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

text:
    STATE of Texas ex rel. Ronald L. WILSON, Criminal District Attorney, Galveston County, Texas, Relator, v. Ed J. HARRIS, District Judge, 10th District Court, Galveston County, Texas, as Acting Judge, 212th District Court, Galveston County, Texas, Respondent.
    No. 55315.
    Court of Criminal Appeals of Texas.
    Sept. 14, 1977.

      Ronald L. Wilson, Dist. Atty. and Michael J. Guarino, II, Asst. Dist. Atty., Galveston, for relator.
    Andrew Z. Baker, Ted R. Allmond and Richard Thornton, Galveston, for respondent.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an original action seeking issuance of a writ of mandamus directing respondent to set aside an order entered on June 13, 1977, in the State of Texas v. Donnie Botello, cause number 32,975 in the 212th District Court of Galveston County.

On February 16, 1976, cause number 32,-975 was called for trial in the 212th District Court, and Botello was convicted of a lesser included misdemeanor on February 19, and was assessed a punishment of one year in jail and a $2,000 fine. On February 26 sentence was pronounced and notice of appeal was given. The judgment was affirmed by this Court in a per curiam opinion on March 23, 1977, and mandate issued on April 8. The district court received our mandate on April 13, capias issued on April 14, and was executed April 25. Thereafter on June 13, 1977, respondent issued an order reciting:

“The sentence herein having been affirmed by the Court of Criminal Appeals and the defendant having been remanded to the custody of the Sheriff of Galveston County, to begin serving his sentence, and,
It appearing to the court that the ends of justice would be best served by permitting the defendant to serve said sentence during his off-work hours; it is therefore
ORDERED, ADJUDGED and DECREED that the defendant, DONNIE BOTELLO be sentenced to one (1) year in the Galveston County Jail and pay a fine of TWO THOUSAND ($2,000) DOLLARS, and all costs herein, provided that said defendant shall be released by the Sheriff of Galveston County each day during the hours of 4:00 P.M. to 12:00 Midnight, during each day of said sentence, for purposes of working at the Knights of Columbus Hall, at 1912 Winnie Street, Galveston, Texas.”

Relator seeks a writ of mandamus to compel respondent to set aside the June 13 order as an act beyond the power of respondent and in violation of this Court’s exercise of its jurisdiction through issuance of its mandate of affirmance on April 8, 1977.

Respondent contends (1) this Court lacks jurisdiction under Art. 5, Sec. 5, Texas Constitution, because the order does not violate our mandate and does not interfere with this Court’s exercise of its jurisdiction, (2) that a writ of prohibition rather than writ of mandamus should have been sought, and (3) on the merits, respondent has not violated the mandate of this Court.

The first and third contentions of respondent turn on a single issue: is the June 13 order a violation of this Court’s mandate. If yes, this Court has the extraordinary writ power to compel compliance with our mandate. Article 5, Sec. 5, Texas Constitution, provides in part:

“The Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and under such regulations as may be prescribed by law, issue such writs as may be necessary to enforce its own jurisdiction.”

Violation of this Court’s mandate is such interference with this Court’s jurisdiction as to authorize issuance of extraordinary writs under this Court’s constitutional powers. While the Legislature may regulate the exercise of that writ power in form and procedure, it may neither abolish nor restrict the substantive scope of those powers, nor is regulatory legislative action required before this Court may exercise those powers. Therefore, if the June 13 order is in violation of this Court’s mandate, our writ power will be exercised to enforce our jurisdiction. State ex rel. Vance v. Hatten, Tex.Cr.App., 508 S.W.2d 625; State ex rel. Vance v. Clawson, Tex.Cr.App., 465 S.W.2d 164; State v. Klein, 154 Tex.Cr.R. 31, 224 S.W.2d 250.

We are also of the opinion that mandamus rather than prohibition is the proper relief to seek to set aside an improper order. The reasons are well explained in State ex rel. Vance v. Clawson, supra, at 168-169.

We turn now to the merits. Sentence was pronounced February 26, 1976, and states in part:

“It is the order of this Court that the defendant, Donnie Botello, who has been adjudged to be guilty of the offense of misdemeanor possession of gambling paraphernalia be and he is hereby sentenced to pay a fine of Two Thousand Dollars ($2,000.00) and sentenced to confinement in the County Jail for a period of one (1) year and all costs of this proceeding for which execution may issue.”

This Court’s mandate commanded the trial court “to observe the order of our said Court of Criminal Appeals in his behalf and in all things to have it duly recognized, obeyed and executed.” Over a month after execution of the mandate by Botello’s arrest and incarceration in the county jail, respondent entered the order now under attack.

Respondent contends the challenged order was proper under Art. 42.03, Sec. 5, V.A.C.C.P. That provision states:

“Where jail time has been awarded, the trial judge may, when in his discretion the ends of justice would best be served, sentence the defendant to serve his sentence during his off-work hours, or on weekends. When such a sentence is permitted by the trial judge it must be served on consecutive days or consecutive weekends. The trial judge may require bail of the defendant to insure the faithful performance of the sentence. The trial judge may attach conditions regarding the employment, travel, and other conduct of the defendant during the performance of such a sentence.” (Emphasis added.)

From the language quoted, and particularly the part emphasized, we conclude this provision may be invoked only at the time of sentencing. Under the facts of this case and in compliance with Art. 42.04, V.A.C. C.P., sentence was pronounced and was required to be pronounced before the appeal. After the appeal the trial court was only authorized to order execution of the sentence previously pronounced, and to perform such other ministerial duties as required by law. The discretion afforded by Art. 42.03, Sec. 5, supra, could have been exercised at the time of sentencing, but not after the mandate of this Court issued. Respondent was without authority to enter the June 13, 1977 order.

We conclude as we did in State ex rel. Vance v. Clawson, supra:

“We conclude that the issuance of a writ of mandamus is necessary in order to protect this court’s jurisdiction and to insure that the mandate of this court not be thwarted and the relator has no other adequate remedy.
“We assume that the respondent will immediately perform his duty as herein set out. Writ of mandamus will issue only if he refuses to do so.
“No motion for rehearing will be entertained.”
It is so ordered.

ONION, Presiding Judge,

dissenting.

The relator, the Criminal District Attorney of Galveston County, seeks a writ of mandamus from this court issued to respondent, a district judge, to set aside an order entered on June 13, 1977 in Cause No. 32,-975 in the 212th District Court affecting the sentence imposed against Donnie Botello in said cause number. The order involved permitted Botello to serve his sentence during “off-work hours” and was apparently entered in reliance upon Article 42.03, § 5, Vernon’s Ann.C.C.P.

The question presented by this action is whether a trial judge may, after the af-firmance of a case on appeal and the issuance of this court’s mandate, enter an order providing for the defendant to serve his sentence in the county jail during his “off-work hours” as provided in Article 42.-03, § 5, supra.

The record shows that on February 16, 1976 Botello was convicted of the misdemeanor offense of possession of gambling paraphernalia, a lesser included offense of the original charge of gambling promotion, and the jury assessed punishment at confinement in the Galveston County jail for one year and at a fine of $2,000.00. Sentence was pronounced by the Honorable Donald Markle, Acting Judge of the 212th District Court, on February 26,1976 and it provides in part:

“It is the order of this Court that defendant, Donnie Botello, who has been adjudged to be guilty of the offense of misdemeanor possession of gambling paraphernalia be and he is hereby sentenced to pay a fine of Two Thousand Dollars ($2,000.00) and sentenced to confinement in the County jail for a period of one (1) year and all costs of this proceeding for which execution may issue.”

There was no provision in the original sentence providing for serving the sentence during “off-work hours.”

Notice of appeal was given and on March 23, 1977 this court affirmed the conviction in an unpublished per curiam opinion in Cause No. 54,560. The mandate of this court issued on April 8,1977. The mandate was received by the trial court on April 13, 1977. Capias issued the following day and was executed on April 25, 1977.

On June 7,1977 the respondent, acting as Judge of the 212th District Court, entered an order allowing Botello to serve his jail time during “off-work hours” and providing for his release each day from 4 p. m. until 8 a. m. the next day for the purpose of working at the Knights of Columbus Hall in Galveston.

On June 13, 1977, the respondent entered an order which in effect amended the order of June 7, 1977 as to the hours of release. It is this order that is the subject of this mandamus action. Such order reads in part:

“The sentence herein having been affirmed by the Court of Criminal Appeals and the defendant having been remanded to the custody of the Sheriff of Galveston County, to begin serving his sentence and,
“It appearing to the court that the ends of justice would be best served by permitting the defendant to serve said sentence during his off work hours; it is therefore
“Ordered, Adjudged and Decreed that the defendant, Donnie Botello, be sentenced to one (1) year in the Galveston County Jail and pay a fine of Two Thousand ($2,000) Dollars, and all costs herein, provided that said defendant shall be released by the Sheriff of Galveston County each day during the hours of 4:00 P.M. to 12:00 Midnight, during each day of said sentence, for the purpose of working at the Knights of Columbus Hall, at 1912 Winnie Street, Galveston, Texas.”

Relator seeks a writ of mandamus contending that the respondent acted without authority in entering the order of June 13, 1977, which was violative of the mandate of this court; that after the issuance of the mandate the respondent’s only duty was to carry out that mandate without change or alteration.

Respondent, on the other hand, contends authority to enter the June 13th order is provided by Article 42.03, § 5, supra (see footnote # 1). Respondent proposes three questions, and submits argument in which he suggests that an application for writ of mandamus is not the appropriate remedy, but that a writ of prohibition is; that even if a writ of mandamus is the appropriate remedy, the Court of Criminal Appeals has no jurisdiction in the matter, and if the court has jurisdiction, the respondent did not alter the mandate of the Court of Criminal Appeals.

There can be no question that this court may issue a writ of prohibition in those cases in which it is necessary to enforce its jurisdiction. State ex rel. Vance v. Clawson, 465 S.W.2d 164 (Tex.Cr.App.1971), cert. den., Pruett v. Texas, 404 U.S. 910, 92 S.Ct. 226, 30 L.Ed.2d 182 (1971), and cases and authorities there cited; State ex rel. Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr.App.1973).

Is the issuance of such writ the appropriate remedy in the instant case as suggested by respondent? It has been said that “a ‘writ of prohibition’ is that process by which a superior court prevents inferior courts, tribunals, officers, or persons from usurping or exercising jurisdiction with which they have not been vested. . . . ” 73 C.J.S. Prohibition § 1, p. 9.

It has also been noted that:

“Prohibition issues to prevent the commission of a future act and not to undo, nullify, or review an act already performed; it will not be granted when the act sought to be prevented is already done, but will lie when such act is not a full, complete, and accomplished judicial act.” 73 C.J.S. Probation § 10c, p. 30.

Since the order of June 13, 1977 has already been entered and Botello’s sentence is being served in accordance therewith, prohibition is not the proper remedy. State ex rel. Vance v. Clawson, supra.

The next question is whether this court has jurisdiction of the matter before us.

Article V, § 5 of our State Constitution provides in part:

“The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the State in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law.
“The Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and under such regulations as may be prescribed by law, issue such writs as may be necessary to enforce its own jurisdiction.

Article 4.03, Vernon’s Ann.C.C.P., also provides that this court shall have appellate jurisdiction coextensive with the limits of the State in all criminal cases, and Article 4.04, Vernon’s Ann.C.C.P., provides that the “court and each member thereof shall have, and is hereby given, power and authority to grant and issue and cause the issuance of writs of mandamus and certiorari agreeable to the principles of law regarding said writs, whenever in the judgment of said court or any member thereof the same should be necessary to enforce the jurisdiction of said court.”

Thus, this court may issue writs of mandamus to enforce the court’s appellate jurisdiction or its original jurisdiction to issue writs of habeas corpus, but this is a limited use of such writ for the court has no general power to issue writs of mandamus. Eaves v. Landis, 96 Tex.Cr.R. 555, 258 S.W. 1056 (1924); Millikin v. Jeffrey, 117 Tex. 134, 299 S.W. 393 (1927); Ex parte Boehme, 158 Tex.Cr.R. 597, 259 S.W.2d 201, 203 (1953); Ex parte Rubison, 340 S.W.2d 815 (Tex.Cr.App.1960); Bradley v. Miller, 458 S.W.2d 673 (Tex.Cr.App.1970); Ex parte Giles, 502 S.W.2d 774 (Tex.Cr.App.1973); State ex rel. Vance v. Hatten, 508 S.W.2d 625 (Tex.Cr.App.1974).

Respondent’s attorneys argue that since this court has disposed of the Botello appeal it no longer has jurisdiction of the matter. This is not true.

“The Court of Criminal Appeals is the court of last resort in this state in criminal matters. This being so, no other court of this state has authority to overrule or circumvent its decisions, or disobey its mandates.” State ex rel. Wilson v. Briggs, 171 Tex.Cr.R. 479, 351 S.W.2d 892, 894 (1961). See also State ex rel. Vance v. Clawson, supra; State ex rel. Vance v. Hatten, supra.

In State v. Klein, 154 Tex.Cr.R. 31, 224 S.W.2d 250 (1949), after the conviction had been affirmed by this court and the mandate issued the district judge suspended the execution of the sentence and placed the defendant on probation. This we held that the district judge could not do for after the issuance of the mandate the district court acquired jurisdiction only to see that the judgment of the Court of Criminal Appeals was carried out. A like situation was presented in State ex rel. Vance v. Hatten, supra.

Thus, it is clear that this court may issue a writ of mandamus in order to protect the jurisdiction and to insure that the mandate of this court not be thwarted.

Respondent insists that the order of June 13th drafted under Article 42.03, § 5, supra, does not violate the jurisdiction of the Court of Criminal Appeals and does not thwart its mandate issued in the Botello case. Respondent argues that unlike Klein or Hatten he has not suspended the execution of the sentence or set the sentence aside and granted probation after the issuance of the mandate of affirmance, nor unlike Clawson he has not granted time credit under an inapplicable statute. He notes that the sentence remains the same, the length of the sentence and the place of confinement remain unaltered. He urges that in the interest of justice the only change made was to provide for service of the sentence during the off-work hours and that in doing so he was only exercising discretion given him as a judge by the Legislature.

The majority has concluded that a trial court may exercise its discretion under Article 42.03, § 5, supra, only at the time of sentencing and not thereafter, and that when a judgment and sentence in which the court did not exercise its discretion under the statute has been affirmed and the appellate court’s mandate issued, the trial judge is without authority to act under Article 42.03, § 5, supra.

At first blush and without thoughtful consideration, the majority’s position seems logical. The case would appear to be shades of the Klein and Hatten cases. It is observed that provisions for allowing a defendant to serve jail time during “off-work hours, or on week-ends” first found its way into Article 42.03 as it was originally enacted as part of the 1965 Code of Criminal Procedure (Acts 1965, 59th Leg., Vol. 2, p. 317, ch. 722). It has remained a part of Article 42.03, supra, during two amendments thereof (Acts 1967, 60th Leg., p. 1743, ch. 659, § 28, and Acts 1973, 63rd Leg., p. 205, ch. 91, § 1).

This provision is obviously based on legislative desire to increase the options available to the trial judge when jail time is involved. The use of the provision may permit the defendant to support his dependents who would otherwise be public charges, to earn money to pay his fine and serve as a tool of rehabilitation, etc. Many factors that might cause a trial judge to exercise his discretion in permitting jail time “on off-work hours or on week-ends” might not come into play at the time of sentence but appear later. Under the majority’s interpretation of Article 42.03, § 5, supra, the trial judge who had not exercised his discretion at the time of sentencing could not exercise it later regardless of what factors developed in the individual case. Further, under the majority’s interpretations a judge who permitted jail time to be served during off-work hours which are specified in the sentence could not change the provisions of the sentence even if the defendant is called to a different shift at different hours, or his employer goes out of business and new employment is obtained but different work hours are required. The majority’s version removes the necessary flexibility from the law which the Legislature intended.

It is clear that I do not agree with the majority’s reading of § 5 of Article 42.03, supra. I would zealously guard the jurisdiction of the Court of Criminal Appeals, but I do not view the order of June 13th drafted in accordance with Article 42.03, supra, as circumventing the decision of this court or thwarting the mandate of this court. The place of confinement remains the same, the length of sentence remains unchanged, the amount of fine unaltered. The only change is that during certain hours Botello may be released from jail for purposes of employment. In my opinion the respondent was authorized to order such change by Article 42.03, supra. Surely this doesn’t threaten the jurisdiction of the Court of Criminal Appeals.

There are other statutes which authorize action by the trial court or others after the mandate of this court has been issued that may affect in some way the punishment assessed and upheld by this court.

It is interesting to note that Article 42.03, supra, as originally enacted in 1965, provided in part:

“. . . and provided further, that in all cases where the defendant has been tried for any violation of the laws of the State of Texas, and has been convicted and has appealed from said judgment and sentence of conviction, and where said cause has been affirmed by the Court of Criminal Appeals, and after receipt of the mandate by the clerk of the trial court, the judge is authorized to again call said defendant before him; and if pending appeal, the defendant has not made bond and has remained in jail pending the time of such appeal, said trial judge may then in his discretion resentence the defendant, and may subtract from the original sentence pronounced upon the defendant, the length of time the defendant has lain in jail pending such appeal, noting any credit allowed upon the mandate which credit shall be allowed by the Texas Department of Corrections in all computations affecting the eligibility of defendant for parole or discharge. . . .”

This was also a provision of Article 768, Vernon’s Ann.C.C.P., 1925. This writer knows of no decision which has held that this authority granted by the Legislature to “resentence” the defendant after the mandate of the Court of Criminal Appeals had affirmed the conviction circumvents the decision of this court or its mandate.

The current method for granting credit for time spent in jail pending appeal is provided by § 3 of Article 42.03. It provides in part:

“. . . The court shall endorse on both the commitment and the mandate from the appellate court all credit given the defendant under this section, and the Department of Corrections shall grant the credit in computing the defendant’s eligibility for parole and discharge.”

This provision calls for the court to perform a ministerial act without discretion being involved, but it does have an effect upon the punishment assessed which has been affirmed by this court, but I know of no case where anyone has urged that such action circumvents a decision of the Court of Criminal Appeals.

Further, it is a matter of common knowledge that after convictions have been affirmed by this court and mandates issue paroles are granted. See Article 42.12, Vernon’s Ann.C.C.P. Here again, I have found no decision which holds that such action circumvents a decision of the Court of Criminal Appeals.

Further attention is called to a recent enactment of the Legislature. A new § 3e has been added to Article 42.12, Vernon’s Ann.C.C.P. (Acts 1977, 65th Leg., Reg.Sess., Ch. 306, p. 821, effective August 29, 1977). Subsection (a) of the new § 3e reads:

“(a) For the purposes of this section, the jurisdiction of the courts of this state in which a sentence requiring confinement in the Texas Department of Corrections is imposed for conviction of a felony shall continue for 120 days from the date the execution of the sentence actually begins. After the expiration of 60 days but prior to the expiration of 120 days from the date the execution of the sentence actually begins, the judge of the court that imposed such sentence may, on his own motion or on written motion of the defendant, suspend further execution of the sentence imposed and place the defendant on probation under the terms and conditions of this article, if such sentence (sic) is otherwise eligible for probation under this article and prior to the execution of such sentence, the defendant had never been incarcerated in a penitentiary serving a sentence for a felony and in the opinion of the judge the defendant would not benefit from further incarceration in a penitentiary. Probation may be granted under this section only if the offense for which the defendant was sentenced was an offense other than criminal homicide, rape, or robbery.”

This amendment for the first time provides Texas with a provision for “shock probation” under certain circumstances, clearly another option for the trial judge in the struggle for the rehabilitation of criminal defendants. This statute and others are indicative of the legislative intent to provide trial judges with certain options despite the fact that the conviction has been appealed and affirmed and the mandate of this court issued.

The order of June 13th in the instant case was entered under similar legislative authority granted by Article 42.03, supra, and it does not circumvent the decision of this court. I dissent to the restrictive interpretation given to such statute by the majority-

PHILLIPS, Judge,

dissenting.

I cannot agree that the authority given a trial judge by Art. 42.03, Sec. 5, V.A.C.C.P., vests only in the judge who pronounces sentence. The statute provides:

“Where jail time has been awarded, the trial judge may, when in his discretion the ends of justice would best be served, sentence the defendant to serve his sentence during his off-work hours, or on week-ends. When such a sentence is permitted by the trial judge it must be served on consecutive days or consecutive week-ends. The trial judge may require bail of the defendant to insure the faithful performance of the sentence. The trial judge may attach conditions regarding the employment, travel, and other conduct of the defendant during the performance of such a sentence.” (Emphasis added.)

Is justice not to be served during the performance of a sentence? The majority’s interpretation of Art. 42.03, Sec. 5, is not mandated by the language of the statute and is not consistent with the intent and purposes of this provision. It is reasonable to assume that the conditions affecting release of a jail prisoner for work purposes might change while a defendant is serving his sentence. Yet the majority’s holding prohibits the trial court from altering or modifying the work release order to accommodate any changes. Thus a defendant who loses a job while serving out his sentence could continue to leave the county jail during the work hours specified in the sentence and the trial court would be without authority to alter the order. Also, any “conditions regarding the employment, travel and other conduct of the defendant” which a trial judge may have attached to the sentence could not be modified after pronouncement of sentence. Nor could a trial judge impose additional conditions regarding a defendant’s conduct since “this provision may be invoked only at the time of sentencing”. The majority’s position is unreasonable and contrary to the plain intent of Art. 42.03, Sec. 5, to vest a trial court with broad discretion concerning work releases of jail prisoners.

The majority further concludes that the June 13 order thwarted the mandate of this Court and that a writ of mandamus is necessary to protect our jurisdiction; however, the majority does not explain in what way our mandate has been thwarted or our jurisdiction threatened.

The majority fails to address the respondent’s contention that the June 13 order did not affect the finality of the mandate of this Court because the order did not reduce the sentence imposed and did not alter the length of the sentence. Botello is still serving one year in jail and must still pay a $2,000.00 fine. The order which relator challenges describes the quality of Botello’s confinement but does not alter the length of confinement. Thus the sentence entered of record in cause number 32975 in the 212th District Court of Galveston County is being carried out, and the respondent performed a ministerial act in entering the June 13 order.

“[Tjhis Court may issue writs of mandamus to enforce the court’s appellate jurisdiction or its original jurisdiction to issue writs of habeas corpus, but this is a limited use of such writ, for the Court of Criminal Appeals has no general power to issue writs of mandamus.” Ex parte Giles, 502 S.W.2d 774, 778.

I do not agree that respondent has interfered with our appellate jurisdiction and that the issuance of a writ of mandamus is necessary.

      . Another order to similar effect was entered June 7, but was subsequently superseded by the June 13 order.

      . The order was entered by respondent as the acting Judge of the 212th Judicial District Court.
      As to the right of district judges in the same county to transfer cases, civil or criminal, to other district courts in the county and to exchange benches from time to time or hold court for such judges, see Article 199a, § 2.001, Vernon’s Ann.C.S.

      . Article 42.03, § 5, supra, provides:
      “Where jail time has been awarded, the trial judge may, when in his discretion the ends of justice would best be served, sentence the defendant to serve his sentence during his off-work hours, or on week-ends. When such a sentence is permitted by the trial judge it must be served on consecutive days or consecutive week-ends. The trial judge may require bail of the defendant to insure the faithful performance of the sentence. The trial judge may attach conditions regarding the employment, travel, and other conduct of the defendant during the performance of such a sentence”.

      .Judge Markle was Judge of the 10th Judicial District Court of Galveston County at the time of sentencing. He was acting as Judge of the 212th District Court at the time. See footnote # 1. Judicial notice may be taken that the respondent Harris has succeeded Judge Markle as Judge of the 10th Judicial District Court.

      . The questions proposed are:

        “Question Number 1 Presented: Does the Court of Criminal Appeals have jurisdiction in this matter?

        “Question Number 2 Presented: Is the remedy sought, to wit: that of Mandamus, an appropriate remedy?

        “Question Number 3 Presented: Did Respondent change, in any respect, the original, sentence or mandate of the Court of Criminal Appeals of Texas?”

      . As to when the execution of a sentence actually begins, Article 42.09, Vernon’s Ann.C.C.P., is instructive.


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Ex parte Will RAINS, Jr.
    No. 54898.
    Court of Criminal Appeals of Texas.
    Sept. 14, 1977.

      Robert T. Baskett, Dallas, court appointed, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is a post-conviction habeas corpus proceeding brought under the provisions of Article 11.07, Vernon’s Ann.C.C.P.

The petitioner was convicted of murder in 1961 and a sentence of forty (40) years’ imprisonment was imposed. Petitioner contends that at the time of formal sentencing he was indigent, was without counsel, and that as a result was denied an appellate review of his conviction.

After a hearing on petitioner’s application for habeas corpus, the trial court filed findings of fact and conclusions of law, finding petitioner to be lawfully restrained. The record was forwarded to this court.

The record reflects that petitioner was convicted of murder with malice on May 23, 1961 and assessed a punishment of forty (40) years in the penitentiary by a jury. On June 23,1961 formal sentence was imposed. No notice of appeal was given.

At the habeas corpus hearing held on February 18, 1977, Lillie Mae Dansby, petitioner’s mother, testified he was born on June 13, 1942 and that at the time of his 1961 trial he was 19 years old. She related that in 1961 she was a widow and after posting bond for the petitioner and retaining counsel for trial she had exhausted her funds; that while he had counsel for the trial, no attorney was present at the time of the sentencing on June 23, 1961.

Petitioner Rains testified that prior to the murder offense he had no encounter with law enforcement, that he did not know any law. He stated that counsel retained by his mother because he was indigent, a Mr. Duke, was not present at the time of formal sentencing; that he did not waive his right to counsel. He admitted he did not tell the sentencing judge, Judge J. Frank Wilson, that he was indigent and did not request counsel. He stated his counsel had never discussed appeal with him, that he did not know he had a right of appeal and no one at the sentencing explained that right to him. He related he would have appealed his conviction if he had known of his right to do so. It was further shown by his testimony that he was sent to prison on July 5, 1961 and that he was released on parole in March, 1975. He admitted that he had since been convicted of burglary of a vehicle and that the Board of Pardons and Paroles was seeking to revoke his parole on the basis of the subsequent conviction. He acknowledged he had not previously filed an application for habeas corpus, but stated he had only learned of his right to have counsel present at sentencing when he was brought into another district court.

Upon petitioner’s request, the trial court took judicial notice of the court records of the 1961 conviction. The docket sheet and the formal sentence are silent as to counsel at the time of the sentencing. No other evidence indicates counsel was present. It was stipulated that the court reporter’s notes from the 1961 trial were no longer available.

The State offered no testimony or any other controverting evidence.

The trial court’s findings of fact and conclusions of law filed on March 28,1977 were in part as follows:

“1. Neither the statement of facts nor the court reporter’s notes are available so as to allow appellate review of Petitioner’s case.
“2. The judge, court reporter, Petitioner’s attorney and some of the associates of Petitioner’s attorney are all dead. The State’s attorney is unknown.
“3. Petitioner was paroled in this case. The Parole Board is seeking to revoke Petitioner’s parole due in part to Petitioner’s subsequent conviction for burglary of a vehicle.
“4. Neither Petitioner nor his mother are credible witnesses.
“5. Based on this court’s personal knowledge of the parties associated with this case as well as other factors, the court finds that the allegation is untrue.
“The Court finds that the Petitioner has not been denied any rights guaranteed to him by the Constitution of the United States or the Constitution of Texas.
“The Court finds that the Petitioner is lawfully restrained and confined by Respondent. . . . ”

It is here observed that this court is not bound by the findings of the trial court in a post-conviction habeas corpus proceeding. Ex parte Garcia, 548 S.W.2d 405 (Tex.Cr.App.1977); Ex parte Bagley, 509 S.W.2d 332 (Tex.Cr.App.1974).

Here, the court’s conclusions of law are general and vague and do not deal specifically with the allegations in petitioner’s ha-beas corpus application.

The conclusion reached seems to be based largely (according to the findings) on the “court’s personal knowledge of the parties associated with this case as well as other factors . . . The extent and nature of such personal knowledge is not disclosed, nor did the habeas corpus judge, who was not the sentencing judge in 1961, indicate to the parties he was going to rely upon personal knowledge. It is well established that a judge’s personal knowledge of matters not contained in official judicial records of the court is not a proper matter for judicial notice. Jackson v. State, 70 Tex.Cr.R. 582, 157 S.W. 1196 (1913); Lerma v. State, 81 Tex.Cr.R. 109, 194 S.W. 167 (1917); Stephenson v. State, 500 S.W.2d 855 (Tex.Cr.App.1973) (dissenting opinion and cases there cited).

The burden of proof in a habeas corpus proceeding is upon the petitioner. It was incumbent upon the petitioner here by a preponderance of the evidence to show that he was indigent, had no counsel and did not affirmatively waive the right to counsel. Ex parte Auten, 458 S.W.2d 466 (Tex.Cr.App.1970); Ex parte Morgan, 412 S.W.2d 657 (Tex.Cr.App.1967).

In determining whether the petitioner met his burden of proof, we find that Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971), is instructive. There, the petitioner pleaded guilty to robbery in a Georgia state court in 1944. He escaped while serving his sentence and did not return to Georgia until 1969 to serve the remainder of his sentence. He then brought state habeas corpus proceedings to declare his conviction void under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), since he was not represented by counsel at the time of his trial. The trial court denied relief because Gideon was “recent law and under the law at the time of his sentence, the sentence met the requirements of the law at that time.” The United States Supreme Court noted that this was error as Gideon is fully retroactive, citing Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Desist v. United States, 394 U.S. 244, 250, n. 15, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); McConnell v. Bhay, 393 U.S. 2, 3, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); Stovall v. Denno, 388 U.S. 293, 297-298, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

On appeal the Georgia Supreme Court affirmed the trial court’s denial of habeas corpus but on different grounds, saying that the petitioner did not testify at the habeas corpus hearing that he “wanted a lawyer, asked for one, or made any effort to get one” or that “because of his poverty, or for any other reason, he was unable to hire a lawyer.”

In granting the petition for certiorari, the United States Supreme Court stated, “ ‘[i]t is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request. Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 8 L.Ed.2d 70, 76 (1962).’ ” See also Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967); Ex parte Perez, 479 S.W.2d 283 (Tex.Cr.App.1972).

As to whether the petitioner in Kitchens v. Smith, supra, had sustained his burden of proving his inability at the time of trial to hire an attorney, the United States Supreme Court wrote:

“Of course," to establish his right to appointed counsel in 1944, petitioner had the burden of proving his inability at that time to hire an attorney. His petition for habeas corpus specifically averred that he was unable to obtain counsel ‘because of his impoverished condition’ at that time. The respondent denied this allegation and thus put the matter in issue. At the hearing, petitioner testified, T was a lot younger and I didn’t have any money and I didn’t have a lawyer . . . .’ (Emphasis added.) The State made no effort whatever to contradict petitioner’s testimony that he was indigent; no part of its case went to the issue of indigency. In this light, the Georgia Supreme Court’s finding that petitioner ‘did not testify . that because of his poverty, or for any other reason, he was unable to hire a lawyer’ is explicable only under the most rigid rules of testimonial construction. Though petitioner did not precisely testify that his failure to obtain a lawyer was a result of his indigency, this was the undeniable implication of his testimony, especially in view of the habeas corpus petition’s allegation that petitioner was unable to hire an attorney ‘because of’ his indigency. The hearing below, as the transcript shows, was conducted informally. Petitioner had no lawyer, and introduced no evidence other than his own testimony. He testified discursively; no objections were made by the State, nor did it cross-examine petitioner on the issue of indigency.
“It is our view that on this record petitioner proved he was without counsel due to indigency at the time of his conviction. The petition for certiorari is granted, the judgment of the Georgia Supreme Court-is reversed and the case remanded for further proceedings not inconsistent with this opinion.” (Emphasis supplied.)

In the instant case both the petitioner and his mother testified he was indigent at the time of sentencing and had no attorney present. While they were cross-examined, their testimony went unchanged. The State offered no testimony or other evidence to contradict testimony offered on behalf of the petitioner.

We conclude that petitioner sustained his burden of proof as to his indigen-cy and the fact he had no counsel at the time of sentencing. Further, the right to counsel may be waived only if the waiver is knowingly, voluntarily and intelligently made. Carnley v. Cochran, supra; Walton v. Arkansas, 371 U.S. 28, 83 S.Ct. 9, 9 L.Ed.2d 9 (1962); Ex parte Auten, supra.

As stated in Carnley v. Cochran, supra,

“Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understanding^ rejected the offer. Anything less is not waiver.” 369 U.S. at p. 516, 82 S.Ct. at p. 890.

The record in the instant case is barren of any indication of waiver. The petitioner stated he did not tell the sentencing judge he was indigent and did not request counsel, but explained that this was due to his ignorance of the law. As noted above, however, where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request therefor.

We conclude the petitioner has sufficiently sustained his burden as to the allegations in his habeas corpus petition.

In Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), the United States Supreme Court held that the appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights may be affected. In McConnell v. Rhay, supra, the Supreme Court held that Mempa v. Rhay, supra, was to be applied retroactively. See also Crawford v. State, 435 S.W.2d 148 (Tex.Cr.App.1968).

In Ex parte Vestal, 468 S.W.2d 372 (Tex.Cr.App.1971), this court held that formal sentencing is a “stage of a criminal proceeding where substantial rights may be affected” and where an indigent defendant was without counsel at sentencing his conviction could hot stand.

It clearly appears that the petitioner is entitled to have an attorney at re-sentencing and is entitled to an out-of-time appeal. Since it was stipulated that the court reporter’s stenographic notes of the 1961 trial are no longer available, it is impossible to provide an out-of-time appeal. See Ex parte Mays, 510 S.W.2d 606 (Tex.Cr.App. 1974); Ex parte Vestal, supra; Ex parte Coleman, 455 S.W.2d 209 (Tex.Cr.App.1970); Ex parte Gaines, 455 S.W.2d 210 (Tex.Cr.App.1970).

The relief prayed for in the habeas corpus petition is granted, the 1961 conviction for murder is set aside and the petitioner is ordered remanded to the sheriff of Dallas County to answer the indictment in Cause No. D-3836.

It is so ordered.

DOUGLAS, J., dissents.


author: PHILLIPS, Judge.

text:
    Mike TAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 55723.
    Court of Criminal Appeals of Texas.
    Sept. 14, 1977.
    Walter F. Splawn, Austin, for appellant.
    Ronald D. Earle, Dist. Atty. and Charles E. Hardy, Asst. Dist. Atty., Austin, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

Appellant waived trial by jury and entered a plea of guilty before the court to the offense of forgery. Punishment was assessed at imprisonment for two years.

Appellant’s court appointed counsel has filed a brief in which he presents a professional evaluation of the record demonstrating why there are no arguable grounds of error and the appeal is wholly frivolous and without merit. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Gainous v. State, Tex.Cr.App., 436 S.W.2d 137; Currie v. State, Tex.Cr.App., 516 S.W.2d 684. A copy of the record and counsel’s brief have been delivered to appellant and appellant has been advised of his right to file a pro se brief.

We are unable to agree with counsel’s conclusion that the appeal is frivolous. A review of the record shows the trial court should have withdrawn appellant’s plea of guilty when appellant testified as follows:

“Q [DEFENSE COUNSEL]: You are 18 years of age. Now, it says here in this indictment, in Cause No. 50,042, that on or about the 15th day of November, 1975, that you did then and there with intent to harm and defraud somebody, that you knowingly and intentionally uttered a forged instrument in writing, to wit, a check, and I am going to show you what has been marked here as State’s Exhibit No. 1, and is that the check that you were indicted on, son?
A Yes, sir.
Q And it is for $30. Now, did you have authority from Ginette Finnegan to sign this?
A No.
Q Did you sign it?
A I signed it.
Q Did you sign her name to it?
A I signed her name, but I purposely misspelled the name' so it wouldn’t go through the bank.
Q And you cashed this check where? THE COURT: You mean you didn’t intend to defraud the bank?
A Not actually — I didn’t want it to go through the bank.
THE COURT: Well, you intended to defraud the man and get the money from him, didn’t you?
A It wasn’t really that way.
THE COURT: I will change your plea.
[DEFENSE COUNSEL]: Let me go ahead and develop it, Your Honor.
THE COURT: All right.
Q ([DEFENSE COUNSEL] resuming) Now, the truth of the matter is, you cashed the check and got the $30, and then you intended to get to the bank before the check did; is that the way it was?
A Yes.
Q And you intended to run down there and pay the check off before any bad things happened?
A Yes, sir.
Q But you never did get there?
A No, sir.”

This testimony was a denial of an “intent to defraud and harm” as alleged in the indictment and raised an issue of fact as to appellant’s innocence. See Roberson v. State, Tex.Cr.App., 549 S.W.2d 749; Malone v. State, Tex.Cr.App., 548 S.W.2d 908; Woodberry v. State, Tex.Cr.App., 547 S.W.2d 629; Gates v. State, Tex.Cr.App., 543 S.W 2d 360. Reviewing the totality of the circumstances, we conclude that appellant was not voluntarily pleading guilty to the offense charged in the indictment and the case should not have proceeded to final judgment under the plea of guilty. See Moon v. State (No. 54,352 decided June 29, 1977).

The judgment is reversed and the cause remanded.

      . The judgment and sentence adjudge appellant guilty of the offense of “forgery by passing”. However, the indictment charges the offense of forgery by “possessing with intent to utter, a forged writing” with knowledge that such writing was forged. Appellant signed a stipulation admitting he was guilty of the offense of “forgery” and judicially confessed that the allegations in the indictment were true and correct.


author: CADENA, Justice.

text:
    HIGHLAND PARK STATE BANK, Appellant, v. Abel J. SALAZAR, Appellee.
    No. 15691.
    Court of Civil Appeals of Texas, San Antonio.
    June 29, 1977.
    Rehearing Denied Sept. 7, 1977.

      George F. Manning, San Antonio, for appellant.
    Josephine M. Hall, Hardberger, Branton & Herrera, Inc., San Antonio, for appellee.
   CADENA, Justice.

Highland Park State Bank of San Antonio, defendant below, appeals from a judgment awarding plaintiff, Abel J. Salazar, $2,222.05.

The question presented is whether money in a savings account, consisting of benefits paid to the depositor under the Workmen’s Compensation Act, can be pledged to secure repayment of money lent to the injured employee after his receipt of such benefits.

Plaintiff, after being paid the sum of $4,556.10 as compensation for injuries suffered by him during the course of his employment, deposited $3,556.10 of such funds on October 26,1972, in a savings account at defendant bank. The account was opened as a joint tenancy account in the names of plaintiff and his son, with right of survivor-ship, with either plaintiff or his son having the right to withdraw part or all of the funds at any time. Defendant had no knowledge of the fact that the money deposited represented benefits paid to plaintiff under the Workmen’s Compensation Act.

On December 26, 1972, plaintiff and his son executed a promissory note payable to defendant in the amount of $4,646.16. The amount of the note represented money advanced by defendant, plus prepaid interest and prepaid insurance premiums. To secure payment of the loan, defendant obtained a security interest in the savings account in the form of a security agreement signed by plaintiff and his son. In addition, plaintiff’s son executed a pledge agreement covering the amount in the savings account. The money advanced by defendant was used by plaintiff to purchase a truck to be used in plaintiff’s business.

The only payment made by plaintiff or his son on the debt evidenced by the note was made on March 19, 1973. When no further payments were forthcoming defendant, on June 7,1973, exercised its right to declare the entire indebtedness due. At that time the amount owing on the note, after giving the debtors credit for prepaid but unearned interest and for unearned prepaid insurance premiums, was $3,561.99. Defendant applied the then balance ($1,834.87) in the savings account to such indebtedness. No claim for the deficiency of $1,727.12 has been made by defendant against either plaintiff or his son.

On April 14, 1975, plaintiff filed this suit alleging that the pledge of the savings account as security for the loan was invalid as an attempted assignment of benefits payable under the Workmen’s Compensation Act and that, therefore, defendant’s appropriation of the funds in such account to payment of the note was wrongful. Plaintiff also sought recovery of attorney’s fees. Defendant’s answer consisted of a general denial.

Plaintiff then filed a motion for summary judgment insofar as his prayer for recovery of $2,222.05 was concerned and requesting that the question of attorney’s fees be reserved for determination at a subsequent hearing. Defendant also filed a motion for summary judgment. Attached to defendant’s motion was an “agreed statement of facts” signed by attorneys for both parties.

The judgment in this case, dated May 18, 1976, is captioned “final judgment” and recites that a hearing was held on February 27, 1976 on plaintiff’s motion “for Partial Summary Judgment” and defendant’s motion for summary judgment. The order further recites that the court, after considering the motions, briefs, pleadings and stipulations on file, “finds that as a matter of law, the Workmen’s Compensation Benefits of the Plaintiff, . . . , retain their identity as such by virtue of having been placed in a separate account without commingling with funds from other sources,” and that, as a matter of law, “the subsequent attempted assignment or pledge” to defendant was “void as provided by the terms of Article 8306, Section 3”, Tex.Rev. Civ.Stat.Ann. (1966).

The order then recites that plaintiff’s motion for “partial” summary judgment is granted and defendant’s motion for summary judgment is overruled. This is followed by a paragraph setting out that the trial court is of the opinion that plaintiff’s claim for attorney’s fees and “any and all other relief requested” by plaintiff “is denied.” The final paragraph granted plaintiff judgment against defendant for $2,222.05 and costs and directs issuance of execution if such sum be not timely paid.

It is clear that the order disposes of all issues in the case and, despite the reference to the fact that plaintiff’s motion for “partial” summary judgment is granted while defendánt’s motion for summary judgment is denied, the order is a final appealable judgment.

The pertinent portion of Art. 8306, § 3, is as follows:

All compensation allowed under the [Workmen’s Compensation Act] shall be exempt from garnishment, attachment, judgment and all other suits or claims, and no such right of action and no such compensation and no part thereof or of either shall be assignable, except as otherwise herein provided, and any attempt to assign the same shall be void.

The statute may be considered as containing three separate provisions. The first clause protects the injured employee against involuntary loss of the compensation as a result of in in viturn proceedings such as garnishment. The second clause prohibits total or partial assignment of the right of action and also proscribes total or partial assignment of the compensation. As distinguished from the first clause, the second clause concerns itself with situations where the injured employee voluntarily creates, or attempts to create, an interest in a third party' in his claim for compensation or in the compensation itself.

The first clause, which shields the injured employee against the coercive, remedial and executorial processes available to creditors, has been liberally interpreted to afford him the utmost protection. For example, although the statutory exemption of “current” wages from garnishment embodied in Art. 3832, § 16, Tex.Rev.Civ.Stat.Ann. (1966) was held in Bell v. Indian Live-Stock Co., 11 S.W. 344 (Tex.1889) and Bradshaw v. Smith, 130 Tex. 180, 108 S.W.2d 200 (1937), to terminate once the wages were collected by the employee and deposited in a bank, the exemption of compensation benefits continues even after the compensation has been paid to the injured employee and has been deposited in a bank, at least in the case where the compensation money has not been commingled with any other funds. Gaddy v. First Nat. Bank of Beaumont, 115 Tex. 393, 283 S.W. 472 (1926). It is not entirely clear from the opinion in Gaddy whether the debt which the garnisher was attempting to collect was incurred before or after the employee received the compensation, although at least one analysis of the opinion suggests that the exemption would not be applicable if the debt were incurred for living expenses after receipt of the compensation. Note: 4 Texas L.Rev. 538 (1926).

The provision to the effect that the “compensation” shall not be “assignable” is somewhat unusual, since normally we do not speak of an “assignment” of money. An assignment is the act by which one transfers to another, or causes to vest in another, his right of property. Harlowe v. Hudgins, 84 Tex. 107, 19 S.W. 364, 365 (1892); 6 Am.Jur.2d, Assignments, § 1, p. 185 (1963). Therefore, taken literally, the proscription against assignment of the compensation would disable an injured employee, after receipt of the compensation, from using the money for the purpose of maintaining himself and his dependents. He could not use the money to pay rent, purchase food, make payments on his home or automobile, pay for medical attention for himself and his dependents, etc., since payment of the purchase price would necessarily involve a transfer of his “title” to the money to the purchaser. In effect, the prohibition against assignment of the compensation would make the money received by the employee completely useless for any purpose and would completely frustrate the purpose of the Workmen’s Compensation Act, which is to provide for the maintenance of the injured worker and his dependents during his disability, whether such disability be temporary or permanent, total or partial.

Unless we are prepared to hold that the legislature did an unbelievably foolish thing, it is clear that we cannot give to the prohibition against assignment of the compensation its ordinary meaning, although no difficulty is created by giving to such language its ordinary meaning insofar as it prohibits assignment of the “right of action.”

The “exemption” provision with which we are here concerned can be reasonably interpreted in a manner which will not completely frustrate the legislative purpose of helping the injured employee and, at the same time protect the compensation from claims of creditors and protect the employee from the consequences of some of his “voluntary” actions which were undertaken under economic duress. This interpretation, which we adopt, may be stated as follows:

1. The compensation received by the injured employee is completely immunized, at least as long as it remains identifiable as “compensation,” from all claims of creditors where the claim is based solely on the fact that the employee is indebted to the creditor. This result is achieved by the first clause which protects the employee against the coercive, remedial and executorial processes available to creditors, such as garnishment.

2. The employee is protected against his “voluntary” attempts to divest himself of, and to vest in another his right of action, that is, his claim to the compensation. This is accomplished by nullifying attempted assignments of the “right of action.”

3. The legislature has insured that, after the employee has successfully asserted his right to compensation, he will receive the money free of all claims of others to any part of the money which are based on agreements of the employee made prior to the actual receipt of the funds. This is accomplished by the provision declaring void assignments of the “compensation.” This latter provision we are obviously construing as prohibiting only assignments of the compensation made prior to the time that the employee receives the money.

This interpretation accomplishes the legislative purpose of assuring that, at the time the employee receives the compensation, the money will be available, intact, to him for use for the purpose for which it is intended — the support of himself and his dependents during the period of his disability. He may, of course, use the money for whatever purpose he deems advisable, but he can be divested of his right to the money only as the result of his voluntary acts after he has received it. He may use it to provide food, shelter and other necessities of life for himself and his family. He may use it to buy a truck, or he may use it as collateral to secure repayment of a loan made for the purpose of buying a truck.

Under this interpretation, the pledge by plaintiff of the compensation money, made after he received the funds, to secure repayment of his debt to the bank was not void under the provisions of the statute on which plaintiff relies.

Even if, contrary to good sense, we give to the statutory language its literal meaning, plaintiff cannot succeed in his effort to avoid the consequences of his pledge of the savings account.

It is almost universally recognized that there is a distinction between an assignment and the creation of a mere lien. The creation of a lien is not an assignment, the two being distinguished by the fact that a lien is merely a charge on property while an assignment creates an interest in property. In Vaughan v. John Hancock Mut. Life Ins. Co., 61 S.W.2d 189, 190 (Tex.Civ.App.—Fort Worth 1933, writ ref’d), the Court said: “We cannot agree that any such definition can be given the word ‘lien’ as makes it mean ‘sale,’ ‘transfer,’ ‘delivery,’ ‘assignment,’ or ‘bill of sale,’ or the like.” See also 6A C.J.S. Assignments § 5b pp. 595-96 (1975) and 4A Words and Phrases, Assignment, pp. 129-32 (1969).

The pledge of the savings account, therefore, was not an assignment of the compensation.

In view of our conclusions concerning the applicability of the statute in question to the facts of this case, no useful purpose would be served in discussing defendant’s complaints relating to the failure of the trial court to file additional findings of fact and conclusions of law.

The judgment below is clearly erroneous and must be reversed. If we consider the judgment as one granting plaintiff’s motion for summary judgment and denying defendant’s motion for summary judgment, we can sustain defendant’s point that the trial court erred not only in rendering summary judgment in favor of plaintiff but also in refusing to grant defendant’s motion for summary judgment. Since plaintiff moved only for “partial” summary judgment, it can be argued that granting summary judgment here in favor of defendant would be improper. However, in view of the fact that the judgment appealed from disposed of all issues in the case and the record contains an agreed statement of facts, no useful purpose would be served by remanding the case to the trial court for a new trial. Plaintiff does not suggest that there are additional facts to be developed. Whether we view the judgment as one granting summary judgment in favor of plaintiff on the whole case, or as granting a “partial” summary judgment in favor of plaintiff and disposing of the remainder of the issues on the basis of the agreed statement of facts, the record conclusively establishes that defendant is entitled to judgment.

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


author: CADENA, Chief Justice.

text:
    Johnny ANDRADA, Individually and for all others similarly situated, Appellant, v. CITY OF SAN ANTONIO, Appellee.
    No. 15740.
    Court of Civil Appeals of Texas, San Antonio.
    July 13, 1977.
    Rehearing Denied Sept. 13, 1977.

      Franz & Franz, Charles L. Franz, Jr., San Antonio, for appellant.
    James M. Parker, City Atty., Jackson C. Hubbard, Asst. City Atty., San Antonio, for appellee.
   CADENA, Chief Justice.

Plaintiff, Johnny Andrada, appeals from a judgment denying his prayer for an injunction restraining the defendant, City of San Antonio, from enforcing its “wrecker” ordinance and from a contract entered into between City and San Antonio Wrecker Service giving the latter the exclusive right to tow away, on or over the City streets, any vehicle which had been abandoned or involved in a collision. The trial court also denied plaintiff’s prayer for judgment declaring the ordinance and contract unconstitutional.

According to plaintiffs petition, he sought relief not only for himself individually, but also as representative of a “class” described as including the following:

1. Those citizens of San Antonio “who belong to private organizations that furnish free towing service” to their members, such as the American Automobile Association.

2. Citizens of San Antonio who own and operate their own towing equipment and who are “capable and desirous of serving themselves and their customers.” In effect, this portion of the class consists of persons in the towing business.

3. Those persons who “regularly do business with a towing firm.” This portion of the class apparently consists of persons engaged in the business of repairing disabled vehicles.

4. All other citizens of San Antonio who own and operate vehicles on the public ways of the City.

There is nothing in the pleadings or the evidence which suggests that nominal plaintiff is a member of the first three subclasses included in the “class” which he purports to represent. But City did not question, in the trial court, the status of nominal plaintiff as a true representative of the “class” described in the petition and in any event, the questions raised by plaintiff in his individual capacity may be properly considered. We do not here determine whether the thousands of persons whom plaintiff claims to represent will be bound, under the doctrine of res judicata, by the disposition of this case.

As already stated, the wrecker ordinance prohibits any wrecker' operator from handling, on or over the public ways of the City, any vehicle which has been abandoned or has been involved in a collision unless directed to do so by the Chief of Police or his authorized representative. In a case in which 16 operators of wrecker services challenged the validity of this ordinance, this Court held that plaintiffs could not maintain the suit in the absence of a showing of a vested property right to use the streets of the City of San Antonio for the purpose of carrying on their business. Mooney v. City of San Antonio, Tex.Civ.App., 386 S.W.2d 638 (1965, writ ref’d). In that case, plaintiffs alleged that the effect of the ordinance was to give the City of San Antonio a monopoly on the wrecker business, and that City had entered into a contract with one wrecker operator under which such operator was to provide wrecker service to the City for the purpose of removing from the City streets all vehicles which had been abandoned or had been involved in a collision, as well as all illegally parked vehicles.

The challenge in this case is based on the fact that the ordinance prohibits the individual whose car has been involved in a collision from calling the wrecker operator of his choice for the purpose of having his disabled vehicle towed away. In this case, in addition to his own testimony, plaintiff offered testimony from one individual and from five wrecker operators and one former wrecker operator. The testimony may be summarized as establishing the fact that a person involved in a collision is not permitted to call the towing service of his choice but must, despite his protest, engage the services of the wrecker service with whom the City has a current contract.

Plaintiff does not here assert that operators of towing services have a vested property right to use the City streets in the operation of their business. Instead, he asserts that the ordinance and exclusive towing contract deprive the citizen from contracting with the towing service of his choice.

One of plaintiff’s complaints asserts that the ordinance is enforced even when the vehicle to be towed is on private property. The evidence in this case is not of such probative force as to compel the conclusion that this factual allegation is true.

Plaintiff points out that the cases upholding the validity of ordinances regulating the towing business involve ordinances which, unlike that of San Antonio, permit the owner of a vehicle to call the wrecker of his choice.

It is obvious that every regulation of business necessarily affects the rights of persons engaged in such business, but also the rights of persons dealing or desiring to deal with such operators. Thus, if it is unlawful for the operator of a shoe store to sell his merchandise on Sundays, the restriction on Sunday sales not only prevents the transaction of business by the vendor but necessarily prevents the potential customer from purchasing shoes on Sunday. Admittedly, the restriction is less drastic than that which is involved in this case, but where a restriction on business constitutes a valid exercise of the police power, the fact that the regulation necessarily restricts the activities of persons not engaged in the regulated business is not of itself sufficient to brand the regulation as unconstitutional.

There is ample testimony to support the conclusion that the absence of restrictions on wrecker operators created serious problems. The not unusual situation was for several wreckers to appear at the scene of an accident, creating problems for officers who were attempting to restore the normal flow of traffic and seriously interfering with the efforts of police officers to investigate the accident and file the required reports. Wreckers were equipped with radios capable of monitoring the police frequencies. When the wreckers arrived on the scene of the accident they would engage in fiercely competitive efforts to induce the car owners to engage their services. The result was disorder and confusion at the scene of the accident.

Before the adoption of the present ordinance and system, City made several efforts to control the situation. At one time, the plan was to have the police dispatcher call record operators in rotation. Later the plan involved dividing the City into zones and, in case of an accident, having the police dispatcher call the wrecker operator nearest to the scene of the accident. All of the prior plans were unsuccessful, and one of the problems was that the various wrecker operators who appeared at the scene would assert that they had been called and that their appearance at the scene of the accident was in no way traceable to information they had obtained by monitoring the police frequency. The next-to-last step was a decision by the City to operate its own wrecker service. City purchased towing equipment, but after some time it was decided that more efficient service could be obtained if City contracted with private operators. The contract is let on the basis of bids submitted by persons operating wrecker services within the City, and the evidence indicates that invitations to bid are sent to all such operators. However, due to the great number of accidents on the streets of San Antonio, it appears that the majority of persons in the wrecker business decline to submit bids because they lack equipment sufficient to perform efficiently.

It is clear that to uphold plaintiff’s contention would, in effect, seriously undermine the effort to control the problem. At the very least, it cannot be said that plaintiff has established the lack of a reasonable relationship between the regulation and the legitimate police power objective which City is attempting to accomplish. To hold that while a city has the power to regulate and restrict the right of a purveyor of goods and services to use the city streets, but lacks the power to regulate or restrict the rights of others to demand that such purveyor perform his commercial operations in city streets, amounts to saying that the operator of the business is immune from regulation.

It is true, as plaintiff points out, that liberty of contract is generally said to be a part of that “liberty” which is protected by due process clauses. It is also true that liberty of contract has been alluded to as a “property right.” See, for example, Cop-page v. Kansas, 236 U.S. 1,14, 35 S.Ct. 240, 59 L.Ed. 441 (1915). But even at a time when courts were alert to strike down regulations of economic freedom, ameliorative legislation was upheld by acknowledging that freedom of contract is a qualified, not an absolute, right. “Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community. . . . [T]he legislature has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted . . . Chicago V. & Q. R. Co. v. McGuire, 219 U.S. 549, 567, 570, 31 S.Ct. 259, 262, 55 L.Ed. 328 (1911).

Not only may the making of future contracts be prohibited by exercise of the police power, but even existing contracts may, in effect, be invalidated, despite the constitutional prohibition of state laws impairing the obligation of contract. U.S. Const. Art. I, § 10. “It is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the state from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. * * * . [I]n other words, that parties, by entering into contracts, may not estop the legislature from enacting laws intended for the public good.” Manigault v. Springs, 199 U.S. 473, 480, 26 S.Ct. 127, 130, 50 L.Ed.2d 274 (1905). See also Midland Realty Co. v. Kansas City Power & Light Co., 300 U.S. 109, 57 S.Ct. 345, 81 L.Ed. 540 (1937).

There is nothing in the record before us which compels the conclusion that the regulation in question is not reasonable.

The judgment of the trial court is affirmed.


author:
BARROW, Chief Justice.
      CADENA, Justice,

text:
    The GROOS NATIONAL BANK, Appellant, v. SHAW’S OF SAN ANTONIO, INC., Appellee.
    No. 15804.
    Court of Civil Appeals of Texas, San Antonio.
    July 13, 1977.
    Rehearing Denied Sept. 13, 1977.
    O’Neal Munn, Gerry L. Saum, San Antonio, for appellant.
    Jay Sam Levey, Levey & Goldstein, San Antonio, for appellee.
   BARROW, Chief Justice.

Appellant has appealed from a judgment rendered after a non-jury trial whereby ap-pellee recovered the sum of $716.65 being the amount which was on deposit in the account of Maria Elena Garcia at the time a cheek for $1,328.20 given appellee by Ms. Garcia was presented to appellant for payment.

The facts are largely undisputed. On Friday, October 17, 1975, at about 3:30 p. m., Ms. Garcia purchased jewelry from ap-pellee and tendered her check for $1,328.20 payable to appellee which was drawn on appellant in payment therefor. Before delivering the merchandise, an employee of appellee telephoned appellant and was advised by an unidentified employee of appellant that the check was good. Ms. Garcia returned to appellee store on Saturday and attempted to purchase additional jewelry. Appellee ascertained at that time that Ms. Garcia’s address was fictitious and became suspicious that it was a victim of a swindle by Ms. Garcia. Accordingly, an employee of appellee was waiting at the door of appellant bank when it opened for business at 9:00 a. m. on Monday the 20th. Appellee’s suspicions were soon confirmed in that its employee was advised that there was only $716.65 on deposit in Ms. Garcia’s account. Appellee subsequently tendered its own check payable to Maria Elena Garcia in the amount of $611.55 and sought to cash Ms. Garcia’s check for $1,328.20.

Appellant refused to cash the check, but an officer of appellant advised appellee’s president that appellant would “flag” the account to prevent further withdrawals, and that if Ms. Garcia made sufficient deposits within the next ten days to cover her check given appellee, appellant would give appellee a cashier’s check for $1,328.20. In the meantime, appellant would not deposit appellee’s check in the amount of $611.55. Appellee was assured by appellant’s officer that it would get its money, “just wait ten days.” No additional deposit was made by Ms. Garcia and this suit was filed after appellee’s check and Ms. Garcia’s check were returned to appellee. There was no evidence offered regarding the subsequent disposition of the $716.65 on deposit in Ms. Garcia’s account on Monday, October 20th.

Findings of fact and conclusions of law were filed. The trial court concluded that appellant was obligated to accept the deposit to Ms. Garcia’s account which was tendered by appellee and to pay Ms. Garcia’s check since this would make sufficient funds in said account to cover the check. The court also concluded that appellant was legally required to pay appellee’s check after ten days because of the promise relied on by appellee that appellant would prevent further withdrawals and pay the check at such time. Finally, the trial court concluded that the pleadings and evidence established an equitable assignment of Ms. Garcia’s account.

Appellant urges by three points that there is no basis in law to support the judgment against it, as there can be no liability for its oral representation on Friday that there were sufficient funds in Ms. Garcia’s account to pay said check or to support a recovery by appellee, who was not a customer of appellant. Appellee urges by counter-points that appellant was obligated to accept its tendered deposit to Ms. Garcia’s account which would have made sufficient funds in the account to cover Ms. Garcia’s check to appellee. It also urges that appellant is liable on its promise to accept appellee’s check for deposit at the end of ten days and then pay the Garcia check. Finally, it is asserted that the agreement to “flag” the account and make the payment of the balance to appellee, constituted an equitable assignment of the funds in Ms. Garcia’s account.

It must be recognized at the outset that the drawee of a check is not liable on the instrument until he accepts it and that such acceptance must be in writing on the instrument. Tex.Bus. & Comm.Code Ann., §§ 3.409, 3.410 (1968); Bradley Grain Co. v. Farmers & Merchants Nat. Bank, 274 S.W.2d 178 (Tex.Civ.App.—Eastland 1954, writ ref’d n. r. e.). Accordingly, there can be no liability against appellant because of its oral representation on Friday that there were sufficient funds in Ms. Garcia’s account to pay the check. Nor was there ever a written acceptance of the check by appellant.

The controlling question in the case is whether appellant was legally obligated to accept the deposit tendered by appellee to Ms. Garcia’s account without her acquiesce. In the absence of such deposit, it is undisputed that there were not sufficient funds in Ms. Garcia’s account to pay the check and appellant would not be liable for the return of the check to appellee. It should be noted that appellee’s tendered deposit was in the form of a check payable to Ms. Garcia and appellant had no authority to endorse such check for her. We have not been cited to any authority to support the proposition that appellant was legally obligated to accept such deposit and we have found none. Logic and reason support a contrary conclusion.

It is fundamental that the relationship created by the cheeking account is one creating benefits and obligations only’ between the bank and the depositor (owner of the account). The contract of a bank with a depositor is to pay such deposited money on demand made at its banking house, in such sums, at such times, and to such persons as the depositor may direct. 9 C.J.S. Banks and Banking § 330 at 673 (1938); Frost Nat. Bank v. Nicholas and Barrera, 534 S.W.2d 927 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.). Here the only authorization given appellant by its depositor was to pay the sum of $1,328.20. No authorization was given by her to pay a lesser amount or to accept a gratuitous deposit so as to make her check good. It is apparent that there are situations wherein a depositor would not want to accept a gratuitous deposit to his account. For example, where the third party is of questionable character or where the receipt of funds from such third party would be illegal. We conclude that the trial court erred in holding that appellant was legally obligated to accept the tender by appellee of sufficient funds to make Ms. Garcia’s check good.

Appellee urges that, in any event, appellant’s oral promise to pay it the funds on deposit in Ms. Garcia’s account at the end of ten days amounted to an equitable assignment of such funds to appellee or that appellant is estopped to breach such promise. In First Nat. Bank of Mathis v. Dickson, 59 S.W.2d 179 (Tex.Civ.App.—San Antonio 1933, no writ) it was held that an oral acceptance of a check was invalid. The court stated: “It makes no difference whether the suit is upon the acceptance, the breach, or upon estoppel, the effect is to compel the bank to make good its oral promise to pay the bill, and, under the provisions of Article 5941, § 132, this cannot be done.” See also: Banco Longoria, S. A. v. El Paso National Bank, 415 S.W.2d 1 (Tex.Civ.App.—Eastland 1967, writ ref’d n. r. e.).

Furthermore, there was no pleading of estoppel. Appellee tendered a trial amendment on estoppel at the beginning of the trial, but after appellant objected, the trial judge stated: “Temporarily, I am not allowing it, the trial amendment.” It was never reoffered by appellee and there is no plea of estoppel in the record. The trial court erred in concluding that the pleadings and evidence established an equitable assignment to appellee of Ms. Garcia’s account.

We find no basis in this record for upholding a judgment against appellant in the amount equal to the funds on deposit in Ms. Garcia’s account when appellee presented her check for payment. There were never sufficient funds in her account to cover this check and the appellant cannot be held liable for refusing to pay same. The appellant was not under any obligation to make part payment on the check given appellee by Ms. Garcia to the extent of the funds then on deposit in her account. 10 Am.Jur.2d Banks § 571 (1963).

The judgment of the trial court is reversed and here rendered that appellee take nothing by its suit against appellant.

CADENA, Justice,

concurring.

I concur in the result. In the absence of a pleading of estoppel, I find it unnecessary to hold that a bank cannot be held liable on the basis of an oral representation and I do not join in such holding.

      . Although there was no evidence as to the balance in the account at that time, both parties assumed at the trial that there actually were sufficient funds at that time to cover the check.

      . See Tex.Bus. & Comm.Code Ann. § 3.410 (1968).


author: ROBERTSON, Justice.

text:
    Edward T. DICKER, Appellant, v. Robert R. BINKLEY, Jr., Appellee.
    No. 19250.
    Court of Civil Appeals of Texas, Dallas.
    July 18, 1977.
    Rehearing Denied Aug. 25, 1977.

      Richard H. Elliott, Dallas, for appellant.
    John B. Atwood, III, Creel, Atwood & Spinuzzi, Dallas, for appellee.
   ROBERTSON, Justice.

This is a suit in the nature of an equitable bill of review brought by appellee Robert R. Binkley, Jr., against appellant Edward T. Dicker to set aside a default judgment previously entered against Binkley. Upon trial before the court, the court found that the default judgment was void because of defective service of process and that Binkley had a good and meritorious defense. It set aside its prior judgment and ordered that Dicker take nothing. We reverse.

The primary issue on this appeal is whether Binkley’s proffered defense of the statute of limitations constituted a meritorious defense sufficient to justify vacation of the default judgment. Although Dicker also challenges the invalidation of the judgment because of defective service of process, our examination of the record leads us to conclude that even if the judgment was void, Binkley has failed to show the meritorious defense prerequisite to relief by bill of review. As his meritorious defense, Bink-ley asserted that the suit was barred by the four-year statute of limitations provided in article 5527 of the Texas Revised Civil Statutes Annotated (Vernon 1958). The note was executed in Dallas, Texas, on February 1, 1965, and made payable within one year. Although the note matured on February 1, 1966, suit was not filed until May 14, 1975, over nine years later. Under most circumstances, the suit would now be barred; however, Dicker asserts that the statute of limitations has been tolled under the provisions of article 5537 of the Texas Revised Civil Statutes Annotated (Vernon 1958). We agree. Since the obligation was incurred while Binkley was physically present in the state, the statute of limitations was tolled during his subsequent absence and did not bar the suit on the note.

Article 5537 provides:

If any person against whom there shall be a cause of action shall be without the limits of this State at the time of the accruing of such action, or at any time during which the same might have been maintained, the person entitled to such action shall be at liberty to bring the same against such person after his return to the State and the time of such person’s absence shall not be accounted or taken as a part of the time limited by any provision of this title.

The record reflects that Binkley was an Oklahoma resident who occasionally visited Texas for business purposes. He testified that he was never in Texas more than sixty days in any given year, and even assuming that maximum figure as a calculatory base, the time he was present in Texas does not exceed the four-year limitations period.

In attempting to avoid the tolling effect and justify his defense, Binkley asserts that article 5537 does not halt the running of limitations when service could be achieved under the long-arm statutes. Alternatively, he urges that the tolling statute is inapplicable to nonresidents who are, by definition, absent from the state without expectation of return. We cannot accept these arguments. In Vaughn v. Deitz, 430 S.W.2d 487 (Tex.1968), our supreme court held that the tolling provisions of article 5537 applied notwithstanding the availability of substituted service of process upon the nonresident defendant. Under Vaughn, “presence,” for the purposes of avoiding the tolling of limitations, means actual presence within the territorial limits of the state and not the constructive presence which justifies service under the long-arm statutes. Therefore, under Vaughn we hold that the statute of limitations was tolled during Binkley’s absence from the territorial limits of this state and that the original suit was timely filed.

Secondarily, Binkley urges that the tolling statute only applies to Texas residents and cannot apply to nonresidents who are not expected to return to the state. We disagree. Even assuming Binkley’s nonresident status, we must hold, under the decisions of our supreme court, that his physical presence in the state at the time the debt was incurred subjected him to operation of the tolling provisions. In Stone v. Phillips, 142 Tex. 216, 176 S.W.2d 932, 934 (1944), our supreme court held that while article 5537 is generally inapplicable to nonresidents, it does apply to nonresidents who were domiciled in the state at the time the cause of action accrued. Under Stone, the running of limitations against the claim is suspended after the domiciliary leaves the state, even though he is not actually in the state when the cause of action becomes a present, enforcible demand in the sense that the obligation has matured for suit. Stone v. Phillips, supra, 176 S.W.2d at 934. Although the issue was not actually presented by the case, Chief Justice Alexander further stated that the statute applied not only to former domiciliaries, but also to those nonresidents who were physically present in the state at the time the obligation forming the basis of the suit was incurred. This dictum of Stone was followed in Gibson v. Nadel, 164 F.2d 970, 971 (5th Cir. 1947), and the holding of Gibson was expressly approved by the supreme court in Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876, 879 (1962). In Wise, the ultimate holding was that the statute of limitations was not tolled because the evidence raised a fact issue regarding whether the defendant was absent from the state for a sufficient period and that plaintiff waived that issue by failing to request its submission to the jury. In discussing the application of article 5537, however, the court observed that this statute “does apply to nonresidents who were present in the state at the time the cause of action accrued or had its inception and who later leave the state.” 359 S.W.2d at 879.

Under this holding, the crucial inquiries in the case of a nonresident defendant are whether he was present in the state when the cause of action accrued or when he incurred the obligation and whether his absence from the state thereafter, if excluded from the elapsed time before bringing the suit, would leave less time than the applicable limitations period. In the present case, Binkley testified that he executed the note in Dallas, Texas; since he was thus physically present in Texas at the time the obligation arose, his subsequent absence from the state tolled the running of limitations regardless of his alleged “nonresident” status.

Therefore, under the above authorities, we are constrained to hold that the statute of limitations was tolled in this suit notwithstanding Binkley’s amenability to Texas process during the entire period of his absence. Even if Binkley was a nonresident both before and after the note was executed, the statute of limitations was tolled until he “returned” to the state. We recognize that the practical effect of this holding is to eliminate the defense of limitations in all suits against nonresidents who incur an obligation in Texas and go back to their home state without returning to Texas. In such cases, the statute is tolled indefinitely. Although we do not favor this result, we are bound by the pronouncements of our supreme court in this area.

Since we hold that Binkley has failed to show a meritorious defense to the suit on the note, the default judgment must stand. It is insufficient that the judgment as entered may be invalid; Binkley must also have shown a meritorious defense such that, had the defense been presented, this judgment would not have been rendered. Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 245-46 (Tex.1974); Overton v. Blum, 50 Tex. 417 (1878).

Reversed and rendered.

      . Although no constitutional question has been presented here, the present holding may raise a question of denial of equal protection of the laws as between residents and nonresidents, particularly in view of the 1975 amendment to rule 108 of the Tex.R.Civ.P., which authorizes personal service outside the state if the minimum contacts required by due process are shown. The effect of the amendment was not before the supreme court when the constitutional issue was decided in Vaughn.


author: COULSON, Justice.

text:
    UNITED STATES DEPARTMENT OF the AIR FORCE, Air Force Accounting and Finance Center, Appellant, v. Jeanne L. WILHELM, Appellee.
    No. 1666.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 27, 1977.
    James R. Gough, U. S. Atty., Richard H. Parker, Jr., Asst. U. S. Atty., Houston, Morton Hollander, Chief Appellate Section, William Kanter, Richard A. Olderman, Attys., Appellate Section, Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., for appellant.
    Joe C. Shaffer, Richard A. Powell, Thomas B. Taylor, Briscoe, Shaffer & Powell, Houston, for appellee.
   COULSON, Justice.

This is a suit brought by the former wife of an Air Force officer seeking to garnish one-half of his retirement pay as satisfaction of a community property award made pursuant to a divorce decree rendered in 1969. Jeanne L. Wilhelm filed her application for writ of garnishment in the Court of Domestic Relations No. 3 of Harris County on September 25, 1975. Her suit was brought pursuant to 42 U.S.C. § 659 (Supp. 1977), a federal statute which waives the sovereign immunity of the United States for the narrow purpose of permitting the pay of federal employees to be garnished to meet child support and alimony obligations.

Upon motion by the appellant, the United States Department of the Air Force, Air Force Accounting and Finance Center, this case was transferred to the United States District Court for the Southern District of Texas. That court ruled that federal courts lack subject matter jurisdiction over this controversy, and remanded the case to state court. On February 18, 1977, the Court of Domestic Relations No. 3 rendered its final judgment ordering appellant to pay directly to appellee an amount equal to one-half of her former husband’s military retirement pay. The trial court’s order applies to past, present and future retirement payments.

Appellant filed a notice of appeal and a “Statement of Exemption” from filing an appeal bond under the provisions of 28 U.S.C. § 2408 (1965). The United States has not posted an appeal bond. Appellee has filed a motion to dismiss the appeal for failure to post a bond. We grant that motion.

The Air Force contends that 28 U.S.C. § 2408 exempts the United States from compliance with state bond requirements. That statute provides, in pertinent part:

Security for damages or costs shall not be required of the United States, any department or agency thereof or any party acting under the direction of any such department or agency on the issuance of process or the institution or prosecution of any proceeding.

This statute is based on an earlier exemption statute, 28 U.S.C. § 870 (1940 ed.), which provided, in pertinent part:

Whenever an appeal, or other process in law, admiralty, or equity, issues from or is brought up to the Supreme Court, or a district court, either by the United States or by direction of any department of the Government or any corporation all the stock of which is beneficially owned by the United States, either directly or indirectly, no bond, obligation, or security shall be required from the United States, or from any party acting under the direction aforesaid, either to prosecute said suit, or to answer in damages or costs.

Appellant concedes that no provision of the Texas Rules of Civil Procedure permits the United States to appeal without posting a bond. The government further concedes that our courts have ruled that former section 870 applied only to appeals in federal courts.

It is true that the provisions of 28 U.S. C.A. § 870, as amended June 19, 1934, chap. 653, sec. 7,48 Stat. 1109, specifically exempt the United States from giving a bond or security for costs in an appeal to the Supreme Court or any district court, but this statute applies only to appeals taken in federal courts and does not include state courts within its scope. United States v. Kinney, D.C., 264 F. 542, writ of error dismissed 254 U.S. 663, 41 S.Ct. 64, 65 L.Ed. 464.
* * * * * *
Under our system of practice an appeal bond is a jurisdictional prerequisite to an appeal to this Court, and it may not be dispensed with in the absence of specific statutory authority.
* * * * * *
If there be one power left to the State of Texas in this new era of broadened federal authority, it is the sovereign one to set up and require adherence to her own system of practice in state courts. The Legislature of Texas, alone, has authority to prescribe how an appeal can be taken to this Court, and when the United States, having selected the forum by instituting suit in a Texas court, attempts to appeal, it must abide by and conform to the provisions of the Texas statutes, the same as any other litigant. Since the giving of a bond is a prerequisite to an appeal, the United States must give that bond.

United States v. Branson, 147 S.W.2d 286, 287-88 (Tex.Civ.App.—San Antonio 1941, writ ref’d). Accord, Southland Life Ins. Co. v. Barrett, 172 S.W.2d 997 (Tex.Civ.App.—San Antonio 1943, writ ref’d w. o. m.); Thomas v. Cowan, 153 S.W.2d 509 (Tex.Civ.App.—Fort Worth 1941, no writ).

Appellant relies exclusively upon the reviser’s note to section 2408, which explains that former section 870 “applied only to the Supreme Court and district courts. The revised section applies to all courts.” It is the government’s position that the phrase “all courts” in the reviser’s note encompasses both state and federal courts. We disagree.

We fail to find any language in section 2408 itself or in the reviser’s note that demonstrates an intent by Congress that the United States is to be exempt from state bond requirements. The only substantive difference between former section 870 and the current section 2408 is that the new statute applies to all federal courts. Therefore, based on the decisions cited herein, we hold that 28 U.S.C. § 2408 does not exempt the United States from posting an appeal bond with this court.

Although we do not reach the merits of the case, we note that the El Paso Court of Civil Appeals has recently held that a former wife can garnish the United States under 42 U.S.C. § 659 to secure her community share of her former husband’s military retirement pay. United States v. Stelter, 553 S.W.2d 227 (Tex.Civ.App.—El Paso 1977).

Appellee’s motion to dismiss is granted, and the appeal is dismissed for want of jurisdiction.

Appeal dismissed.