault” with respect to absences because of illness.

Nevertheless, the employer’s problem with this claimant’s absenteeism was expressed by its personnel manager as follows:

“. . . Its just that you can only go— even with those kind of problems, there’s only so far that a company can go with the employee before their record begins to affect other employees and other people begin to want to be out for — and they feel their reasons are just as good as Shirley’s and there is a point when the employee is no value to you if you can’t depend on them anymore and that’s about what happened to Shirley. We don’t doubt her illness, her problems with her children . . ..”
******
“It’s just that there is a point where we reach when you’ve warned and warned so long that you have to do what you’ve said you’re going to do or other employees will doubt you and won’t make any attempt to come to work.”

The question of whether absenteeism constitutes “misconduct connected with his work” had not been addressed by this Court.

T.C.A. § 50-1324 B. (2) reads, in relevant part, as follows:

“If the commissioner finds an individual has been discharged for misconduct connected with his work (other than the gross misconduct mentioned in subsection (1) of this section), he shall be disqualified for the duration of the ensuing period of unemployment and until he has secured subsequent employment covered by an unemployment compensation law of this state, or another state, or of the United States, and earned thereby five (5) times his weekly benefit amount.”

In our opinion, excessive absenteeism may be the basis of a finding of misconduct by the commissioner. What constitutes absenteeism must be left to be determined case by case, at least until the Legislative provides a definition of misconduct.

No aspect of contract of employment is more basic than the right of the employer to expect employees will appear for work on the day and at the hour agreed upon. Persistent failure to honor that obligation evinces a substantial disregard for the employer’s interest and may justify a finding of misconduct connected with the employment.

Ample authority may be found in other jurisdictions to the effect that persistent or chronic absenteeism without notice or excuse in the face of warnings from the employer constitutes such misconduct as requires a denial of unemployment compensation. See Broadway & Fourth Ave. Realty Co. v. Crabtree, 365 S.W.2d 313 (Ky.1963); Krawezyk v. Unemployment Compensation Board of Review, 175 Pa.Super. 361, 104 A.2d 338 (1963); Chapman v. Division of Unemployment Security, 104 So.2d 201 (La.App.1958).

The degree of disregard for the employer’s interest shown by absenteeism that will equate with misconduct, may involve many factors and the weight and significance to be assigned them defies precise delineation.

We believe the Legislature intended to vest discretion in the Commissioner to make that decision, upon the facts in each case, and by T.C.A. § 50-1325 I. it has limited the scope of review by the Courts to a determination of whether “there be any evidence to support the same . . .

We have no hesitancy in reaching the conclusion that claimant’s absenteeism and tardiness, for reasons other than sickness, was sufficient to support a finding by the Commissioner of misconduct in the face of the warnings given, and all of the circumstances of this case.

Reversed and dismissed. Costs are adjudged against appellee, Shirley J. Stewart.

HENRY, C. J., and COOPER, BROCK and HARBISON, JJ., concur.


author: WALKER, Presiding Judge.

text:
    James Thomas JEFFERSON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    May 20, 1977.
    Rehearing Denied June 23, 1977.
    Certiorari Denied by Supreme Court Oct. 11, 1977.

      Avon N. Williams, Jr,, Nashville, for appellant.
    Brooks, McLemore, Jr., Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Thomas H. Shriver, Dist. Atty. Gen., Nashville, for appellee.
   WALKER, Presiding Judge.

OPINION

In State v. Jefferson, Tenn., 529 S.W.2d 674 (1975), a limited remand was ordered for an evidentiary hearing on the plea in abatement alleging systematic exclusion of Negroes from grand and petit juries in Davidson County and on the allegations that blacks were systematically excluded from the petit juries by the use of a computer.

After an evidentiary hearing, the trial judge (sitting by designation) filed his memorandum in which he overruled all of the appellant's contentions. We approve his findings of fact and conclusions of law and affirm the judgment of dismissal.

In disposing of Jefferson’s attack on the composition and constitutionality of the grand jury, the trial judge found:

“As to the selection of the Grand Jury, the Court finds that by Chapter 53 of the Private Acts of 1947, the Judge of the Criminal Court was the official responsible for selection of the Grand Jury; that such act has heretofore been found to be constitutional and is not a question in this hearing; that in the May, 1968, term at which the indictment was returned, the Honorable Raymond H. Leathers, Judge of Division I of the Criminal Court for Davidson County, selected the Grand Jury; that Judge Leathers had appointed Grand Jurors on a rotating basis since September, 1958, when he became Judge; that on some of those he had not appointed any black persons; that he probably did not appoint more than one black person on any particular Grand Jury prior to May of 1968; that as shown by ‘Defendant Exhibit No. 8’ introduced in this hearing, which is a stipulation filed in a previous case, eight black persons had served on those Grand Juries; that in selecting the Grand Jury for the May, 1968, term of the Court the Judge selected thirteen (13) persons, one of which was a black person; that subsequent to this it was necessary to select substitute jurors for this panel, and that using the list of regular jurors who had been called for Trial Jury service, two (2) other black persons were selected as substitute jurors and that one of these black persons was made a regular member of the Grand Jury on May 24, 1968; that two black persons were serving on the Grand Jury which indicted the defendant on 19 July 1968; that in selecting persons to serve on Grand Juries under the Private Act of 1947, the Judge sought people in the community who were reputable people; that the selection of black people was done so as to include some black people on the Grand Jury; that no factor was used in determining the number of black persons to select for Grand Jury service; that the same method for selecting white persons and black persons was used, that is by finding reputable people to serve on Grand Juries; that the evidence in this ease does not show that the Judge selecting the Grand Jury of May, 1968, systematically excluded black persons from the Grand Jury, nor did he include black persons in such a manner as to indicate ‘token inclusion’ so as to render the Grand Jury an improper body.”

In challenging the dismissal, the appellant insists that the court erred in limiting his proof to the May 1968 grand jury that indicted him. He contends that under Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), he should have been permitted to show racial discrimination over a long period of time.

Although the trial judge held that the issue involved only the grand jury that indicted Jefferson, he permitted the appellant to introduce stipulations and exhibits from earlier cases that showed the statistical representation of Negroes on the grand juries in previous years. Called by the appellant, the judge who impaneled the grand jury testified that he obtained the names of prospective jurors from any source he desired; that he chose jurors through recommendations and through observing persons in the courtroom and that he picked white jurors the same way he picked black ones. In all of his selections, he was only interested in getting 12 persons who voted their consciences. He had been judge of Division I since September 1, 1958.

Based on this system, the record shows that eight blacks served on the judges’ grand juries from September 1958 to May 1968, and there was usually only one black on each jury panel although some jury panels contained no blacks.

The plea in abatement alleged that not more than one black served on the grand jury that indicted Jefferson. On the contrary, two permanent members of that jury were black, and a black alternate was available. The percentage of blacks to the total population eligible for jury duty was 15.4, not far from the average for the county. There was no substantial underrepre-sentation of his group on this grand jury. With the alternate considered, at times during that term 23 percent blacks were available for the grand jury. There is no substantial disparity here which would suggest any discriminatory purpose or that blacks had been systematically excluded from Davidson County grand juries.

Racial discrimination in the Davidson County grand jury selection process may have existed prior to 1948. See Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). However, for the period of 1952 through 1971, the grand jury selection process has survived constitutional scrutiny from at least three separate courts. Allen v. State, unpublished, Tenn.Cr.App., February 1, 1973; Allen v. Rose, unpublished, D.Tenn., M.D., February 25, 1973; Allen v. Rose, unpublished, 6th Cir., April 30, 1974. In addition, the statute authorizing judges to select the grand jury has also been upheld. Canady v. State, 3 Tenn.Cr. App. 337, 461 S.W.2d 53 (1970).

Although the trial judge did not allow Jefferson the wide ranging latitude he sought, we have examined the entire record and find that he did not improperly restrict the appellant in presenting his proof. On the whole record before us, the trial judge correctly found that the selecting judge did not discriminate against blacks in the grand jury process.

We now turn to the selection procedures of the petit jury. As we have indicated, we also agree with the trial judge’s memorandum on this issue.

Beginning in 1969, a computer was used to select the names of potential jurors. Information was gathered from voter registration lists and customer rolls of the Nashville Electric Service, which provided 30,000 and 5,000 names, respectively. Every seventh name on the jury list was chosen. From those 35,000 names, the computer randomly selected 20,000 which were placed in the jury box; the remaining 15,000 names were stored as a surplus.

At the time of the trial, the Davidson County voter registration lists were racially coded. In contrast, however, the computer cards and the NES list bearing the names of potential jurors had no racial identifying marks. Apparently, coded voter lists have since been discontinued permanently.

Two blacks served on the trial jury. Of the 785 jurors summoned for the case, under this challenged computer system, 751 are identifiable by race, 621 being white and 130 black. Thus, 17.31 percent of those identifiable by race were black. According to the 1970 census, blacks compose 18.26 percent of those over 18 and under 65 in Davidson County, the age group from which most jurors are now ordinarily called. Of those over 21 and under 65, the age group from which jurors at that time were essentially drawn, blacks compose 17.55 percent. Of the entire population over 21, blacks make up 17.75 percent from the 1970 census figures.

In his plea in abatement, Jefferson alleges that the 1960 census shows that approximately 44,984 adult Negroes were eligible for jury duty as compared to 197,949 white persons. By these figures 18.52 percent were black. We notice from the census report that 44,984 was the nonwhite population which included above five percent of races other than black. This would make only an insignificant reduction in the percentage. Those nonwhite over 21 and less than 65 were about the same by the 1960 census, 18.5 percent. Although there are only slight differences between the reports, the 1970 census figures may more accurately reflect the population in 1968 and 1971 when the grand and petit juries here were impaneled.

Neither the jury roll nor the ve-nire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Not even disproportionate impact appears here. Jefferson has not met his burden of proving the fact of underrepresentation of Negroes. Partida, supra. On the other hand, the record shows a close relationship between the jurors called and the percentage of blacks in the community. It shows no reason for any disparity, and there was no substantial un-derrepresentation on the petit jury.

The appellant argues that a smaller percentage of blacks than whites are registered to vote in Davidson County and are on the customer rolls of the NES. He contends these are biased selection tools and should be excluded.

The United States Constitution does not mandate the sources for jury lists so long as they reasonably reflect a cross section of the community. Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970). Voter registration lists are generally considered the most inclusive list of names for potential jurors. These lists supplemented by the NES rolls did not show invidious discrimination or discriminatory practices but, in fact, reflect the required random selection. See Carter, supra. Exclusive use of voter lists may have a chilling effect on the exercise of the franchise and the jury commission wisely supplemented them by the NES rolls. This resulted in a proper jury list and one which was administered without racial discrimination. Even if there had been a disproportionate impact resulting from the use of these lists, it would not in itself merit relief. Davis, supra.

Jefferson urges that the computer could be programmed to make racial identifications on the cards, that there was personal handling of the computer, and that the jury box could be tampered with to produce racial discrimination. Since the record discloses no such practices, his argument is little more than abstract speculation, which is inconsistent with the rule that such practices cannot be merely asserted, but must be proven. Swain v. Alabama, supra.

The evidence shows that the jury officials had no access to the coded voter registration lists nor gave any racial consideration in calling the jurors. All they had were the names from the computer printout, and these were not racially coded. In short, the computer selection methods were essentially neutral in both design and impact, with the result that Jefferson was not denied any constitutional rights.

All assignments are overruled and the judgment of the trial court is affirmed.

DWYER and TATUM, JJ., concur.

ON PETITION TO REHEAR

In this cause a petition to rehear has been filed and considered. Upon examination, it appears that it does not conform to Rule 32 of the Supreme Court adopted by this court. No new argument has been made, and no new authority has been adduced by the appellant. No material fact has been overlooked by the court. The petition is therefore denied.

DWYER and TATUM, JJ., concur.


author: STEAKLEY, Justice.

text:
    Jerry SAUCIER, Relator, v. Honorable Enrique H. PENA, Judge of the Court of Domestic Relations of El Paso County, Texas, Arnold F. Card and Margaret Card, Respondents.
    No. B-6922.
    Supreme Court of Texas.
    Dec. 7, 1977.
    Rehearing Denied Jan. 18, 1978.
    Schwartz & Earp, David R. McClure, El Paso, for relator.
    Merkin, Gibson & Hines, William L. Mer-kin and Sidney K. Gibson, El Paso, for respondents.
   STEAKLEY, Justice.

This is an original mandamus proceeding. Relator, Jerry Saucier, seeks the writ to compel Honorable Enrique H. Pena to vacate his order denying Relator’s petition for Writ of Habeas Corpus for possession of his daughter, Dalene Tafflene Saucier. The writ is conditionally granted.

Jerry and Margo Saucier were the parents of Dalene. They experienced marital difficulties and suit for a divorce was filed. Shortly thereafter Margo died. At the time of her death Margo and Dalene were living with Margo’s mother and step-father, Margaret and Arnold F. Card. Under date of February 27, 1968, the 171st District Court of El Paso County, Texas, ordered that Richard Corbin, the grandfather of Dalene, have temporary custody of Dalene until the separation of Relator from military service; and ‘that Relator have permanent custody of Dalene after such event.

When Relator was separated from active duty eight months later he was denied possession of his daughter. He filed suit for injunction and for writ of habeas corpus against Corbin in the Court of Domestic Relations of Smith County, Texas, the county of residence of Corbin. Corbin filed a cross-action for an order changing custody. The cross-action was denied by an order of the court dated October 7, 1968 and Corbin was ordered to surrender Dalene to Relator who would have permanent care, custody and control of Dalene.

Under some type of mutual arrangement, Dalene lived principally with Margaret and Arnold F. Card for a number of years. Thereafter, upon the remarriage of Relator, he sought possession of Dalene. This was denied by Mr. and Mrs. Card who then filed suit affecting the parent-child relationship pursuant to the Family Code, Tex.Fam. Code Ann. §§ 11.04 et seq. (1975). The suit was filed in the Court of Domestic Relations of El Paso County and sought the appointment of the Cards as co-managing conservators of Dalene. Relator then filed an Application for Writ of Habeas Corpus invoking the prior orders of the 171st District Court of El Paso County and of the Court of Domestic Relations in Smith County. Judge Pena declined to act immediately on the Application for Habeas Corpus but proceeded to hear the suit instituted by the Cards. After hearing evidence at some length Judge Pena in an order signed the 13th day of May, 1977, denied Relator’s Application for Writ of Habeas Corpus and appointed Arnold F. Card and wife, Margaret Card, temporary managing conservators of Dalene. This order reads, in pertinent part, as follows:

. The Court heard all of the evidence, which was concluded on April 21, 1977, and thereafter heard the argument of counsel. Being fully advised in the premises and having determined that it has jurisdiction of the person and subject matter of said minor, and that all parties are properly before the Court, and having further determined that the best interest of said minor, DALENE TAFFLENE SAUCIER, would be served by awarding temporary managing conservatorship to ARNOLD F. CARD and wife, MARGARET CARD;
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Application and Amended Application for Writ of Habeas Corpus filed on behalf of JERRY SAUCIER be, and they are hereby, denied in all respects and held for naught;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, considering the best interest of said minor child, ARNOLD F. CARD and wife, MARGARET CARD, be, and they are hereby, appointed as temporary managing conservators of DALENE TAF-FLENE SAUCIER, a minor child, and JERRY SAUCIER be, and hereby is appointed temporary possessory conservator of said minor child. The Court, at a later date and after further consideration, shall designate specific visitation rights of said possessory conservator with the minor child, at those places and on those dates deemed appropriate by the Court.

Insofar as this record shows, the prior orders of the courts in El Paso and Smith Counties were valid and subsisting on January 1, 1974, when the Family Code became effective.

Notwithstanding, it is apparent that Judge Pena did not act upon Relator’s Application for Writ of Habeas Corpus as required by Section 14.10 of the Family Code as it read at the time. This statute, in pertinent part, provided:

§ 14.10 Habeas Corpus
(a) If the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator if and only if it finds that the relator is presently entitled to possession by virtue of the court order.
(b) The court shall disregard any cross action or motion pending for modification of the decree determining managing con-servatorship, possession, or support of or access to the child unless it finds that the previous order was granted by a court of another state or nation and that:
(1) the court did not have jurisdiction of the parties; or
(2) the child has been within the state for at least 12 months immediately preceding the filing of the petition for the writ.
(c) The court may issue any appropriate temporary order if there is a serious immediate question concerning the welfare of the child.

The Legislature has provided that obedience to existing court orders shall be compelled by habeas corpus proceedings. Modification of an existing order may not be entertained except in two instances which do not here exist. Standley v. Stewart, 539 S.W.2d 882 (Tex.1976). The general rule now is that the writ should be granted when the relator shows that he or she is entitled to custody of the child by virtue of a valid and subsisting court order. The right to possession may not be relitigated in the habeas corpus hearing; the relator is entitled to an issuance of the writ immediately on a showing of his or her right to custody. Further, mandamus is a proper remedy to compel enforcement of the relator’s right to possession. Lamphere v. Chrisman, 554 S.W.2d 935 (Tex.1977).

It is argued that the order of Judge Pena is nevertheless sustainable under Subsection (c) of Section 14.10; and that, as stated in the brief of Mr. and Mrs. Card, Judge Pena “could have found a serious, immediate threat to the . . . well-being of the child.” But it is apparent from the face of the order that Judge Pena did not invoke this subsection. His order does not purport to rest upon, and there is no finding with respect to, a serious immediate question concerning the welfare of the child. It recites only “that the best interest of said minor, Dalene Tafflene Saucier, would be served by awarding temporary managing conservatorship to Arnold F. Card and wife, Margaret Card,” for which reason Relator’s Application for Writ of Habeas Corpus was denied.

Relator was presently entitled to immediate possession of Dalene under the existing court orders. It was the statutorily imposed obligation of Judge Pena in response to Relator’s Application for Writ of Habeas Corpus to issue the writ to compel the delivery of Dalene into the possession of Relator. We emphasize, as we did in Lam-phere, that our holding here does not prejudge the issues raised in the suit of Mr. and Mrs. Card for permanent appointment as managing conservators of Dalene. The only issue we have resolved is Relator’s right to immediate possession of Dalene.

It is assumed that Judge Pena will vacate his order denying Relator’s petition for Ha-beas Corpus and that he will issue the requested writ. A writ of mandamus will issue only if he declines to do so.

      . Sec. 4. (a) This Act takes effect on January 1, 1974, and governs all proceedings, orders, judgments, and decrees in suits and actions brought after it takes effect, and also all further proceedings in actions then pending, except to the extent that in the opinion of the court its application in an action pending when this Act takes effect would not be feasible or would work injustice. All things properly done under any previously existing rule or statute prior to the taking effect of this Act shall be treated as valid.
      (b) Any action or suit commenced after January 1, 1974, that has as its object the modification of an order, judgment, or decree entered prior to January 1, 1974, but which under this Act would be a suit affecting the parent-child relationship, is governed by the provisions of this Act, and shall be treated as the commencement of a suit affecting the parent-child relationship in which no court has continuing exclusive jurisdiction. 1973 Tex.Gen.Laws, ch. 543, § 4(a), (b), at 1459.

      . Subsequent to the order here in question, Article 14.10 was amended, effective August 29, 1977.


author: PHILLIPS, Judge.

text:
    Robert D. ALLEN, Appellant, v. The STATE of Texas, Appellee.
    No. 55564.
    Court of Criminal Appeals of Texas.
    Nov. 30, 1977.
    State’s Motion for Rehearing Denied Jan. 11, 1978.

      Andrew B. Logan, San Antonio, for appellant.
    Bill M. White, Dist. Atty., Larry R. Lin-nartz and Bennie F. Steinhauser, Jr., Asst. Dist. Attys., San Antonio, Jim D. Yollers, State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

Appellant pleaded guilty to the offense of aggravated assault and the court assessed punishment at four years’ confinement.

Appellant contends the evidence is insufficient and the trial court erred in failing to set aside the plea of guilty when evidence indicating his innocence was admitted.

Appellant waived his right to be charged by indictment and pleaded guilty to an information which charged that on August 23, 1975, appellant “did then and there knowingly and intentionally cause serious bodily injury to another, namely: IRENE SALAZAR.” Appellant contends the evidence fails to show the complaining witness suffered serious bodily injury.

The offense to which appellant pleaded guilty occurred after the prosecutrix and a friend, Karen Miller, were picked up while hitchhiking by appellant and two other males in a van. The driver proceeded toward the place where the girls wanted to be taken and then turned off, saying they were taking a shortcut. The van came to a stop in a brushy area near a slight ditch and a dirt road. Miller managed to escape, but the prosecutrix was raped by one of the three. While the prosecutrix was resisting being placed again in the van, Miller and two police officers arrived and apprehended appellant and one of his companions.

Appellant executed a written waiver and consent to stipulation of testimony in accordance with Art. 1.15, V.A.C.C.P. This stipulation recites appellant is the person named in the information and that all the acts and allegations in the information are true and correct, and further includes the following judicial confession:

“I, Robert D. Allen, on the 23rd of August 1975 in Bexar County, Texas did then and there knowingly and intentionally cause serious bodily injury to wit, bodily injury that created a substantial risk of serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ, to another, namely Irene Salazar, while acting with John Gaines.”

The stipulation also includes by reference exhibits 1, 1-A through 1-0 and recites that appellant, his counsel and the attorneys for the State agree that such exhibits and stipulations as well as the stipulation may be considered as a part of the statement of facts and that such stipulated evidence is true and correct. The stipulation is signed by the appellant, his attorney, and the attorney representing the State, and was approved in writing by the trial court. The stipulation and the exhibits attached thereto were acknowledged at the guilty plea proceeding by appellant to be true and correct and were received in evidence. No further evidence or testimony was offered. Thus, the only evidence which tends to prove the element of serious bodily injury is contained in these exhibits.

The prosecutrix’ three page statement appears as exhibits 1-J through 1-L. In addition to references to being grabbed by the arm and pushed toward the brush, the statement recites she resisted the removal of her clothes, was pushed down on the ground, a hand was placed on her vagina and she was picked up and carried back to the van, where she placed her hands on the van to prevent reentering the van. The statement nowhere mentions she sustained any injury that would constitute serious bodily injury.

State’s exhibit 1-0, a medical report prepared later that night shows the prosecu-trix’ general appearance was normal. State’s exhibit 1-0 reflects the following:

“EXAMINATION
Assault Complaint: Was hitch hiking picked up and assaulted.
Clothing: Blouse and jeans not torn General Appearance and Emotional Status: Normal
General Physical Examination: Normal"

There is no indication that the prosecu-trix suffered serious bodily injury in the police report, State’s exhibits 1-A through 1-1 or in Miller’s statement, State’s exhibit 1-M through 1-N. Further, the offense report of Officer T. Cavazos, who arrived at the scene of the offense with Officer Hamilton and Karen Miller, includes the notation “None” under that portion of the offense report “Injuries Received — Hospital, etc.”

The exhibits attached to the stipulation and made a part thereof did not show the prosecutrix suffered “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” See V.T.C.A., Penal Code, Sec. 1.07(a)(34).

In Sanchez v. State, 543 S.W.2d 132, involving convictions for aggravated assault upon pleas of guilty to the court, we held the trial court should have withdrawn the pleas of guilty upon its own motion because the evidence reasonably and fairly raised an issue of fact as to the innocence of the defendants. Notwithstanding the written stipulations of the defendants, we reviewed the evidence offered at the trial, including the exhibits and statements from the injured party, his companions, and the investigating police officers, and we said, “[I]t is highly questionable that the evidence is sufficient to show serious bodily injury to constitute a felony offense charged.”

Likewise, the evidence here presented was insufficient to show serious bodily injury, as charged in the information, and our holding in Sanchez v. State, supra, is controlling. The evidence before the court reasonably and fairly raised an issue of fact as to the innocence of appellant and under these circumstances the trial court should have withdrawn the plea of guilty on its own motion.

The judgment is reversed and the cause remanded.


text:
    Ex parte Harold RIVERS.
    No. 56716.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1977.
    State’s Motion for Rehearing Denied Jan. 11, 1978.
    Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C. C.P.

On June 13, 1977, petitioner entered a plea of guilty to the offense of felony theft in Cause No. 76-458-C, and his punishment was assessed by the trial court as a second offender under V.T.C.A., Penal Code, Sec. 12.42(a), at a term of twelve (12) years in the penitentiary. No appeal was perfected from this conviction.

Petitioner filed an application for writ of habeas corpus with the trial court, contending that the prior conviction alleged for enhancement was void, since that conviction was based upon a fatally defective indictment under this Court’s prior opinions in Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973) and Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975). The record reflects that the prior conviction in question was a 1961 McLennan County robbery by assault conviction in Cause No. 14758, with the petitioner being assessed a six-year term of imprisonment on his plea of guilty to the court. The indictment in Cause No. 14758 reads as follows, to-wit.

“. . . on or about the 14th day of July A.D., 1960 in said County of McLen-nan and State of Texas, Harold Dwayne Rivers, in and upon Mrs. J. F. Butcher did make an assault; and did then and there, by the said assault, fraudulently and without the consent of the said Mrs. J. F. Butcher, take from the person and possession of her, the said Mrs. J. F. Butcher, One Hundred and Sixty One ($161.00) Dollars in money, with the intent to deprive the said Mrs. J. F. Butcher of the same and to appropriate the same to his, the said Harold Dwayne Rivers own use

The trial court entered findings of fact and conclusions of law finding that the indictment in Cause No. 14758 was indeed fatally defective, since it failed to allege ownership of the property with the victim. The trial court’s findings are supported in law and in fact. See Lucero v. State, supra; Bouie v. State, supra; Batro v. State, 531 S.W.2d 614 (Tex.Cr.App.1975); Ex parte Fontenot, 550 S.W.2d 87 (Tex.Cr.App.1977); French v. State, 531 S.W.2d 613 (Tex.Cr.App.1975); Ex parte Haywood, 550 S.W.2d 292 (Tex.Cr.App.1977); Ex parte Jones, 542 S.W.2d 179 (Tex.Cr.App.1976); Ex parte Fuqua, 548 S.W.2d 909 (Tex.Cr.App.1977).

The prior conviction thus being rendered void by the fatally defective State’s pleading, it logically follows that this prior conviction is unavailable for enhancement purposes as in the case of any void prior conviction. See Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); Smith v. State, 486 S.W.2d 374 (Tex.Cr.App.1973); Ex parte Williams, 486 S.W.2d 566 (Tex.Cr.App.1973); Ex parte Webster, 497 S.W.2d 305 (Tex.Cr.App.1973); Ex parte Rodgers, 519 S.W.2d 861 (Tex.Cr.App.1975); Ex parte Shivers, 501 S.W.2d 898 (Tex.Cr.App.1973); Henderson v. State, 552 S.W.2d 464 (Tex.Cr.App.1977); Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972); Ex parte Taylor, 484 S.W.2d 748 (Tex.Cr.App.1972); Ex parte Giacona, 518 S.W.2d 832 (Tex.Cr.App.1975).

Therefore, we hold that the prior conviction alleged for enhancement purposes was void, and was unavailable for enhancing petitioner’s punishment to the range of a second degree felony. See Sec. 12.42(b), supra. The trial court has recommended that the ease be remanded for a new sentencing hearing since petitioner’s punishment was originally assessed by the trial court, and we concur with the trial court’s findings in this regard. See Ex parte Friday, 545 S.W.2d 182 (Tex.Cr.App.1977); Ex parte Hill, 528 S.W.2d 125 (Tex.Cr.App.1975).

The relief requested is granted, and the case is remanded back to the trial court for the reassessment of a proper punishment as a third degree felony. See Bullard v. State, 533 S.W.2d 812 (Tex.Cr.App.1976).

IT IS SO ORDERED.


author: RAY, Justice.

text:
    COMMERCIAL TRADING CORPORATION and J. A. Mermis III, et al., Appellants, v. H. E. SEARSY et al., Appellees.
    No. 8320.
    Court of Civil Appeals of Texas, Texarkana.
    March 1, 1977.
    Rehearing Denied April 5, 1977.
    Application for Writ of Error Granted by Texas Supreme Court July 27, 1977.

      Walker, Bishop & Larimore, Tom L. Lari-more, Fort Worth, Sessions, Sessions, Neill, Scucchi & Hatch, W. R. Sessions, Dallas, for appellants.
    Dean Carlton, Dallas, for appellees.
   RAY, Justice.

The original opinion of this Court is withdrawn and the following opinion is substituted.

This is a case involving commodity options. H. E. Searsy and others, appellees (plaintiffs), brought a class action against appellants (defendants), Commercial Trading Corporation (CTC); Standard Trading Corporation (STC); Whitley R. Sessions, court-appointed receiver of Commercial Trading Corporation and Standard Trading Corporation; J. A. Mermis, III; James W. Grafton and J. W. Estes, for recision and damages resulting from alleged violations of the Texas Securities Act and the Federal Securities Act of 1933 in connection with the purchase by appellees of commodity options from appellant Commercial Trading Corporation.

Trial was to a jury and appellees were granted judgment against appellants jointly and severally in the sum of One Hundred Eighty-seven Thousand Seven Hundred Fifty-eight Dollars Eighty Cents ($187,758.80). W. R. Sessions, receiver, has perfected his appeal and submits nine points of error for our consideration. The other appellants submit seven points of error in their appeal.

In 1974 the United States Congress enacted the Commodity Futures Trading Commission Act of 1974, P.L. 93-463, 88 Stat. 1389, 1 U.S.Code Cong, and Admin. News, p. 1589 (1974), 7 U.S.C.A., Sec. l-17b, which became effective on April 21, 1975. The Act preempted the field by giving the Commodity Futures Trading Commission exclusive jurisdiction with respect to the regulation of the sale of commodity options. The instant case arose before the effective date of the Act so the Act does not apply to this case. The issues presented to us, however, will be examined for the applicability of the Texas Securities Act (Tex.Rev.Civ.Stat.Ann. Art. 581-1, et seq.) and the Federal Securities Act of 1933 (15 U.S.C.A., Sec. 77b(l) (1971), et seq.). State v. Monex International, Limited, 527 S.W.2d 804 (Tex.Civ.App. Eastland 1975, writ ref'd); Clayton Brokerage Co. of St. Louis, Inc. v. Mouer, 520 S.W.2d 802 (Tex.Civ.App. Austin 1975, writ dism’d); Clayton Brokerage Co. of St. Louis, Inc. v. Mouer, 531 S.W.2d 805 (Tex.1975).

The appellees, investors in commodity options, alleged that the commodity options sold to them were securities that were not registered under the Texas Securities Act or the Federal Securities Act of 1933, and that the sales were induced by false, misleading and deceptive practices made by CTC and its agents in violation of the Texas Deceptive Trade Practices and Consumer Protection Act (Tex.Bus. & Comm. Code Ann., Sec. 17.41, et seq. (Supp. 1976-1977)).

In answer to sixty-two special issues, the jury found several instances of untrue representations made by CTC to the investors which were intended to induce the purchase of commodity options and which were in fact relied upon. However, in answer to Special Issue No. 26, the jury found that Commercial Trading Corporation had represented that the commodity options were not securities. In answer to Special Issue No. 53, the jury found that the commodity options sold by CTC were not investment contracts. An investment contract was defined in the court’s charge as “a contract, transaction, or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party.”

A threshold question on appeal is whether or not the commodity options sold by Commercial Trading Corporation constituted “securities” under Texas or Federal Law. Liability of the individual appellants depends solely on a finding of their violation of the securities laws since they are not alleged to have perpetrated any fraud or deceit.

An action under the securities laws has a greater reach than does an action for fraud. Texas has an expansive and stringently applied rule for determining which individuals are liable for the sale of securities. A seller may be found in violation of the securities laws if he forms any link in the chain of the selling process or if he performs any act by which a sale is made. Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704 (1956); Christie v. Brewer, 374 S.W.2d 908 (Tex.Civ.App. Austin 1964, writ ref'd n.r.e.). See the Comments to the 1963 Amendment of Article 581-33, Tex.Rev.Civ.Stat.Ann.

The appellees (plaintiffs) did not submit a special issue inquiring whether or not the individual appellants performed any act by which sales were made or whether they in any way participated in the selling process. The evidence does not establish as a matter of law that the individual appellants formed any such link in the chain of the selling process or performed any acts by which sales were made. However, assuming, but without deciding, that the individual appellants as directors of CTC should be considered a link in the chain of the selling process because they knew that unregistered commodity options were being sold and their names were being used in advertising literature to induce the sales, then the classification of the commodity options in this case as securities would therefore be of pivotal importance to the issue of the liability of the three individual appellants.

Commodity options are not specifically included within the statutory definitions of “security”. Tex.Rev.Civ.Stat.Ann. Art. 581-4; 15 U.S.C.A. 77b(l). The definitions do, however, include as securities both “investment contracts” and “evidence of indebtedness”. The options sold by CTC must be examined to ascertain possible inclusion under either term which would lead to the options being classified as “securities”.

“Evidence of indebtedness” has been interpreted to include “all contractual obligations to pay in the future for consideration presently received.” United States v. Austin, 462 F.2d 724, 736 (10th Cir. 1972). We have concluded that the commodity options in the present case were not evidences of indebtedness. They were simply contracts in which CTC agreed to obtain commodity futures for the customer if and when the customer exercised his options. Though it has been held in King Commodity Company of Texas, Inc. v. State, 508 S.W.2d 439 (Tex.Civ.App. Dallas 1974, no writ) and in Securities and Exchange Commission v. Continental Commodities Corporation, 497 F.2d 516 (5th Cir. 1974), that a commodity option may become an evidence of indebtedness, the facts do not call for such a conclusion in this case. In King, the options were sold as “guaranteed” obligations of King to pay money to its customers. In Continental, it was necessary for the company to issue certain promissory notes to its customers, evidencing monies due by Continental to its customers. In the instant case, no such facts were present to preclude application of the general rule that a commodity option is not an “evidence of indebtedness”. United States v. Jones, 182 F.Supp. 146 (W.D.Mo.1960); Hiller v. Olmstead, 54 F.2d 5 (6th Cir. 1931).

It is well settled that an “investment contract” requires an investment of money in a common enterprise with profits to come solely from the efforts of others. Securities and Exchange Commission v. W. J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946), 163 A.L.R. 1043 (1946); Koscot Interplanetary, Inc. v. King, 452 S.W.2d 531 (Tex.Civ.App. Austin 1970, writ ref’d n.r.e.). The appellants deny that either the community-of-interests (common enterprise) or the efforts-of-others requisites is met by their mode of operation.

The facts surrounding appellant’s operations are not in dispute. CTC was engaged in the sale of commodity options. Each investor would enter into a contract with CTC which stipulated the contract to be of a speculative nature and not a security. The investors would deal only with CTC, which acted as broker, buyer, seller and source of payment on the exercise of the options. The investors were advised that the commodity options they were about to purchase were not registered in the State of Texas.

An analysis of the evidence shows that each of CTC’s customers purchased his options separately. None was investing in CTC or STC, and the measure of profits realized on the options was not related to the success of appellants or to that of any other customer. The customers had nothing in common with each other except the same broker. Profit was related to the fluctuating market price of the chosen commodity.

The customers were not entitled to participate in any way in the earnings of CTC. Commercial Trading Corporation did not accept any discretionary accounts so it did not manage its customer’s funds. Each investor decided which option to purchase and when and if it should be exercised. Any profit to the investor would be determined by a coordination of the exercise of the option within the fluctuations of the commodity market. When prices rose or fell beyond the amount of the premium paid to CTC, an investor could exercise his double option accordingly to sell or buy. His profit would be the difference between the market price at the time the option was exercised and the amount of his premium. The financial well-being of the corporate defendants had nothing to do with the amount of profits to which customers became entitled. There is no fact-finding nor was there any issue submitted to the jury which found that the customers were relying on the efforts of STC to generate funds from its hedging operation with which to pay any customer or to provide funds to CTC with which to pay the customer. Neither is there any evidence of any contractual relationship between an investor and STC. The sales literature which the investor received indicated that the brokerage firm being used for hedging purposes was Kohlmeyer & Company of New Orleans, Louisiana. We conclude there was no evidence to establish that the investor was relying on STC to provide a sinking fund or auxiliary fund out of its hedging operations with which to provide money to CTC to pay investors. Neither does the evidence establish that the investor was induced to purchase his commodity option on the basis that profits earned would be paid out of auxiliary funds generated by STC, or that the funds in STC would be used as a guarantee that CTC would always have enough money with which to pay the investor.

CTC and STC comingled their funds. The accounting indicates that about 70% of the gross receipts from premium payments was credited to STC as a hedging pool, while the remainder was exhausted in overhead expenses. Working from the hedging pool, STC would make investment of hopefully high yield both in and out of the commodities market. Ultimately, STC was called upon to pay out more to CTC than it was able to realize on its investments. However, the evidence does not indicate that the investors knew of this operation or in any way relied upon it as an inducement to purchase commodity options.

The report of the court appointed Master indicates that the sale of new options by CTC was becoming a prerequisite to honoring the exercise of the old options. However, the corporate appellants were placed in receivership while still solvent and before any options were dishonored.

The traditional test of a “security” or “investment contract” contains four essential elements:

(1) an investment of money;
(2) a common enterprise;
(3) the expectation of profits; and
(4) that the profits will be derived solely from the efforts of the promoter or third party.

Without the existence of all four, there is no investment contract, and hence no security requiring registration under state or federal law. Requirements 1 and 3, the investment of money and the expectation of profits, are undisputed. Elements 2 and 4, common enterprise and profits derived from the efforts of others, have been highly contested.

The Dallas Court of Civil Appeals, in King Commodity Company of Texas, Inc. v. State, supra, stated in reference to a “common enterprise” the following:

“It is a reasonable inference from this evidence that the money necessary to hedge each option could come only from pooling of the premiums paid by other customers and that if King’s use of this money in its trading operations was not profitable, no funds would be available to pay customers their profits. Thus the trial court would have been justified in finding, and we presume that it did find, that the evidence establishes a ‘common enterprise’ within the Howey test.”

The appellants have argued that the “common enterprise” requisite is defeated in the present case because each commodity option was unitary, unaffected by the success or failure of all others. We disagree. The authorities seem split on whether commonality is required among investors, or between investor and promoter. In support of requiring commonality among investors, the appellants cite Milnarik v. M-S Commodities, Inc., 457 F.2d 274 (7th Cir. 1972). The better view, however, seems embodied in Securities and Exchange Commission v. Continental Commodities Corporation, supra, and the authorities cited therein. In an opinion specifically repudiating Milnarik, the court stated in Continental the following:

“[T]he fact that an investor’s return is independent of that of other investors in the scheme is not decisive. [SEC v. Koscot Interplanetary, Inc., 497 F.2d 473, 479 (5th Cir. 1974)] . . .
. . [T]he critical inquiry is confined to whether the fortuity of the investments collectively is essentially dependent upon promoter expertise. . . .”

The sale of a simple commodity option is not the sale of an investment contract where the purchaser’s only source of profit is the commodities market itself. Sinva, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 253 F.Supp. 359, 366 (S.D.N.Y.1966); McCurnin v. Kohlmeyer & Co., 340 F.Supp. 1338, 1341 (E.D.La.1972). The sale of commodity options is the sale of investment contracts when the investors’ contributions are pooled by the dealer so that the source of profit becomes not only the commodity market but also the trading operations of the market dealer. King Commodity Company of Texas, Inc. v. State, supra; Clayton Brokerage Co. of St. Louis, Inc. v. Mouer, supra.

The facts of the present case meet the test of “common enterprise” as set out in King, supra, and Clayton Brokerage, supra, but we have concluded that the facts are insufficient to establish the second requirement of the Howey test, that is, that the investor be led to expect profits solely or substantially from the efforts of the promoter or a third party. The critical element, then, is the dominance of the promoter over the enterprise as a whole in determining whether or not the investor was led to expect his profits solely from the efforts of the promoter.

In King, the options were exercised by the promoter without further instructions from the customer whenever the market price reached the point at which the amount of profits previously determined could be realized. There, promoter dominance was paramount. The court stated:

“In short, the evidence shows that after the original transaction no effort or participation on the part of the customer was necessary in order to realize a profit, although the customer could elect to make his own decision as to the time of exercising his option.”

In Clayton Brokerage, supra, the court concluded that the promoter’s scheme was commonly known in the trade as the management of discretionary accounts in which the investor’s account is managed and supervised solely by the promoter even though the customer may have a legal right to participate in the commodity trading. There, the customers looked to the promoter for their profits.

In the present case, the appellants neither sold interests in a profit-sharing scheme nor did they manage an investment pool’s interest in options. Commercial Trading Corporation did not accept any discretionary accounts so it did not manage its customer’s funds. Appellant CTC sold individual commodity options and placed itself between the investors and the market by making itself the source, but not the measure, of profits to be paid. There is no evidence of a profit-sharing scheme in which the measure of profits of the investors fluctuates with the profits of the promoter. Profit sharing is a key element which can determine whether a contractual obligation is a security or not. 69 Am. Jur.2d, Securities Regulations, Sec. 26, p. 1088. It has been held that where the element of profit sharing is absent, there is no security. People v. Hoshor, 92 Cal. App.2d 250, 206 P.2d 882.

The operations of CTC more closely resemble that of the sales of single individual options rather than the management of an investment pool or a profit-sharing scheme. What the promoters were managing, STC’s hedging operations, the investors had no interest in; and what the investors had an interest in, the commodities market, the promoters were not managing. We therefore conclude that the evidence supports the jury’s finding in answer to appellees’ Special Issue No. 53, that the commodity options sold by CTC were not investment contracts because the requirement of the How-ey test, expectation of profits solely from the efforts of the promoter, was not met. The trial court erred in disregarding the jury’s finding.

Appellees alleged that they had been defrauded by appellants. The jury found in response to special issues related to fraud that the following misrepresentations of material facts were made by CTC to induce investors to purchase commodity options and were in fact relied upon:

Special Issue No. 1. That the operations of Commercial Trading Corporation were adequately funded.
Special Issue No. 7. That all purchasers were assured of payment.
Special Issue No. 13. That appellants had sufficient margin on deposit with Kohlmeyer & Company to cover all purchases.
Special Issue No. 19. That all purchases through appellants were hedged with Kohlmeyer & Company, New Orleans, Louisiana.

The jury found that the following material fact was not disclosed:

Special Issue No. 41. That the recovery of the funds invested was dependent upon the success of appellants’ business as continuing to find additional investors.

The appellees pleaded that the foregoing misrepresentations and failure to disclose were in violation of the Texas Deceptive Trade Practices and Consumer Protection Act. However, no evidence was offered by appellees which would tie these allegations to any pecuniary loss. Neither was there a prayer for relief on these allegations.

A necessary element in a cause of action for fraud or deceit is pleading and proof that the complaining party suffered a pecuniary loss. 2 McDonald's, Texas Civil Practice, Sec. 6.17.1, pp. 121,122. Nominal damages are not awarded in deceit actions, and there can be no recovery if the plaintiff is none the worse off for the misrepresentation, however flagrant it may have been, as where he receives all the value that has been promised and for which he has paid. Prosser, Law of Torts, p. 731 (4th ed. 1971). In fraud and deceit cases the gist of the action is the showing of actual damage and hence, without pleading and proof of actual damage, the case will fail and nominal damages will not be allowed.

This case was tried in heavy reliance on the strict liability theory of appellants’ failure to register the commodity options under the state and federal securities laws. The appellees have not connected their losses on the commodity market with the misrepresentations alleged to have been made by the promoters-appellants.

The judgment of the trial court is reversed and judgment is here rendered that appellees take nothing.


author: EVANS, Justice.

text:
    W. Dial BLACK, Jr., Appellant, v. KIDDER, PEABODY & CO., INC., Appellee.
    No. 16928.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 3, 1977.
    John H. Marshall, Houston, for appellant.
    Carrington, Coleman, Sloman, Johnson & Blumenthal, Corbet F. Bryant, Jr., Dallas, for appellee.
   EVANS, Justice.

This is an action for usury.

W. Dial Black, Jr. sued Kidder, Peabody & Co., Inc., a stock brokerage firm, alleging that without his knowledge or consent, Kidder had purchased his margin account from the brokerage firm of Clark, Dodge & Co., and had charged usurious interest against his account in the amount of $7,715.94. After a nonjury trial, the trial court entered a take-nothing judgment from which Black appeals.

In 2. ugust 1971 Black opened a margin account with Clark, Dodge & Co. after his stockbroker, Richard Bradley, joined that firm’s Houston office. Thereafter Black’s stock transactions were handled through Bradley, either in person or on the telephone, and Black was mailed monthly confirmations and credit statements. At the time Black opened his account with Clark, Dodge, he executed a Customer’s Agreement which provided that its terms and enforcement would be governed by the laws of the State of New York. The agreement further provided that it would remain in effect until terminated in writing or until Black’s account was closed, and that the agreement would inure to the benefit of and be binding upon any successor or as-signee of Clark, Dodge.

In May 1974 Kidder acquired the customer accounts of Clark, Dodge and it thereafter handled Black’s margin account until Black’s stockbroker, Bradley, moved to another company in January 1975. Prior to the time that Black’s account was closed, he was mailed monthly statements by Kidder which showed the interest being charged against the debit balance of his account. The trial court filed extensive findings of fact and on the basis of its findings concluded as a matter of law that the interest charges on Black’s margin account made by Clark, Dodge and Kidder were legal and not usurious under New York law.

Black first contends that the trial court erred in its conclusion that the interest charges were legal and not usurious under New York law, arguing that no evidence was introduced at the trial as to the content and nature of the laws of New York and, alternatively, that Kidder had failed to file a timely, proper motion with the court to take judicial notice of Rule 184a Texas Rules of Civil Procedure.

Kidder’s pleadings clearly set forth its contention that the interest transactions in question are governed by the laws of the State of New York, and that the interest charged was, therefore, not usurious. Although Black does not contend that he was unaware of Kidder’s position in this respect, or that the law of New York is other than as contended by Kidder in its pleading, he complains that his position was prejudiced by Kidder’s failure to make a formal motion requesting the court to take judicial notice prior to the time that both parties rested their case.

This point does not present reversible error. Gould v. Awapara, 365 S.W.2d 671, 674 (Tex.Civ.App.—Houston 1936, no writ). The conclusions of law filed by the trial court show that it judicially noted the laws of New York and that it was sufficiently satisfied as to the meaning and application of such laws. The record does not establish that this was an abuse of the trial court’s discretion or that Black was denied an opportunity to properly respond to the foreign law. Cutler v. Cutler, 543 S.W.2d 1, 4 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.); Wickware v. Session, 538 S.W.2d 466, 470 (Tex.Civ.App.—Tyler 1976, no writ). Although the trial court did not enter an express order granting Kidder’s motion that it take judicial notice of the laws of New York, its determination in this respect is presumed from its judgment and conclusions of law. Schwartz v. Vecchiotti, 529 S.W.2d 603, 606 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ). Black’s first point of error is denied.

Black next contends that the trial court erred in holding that the laws of New York governed the interest charges made by Kidder. Black reasons that the paragraph in the Customer's Agreement, which stipulates that the laws of New York will govern the agreement, does not apply to the matter of interest because a subsequent paragraph expressly provides that interest charges will be the subject of a separate credit statement.

Paragraph 17 of the Customer’s Agreement provides as follows:

“17. This agreement and its enforcement shall be governed by the laws of the State of New York.”

Paragraph 19 of the Customer’s Agreement provides as follows:

“19. Debit balances of the accounts of the undersigned shall be charged with interest in accordance with the terms presented in the ‘credit statement’ which has been received and accepted by me.”

It is Black’s contention that the credit statement referred to in paragraph 19 constituted a separate and independent agreement between the parties, and, therefore, should be accorded controlling effect with respect to all matters relating to the charging of interest, including the rate of interest which legally could be charged.

The form of credit statements issued by Clark, Dodge and by Kidder is a printed information letter notifying the customer of the interest rates to be charged against the debit balances of the margin account and indicating the manner in which such interest charges are to be calculated. It is apparent from the face of the statement that it is not intended to be signed by either the brokerage firm or the customer and that its purpose is to assist the customer in determining how interest is to be charged against the margin account.

The Customer’s Agreement is the only executed contract in evidence between the brokerage firms and their customers. Paragraph 17 of that agreement provides that the agreement and its enforcement shall be governed by New York law. This provision is not limited in scope or application. It constitutes an unambiguous stipulation of the parties that the stock transactions which are made pursuant to the agreement shall be governed by the laws of New York. Harris County v. Howard, 494 S.W.2d 250 (Tex.Civ.App.—Houston [1st Dist.] 1973, writ ref’d n. r. e.); City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515 (Tex.1968).

Black also complains that Kidder charged interest against his account on a basis different from the method used by Clark, Dodge, but he fails to demonstrate that this difference caused the interest charges to be usurious under the laws of the State of New York. Black’s action against Kidder is solely for the recovery of damages based upon his allegations that the interest charges in question were usurious. The evidence supports the trial court’s conclusion that Kidder was entitled to charge interest in accordance with rates which were legal under New York law and that the interest charges made by Kidder against Black’s margin account were legal and not usurious.

Black further contends that the evidence is legally and factually insufficient to support the trial court’s finding that Clark, Dodge effectively assigned his margin account to Kidder, arguing that the evidence shows that his account with Clark, Dodge was closed in July 1974, and that his Customer’s Agreement with Clark, Dodge, therefore, was terminated at that time.

The Customer’s agreement authorized Clark, Dodge to assign its customer’s account and provided for the continuation of the successor firm’s rights and obligations under the agreement. The evidence shows that Kidder acquired all customer’s accounts of Clark, Dodge, and the mere fact that Black’s margin account was then given a new account number does not compel the conclusion that his original account was closed at that time. The trial court’s findings that Black’s margin account had not terminated upon the assignment from Clark, Dodge to Kidder, and that Black was bound to Kidder under the same contractual agreement that he had with Clark, Dodge are properly based upon sufficient evidence.

In view of the disposition made with respect to the points of error discussed above, it becomes unnecessary to discuss Black’s points of error pertaining to Kidder’s defense of estoppel and to the question of whether Black had notice of Kidder’s acquisition of his margin account. All remaining points have either been foreclosed by the disposition of the points discussed or have by reason of such disposition no further bearing on the determination of the appeal.

The judgment of the trial court is affirmed.


author: WARD, Justice.

text:
    Carlos WAGNER et al., Appellants, v. CITY OF SAN ANTONIO, Appellee.
    No. 6635.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 9, 1977.
    Rehearing Denied Nov. 28, 1977.
    Appleberry, Deyeso & Haase, Inc., Frederick J. Deyeso, San Antonio, for appellants.
    James M. Parker, City Atty., Jackson C. Hubbard, Asst. City Atty., San Antonio, for appellee.
   OPINION

WARD, Justice.

The Plaintiffs, Appellants, as landowners and irrigators sued the City of San Antonio to recover damages for breach of contract occurring when the City stopped transporting sewage effluent from its Rilling Road Sewage Treatment Plant through a long established open canal. Trial was to a jury, but upon the termination of the Irrigators’ case the trial Court granted the City’s motion for an instructed verdict and entered judgment for the City. The-Plaintiffs/Irri-gators present points that a breach of their contract has occurred; that the City has taken or damaged a valuable property right associated with their lands without adequate compensation being made in violation of Article 1, Sec. 17, of the Texas Constitution; and that the City has benefited through an inequitable and unjust enrichment. We affirm.

At least since the turn of the century, the City of San Antonio has by contract turned certain effluents from its sewage system into Mitchell Lake, the effluent being used by neighboring property owners for the purpose of irrigation. A concise presentment of the factual background to this case is made by the City in its brief as follows: (1) The original controversy is revealed in the case of City of San Antonio v. San Antonio Irrigation Company, 118 Tex. 154, 12 S.W.2d 546 (1929). (2) On May 30, 1932, the City through its City Commissioners duly passed and approved “an ordinance authorizing the settlement of the controversy with the San Antonio Irrigation Company and creating a contract with Charlotte Cassin, Sidney J. Brooks and Cora Ogden for an easement on Mitchell Lake and other property.” This ordinance contract was accepted and executed on May 31, 1932, and all Plaintiffs/Irrigators are successors in interest to the San Antonio Irrigation Company and the individual parties to that 1932 ordinance contract. (3) From and after 1932 until October 1, 1970, the City delivered sewage, untreated or treated, from the “sewer farm” and later from the City’s Rilling Road Sewage Treatment Plant into the open ditch or canal leading to Mitchell Lake, and the Irrigators and their predecessors in title took water from the ditch or canal and the lake as their needs required. (4) In 1962, at a cost in excess of $300,-000.00, the City completed construction of an underground pipeline from the Rilling Road Sewage Treatment Plant to Mitchell Lake — a distance in excess of two miles. (5) On August 27, 1963, the City purchased fee title to Mitchell Lake together with an adjacent 9.54 acres but subject to the provisions of the 1932 ordinance contract. (6) On August 21, 1970, the City was enjoined from transporting effluent from the Rilling Road Sewage Treatment Plant to Mitchell Lake through the open ditch or canal unless that portion adjacent to Villa Coronado Subdivision was converted into a closed conduit. Plaintiffs/Irrigators were all parties to the suit in which this injunction was entered against the City. (7) Since October, 1970, all discharges from the Rilling Road Sewage Treatment Plant to Mitchell Lake have been made through the underground pipeline constructed in 1962. (8) Since October, 1970, when the City ceased to discharge any effluent through the open canal, all of the Plaintiffs/Irrigators, with one exception, have irrigated some portion of their lands at one time or another from Mitchell Lake.

The City’s position is that it is ready, willing, and able to provide and to have available to the Plaintiffs/Irrigators the effluent for irrigation purposes from the underground pipeline constructed in 1962 or the Mitchell Lake reservoir and is in compliance with the terms and conditions of the 1932 ordinance contract. The Plaintiffs, conceding that they have the right to take the effluent from either the underground pipeline or from Mitchell Lake, contend and show that neither of these methods of obtaining effluent is economically feasible for their farms, while the taking of the effluent from the abandoned open canal is an economic necessity due to its elevation and its proximity to their respective properties and existing ditches.

The primary issue for determination is whether there has been any breach by the City of the 1932 ordinance contract. By its terms, that contract rescinded the former contract dated 1901, referred to in the opinion of the City of San Antonio v. San Antonio Irrigation Company, supra, and settled that suit. The ordinance contract then granted to the City of San Antonio an easement to make and maintain the open canal to Mitchell Lake and to make and maintain the reservoir at Mitchell Lake for all sewage which the City might convey to it. The contract provided that the Plaintiffs’ predecessors in interest were granted a sewage water right of 10,000 acre feet a year from the then existing outfall sewer and/or any outfall sewer that might be built and which could be taken from the canals or from Mitchell Lake reservoir until September 11, 2001, the same to be taken by Plaintiffs’ predecessors from the canals and the reservoir at places to be chosen by them, the contract providing that they were not obligated to take any sewage except such part as they might choose to demand.

Of controlling importance and determining the issue is Paragraph 41 of that ordinance contract. That Paragraph provides as follows:

“This grant shall never mature into a vested right which would require compensation to the grantees, their heirs, successors or assigns, if the governing body of the City requires a change in the method of sewage disposal, which would cause the City to abandon the use of the canals and of the reservoir, and dispose of the sewage at some other place, and deprive the grantees of the sewage, and terminate this contract.”

As seen, the governing body of the City required a change in the method of sewage disposal which caused the City to abandon the use of the open canal. The Plaintiffs argue that the City is liable, however, because the change in the method of sewage disposal caused abandonment of only a portion as opposed to the entire system. To read that contention into the contract would be to require that the City close the open ditch adjacent to the Villa Coronado Subdivision and convert it into a closed conduit at a considerable expense. To the contrary, there is no requirement in the contract for the City to spend public funds to alter or modify its sewer facilities for the protection and preservation of the Irriga-tors’ private interest. Also, to read the Plaintiffs’ position into'the contract would be to read an implied obligation on the part of the City to finance at public expense the avoidance of any future event unforeseen and uncontemplated in 1932 which might have a detrimental effect on the Irrigators’ rights.

The City, as a political subdivision of the State, could not contract or surrender away its police or governmental powers. To follow the contention of the Plaintiffs would be to read the contract in a way which would inhibit or restrict the City in its free exercise of those governmental powers. Clear Lake City Water Authority v. Clear Lake Utilities Company, 549 S.W.2d 385 (Tex.1977). We hold that the City, under the terms of the ordinance contract, could cease to discharge effluent through the open canal and use the underground pipeline constructed in 1962 without having committed a breach of its contract. Stevenson v. City of Abilene, 67 S.W.2d 645 (Tex.Civ.App.—Eastland 1934, writ ref’d). The Plaintiffs’ first point contending to the contrary is overruled.

Since we have determined that there was no breach of contract, the Plaintiffs’ two remaining points, being premised that a breach of contract occurred, present no error and are overruled. The judgment of the trial Court is affirmed.