author: STEPHENSON, Justice.

text:
    TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Lisa Ann SARVER et al., Appellees.
    No. 7756.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 11, 1975.
    Rehearing Denied Jan. 8, 1976.
    James L. Weber, Beaumont, for appellant.
    Harold J. Eisenman, Beaumont, for ap-pellees.
   STEPHENSON, Justice.

This is an action brought for death benefits under the Workmen’s Compensation law. Appeal is taken from an order of dismissal by the trial court. The sole question before us is whether an appeal was perfected from the award by the Industrial Accident Board (I.A.B.). Such award was for benefits to Ethelene Sarver, widow of the deceased, and Lisa Ann Sarver, minor child of the deceased. The claim of Ethe-lene Sarver, the widow, was severed and settled.

The calendar of events material to this appeal is as follows:

1. September 12, 1972 — award by I.A.B.
2. September 27, 1972 — T.E.I.A. notice not to abide by award received by I.A.B.
3. October 16, 1972 — T.E.I.A. suit filed.
4. October 25, 1972 — answer and cross-action filed by Lisa Ann Sarver, a minor.

The petition filed by Texas Employers’ Insurance Association (T.E.I.A.) named as defendants “Ethelene Sarver, a widow, and Ethelene Sarver, as natural guardian and next friend of Lisa Ann Sarver, a minor.” The answer and cross-action filed by Lisa Ann Sarver show it to be filed by “Lisa Ann Sarver, a minor, by and through her natural guardian and next-of-friend, Maggie Bloomfield, which natural guardian was incorrectly alleged to be Ethelene Sarver in Plaintiff’s [T.E.I.A.’s] Original Petition.” The admitted facts before us are that Lisa Ann Sarver was bom during the earlier marriage of the deceased to Maggie Bloomfield.

Tex.Rev.Civ.Stat.Ann. art. 8307, § 5 (1967), provides in effect that notice must be given to the I.A.B. within twenty days after the rendition of the award of an intention not to abide by the award, and suit must be filed within twenty days after the giving of such notice. This court, in a writ refused case, Richards v. Consolidated Underwriters, 411 S.W.2d 436 (Tex.Civ.App.—Beaumont 1967, writ ref’d), held that the time of filing a compensation suit under that statute is jurisdictional. The award of the I.A.B. was to both Ethelene Sarver, as widow, and to “the mother, as natural guardian and next friend of Lisa Ann Sar-ver, minor child, or to the person having custody of said minor child, until guardianship is established.” In order to comply with this statute T.E.I.A. had to file suit against Ethelene Sarver to appeal from the award to her, and to file suit against Lisa Ann Sarver, in order to appeal from the award to her. The point before us is: Was Lisa Ann Sarver made a party to this suit when the original petition was filed by the designation — “Ethelene Sarver, as Natural Guardian and Next Friend of Lisa Ann Sarver, A Minor”? As far as we can determine, this precise question is one of first impression.

A somewhat similar situation is found in Texas Employers’ Insurance Ass’n v. Williams, 522 S.W.2d 549 (Tex.Civ.App.—Waco 1975, writ ref’d n. r. e.). In this case T.E. I.A. appealed naming the minor himself as one of the party defendants, and not naming the guardian. The trial court severed the cause of action against the minor and dismissed that portion for lack of jurisdiction. The Court of Civil Appeals reversed and remanded the case with this statement:

“When a minor is made a party defendant in a suit and has no guardian within this State, the court is required to appoint a guardian ad litem to represent and defend the minor in such suit. Rule 173, Texas Rules of Civil Procedure. However, where the minor defendant has a lawful guardian of his estate, it is the duty of the guardian to defend the minor in such suit. Section 230(b), Probate Code of the State of Texas, V.A.T.S.” (522 S.W.2d 551)

We have found little text and case law on the subject. In 30 Tex.Jur.2d Infants § 52 (1962) at 705:

“The disability of infancy does not prevent enforcement of the legal rights of either the infant or of others. On the contrary, infants are permitted to sue and be sued, and are as much bound by judgments as any other litigant, provided they are represented by some qualified adult. Thus, an infant who has no legal guardian may sue by a next friend, and when he is sued he may be represented by a guardian ad litem, appointed by the court. Pursuant to this policy, the courts are authorized to appoint a representative whenever a minor is a party to litigation.”

The form of pleading is apparently not too important. Also, in 30 Tex.Jur.2d Infants § 64 (1962) at 717:

“It is generally considered immaterial whether the suit is in terms brought in the name of the infant by his next friend or by the next friend for the infant’s benefit, nor will the courts insist on any particular phraseology to establish the relationship. Indeed, any petition that discloses facts that would entitle the person claiming to be the infant’s next friend to sue and recover as such in behalf of the minor is sufficient, even though the plaintiff does not formally describe himself as next friend.”

There appears to be some doubt as to whether an infant or the guardian is the proper party to defend a suit. In In Re Dudley’s Estate, 88 S.W.2d 616 (Tex.Civ.App.—San Antonio 1935, writ dism’d), we find this statement:

“We deem it appropriate to go further, and say that, primarily, a guardian is the proper party to defend suits in behalf of his wards, and judgments rendered against the guardians in such suits are binding upon the wards.” (88 S.W.2d 619)

See also, Ruff v. Brown, 446 S.W.2d 103 (Tex.Civ.App.—Texarkana 1969, no writ), in which the guardian of the estates of the minors was made the party defendant, and that practice was approved.

The petition filed in this case makes it crystal clear that it was the intention of T.E.I.A. to appeal from the award of the I.A.B. as to both Ethelene Sarver, the widow, and Lisa Ann Sarver, the minor daughter of the deceased. The allegations show the number of this claim, the name of the employer, the name of the deceased, the date of the award and a copy of the award. It is obvious that the attorney filing such petition suffered under the mistaken belief that the widow was also the mother of the minor child. That mistake was quickly corrected, within nine days from the filing of the petition, by the filing of an answer and cross-action by the minor’s mother, Maggie Bloomfield, as natural guardian and next of friend for such minor. We have come to the conclusion that the petition filed by T.E.I.A. gave the trial court jurisdiction to determine the claim for compensation of both Ethelene Sarver and Lisa Ann Sarver. See Charter Oak Fire Ins. Co. v. Square, 526 S.W.2d 635 (Tex.Civ.App.—Waco 1975, writ ref’d n. r. e).

Reversed and remanded.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Raymond FRANK, Appellant, v. Roy Q. MINTON et al., Appellees.
    No. 5504.
    Court of Civil Appeals of Texas, Waco.
    Dec. 11, 1975.
    Rehearing Denied Jan. 15, 1976.
    Waggoner Carr, Robert L. Crider, Austin, for appellant.
    Clark, Thomas, Winters & Shapiro, John H. Coates, Austin, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by Raymond Frank, Sheriff of Travis County from Summary Judgment granting permanent injunction against appellants enforcement of the provisions of Article 2372p-3 VATS against appellees Roy Q. Minton and Bob Kuhn.

Appellees (plaintiffs) Minton and Kuhn are licensed lawyers practicing law in Travis County. They filed suit for injunction enjoining appellant (defendant) Sheriff Frank from enforcing the bonding regulating provisions of Article 2372p-3 VATS (The Bail Bond Act), against them. They allege they make bonds in criminal cases for clients they represent, and that Section 3(b) of Article 2372p-3 VATS exempts them from the requirements of the Bail Bond Act.

Appellant (defendant) Sheriff answered that appellees (plaintiffs) as practicing attorneys are exempt from the “requirements of licensing” under the act, but that they are not exempt from the regulating provisions of the act.

Appellees (plaintiffs) moved for Summary Judgment. Appellant (defendant) answered that plaintiffs’ petition fails to state a cause of action on which plaintiffs can be granted relief; and further that the approval of bonds involves the exercise of discretion on defendant’s part; both of which preclude summary judgment.

The trial court granted summary judgment permanently enjoining appellant (defendant) from enforcing the provisions of Article 2372p-3 VATS “which concern approval of bonds” against appellees (plaintiffs).

Appellant Sheriff Frank appeals on 4 points contending the trial court erred in enjoining appellant from implementing, administering or enforcing the regulating provisions of Article 2372p-3 VATS as to ap-pellees.

Appellant contends that Article 2372p-3 VATS exempts attorneys from the “licensing” provisions of the act, but does not exempt attorneys from the “regulating” provisions of the act. Appellees contend that the act exempts attorneys from both the “licensing” and “regulating” provisions of the act (and that attorneys who make bail bonds in Travis County are regulated by Article 17.11 of the Code of Criminal Procedure).

Thus the question for determination here is whether the act exempts attorneys from its “licensing” provisions only, or whether it exempts them from both its “licensing” and “regulating” provisions.

Pertinent provisions of Article 2372p-3 VATS are summarized as follows:

Art. 2372p-3. Licensing and regulation of bail bondsmen

Declaration of policy

Section 1. The business of executing bail bonds is declared to be a business affecting the public interest. It is declared to be the policy of this state to provide reasonable regulation to the end that the right of bail be preserved and implemented by just and practical procedures governing the giving or making of bail bond and other security to guarantee appearance of the accused.

Definitions

Sec. 2. In this Act:

(1) “Person” includes colorations, other business entities, and associations of persons.

(2) “Bondsman” means any person who for hire or for any compensation deposits any cash or bonds or other securities, or executes as surety any bond for other persons, as many as five times in any 12-month period.

(3) “Company” includes corporation and other business entities.

(4) “Bond” includes cash deposit or written undertaking to assure appearance.

(5) “Board” means the County Bail Bond Board.

Requirements of license

Sec. 3. (a) No person may act as a bondsman without the license required under the provisions of this Act, except as provided in Subsections (b), (c), and (d) of this section.

(b) Persons who are actually engaged in the practice of law and who are members of the State Bar of Texas who personally execute bail bonds or act as sureties for persons they actually represent in criminal cases may execute bail bonds or sureties without being licensed under this Act, but they are prohibited from engaging in the practices made the basis for revocation of license under this Act and, if found guilty of violating the terms of this Act, may not qualify thereafter under the exception provided in this subsection.

(c) The provisions of this Act do not apply to the execution of bail bonds in counties having a population of less than 150,000 according to the last preceding federal census.

(d) Persons who execute bonds as cosureties with a licensed bondsman.

Examination of Bondsman by Any Sheriff

Sec. 4. A sheriff may examine under oath any proposed bondsman, * * * as to the indemnity * * * provided * * against loss * * * and may refuse to accept the bond if, in the exercise of his discretion, he is satisfied that the security is insufficient, any portion of the security has been feloniously obtained, or the provisions of this Act have been violated.

County Bail Bond Board

Sec. 5. (a) There is hereby created in all counties having a population of 150,000 or more * * * a County Bail Bond Board.

(b)It shall be the duty of the County Bail Bond Board to set rules and regulations relative to the making of bail bonds by bondsmen within the county. No person may act as a bondsman unless he first obtains a license from the board unless exempt under the provisions of Section 3 * * *

(c) The County Bail Bond Board shall be composed of the following persons: (1) The sheriff; (2) a district judge; (3) the county judge; (4) a county court at law judge; (5) the district attorney.

(d) The board shall meet * * *.

(e) Three members of the board shall constitute a quorum ⅝ * *.

(f) * * * all rules and regulations * * * of the board shall be posted * * in the courthouse * * *.

(g) The County Bail Bond Board has the following powers and duties: (1) To establish rules to be followed in the county relating to the setting and taking of bail bonds; (2) to conduct hearings and make determinations respecting the issuance of licenses to bondsmen within the provisions of this Act and to issue licenses to applicants who qualify; (3) to administer oaths and have hearings; (4) to investigate applicants for licenses and determine their qualifications; (5) keep records of all proceedings; and (6) operate its office affairs.

Application and issuance of license

Sec. 6. (provides for applications for license as a bondsman; a fee of $500. for filing of application; and deposit of cash or equivalent with the County Treasurer, upon approval of the licensee, to pay judgments of bail forfeitures resulting from the persons execution of a bail bond.

Refusal and revocation of licenses

Sec. 9. * * *

(b) Any license may be suspended or revoked by the board for:

(1) violation of the provisions of this Act;

(2) fraudulently obtaining a license under the provisions of this Act;

(3) conviction for felony or misdemeanor involving moral turpitude;

(4) being adjudged bankrupt or becoming insolvent;

(5) failing to pay within 30 days any final judgment rendered on any forfeited bond;

(6) failure to pay in addition to amount of a forfeited bond all necessary and reasonable expenses in arresting the principal;

(7) a licensee’s paying commission or dividing fees with any person not permitted to execute bonds or in any manner passing anything of value to any person for referrals of bond business; or

(8) soliciting bail bond business in any building where prisoners are processed or confined.

Procedure for suspension or revocation of license

Sec. 10. (a) The Board may revoke or suspend a license for violation of any provision of this Act; (b) after notice of hearing; (c) specifying the charges of violation (d) and giving licensee opportunity to be heard (e) and a record of the hearing made.

Surrender of principal

Sec. 13. Provides conditions and procedure upon which a bondsman may surrender the principal.

Approval of bond

Sec. 14. The sheriff of any county has the sole responsibility of receiving and approving bail bonds for the purpose of gaining the release of a named principal held in custody by any authority in his county of an offense of which the county or district court has jurisdiction.

We note that Article 2372p-3 VATS was held to be constitutional in Robinson v. Hill, Tex., 507 S.W.2d 521. It is undisputed that Travis County is a County with more than 150,000 population.

The act from its caption and body deals with 2 areas of the bail bond business 1) Licensing, and 2) Regulating. Section 3(a) provides no person can act as a bondsman without a license except (b) lawyers who “execute bail bonds as sureties for persons they actually represent in criminal cases may execute bail bonds or sureties without being licensed under this Act, and they are prohibited from engaging in the practices made the basis for revocation of license under this Act”.

Sec. 9(b) provides “any license may be suspended or revoked by the board for violations of the provisions of this Act”.

And Sec. 3(b) further provides that if an attorney is found guilty of violating the terms of the act, the attorney may not qualify thereafter under the exception provided in this subsection, that is to say he must thereafter be licensed as a non-lawyer bail bondsman, if he is to execute bail bonds.

Further See. 5(b) provides “It shall be the duty of the County Bail Bond Board to set rules and regulations relative to the making of bail bonds by bondsmen within the county.” (It does not say licensed bondsmen) the next sentence reinforces this construction by providing: “No person may act as a bondsman unless he first obtains a license from the board unless exempted under the provisions of Section 3”. We think the foregoing means that attorneys do not have to be licensed to make bail bonds, but that they do have to obey the rules and regulations provided for in the act for bondsmen.

Further Section 4 provides that the sheriff may examine under oath “any bondsman” and “may refuse to accept the bond if, in the exercise of his discretion, he is satisfied that the security is insufficient”.

Section 4 refers to “any bondsman” and does not restrict the sheriff’s authority to “licensed bondsmen”.

And Section 14 reposes in the Sheriff the “sole responsibility of receiving and approving bail bonds”.

We think the intent of the act is to exempt attorneys from its “licensing” provisions, but that attorneys are not exempt from the “regulating” provisions of the act. Additionally appellant could not be enjoined from the exercise of his discretion as provided for in Sections 4 and 14, by summary judgment.

Appellant’s contention is sustained. Summary judgment was improper.

Reversed and remanded.


author: RALEIGH BROWN, Justice.

text:
    DEL ANDERSEN & ASSOCIATES, Appellant, v. Joy JONES et vir., Charles Jones, Appellees.
    No. 4846.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 12, 1975.
    Rehearing Denied Jan. 8, 1976.

      Philip C. McGahey, Bagby, McGahey, Ross & Devore, Arlington, for appellant.
    R. E. Schneider, Jr., Schneider & Schneider, George West, for appellees.
   RALEIGH BROWN, Justice.

This is a summary judgment case. Del Andersen d/b/a Del Andersen & Associates sought a real estate commission for procuring a buyer for property owned by Joy Jones. Each party filed motions for summary judgment. The trial court granted Jones’ motion denying recovery of a commission and denied Andersen’s motion. Andersen appeals both rulings of the court.

Joy Jones, owner of the Deluxe Motel, Comanche, Texas, signed a listing agreement with Andersen which provided in part:

“OWNER agrees to pay DEL ANDERSEN & ASSOCIATES a commission equal to 6% of the selling price in event that within the listing period:
(1) DEL ANDERSEN & ASSOCIATES procures a purchaser for said price; or,
(2) Said property is exchanged or sold by DEL ANDERSEN & ASSOCIATES or any other person excluding OWNER at a price acceptable to OWNER.”

It is established by the summary judgment proof that during the term of the written agreement, Andersen, a duly licensed real estate broker, produced a buyer who executed a real estate purchase contract with Joy Jones for the purchase of the motel according to the terms and conditions provided in the listing agreement. Joy Jones signed the contract without the joining of her husband, Charles, but refused to close the sale and transfer the motel. Andersen contends the buyer is ready, willing and able to consummate the transaction.

Joy Jones argues Andersen was not entitled to a commission because (1) he failed to comply with Section 28 of Article 6573a V.A.C.S., (2) the description in the listing agreement was legally insufficient, and (3) no enforceable contract of sale was procured between the buyer and herself.

It was said in West Realty & Investment Co. v. Hite, 283 S.W. 481, (Tex.Com.App.1926):

. . Generally, it will be conceded that, when a broker employed to sell property has found a purchaser who is ready, able, and willing to buy at the price and upon the terms specified in the broker’s contract of employment, he has earned his commission, even though through some fault or inability of the owner the deal is never actually consummated. The rule extends even to those cases where the commission is to be payable only upon the consummation of the sale, if such consummation is prevented through the fault of the owner. The law will not permit the owner to deny to the broker his right to recover a commission where the broker himself has fully complied as far as possible, and where his only dereliction is produced entirely through the fault of the owner himself.”

See also Kendrick et ux. v. Boon et al., 254 S.W.2d 1016 (Tex.Civ.App.—San Antonio 1953, writ ref. n. r. e.); Henry v. Schweitzer, 435 S.W.2d 941 (Tex.Civ.App.—San Antonio 1969, writ ref. n. r. e.).

The court in Cooper v. Wildman, 528 S.W.2d 80 (Tex.Civ.App.—Corpus Christi 1975, no writ), said:

“A duly licensed real estate broker, who is authorized to sell real property under a valid listing agreement, is entitled to the commission specified in the agreement when he produces a purchaser who is ready, willing and financially able to purchase the property at the cash price that the owner authorized the property to be offered for sale. This is but a rule of fairness and right. The owner cannot defeat the broker’s right to the commission by refusing to consummate the sale. To allow the owner to refuse to complete the sale after a valid listing agreement has been signed by both the owner and the broker and a purchaser has been found by the broker who can and will pay the cash purchase price set out in the listing agreement, and yet deny to the broker the right to the commission specified in the agreement, is ‘a proposition not to be countenanced’. Goodwin v. Gunter, 109 Tex. 56, 185 S.W. 295, 296 [195 S.W. 848] (Tex.Sup.1916); Stolaroff v. Campbell, 18 S.W.2d 838 (Tex.Civ.App.—El Paso 1929, no writ).”

The written listing agreement provided for payment of a commission upon (1) the procurement of a purchaser or (2) exchange or sale of property by Andersen or other persons excluding owner. In the instant case Andersen is entitled to his commission upon the procurement of a ready, willing and able purchaser even though there is no enforceable contract between the purchaser and Joy Jones.

As stated in Schmidt v. Willmann, 235 S.W. 629 (Tex.Civ.App.—San Antonio 1921, no writ):

“. . . The ordinary land agent, seeking a purchaser, does not have the authority to make title to the land, but merely hunts for some one, and takes him to the landowner to buy the land. When he brings a person to the owner who is ready, willing and able to buy, it does not matter whether he got him there through a written or verbal promise; he is entitled to his commission. Obtaining such a purchaser has no connection whatever with the statute of frauds. James v. Fulcord, 5 Tex. 512, 55 Am.Dec. 743; Mead v. Randolph, 8 Tex. 191; Doggett v. Patterson, 18 Tex. 158.”

This court in McNeny v. Radford, 70 S.W.2d 824 (Tex.Civ.App.—Eastland 1934, 129 Tex. 568, 104 S.W.2d 472), at page 828, said:

“The law applicable is stated in 7 Tex. Jur. 450, § 58, as follows: ‘Where the purchaser is shown to have been ready, able and willing to purchase on the owner’s terms, the broker’s right to commission is not defeated by the fact that no contract of sale was ever made, or, if made, was not binding on the parties, provided that it is through the fault of the broker’s principal that the transaction was not consummated.’ Hamburger & Dreyling v. Thomas, 103 Tex. 280, 126 S.W. 561.”

See also: Stolaroff v. Campbell, 18 S.W.2d 838 (Tex.Civ.App.—El Paso 1929, no writ); Sinclair v. Durham, 20 S.W.2d 1084 (Tex. Civ.App.—San Antonio 1929, no writ); 156 A.L.R. 602; Caneer et al. v. Martin, 238 S.W.2d 828 (Tex.Civ.App.—Waco 1951, writ dism.); Kendrick v. Boon, 254 S.W.2d 1016 (Tex.Civ.App.—San Antonio 1953, writ ref. n. r. e.); Henry v. Schweitzer, 435 S.W.2d 941 (Tex.Civ.App.—San Antonio 1968, writ ref. n. r. e.); and Clark v. Ingram, 445 S.W.2d 780 (Tex.Civ.App.—Dallas 1969, writ ref. n. r. e.).

The property was described in the listing agreement as Deluxe Motel, 1302 E. Central, Comanche, Comanche County, Texas. The agreement was signed by Joy Jones, “owner”. In response to written interrogatories Mrs. Jones denied ownership of any other real property in Comanche County other than the Deluxe Motel.

The court in Pickett v. Bishop, 223 S.W.2d 222 (Tex.1949), said:

“The settled rule in this state is that such a description, by reason of the use in the memorandum or contract of such words as ‘my property’, ‘my land’, or ‘owned by me’, is sufficient when it is shown by extrinsic evidence that the party to be charged and who has signed the contract or memorandum owns a tract and only one tract of land answering the description in the memorandum. Ragsdale v. Mays, 65 Tex. 255; Morrison v. Dailey, Tex.Sup., 6 S.W. 426; Hermann v. Likens, 90 Tex. 448, 39 S.W. 282; Vinyard v. O’Connor, 90 Tex. 59, 36 S.W. 424; Taffinder v. Merrell, 95 Tex. 95, 65 S.W. 177, 93 Am.St.Rep. 814; Sanderson v. Sanderson, 130 Tex. 264, 267, 109 S.W.2d 744; Beaton v. Fussell, Tex.Civ.App., 166 S.W. 458; Spaulding v. Smith, Tex.Civ.App., 169 S.W. 627, application for writ of error refused; Ellett v. McMahan, Tex. Civ.App., 187 S.W.2d 253. The stated ownership of the property is in itself a matter of description which leads to the certain identification of the property and brings the description within the terms of the rule that ‘the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty.’ (Emphasis added.) Wilson v. Fisher, 144 Tex. 53, 56-57, 188 S.W.2d 150, 152.”

In considering whether there was sufficient compliance with the statute of frauds where a written listing agreement between a real estate agent and owner of property contained the street address of property, the designation “owner” and a description of the house, the court in Parks v. Underwood, 280 S.W.2d 320 (Tex.Civ.App.—Dallas 1955, writ ref. n. r. e.), said:

“. . . The description must be set out with such definiteness that from the information given in the listing contract the property can be located with certainty.”
“. . . the written memorandum required by the statute as to the description of the property covered by the contract must by its written terms alone furnish definite information which will, by following such information to its source, identify the real estate listed with the agent with such definiteness that it may be distinguished from all other tracts of land, in other words the language used must refer to only one tract of land, clear as to location and boundaries.”

The description in the listing agreement between Andersen and Jones sufficiently complies with the statute of frauds.

The second paragraph of Section 28 of Article 6573a, V.A.C.S., states:

“At the time of the execution of any contract of sale of any real estate in this State, the Real Estate Salesman, Real Estate Broker, Real Estate Agent or Realtor shall advise the purchaser or purchasers, in writing, that such purchaser or purchasers should have the abstract covering the real estate which is the subject of the contract examined by an attorney of the purchaser’s own selection, or that such purchaser or purchasers should be furnished with or obtain a policy of title insurance; and provided further, that failure to so advise as herein-above set out shall preclude the payment of or recovery of any commission agreed to be paid on such sale.”

Jones contends Andersen’s failure to comply with this portion of Section 28 is sufficient to deny recovery of a commission. We disagree.

It is well established in this state that the proper rule of construction of statutes is to ascertain and give effect to the intention of the Legislature. In Southwestern Savings & Loan Association of Houston v. Falkner, 160 Tex. 417, 331 S.W.2d 917 (Tex.1960), the court said:

“A statute should not be shorn of its effectiveness if its purpose can be achieved by a reasonable interpretation. Huntsville Independent School Dist. v. McAdams, 148 Tex. 120, 221 S.W.2d 546; Haverbekken v. Hale, 109 Tex. 106, 204 S.W. 1162.”

Also in Austin v. Collins, 200 S.W.2d 666 (Tex.Civ.App.—Fort Worth 1947, writ ref. n. r. e.), the court said:

“. . .A construction of a legislative act should not be given that would render the act absurd or even meaningless, when a rational, expressive and wholesome meaning may be ascertained from the language used. Texas & Pacific Railway Co. v. Taylor, 54 Tex.Civ.App. 419, 118 S.W. 1097, affirmed by Supreme Court, 108 Tex. 376, 126 S.W. 1117.”

The paragraph begins “at the time of the execution of any contract of sale of any real estate” and concludes “shall preclude the payment of or recovery of any commission agreed to be paid on such sale”. Such language presupposes a contract of sale or a sale of the property.

We hold Andersen’s right of a commission under the listing agreement accrued on the procurement of a purchaser and neither the execution of a sales contract nor a sale of the property was required. Therefore, although the purchasers did have the abstract examined, the second paragraph of Section 28 of Article 6573a, Y.A.C.S. is inapplicable.

Applying appropriate summary judgment rules the granting of a summary judgment as to Charles Jones is correct but as to Joy Jones is incorrect.

Andersen contends in support of his motion for summary judgment that the procurement of a ready, willing and able buyer entitles him to his commission.

As a part of his summary judgment proof Andersen includes the affidavit of the prospective purchaser, Joe Gallant, to the effect that Gallant was and still is willing and able to buy the motel in accordance with the contract with Mrs. Jones.

John E. Gleaton, an attorney employed by Gallant to examine the title to the real property by affidavit, stated in part:

“That after the execution of said Contract, it was discovered that Nelda Joy Jones’ husband, Charles Jones, would refuse to sign any warranty deeds or bills of sale in connection with the above mentioned transaction; therefore, Mr. Del Andersen, the real estate agent involved in this transaction, was notified by me of Mr. Jones’ refusal to execute any documents by letter dated July 19,1974. Subsequent to that date, my investigation of the title to the property revealed that Nelda Joy Jones did not own a certain strip of property along the east side of the motel, approximately forty feet in width. This space is used by truck drivers who might be staying at the motel to park their vehicles. Mr. Gallant was in my office between July 19 and July 31, 1974, to discuss the two matters mentioned above, namely, the refusal of Charles Jones to enter into the agreement to sell the motel and the 40 foot strip of property along the east side of said motel. At that time, Mr. Gallant stated that Mrs. Jones had represented to him that she owned said property and I advised him that Nelda Joy Jones thought she did own the property at the time she executed the Sales Contract on July 8, 1974. That Mr. Joe Gallant discussed this matter of the 40 foot strip of property with this Affiant and left this Affiant with the impression that it was certainly his intention to purchase the forty foot strip of property on the east side of said motel and further made the statement that not owning said strip of land would greatly reduce the value of the motel property. Mr. Gallant further stated to this Affiant that he would not be willing to purchase this property unless it would include the 40 foot strip of land in question.” (Emphasis added)

The affidavit of Gleaton is evidence of a prior inconsistent statement of Gallant as to his readiness, willingness and ability to purchase the property. This is a basic issue in the case. In such circumstances the court in Austin Presbyterian Theological Sem. v. Moorman, 391 S.W.2d 717 (Tex.1965), stated:

“. . . in these circumstances the question of what was said and done between the parties is one of fact. See Keesey v. Old, 82 Tex. 22, 17 S.W. 928; Maddox Motor Co. v. Ford Motor Co., Tex.Com.App., 23 S.W.2d 333.”

Andersen further argues that the execution of the Contract of Sale estops Joy Jones from objecting that purchaser was not ready, willing or able to buy, and cites Wolfman & Katz v. Callahan (Ct.App.1918) 204 S.W. 777; Peters v. Coleman (Ct.App.1954) 263 S.W.2d 639; Roderick v. Elliott (Ct.App.1929) 17 S.W.2d 102, for that proposition. Such argument is correct and is supported by the cited authorities only if there is an enforceable contract. As stated in Peters:

“We think it is settled in this state that when a broker acts in good faith and the seller accepts his customer and enters into an enforceable contract with him, the customer’s readiness, ability and willingness to buy cannot be questioned. Frances v. Foster, 113 Tex. 521, 260 S.W. 1023; Jones v. Parker, Tex.Civ.App., 26 S.W.2d 742; Adams v. Brown, Tex.Civ. App., 25 S.W.2d 879; Wolfman & Katz v. Callahan, Tex.Civ.App., 204 S.W. 777; Seidel v. Walker, Tex.Civ.App., 173 S.W. 1170, writ dismissed, and cases there cited; J. B. Watkins Land-Mortgage Co. v. Thetford, 43 Tex.Civ.App. 536, 96 S.W. 72; 7 Tex.Jur., p. 465, sec. 69.”

The contract of sale executed by Gallant and Jones has a legally insufficient description and thus is unenforceable.

An application of appropriate summary judgment rules would deny a summary judgment for Del Andersen & Associates. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970); Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.1965).

The judgment is affirmed as to Charles Jones and is otherwise reversed and the cause remanded.


author: WALTER, Justice.

text:
    PEARSON-SIBERT OIL COMPANY OF TEXAS et al., Appellants, v. O. L. (Jack) BURNEY, Appellee.
    No. 4838.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 12, 1975.
    Rehearing Denied Jan. 8, 1976.
    D. Bruce Pope, Lynch, Chappell, Allday & Aldridge, Midland, for appellants.

      Dan C. Cotton, Snyder, Forrest Bowers, Bowers & Cotten, Lubbock, for appellee.
   WALTER, Justice.

In a nonjury trial 0. L. Burney recovered a judgment against Pearson-Sibert Oil Company of Texas for $1500 for an alleged breach of a covenant in a deed conveying to Mr. Burney the:

“ . . . Northeast one-fourth (NEVi) and the East Three-fourths (E¾) of the Southeast one-fourth (SEVi) of Section 145, and the East 478.5 acres of Section 162, all in Block 97, H. & T. C. Ry. Company Survey . . .”

Defendant has appealed.

Said Deed also contains the following: “The grantors hereby covenant with the grantee that they, the grantors their heirs and assigns, will make, erect and thereafter maintain, so long as oil or gas is being produced from said property, at their own cost and expense, in a proper and substantial manner, good and sufficient cattle guards at the entrances to said property most commonly used by the lessees, their agents and workmen, in the drilling and operating for oil, gas or other minerals on said property . . .” (Emphasis added)
“FINDINGS OF FACT
1. That Pearson-Sibert Oil Company of Texas were the producers of oil from a mineral interest, the surface of which belonged to the Plaintiff O. L. (Jack) Burney and that this relationship existed for more than four years before Plaintiff filed this suit.
2. That the Northern boundary of this lease was marked and coincided with a fence and in which fence there was a gate during the four years and more before the filing of this lawsuit.
3. That this gate was one of the most commonly used entrances into the land covered in the area of production by Defendant on Plaintiff’s land.
4. That on the occasions this gate was used by employees and assigns of Defendant Pearson-Sibert Oil Company of Texas as well as other oil producing enterprises in connection with this production.
5. That this gate was left open by the people using the same and that such caused Plaintiff to have to perform labor and incur some expenses for the rounding up of any horses and cattle that came through the open gate.
6. That the gate made the subject matter of these findings was one appropriately covered by the agreement between Plaintiff and Defendant Pearson-Sibert Oil Company of Texas and under such agreement the Defendant had the burden of installing an adequate and sufficient cattle guard at this entrance.
7. That as a result of this failure the Defendant breached their contract to this extent and Plaintiff suffered damages on account of extra labor requiring menial type activity which would require the sum of $1,500.00 to adequately compensate him for this extra labor.”

The oil company contends the Court erred in finding it was required to install a cattle guard at a gate on a fence dividing Sections 162 and 145 because this location is on an internal fence and is not at a commonly used entrance to the property. We agree.

Neither Burney nor the oil company contend the provision in the deed concerning the cattle guard is ambiguous. Burney contends the court correctly construed said provision and placed on the oil company the obligation to place a cattle guard at this internal location between Sections 162 and 145 as found by the court in his finding of fact number six (6).

The parties rely on Lewis v. East Texas Finance Co., 136 Tex. 149, 146 S.W.2d 977 (1941), wherein the court said:

“If a written contract is so worded that it can be given a certain or definite legal meaning or interpretation, it is not ambiguous.”

The quoted provision from the deed uses the words “at the entrance to said property most commonly used by the lessees . . The words “said property” refers to the 762.5 acres in the two sections described in the deed. Sections 162 and 145 are adjoining sections and the fence and gate are located on the section line between the two sections. The location in question is not at a commonly used entrance to the property.

The judgment is reversed and judgment is rendered that Burney take nothing from Pearson-Sibert Oil Company of Texas.


author: BREWSTER, Justice.

text:
    Mildred Von Simmons DAVIS, Appellant, v. Jeff HOSKINS, Administrator of Estate of Ida Belle Simmons, Deceased, Appellee.
    No. 17671.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 12, 1975.
    Weinberg, Sandoloski & McManus, and Sandy M. Sandoloski, Dallas, for appellant.
    Kelsey & Wood, and Richard H. Kelsey, Denton, for appellee.
   OPINION

BREWSTER, Justice.

This is an appeal by Mildred Von Simmons Davis from an order entered in a probate proceeding by the County Court of Denton County which order denied her application to probate an instrument that she contended was the last will of Ida Belle Simmons, deceased, and granted letters of administration on that estate to Jeff Hos-kins, a brother of the deceased. The original of the instrument that was claimed to be the will of Ida Belle Simmons was not produced in court. A carbon copy of the claimed will was produced. The trial was non-jury and the trial court found that the proponent of the instrument sought to be probated as the last will of Ida Belle Simmons, deceased, failed to prove that the instrument was a valid will in that she failed to prove that it had been properly executed and witnessed in the manner required by law. The trial court further found that such instrument had been revoked by the deceased during her lifetime by an act of physical destruction (tearing) and that the deceased died intestate.

We affirm.

Appellant’s second point of error is that the trial court erred in finding that the deceased, Ida Belle Simmons, physically destroyed her last will and testament on October 10, 1974, because the finding is against the overwhelming weight of the evidence.

We overrule the point.

On this issue the witness, Myrtle Hoskins, testified that at the request of Ida Belle Simmons she went with Jeff Hoskins, the witness’ husband, to the bank and removed Ida Belle Simmons’ will from her lock box at the bank and took it to the deceased who was then a resident in a nursing home. Mrs. Hoskins testified that in the presence of Myrtle and Jeff Hoskins and Shirley Yielding and a Mrs. Bassinger, who is now senile, Ida Belle Simmons tore the will up and threw the pieces of it in the wastebasket. She testified that this occurred on October 10, 1974. She first thought this occurred on another date but later produced a diary she kept and said it occurred October 10, 1974. The maid that cleans up the rooms threw the contents of the wastebasket containing the pieces of the will into the garbage.

The witness, Shirley Yielding, testified that she worked at the nursing home; that she was in the presence of the deceased, Ida Belle Simmons, on one occasion when she saw Mrs. Simmons tear up an instrument that the others present told this witness was Mrs. Simmons’ will. The said Myrtle and Jeff Hoskins were also present and saw Mrs. Simmons tear the will up. The witness said she did not read the instrument to see if it was a will, as the others said it was. She thought this occurred in December, 1974.

The witness, A. D. Petty, testified that he was a good friend to Ida Belle Simmons and he visited her each week in the nursing home. On one visit, on about December 1, 1974, while he was sitting on her bed talking to her, the deceased told him that she had previously made a will but that she had thereafter tom it up. She told this witness that in the presence of Jeff and Myrtle Hoskins.

There is no evidence that tends to indicate that the instrument the deceased tore up on the occasion in question was not the will that is sought to be probated.

The original of the will sought to be probated was not produced in court.

The evidence referred to is certainly sufficient to support the court’s finding to the effect that Ida Belle Simmons revoked the will by tearing it up and that this occurred on October 10, 1974. The finding is not against the overwhelming weight of the evidence.

The fact that there was conflicting evidence as to the date the will was torn up does not change the situation. It was the trial judge’s function to determine the facts and there was sufficient evidence to support his finding that it was torn up and revoked on October 10, 1974.

Appellant’s first point of error is that the trial court erred in finding that the proponent of the will had failed to prove that the will offered for probate had been properly executed and witnessed.

We overrule that point.

The outcome of the appeal is determined and controlled by the ruling that we have hereinabove made on appellant’s point of error No. 2. Because of that ruling appellant’s first point of error has become immaterial.

Even if we sustained the appellant’s first point of error and held that the trial court erred in finding that the appellant had failed to prove that the will offered for probate had been properly executed and witnessed in the manner provided by law, this would not entitle the appellant to have a reversal of the trial court’s decision. This is so because even if the will sought to be probated was a valid will, the trial court decided on sufficient evidence that prior to her death the testatrix had revoked it. Under those circumstances the trial court’s decision denying the application to probate the will and granting letters of administration to Jeff Hoskins was proper. See on this Palmer v. Logan, 189 S.W. 761 (Austin, Tex.Civ.App., 1916, no writ hist.), wherein the court held that no matter how well the execution and witnessing of a will by the testator may have been established by the evidence it is the duty of the court to not admit such will to probate if it is also established that such will had been revoked by the testator prior to his death.

The testatrix could revoke a valid will that she had theretofore executed and which had been witnessed in the manner required by law by destroying said will. Sec. 63, Probate Code, V.A.C.S. It is settled that a will that has been revoked cannot be admitted to probate. Shawver v. Parks, 239 S.W.2d 188 (Eastland, Tex.Civ. App., 1951, writ ref.).

In appellant’s third point of error she contends that the trial court erred in appointing an administrator for the Estate of Ida Belle Simmons for the reason that she had previously executed a valid will. She contends that under those circumstances the court lacked jurisdiction to appoint an administrator.

We overrule that point.

A will that has been revoked by the testatrix is not her last will and for that reason cannot be admitted to probate. Even if the will had been executed by the testatrix and witnessed in the manner required by law, it ceased to be her last will when she thereafter revoked it. When the testatrix died after revoking such will, without after such revocation having made another will, she died intestate. Ellsworth v. Aldrich, 295 S.W. 206 (Texarkana, Tex. Civ.App., 1927, writ ref.).

In this case, since the trial court found on sufficient evidence that the will sought to be probated by appellant had been revoked by the testatrix prior to her death, she died intestate. The appointment of the administrator was therefore proper.

Affirmed.


author: CORNELIUS, Justice.

text:
    Mary Glover DAVIS, Appellant, v. Earnest 0. DAVIS, Appellee.
    No. 8356.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 16, 1975.

      Herbert Green, Jr., Dallas, for appellant.
    Truett E. Bean, Lancaster, for appellee.
   CORNELIUS, Justice.

This is a divorce action. In response to jury findings, a divorce was granted and appellant was appointed managing conservator of the parties’ minor child. No jury issue was submitted on visitation rights, but the judgment awarded appellee such rights -under specified conditions.

Appellant contends that, since the jury did not pass upon visitation rights it was error for the court to do so. This contention is overruled. The effect of the court’s award of visitation rights to appellee was to appoint him possessory conservator. Section 14.03, Tex.Family Code Ann. provides that the court may appoint a possessory conservator and set the time and conditions for possession of or access to the child, and further that the court shall prescribe the rights, duties and privileges of the possesso-ry conservator. Subsection (c) of that section provides that the court may not deny either party access to a child unless it finds that parental possession or access is not in the best interest of the child and would endanger the physical or emotional welfare of the child.

Article 4639a, Tex.Rev.Civ.Stat.Ann. governed jury trials in custody matters pri- or to the adoption of the Family Code. That statute was construed as not allowing, as a matter of right, a jury determination of visitation privileges. See Henderson v. Youngblood, 512 S.W.2d 35 (Tex.Civ.App. El Paso 1974, no writ); Walker v. Showalter, 503 S.W.2d 624 (Tex.Civ.App. Houston (1st Dist.) 1973, no writ). Section 11.13 of the Family Code now provides as follows:

“(a) In a suit affecting the parent-child relationship, except a suit in which adoption is sought, any party may demand a jury trial.
“(b) The verdict of the jury is binding on the court except with respect to the issues of managing conservatorship, possession, and support of and access to a child, on which the verdict is advisory only, provided, however, the court may not enter a decree that contravenes the verdict of the jury on the issues of managing conservatorship, possession of, or access to a child.” (Emphasis supplied)

That section appears to give either party the right to a jury finding on the issue of “access.” However, neither appellant nor appellee requested a jury issue on visitation rights or objected to the lack of one. Un-. less an omitted issue represents an independent ground of recovery, the failure of either party to request an issue or object to the failure to submit an issue constitutes a waiver of a jury determination and an agreement for the court to find that issue in accordance with the evidence. Rule 279, Tex.R.Civ.P. In view of the wording of Section 14.03 of the Family Code, it does not appear that a determination of visitation or access rights can be said to be an “independent ground of recovery.” It is rather a duty of the court which is necessarily incidental to the award of custody. That being true, the failure of either party to request an issue or object to the failure to submit an issue on visitation or the denial of access constituted an election for the court to determine the question.

Appellant next complains of a judgment of contempt entered against her in connection with the court’s order prescribing visitation rights. This court has no jurisdiction to review a contempt order by way of appeal. Such a review can only be effected by an original application for writ of habeas corpus. Wagner v. Warnasch, 156 Tex. 335, 295 S.W.2d 890 (1956); Holder v. Holder, 528 S.W.2d 113 (Tex.Civ.App. Tyler 1975, no writ).

Appellant also asserts that as there was no jury determination of visitation rights, Section 14.08(d), Tex.Family Code Ann. prevents the court from making such determination until after the expiration of one year from the date of the divorce. Our holding with reference to the first point of error effectively disposes of this point and it is respectfully overruled.

The judgment of the trial court is affirmed.


author: O’QUINN, Justice. PHILLIPS, Chief Justice

text:
    NACOGDOCHES SAVINGS AND LOAN ASSOCIATION et al., Appellants, v. W. Sale LEWIS, Savings and Loan Commissioner of Texas, et al., Appellees.
    No. 12327.
    Court of Civil Appeals of Texas, Austin.
    Dec. 17, 1975.
    Rehearing Denied Jan. 14, 1976.

      Dudley D. McCalla, Heath, Davis & McCalla, Austin, for appellants.
    John L. Hill, Atty. Gen., John W. Odam, Executive Asst., Austin, for W. Sale Lewis.
    George E. Ramsey, III, Watkins, Ledbet-ter, Hayden & Ramsey and Larry E. Temple, Austin, for Timberland Savings Assn.
   O’QUINN, Justice.

The Savings and Loan Commissioner entered an order on October 3, 1974, approving the application of incorporators seeking a charter for a third savings and loan association to be operated in Nacogdoches under the name of Timberline Savings and Loan Association. Two existing associations opposing the application before the Commissioner sought judicial review of the order in district court of Travis County. The trial court entered judgment in March of 1975 affirming the action and order of the Commissioner.

The two existing associations, Nacogdo-ches Savings and Loan Association and First Federal Savings and Loan Association of Nacogdoches, have appealed and bring four points of error under which they seek reversal of the trial court’s judgment and remand of the proceeding to the Commissioner.

Under the first two points appellants urge that the order is not reasonably supported by substantial evidence and that the trial court erred in failing to hold that it was error for the Commissioner to admit and consider hearsay and other incompetent evidence offered by applicants for the charter. Appellants contend- under their third point that the order of the Commissioner violates Section 11.11(4) of the Savings and Loan Act requiring that findings of fact be accompanied by concise and explicit statements of underlying facts in support of the findings.

Appellants’ fourth and final point of error is that the trial court erred in failing to hold that it was error for the Commissioner to fail to render a decision within forty-five days following close of the hearing, as required by section 1.9 of Rules and Regulations promulgated by the Savings and Loan Section of the Finance Commission.

We find merit in the fourth point of error and will reverse the judgment of the trial court and remand the proceeding to the Commissioner. In view of this conclusion, we will not reach the first three points of error.

The hearing record on the charter application was completed and closed on June 11, 1974. The order reflecting the Commissioner’s decision on the application was entered on October 3, 1974, or one hundred and fourteen (114) days after the hearing was finally closed.

Rule 1.9 of the Rules and Regulations for Savings and Loan Associations requires that: “The Commissioner shall render his decision within forty-five (45) calendar days after the date the hearing is finally closed.”

Rules for the savings and loan associations are promulgated by the Savings and Loan Section of the Finance Commission of Texas under authority delegated by the Legislature. Art. 342-205(d), (e), (g), (i), Vernon’s Ann.Civ.St. The rule making power “shall not be exercised unless notice of the terms or substance of the proposed rule or regulation or amendment to existing rules or regulations has been given to all associations subject to regulation . . . ” Five associations, within twenty days after notices are served by certified mail, may require that a public hearing be held. Thereafter, “any rule, regulation or amendment approved and adopted pursuant to such hearing shall be promulgated in written form and the effective date thereof fixed by the order of adoption and promulgation.” Art. 342-205(e). The statute requires that the Commissioner “shall attend each meeting of the Savings and Loan Section of the Finance Commission, but he shall not vote.” Art. 342-205(g).

The rule is firmly established that rules and regulations promulgated by an administrative agency, acting within authority delegated to it by the Legislature, are to be construed as statutes. Texarkana & Ft. S. Ry. Co. v. Houston Gas & Fuel Co., 121 Tex. 594, 51 S.W.2d 284, 287 (1932, opinion adopted); Texas & N.O.R. Co. v. W. A. Kelso Building Material Co., 250 S.W.2d 426, 428 (Tex.Civ.App. Galveston 1952, writ ref. n.r.e.); F. A. Gillespie & Sons Co. v. Railroad Comm’n, 161 S.W.2d 159, 162 (Tex.Civ.App. Austin 1942, writ ref. w.o.m.). The rules of the administrative body have the same force as would a like enactment by the Legislature, and the agency is bound by its own valid and subsisting rules. Foley v. Benedict, 122 Tex. 193, 55 S.W.2d 805, 808 (1932, opinion adopted); State v. Martin, 347 S.W.2d 809, 813 (Tex.Civ.App. Austin 1961, writ ref. n.r.e.).

The general rule regarding procedural regulations is stated in American Jurisprudence: “Procedural rules are binding upon the agency which enacts them as well as upon the public of the agency, and the agency does not, as a general rule, have the discretion to waive, suspend, or disregard in a particular case a validly adopted rule so long as such rule remains in force.” 2 Amer.Jur.2d, sec. 350, p. 162 (1962).

The rules and regulations adopted by the Savings and Loan Section of the Finance Commission are intended for the guidance of the Commissioner as well as the public. By legislative prohibition the Commissioner is denied a voice in enactment of the rules, and the Commissioner is granted no authority by regulation or statute to waive, suspend, or disregard a rule in a particular case.

The majority of this Court reached the decision in Lewis v. Heritage Savings Association, 502 S.W.2d 943, 947 (Tex.Civ.App. Austin 1973, no writ) that failure of the Commissioner to act within the period prescribed by the rule did not invalidate the order under the facts of that case. At this time the majority are of the view that by delaying his decision and order in this case more than two months beyond the limit of 45 calendar days set by Rule 1.9, the Commissioner committed error requiring that the order be set aside and the proceeding remanded to the Commissioner.

Although in some jurisdictions the courts have held that failure to follow an administrative rule requiring decision within a stated period of time will not be grounds for setting aside the order, we conclude that the holding of the Supreme Court in Bay City Federal Savings and Loan Ass’n v. Lewis, 474 S.W.2d 459, 462 (Tex.1971) requires a different result. In Bay City the Supreme Court pointed out that “. appellants and the court are not the only ones concerned with the Commissioner’s order and his failure to follow the procedure required by law,” but that in addition to the parties and the court, “The public has an interest in the administrative decisions of State agencies . [and] that the public also has a general interest in the laws of the State being followed as they are written.” (474 S.W.2d 462, col. 1)

In Wisconsin the supreme court held a statute requiring that the state employment relation board file its findings and decision within sixty days after close of a hearing was directory and not mandatory. Muskego-Norway Consolidated Schools Joint School District v. Wisconsin Employment Relations Board, 32 Wis.2d 478, 151 N.W.2d 84 (1967). The court declared that the overall policy of the act was not served by an interpretation making the sixty-day requirement mandatory, and pointed out that another section of the statute provided that substantial compliance with procedure would be sufficient to give effect to the orders of the board.

In California a court reached a similar result and held that by waiting beyond the sixty-day period to make its decision an administrative board did not lose jurisdiction to act at the expiration of the prescribed time. Koehn v. State Board of Equalization, Department of Alcoholic Beverage Control, (First District), 166 Cal.App.2d 109, 333 P.2d 125 (1958). A New York court held that a requirement that an administrative order be made not later than six months after the filing of a complaint in a labor matter was directory and not mandatory. Village of Port Chester v. Industrial Commissioner, 32 Misc.2d 64, 222 N.Y. S.2d 779 (1961).

In considering whether an agency may disregard its own rules, Cooper observed: “Some courts indicate a readiness to set aside agency action upon complaint that the agency disregarded its procedural rules, even though the possibility of prejudice having been suffered as a result thereof appears at best remote.” Cooper: State Administrative Law, vol. 1, p. 270 (1965).

In accord with the doctrine observed by Cooper is Pacific Molasses Co. v. Federal Trade Comm., 356 F.2d 386, 389-90 (5th Cir.1966), in which the court stated: “When an administrative agency promulgates rules to govern its proceedings, these rules must be scrupulously observed . . . once an agency exercises its discretion and creates procedural rules under which it desires to have its actions judged, it denies itself the right to violate these rules.”

The court in Pacific Molasses qualified its application of the doctrine with the statement that, “If an agency in its proceedings violates its rules and prejudice results, any action taken as a result of the proceedings cannot stand.” The Supreme Court, however, in Bay City did not allow for a showing of prejudice or harm to justify striking down the order. The Court of Civil Appeals had said, “We feel that neither appellants nor this Court would benefit by remanding this case to the Commissioner with instructions to set out the underlying facts supporting a finding which in fact is not contested.” (463 S.W.2d 268, 270, col. 1) In response to this reasoning the Supreme Court stated that the public has an interest in administrative decisions of state agencies and has an interest “in the laws of the State being followed as they are written.” (474 S.W.2d 462)

An obvious warrant for the rule in Section 1.9, requiring the Commissioner to issue an order within 45 days after the hearing is closed, is to bring the final decision reasonably close to the time at which the existing facts were considered upon which the ultimate judgment would be made, and to avoid an unreasonable removal of the order, on the basis of time, from the very economic conditions and other factors tending to show a need, or no need, for additional savings and loan services available to the public. We find no requirement under the doctrine of Bay City that harm or prejudice be shown, or found, before the order will be set aside because not entered within the period allowed by the rule for making an order.

The Texas Administrative Procedure and Register Act, enacted this year by the Legislature and approved by the Governor on April 24, 1975, to become effective January 1,1976, provides that, “The final decision or order must be rendered within 60 days after the date the hearing is finally closed,” but permits modification of this and other times provided in that section by agreement of the parties “with the approval of the agency.” (Acts 1975, 64th Leg., ch. 61, sec. 16(d), (f), S.B. 41, p. 136, 145, effective January 1, 1976).

No provision is in effect now, in statutes or regulations, by which modification of current rules of the Savings and Loan Section of the Finance Commission may be achieved in a particular proceeding. The rules may be modified only through the procedures for general amendment as prescribed in Art. 342-205(e). Under the present law, neither the Commissioner nor the parties have an option. The rule plainly requires that the Commissioner shall render his decision before the expiration of 45 days after the hearing is closed.

For the reasons stated, the judgment of the trial court affirming the order of the Savings and Loan Commissioner is reversed, and judgment is rendered setting aside the order. The proceeding is remanded to the Commissioner.

Reversed and rendered and proceeding remanded.

PHILLIPS, Chief Justice

(dissenting).

I respectfully dissent.

In Lewis v. Heritage Savings Association, 502 S.W.2d 943 (Tex.Civ.App.1973, no writ), this Court held that the failure of the Commissioner to follow Section 1.9 of the Rules and Regulations was not reversible error where no prejudice could be shown. I would follow the reasoning of that decision.

A reversal of the Heritage holding is not compelled by the holding of the Supreme Court in Bay City Federal Savings and Loan Association v. Lewis, 474 S.W.2d 459 (Tex.1971). A majority of this Court did not believe Bay City was controlling when Heritage was decided, and I do not believe so today. The most obvious distinction is that Bay City involved the failure to follow a statute, while today we are concerned with a Commission-created rule.

Additionally, in Bay City the Supreme Court pointed out the several vital purposes served by strict enforcement of the statute requiring incorporation of Commission fact finding within its order. Such a recital prevents the Commission from granting a certificate without a full consideration of the evidence and a serious appraisal of the facts. It informs the parties of the facts found so that they may intelligently prepare and present an appeal to the courts. A third purpose is to assist the courts in exercising their function of reviewing the order. Miller v. Railroad Commission, 363 S.W.2d 244 (Tex.1962).

It is difficult for me to perceive how the reasoning of Bay City and Miller is applicable here.

The weight of authority in this country is in accord with our decision in Heritage. Village of Port Chester v. Industrial Commissioner, 32 Misc.2d 64, 222 N.Y.S.2d 779 (1961); Muskego-Norway Consolidated Schools Joint School District v. Wisconsin Employment Relations Board, 32 Wis.2d 478, 151 N.W.2d 84 (1967); Koehn v. State Board of Equalization, 166 Cal.App.2d 109, 333 P.2d 125 (1958). These cases hold that statutes requiring issuance of an order within a certain period of time are directory and not mandatory, and that the expiration of the time within which an agency is to issue an order does not oust the agency of jurisdiction. In order to raise the question of jurisdiction, the nature of the act to be performed or the language used by the Legislature must show that the time designation was intended as a limitation of the power of the administrative agency. To allow an administrative body to oust itself of jurisdiction of subject matter lawfully delegated to it by a failure to follow its own procedural rule would be most unusual.

In the case at hand, did the Commissioner lose jurisdiction on the forty-sixth day following the conclusion of the hearing by failure to comply with his own rule? If not, why should his order be reversed where no harm to the complaining party has been claimed or shown? Must we send these weary litigants back to the Commission to begin another exhausting and expensive series of hearings and appeals solely because of a harmless, procedural error of the Commissioner? I think not.

I think the Legislature addressed itself to the question before us when it promulgated the new Administrative Procedure Act. This Act, to take effect January 1, 1976, provides in Section 19(e), Judicial Review of Contested Cases: “ . . . the court . shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . (3) made upon unlawful procedure . .” (Emphasis added) It seems clear to me that under the new Act, a party appealing an administrative decision on the basis that the decision was rendered late will bear the burden of showing “substantial rights have been prejudiced . . .”

Because the majority has not passed on the three remaining points of error, it would serve no useful purpose for me to comment on those points at this time.

I would follow the rule of this Court in Heritage on the point in question.


text:
    JACKSONVILLE BUILDING AND LOAN ASSOCIATION et al., Appellants, v. W. Sale LEWIS, Savings and Loan Commissioner of Texas, et al., Appellees.
    No. 12348.
    Court of Civil Appeals of Texas, Austin.
    Dec. 17, 1975.
    Rehearing Denied Jan. 14, 1976.
    Dudley D. MeCalla, Heath, Davis & McCalla, Austin, for appellants.
    John L. Hill, Atty. Gen. of Tex., John H. Banks, Asst. Atty. Gen., Austin, for W. Sale Lewis.
    Larry E. Temple, Austin, for Cherokee Savings and Loan Assn.
   O’QUINN, Justice.

The administrative proceeding before the Savings and Loan Commissioner, from which this appeal emanates, originated as a consolidated hearing involving application of Tyler Savings and Loan Association for a branch office in Jacksonville and the application of incorporators seeking a charter for an association to be operated in Jacksonville under the name of Cherokee Savings and Loan Association. The Commissioner entered an order on November 18, 1974, approving the charter application and denying the application by Tyler Savings and Loan for a branch office.

Two existing associations opposed the applications before the Commissioner and thereafter sought judicial review in district court of Travis County. The trial court entered judgment affirming the action and order of the Commissioner, and the existing associations, Jacksonville Building and Loan Association and Rusk Federal Savings and Loan Association, have appealed, bringing four points of error.

Under their fourth and final point appellants complain that the trial court erred in failing to hold that it was error for the Commissioner to fail to render his decision within forty-five calendar days after close of the hearing, as required by Rules and Regulations promulgated by the Savings and Loan Section of the Finance Commission.

Hearing on the charter application was finally closed on August 7,1974. The Commissioner’s letter to the parties announcing approval of the application was issued October 10, 1974, and the order approving the application was issued November 18, 1974.

Neither action of the Commissioner complied with Rule 1.9 of the Rules and Regulations, which requires that the Commissioner “shall render his decision within forty-five (45) calendar days after the date the hearing is finally closed.”

The informal announcement by the Commissioner of his decision was made known eighty-four days after close of the hearing, and the formal order was entered one hundred and twenty-three days after the hearing ended.

In Nacogdoches Savings and Loan Association, et al. v. W. Sale Lewis, Savings and Loan Commissioner of Texas, et al., Tex. Civ.App., 531 S.W.2d 428, this Court today held that failure of the Commissioner to comply with the rule was error requiring that the order be set aside.

For the reasons stated in that opinion, we reverse the judgment of the trial court approving the order of the Commissioner granting the charter application for Cherokee Savings and Loan Association, and render judgment setting aside the order. The proceeding is remanded to the Commissioner.

Reversed and rendered and proceeding remanded.

PHILLIPS, Chief Justice

(dissenting).

For the reasons stated in my dissent filed this day in Nacogdoches Savings and Loan Association, et al. v. W. Sale Lewis, Savings and Loan Commissioner of Texas, et al., Tex.Civ.App., 531 S.W.2d 428, I respectfully dissent in this cause. I would follow our reasoning in Lewis v. Heritage Savings and Loan Association, 502 S.W.2d 943 (Tex.Civ.App.1973, no writ) on the point in question.


author: TUNKS, Chief Justice.

text:
    Carl E. WILLIAMS, Appellant, v. HOUSTON-CITIZENS BANK AND TRUST COMPANY, Appellee.
    No. 1277.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Dec. 17, 1975.
    Rehearing Denied Jan. 7, 1976.

      Thomas G. Bousquet, Mark A. Salvato, Bousquet & McPherson, Houston, for appellant.
    Jack E. Urquhart, Fulbright & Jaworski, Houston, for appellee.
   TUNKS, Chief Justice.

This is a suit on a promissory note. Appellant Carl E. Williams pleaded the four-year statute of limitations. The only issue presented to the jury was whether appellee Houston-Citizens Bank had exercised due diligence to procure issuance and service of citation on appellant. The jury found due diligence had been exercised, and judgment was rendered for appellee.

The note was executed by appellant on August 29, 1967, with the maturity date of August 12, 1969. Appellant defaulted, and appellee accelerated the maturity date and demanded full payment on August 12,1968. Appellee filed suit on July 20,1972 to recover the remaining indebtedness, and citation was issued on August 4, 1972, eight days before expiration of the statute of limitations. The deputy sheriff testified that he was unable to serve the defendant. The citation expired unserved on November 2, 1972. On June 22,1973, over seven months after the expiration of the first citation, citation was again issued and returned unexecuted on September 26, 1973. The deputy testified that when he attempted to serve the second citation, he learned from a neighbor that appellant had moved. His notation “moved” appears on the sheriff’s return of this second citation.

On September 25, 1973, a third citation was issued. With the permission of the court, this citation was served under Tex.R. Civ.P. 106 by attaching it to the door of appellant’s former residence. This occurred on September 28, 1973, thirteen and one-half months after the expiration of the statute of limitations. The defendant timely answered pursuant to that service.

The established rule is that to effectively interrupt the statute of limitations a plaintiff must continuously exercise due diligence in procuring the issuance and service of citation. Rigo Manufacturing Company v. Thomas, 458 S.W.2d 180, 182 (Tex.Sup.1970); Buie v. Couch, 126 S.W.2d 565 (Tex.Civ.App.—Waco 1939, writ ref’d). When a defendant affirmatively pleads the defense of limitations, and when failure to timely serve the defendant is shown, the burden is on the plaintiff to explain the delay. Wilcox v. St. Mary’s University, 497 S.W.2d 782, 788 (Tex.Civ.App.—San Antonio), appeal dismissed, 501 S.W.2d 875 (Tex.Sup.1973); Selman v. Lynch, 461 S.W.2d 452, 455 (Tex.Civ.App.—Tyler 1970, writ ref’d n. r. e.).

The record in this case shows that the statute of limitations expired ten months before the second citation was issued. The record also shows a delay of seven months and twenty days between the date the first citation was returned un-served and the date the second citation was issued. Such a delay in procuring service has been held to be negligence as a matter of law and inconsistent with due diligence. Rigo Manufacturing Company v. Thomas, 458 S.W.2d 180, 182 (Tex.Sup.1970), citing Buie v. Couch, 126 S.W.2d 565 (Tex.Civ. App.—Waco 1939, writ ref’d).

Appellee offered no explanation of the delay between issuance of the first and second citations. Appellant’s uncontrovert-ed testimony was that during that entire eight month period he resided at 1535 Potomac, which was the address listed on all three citations; that he both lived and worked at that address; and that he had not left Harris County during the time in question. The reasonableness of the plaintiff’s delay in procuring issuance and service of citation is usually a question of fact, but if no explanation is offered, its reasonableness can not be factually determined. Hutchings v. Republic Supply Company, 295 S.W.2d 449, 455 (Tex.Civ.App.—Galveston 1956, writ ref’d n. r. e.).

Appellee relies on the case of Beavers v. Darling, 491 S.W.2d 711 (Tex.Civ.App.—Waco 1973, no writ). That was a summary judgment case in which the court of civil appeals refused to find that as a matter of law the plaintiff had failed to exercise due diligence because the record showed some evidence of an explanation for the delay in service of citation. The appellee here has offered ho such explanation.

We hold that an unexplained delay of seven months and twenty days after the expiration of the statute of limitations is, as a matter of law, not due diligence in procuring issuance and service of citation. Ap-pellee’s suit was barred by the statute of limitations; therefore, the judgment of the trial court is reversed, and judgment is rendered that appellee take nothing.

Reversed and rendered.


author: NYE, Chief Justice.

text:
    MOBILE COUNTY MUTUAL INSURANCE COMPANY, Appellant, v. Charlsie Warren JACOBS, Appellee.
    No. 1060.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 17, 1975.

      James R. Roos, Painter & Painter, Houston, for appellant.
    Samuel J. Lee, Angleton, Dale Harvill, Houston, for appellee.
   OPINION

NYE, Chief Justice.

This is a venue case. Plaintiff Charlsie Warren Jacobs brought suit against defendant Mobile County Mutual Insurance Company (plaintiff’s liability insurance carrier) to recover damages sustained as a result of an automobile collision with an uninsured motorist. The suit was filed in the District Court of Brazoria County, Texas. Defendant insurance company filed a plea of privilege to be sued in Dallas County, the county of its alleged residence. The trial court, after hearing evidence, overruled the defendant insurance company’s plea of privilege and this appeal resulted.

Plaintiff was a resident of Brazoria County, Texas. The plaintiff alleged that the defendant insurance company was a corporation doing business in Texas with residence in Dallas, Texas. Plaintiff alleged that the defendant insurance company issued a policy of insurance whereby defendant contracted to provide coverage for injuries and damages sustained by the insured which were caused by acts of negligence of an uninsured motorist. Plaintiff further alleged that while this policy was in full force and effect, he was involved in a collision with an uninsured motorist, namely Carl Michael Rowlett; that the collision occurred in Brazoria County on or about October 27, 1973, and was proximately caused by specific acts of negligence of Rowlett which in effect amounted to his failure to operate his vehicle as a person exercising ordinary care would have under the same or similar circumstances.

The proof and evidence showed that the uninsured motorist was negligent and that such negligence was a proximate cause of the collision in question. Plaintiff, on or about October 27,1973, was traveling north in the right hand lane of Highway 288 toward Angleton, Texas. Carl Rowlett, the uninsured motorist, pulled out of the parking lot of “Bud’s Beer Joint” and onto the highway in front of several vehicles which were at that time ahead of plaintiff. Upon entering the highway, Rowlett apparently stalled out and came to a stop in plaintiff’s lane of traffic. Those cars ahead of plaintiff swerved and successfully avoided colliding with Rowlett. However, plaintiff testified that he was unable to swerve in time to avoid colliding with Rowlett. Plaintiff alleged and proved that he sustained substantial injuries and damages.

Findings of fact and conclusions of law were neither requested nor filed. Where findings of fact and conclusions of law were not requested or filed, the trial court’s judgment should be affirmed if it can be upheld on any legal theory that finds support in evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup.1962); Life & Casualty Insurance Company of Tennessee v. Rivera, 420 S.W.2d 788 (Tex.Civ.App.—Corpus Christi 1967, no writ). In venue cases, we must presume, therefore, that the trial court resolved every issue of fact raised by the evidence in appellee’s favor. We must view the evidence in the light most favorable to such findings, disregarding all evidence that is contrary thereto. James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959); Loyd W. Richardson Construction Corporation v. Corpus Christi State National Bank, 513 S.W.2d 287 (Tex.Civ.App.—Corpus Christi 1974, writ dism’d w. o. j.).

We are not unmindful of the venue rule that asserts that generally a person’s right to be sued in the county of his residence is a valuable right and should never be denied except upon clear and convincing proof that the alleged cause of action comes within an exception to Article 1995, Tex.Rev.Stat.Ann. City of Mineral Wells v. McDonald, 141 Tex. 113, 170 S.W.2d 466 (1943); Neuhaus v. Daniels, 430 S.W.2d 906 (Tex.Civ.App.—Amarillo 1968, writ dism’d); Stanley v. Savage, 489 S.W.2d 461 (Tex.Civ.App.—Corpus Christi 1972, no writ).

Defendant urges in its first point of error that “the trial court erred in overruling appellant’s plea of privilege by holding that Subdivision 9(a) of Article 1995, V.A. T.S. was applicable to sustain venue in Bra-zoria County.” The defendant insurance company asserts in its brief that Subdivision 9a, Article 1995, V.A.T.S., has no relevancy of any kind to this suit. Appellant. states: “Citations of authorities are so well known that it is hardly necessary to cite the classic cases relative to this well known exception and none will be cited.” (Emphasis supplied.) Appellant’s point of error is overruled as its brief fails to meet the requirements of the rules of civil procedure relative to briefing. See Rule 418, T.R.C.P.

Appellant’s second point is that the trial court erred in overruling appellant’s plea of privilege by holding that any other section of Article 1995, V.A.T.S. was applicable to sustain venue in Brazoria County, Texas. Appellant contends that no other exception is applicable because the plaintiff did not refer specifically to an exception, naming such numbered exception. In support of this argument, the appellant states:

“. . . Appellant argues and cites as its absolute authority the well known case of Victoria Bank and Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63, by the Commission of Appeals of Texas, Section A, 1941. On page 66 of that classic opinion we find the following word by Commissioner Smedley:
‘ * * * Whatever the proof may have been, venue cannot be retained in Harris County under an exception not invoked, or upon a venue fact not alleged as such, in the controverting affidavit.’ ”

While it may be true that a literal construction of the quoted words in the Monteith opinion would indicate argumentatively, that a specific exception should be set out, the courts of Texas have not so held. Our Supreme Court in Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69 (1945) stated that all that a plaintiff must allege and prove in order to maintain a suit in a county other than that of the defendant’s domicile, over the latter’s proper protest, has been denominated “venue facts” and defined as “those which are stated in the particular exception of article 1995 that is applicable or appropriate to the character of suit alleged in plaintiff’s petition.” Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935, opinion adopted). Here, plaintiff’s petition was incorporated in its controverting affidavit. The controverting plea alleged venue facts which, with the proof heard by the trial court, were sufficient to invoke subsection 23 of Article 1995 to take the case from the general rule of venue.

Subdivision 23 provides that suits against a corporation may be brought in the county where plaintiff resided at the time the cause of action or part thereof arose, provided the corporation has an agency or representative in such county. The proof necessary must make out the following elements: 1) that the plaintiff resided in the county at the time the cause of action or a part thereof arose; and 2) that the corporation has an agency or representative in the county.

It was also stated in Victoria Bank and Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63 (1941, opinion adopted) that in order to prove that “. . .a cause of action has arisen in his favor a plaintiff must prove that he in fact has a cause of action. It was necessary, therefore, for the respondents Allison and others, plaintiffs in district court, when invoking this exception in subdivision 23 in order to defeat the plea of privilege, both to plead specifically and to prove facts showing that a cause of action arose in their favor against the defendant. . . (Emphasis supplied.)

The proof from the record showed that the plaintiff purchased the contract of insurance from an agent of the defendant in Brazoria County; that Carl Michael Rowlett was an uninsured motorist and that the defendant company refused to pay to plaintiff his claim in Brazoria County. We hold that the quantum of proof was sufficient to sustain venue under Subdivision 23 of Article 1995, V.A.C.S. State Farm Mutual Automobile Insurance Company v. Matlock, 462 S.W.2d 277 (Tex.Sup.1970) and Employers Casualty Company v. Clark, 491 S.W.2d 661 (Tex.Sup.1973).

The judgment of the trial court is affirmed.


author: BARROW, Chief Justice.

text:
    Marilyn F. BRIGHT, Appellant, v. Ronald R. BRIGHT, Appellee.
    No. 15496.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 17, 1975.
    Gardner, Ferguson & Associates, San Antonio, for appellant.
    Gerald B. Fisher, San Antonio, for appel-lee.
   BARROW, Chief Justice.

Appellant has perfected her appeal from the property division of a divorce decree. The principal question is whether the divorce court has the power to divide non-vested military retirement benefits. The trial court held that under existing case law it did not have this power. We agree.

Appellant and appellee were married in 1959 and separated in February of 1975. At the time of the marriage, appellee was an enlisted man in the United States Air Force. He was subsequently sent to college by the Air Force and commissioned as an officer. At the time of the divorce, appel-lee had 16 years and four months service. Under the law, he will be eligible for a retirement pension if he serves 20 years. The parties agreed upon a division of all community property and upon the amount of child support to be contributed by appel-lee for each of the three minor children. Appellant’s attorney stated to the trial court that the only issue in dispute was the status of the prospective retirement pay. The trial court approved the agreed property division, and found that appellant had no property right in the future retirement benefits.

The identical question before us was recently considered by the Austin Court of Civil Appeals in Lumpkins v. Lumpkins, 519 S.W.2d 491 (Tex.Civ.App.—Austin 1975, writ ref’d n.r.e.). After a full discussion of the authorities which have considered the question of future military retirement benefits, the court held that before military retirement benefits are subject to division by the divorce court, those benefits must be vested. Nothing would be gained by restating the authorities set forth by Justice Shannon in support of this holding. These authorities fully support such holding and we adopt same.

Here, as in Lumpkins, appellee was required to serve 20 years in the Air Force before his right to retirement benefits vested. Therefore, the trial court did not err in holding that appellant had no property right in appellee’s future retirement benefits.

Appellant urges as an alternative point that the trial court abused its discretion in the division of the community property. It is seen that the property disposition was based upon the agreement of the parties and their respective attorneys. Under this agreement, appellant received most of the community property. The trial court did not abuse its discretion in approving the property agreement.

The judgment is affirmed.


author: MOORE, Justice.

text:
    Marcella COVAULT, Appellant, v. TEXAS INSTRUMENTS, INC., Appellee.
    No. 868.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 18, 1975.

      Gary Alimón Grimes, Schuerenberg, Grimes & Pratt, Mesquite, for appellant.
    Royal H. Brin, Jr., Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellee.
   MOORE, Justice.

This is an appeal from a summary judgment.

Upon the death of Dennis Covault, an employee of Texas Instruments, Inc., group life insurance proceeds of $327,000.00 became due under policies issued by Insurance Company of North America and Connecticut General Life Insurance Company. The policy records reflected his minor daughter, Susan, to be the beneficiary with the Republic National Bank of Dallas as trustee. His second wife, Marcella Covault, however, also made claim to the proceeds contending that Dennis had changed the beneficiary designation on the policies in her favor. The insurance companies brought an inter-pleader action in Federal Court and both Susan and Marcella asserted their claims to the proceeds. Thereafter, Marcella settled and compromised her claim agreeing that approximately 90% of the proceeds be paid to Susan and accepting $32,000.00 of the proceeds in full discharge of her claim.

After settling her claim in the interpleader action, Marcella, as plaintiff, filed suit against Texas Instruments, Dennis’ employer. In her petition she alleged that Dennis had changed the group life insurance beneficiary in her favor prior to his death but that Texas Instruments negligently failed to reflect that change in its insurance records, thereby causing her a loss of $295,-000:00, the difference between the face amount of the life insurance policies and the $32,000.00 she accepted in settlement of the interpleader action. Texas Instruments filed a motion for summary judgment. The trial court granted the motion, reciting that plaintiff, Marcella, take nothing against defendant, Texas Instruments, Inc. Marcella has taken this appeal, contending that the trial court erred in rendering summary judgment “because the record contains admissible summary judgment evidence which creates a question of fact concerning Appellant’s allegation that her husband executed a change of beneficiary form in her favor.”

A summary judgment is appropriate only if the summary judgment record establishes a right thereto as a matter of law. Thus, it is well established that a defendant moving for summary judgment assumes the negative burden of showing as a matter of law that the plaintiff has no cause of action against him. Adam Dante Corporation v. Sharpe, 483 S.W.2d 452, 455 (Tex.1972); Gaddis v. Smith, 417 S.W.2d 577, 582 (Tex.1967).

Where a summary judgment is granted upon the motion of the defendant, as here, the question on appeal and in the trial court is not whether the summary proof raises fact issues with reference to essential elements of a cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970).

The burden of proof is on the mov-ant, and all doubts as to the existence of a genuine issue of material fact are resolved against him. All conflicts in the evidence are disregarded and the evidence which tends to support the position of the party opposing the motion is accepted as true. Farley v. Prudential Insurance Company, 480 S.W.2d 176, 178 (Tex.1972).

Both of the group life policies in question provided that no change of beneficiary would take effect until the written change of beneficiary form is received by the insurance companies, or by the deceased’s employer, Texas Instruments, Inc. Thus, one of the essential elements of appellant’s cause of action was that the deceased delivered to Texas Instruments an executed change of beneficiary form naming her as beneficiary. Consequently, in order for appellant to maintain a tort action for negligence against Texas Instruments she would be required to allege and prove: (1) that Dennis Covault executed and delivered to Texas Instruments a written change of beneficiary form naming her as the new beneficiary; (2) that Texas Instruments then negligently lost or failed to record the change, and (3) that such conduct was the proximate cause of appellant’s failure to collect the other 90% of the insurance proceeds which went to Dennis Covault’s daughter. Therefore, when Texas Instruments moved for summary judgment it assumed the burden of showing that there was no genuine issue of fact as to at least one of the above elements. Gibbs v. General Motors Corporation, supra. If the summary judgment proof had the effect of disproving appellant’s contention that Dennis Covault executed a change of beneficiary form and delivered it to Texas Instruments, as plead, then Texas Instruments met its summary judgment burden and its motion was properly granted. Adam Dante Corporation v. Sharpe, supra; Gaddis v. Smith, supra.

The summary judgment proof consisted of the deposition of Mrs. Covault; Texas Instruments’ answers to appellant’s interrogatories and depositions of past and present employees of Texas Instruments. We will first look at the evidence in the light most favorable to appellant, as we are required to do, to determine whether there is any evidence suggesting that Dennis Co-vault executed and delivered a change of beneficiary form to Texas Instruments. Charlene Wienke, a Texas Instruments’ employee in the Insurance Department, testified that Dennis came to see her about adding Mrs. Covault to his medical and accidental death coverage before he married appellant. She also testified that she gave a packet of forms to Jim Tindle to give to Dennis to enable him to add appellant to the medical and accidental death coverage and that although Dennis did not request it, the packet contained a change of beneficiary form for the group life insurance. Jim Tindle testified that Dennis took the forms from his office and later returned some of them completed. Tindle did not go through that packet and therefore could not say exactly what forms were in the packet which Dennis returned to him. He testified that he turned the packet over to the Insurance Office without looking at them. Charlene Wienke testified that some insurance forms from the packet were completed by Dennis but that no change of beneficiary card on the group life was with these returned forms. The only testimony offered by appellant to support her position is to be found in her deposition wherein she testified that Dennis had told her that he executed a change of beneficiary form in her favor on the group life insurance and had delivered the form to Texas Instruments. She also testified that other persons had told her that Dennis told them that appellant was taken care of on life insurance.

The testimony of appellant concerning what Dennis told her and others that he had done in regards to changing the beneficiary is, of course, hearsay. It is out of court statements of Dennis Covault being offered in court for the truth of the matters contained therein and as such is clearly hearsay. Hartford Accident & Indemnity Co. v. McCardell, 369 S.W.2d 331, 337 (Tex.1963); 1 C. McCormick & R. Ray, Texas Evidence, sec. 781 (2d ed. 1956). Appellant contends that the testimony is subject to an exception to the hearsay rule and thus may be considered. She argues that evidence of declarations of a plan, design or intention presently entertained by a declar-ant is admissible when offered as evidence that the plan was carried out. Appellant’s testimony, however, is that Dennis made statements to her after the purported event had already occurred; therefore, the declaration did not relate to Dennis’ present intent or future plans but rather to his past conduct. Statements of a declarant, whether deceased or not, concerning the declar-ant’s past conduct are hearsay and do not come within any of the exceptions to the hearsay rule. In re Simm’s Estate, 442 S.W.2d 426, 434 (Tex.Civ.App.—Texarkana 1969, writ ref’d n.r.e.); West v. Austin National Bank, 427 S.W.2d 906, 909 (Tex.Civ.App.—San Antonio 1968, writ ref’d n.r.e.); 1 C. McCormick & R. Ray, Texas Evidence, sec. 895 at 670 (2d ed. 1956). Hearsay evidence is no evidence at all. It is wholly incompetent and without probative force, thus it can never form the basis for establishing a cause of action or of a finding of fact or of the judgment of the court, whether objected to or not. Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628, 631 (1941); Pan American Fire & Casualty Company v. Loyd, 411 S.W.2d 557, 560 (Tex.Civ.App.—Amarillo 1967, no writ); Keystone-Fleming Transport v. City of Tahoka, 277 S.W.2d 202, 208 (Tex.Civ.App.—Amarillo 1954, writ dism’d). Neither will it defeat a motion for summary judgment. Box v. Bates, 162 Tex. 184, 346 S.W.2d 317, 319 (1961); Raney v. Mack, 504 S.W.2d 527, 532 (Tex.Civ.App.—Texarkana 1973, no writ). Therefore, appellant’s testimony that Dennis told her and others that he had executed and delivered a change of beneficiary form does not constitute probative evidence showing that the deceased changed his beneficiary.

Thus, the record contains no evidence that the deceased delivered a change of beneficiary form to Texas Instruments as required by the policy. On the other hand, Texas Instruments’ uncontradicted summary judgment evidence shows that no change of beneficiary form was ever delivered to it and that after an exhaustive search of its records none could be found. The evidence further shows that the standard change of beneficiary forms used by the insurance companies contained a duplicate copy. A search was made through the deceased’s desk as his home where various other insurance papers were kept, but no copy of the change of beneficiary form could be found. Further, Charlene Wienke positively testified that no change of beneficiary form was in the packet of forms which the deceased returned to Texas Instruments.

While we recognize that appellee’s summary judgment proof consists mainly of the testimony of interested witnesses, we find that the testimony is clear, direct and positive. There being no circumstances in evidence tending to discredit or impeach such testimony, we are permitted to consider it. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).

As we view the record, the summary judgment proof conclusively established that there was no genuine issue of fact on the essential element of appellant’s claim that Dennis Covault delivered an executed change of beneficiary form to Texas Instruments. Therefore, Texas Instruments met its summary judgment burden and its motion for summary judgment was properly granted.

The judgment of the trial court is affirmed.