text:
    David Charles STEIN, Appellant, v. The STATE of Texas, Appellee.
    No. 52440.
    Court of Criminal Appeals of Texas.
    March 16, 1977.
    Leonard C. Kahn, Marvin O. Teague, on appeal only, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, Keno M. Henderson, Jr., Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for delivery of lysergic acid diethylamide. Following a verdict of guilty, the court assessed punishment at five (5) years’ confinement in the Department of Corrections.

In three grounds of error appellant advances one contention — that the trial court erred in denying his request that the names of the confidential informers be divulged.

The first count of the indictment under which the appellant was convicted charged that appellant “heretofore on or about April 3, 1974, did then and there unlawfully . did then and there knowingly and intentionally deliver to S. J. Pillion a controlled substance, namely: Lysergic Acid Diethylamide.”

The record reflects that Officer S. J. Pillion and Lt. L. W. Rahr of the Pasadena Police Department were acting as undercover narcotics agents on April 3, 1974. They were working in conjunction with two women informers who had been working with the said police department for eight or nine months. At 2:30 p. m. on April 3, 1974, the women informers introduced the two undercover agents to the appellant in appellant’s apartment. A delivery or sale of 100 “hits” of L.S.D. was consummated at the time between the undercover agents and the appellant in the presence of the informers. A discussion in the presence of the informers then ensued about a later purchase of 1,000 “hits” from appellant if the “hits” met Pillion’s standards. At 6 p. m. on that date Pillion received a telephone call from the appellant that he had 1,000 “hits” for sale. Pillion and Rahr and two other officers, Harris and Hayes, went to appellant’s apartment about 8 p. m. Harris and Hayes set up a surveillance outside the apartment. Pillion and Rahr went to the apartment, and it appears that about this time they were joined by the informers. In the apartment appellant asked the undercover agents if they were still interested in the 1,000 “hits.” In the presence of the informers the officers stated they were not only interested in 1,000 “hits,” but still another sale of another 1,000 “hits.” The appellant then left and said he would be back in 25 minutes. When he left apparently the informers also left. Appellant returned in about 45 minutes and stated he had brought his supplier with him. Appellant then left the apartment and returned shortly with the substance later shown to be L.S.D. He handed the substance to Agent Rahr and stated he would get another 1,000 “hits” as requested. As he was handed the $800, he was arrested. Officers Harris and Hayes arrested the supplier, John Floyd, outside the apartment.

Appellant testified in his own behalf and claimed entrapment. He related that on April 1, 1974 he was approached by a girl who said her name was Debbie in a cafe near his apartment. She was with another girl whose name he could not remember. Both were in their early twenties. Debbie asked if he had any marihuana, and he replied he did not. Debbie inquired where appellant lived, and he told her and invited her and her friend to the apartment. At the apartment Debbie told the appellant she and her friend were “hooked” on heroin and they had come from Tennessee with their boyfriends and were looking for “acid.” She said her boyfriend was looking for “acid” so that he could sell it for a profit up North. She stated she wanted to get off heroin and stay in Houston. She asked appellant if he were looking for someone, she liked.him. She said if the boyfriends got the “acid” they would leave town. Appellant told Debbie there was nothing he could do for her. She gave him a phone number and told him she was staying at a hotel on Main Street.

When he came home that evening from looking for work, he found a note and called the girls at the Chief Motel. Whether he contacted them is not shown by the record. The next evening or night they came to his apartment and knocked, but he would not let them in as he did not want to become involved. The next morning, as he was leaving, he encountered Debbie and her friend on the steps to the apartment. They returned to the apartment, and after some 45 minutes of discussion he finally agreed to try to get their boyfriends some L.S.D. He contacted a friend, who gave him a name of a friend to contact. At 2:30 p. m. he met the two girls at his apartment. They introduced Officers Pillion and Rahr as their boyfriends, giving other names. He acknowledged that he sold 100 “hits” to the “boyfriends” and that they asked if he could get 1,000 more “hits” for them for $800. Appellant stated he agreed to try as he was “doing it for the girls.”

Appellant testified he talked to the supplier and that later at 8 p. m. the officers and the girls arrived at the apartment and he told them of the agreement. He left the four in his apartment and went to obtain the L.S.D. When he returned, the girls were gone but the officers-agents purchased the L.S.D. from him and he was arrested. He claimed that he was not to get any money out of the transaction, that he was only doing it for the girls. He claimed he was entrapped.

By pre-trial motions to suppress evidence and for discovery the appellant called to the court’s attention that his defense was entrapment and he requested the names and addresses of the informers. Prior to trial the motions were overruled. After the testimony of Officers Pillion and Rahr, the appellant again requested the names of the informers. It was refused. After perfecting a bill of exception by interrogating Officer Pillion in the absence of the jury, the request was renewed and again denied.

It has repeatedly been held that unless the informer participated in the offense, was present at the time, or was otherwise shown to be a material witness or as to whether the accused knowingly committed the act charged, his or her identity need not be disclosed. Carmouche v. State, 540 S.W.2d 701 (Tex.Cr.App.1976); Sigard v. State, 537 S.W.2d 736 (Tex.Cr.App.1976); Barber v. State, 511 S.W.2d 937 (Tex.Cr.App.1974); Bueno v. State, 501 S.W.2d 339 (Tex.Cr.App.1973); Sessions v. State, 498 S.W.2d 933 (Tex.Cr.App.1973); James v. State, 493 S.W.2d 201 (Tex.Cr.App.1973). See also Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

Relying upon Barber v. State, supra, the State argues that the necessity for disclosing the informers’ names did not arise until after the appellant had testified and that thereafter no request for the disclosure of the informers’ names was made.

In Barber this court wrote:

“At the time during the trial when the Court overruled appellant’s motion for disclosure of the informer the trial court had before it only the testimony of Officer Rangel. At this time no evidence existed to indicate that the informer had done anything other than notify the Officer where someone was selling heroin. Only after appellant testified did the trial court become aware of the alleged prior incident involving Sonny Gant and his alleged participation. At the close of his testimony appellant did not renew his request for the disclosure of the informer’s identity. Absent such a motion for disclosure, no error was committed. Willoughby v. State, Tex.Cr.App., 481 S.W.2d 893.”

While it would have been safer practice for the appellant to again request disclosure of the informers’ names after his own testimony, we conclude that the instant case can be distinguished from Barber. The testimony of Officers Pillion and Rahr showed they were working with two women informers who made the first contact with the appellant and introduced the officers to the appellant as their boyfriends, were present at the 2:30 p. m. sale of 100 “hits” of L.S.D. and present during the discussion of the delivery of 1,000 more “hits,” which was the basis of the offense charged. Again they were present that evening with the officers at 8 p. m. in appellant’s apartment when further discussion took place as to arrangements for the delivery of the L.S.D. Clearly they were shown to be material witnesses, and the court erred in refusing to order the State to disclose the names of the informers. See James v. State, supra.

The judgment is reversed and the cause ordered remanded.

      . There appears to be no disagreement among the parties that the delivery of L.S.D. charged was the one near 9 p. m. on April 3, 1974 rather than the 2:30 p. m. sale. The record reflects an indictment charging the earlier sale.


source: Caselaw Access Project

author: DOUGLAS, Judge.

license: Public Domain

text:
    Eddie Lee ROBINSON, Appellant, v. The STATE of Texas, Appellee.
    Nos. 54023-54025.
    Court of Criminal Appeals of Texas.
    March 16, 1977.

      Peter Torres, Jr., San Antonio, for appellant.
    Ted Butler, Dist. Atty., Charles T. Cona-way, Fred Rodriguez and Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

These are appeals from convictions for the offense of capital murder. Punishment was assessed at death in each cause. See V.T.C.A., Penal Code, Section 19.03, and Article 37.071, V.A.C.C.P.

On July 15, 1974, appellant and two companions shot and killed Andy Anderson, Verna Lee Harris and George Tatum during the course of committing an armed robbery at the Terrace Drugstore in San Antonio. In view of our disposition of these appeals, further discussion of the facts is not necessary.

Appellant contends that the trial court erred in not permitting a psychologist to give testimony at the punishment stage of the trial relating to one of the three issues that are submitted to the jury under the provisions of Article 37.071, supra, — whether a probability exists that a defendant would commit criminal acts of violence which would constitute a continuing threat to society. We agree and reverse.

Pursuant to Article 37.071(b)(1), (2), supra, the court submitted questions to the jury inquiring if they found from the evidence beyond a reasonable doubt (1) that the conduct of the appellant which caused the death of the deceased individuals was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; and (2) that there is a probability that the appellant would commit criminal acts of violence that would constitute a continuing threat to society.

Article 37.071(a), supra, provides in pertinent part that “[I]n the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence.

This Court has stated that in determining the likelihood of whether or not a defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and the severity of his prior criminal conduct. It could further look to the age of the defendant and whether or not at the time of the commission of the offense he was acting under duress or under the domination of another. It could also consider whether the defendant was under an extreme form of mental or emotional pressure, something less, perhaps, than insanity but more than the emotions of the average man, however inflamed, could withstand. Jurek v. State, Tex.Cr.App., 522 S.W.2d 934 at 939, 940 (1975), and cited with approval in Livingston v. State, Tex.Cr.App., 542 S.W.2d 655 (1976); Gholson and Ross v. State, Tex.Cr.App., 542 S.W.2d 395 (1976), and Granviel v. State, Tex.Cr.App., - S.W.2d — (1976). Apparently, the United States Supreme Court views our statute in the same light. In upholding the constitutionality of Y.T.C.A., Penal Code, Section 12.43, Capital Murder, in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), that Court said: “A jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.” In addressing itself specifically to the issue to be presented to the jury under Article 37.-071(b)(2):

“Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society”,

the Supreme Court said:

“What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced.” See also Granviel v. State, supra.

That Court further wrote:

“By authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function. . . . Because this system serves to assure that sentences of death will not be ‘wantonly’ or ‘freakishly’ imposed, it does not violate the Constitution. Furman v. Georgia, 408 U.S. [238], at 310, 92 S.Ct. [2726] at 2762, 33 L.Ed.2d 346.”

See and compare Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and Profitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

In Moore v. State, Tex.Cr.App., 542 S.W.2d 664 (1976), we held that it was proper for two psychiatrists to give testimony at the punishment stage of the trial relating to the issue of whether or not a probability existed that the defendant would commit criminal acts of violence which would constitute a continuing threat to society. In Moore, Dr. Holbrook testified that he examined the appellant and found him to be a sociopath of the anti-social type, who was not mentally insane but who had no respect for anyone else’s property or life, and he further expressed the opinion that the probability was very great that appellant would commit further acts of violence and he showed no remorse for the offense for which he was being tried. Additionally, Dr. Grigson testified that Moore was a severe sociopath who was extremely dangerous and who had no regard for the life or property of another and would continue to present an absolute threat to whatever society he was involved in. Grigson also testified that there was no known cure for appellant’s condition. See also, Livingston v. State, Tex.Cr.App., 542 S.W.2d 655 (1976); Granviel, supra; and Smith v. State, Tex.Cr.App., 540 S.W.2d 693 (1976).

In Gholson and Ross, we also held that the psychiatric opinion of Dr. Holbrook was admissible at the punishment stage even though the opinion was formed at an interview which was made in the absence and without the knowledge of his counsel. Hol-brook testified that Gholson and Ross were sociopaths who would continue to be a danger to society and were likely to commit criminal acts of violence in the future. Dr. Grigson, who had been appointed by the court only to determine Gholson’s competency to stand trial, was also allowed to testify at the punishment phase. His conclusions were essentially the same as voiced by Dr. Holbrook.

Thus, it would appear that the statute allows a trial judge broad discretion in determining just what constitutes “relevant evidence” at an Article 37.071, supra, proceeding.

Dr. Lawrence S. Schoenfeld, a clinical psychologist from the University of Texas Medical School at San Antonio, was called as a witness by appellant at the punishment stage of the proceedings. The record contains an extensive recitation of his education, background, and experience qualifying him as an expert in the field of clinical psychology, which is a study of human behavior. Dr. Schoenfeld stated that he had administered a series of behavioral tests to appellant but, when asked to give his professional opinion as to appellant’s propensity for violent behavior in the future, the prosecutor objected and the court refused to allow him to state his opinion. Outside the presence of the jury, Dr. Schoenfeld testified as follows:

“Q And did you in administering tests make certain determinations as to the propensity of Eddie Lee Robinson to commit acts of violence in the future?
“A Yes, I did.
“Q All right, sir. Now, what was the basis of your conclusions, or on what did you conclude whether Eddie Lee Robinson has or has not the propensity for committing acts of violence in the future’
“A The basis of my conclusions is on his ability to control impulses that he has, a lack of evidence supporting a lot of aggressive impulses or hostile impulses, good reality testing, fairly good planning and fairly good control.
“Q And—
“A That in effect he was not an impulse-ridden character without control.
******
“Q Based on your testing of Eddie Lee Robinson what conclusion did you draw as to the propensity of Eddie Lee Robinson to commit acts of violence in the future?
“A I would not predict future acts of violence.
“Q What you’re saying is, Eddie Lee Robinson does not have the propensity to commit acts of violence in the future, is that right?
“A Yes.”

Testimony to the contrary on behalf of the State has been held admissible at the punishment stage of the trial. A good rule of evidence works both ways. We hold that testimony on the same issue is admissible on behalf of a defendant. The Supreme Court of the United States in Jurek v. Texas, supra, upheld the constitutionality of our statutes in capital murder cases because Texas law assures that all relevant information about a defendant will be adduced. To allow only the State to present such evidence would deny a defendant his rights under Article 37.071, supra, and the Constitution of the United States as construed by the Supreme Court in the Jurek case.

For the reason stated, the judgments are reversed and the causes are remanded.


author: GREEN, Chief Justice. NYE, Justice,

text:
    Rudy GONZALEZ et al., Petitioners, v. Neal KING et al., Respondents.
    No. 551.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 16, 1970.

      John E. Lewis, Adams, Graham, Lewis & Graham, H. H. Rankin, Jr., Rankin, Kern & Martinez, McAllen, for petitioners.
    Smith, Mcllheran & Jenkines, Garland F. Smith, Weslaco, Hill & King, Mission, for respondents.
   OPINION

GREEN, Chief Justice.

On March 9,1970, an appeal from a judgment of the 93rd District Court of Hidalgo County was filed in our Court, being our No. 550, Rudy Gonzalez, et al v. Neal King, et al. At the same time, appellants in that cause filed with us their Motion For Leave To File Petition To Stay Proceedings accompanied by their petition in which, after factual allegations, they sought to restrain respondents from taking any actions with reference to certain recall petitions or election involving certain officials of City of Mission, Texas until decision by this Court of Cause No. 550. Petitioners seek to invoke Art. 1823, V.A.T.S., which reads as follows:

“Said courts [Courts of Civil Appeals] and the judges thereof may issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts.”

In an ex parte hearing without notice to the respondents, we granted leave, subject to further orders of the Court, to file said. Petition To Stay Proceedings, and issued a restraining order as prayed for effective until Thursday, March 12, 1970. We set a hearing on the said Petition To Stay Proceedings to be held on such date and notified counsel for petitioners and respondents to present argument to the Court at that time. This cause on the Motion for Leave to File and the Petition to Stay became Cause No. 551 on our docket.

At such hearing, the issue before the Court was whether or not we should grant the temporary injunction prayed for by petitioners pending our decision of Cause No. 550 in order to enforce our jurisdiction in said 550.

After oral argument by counsel, this Court unanimously decided that the Leave to File theretofore granted should be set aside, and that such leave should be denied; that the temporary restraining order issued March 9, 1970, should be dissolved, and that Cause No. 551 should be dismissed. Judgment to that effect was duly announced by the Court. Said judgment expressly provided that “This order shall not affect Cause No. 550, Rudy Gonzales, et al v. Neal King, et al. now pending on the docket of this Court.”

The majority of this Court believes that we should not discuss in the Court’s opinion or make a ruling on any issue involved in Cause No. 550 not essential to be decided in passing on the question whether injunctive relief should be granted as prayed for by petitioners in their petition in No. 551. The holding of the majority is simply that Petitioners by the record and argument presented have failed to convince us that we should issue the injunctive relief prayed for in this Cause No. 551.

Injunctive relief prayed for is denied as per judgment of this Court.

SHARPE, J., joins in the above.

NYE, Justice,

concurring.

Movants are resident citizens, property owners and taxpayers of the City of Mission, Hidalgo County, Texas. One of such movants is the Mayor of the City of Mission and two others are City Councilmen of the City of Mission. Movants asked for leave to file their petition to stay certain proceedings and to enjoin the respondents from doing or participating in any further act or proceeding in regard to certain recall petitions; or from securing, ordering and/or the holding of elections thereon for the recall of the Mayor and two of the City Councilmen named as movants herein. The respondents are also resident citizens of Mission and are described as being the leaders of a group known as The Mission Recall Committee.

This Court, in chambers, upon the presentation of the motion for leave to file the petition to stay the proceedings, was of the opinion that said petition to stay the proceedings should be granted and ordered the petition to be filed, and at the same time temporarily restrained the respondents from participating in any further act or proceeding in regard to the recall petitions described in the petition and from ordering or securing the ordering and/or the holding of elections thereon for the recall and removal from office of Clark F. Spikes, and/or Albert A. Ady and/or Clarence R. Ashley (all movants herein) until a hearing to be held by this Court on petitioners’ application for temporary injunction on March 12, 1970, three days following the presentation of such petition.

This Court, on authority of Art. 1823, V.A.C.S., granted leave to file the petition in order that this Court could determine the necessity of protecting its jurisdiction of this case.

The issue before this Court relative to this motion is whether the respondents should be enjoined from further action relative to the recall petitions and election in order to preserve and protect the jurisdiction of this Court in the subject matter of the appeal of this case until the merits of the appeal in Cause Number 550 (filed in this Court) is adjudicated. In order to determine this issue we must decide if the trial court was correct in dismissing the case for want of jurisdiction.

Movants’ petition reflects that on the 26th day of February, 1970, the movants, as plaintiffs filed a declaratory judgment suit (Cause Number 550 on appeal in this Court) against the respondents in the 93rd District Court of Hidalgo County, Texas, to adjudicate and declare the rights, status, legal obligations and duties of the parties under the written Charter of the City of Mission and to obtain eventually a temporary injunction staying and restraining the further act and proceedings of respondents until the rights, status, duties and legal obligations of the parties have been declared; to maintain the status quo of the parties and the subject matter; and to prevent irreparable injury to the movants. The respondents (defendants in the lower court) moved for a dismissal of the suit.

The trial court, upon hearing the respondents’ motion to dismiss the suit for declaratory judgment and injunctive relief, determined that it was without jurisdiction to entertain the movants’ petition and therefore ordered, adjudged and decreed that the movants’ petition should be and was dismissed for the sole and only reason that the trial court had no jurisdiction to consider the movants’ cause of action. An appeal from this order of dismissal is our Cause Number 550. Movants contend that the trial court’s refusal to consider the merits of their suit in the district court and for ancillary relief will allow the respondents to proceed with the recall proceedings without a determination of the legal sufficiency of the proceedings leading up to the proclamation of the recall election, and unless this Court temporarily enjoins the respondents from proceeding with the recall proceedings the merits of the appeal in Cause Number 550 (being the suit in the trial court) will be moot and the jurisdiction of this Court relative to this cause will be destroyed resulting in irreparable injury, damage and harm to the movants.

The respondents contend here as they did before the trial court; that the recall election proceedings was commenced by the filing of the recall petitions; that a recall election is an “election” in contemplation of the law and the courts of this state do not enjoin elections or any step in the election process as it is purely a political function; citing City of Austin v. Thompson, 147 Tex. 639, 219 S.W.2d 57 (1949); Miller v. State ex rel. Meyers, 53 S.W.2d 838 (Tex.Civ.App.—Amarillo 1932); Ex parte Barrett, 37 S.W.2d 741 (Tex.Comm’n App.1931); Vet ters v. State, 255 S.W.2d 588 (Tex.Civ.App.—San Antonio 1953); Young v. State, 87 S.W.2d 520 (Tex.Civ.App.—Ft. Worth 1935); City Commission of Pampa v. Whatley, 366 S.W.2d 620 (Tex.Civ.App.— Amarillo 1963); 31 Tex.Jur.2d 162, Sec. 78. If the trial court was without potential jurisdiction to entertain the relief sought by the movants then this Court would lack authority to grant the temporary relief sought by the movants until a determination of the appeal was had.

The courts of nearly all of these United States have recognized the absolute necessity of severe restrictions upon their own discretionary authority to enjoin an election. It was said nearly a hundred years ago that:

“. . . to obstruct the freedom of elections — if successful, would result in the overthrow of all liberty regulated by law. The mere effort to assume such power is dangerous to the rights of the citizen. If the courts can dictate to the officers of the people that they shall not hold an election from fear of some imaginary wrong, then people and officers are entirely subservient to the courts, and the consequences are too fearful to contemplate.
“The principle which would authorize the mighty mandate of a court of chancery, in this case, would justify it in every election to be held by the people, and thus the whole administration of the government might be obstructed and all power and authority placed at the footstool of the judge.” Walton v. Develing, 61 Ill. 201 (1871).

In Killam v. Webb County, 270 S.W.2d 628 (Tex.Civ.App.—San Antonio 1954), the late Justice Norvell said:

“The mere fact that the present suit was brought as a suit under the Uniform Declaratory Judgments Act, Article 2524-1, Vernon’s Ann.Civ.Stats., does not alter the situation, as it was not the purpose of such Act to extend the jurisdiction of the courts over matters which are purely political. The rule still obtains in this State that ‘an election is essentially the exercise of political power, and, during its progress, is not subject to judicial control. This comprehends the whole election, including every step and proceeding necessary to its completion’. . . .”

However in the absence of any complete and adequate remedy at law, a municipal officer whose recall is sought may be entitled to maintain a suit to restrain such proceedings on the ground that the recall proceedings are being attempted without a substantial compliance of the law. 62 C.J.S. Municipal Corporations (Injunction) § 516d, p. 965. The validity of the proceedings for recall is a judicial question, and it may be permissible to enjoin the holding of an election to determine the sufficiency of proceedings leading up to the proclamation for an election. 4 McQuillin, Sec. 12.251f, p. 320. Citing authority. For instance, equity may determine a charge of fraud, but not to inquire into the truth or falsity of the allegations of the petition for recall. This is a political question to be determined by the people at the election.

In the case of State v. Tedder, 106 Fla. 140, 143 So. 148, the Supreme Court of Florida in analyzing a situation closely akin to the problem before us, had this to say:

“A recall election is a special, extraordinary, and unusual proceeding. The authority for any recall of an officer must rest upon a substantial compliance with the statutory provisions by which it is authorized. In this respect recall elections differ from ordinary elections, because the latter must be held at some designated time and place appointed by law, whereas recall elections can only be held when the statute providing therefor has been substantially complied with, and no unalterable time for holding same is ordinarily fixed by law therefor.
It has frequently been said that an injunction will not issue as a general rule for the purpose of restraining the holding of an election, or of directing or controlling the mode in which, or of determining the rules of law in pursuance of which, an election shall be held, and that an election is a political matter as to which courts of equity have, and should have, nothing to do. See Pomeroy’s Equity Jurisprudence (4th Ed.) §§ 1753, 1754.
But the reason usually given for this general holding that equity is without jurisdiction in election matters is that interference in election controversies might often result in the destruction of popular government, especially when the relief sought is to entirely prevent the holding of an election by the people and thereby to prevent the free expression of the popular will.
This impelling judicial tendency to leave unhampered our avenues of popular expression is no doubt of sufficient cogency to support the rule as applied to those general elections recurring at stated intervals and required by statute to be held at particular times and places. But the reason for the rule as applied to ordinary elections to select officers does not apply to those special and extraordinary elections to oust those already elected. Recall elections can only be held when the statutory authority therefor has been granted and substantially pursued. Interference with such unusual and extraordinary elections by injunction or otherwise will have no other effect than to delay a particular recall effort until such time as the court is satisfied that the proceedings for the invocation of the desired recall are in sufficient compliance with the law to warrant the calling and holding of an election for that purpose. It has been held that an officer against whom a recall petition is launched has a sufficient interest to entitle him to maintain an action in equity upon good cause to enjoin proceedings upon such recall; that, although he cannot claim exemption from removal by recall, such officer has the right to demand that the proceedings therein do not substantially depart from the statutory mode prescribed, and to insist that the officers do not perpetrate a legal fraud upon him by acting upon an illegal petition. Baines v. Zemansky, 176 Cal. 369, 168 P. 565.
We agree with the conclusion of the California court on this subject, and hold that a bill in equity to restrain recall proceedings alleged to be attempted to be carried out without substantial compliance with the mode prescribed in an appropriate remedy to prevent the wrong, and will be available to the officer sought to be recalled, if no other tribunal is authorized by law to judicially determine the sufficiency of the recall proceedings.
This court is committed to the doctrine that a public officer has a property right in his tenure of office, and cannot be deprived thereof without due process of law. See State ex rel. Hatton v. Joughin (Fla.) 138 So. 392.
The absence of appropriate legal procedure for determining whether or not an officer is about to be deprived of his right to hold office without due process of law is sufficient to give a court of equity jurisdiction in the premises to act for the protection of such right. City of Watts v. Superior Court of Los Angeles County, California, 36 Cal.App. 692, 173 P. 183.” (Emphasis supplied)

The Texas Courts have on numerous occasions recognized the necessity of invoking their equitable jurisdiction in election matters by way of mandamus, and a trial court in at least one recall case, by a writ of injunction. However, I believe the trial court was correct in dismissing this suit for want of jurisdiction, not because it did not have equitable power to grant relief in a proper situation, but for other reasons.

The Charter of Home Rule City of Mission provides a definite and set procedure for the recall of its officers. One of its sections (Section 6.11) provides:

“Failure of City Council to Call an Election.
In case all of the requirements of this charter shall have been met and the City Council shall fail or refuse to receive the recall petition, or order such recall election, or discharge any other duties imposed upon said City Council by the provisions of this charter with reference to such recall, then the County Judge of Hidalgo County, Texas, shall be hereby empowered and directed to discharge any of such duties herein provided to be discharged by the person performing the duties of City Secretary or by the City Council.”

No allegation has been made that this matter has been presented to the County Judge and he has failed to substantially comply with the law.

Since the administrative remedy provided for in Section 6.11 above set forth has not been exhausted, a suit contending that there had not been a substantial compliance of the law relative to the recall election was prematurely filed. The trial court had no authority to render an advisory opinion under the uniform declaratory judgment act where no real or genuine controversy existed.

The trial court was without jurisdiction to entertain the suit, therefore, any ancillary relief in this Court should be denied.

      . By way of example see: Vetters v. State, 255 S.W.2d 588 (Tex.Civ.App.—San Antonio, 1953).

      . Hemmingson v. Hagaman, 250 S.W. 1066 (Tex.Civ.App.—Ft. Worth 1923, reversed on other grounds).


author: PRESLAR, Chief Justice.

text:
    A. R. ARCHER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 6510.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 9, 1977.
    Rehearing Denied March 9, 1977.

      Max E. Ramsey, Odessa, Mitchell, George & Belt, Arthur Mitchell, Austin, for appellant.
    Davis Grant, Austin, Roddy L. Harrison, Pecos, for appellee.
   OPINION

PRESLAR, Chief Justice.

This is a disciplinary case against an attorney for violation of the Code of Professional Responsibility which governs attorneys at law in the State of Texas. Trial was to a jury which found against the attorney on some issues and exonerated him on others. Based on the jury verdict #nd after disregarding one issue thereof, the Court entered judgment suspending the attorney from the practice of law for two years. We affirm that judgment.

This action was instituted by the Grievance Committee for the State Bar, District 17-B, in the name of the State of Texas as Plaintiffs against A. R. Archer, Jr., of Mon-ahans, Texas, Defendant. The jury found that the Defendant was not guilty of converting his clients’ funds, but it did find against him on two other matters. The jury found that the attorney deposited his clients’ funds in a bank account which he used for general business and affairs, as to which the Court found that the Defendant had violated Disciplinary Rule 9-102 of the Code of Professional Responsibility. It was also the verdict of the jury that the Defendant had attempted to get a client to sign a false affidavit, and the Court held that that amounted to professional misconduct under Disciplinary Rule 1-I02(A)(3), (4), and (5). The Court found that either of the above violations would warrant the judgment of suspension for two years.

The Defendant represented Marcella Martinez, Pedro Lopez, Guillermo Fierro, Charles Blount, Jose Herrera, H. B. Banks, and Joe T. Urias in separate workmen’s compensation cases. In each of these cases, when the Defendant procured a judgment or settlement, he deposited the settlement check in a bank account “A. R. Archer, Jr., Attorney” or “A. R. Archer, Attorney at Law” account. He testified that neither of these accounts were trust or escrow accounts, and the evidence shows that the Defendant withdrew funds at will from these accounts for a variety of personal and business purposes. When the Defendant received the settlement checks, he prepared a “settlement of account” statement. This statement set out the amount of recovery, the legal expenses which were due and owing the Defendant, the medical and other expenses which the Defendant was authorized to pay or had paid, and the net proceeds to the client. This case arose when a doctor complained to the Grievance Committee that money withheld under the settlements for his fee had not been paid to him.

By Special Issue No. 1, the jury was asked to make a two-part finding. First, they found that as to each of the seven clients the Defendant “did deposit” insurance settlement checks in an account used by the Defendant for “general business and affairs." By the second part of such issue, they found that such depositing “was” intentional. By Special Issue No. 1(a), the jury found that each client “did consent” to such depositing. The trial Court disregarded Special Issue No. 1(a) on the basis that as a matter of law, the finding was immaterial and there was no evidence to the consent of commingling.

Appellant asserts that his actions must have been fraudulent, culpable, or wilful in order to be violative of DR 9-102. DR 9-102, as it now stands, provides:

“DR 9-102. Preserving Identity of Funds and Property of a Client.
“(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
“(1) Funds reasonably sufficient to pay bank charges may be deposited therein. “(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.”

Tex.Rev.Civ.Stat.Ann., art. 320a-l, App., art. 12, Sec. 8, Canon 9, DR 9-102 (1973).

At one time, the rule did require “wilful violation,” but as can be seen, there is no such requirement here. Thus, no finding of fraudulent, culpable, or wilful conduct is required. There is no question of the sufficiency of the evidence that the funds were in fact commingled, or, for that matter, that the Defendant used the funds so deposited for his personal affairs and business. For example, he deposited the settlement check in the case of Marcella Martinez in the amount of $13,750.00, and thirteen days later, the balance of his account was some $4.60, with the money having been spent on a variety of personal and business items while items listed on the “settlement sheet” remained unpaid.

Error is urged in the Court’s act in disregarding Special Issue No. 1(a) regarding the consent given by the clients. The evidence is that, as to each settlement sheet, there were certain items withheld by which the attorney represented that he had either paid or would pay medical and hospital bills and other items enumerated on the settlement sheet. The proof was that many of these items were never in fact paid, and, in some instances, the clients continued to get bills for them. Some of the items remained unpaid at the time of trial, although the Defendant tendered some $5,000.00 of such funds into Court after trial but prior to his sentencing. The evidence is undisputed that the clients did not consent to the use of their money for anything other than the payment of the specified expenses for which the sums were withheld. Consent is really very similar to the previously discussed issues of wilfulness and culpability in that there is no provision for consent in DR 9-102. The clients consented to deposit, but not to commingling. The attorney is subject to the Code of Professional Responsibility, in this instance DR 9-102, and the clients did not and could not remove him from the responsibility of the Code. A violation of the Code amounts to professional misconduct, and there is no provision for consent in DR 9-102 to change that. The same is true of the argument for an issue on good faith. The evidence here did not raise a good faith issue. An attorney is not liable for an error in judgment if he acts in good faith and in an honest belief that his advice and his acts are well founded and in ■* the best interest of his client. Cook v. Irion, 409 S.W.2d 475 (Tex.Civ.App., San Antonio 1966, no writ).

“ * * * The good faith defense should apply only in those situations where the attorney exercises his best judgment believing that his decision is in the best interest of his client. * * * ”

State v. Baker, 539 S.W.2d 367, 375 (Tex.Civ.App., Austin 1976, writ ref’d n. r. e.). The acts involved here are not in the ambit of advice to a client, or reaching a legal conclusion, or making a judgment call.

DR 9-102 recognizes that an attorney will be entrusted with the clients’ moneys in the course of handling his affairs. It guards against the dangers of commingling; the probability in some cases, the possibility in many cases, and the danger in all cases that such commingling will result in loss of the clients’ funds. It is not unconstitutional for being vague and indefinite. It calls for a reasonable manner of handling the clients’ funds; it is a simple directive as to the manner of handling, rather than a misappropriation, which is another matter; it avoids the appearance of impropriety, and assures that there will be no loss of the clients’ funds despite “good intentions.” To comply with it, all that is required is good office management.

The Appellant has numerous points of error relating to discovery and admissibility of certain of his bank records. Some of these points of error, and much of the argument, go to an order granting discovery, dated June 30, 1975. There is in the record an order of the Court rescinding that order of June 30,1975, so that any points of error or argument as to it are without merit.

We are of the opinion that the Defendant is in no position to complain of the discovery allowed by the Court, as same was done by agreement of all parties and the Court. The agreement is not reduced to writing, but occurred in an open exchange between counsel and the judge at two pre-trial hearings, one on July 16,1975, and the other on July 9, 1975. There is no transcript of the July 16th hearing, but there is a full transcript of the July 9th pre-trial hearing, and it is clear from that record that the parties agreed. The nearest thing to a summary of the agreement is where the Court said at the second pre-trial hearing:

“THE COURT: That’s the reason by agreement we had this thing done, Mr. Ramsey; it was agreed that the deposit slips made on each of these matters would be submitted to the court, and the checks written on that bank account into which the deposits were made for— checks written for thirty days would be submitted to the Court, and the Court would determine the relevancy of these matters submitted to the Court.”

There can be no doubt that the Defendant agreed to the discovery of the bank records. They were furnished to the Court for in camera inspection. The Court did inspect them and found that they were admissible. Discovery and admissibility are two different things, and discovery was done by agreement here. The fact of the agreement for discovery is also set out in some of Defendant’s pleadings. For instance, his motion for protective orders, dated July 29, 1975, recites that at the pre-trial conference of July 16, 1975, Defendant agreed to furnish for in camera inspection all withdrawals for thirty days after each settlement check had been deposited, and it recited that he was sending such checks to the Court under separate cover. Other pleadings of the Defendant refer to the agreement. As said in Phagan v. State:

“ ‘ . . .a party need not allege or prove facts that are pleaded and admitted by his adversary . . . ” ’ ”

510 S.W.2d 655, 661 (Tex.Civ.App., Fort Worth 1974, writ ref’d n. r. e.). However, the Defendant did decide to test the discovery matter and took it to the Supreme Court, which Court denied mandamus. Timewise, it was agreed that the bank records which the Court had in its possession for in camera inspection would be delivered to counsel for Plaintiff on August 20,1975, if by that time the Defendant had no relief from the Supreme Court on its mandamus action. As noted earlier, discovery and admissibility are two different things. The points of error relating to admissibility are not briefed in this Court and are therefore waived.

Appellant assigns error in the Court’s failing to grant its first formal motion for continuance. We overrule this contention on the basis that it was not an abuse of discretion on the part of the trial Court to refuse a continuance. Appellant readily concedes that the granting or withholding of a continuance is a matter addressed to the discretion of the trial Court. The trial date of September 2nd was arrived at at the pre-trial conference of July 9, 1975. The case had previously been set for August 18th, and Defendant sought additional time in order to seek the mandamus in the Supreme Court. The trial Court denied any additional time for that reason, but did call on the parties to agree as to the date of trial. In an exchange between Court and counsel, the date of September 2nd was then arrived at; in view of the fact that the Grievance Committee was having another meeting on August 13th, the trial Court granted the Defendant’s motions requiring the Committee to include in any amended pleadings all known complaints and limiting such pleadings to only those complaints known then to the Grievance Committee. It was determined at that time when the Plaintiff’s amended pleadings would be filed and the date which the Defendant would respond to them. Those deadlines were met and it allowed ample time for preparation. It should be noted that Section 26 of the Code of Professional Responsibility permits amendment by permission of the Court at any time prior to conclusion of the trial. We conclude that there was no abuse of discretion in denying the motion for continuance.

Special Issue No. 4 inquired:

“Do you find from a preponderance of the evidence that on or about February 17, 1975, A. R. Archer, Jr. attempted to have Marcella Martinez sign an affidavit which included the following statement:
“ ‘And, therefore, I would not let Mr. Archer withhold any of the hospital and medical expenses of Dr. Mario Pa-lafox from the settlement, and these funds in the amount of $1,464.55 were not deducted from my settlement.’ ”

To which the jury answered “He did.” The jury then answered by Special Issue No. 5 that the affidavit containing that statement would have been false if signed, and by Special Issue No. 6, found that he knew the affidavit would have been false. Appellant attacks the finding of Special Issue No. 6 on the basis that there was no evidence, or in the alternative insufficient evidence, to support the jury’s finding. We view the issue as being unnecessary to support the Court’s judgment of professional misconduct; that is supported by Special Issues Nos. 4 and 5 in that he did attempt to have Marcella Martinez sign an affidavit which would have been false. In the case of Smith v. State, 523 S.W.2d 1 (Tex.Civ.App., Corpus Christi 1975, writ ref’d n. r. e.), it was held that an attorney’s advice to a client that he should misstate a particular fact constitutes professional misconduct, and is grounds for disciplinary action, regardless of whether such action is an offense under the Penal Code. Special Issue No. 6 is immaterial as noted because 4 and 5 set up the offense, and 6 is in effect an excuse issue; by it, the Defendant in effect is saying even though it happened, I am excused for the reason that I didn’t know it. In any event, we overrule the points of error that there is no evidence or insufficient evidence to support the finding to Special Issue No. 6. In reaching those decisions, we have used the familiar rules that in deciding a no evidence point, an appellate Court must consider only the evidence and the inferences tending to support the finding, and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). In deciding an insufficient evidence point, the appellate Court is required to consider all of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Appellant assigns error that the Court, in its judgment, characterized the conduct of the Defendant as being one of “attempted perjury.” We see no error in this, in that the Court’s judgment specifically says: “Such Judgment of suspension from practice is based upon the jury’s verdict to Special Issue No. 1 and its answers to Special Issues No. 4, 5 and 6.” In this connection, it is the Appellant’s argument that “attempted perjury” is not a crime under the new criminal code. As already noted, the conduct found by the jury is professional misconduct, and the Code provides that professional misconduct results from a violation, though such violation may not be a violation of the Penal Code. This is also the holding in State v. Baker, supra, and Galindo v. State, 535 S.W.2d 923 (Tex.Civ.App., Corpus Christi 1976, no writ). It was there held that Grievance Committee proceedings are not governed by the criminal standards.

Appellant contends that the Court’s act of disregarding the jury’s answer to Special Issue No. 1(a) violated his right of trial by jury as provided in the Code. The provision of the Code is that the accused attorney shall have the right of a trial by jury in the county of his residence. It cannot be given the construction that Appellant places on it, for the Code also says that the Rules of Civil Procedure shall govern, and, under those rules, the Court can disregard an issue. Appellant’s contention has been decided otherwise in the case of State v. Baker, supra. It was there held that the trial Court erred in not granting the State’s motion for judgment non ob-stante veredicto.

All points of error have been considered, and all are overruled. The judgment of the trial Court is affirmed.


author: OSBORN, Justice.

text:
    Buck BARCHEERS, Appellant, v. Cliff BRASWELL, d/b/a Cliff Braswell Company, Appellee.
    No. 6568.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 9, 1977.

      Lynch, Chappell, Allday & Aldridge, D. Bruce Pope, James M. Alsup, Midland, for appellant.
    Gary L. Watkins, Odessa, for appellee.
   OPINION

OSBORN, Justice.

This is an appeal from a judgment in a jury-tried ease where the Appellee recovered $1,538.11 for services rendered and labor performed in hauling pipe, and an additional $500.00 in attorney’s fees. We affirm.

Appellee filed suit on a sworn account for hauling 25,000 feet of 4½" casing from Midland to Wolfforth. Appellant filed a sworn denial. The principal issue in the case, upon which there was conflicting testimony from each side, was as to whether the pipe was hauled at the request of the Appellant. The jury found in Special Issue No. 1 that Mr. Barcheers ordered Mr. Braswell to haul the pipe from Midland to Wolfforth. In the only other issue submitted to them, the jury found a reasonable attorney’s fee for services rendered in the prosecution of this suit.

Appellant urges that the judgment is erroneous because the jury made no finding as to the reasonable charges for hauling the pipe, and that there is no finding to support an award of damages. Although no issue was submitted to the jury as to the reasonable charges for the services rendered and labor performed, the trial Court, in its judgment, awarded Appellee the full amount of its sworn account. Ap-pellee urges that since the proof established that the charges are set by the Railroad Commission, and since these charges had been approved by the Commission, the amount was established as a matter of law and there was no fact issue for a jury determination. We do not agree. The burden was upon Appellee to prove the justness of its account. Having established that the services rendered and labor performed were at the request or direction of the Appellant, the Appellee could establish the justness of its account by proving either that the charges were based upon an agreement between the parties, or, in the absence of an agreement, that the charges were usual, customary, or reasonable. Opryshek v. McKesson & Robbins, Inc., 367 S.W.2d 357 (Tex.Civ.App.—Dallas 1963, no writ); Parker v. Center Grocery Company, 387 S.W.2d 903 (Tex.Civ.App.—Tyler 1965, no writ); Marr v. Craddock, 406 S.W.2d 278 (Tex.Civ.App.—Tyler 1966, no writ); Brooks v. Eaton Yale and Towne, Inc., 474 , S.W.2d 321 (Tex.Civ.App.—Waco 1971, no writ).

Mr. Braswell identified the exhibit which contained the account, and it was received in evidence. He also identified the weight tickets which established the weight of the load hauled, and these tickets were received in evidence. He said the rates were set by the Railroad Commission. He also testified that the charges on the exhibit reflecting the account were reasonable, normal, and necessary charges. Such evidence raised a fact issue as to the justness of the account and the value of the hauling charges.

The finding in Special Issue No. 1 established liability upon the part of the Appellant to pay for services he had ordered Appellee to perform. Under Rule 279, Tex.R.Civ.P., where a ground of recovery consists of more than one issue, and one issue is answered by the jury and another is omitted without request or objection, such omitted issue shall be deemed as found by the Court in such manner as to support the judgment. Grand Leader Dry Goods Company v. Caveness, 424 S.W.2d 270 (Tex.Civ.App.—Houston [14th Dist.] 1968, no writ); Masterson, Preparation and Submission of Special Issues in Texas, 6 Sw.L.J. 163 at 184 (1952). Certainly, the damage issue is a part of the ground of recovery and one of the issues upon which an implied finding may be made, where other issues of liability are established by a jury finding. Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79 (1940); G. Hodges, Special Issue Submission in Texas, Secs. 79 and 81 (1959).

Obviously, the damage issue was a part of Appellee’s case. In order to obtain a jury finding on that issue, it was incumbent upon Appellee to request a proper issue as to the reasonable value of the services rendered and labor performed. In the absence of such a request, it was incumbent upon Appellant to object to the Court's charge for failure to include such an issue. Lyles v. Texas Employers’ Insurance Association, 405 S.W.2d 725 (Tex.Civ.App.—Waco 1966, writ ref’d n. r. e.); Petroleum Anchor Equipment, Inc. v. Tyra, 419 S.W.2d 829 (Tex.1967). The Appellee having not requested the issue, and Appellant having not objected to the failure to submit the issue, both parties in effect agreed to submit that phase of the case to the Court rather than the jury for a determination, and by reason of the judgment entered, under Rule 279 there is an implied finding for the Appellee on the omitted jury issue as to the reasonable value of the services rendered and labor performed. Strauss v. LaMark, 366 S.W.2d 555 (Tex.1963); Sinclair Refining Company v. Winder, 340 S.W.2d 503 (Tex.Civ.App.—Waco 1960, writ ref’d); 6 Sw.L.J. 163, 164. Points of Error Nos. 3 through 6 are overruled.

By his first two points of error, Appellant contends that the trial Court erred in submitting an issue on attorney’s fees and in entering judgment for such fees. He relies primarily on cases decided prior to the 1971 amendment to Article 2226, Tex.Rev.Civ. Stat.Ann. The statute now provides that any person having a valid claim “for services rendered, labor done, * * * or suits founded upon a sworn account” may recover a reasonable amount as attorney’s fees.

On several occasions, the Supreme Court of Texas has held that that part of Article 2226 which permits the recovery of attorney’s fees for “suits founded upon a sworn account or accounts” means the account must be one in which there is a sale upon one side and a purchase upon the other whereby title to personal property passes from one to the other. Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75 (1958); Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex.1962); Tenneco Oil Company v. Padre Drilling Company, 453 S.W.2d 814 (Tex.1970). The net effect of those decisions is that -the words “suits founded upon a sworn account or accounts” as used in Article 2226 mean a suit for goods, wares and merchandise. Thus, the Appellee in this case cannot recover attorney’s fees under Article 2226 insofar as this is a suit founded upon a sworn account.

Prior to the 1971 amendment of Article 2226, attorney’s fees for services rendered had to be for the personal services rendered by the claimant. Tenneco Oil Company v. Padre Drilling Company, supra. Since the amendment, it is no longer required that the services be rendered personally by the claimant. Caston v. Texas Power & Light Co., 501 S.W.2d 472 (Tex.Civ.App.—Texarkana 1973, no writ). Having concluded that the judgment for Appellee for services rendered and labor performed should be affirmed, we conclude that he is also entitled to recover his reasonable attorney’s fees. The evidence is undisputed that the account was presented and payment refused. There being no dispute as to the service having been rendered, and the jury having found that it was ordered performed by the Appellant, he is liable for attorney’s fees under Article 2226. Points of Error Nos. 1 and 2 are overruled.

The judgment of the trial Court is affirmed.


author: COLEMAN, Chief Justice.

text:
    ALLIED CHEMICAL CORPORATION, Appellant, v. Edward F. KOONCE et ux, Appellees.
    No. 16825.
    Court of Civil Appeals of Texas, Houston (First Dist.).
    Feb. 10, 1977.
    Rehearing Denied March 10, 1977.
    Eikenburg & Stiles, Stephen S. Mims, Houston, for appellant.
    Hanks & Winchester, Stephen W. Hanks, Houston, for appellees.
   COLEMAN, Chief Justice.

This is an appeal from a judgment sustaining a special exception on the ground that the plaintiff’s claim was barred by the statute of limitation and ordering the case dismissed. We affirm.

Allied Chemical Corporation, hereinafter called Allied, sued Edward F. Koonee and his wife Juanita M. Koonee for the balance due on a promissory note dated February 4, 1970, and payable on demand to Trust Company National Bank of Morristown, New Jersey. A copy of the note is attached to the plaintiff’s petition and it reflects that on February 6, 1976, American National Bank & Trust assigned the note to Allied. This suit was filed on June 15, 1976.

The defendants filed an answer which included a special exception to the effect that the plaintiff’s petition showed on its face that the claim was barred by the four year statute of limitation applicable to debts founded upon contracts in writing, Article 5527, Revised Civil Statutes.

Allied then filed a supplemental petition which, aside from formal averments, reads:

“Now comes, ALLIED CHEMICAL CORPORATION, Plaintiff in the above styled and numbered cause, and by way of supplement to its original petition heretofore filed, would respectfully show unto this Honorable Court as follows:
V.
“Pleading further, should it be required, Plaintiff would show that by the various correspondence to Plaintiff by the Defendant, true and correct copies of same being hereto attached and incorporated by reference as Exhibit ‘b’, the Defendant has waived the applicable statutes of limitation to the obligation made the subject of this suit, or, in the alternative, by virtue of such correspondence, the Defendant is estopped from setting up limitations as a bar to these proceedings.
“WHEREFORE, PREMISES CONSIDERED, Plaintiff incorporates by reference the allegations and prayers of its original petition heretofore filed.”

Copies of the correspondence relied on were attached to the supplemental petition. In addition Allied filed what is termed “Reply in Opposition to Defendants’ Special Exceptions to Plaintiff’s Original Petition.” This reply merely states that by virtue of the defendants’ correspondence to plaintiff, the defendant has waived the applicable statute of limitations or, in the alternative, the defendant is estopped from setting up limitations as a bar to these proceedings.

The letters were directed to Mr. John D. Warman or Worman, Union Texas Petroleum Division, Allied Chemical Corporation. The writings acknowledge the existence of a debt and promise to pay same. One letter was addressed to “TEXGAS”, attention: Mr. John D. Warman. This letter was dated December 7, 1975. None of the letters was directed to Trust Company National Bank, the payee in the note sued on, or to American National Bank & Trust, who assigned the note to Allied Chemical Corporation.

It appears on the face of the petition that the suit on the note is barred by Article 5527, supra, the four year statute of limitation for debts founded on a contract in writing. The plaintiff contends that by reason of the supplemental petition and the correspondence attached thereto as exhibits issues of waiver and estoppel are raised, and further points to the fact that no exception was levied at the supplemental petition. In this connection plaintiff relies on Article 5539, Revised Civil Statutes, providing:

“When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party to be charged thereby.”

It has long been the rule that by reason of Article 5539, supra, where a debt- or acknowledges in writing the justness of the creditor’s claim based on the debt which has been barred by limitation, the creditor may bring suit on the new promise to pay evidenced by, or implied from, the written acknowledgment. The new promise constitutes the creditor’s cause of action and he must declare on it in order to avoid a plea of limitations. Hanley v. Oil Capital Broadcasting Association, 141 Tex. 243, 171 S.W.2d 864 (1943); Siegel v. McGavock Drilling Company, 530 S.W.2d 894 (Tex.Civ.App.—Amarillo 1975, writ ref’d n.r.e.).

Article 5539, supra, does not operate to suspend limitation or to revive the original agreement; its office is to support an action on the promise to pay that is stated in or implied by the debtor’s written acknowledgment of the justness of the creditor’s claim which is independent of the barred debt, which is consideration for the new promise. Such a written acknowledgment will not support a cause of action on the old debt based on waiver of the statute of limitation or estoppel from asserting it. Siegel v. McGavock Drilling Company, supra.

In order to rely upon a subsequent promise to pay a barred debt, it has been held that the plaintiff must allege that promise in “plain and emphatic terms” as the basis of his cause of action. White v. Stewart, 19 S.W.2d 795 (Tex.Civ.App.—Dallas 1929, writ ref’d).

Pleadings substantially similar to those filed by the plaintiff in this suit have been held sufficient to support a judgment where defects in the pleading were not specifically pointed out by motion or exception in the trial court. Hanley v. Oil Capital Broadcasting Association, supra; Appell Petroleum Corporation v. Moreman Tire Co., 416 S.W.2d 470 (Tex.Civ.App.—Eastland 1967, no writ history); Payne v. Miller, 229 S.W.2d 857 (Tex.Civ.App.—San Antonio 1950, writ ref’d).

In Payne v. Miller, supra, the court stated:

“ . . . appellant in this case presents no exceptions to appellee’s petition because of its failure to rely for recovery upon the new promise, and in view of the provisions of Rules 47 and 90, Texas Rules of Civil Procedure, appellant is not in a position to now question the sufficiency of appellee’s petition.”

Allied did not declare on the new promise expressed in and implied from the acknowledgment of the justness of the debt found in the writings attached as exhibits to the supplemental petition. There is no allegation that Allied was the owner of the debt at the time the exhibits were written, nor that Allied was a representative of the creditor at that time. An acknowledgment to be sufficient as an implied promise to pay a barred debt must be made to or for the benefit of the party to whom the debt is due. City of Houston v. Jankowskie, 76 Tex. 368, 13 S.W. 269 (1890); McDonald v. Ayres, 269 S.W. 1105 (Tex.Civ.App.—Galveston 1925, no writ history).

The trial court did not err in sustaining the special exception to the plaintiff’s petition. The petition shows on its face that it is barred by the four year statute of limitation. Siegel v. McGavock Drilling Company, supra; Fortney v. Olivetti Underwood Corp., 398 S.W.2d 178 (Tex.Civ.App.—Houston 1966, no writ history).

The record does not reflect whether plaintiff was given an opportunity to amend his petition prior to the entry of the judgment dismissing the cause. Where a party is denied the right to amend and such fact is not reflected in the record, a motion for new trial is required to preserve such error. Ainesworth v. Homes of St. Mark, 530 S.W.2d 877 (Tex.Civ.App.—Houston [1st] 1975, no writ history); Harmon v. City of Dallas, 229 S.W.2d 825 (Tex.Civ.App.—Dallas 1950, writ ref’d n.r.e.).

The judgment is affirmed.


author: MOORE, Justice.

text:
    John PETERSON et al., Appellants, v. Paul PETERSON, Administrator of Estate of Pearl Peterson, Deceased, Appellee.
    No. 962.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 10, 1977.
    C. A. Keeling, Badders & Keeling, Nacog-doches, for appellants.
    Tom Henson, Ramey, Flock, Hutchins, Grainger & Jeffus, Tyler, Clifton L. Holmes, Mart J. Lapin, Lapin & Lapin, Kil-gore, for appellee.
   MOORE, Justice.

This is an appeal from an order of the Probate Court of Rusk County, Texas, ordering a distribution of assets of the estate of Pearl Peterson, deceased. Appellee, Paul Peterson, acting as the administrator of the Estate of Pearl Peterson, filed a final accounting in the Probate Court and sought an order distributing the assets of the estate. Appellants, John Peterson, Alma Beck, Georgia Addington, William D. Peterson, III and Barbara Paradowski, the heirs of W. D. Peterson, deceased, by a marriage prior to his marriage to Pearl Peterson, contested the application and sought an order granting them an interest in certain funds which the administrator alleged were owned by the estate of Pearl Peterson. The cause was submitted to the trial court upon an agreed stipulation of facts. From the order distributing the estate to the heirs of Pearl Peterson and denying appellants any interest in the funds in question, appellants perfected this appeal.

We affirm.

Before he married Pearl, W. D. Peterson had been married to Sue Gunn and they had four children. Pearl also had children from a previous marriage at the time of her marriage to W. D. Thereafter, children were born to W. D. and Pearl. At the time of W. D. Peterson’s death testate on July 7, 1964, he and Pearl maintained their homestead on a 97-acre tract of land from which oil and gas were being produced. Although the land was owned by W. D. as his separate property, Pearl continued to occupy it under her homestead claim after his death. Under the terms of his will, Pearl Peterson received, among other property, a ¼⅛ royalty interest in the oil and gas produced from the 97-acre tract. The remaining ¾⅛ royalty interest was willed to his children from both of his marriages.

At the time of the death of W. D. Peterson, Pearl was of advanced age and it became necessary for the children to take care of her affairs. As a result, the children of W. D. Peterson by his previous marriage and the children born of his marriage to Pearl entered into a written agreement wherein they agreed as follows:

“All of the proceeds of said ⅜ of ⅛ royalty interest owned by W. D. Peterson at the time of his death in said 97 acre tract, more or less, shall be collected by John Peterson as Executor of the Estate of said W. D. Peterson, Deceased, and as and when collected ¼ of said proceeds shall be paid over to Mary Lucy Benning-field as Guardian of the Estate of Mrs. Pearl ¡¡Peterson. The other ¾ interest shall be deposited in a savings account with Kilgore Federal Savings and Loan Association, Kilgore, Texas, or some other savings and loan association or bank, as may be agreed upon by and between John Peterson and Mary Lucy Benning-field, subject to withdrawal on the joint signature of said Mary Lucy Benningfield and John Peterson. Said proceeds shall be left intact in said savings account or accounts until the death of said Mrs. Pearl Peterson, unless it becomes necessary to withdraw all or a part thereof for the maintenance of said Mrs. Pearl Peterson.
“The said Mary Lucy Benningfield, as Guardian, shall be entitled to withdraw from said savings account from time to time such amounts as may be necessary in her opinion for the proper and reasonable maintenance of said Mrs. Pearl Peterson.”

Thereafter, Pearl Peterson died intestate. At the time of her death the sum of $7,844.14 was on deposit in Kilgore First National Bank of Kilgore, Texas, under her name. Additionally, she had the sum of $22,447.50 on deposit with the Kilgore Federal Savings and Loan Association, Kilgore, Texas.

By a single point of error, appellants, the heirs of W. D. Peterson by his first marriage, contend that the court erred in refusing to grant them their interest in the funds in accordance with their contractual agreement with the children of Pearl and W. D. Peterson. In reply, the appellee-ad-ministrator takes the position that the agreement was invalid and conferred no right on appellants to any portion of the funds. We sustain the administrator’s contention.

The claim asserted by appellants rests upon the assumption that the agreement assigning and conveying them an interest in the funds is valid and binding. Contrary to their contention, the record reveals that the validity of the agreement was adjudicated and found to be invalid in Cause No. 70-296, styled PAUL PETERSON, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF PEARL PETERSON, DECEASED VS. JOHN PETERSON, ET AL, in the Fourth Judicial District Court of Rusk County, Texas. While the judgment in that case recited that the appellants were properly before the court, the pleading in the case does not appear in the record before us. It appears from the judgment, however, that the suit was brought for the purpose of construing the will of W. D. Peterson as well as to determine the validity of the same written agreement on which the appellants rely in the present case. The judgment in that case was rendered on September 12, 1975. No appeal was taken and, therefore, the judgment became final. The judgment provided, in part, that the written agreement was “invalid and unenforceable insofar as the administration of the estate of Pearl Peterson, deceased, is concerned,” and “the parties to such agreement shall be required to establish the basis of any claim they might have against the estate in accordance with the laws of intestate succession and any other applicable law . ” (Emphasis added.) The judgment further provided that the funds then on deposit in the bank account and savings and loan account were deemed to be the assets of the estate of Pearl Peterson, deceased.

The appellants are not and do not claim to be related to the decedent, Pearl Peterson. Therefore, the sole and only claim that they could have on funds rests on a contractual agreement which a court of competent jurisdiction has found to be invalid and unenforceable.

It is elementary that if in a former suit an issue which goes to the foundation and existence of a cause of action has been previously litigated, such issue cannot be again litigated in a later suit, regardless of the form it may take. In such situations estoppel by judgment applies and a party will be estopped to relitigate an issue which previously has been litigated and determined by a court of competent jurisdiction in a former suit between the same parties. Houston Terminal Land Co. v. Westergreen, 119 Tex. 204, 27 S.W.2d 526 (1930); Womble v. Adkins, 160 Tex. 363, 331 S.W.2d 294 (1960); 34 Tex.Jur.2d Judgments sec. 450, p. 487; McDonald, Texas Civil Practice, sec. 7.43. Since the validity of the agreement relied on by appellants has been previously litigated and found to be invalid, appellants are estopped to rely on the agreement as a basis for a cause of action. It follows that the Probate Court properly denied their claim.

The judgment of the trial court is affirmed.


text:
    The MILLERS MUTUAL FIRE INSURANCE CO. of Texas, Appellant, v. ALAMO EXPRESS, INC., Appellee.
    No. 16810.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 17, 1977.
    Rehearing Denied March 17, 1977.

      Talbert, Giessel & Stone, Alice Giessel, Houston, for appellant.
    Quinnan H. Hodges, Michael W. Melton, Houston, for appellee.
   COLEMAN, Chief Justice.

The defendant Insurance Company appeals from an adverse judgment in a suit on an insurance policy brought by its insured to collect the money it was forced to pay to a third party in satisfaction of a default judgment. The case was tried to the court without a jury. Findings of fact and conclusions of law were filed.

On June 26, 1968, a vehicle owned by Alamo was involved in a collision with a vehicle owned by a third party, who was injured in- the collision. At the time of the accident Alamo had an automobile liability insurance policy issued by Millers Mutual. The policy contained the standard provision requiring the insured to forward to the company immediately “every demand, notice, summons, or other process received by him or his representatives.”

The suit was filed in Harris County, the county in which the collision occurred. Alamo was served with citation on April 11, 1969, in Bexar County, Texas, and forwarded this citation to the Millers Mutual office in San Antonio, Texas, by mail on October 28, 1969. Millers Mutual’s San Antonio office received the citation on October 29, 1969.

On the same date, Millers Mutual took a non-waiver agreement from Alamo because of the late delivery of citation and then forwarded the citation to their Houston office, where it was received on October 31, 1969, a Friday. On Monday, November 3, 1969, Millers Mutual telephoned an attorney and requested that the suit be answered under the non-waiver agreement. An answer was prepared the same day and forwarded by mail to the district clerk of Harris County. This answer was received and filed on Tuesday, November 4, 1969.

The District Court of Harris County granted a default judgment against Alamo on November 3, 1969. Millers first learned of the default judgment on January 6, 1970, when a court cost bill was received by the attorney which it had employed to defend Alamo.

On or about January 27, 1970, Millers Mutual by letter notified Alamo that a default judgment had been taken against it. In the letter Millers also called Alamo’s attention to the fact that the citation was delivered to them on October 28, although the answer was due to have been filed on May 5, 1969. The letter quoted the provision of the insurance policy requiring that the citation be forwarded to it immediately, and reminded Alamo that a non-waiver agreement reserving Millers Mutual’s rights under the contract had been signed. The letter then stated: “We have now determined that there was a policy violation by your delay in forwarding the suit papers to us and we are hereby notifying you that we are declining coverage and/or payment of this judgment and other costs rendered in connection therewith.

“It is our recommendation that you employ an attorney of your choice to protect your interests since henceforth our attorney will withdraw his activity from this lawsuit.”

Alamo Express thereafter paid the sum of $11,140.94 in satisfaction of the default judgment.

The trial court found as a fact that following the receipt by Millers Mutual of the petition and citation and after obtaining the non-waiver agreement it took complete charge of the lawsuit and retained exclusive control of said litigation from the date of its receipt until on or about January 27, 1970.

The trial court found that the defendant, Millers Mutual, was estopped from asserting the contractual provisions of the policy of insurance and of the non-waiver agreement by reason of their acts and omissions undertaken and omitted following their receipt from Alamo Express of the citation in that it “by [. . .] acts and omissions undertook the defense of said suit and, thereafter, negligently failed to protect plaintiff (its insured) and failed to notify plaintiff of its rights, only after default judgment in said suit had been taken and had become final, to the detriment of plaintiff, and damages to plaintiff in the amount of $11,140.94.”

As one of its conclusions of law the trial court stated: “Defendant herein failed to represent the interests of plaintiff after it undertook to do so; they did not notify plaintiff that it would not protect plaintiff against judgment (in Kosclskey suit) until it was too late for plaintiff to protect itself; and defendant, by its silence (and by its acts and omissions), is estopped, as a matter of law, from denying liability due to improper notification . . .”

The trial court also concluded, as a matter of law, that after the insurance company received the citation from the plaintiff, and having failed to exercise ordinary care to protect its insured, through its acts and omissions prejudiced the rights of their insured and, by its conduct, waived its part of the non-waiver agreement, and, by its conduct, both by act and omission, damaged plaintiff in the amount of $11,140.94, the amount plaintiff was required to pay on the judgment in the Kosclskey suit, for which defendant is liable to plaintiff.

The record reflects that prior to the date on which Millers Mutual denied liability under the insurance policy, the attorney employed by Millers Mutual to defend the Kosclskey suit filed a motion for a new trial on January 8, 1970, and that this motion was set down for hearing on January 19, 1970, and on that date was overruled.

It was stipulated that the delay of Alamo in forwarding the citation was due to “inadvertence.”

The policy provision requiring the immediate forwarding of suit papers has been held a condition precedent to liability on the insurance contract. The failure of the insured to comply with the condition will relieve the company of liability under the policy unless the company has waived compliance or is estopped from asserting noncompliance. Members Mutual Insurance Company v. Cutaia, 476 S.W.2d 278 (Tex.1972); Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233 (1956).

The undisputed facts in this case establish, as a matter of law, a failure to give notice as soon as practicable. However, the trial court has filed findings of fact that the insurance company was negligent in protecting the interests of its insured in the Kosclskey suit after it undertook the defense of said suit. The court found that by reason of this negligence and by reason of the insurance company’s failure to deny liability under the policy until it was too late for the plaintiff to protect itself, the defendant is estopped from asserting the contractual provisions of the policy of insurance and the non-waiver agreement as a defense to the cause of action asserted against it by Alamo Express.

Millers Mutual asserts that there is an insufficient factual basis in the record for these findings of fact by the trial court. Since at the time the citation was delivered to the insurance company the answer was long past due, reasonable minds might differ as to whether the insurance company was negligent in failing to file an answer to the suit before the trial court granted a default judgment.

Under the terms of the insurance policy the company had the “right and duty” to defend any suit brought against its insured seeking damages on account of bodily injury until such time as the company should deny liability under the policy. The company would be responsible for the actions of the attorney selected by it to defend the suit. The evidence that on January 6, 1970, the insurance company first learned that a default judgment had been granted in the Kosclskey suit, considered with the evidence that the docket sheet in the case reflects a setting for November 17,1969, as well as an entry showing that default judgment had been granted on November 3, 1969, and entered in the minutes on November 12, 1969, supports a finding that the insurance company was negligent in failing to learn of the entry of the default judgment in time to file a motion for new trial and in failing to notify the plaintiff of the existence of the default judgment prior to the date on which it became final.

A definition of equitable estoppel is quoted in Farmer v. Thompson, 289 S.W.2d 351 (Tex.Civ.App., Fort Worth 1956, writ ref’d n. r. e.), taken from Pomeroy’s Equity Jurisprudence, Vol. 3, p. 189, § 804, reading:

“ ‘Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract, or of remedy.’ ”
“The doctrine of estoppel is based upon the grounds of public policy, fair dealing, good faith, and justice, and its purpose is to forbid one to speak against his own act, representations, or commitments to the injury of one to whom they were directed and who reasonably relied thereon. The doctrine of estoppel springs from equitable principles, and the equities in the case. It is designed to aid the law in the administration of justice where without its aid injustice might result

After Millers Mutual had elected to undertake the defense of Alamo in the Koscls-key suit it was under a duty to defend the rights of Alamo in said suit in a non-negligent manner. Millers Mutual and the attorney which it employed, by reason of Millers Mutual’s policy right to defend the suit against its insured, had complete control of the case, and Alamo, of necessity, relied on Millers Mutual to protect its rights in a non-negligent manner. The trial court has determined that Millers Mutual’s negligent failure to file a timely answer, and negligent failure to learn of the granting of the default judgment prior to the time the judgment became final, resulted in prejudice to the rights of Alamo Express, and that it would be inequitable to permit Millers Mutual to assert its policy defense. The trial court did not err in reaching this conclusion.

Millers Mutual contends that its actions in electing to defend and defending the suit against its insured cannot result in a waiver of its policy defense or in an estoppel to assert its policy right to deny coverage because of the non-waiver agreement entered into with its insured. This agreement provided that any action taken by the insurance company in investigating the cause or loss and all facts pertaining thereto or in “electing to defend any suit or suits growing out of said occurrence, or participation therein or withdrawal therefrom . . . shall not waive or invalidate any of the terms or conditions of any policy or. policies and shall not waive or invalidate any rights whatever of either party to this agreement.” The agreement, however, does not in any manner speak to the effect of negligence in the conduct of the defense it had elected to assume. Non-waiver agreements are strictly construed against the insurer and will not be extended by implication beyond their exact terms. Employers’ Casualty Company v. Tilley, 496 S.W.2d 552 (Tex.1973). Acts not coming within the plain import of the non-waiver agreement may operate as a waiver. Springfield Fire & Marine Ins. Co. v. Hassen, 53 S.W.2d 1031 (Tex.Civ.App., Eastland 1932, no writ history).

The trial court found both waiver and estoppel against the insurer. We find no evidence that the insurer voluntarily relinquished a known right. In Homesteaders’ Life Association v. Holden, 288 S.W. 242 (Tex.Civ.App., El Paso 1926, writ ref’d), the court said:

“. . . There is a distinction between waiver and estoppel but the dividing line between waiver implied from conduct and estoppel is oftentimes shadowy, and in the law of insurance the terms are quite often used interchangeably; that which is often referred to as waiver is not a pure waiver, but is an application of the principles of estoppel

By accepting the late tender of the citation and by requiring the non-waiver agreement the insurer impliedly agreed to defend the suit against its insured until it gave notice of withdrawal to its insured. By filing its answer after the default judgment had been rendered, by failing to file a motion for new trial prior to the date on which the judgment became final, and by failing to appeal by way of a writ of error or by a bill of review, the insurer has failed to defend the action. The effect of the failure to defend after having elected to do so is not controlled by the non-waiver agreement. The insurer is estopped to assert the provision of the non-waiver agreement whereby it was agreed that undertaking to defend the suit would not constitute a waiver of the policy provision requiring the immediate forwarding of the process served on him. We must consider that the insurance company was under an obligation either to contest the suit against its insured or to settle the same. Since the insurer failed to either settle or defend this suit it is obliged to pay the judgment rendered. American Indemnity Company v. Fellbaum, 114 Tex. 127, 263 S.W. 908 (1924).

Alamo Express also plead a cause of action against Millers Mutual based on common law negligence. These findings of fact on the part of the trial court would sustain a judgment in favor of Alamo Express based on common law negligence. However, Millers Mutual contends that the evidence will not support a finding of damages in any amount which were proximately caused by such negligence. We agree. While there is evidence that Alamo Express was required to pay the sum of $11,140.94 in satisfaction of the judgment procured against it, this is not sufficient to establish the amount of damage proximately caused by the negligence of Millers Mutual. There is no evidence that Alamo Express had a good defense to the Kosclskey suit, or that it would have been able to show that Kosclskey had suffered a lesser amount of damage than that awarded by the trial court. See Rice v. Forestier, 415 S.W.2d 711 (Tex.Civ.App., San Antonio 1967, writ ref’d n. r. e.); Gibson v. Johnson, 414 S.W.2d 235 (Tex.Civ.App., Tyler 1967, writ ref’d n. r. e.), cert. denied, 390 U.S. 946, 88 S.Ct. 1032, 19 L.Ed.2d 1135; Jackson v. Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948 (Tex.Civ.App., Houston [1st] 1974, writ ref’d n. r. e.).

The judgment is affirmed.