author: ONION, Presiding Judge. ROBERTS, Judge,

text:
    Michael Kay ALLEN, Appellant, v. The STATE of Texas, Appellee.
    No. 53654.
    Court of Criminal Appeals of Texas.
    June 29, 1977.

      Thomas M. Roberson, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis M. Bell and Robert C. Bennett, Jr., Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

Appellant was convicted by a jury for capital murder. See V.T.C.A., Penal Code, § 19.03(a)(2). The court assessed punishment at life imprisonment.

This appeal presents questions of procedure in capital murder cases where it is undisputed that the accused was under seventeen (17) years of age at the time of the commission of the offense. The appellant contends he was denied due process of the law and the right to a fair and impartial trial when the trial judge rather than the jury assessed punishment, and that the trial judge erred in permitting the State to proceed under a capital felony indictment.

Capital murder is a capital felony. V.T. C.A., Penal Code, § 19.03(b). An individual adjudged guilty of a capital felony is punishable by confinement in the Texas Department of Corrections for life or by death. V.T.C.A., Penal Code, § 12.31(a).

V.T.C.A., Penal Code, § 8.07(e), in effect at the time of the alleged offense and appellant’s trial, however, provides:

“(e) No person may, in any case, be punished by death for an offense committed while he was younger than 17 years.”

The indictment, omitting the formal parts, alleged that the appellant on or about April 1, 1974:

“did then and there unlawfully and intentionally cause the death of Eric Siegfried, hereafter styled the Complainant, by shooting the Complainant with a gun, and the Defendant was in the course of committing and attempting to commit robbery. . . . ”

At the trial it was stipulated by the appellant and the State that the appellant was sixteen (16) years of age on April 1, 1974, the date on which the alleged offense occurred. Attached to the written stipulation, approved by the court, was a certified copy of appellant’s birth certificate showing that he was born on August 31, 1957. The stipulation thus established, without dispute, that the appellant was 16 years of age at the time of the commission of the alleged offense.

At the time of the entrance of his plea of not guilty, appellant requested that in the event of conviction the jury assess his punishment, and in addition, he filed a motion for probation before the jury. These measures would ordinarily entitle an accused to a jury at the penalty stage of a criminal trial on a non-capital charge. See Article 37.07, Vernon’s Ann.C.C.P. After the conclusion of the guilt stage of the trial, the court submitted the case to the jury charging on capital murder and felony murder (V.T.C.A., Penal Code, § 19.02), etc. After the jury returned a verdict finding the appellant guilty of capital murder as charged in the indictment, the trial court discharged the jury and assessed punishment at life. There was no penalty stage of the trial.

Article 37.071, Vernon’s AnmC.C.P., is the applicable statute in capital murder cases. It provides in part:

“(a) Upon a finding that the defendant is guilty of a capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or life imprisonment. The proceeding shall be conducted in the trial court before the trial jury as soon as practicable. . . ”

Article 37.071(b), (c) and (d) provide for certain issues to be submitted to the jury at the punishment hearing, the burden of proof on those issues, and the number of votes necessary for answering the issues. Article 37.071(e) requires the court to sentence the defendant to death if the jury returns affirmative findings to the issues submitted or to life imprisonment if any issue submitted is answered in the negative.

While V.T.C.A., Penal Code, § 12.-31(a), provides that either life or death may be assessed for a capital felony as the instant offense, V.T.C.A., Penal Code, § 8.07(e) [now § 8.07(d)], provides that the death penalty cannot be imposed upon any person who was under 17 years of age at the time of the offense. Therefore, in the instant case life imprisonment was the only punishment that could be assessed since death was removed as a possible penalty, not by the action of the prosecutor, but the clear expression of the legislative will expressed in enacting said § 8.07, supra.

While a jury is ordinarily required in all capital murder cases at the “sentencing proceeding” by virtue of the provisions of Article 37.071, supra, the very purpose of the jury at such stage of the bifurcated trial is to answer the special issues submitted to them. Dependent upon the answers, the court then, not the jury, assesses the punishment. However, in the instant case it would be irrelevant what evidence would have been offered or how the jury answered the issues submitted because the only permissible punishment was imprisonment for life. To hold that a jury was required to hear evidence and answer special issues in the instant case would be to require a useless thing. The law does not require a useless thing to be done. We do not believe the Legislature intended such result.

Appellant relies upon Batten v. State, 533 S.W.2d 788 (Tex.Cr.App.1976). We believe Batten to be distinguishable upon its facts. There an adult defendant was charged with capital murder. Prior to trial the court took the position the State had waived the death penalty since it had not filed written notice it would seek the death penalty, relying upon the provisions of Article 1.14, Vernon’s Ann.C.C.P. Such statute had been amended in 1973 to eliminate the requirement of such written notice and the trial court was in error. Since the trial court no longer considered death a possible punishment, it refused to permit the defendant to exercise 15 peremptory challenges permitted in capital cases or to voir dire the prospective jurors individually apart from the entire panel. We concluded the trial court was in error. There we stated:

“We agree that in the wake of Furman [v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)] the Legislature has adopted a ‘category of cases’ view and has adopted a mandatory procedure to be followed in capital cases where the extreme penalties of death or life imprisonment are involved, and that it is not possible to say, absent a clear legislative expression, that the possibility of the imposition of the death penalty was the sole reason the Legislature mandated the procedure to be used in capital murder cases. Under the statutory scheme adopted, the State may not waive the death penalty, but even in cases such as the instant one where such waiver has been improperly permitted, the capital case procedures, including the right to fifteen peremptory challenges, are still applicable even though the only possible penalty under the circumstances would be life imprisonment.”

In the instant case the trial court granted the appellant 15 peremptory challenges and allowed the prospective jurors to be examined individually and apart from the entire panel. As earlier noted, death was removed from the instant case not by the action of the trial court or the prosecution but by expression of the legislative will enacting V.T.C.A., Penal Code, § 8.07, and the undisputed evidence of appellant’s age.

Consequently, in construing the statutes, including V.T.C.A., Penal Code, §§ 19.03, 12.31(a), 8.07(e) (now 8.07(d)) and Articles 37.071 and 1.14, Vernon’s Ann.C. C.P., we hold that where an accused is convicted of capital felony at the guilt stage of the trial and it is undisputed that he was under 17 years of age at the time of the commission of the offense, a trial judge does not err in excusing the jury at the penalty stage of the trial or “sentencing proceeding” and assessing the punishment at life imprisonment since that is the only punishment that can be assessed. In effect, under the circumstances the punishment was fixed by law. See and cf. Zaragosa v. State, 516 S.W.2d 685 (Tex.Cr.App.1974), and cases there cited.

Further, this court has recognized that an accused has no constitutional right to have a jury assess punishment. Martin v. State, 452 S.W.2d 481 (Tex.Cr.App.1970); Green v. State, 474 S.W.2d 212 (Tex.Cr.App.1971); Hall v. State, 475 S.W.2d 778 (Tex.Cr.App.1972); Emerson v. State, 476 S.W.2d 686 (Tex.Cr.App.1972); Johnson v. State, 492 S.W.2d 505 (Tex.Cr.App.1973); Hill v. State, 493 S.W.2d 847 (Tex.Cr.App.1973); Jones v. State, 502 S.W.2d 771 (Tex.Cr.App.1973); Ex parte Giles, 502 S.W.2d 774 (Tex.Cr.App.1973).

Appellant's initial contention is overruled.

Appellant next contends:
“The trial court committed reversible error when it allowed the state’s attorney to proceed on a capital felony indictment.”

Appellant takes the position that since he could not be legally executed because of V.T.C.A., Penal Code, § 8.07(e), the State should not have been allowed to proceed against him on the capital murder charge, but should have proceeded against him for non-capital murder under V.T.C.A., Penal Code, § 19.02. This question was decided adversely to appellant in Batten v. State, supra, where we held that the Legislature had adopted a “category of cases” view rather than a “penalty” view of the offense. Moreover, in those causes where an accused is charged with several crimes growing out of the same transaction under Article 21.24, Vernon’s Ann.C.C.P., or is charged with one crime which includes lesser offenses under Article 37.09, Vernon’s Ann.C.C.P., we know of no authority which would prohibit the State from seeking a conviction for the crime having the highest penalty. See, e. g., Stephens v. State, 522 S.W.2d 924 (Tex.Cr.App.1975).

We further observe that the trial court charged the jury both on the elements of capital murder and murder under § 19.02, supra. The court applied the law to the facts as to both offenses. By its verdict, the jury found appellant guilty of the higher offense, capital murder. No error is shown.

Appellant’s second contention is overruled.

The judgment is affirmed.

ROBERTS, Judge,

dissenting.

Capital murder is capital felony. V.T. C.A., Penal Code, Sec. 19.03(b). By definition, a capital felony is one which provides death as a possible punishment; in truth, it is the death penalty feature which distinguishes a capital felony from all other crimes. As the plurality said in Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2992, 49 L.Ed.2d 944 (1976), “the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.”

It follows that an indictment for capital murder is proper only where one of the possible penalties is death. Section 12.31(a), supra; Woodson v. North Carolina, supra. Yet the record in this case unequivocally shows that the State knew, before appellant was indicted, that he was sixteen years old at the time of the offense, and therefore too young to be subjected to the death penalty. V.T.C.A., Penal Code, Sec. 8.07(e).

Thus, it had been established, well before appellant was indicted, that death was not a possible penalty for the offense. I would hold in such a case that capital murder was not an offense “liable to indictment” under Article 20.09, Vernon’s Ann.C.C.P., and, therefore, the grand jury did not have the power to inquire into a capital murder indictment in this case. Once it became evident that the appellant was not yet seventeen years old at the time of the offense, the grand jury was precluded from indicting him for capital murder. Similarly, the trial judge was required to dismiss any capital murder indictment against appellant as soon as appellant’s age made itself known. Ex Parte Davila, 530 S.W.2d 543 (Tex.Cr.App.1975).

In Davila, the petitioner was imprisoned after having been convicted for the offense of statutory rape under our former Penal Code. However, his trial and conviction took place after the effective date of our present Penal Code, which lowers the age of consent — from eighteen to seventeen — for females engaging in sexual intercourse. In accord with Section 6(b) of the Savings Provisions of our new Code, we held that since the prosecutrix in Davila’s case was between seventeen and eighteen years old, the State did not have the power to prosecute Davila after the effective date of the new Code. We held that:

“As we held in our original opinion, this case is controlled by subsection 6(b) of the Savings Provision of our new Penal Code. Under that provision, the trial court was required to dismiss the indictment as soon as it became evident that the conduct alleged was no longer an offense. Once this lack of jurisdiction manifested itself, the sufficiency of the evidence ceased to be relevant, since the indictment should have been dismissed when the evidence was presented showing the complainant to have been over seventeen years of age. [footnote omitted]” Ex Parte Davila, supra at 546.

In addition, I find the majority’s position cannot be reconciled with several decisions of this Court under our former Penal Code which held that a person under seventeen may never be denied bail in a murder case, since such a person may not be given the death penalty. Ex Parte Enderli, 110 Tex.Cr.R. 629, 10 S.W.2d 543 (1928); Ex Parte Walker, 28 Tex.App. 246, 13 S.W. 861 (1889); Walker v. State, 28 Tex.App. 503, 13 S.W. 860 (1890); all of these cases were cited with approval in Ex Parte Contella, 485 S.W.2d 910 (Tex.Cr.App.1972), where we held that bail could not be denied in a capital case under our former law after the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

In Ex Parte Walker, supra, 28 Tex.App. at 247, 13 S.W. at 861, the court held:

“But a person who commits murder in the first degree before he arrives at the age of 17 years cannot, under our statute, be punished capitally; that is, with death. . As to him the punishment cannot be death, and his offense is not, therefore, a capital one; for an offense is not capital which may not be punished with death. This statute abolishes capital punishment in all cases where the offender has not, at the time of the commission of the offense, arrived at the age of 17 years.”

And in Ex Parte Adams, 383 S.W.2d 596, 597 (Tex.Cr.App.1964), this Court held that “when proof was made that relator was under seventeen years of age when the offense was committed, the case pending against him was no longer a capital case and he could waive a trial by jury and enter his plea of guilty before the court.”

It follows that the grand jury in this case did not have the power to present, and the trial court did not have the power to try, this capital murder indictment against appellant. Accordingly, I would hold that the grand jury, and subsequently the trial court, erred by entertaining this indictment for capital murder.

This error was compounded when appellant was denied his statutory right to trial by jury on the issue of his punishment. See Art. 37.07, Vernon’s Ann.C.C.P. Of course, had appellant been indicted for a non-capital felony, he could not have been deprived of this right, since he filed a timely and proper motion requesting that the jury assess punishment. Art. 37.07, supra; Gibson v. State, 549 S.W.2d 741, 742 (Tex.Cr.App.1977), and authorities there cited.

I would therefore reverse the judgment and order that the prosecution under this indictment be dismissed.

PHILLIPS, J., joins in this dissent.

      . Now see V.T.C.A., Penal Code, § 8.07(d) [Acts 1975, 64th Leg., p. 2158, ch. 693, § 24, eff. Sept. 1, 1975], which is to the same effect. See also former Article 31, Vernon’s Ann.P.C., 1925.

      . The indictment was returned on September 25, 1974, after appellant’s seventeenth birthday. There had previously been a certification and discretionary transfer to the District Court from the Juvenile Court, as provided in the Family Code on May 24, 1974.

      . See also Article 1.14, Vernon’s Ann.C.C.P.

      . If there is a factual issue as to the age of the accused at the time of the commission of the offense, a different question may be presented.

      .Where an accused is charged with capital murder and upon submission of the case to the jury the jurors acquit him of capital murder but find him guilty of felony murder, he would be entitled under the proper circumstances to have the jury assess the punishment for felony murder.

      . V.T.C.A., Penal Code, Sec. 12.31(a).

      . The greatest offenses the grand jury could consider in this case were murder, V.T.C.A., Penal Code, Sec. 19.02, and aggravated robbery, V.T.C.A., Penal Code, Sec. 29.03, both of which are first-degree felonies.

      . V.T.C.A, Penal Code, Section 21.09(a).

      . Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 6(b) provides in part:
      “(b) . . . . If, on the effective date of this Act, a criminal action is pending for conduct that was an offense under the laws repealed by this Act and that does not constitute an offense under this Act, the action is dismissed on the effective date of this Act.”

      .Like Section 8.07(e) of our present Code, Article 31 of the 1925 Penal Code prohibited the infliction of the death penalty on any person who was younger than seventeen years old at the time of the offense.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Gregory Joe OVERTON, Appellant, v. The STATE of Texas, Appellee.
    No. 53680.
    Court of Criminal Appeals of Texas.
    June 29, 1977.
    Henry E. Doyle, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Allen D. McAshan, Jr., Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for aggravated robbery. The record reflects that appellant was tried upon a single indictment containing two counts of aggravated robbery. He was charged with robbing Ralph Myles at the United Food Store at 5110 Almeda in Houston on December 18, 1974, and January 27, 1975. The jury acquitted appellant of the December 18 robbery but found him guilty of the January 27 offense. The court assessed punishment at eight years.

In separate grounds of error, appellant contends that the trial court erred in overruling his motion to quash the indictment and his motion to require the State to elect on which count he was to be tried.

The motion to quash complained that by trying the offenses jointly appellant could not properly prepare his defense because the offenses occurred on different dates, under different circumstances, with different accomplices. The motion further alleged that appellant would be prejudiced because a jury would imply that he was a “career robber” when in fact he had never been convicted of a felony before. The motion to elect requested the trial court to require the State to elect which offense it would try first so that appellant could prepare his defense accordingly.

Article 21.24, V.A.C.C.P., provides that two or more offenses may be charged in a single indictment, each in a separate count, if the offenses arise out of the same criminal episode. See also V.T.C.A., Penal Code, Sec. 3.02. “Criminal episode” is defined in V.T.C.A., Penal Code, Sec. 3.01, as the repeated commission of any one offense defined in Title 7 of the Penal Code.

However, Y.T.C.A., Penal Code, Sec. 3.04, mandates that an accused has the right to a severance of such joined offenses. See Waythe v. State, Tex.Cr.App., 533 S.W.2d 802. When a request is made to sever, the trial court must grant the request, and failure to do so results in reversible error. See Waythe v. State, supra.

In the instant case, the motions filed by appellant timely apprised the trial court that appellant did not desire to have the offenses joined in a common trial. We find that the motions clearly amounted to a request for severance under Section 3.04, supra, and that the court erred in failing to grant the request. See Waythe v. State, supra.

The judgment of the trial court is reversed and the cause remanded.

Opinion approved by the Court.

      . V.T.C.A., Penal Code, Sec. 3.04, provides in pertinent part:
      “(a) Whenever two or more offenses have been consolidated or joined for trial under Section 3.02 of this Code, the defendant shall have a right to a severance of the offenses.”


text:
    Ex parte Jerry McGEE.
    No. 55080.
    Court of Criminal Appeals of Texas.
    June 29, 1977.
    Barry P. Helft, Dallas, for appellant.
    Jim D. Yollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

This is a post-conviction habeas corpus proceeding brought under the provisions of Article 11.07, V.A.C.C.P.

Petitioner entered a plea of guilty in Criminal District Court No. 4 of Dallas County on August 22, 1975, to an indictment charging that he did unlawfully “knowingly and intentionally possess a criminal instrument, namely: a forged prescription, with intent to use it in the commission of obtaining possession of a controlled substance. ...” Punishment was assessed at seven years.

The Honorable John Mead, Judge of the Criminal District Court No. 4 of Dallas County, upon consideration of petitioner’s application, concluded that petitioner was entitled to the relief prayed for, finding that the indictment was identical to the one in Ex parte Harrell, Tex.Cr.App., 542 S.W.2d 169, where this Court granted relief to a petitioner who had been convicted under a like indictment charging him with an offense under V.T.C.A., Penal Code, Sec. 16.01. In Harrell, it was found that Sec. 16.01, supra (Unlawful Use of a Criminal Instrument), and V.T.C.A., Penal Code, Sec. 32.21(a)(1)(C) (possession of a writing that is forged with intent to utter it), covered the same subject matter. Since Sec. 16.01, supra, “is a broad and general statute applicable to all types of possession of criminal instruments with intent to use them in commission of an offense,” and Sec. 32.-21(a)(1)(C) is a special statute dealing with possession of forged instruments, including forged prescriptions, with intent to utter, this Court held that under the well-settled rule of statutory construction the special statute will control. See Hines v. State, Tex.Cr.App., 515 S.W.2d 670; Cuellar v. State, Tex.Cr.App., 521 S.W.2d 277; Sheffield v. State, 165 Tex.Cr.R. 354, 307 S.W.2d 100.

We conclude, as we did in Harrell, that petitioner herein was improperly convicted of unlawful possession of a criminal instrument under Sec. 16.01, supra, a felony, and should have been charged with forgery under See. 32.21(a)(1)(C), a misdemeanor, over which the convicting district court did not have jurisdiction.

We are in agreement with the trial court’s conclusion that petitioner is entitled to the relief he seeks.

The relief requested by the habeas corpus is granted, the conviction is set aside, and the indictment ordered dismissed.

Opinion approved by the Court.


author: BROWN, Commissioner.

text:
    George Earl SPIERS, Appellant, v. The STATE of Texas, Appellee.
    No. 53248.
    Court of Criminal Appeals of Texas.
    June 29, 1977.

      R. G. Shivers, Jefferson, for appellant.
    Tony Hileman, County Atty., Jefferson, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

BROWN, Commissioner.

Appellant’s motion for rehearing is granted. Our prior PER CURIAM opinion is withdrawn.

Appellant was convicted of aggravated assault. The punishment, enhanced by two prior felony convictions under V.T.C.A., Penal Code, Sec. 12.42(d), was assessed at life imprisonment.

In support of the enhancement provisions of the indictment the State offered in evidence certified copies of two prior convictions in the State of Mississippi. One conviction was for burglary in cause number 2,658. The other was for assault with intent to commit murder in cause number 2,895. Although appellant admitted these two prior convictions, the burden was upon the State to prove that they were each final convictions. The record reveals that in the burglary conviction appellant’s sentence was suspended. There is no showing that this suspended sentence was ever revoked. Accordingly, there is no proof that the burglary conviction was a final conviction. Absent such proof such conviction cannot be used for enhancement. Arbuckle v. State, 132 Tex.Cr.R. 371, 105 S.W.2d 219; Fetters v. State, 108 Tex.Cr.R. 282, 1 S.W.2d 312; Brittian v. State, 85 Tex.Cr.R. 491, 214 S.W. 351.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: DUNAGAN, Chief Justice.

text:
    GUARANTEE INSURANCE COMPANY, Appellant, v. The FIRST NATIONAL BANK OF JACKSONVILLE, Texas, Appellee.
    No. 1002.
    Court of Civil Appeals of Texas, Tyler.
    March 10, 1977.
    Rehearing Denied June 30, 1977.

      Charles H. Clark, Tyler, for appellant.
    Gordon F. Thrall, Norman, Hassell, Spi-ers, Holland & Thrall, Jacksonville, for ap-pellee.
   DUNAGAN, Chief Justice.

This is an appeal from an order entered by the trial court overruling appellant Guarantee Insurance Company’s plea of privilege to be sued in Dallas County, Texas.

The appellee, The First National Bank of Jacksonville, Texas, brought suit in the Second Judicial District Court of Cherokee County, Texas, against appellant, Guarantee Insurance Company, and Archie B. Delaney for the recovery of insurance proceeds from appellant based upon the total loss of a truck owned by Delaney, and upon which appellee had the first mortgage and a security interest. Appellant duly and timely filed a plea of privilege to be sued in Dallas County, Texas, alleging said county to be the home office of appellant at the time of the filing of the plea of privilege. Thereafter appellee duly and timely filed its controverting plea urging as exceptions to the general venue rule Subdivisions 4, 23, 28 and 29a of Art. 1995, V.T.C.S. Appellee on appeal has abandoned any claim to venue based on Subdivision 29a. Upon a hearing of appellant’s plea of privilege the trial court overruled its plea and appellant has appealed to this court.

We do not have the benefit of a statement of facts. No request for findings of fact was made and none was filed. A statement of facts was filed in this court on August 30, 1976. Our record reflects that the statement of facts was withdrawn on September 28, 1976 by counsel for appellant. On December 14, 1976, our Clerk notified appellant’s counsel that the statement of facts had not been returned. Our records do not reflect that the statement of facts was ever returned. There seems to be a disagreement between our Clerk and counsel for appellant as to whether the statement of facts was returned. Although appellant’s counsel was timely apprised that the statement of facts had not been returned, no steps were taken to remedy the situation. Be that as it may, the fact remains that we do not now have before us a statement of facts upon which we may determine the question raised by appellant’s challenge to the sufficiency of the evidence.

Without a statement of facts and findings, such facts as are necessary to support the judgment must be presumed to have been found. Commercial Credit Corp. v. Smith, 143 Tex. 612, 187 S.W.2d 363, 365 (Tex.1945); Carter v. Servis Equipment Co., 378 S.W.2d 894 (Tex.Civ.App.-Houston 1964, writ dism’d); 4 Tex.Jur.2d Part 1 sec. 388 p. 222; 60 Tex.Jur.2d sec. 244 p. 163.

The judgment of the trial court is affirmed.

ON APPELLEE’S MOTION FOR REHEARING

Upon consideration of appellee’s motion for rehearing filed in response to our opinion of May 5, 1977, on appellant’s motion for rehearing of our original decision of March 10, 1977, our opinion of May 5, 1977, reversing'the trial court’s judgment, and our judgment thereon, are withdrawn.

Appellant has filed as a part of the record in this case a copy of the lost original statement of facts duly executed in accordance with Rule 377, T.R.C.P. The state of the record is now such that we proceed to dispose of this appeal on its merits.

As stated in our original opinion, this suit was originally instituted in Cherokee County by the First National Bank of Jacksonville, Texas, appellee, against Guarantee Insurance Company, appellant, and Archie B. Delaney. Thereafter appellant filed its plea of privilege seeking to have the suit transferred to Dallas County, Texas. Ap-pellee timely controverted said plea. Upon a hearing of the plea of privilege the court overruled the plea of privilege. From this order the appellant has appealed to this court. Defendant Delaney did not file a plea of privilege.

Appellee in its pleadings alleges that “At the time this vehicle was mortgaged to Plaintiff [appellee], DELANEY agreed with Plaintiff to take out insurance on said vehicle in at least the amount of $12,000 to cover Plaintiff in the event of any loss of this vehicle securing DELANEY’S said note to Plaintiff, and DELANEY then and there further agreed that such policy of insurance would have a loss payable clause inserted into the policy in favor of Plaintiff as beneficiary.” Thereafter the appellant issued to Delaney its policy in the sum of $12,000 insuring and covering said truck for accidental loss or damage caused by fire. Thereafter during the term of the policy the truck was damaged by fire, with such damages “amounting to almost a total loss of the vehicle”; that instead of said insurance policy having the loss payable clause inserted therein in favor of the appellee, it was payable to Delaney. Thereafter Delaney defaulted in his payment of said note. The appellee sued Delaney for breach of the note and for foreclosure of the mortgage against the truck. Thereafter appellee was awarded a default judgment and pursuant thereto said truck was sold under execution to appellee, First National Bank of Jacksonville, Texas, for the sum of $500.00 and by reason thereof appellee became the legal owner of said truck. The balance owed appellee by Delaney pursuant to said judgment is far in excess of $12,000 which is the subject of this lawsuit.

To demonstrate that it has a cause of action against the resident defendant Delaney, appellee asserts in its brief that it as a lienholder is seeking judicially to “establish and enforce a lien that arises by force of the laws of this State.” The appellee also asserts in its brief “that where there has been an agreement between a mortgagee and a mortgagor that the mortgagor will purchase insurance with the loss payable clause to the mortgagee, and the mortgagor purchases the insurance but fails to include such a loss payable clause, a lien upon the proceeds of that insurance policy arises in favor of the mortgagee.”

At the outset we note two basic rules which govern our review of interlocutory venue appeals. First, every reasonable intendment must be indulged in favor of the action of the trial court. James v. Drye, 159 Tex. 321, 320 S.W.2d 319, 323 (1959). Second, the burden is on the plaintiff seeking to maintain venue as to an out-of-county resident to plead and prove that his case is within one or more of the venue exceptions set out in the statute. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97, 99 (1953); Guerra v. Texas Employers Insurance Association, 480 S.W.2d 769, 772 (Tex.Civ.App.-Corpus Christi 1972, n. w. h.).

The necessary venue facts to be established under Subdivision 4 of Art. 1995, Tex.Rev.Civ.Stat.Ann., are: (1) that one defendant resides in the county of suit; (2) that the party asserting his privilege is at least a proper party to the suit against the resident defendant; and (3) that plaintiff has a cause of action against a resident defendant. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936); Dairyland County Mutual Insurance Company of Texas v. Bernal, 547 S.W.2d 46 (Houston [1st Dist.] 1977, n. w. h.); Theobold v. Pate, 542 S.W.2d 460, 465 (Tex.Civ.App.-Tyler 1976, writ dism’d); Hoover v. Barker, 476 S.W.2d 126 (Tex.Civ.App.-Austin 1972, writ dism’d); 1 McDonald Texas Civil Practice, sec. 4.10.2; 60 Tex.Jur.2d sec. 220 p. 108.

The term “cause of action” has been defined “as a fact or facts entitling one to institute and maintain an action, which must be alleged and proved in order to obtain relief.” A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619 (1939).

Delaney executed a note dated Juné 29,1973, in the sum of $22,126.00 payable to appellee, secured by a 1971 Diamond Reo Diesel truck tractor. In connection therewith, a security agreement was executed by Delaney. The security agreement contains a paragraph which provides:

“Insurance—Debtor will insure the Collateral with companies acceptable to Secured Party against such casualties and in such amounts as Secured Party shall require with a standard mortgage clause in favor of Secured Party and Secured Party is hereby authorized to collect sums which may become due under any of said policies and apply same to the obligations hereby secured.”

This provision of the security agreement gave appellee an equitable lien on the proceeds due the defendant-Delaney under the terms of the policy. Fidelity & Guaranty Insurance Corp. v. Super-Cold Southwest Co., 225 S.W.2d 924 (Tex.Civ.App.-Amarillo 1949, writ ref’d n. r. e.); Kirkpatrick v. Great American Insurance Co., 299 S.W. 943 (Tex.Civ.App.-Waco 1927, n. w. h.); and 32 Tex.Jur.2d Insurance, sec. 126, which reads:

“In the event that the mortgagor agrees with the mortgagee to take out insurance on the mortgaged property for the benefit of the mortgagee, and procures a policy on the property but fails to have the loss made payable to the mortgagee, as his interest may appear, the mortgagee, in case of a loss, will have an equitable lien on the money due on the policy.”

Appellant contends that even though there was an agreement between appellee and Delaney that Delaney would take out insurance on the mortgaged property for the benefit of appellee that appel-lee would not have a cause of action against it because it was not notified of such an agreement. For this contention appellant relies on a portion of a sentence found in Fidelity & Guaranty Insurance Co. v. Super-Cold Southwest Co., supra, which reads: “Of course, if the insurer is not informed of an agreement, it is not bound thereby ..” The balance of the sentence is adverse to appellant’s contention which reads: “but after the information is given to it [the insurer], the duty rests upon the insurer to treat the proceeds of the policy as though such a provision was written into the policy.” Under the Fidelity case appellant, upon being informed of the agreement of Delaney with appellee that he would take out insurance on the vehicle here involved for the benefit of appellee, it was appellant’s duty to treat the proceeds of the policy in question as though such a provision was written into the policy.

The evidence shows that (1) defendant Delaney was at all times pertinent to the question here involved a resident of Cherokee County, Texas; (2) the vehicle in question was situated in Cherokee County, Texas; (3) said vehicle was virtually totally destroyed by fire in said county; (4) appel-lee has a cause of action against the resident defendant Delaney; and (5) appellant was at least a proper party to the suit against the resident defendant.

It is our opinion that appellee has met the burden imposed upon it to maintain venue in Cherokee County, Texas, under Subdivision 4 of Art. 1995, Tex.Rev.Civ.Stat.Ann.

Having held that the trial court’s order should be affirmed on the basis of Subdivision 4 we need not consider whether other subdivisions are applicable.

We deem our original decision of March 10, 1977, to be a correct disposition of this appeal. Appellee’s motion for rehearing moving the court to withdraw its opinion rendered May 5, 1977, and affirming the trial court’s judgment is therefore granted. For the reasons herein stated we respectfully overrule appellant’s motion for rehearing filed herein on March 17, 1977 for reversal of our original opinion affirming the trial court’s judgment.


author: BARROW, Chief Justice.

text:
    J. F. DUDERSTADT, Appellant, v. FRITZ-MAR GARMENTS MANUFACTURING COMPANY et al., Appellees.
    No. 15809.
    Court of Civil Appeals of Texas, San Antonio.
    May 18, 1977.
    Rehearing Denied June 15, 1977.
    Thomas S. Terrell, Kerrville, for appellant.
    Lavern D. Harris, M. Scott Stehling, Kerrville, for appellees.
   BARROW, Chief Justice.

Appellant brought this suit against appel-lees, Fritz-Mar Garments Manufacturing Co., a division of Servisco, Servisco, and John Shields, to recover damages for breach of a written hunting lease agreement entered into by appellant and Fritz-Mar by Shields. A take-nothing judgment was entered after a jury trial and appellant has timely perfected this appeal.

Appellant asserts two points of error. 1. The trial court erred in refusing to admit the hunting lease into evidence. 2. The trial court erred in refusing to strike all testimony to the effect that the hunting lease was only a proposal and conditioned upon management’s approval because such testimony violates the Parol Evidence Rule. Appellant does not here complain of the court’s charge.

Appellant owns 1,200 acres of land in Kerr County which is enclosed with a deer-proof fence whereby he is able to contain and manage the native white tail deer along with foreign “exotic” game he had placed on the ranch. In 1973-1975, he permitted a limited number of white tail bucks and some of the exotic deer to be killed by day hunters for a set fee per head. Appellant charged $200.00 for each of the bucks killed in 1973 and 1974 and $250.00 for each one killed in 1975.

Servisco is a New Jersey Corporation with its home office in Hillside, New Jersey. Included in its operations is the manufacture of work uniforms. Fritz-Mar, a division of Servisco, sells or rents work uniforms manufactured by the parent organization. Shields is a sales representative for Fritz-Mar and works in a three-state territory out of Fritz-Mar’s Houston office. The uncontradicted evidence establishes that Shields is not an officer of Servisco or Fritz-Mar, nor does he serve in any executive capacity. His immediate supervisor is the regional sales manager.

For about 15 years prior to 1973, Shields and another man had sub-leased for hunting 265 acres which belonged to appellant’s sister. This place was under general lease to appellant and was near the latter’s ranch. Shields was authorized by his superiors in New Jersey to take six customers hunting on appellant’s ranch in 1973, 1974, and 1975, and cheeks in payment for six bucks killed in each of these years were issued to appellant from Servisco’s New Jersey office. These checks, which were requested by Shields, amounted to $1,200.00 in 1973 and 1974 and $1,650.00 in 1975 which included $150.00 for out of state licenses. Mr. Bruce Cohen, a vice-president of Servisco, was one of those who hunted in 1974.

The controversy in question originated in early December 1975, when appellant visited Shields at the latter’s hunting camp on the 265 acres. Appellant advised Shields that he had an opportunity to lease his 1,200 acres to one organization for the season, but wanted to offer Shield’s company first chance because of their past good relations. Appellant testified that Shields replied: “I’m sure we will be interested in it. In fact, I know we will.” There followed a discussion over terms and price. After agreement between these two persons, Shields wanted something in writing to submit to his company so that there would be no misunderstanding. Accordingly, Mrs. Duderstadt typed out a lease contract which provided for a year-round lease of the ranch for hunting and recreation for an agreed consideration of $10,000, payable $5,000.00 on January 15, 1976, with the remainder to be paid in four equal payments. The agreement was between: “J. F. Duder-stadt, leasor, and Fritz-Mar, leasee, with John Shields as representative.” It was signed in Shields’ camp the morning after the initial discussion by appellant and Shields. The January 15 payment was never made and on February 17, 1976, appellant was advised by Shields that the lease agreement had been rejected as too expensive by the Servisco officials.

Servisco filed a sworn denial that Shields was authorized to execute this agreement for Fritz-Mar or Servisco. Shields affirmatively alleged that the instrument signed by him was not a contract, but rather a proposal from which the formal lease would be prepared if Servisco was agreeable. All attorneys advised the trial judge at the outset that the first issue would be whether the instrument was a proposal to be submitted to Servisco or a binding agreement. Most of the testimony, including that offered by appellant, related to this question. Nevertheless, after the evidence was closed, appellant moved to strike all testimony relating to this question and now complains of the trial court’s refusal to grant his motion to strike.

The question of Shield’s authority to bind Servisco to the contract was in the case from the outset. Servisco’s sworn denial imposed upon the appellant the burden of proving that Shields was authorized to execute the hunting lease. Rule 93(h), Tex. R.Civ.P.; Dreeben v. First Nat. Bank of McKinney, 100 Tex. 344, 99 S.W. 850 (1907); Burns v. Gonzalez, 439 S.W.2d 128 (Tex.Civ.App.—San Antonio 1969, writ ref’d n. r. e.); 2 McDonald, Texas Civil Practice § 7.29 (1970). The uncontradicted evidence establishes that Shields did not have such actual authority. Assuming, without deciding, that a fact issue was raised as to whether or not Shields had apparent authority to do so, appellant wholly failed to secure such a finding. Accordingly, there is no basis for liability against Servisco or its division, Fritz-Mar.

Appellant seeks a remand by its two points because of the trial court’s failure to admit the lease agreement into evidence and because of the trial court’s refusal to strike all parol evidence relating to whether the agreement was a proposal or an agreed contract. Such errors, if any, would be harmless insofar as Servisco is concerned in that they do not relate to the authority of Shields to bind Servisco.

A more difficult question is presented as to Shields in that he admittedly signed the agreement. The instrument and his signature were identified by him prior to the agreement being offered into evidence. Shields admittedly wanted Servisco to lease appellant’s ranch for hunting and he expressed to appellant the firm conviction that it would do so. The trial court properly excluded the agreement as to Ser-visco in that there was no proof that Shields was authorized to execute the lease for it. Dreeben v. First Nat. Bank of McKinney, supra. Nevertheless, the agreement was properly admissible against Shields and the trial court erred in refusing to admit it solely against Shields.

We have determined after an examination of the entire record that this error was harmless. Although Shields was named as a defendant along with the other appellees, both appellant and his wife testified that they were not negotiating with Shields individually, but only in a representative capacity for the company. Furthermore, no issues were submitted or requested by appellant to establish liability against Shields individually. Appellant has thus waived any right of recovery against Shields individually and any error in admitting or excluding evidence is harmless.

The judgment is affirmed.

      . The jury found substantially as follows:
      Issue 1: That John Shields did sign the alleged lease agreement with the understanding between Shields and Duderstadt that said hunting lease agreement, if any, could not become effective against Servisco unless such corporation approved the hunting lease of the Duder-stadt 1,200 acres.
      Issue 2: This issue inquiring as to Shields’ apparent authority to sign the lease for Servis-co was conditionally submitted and not answered under the instructions of the court.
      Issue 3: This issue inquiring as to the damages sustained by Duderstadt was conditionally submitted and not answered under the instructions of the court.


author: McDONALD, Chief Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Juan BAEZA, Appellee.
    No. 5711.
    Court of Civil Appeals of Texas, Waco.
    May 19, 1977.
    Rehearing Denied June 30, 1977.
    Logan Ford, Catherine A. Gerhauser, Burford, Ryburn & Ford, Dallas, for appellant.

      Denbow & Wells, Don Prager, Fort Worth, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Insurance Company from judgment setting aside a compromise settlement agreement in a workmen’s compensation matter.

Plaintiff Baeza filed suit against defendant Insurance Company alleging plaintiff was an employee of Lasater Construction Company; that he was injured on November 1,1968 in the course of his employment; that his injuries were a fracture of his left leg and severe tissue injuries to his left leg, hip and back; that as a result of his injuries he developed a conversion neurosis; that he is permanently and totally disabled under the terms of the Workmen’s Compensation Act; that defendant was the compensation carrier for plaintiff’s employer; that on March 24, 1970, defendant induced plaintiff to sign a compromise settlement agreement of his claim for $1850. by a promise by defendant “the employer would give him a steady job for as long as he wanted it”; that the representation was false; that defendant knew it was false when made; that such induced plaintiff to sign the compromise settlement; that Lasater kept him on the payroll for a short time and then fired him; and prayed the compromise settlement be set aside.

Trial was to a jury which found among other matters:

(a) Defendant’s agent Hopper represented to plaintiff he would be given a “steady job for as long as he wanted it”.
(b) Plaintiff’s employer Lasater Construction Company refused plaintiff employment.
2) The statement was made for the purpose of inducing plaintiff to sign the compromise settlement agreement.
3) Plaintiff believed the statement.
4) Plaintiff relied on the statement in signing the compromise settlement agreement.
5) Plaintiff was induced into signing the compromise settlement by the statement.
6) — 10) Found plaintiff suffered an accidental injury which produced total permanent incapacity.

The trial court rendered judgment on the verdict setting aside the compromise settlement agreement.

Defendant appeals on 18 points contending among other matters:

1) The trial court erred in rendering judgment setting the compromise settlement agreement aside because James A. Hopper had no actual, implied or apparent authority to make the alleged representations.
2) The trial court erred in rendering judgment on the jury’s answer to Issue 1, because such issue fails to conform to allegations in plaintiff’s pleadings concerning “a steady job” for as long as he wanted to work even if he was unable to perform the type duties he was accustomed to doing and for so long as he wanted a job, and further omits the concept of for whom plaintiff was to work.
3) The trial court erred in rendering judgment setting aside the compromise settlement agreement because there is no evidence defendant’s adjuster Hopper “had the present intention not to give [plaintiff] ‘steady employment’ at the time such representation or promise was made, and consequently no fraud or misrepresentation exists as a matter of law”.
4) The trial court erred in setting aside the compromise settlement because the contract which plaintiff bargained for, “a steady job” for as long as he wanted it, is at most a contract terminable at will of either party.

Contention 1 asserts defendant’s claims adjuster Hopper had no authority to promise a job to plaintiff Baeza.

Plaintiff is a Mexican-American who does not speak, read or write English, and who does not read or write Spanish. He is illiterate, uneducated and has but limited vocabulary in Spanish. He was severely injured while in the employ of Lasater Construction Company. Defendant’s claims adjuster, Hopper, visited plaintiff 4 or 5 times following his injury; promised plaintiff that if he settled for $1850. Lasater would give him a steady job for as long as he wanted it; such promise was false; Lasater refused plaintiff employment; and plaintiff’s injuries amount to total and permanent incapacity.

Hopper denied he had authority to make the promise the jury found that he made, and further denied he made the promise. He did have authority, however, to pay the $1850. Defendant by virtue of Hopper’s promise secured a compromise settlement of a total permanent injury for $1850.

If defendant would adopt the acts of its agent Hopper, it must take them altogether. It cannot adopt so much as confers an advantage and reject the rest. A principal cannot avail itself of the fraudulent contract of its agent. Wright v. Calhoun, S.Ct., 19 Tex. 412.

In Wright our Supreme Court said:

“There can be no sounder doctrine of morals or of law, than that which forbids the principal to take a benefit from the fraudulent act or contract of his agent, to the injury of an innocent third person. It would indeed be a monstrous doctrine, to hold that a principal may * * * enjoy the fruits of the frauds of his authorized agent, and incur no responsibility to the injured parties. It would enable one man, by employing the instrumentality of an unprincipled agent, to cheat, defraud and swindle others out of their property, and turn them over to their recourse upon the worthless agent, while he, the principal, received and retained the fruits of the iniquitous bargains. Such a doctrine can have no sanction in morals or law.”

The compromise settlement agreement being obtained by the fraud of Hopper, cannot enure to the benefit of defendant Insurance Company.

Contention 2 asserts the trial court erred in rendering judgment on the jury’s answer to Issue 1.

Issue 1 was “Do you find from a preponderance of the evidence that on the occasion in question, Defendant’s agent, Hopper, represented to plaintiff that he would be given a ‘steady job for as long as he wanted it?’ ”

“Answer: We do”.

Plaintiff plead defendant’s agent Hopper made fraudulent promises to plaintiff to induce him to sign the compromise settlement. “These promises were to the effect that if he would sign, the employer would give him a steady job for as long as he wanted to work, even if he was unable to perform the type of duties he was accustomed to doing and for as long as he wanted to work”.

There is evidence that Hopper made the representation plead and inquired about in Issue 1. Plaintiff never had but one employer and that was Lasater Construction Company.

Rule 277 TRCP requires the court to submit the “issues controlling the disposition of the case that are raised by the written pleadings and the evidence in the case”. The trial court fairly and correctly submitted Issue 1, and the trial court did not err in rendering judgment on such issue.

Contention 3 asserts there is no evidence to demonstrate or raise any inference whatsoever of Hopper’s present intention not to perform his alleged promise.

Defendant’s claim adjuster Hopper repeatedly denied making the promise or representation that plaintiff would be given a steady job for as long as he wanted it. Moreover, he denied having authority to make such a promise or representation.

Nonperformance of a promise for future action is fraudulent if the intention not to perform exists when the promise is made. And where the party allegedly making the promise, denies making such promise, this is evidence that there was an absence of intention to perform when the promise was made. Stone v. Williams (1st Houston) CCA, NRE, 358 S.W.2d 151; Stanfield v. O’Boyle, S.Ct., 462 S.W.2d 270; Bond v. Duren, (Waco) CCA, NRE, 520 S.W.2d 460; Myers v. King, CCA (1st Houston) NRE, 506 S.W.2d 705; Finch v. McVea, CCA (Corpus Christi) 543 S.W.2d 449.

Defendant asserts in its reply brief that failure to perform the promise requires a jury finding. Defendant asserted no point to this effect in its brief, and for the first time makes this contention in its reply brief filed the day of oral argument. The contention comes too late; and we hold that Hopper’s repeated denials of making the promise or representation together with his testimony that he had no authority to make same, constitutes conclusive evidence of his intent not to perform at the time that he made the representation.

Contention 4 is that the trial court erred in setting aside the compromise settlement agreement, because the contract plaintiff bargained for, “a steady job” for as long as he wanted it, is at most a contract terminable at the will of either party.

Plaintiffs suit is not to enforce a contract of employment with Lasater Construction Company or defendant. Plaintiff’s suit is to set aside the compromise settlement agreement obtained by fraud.

All defendant’s points have been considered and are overruled.

Affirmed.


author: CORNELIUS, Justice.

text:
    PRESBYTERY OF THE COVENANT et al., Appellants, v. FIRST PRESBYTERIAN CHURCH of PARIS, INC., et al., Appellees.
    No. 8438.
    Court of Civil Appeals of Texas, Texarkana.
    May 24, 1977.
    Rehearing Denied July 5, 1977.

      Charles W. Stuber, Smith, Smith, Dunlap & Canterbury, Dallas, for appellants.
    Hardy Moore, Paris, J. D. McLaughlin, Fisher, McLaughlin & Harrison, Paris, for appellees.
   CORNELIUS, Justice.

This controversy arose when a majority of the members of the First Presbyterian Church of Paris, Texas, sought to withdraw from the Presbyterian Church in the United States and affiliate with another group. The Presbytery of the Covenant, which had jurisdiction of the church at Paris, sought to prevent the withdrawing faction from taking possession and asserting ownership of the church property, and filed suit for declaratory judgment. The withdrawing faction, through its corporate entity, First Presbyterian Church of Paris, Inc., filed suit against the Presbytery of the Covenant and others in trespass to try title. The actions were consolidated and tried to a jury. Upon the jury verdict, judgment was rendered for the withdrawing faction. The Presbytery of the Covenant and those parties aligned with it have appealed. The parties will be designated as in the trial court — appellants as plaintiffs and appel-lees as defendants.

The judgment in appellees’ favor was based upon jury findings to the following effect:

1. Prior to June 17,1973 (the date of the attempted withdrawal), the Presbyterian Church in the United States, directly or through the Presbytery of the Covenant and preceding presbyteries, represented and held out to the First Presbyterian Church of Paris U.S. that it owned its property and could make such disposition thereof as it desired.

2. The First Presbyterian Church of Paris U.S., prior to June 17, 1973, relied upon those representations in the acquisition or improvement of its properties.

3. But for those representations the First Presbyterian Church of Paris U.S. would not have expended its funds in acquiring or improving its properties.

4. The representations were not false.

5. The First Presbyterian Church of Paris U.S., on June 17, 1973, had a right to withdraw from the Presbyterian Church in the United States without the consent of the Presbytery of the Covenant.

6. The First Presbyterian Church of Paris U.S., upon withdrawal from the Presbyterian Church in the United States, had a right under the Constitution of the Presbyterian Church in the United States to take its property with it.

In the appeal plaintiffs assign twenty-nine points of error which contend generally that (1) there was no evidence or insufficient evidence to support the jury findings; (2) the judicatories of the Presbyterian Church in the United States have determined the matters in controversy adversely to defendants, and the civil courts, as well as the defendants, are bound thereby; (3) the trial court erred in admitting evidence of policy statements of the Presbyterian Church in the United States alleged to constitute representations because such involved the interpretation of ecclesiastical matters; and, (4) plaintiffs were entitled to judgment as a matter of law, the jury verdict notwithstanding. Defendants contend generally that (1) the Presbyterian Church in the United States is congregational rather than hierarchical as to property, thus leaving sole power of management and disposition with the local congregation free of control of the mother church, or (2) in any event, the Presbyterian Church in the United States and the Presbytery of the Covenant are estopped under the jury findings to deny the local congregation the right to take the church property with it.

The Presbyterian Church in the United States (which will hereafter be referred to as PCUS) is governed according to an ascending order of ecclesiastical judicatories. These are: Church Sessions, Presbyteries, Synods, and the General Assembly. The Church Session is composed of individual Ruling Elders of a local congregation; the minister is also on the Session and serves as Moderator. Immediately superior to the Church Session is the Presbytery which is made up of member ministers and all the churches within a designated geographic area. Immediately superior to the Presbytery is the Synod which consists of all the churches within a specified geographic area of at least two presbyteries as well as the ministers who are members of the included presbyteries. Immediately superior to the Synod is the General Assembly which has authority over all PCUS churches in the country. PCUS is governed by a Constitution which consists of the Confession of Faith, the Larger and Shorter Catechisms, and the Book of Church Order. The Constitution delegates to the various church judicatories their respective areas of authority. The Presbytery is given power to review the records of Sessions, redress whatever the Session may have done contrary to order, and see that the Session observes the Constitution of the church. It also has power to see that the injunctions of the church judicatories are obeyed. The Presbytery alone has power to organize new churches, receive and dismiss churches, and dissolve churches, as well as to ordain, receive, dismiss, install, remove and judge ministers. Any individual who questions an action taken by any church judicatory or who disagrees with the decision rendered by it may appeal the action or decision to the immediately superior ecclesiastical tribunal.

Prior to June 17, 1973, there was but one First Presbyterian Church of Paris, and it was admittedly affiliated with, a member congregation of, and subject to the discipline and control of the PCUS and the Presbytery of the Covenant or its predecessor presbyteries. It acquired all the real property involved here at a time when there was no disagreement over the church property and when all of its members, including those who later withdrew, were members of a PCUS congregation and a member of the Presbytery of the Covenant. Each of the property deeds named either the First Presbyterian Church of Paris U.S. or the corporation First Presbyterian Church U.S. of Paris, Inc., as grantee. The First Presbyterian Church U.S. of Paris, Inc. was chartered as a Texas corporation in 1966 for the purpose of holding property for the First Presbyterian Church of Paris U.S.

On February 13,1973, in anticipation that some of its local congregations might attempt to withdraw from the PCUS, the Presbytery of the Covenant established an Administrative Commission pursuant to provisions of the Book of Church Order. The purpose of the Commission was to deal with any attempts by local congregations to withdraw from the Presbytery of the Covenant. On April 13, 1973, the Commission adopted an ecclesiastical injunction styled “A Pastoral Letter to the Ministers and Sessions of the Presbytery of the Cove-1 nant.” The pastoral letter required that ninety days notice be given to the Presbytery of the Covenant by any Session prior to calling a congregational meeting for the purpose of considering a proposal to withdraw from the Presbytery of the Covenant. It also required that an additional ten days written notice be given to every communicant on the roll of any such church stating that the purpose of the meeting is “to consider and to act upon a proposal that the congregation vote to ‘withdraw’ from the Presbytery of the Covenant of the Presbyterian Church in the United States.” Copies of the pastoral letter were sent to the First Presbyterian Church of Paris U.S. Although the pastoral letter was received by the Paris church prior to the calling of a congregational meeting for the purpose of acting on the proposal to withdraw, the required notices were not given. The creation of the Administrative Commission and the pastoral letter were reviewed at a Stated Meeting of the Presbytery of the Covenant held on June 5,1973, in Temple, Texas. The authority of the Administrative Commission and the provisions of the pastoral letter were challenged, but were expressly affirmed by the Presbytery. Thereafter, an appeal was lodged to the Synod of Red River challenging the action of the Presbytery of the Covenant. The Synod of Red River, on September 26, 1973, rendered an opinion upholding the action of the Presbytery and further affirmed the creation of and action taken by the Administrative Commission.

On June 10, 1973, oral notice was given from the pulpit of the First Presbyterian Church of Paris U.S. of a congregational meeting to be held the following Sunday, on June 17, 1973, for the purpose of considering a resolution to withdraw from PCUS. A meeting was held on that date which was attended by 101 of the 149 members on the active roll of the church. All members present voted for the withdrawal. The Presbytery of the Covenant was notified' of the action of those present at the meeting. The Presbytery advised the defendants that the entire matter was being turned over to the Administrative Commission for disposition. The first action of the Administrative Commission in response to defendants’ notice occurred on July 2, 1973, when the Commission considered the action taken, and after due consideration, began a process which resulted in the formal suspension and divestiture of the individuals who, on June 17, 1973, constituted the Session and Diaconate of the First Presbyterian Church of Paris U.S. In its letter of July 2, 1973, the Administrative Commission advised that the action taken to withdraw the First Presbyterian Church of Paris U.S. from the Presbyterian Church in the United States, was null and void and without any force or effect. Defendants were further requested to call a meeting of the congregation in Paris, Texas, in order to afford the Presbytery of the Covenant an opportunity to discuss the situation with interested persons, but the defendants did not do so. The Administrative Commission then, at a meeting on July 17, 1973, assumed original jurisdiction over the church and suspended the Session from its function and each Ruling Elder individually from his office. The Commission then began efforts to identify the members of the congregation of the First Presbyterian Church of Paris U.S. who did not support the withdrawal and who were and wished to remain loyal to PCUS. A letter was written to all members known by the Commission, advising them that a meeting would be held on August 19, 1973, to determine which individuals wished to remain as loyal and participant Presbyterians in the Presbyterian Church in the United States. Public notice of the meeting was also published in a daily newspaper in Paris. At the meeting it was determined by the Commission that there were individuals who wished to continue as loyal communicants. It presented those individuals in attendance at the meeting a petition which, if they desired, they could sign and thereby certify their desire to continue as loyal communicants. In addition to those present at the August 19, 1973, meeting, other individuals subsequently signed the petition or similar statements. According to defendants’ Exhibit 4 and the testimony of the Witness Walters, there were 149 active members of the local church when the action to withdraw was taken, and 59 on the inactive roll. Of those on the active roll, 30 signed statements of loyalty and desire to remain in the PCUS recognized church. Of those on the inactive roll, 19 signed similar statements. On September 13, 1973, the Administrative Commission officially recognized those persons who had so indicated their loyalty to the Presbyterian Church in the United States as constituting the First Presbyterian Church of Paris U.S.

During the time after June 17, 1973, defendants transferred all the real property and assets owned by the First Presbyterian Church of Paris U.S. to a corporation which they attempted to create by way of an amendment to the Charter of the First Presbyterian Church U.S. of Paris, Inc. Those who withdrew from the PCUS thereafter became affiliated with the Vanguard Presbytery of the Continuing Presbyterian Church, an organization previously identified by the Administrative Commission in its pastoral letter as being a schismatic organization.

There are two general types of religious bodies or organizations recognized by law. The first is that where the local congregation, by the nature of its organization, is strictly independent of any other ecclesiastical association and, so far as church government is concerned, owes no fealty or obligation to any higher authority. The second is that where the local congregation is but a subordinate member of some general church organization in which there are superior ecclesiastical tribunals with general and ultimate power of control more or less complete in some supreme judicatory over the whole membership of that general organization. Watson v. Jones, 80 U.S. 679, 20 L.Ed. 666. The first type has come to be known as a congregational church, while the second is generally called a connectional or hierarchical church. See Annot., 52 A.L. R.3rd 324 (1973). It is undisputed and has been uniformly recognized by the decisions that PCUS is of the second type, and is connectional or hierarchical, at least as to ecclesiastical matters and church government. Annot., 52 A.L.R.3rd 417 (1973).

The civil courts are limited in their power to resolve church related disputes. The First Amendment to the United States Constitution prohibits their exercising any jurisdiction over purely ecclesiastical matters. Watson v. Jones, supra. Civil courts do have power to resolve disputes relating to church property, but their role in resolving such disputes is severely circumscribed by the Constitution. Their function in such cases is restricted to an adjudication of property rights by the application of neutral principles of law, developed for use in all property disputes, which can be applied without “establishing” churches to which property is awarded. Presbyterian Church v. Blue Hull Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658. And when a connectional or hierarchical organization is involved, the decisions of the highest church judicatory to which the question has been taken, as to questions of church discipline or government, are, so far as they are relevant, final and binding upon the civil courts. Watson v. Jones, supra; Brown v. Clark, 102 Tex. 323, 116 S.W. 360 (1909); Lowe v. First Presbyterian Church of Forest Park, 56 Ill.2d 404, 308 N.E.2d 801 (1974); St John’s Presbytery v. Central Presbyterian Church, Fla.1958, 102 So.2d 714; Turbeville v. Morris, 203 S.C. 287, 26 S.E.2d 821 (1943). The civil courts can grant relief from such decisions only if, by the narrowest kind of review, they are found to have resulted from fraud, collusion or arbitrariness. Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 50 S.Ct. 5, 74 L.Ed. 131; Presbyterian Church v. Blue Hull Church, supra.

When a division occurs in a local church affiliated with a hierarchical religious body, and a dispute arises between rival groups as to the ownership or control of the local church property, the fundamental question as to which faction is entitled to the property is answered by determining which of the factions is the representative and successor to the church as it existed prior to the division, and that is determined by which of the two factions adheres to or is sanctioned by the appropriate governing body of the organization. It is a simple question of identity. Norton v. Green, 304 S.W.2d 420 (Tex.Civ.App. Waco 1957, writ ref’d n.r.e.); Bramlett v. Young, 229 S.C. 519, 93 S.Ct.2d 873 (1956); St. John’s Presbytery v. Central Presbyterian Church, supra; Adickes v. Adkins, 264 S.C. 394, 215 S.E.2d 442 (1975). In making such a determination, the civil court exercises no role in determining ecclesiastical questions. It merely settles a dispute as to identity, which in turn necessarily settles a dispute involving property rights. In doing so, the court applies neutral principles of law as required by Presbyterian Church v. Blue Hull Church, supra; Adickes v. Adkins, supra; Bramlett v. Young, supra.

Prior to June 17, 1973, the First Presbyterian Church of Paris U.S. and all its members were loyal to and part of the organization of PCUS. Their affiliation and membership implied consent to the PCUS form of government, and their conduct acknowledged its supremacy. Watson v. Jones, supra; Norton v. Green, supra; Lowe v. First Prebyterian Church of Forest Park, supra; Presbytery of Everglades v. Morgan, Fla.App.1961, 125 So.2d 762. There is no question that the members who became dissatisfied with the actions of PCUS could withdraw their membership from the First Presbyterian Church of Paris U.S. and thus their affiliation with PCUS. But by their unilateral action they could not dissolve the local church which was an integral part of PCUS. Browning v. Burton, 273 S.W.2d 131 (Tex.Civ.App. Austin 1954, writ ref’d n.r.e.); Bramlett v. Young, supra; see also Cumberland Presbyterian Church v. North Red Bank Cumberland Presbyterian Church, 58 Tenn.App. 424, 430 S.W.2d 879 (1968). The PCUS Constitution expressly vests in the presbytery the power to dissolve a local church. If, then, the local church was not dissolved, it still existed after June 17, 1973, and it became the prerogative of the governing judicatories of PCUS to determine if the withdrawing faction or those on the church roll who remained faithful to PCUS and who wished to remain members of it constituted the lawful congregation of the First Presbyterian Church of Paris U.S. That question has been considered and finally ruled upon by those authorities. Those persons constituting the loyal faction have submitted themselves to the judicatories of PCUS and have been recognized by such as the duly existing local congregation. They therefore have the identity to make of them the First Presbyterian Church of Paris U.S., and they are entitled to possession and control of the property conveyed to that church. Norton v. Green, supra; Bramlett v. Young, supra.

Defendants place great emphasis upon their claim that the vote to withdraw from PCUS was unanimous. The vote was unanimous as to those in attendance at the meeting, but it was not unanimous as to those on the active membership roll of the church. But unanimous or not, the members of a church organization which is hierarchical as to church government cannot dissolve a local church in contravention of the governing rules or edicts of the mother church, and then re-establish themselves as an independent church or one associated with a schismatic group and take the church property with them. Cumberland Presbyterian Church v. North Red Bank Cumberland Presbyterian Church, supra; St John’s Presbytery v. Central Presbyterian Church, supra; Fairmount Presbyterian Church v. Presbytery of Holston, 531 S.W.2d 301 (Tenn.App.1975). Even if the action of withdrawal had amounted to a dissolution of the local church, the PCUS Constitution provides that upon such a dissolution the church property shall be transferred to the appropriate presbytery.

We do not regard either the defendants’ contention that PCUS is congregational as to property or the jury finding of estoppel to be dispositive of this controversy. The assertion that PCUS is congregational as to property, even if true, would not benefit the defendants. By “congregational as to property” it is meant that the local church owns its property and is free to dispose of it as it wishes. But we are at once met with the fact that the loyal faction, not the defendants, constitute the local church. The property was conveyed to the First Presbyterian Church of Paris U.S., or to the corporation holding title in trust for it, and the PCUS judicatories have recognized the loyal faction as that church. The right of that church to control its own property is not in dispute here. For the same reasons the jury findings concerning representations and reliance thereon do not benefit the defendants. According to the undisputed evidence and the wording of the estoppel issues themselves, the statements or policy pronouncements alleged to have constituted representations were made pri- or to the withdrawal vote and were made to “the First Presbyterian Church of Paris U.S.” to the effect “that it owned its property and could make such disposition thereof as it desired.” Thus, even if they constituted representations and were true, they benefit the First Presbyterian Church of Paris U.S. That church existed prior to the schism; it still exists, and is composed of those members who remained loyal to PCUS and who have been recognized by the governing judicatories as the local church. As said in Adickes v. Adkins, supra:

“The property belonged to the First Presbyterian Church of Rock Hill before the members joined the church, and it belongs to the same after they have withdrawn. They simply are not now a part of that church.”

See also Brown v. Clark, supra. Neither could the jury finding on the question of the church’s right to withdraw from PCUS without the consent of the Presbytery of the Covenant authorize a judgment for defendants. Such a question is one of church government, and it has been determined adversely to defendants by the appropriate church tribunals. To allow the jury or court to inquire into the correctness of that adjudication and overturn it would constitute an impermissible intrusion upon the power of a religious organization “to decide for themselves, free from state interference, matters of church government . . ” Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120.

It follows that plaintiffs were entitled to judgment non obstante veredicto. The judgment is therefore reversed and declaratory judgment is here rendered as prayed for by plaintiffs in their petition. All other relief sought by defendants or plaintiffs is denied.