author: YOUNG, Justice.

text:
    August M. DAMIOLINI, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA and Central Power and Light Company, Appellees.
    No. 1158.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 23, 1977.
    Rehearing Denied Aug. 31, 1977.

      Philip M. Westergren, Westergren & Westergren, Corpus Christi, for appellant.
    Ronald B. Brin, Maddin, White & Brin, George G. Brin, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appel-lees.
   OPINION

YOUNG, Justice.

Alleging a claim for compensation under a group disability insurance policy, August M. Damiolini filed suit against the Insurance Company of North America and Central Power and Light Company for the breach of the policy owned by CPL and issued by INA. Damiolini, as an employee of CPL, was a third party beneficiary.

The case proceeded to trial before a jury. After all parties had closed, the trial court granted CPL’s motion for instructed verdict. Then the trial court submitted the case against INA to the jury on special issues. Based upon answers to those special issues, which answers were unfavorable to Damiolini, the trial court rendered a take nothing judgment. Damiolini appeals from that judgment.

The appellant had been injured in an automobile accident on January 8, 1969, while he was employed by CPL as a tax accountant. Sometime thereafter, INA commenced disability benefits to appellant, but ceased such payments following June 1, 1971. Appellant contends that INA should have continued disability benefits after June 1 because he remained permanently disabled under the terms of the policy. He had returned to work with CPL on June 1 for a six month trial period, but he was terminated on September 21, 1971, because he was unable to perform the work required of him. Under the terms of the disability policy, coverage terminated thirty days thereafter; so October 21, 1971, was the last day for disability coverage to be afforded the appellant. In other words, since payment had already been made, the question of disability prior to June 1, was not a matter of controversy. Therefore the existence of disability only after June 1 was asked about the charge.

After the presentation of the evidence, the trial court submitted the case to the jury on special issues. The following are all the special issues submitted, together with the jury’s answers:

“QUESTION 1
Was Plaintiff, August M. Damiolini, disabled following June 1, 1971?
You are instructed that the term ‘disabled,’ if applicable up to April 1, 1972, means a state of being unable to perform the substantial and material duties of plaintiff’s occupation as a tax accountant and requiring the regular treatment of a qualified physician. You are further instructed that, if applicable after April 1, 1972, the term ‘disabled’ means a state of being unable to perform the substantial and material duties of any occupation for which August M. Damiolini is reasonably qualified by training, education, background, and experience.
Answer ‘Yes’ or ‘No’.
Answer: Yes
If you have answered Question 1 ‘Yes,’ then answer Question 2; otherwise, do not answer same.
QUESTION 2
On what date following June 1, 1971 did such disability, as defined above, first exist?
Answer day, month, and year.
Answer: 1 APRIL 1972
If you have answered Question 2, then answer Question 3; otherwise, do not answer same.
QUESTION 3
From the date found by you in answer to Question 2, has such disability continued without interruption until the present?
Answer ‘Yes’ or ‘No.’
Answer: Yes
If you have answered Question 3 ‘No,’ then answer Question 4; otherwise, do not answer same.
QUESTION 4
On what date did such disability end?
Answer day, month, and year.
Answer: (no answer!”

The significance in the charge of the date “April 1, 1972” is not made clear to us by either the record or the briefs. Nevertheless there are no complaints about the charge on appeal nor does the record reflect objections to the charge in the trial court.

Appellant has brought forward three points of error. In his first point, he contends that the trial court erred in not granting his motion (first amended) for new trial because the jury’s answer of “1 April, 1972” to special issue 2 is not supported by any evidence. This is a no evidence point. In that regard, we will be guided by the usual rule that we must view the evidence in a light most favorable in support of the jury finding and consider only the evidence and inferences which support the finding and reject the evidence and inferences contrary to the finding. Miller v. Riata Cadillac Company, 517 S.W.2d 773 (Tex.Sup.1975).

At this point an analysis of the trial court’s definition of “disabled” would be helpful. In fact there are two definitions in the charge. The first, for the period “up to” April 1, 1972, requires the inability to perform the substantial and material duties of the appellant’s occupation as a tax accountant and requires the regular treatment of a qualified physician during that period. The second, a less strict standard, for the period “after” April 1,1972, requires, only the inability to perform the substantial and material duties of any occupation for which the appellant is reasonably qualified by training, education, background, and experience.

About the evidence and the first definition, there is no evidence in the record that the appellant required the regular treatment of a qualified physician for the period following June 1, 1971, up to April 1, 1972. So the jury was correct, under the first definition, in not finding the appellant disabled during that period.

About the evidence and the second, and less strict, definition, there is evidence in the record supporting an answer of disability as there defined. Dr. Taylor, a psychiatrist, testified that appellant was schizophrenic and that his disability could have been triggered by the appellant’s automobile accident in 1969. Jack Hoel, an employee of CPL, testified that he had observed the appellant “staring into space” on several occasions during 1971. Appellant’s wife said that his mental condition steadily declined after he had hit his head in the automobile accident of 1969.

By this evidence the jury was entitled to infer that the appellant was suffering the second type of disability during 1971 (before the policy terminated) and that the disability continued until the time of trial in 1976. But because of the limiting date requirements in the charge about disability, the jury was precluded from fixing a date that fell prior to April 1, 1972, and that indicated the first existence of the second type of disability. We realize that there is a hiatus in the charge of one day (April 1, 1972) between “up to” April 1, 1972, in the first definition and “after” April 1, 1972, in the second definition. But the answer of “April 1, 1972,” if error, is harmless error because of the answer of “yes” to the next special issue (3) inquiring as follows:

“From the date found by you (April 1, 1972) . . ., has such disability continued without interruption until the present?”

Even so, whether the jury answered “April 1,1972”, or some date thereafter can be of no- aid to the appellant, because to prevail he needed an answer on the disability issue of some date before October 21, 1971, which was the date of termination of the policy upon which he had based his suit. Appellant’s first point is overruled.

In his second point, the appellant urges that the trial court erred in not granting his motion for new trial because the jury’s answer of “1 April, 1972” to special issue 2 is manifestly unjust and contrary to the greater weight and preponderance of all the credible testimony. As we interpret the appellant’s first amended motion for new trial, the only assignment of error germane to a sufficiency of the evidence ground is as follows:

“2) That the Court erred in granting judgment for Insurance Company of North America for the reason that the findings of the Jury with regard Special Issue Number Two are without foundation in the evidence and should therefore have been ignored by the Court.”

The foregoing assignment is a no evidence point. And we have already discussed and resolved appellant’s only no evidence point. Nowhere in the appellant’s motion for new trial was there contained an assignment or complaint that the jury’s finding in answer to special issue 2 was against the great weight and or preponderance of the evidence. In other words, there was no factual insufficiency point. On this appeal the appellant attempts to raise that point for the first time. To be effective on appeal, factual insufficiency of the evidence points must be raised in a motion for new trial. Samford v. Duff, 483 S.W.2d 517 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.); see Rules 374 and 418, T.R. C.P. Appellant’s second point is overruled.

In his final point, the appellant argues that the trial court erred in granting CPL’s motion for instructed verdict. If that action was error, it was harmless error under Rule 434, T.R.C.P. This is so because in our decision of appellant’s points 1 and 2 we have demonstrated that appellant has failed to establish any liability on the insur-anee policy in question. Without liability, whether CPL was in or out of the suit after the ruling on its motion for instructed verdict becomes immaterial.

Further, the appellant has not complied with Rule 418(e), T.R.C.P. in his brief submitted to us on his final point. Appellant’s third point, his final point, is overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: SPURLOCK, Justice.

license: Public Domain

text:
    Gerald R. HURST, Appellant, v. A.R.A. MANUFACTURING COMPANY, d/b/a Transtemp, Appellee.
    No. 17859.
    Court of Civil Appeals of Texas, Fort Worth.
    June 30, 1977.
    Rehearing Denied Sept. 8, 1977.

      John A. Thomas, Dallas, for appellant.
    Walker, Bishop & Larimore, John R. Lively, Port Worth, for appellee.
   OPINION

SPURLOCK, Justice.

This is an appeal from a summary judgment granted appellee in an action brought by appellant to declare a default judgment void. The subject of this appeal is in the nature of a collateral attack on the default judgment although filed in the same court.

We affirm.

Gerald R. Hurst brought an action against A.R.A. Manufacturing Company, doing business as Transtemp, and John R. Lively, A.R.A.⅛ attorney. In an earlier action in the same court A.R.A. had recovered a default judgment on theories of fraud and sworn account against Hurst and two corporations of which Hurst was president, Air Conditioning Distributors, Inc. and D.H.H., Inc. A.R.A. was awarded a default judgment of $38,042.32 plus $7,500.00 attorneys’ fees.

Hurst’s action sought to set aside the default judgment or to obtain damages for fraud. After alleging in detail the factual basis for the relief sought, Hurst’s original petition and application for bill of review alleged, in three counts, his alternative theories for relief:

Count One: The default judgment was void for the reason that it is wholly without evidence to support it;
Count Two: The default judgment was voidable on equitable grounds, which were then described; and Count Three: In the event the default judgment were not set aside, Hurst sought damages against the appellees for fraud perpetrated upon him.

The trial court granted A.R.A.’s and Lively’s motion for partial summary judgment under Count One, holding as a matter of law that the prior default judgment was not void. Hurst then moved to dismiss Counts Two and Three, which contained the remainder of his cause of action against A.R.A. and Lively, alleging that he desired the partial summary judgment thus to become final and appealable. The trial court granted the motion and made the partial summary judgment final.

Hurst’s only point of error is that the trial court erred in holding as a matter of law that the prior default judgment was not void.

Hurst’s attack on the default judgment cannot rest on a theory that the court lacked jurisdiction over his person, for he admitted in his brief that he was duly served and filed no answer. Nor is the amount in controversy a ground of attack; the amount shown on the face of the petition was within the jurisdiction of the trial court.

Hurst alleges that the trial court lacked the jurisdiction to render the default judgment for two reasons: (1) the court lacked subject matter jurisdiction to render a judgment for damages for fraud upon an unliquidated claim without hearing evidence as required by Tex.R.Civ.P. 243 and (2) the court lacked jurisdiction to award liquidated damages against Hurst individually because the pleadings do not attempt to state a cause of action against him on the open account and no evidence was introduced to support such a claim.

Having abandoned his bill of review in the trial court, Hurst’s remaining attack on the default judgment is collateral only and must be viewed in light of the following test:

It has been held that a judgment can not be set aside on collateral attack unless it affirmatively appears from the record in the action in which the judgment was rendered that the facts essential to jurisdiction do not in fact exist, and it is not sufficient that the record be silent or fail to show the existence of facts essential to jurisdiction, as the record in which the judgment was rendered must affirmatively show that the jurisdictional facts do not exist. Johnson v. Barnwell Production Company, 391 S.W.2d 776, 784 (Tex.Civ.App.—Texarkana 1965, writ ref’d n. r. e.), citing Hardy v. Beaty, 84 Tex. 562, 19 S.W. 778 (1892).

Hurst’s argument that no evidence was heard on the unliquidated damages claim is not affirmatively supported by the record in the original action, which includes only the original petition and judgment. In this collateral attack we may look no further than the record in the original action to determine whether that court lacked jurisdiction. In this instance, the default judgment is silent as to whether evidence was presented. Accordingly, we need not discuss the additional question whether the failure to hear evidence, had it been affirmatively shown by the original record, constituted a jurisdictional defect which would have rendered the default judgment void.

Hurst’s second argument, that the judgment is void because the pleadings in the original action do not attempt to state a cause of action against him on the sworn account, is equally without merit. Although a judgment which is not based on any pleadings is void, a default judgment based on pleadings “. . . which are merely lacking in allegations of fact sufficient to fully state a cause of action . . ” may not be collaterally attacked. Edwards Feed Mill v. Johnson, 158 Tex. 313, 311 S.W.2d 232, 233 (1958). A “. . . petition may be sufficient to prevent a judgment by default from being void; . if it states the nature of the cause of action determined by the judgment and is of a class over which the court has potential jurisdiction . . ..” Edwards Feed Mill, supra. The weight of authority is that a “. . . failure to state a cause of action in the petition does not leave the judgment open to collateral attack for want of jurisdiction.” 17 Texas L.Rev. 99 (1938-39), citing Comment, 9 Texas L.Rev. 254 (1931).

A.R.A.’s pleadings in the original action alleged that it had furnished air conditioners and supplies for mobile homes to “one or more of the Defendants” and that they had agreed to pay the amount shown on the attached account ($38,042.32) which was in the name of Air Conditioning Distributors. A.R.A. also alleged that Hurst was the president of both Air Conditioning Distributors, Inc. and D.H.H., Inc. In a separate paragraph A.R.A. alleged that Hurst had fraudulently diverted funds from the two corporate defendants, leaving them without funds to satisfy their creditors. A.R.A.’s prayer sought a joint and several judgment against the defendants for $38,042.32 plus $10,000.00 attorneys’ fees.

We hold these pleadings were sufficient to prevent the default judgment from being void. Judgment is affirmed.


author: MASSEY, Chief Justice.

text:
    Pearl Grimsley BALLARD, Appellant, v. B. T. CANTRELL, Appellee.
    No. 17872.
    Court of Civil Appeals of Texas, Fort Worth.
    June 30, 1977.
    Rehearing Denied Sept. 8, 1977.
    John R. Bryant, Dallas, for appellant.
    Robert J. Wilson, Burleson, for appellee.
   OPINION

MASSEY, Chief Justice.

This is a trespass to try title case in which the plaintiff failed to recover and appealed.

We reverse and remand.

The land in controversy is 17½ acres of land owned by the seven children of James M. and Martha Grimsley upon their death, intestate, some 88 years ago. Of the proportionate interests of these children there has never been a partition.

Plaintiff in the case, who for convenience we will refer to as Pearl, proved upon trial that she owned at least the one-seventh undivided interest in and to the property in question she owned upon the death of her parents. The remand we have concluded proper is in order that she may, if she can, establish whether as against the defendant her undivided interest might be greater than one-seventh.

Defendant in the case, who for convenience we will refer to as Cantrell, proved that he owned at least a one-seventh undivided interest. Such ownership by Cantrell resulted because of deeds from his step-children. The father of said step-children had been Ben Grimsley, brother to Pearl, and like her the owner of a one-seventh undivided interest upon the death of their parents. Ben Grimsley died intestate in 1911. Minnie, his widow, married Cantrell in 1917. By agreement with Pearl, and either by consent or without apparent protest of any of her brothers and sisters, Cantrell and his wife, Minnie, with the children of the deceased, Ben Grimsley, moved onto the property. While Minnie lived she and Cantrell used and cultivated it more or less continuously either personally or through permission given to others and after Minnie died in 1961 Cantrell continued the practice since that time. Cantrell has kept the taxes paid on the property and concededly his possession and use has been such that, except as applied to those who are in cotenancy, he would appear in open and notorious possession and holding adversely. Those in coten-ancy would include Pearl and her brothers and sisters and those who by and through them might have been the successors to their interests.

After the 1961 death of his wife, Minnie, Cantrell continued in possession, but the fact that he did so did not have the effect of making his possession adverse to cotenants. There was not for years any notice to them, or at least to Pearl, that he was holding adversely. There was not notice of this character to Pearl, which might be said to have brought home the fact of any adversity in Cantrell’s possession until September of 1972. In that month he brought suit against her in trespass to try title of the identical property. Service of process in that suit did constitute notice given by Cantrell to Pearl.

Cantrell either dropped the suit or permitted it to remain pending; and Pearl sued Cantrell in 1973. Pearl’s suit was tried to judgment and this is the one brought before us by the appeal.

Obviously Cantrell decided to rely upon statutes of limitation to defeat the suit brought by Pearl should she be able to prove any title, and to thrust upon Pearl the burden incumbent upon a plaintiff in a trespass to try title case to recover, if at all, on the strength of his own title, and not upon the weakness of the title of the defendant.

Pearl’s proof did establish her title, though not the degree and extent thereof, and of this appears concession by Cantrell in his brief. He relies upon limitation title to support the judgment. Our further holding is that Cantrell’s evidence does not suffice to support his claim of title by limitation as against a cotenant, and the judgment he obtained upon the theory that it did suffice was erroneous because of the total failure in respect to any notice prior to his suit failed against Pearl in 1972. 2 Tex.Jur.2d Adverse Possession, Cotenants § 35 (1959), at p. 100.

Judgment is reversed and the cause is remanded.


author: WALTER, Justice. McCLOUD, Chief Justice,

text:
    Paula Suzanne HILL et al., Appellants, v. FORREST & COTTON, INC., et al., Appellees.
    No. 5039.
    Court of Civil Appeals of Texas, Eastland.
    June 30, 1977.
    Rehearing Denied Sept. 1, 1977.

      Bill Alexander, Odessa, W. A. Griffis, Jr., Griffis, Griffis & Wilson, San Angelo, Jack Little, Little & Palmer, Big Spring, for appellants.
    Clint A. Symes, Logan, Lewis & Symes, San Angelo, for appellees.
   WALTER, Justice.

Paula Suzanne Hill, individually and as next friend of her minor children, Robin Michelle Hill and Jason Kelly Hill, and Lá-veme Darst filed suit against James H. Green, Sr., James H. Green, Jr., Texas Tank Car Works, Inc., City of San Angelo, Texas, and Forrest and Cotton, Inc. for the wrongful deaths of Marvin Hill and Norman Sterling Darst. The Hills alleged that on or about the 11th day of August, 1973, Marvin Hill, the husband of Paula Suzanne Hill and father of Robin Michelle Hill and Jason Kelly Hill, was an employee of the City of San Angelo at the City Sewer Farm and he was overcome by fumes as a proximate cause of the negligence of the defendants and died as a result of falling into the water and the inhalation of the noxious gases present in the influent chamber. Plaintiff, Laverne Darst, alleged her husband, Norman Sterling Darst, was overcome by gases released by the negligence of the defendants which resulted in his death.

James H. Green, Sr., James H. Green, Jr. and Texas Tank Car Works, Inc. asked for contribution and indemnity against Forrest and Cotton, Inc.

The parties agreed that all claims asserted by all parties, whether by plaintiffs or the other defendants, against Forrest and Cotton, Inc. should be severed from the rest of the case and the claims against Forrest and Cotton should be tried as a separate suit. A written order of severance was entered.

Forrest and Cotton, Inc. made a motion for summary judgment. It alleged that it performed and furnished the design, planning and inspection of construction of the new sewage treatment plant and new outfall trunk line thereto for the City of San Angelo, Texas; that W. D. Bentley was the project engineer and a licensed and registered engineer in Texas; that the construction of the sewage treatment plant and outfall trunk line was completed and the City of San Angelo had commenced operation of the equipment on or about September 22, 1958; and, that Article 5536a, Section 1 of the Texas Revised Civil Statutes sets forth a ten-year period within which all actions for damages for any injury to a person or for wrongful death and for contribution or indemnity for damages sustained on account of such injury, damage, loss or death must be brought.

Article 5536a, Section 1 is as follows:

“There shall be commenced and prosecuted within ten years after the substantial completion of any improvement to real property or the commencement of operation of any equipment attached to vreal property, and not afterward, all actions or suits in court for damages for any injury, damages or loss to property, real or personal, or for any injury to a person, or for wrongful death, arising out of the defective or unsafe condition of any such real property or any equipment or improvement attached to such real property, for contribution or indemnity for damages sustained on account of such injury, damage, loss or death against any registered or licensed engineer or architect in this state performing or furnishing the design, planning, inspection of construction of any such improvement, equipment or structure or against any such person so performing or furnishing such design, planning, inspection of construction of any such improvement, equipment or structure; provided, however, if the claim for damages, contribution or indemnity has been presented in writing to the registered or licensed engineer or architect performing such services within the ten-year period of limitation, said period shall be extended to include two years from the time such notice in writing is presented.”

Forrest and Cotton, Inc. filed the affidavits of W. D. Bentley and William H. Sims in support of their motion for summary judgment under the ten-year statute.

The court granted Forrest and Cotton, Inc.’s motion for summary judgment and all of the plaintiffs and all of the cross-claimants except for the City of San Angelo have appealed.

The affidavit of W. D. Bentley, attached to appellees’ motion for summary judgment, establishes the following facts:

On October 24, 1949, Bentley was licensed and registered by the State Board of Registration for Professional Engineers of the State of Texas and that he has continuously been a registered and licensed engineer in Texas since said date up to and including the present time of making this affidavit on March 11, 1976. In August, 1953, he was employed by T. Carr Forrest, Jr. and James A. Cotton of Dallas, Texas, as an engineer. At such time, Forrest and Cotton were partners of Forrest and Cotton, Consulting Engineers, of Dallas, Texas. He continued as an employee of the partnership until its incorporation under the name of Forrest and Cotton, Inc. in May, 1958. Thereafter, he remained an employee of Forrest and Cotton, Inc. until April 16, 1959, when he obtained employment as an engineer with the City of Dallas. On September 1,1973, he was again employed as an engineer with Forrest and Cotton and continued as such until February 6, 1976.
In 1955, Forrest and Cotton, Consulting Engineers, contracted with the City of San Angelo to provide engineering services in connection with the construction of a new sewage treatment plant and new outfall line. As an employee of Forrest and Cotton, Consulting Engineers, he was the project engineer on said treatment plant which was constructed for the City of San Angelo, Texas. As the project engineer, he performed and furnished the design, planning and inspection of construction of the improvements, equipment and structures attached to the real property in connection with the construction of the sewage treatment plant. He continuously performed his duties as project engineer through the completion of the improvements for the plant.
On August 28,1958, a final Federal pay inspection for the plant was made by him and representatives of the City of San Angelo, W. L. Rea Construction Company, the State Health Department and the U. S. Public Health Service. On September 22, 1958, the final estimates on the plant were completed and given to the City of San Angelo. At the time of giving the final estimates to the city, both the sewage treatment plant and the outfall sewage line were completed and the City of San Angelo had commenced operation of the equipment.
At the time Forrest and Cotton entered into the contract with the City of San Angelo, both T. Carr Forrest, Jr. and James A. Cotton were licensed and registered engineers in Texas. At all times before incorporation of Forrest and Cotton, Inc., while he was project engineer for the plant, he was employed by Forrest and Cotton, Consulting Engineers, and he was paid by Forrest and Cotton, Consulting Engineers, for the performance of his duties as project engineer. After incorporation, Forrest and Cotton, Inc. was assigned the contract Forrest and Cotton, Consulting Engineers made with the City of San Angelo, Texas and Forrest and Cotton, Inc. assumed all obligations under said contract. After incorporation, at all times until completion of the plant, he was employed by Forrest and Cotton, Inc. as project engineer and was paid by Forrest and Cotton, Inc.

The only questions presented by this appeal are the applicability and constitutionality of Article 5536a. We hold the statute is applicable and constitutional and affirm the judgment.

We find no merit in appellants’ contention the court erred in rendering summary judgment predicated on Article 5536a because Forrest and Cotton, Inc. is a corporation and not a “registered or licensed engineer or architect.” Subsections 17 and 18 of Article 3271a, known as the Texas Engineering Practice Act, are as follows:

“Sec. 17. A firm, or a co-partnership, or a corporation, or a joint stock association may engage in the practice of professional engineering in this State, provided such practice is carried on by only professional engineers registered in this State.
Sec. 18. No firm, partnership, association, corporation, or other business entity shall hold itself out to the public or any member thereof as being engaged in the practice of engineering under any assumed, trade, business, partnership or corporate name or employ, use, cause to be used or make use of in any manner whatsoever any such words or terms as ‘engineer,’ ‘engineering,’ ‘engineering services,’ ‘engineering company,’ ‘engineering, inc.’ ‘professional engineers,’ ‘licensed engineer,’ ‘registered engineer,’ ‘licensed professional engineer,’ ‘registered professional engineer,’ ‘engineered,’ or any combinations, abbreviations or variations thereof, or in combination with any other words, letters, initials, signs or symbols on, in or as a part of, directly or indirectly, any sign, directory, listing, contract, document, pamphlet, stationery, letterhead, advertisement, signature, trade name, assumed name, corporate or other business name unless such firm, partnership, association, corporation or other business entity is actually and actively engaged in the practice of engineering or offering engineering services to the public, and any and all services, work, acts or things performed or done by it which constitute any part of the practice of engineering are either personally performed or done by a registered engineer or under the responsible supervision of a registered engineer.”

The Legislature has the power to enact curative or remedial legislation. Burch v. City of San Antonio, 518 S.W.2d 540 (Tex.1975). Article 5536a is such a statute. In Burch v. City of San Antonio, supra, the court said:

“ . . . If a statute is curative or remedial in its nature the rule is generally applied that it be given the most comprehensive and liberal construction possible. City of Mason v. West Texas Utilities Co., 150 Tex. 18, 287 S.W.2d 273 (1951); 2 Sutherland Statutory Construction § 41.11 (4th ed. C. Sands 1973)

In City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273 (1951), the court said:

“If a statute is curative or remedial in its nature, the rule is generally applied that it be given the most comprehensive and liberal construction possible. It certainly should not be given a narrow, technical construction which would defeat the very purpose for which the statute was enacted. 39 Tex.Jur., pp. 273, 274, § 145; 59 C.J., p. 1106, § 657; 50 Amer.Jur. p. 415, § 392, and the cases cited from the many jurisdictions in support of the rule.”

Appellants cite Willis v. Chowning, 90 Tex. 617, 40 S.W. 395 (1897) and Eubanks v. Wood, 304 S.W.2d 567 (Tex.Civ.App.—Eastland 1957, writ ref. n.r.e.) in support of their first point of error. We have considered these cases and do not consider them in point. We hold it was not the intention of the Legislature to exclude registered engineers operating as a corporation from the benefits of the statute.

Appellants contend Article 5536a is unconstitutional because it deprives them of dne-process-of-law. They also contend it “violates the prohibition against equal protection of the law” since it favored certain defendants to the exclusion of other possible defendants. No Texas cases are cited in support of this point and we are unable to find any. In Smith v. Davis, 426 S.W.2d 827 (Tex.1968), the court said:

“In passing upon the constitutionality of a statute, we begin with a presumption of validity. It is to be presumed that the Legislature has not acted unreasonably or arbitrarily; and a mere difference of opinion, where reasonable minds could differ, is not a sufficient basis for striking down legislation as arbitrary or unreasonable. The wisdom or expediency of the law is the Legislature’s prerogative, not ours. As quoted in this Court’s opinion in Texas National Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627 at 634 (1939), ‘There is a strong presumption that a Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based upon adequate grounds.’ ”

We hold the statute is constitutional. Appellants contend the court erred in granting summary judgment against the minor plaintiffs in view of Article 5535, V.A.T.S., which is as follows:

“If a person entitled to bring any action mentioned in this subdivision of this title be at the time the cause of action accrues either a minor, a married person under twenty-one years of age, a person imprisoned or a person of unsound mind, the time of such disability shall not be deemed a portion of the time limited for the commencement of the action and such person shall have the same time after the removal of his disability that is allowed to others by the provisions of this title.”

When Article 5536a was enacted in 1969, none of the appellants had a cause of action or any vested rights against Forrest and Cotton, Inc. The date the minors alleged cause of action accrued against Forrest and Cotton was on August 11,1973, the date of their father’s death. At the time the minors’ cause of action accrued the ten-year period of limitations provided for in Article 5536a had already expired. At the time of their father’s death they had no cause of action against Forrest and Cotton, Inc. The court did not err in granting summary judgment against the minor plaintiffs.

Appellants contend the court erred in giving retroactive effect to Article 5536a in that it was not passed until after the acts complained of by them against Forrest and Cotton occurred. No cases are cited in support of this point. They cite “37 Tex. Jur.2d, ‘Limitations of Actions,’ Section 37, pp. 9798” in support of their contention. We have considered this authority and find it is not relative to the issue. In Texas Water Rights Commission v. Wright, 464 S.W.2d 642 (Tex.1971) the court said:

“Mere retroactivity is not sufficient to invalidate a statute. The fact that a statute authorizes the consideration of events that occurred prior to the effective date of the statute does not compel disapproval of the enactment, provided the affected parties were afforded a reasonable time to protect their interests

We have considered all of appellants’ points and find no merit in them. They are all overruled. The judgment is affirmed.

ON MOTION FOR REHEARING

McCLOUD, Chief Justice,

dissenting.

I dissent. Section 1 of Article 5536a clearly provides that the limitation statute applies to a “registered or licensed engineer or architect in this state.” The defendant, Forrest and Cotton, Inc., is a corporation and is not a “registered or licensed engineer.” When the Legislature enacted Article 5536a it was aware that under Article 3271a a corporation, under certain conditions, could engage in the practice of professional engineering, yet the Legislature did not include such corporations in Article 5536a. This court in Kemp v. Fidelity & Casualty Co. of New York, 504 S.W.2d 633 (Tex.Civ.App.—Eastland 1974, writ ref. n.r.e.) per curiam 512 S.W.2d 688 (Tex.1974) said:

“When interpreting legislative intent, we are bound by the clear language of the statute. Railroad Commission of Texas v. Miller, 434 S.W.2d 670 (Tex.Sup.1968). As stated in Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66 (1920):
‘Courts must take statutes as they find them. More than that, they should be willing to take them as they find them. They should search out carefully the in-tendment of a statute, giving full effect to all of its terms. But they must find its intent in its language, and not elsewhere. They are not the lawmaking body. They are not responsible for omissions in legislation. They are responsible for a true and fair interpretation of the written law. It must be an interpretation which expresses only the will of the makers of the law, not forced nor strained, but simply such as the words of the law in their plain sense fairly sanction and will clearly sustain.’ ”

I would reverse and remand.


author: SHANNON, Justice.

text:
    CITY OF AUSTIN, Appellant, v. Emile JAMAIL, Appellee.
    No. 12594.
    Court of Civil Appeals of Texas, Austin.
    July 20, 1977.
    Rehearing Denied Sept. 7, 1977.

      Jerry L. Harris, City Atty., John Mein-rath, Asst. City Atty., Austin, for appellant.
    E. Richard Criss, Jr., Brown, Maroney, Rose, Baker & Barber, Austin, for appellee.
   SHANNON, Justice.

Appellant, City of Austin, appeals from a summary judgment entered by the district court of Travis County in favor of appellee, Emile Jamail, in a trespass to try title suit. The land involved is a two hundred foot strip situated near Camp Mabry and located in what is now known as “Mo-Pac” Boulevard. We will affirm the summary judgment.

Both appellant and appellee claim record title to the land, and both parties derive title from a common source, George Hancock.

Appellee’s summary judgment proof consisted of certified copies of the instruments in his chain of title. The initial instrument in appellee’s chain of title is a deed from Lewis Hancock, sole heir of George Hancock, to “Chas. Wm. Diesen and Elza C. Diesen his wife.” That deed was executed on January 8, 1885. In an effort to avoid summary judgment, appellant answered ap-pellee’s motion. Appellant’s opposing proof consisted of certified copies of the instruments in its chain of title. The initial instrument in appellant’s chain of title is a deed dated October 11, 1876 from George Hancock to the International & Great Northern Railroad.

Appellant’s title is superior if the description in the 1876 deed from Hancock to the railroad was sufficient to satisfy the requirements of the Statute of Frauds, Tex. Bus. & Comm. Code Ann. § 26.01 (1968), to convey the fee simple title to the land described therein. If the description in that deed was sufficient, the summary judgment will be reversed. If the description in that deed was not sufficient to convey fee simple title, appellee holds superior title, and the summary judgment will be affirmed.

The description in the Hancock deed is set out below:

“. . .a strip of land Two Hundred feet in width over the tracts of land particularly described as follows: viz: a tract in Travis County, known as a part of the Daniel Gilbert ⅛ of a league of land, lying Northwest from the City of Austin. Said Company are [s/c] to construct Cattle Guards at each fence crossed, so as to protect the farm from entrance of stock; . . .”

To satisfy the Statute of Frauds, the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the land to be conveyed may be identified with reasonable certainty. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945); Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222 (1949); Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972).

An examination of the description reveals that the land involved is a strip two hundred feet wide located in Travis County northwest of the City of Austin across a tract of land known as a part of the Daniel Gilbert Vs of a League.

Nothing else in the description identifies the tract intended to be conveyed and there are no other references in the deed with respect to the strip of land which would assist one in locating the tract on the ground. From the description one cannot determine the point of beginning of the tract,.the length of the strip, or the direction which any side of the tract is to run.

In our opinion the description in the deed is wholly insufficient to identify the land, and the deed does not furnish within itself the means or data by which the particular land conveyed may be identified with reasonable certainty.

The summary judgment is affirmed.


author: OSBORN, Justice.

text:
    Rudy S. ESQUIVEL, Justice of the Peace, Appellant, v. County Judge Blair REEVES et al., Appellees.
    No. 6627.
    Court of Civil Appeals of Texas, El Paso.
    July 20, 1977.
    Sam C. Bashara, San Antonio, for appellant.
    Ted Butler, Crim. Dist. Atty., Norris W. Yates, Jr., Asst. Dist. Atty., San Antonio, for appellees.
   OPINION

OSBORN, Justice.

In this case the issue is presented as to whether the Commissioners Court of a county may provide facilities for Justice of the Peace Courts at a location other than at the courthouse for a Justice of the Peace whose precinct includes the courthouse. We conclude that they may do so, and we affirm.

The Appellant, the duly elected Justice of the Peace of Precinct 1, Place 2, Bexar County, filed suit for injunctive relief to require the Commissioners Court to reverse an order transferring his Court from the main courthouse in San Antonio to a newly constructed Courts and Jail Building about three blocks from the courthouse. Only a partial statement of facts has been filed, but the evidence contained therein establishes the location of the main courthouse and its overcrowded condition, and the record contains testimony from Appellant that he did not consider the new facility suitable for a court, primarily because of the close proximity to the jail. It was also established by request for admissions that Appellant is the duly elected Justice of the Peace, Precinct 1, Place 2, that the Bexar County courthouse is located in Precinct 1, and that the Precinct contains more than 75,000 inhabitants.

At the conclusion of the evidence, the Court granted Appellees’ motion for an instructed verdict. Appellant presents one point of error contending “THE TRIAL COURT ERRED IN INSTRUCTING A VERDICT IN FAVOR OF THE APPEL-LEES.” Although the point does not direct the attention of the Court to the error relied upon, as required by Rule 418, Tex.R. Civ.P., we do consider the argument presented under the point. O’Neil v. Mack Tracks, Inc., 542 S.W.2d 112 (Tex.1976).

The basic issue presented concerns the obligations and authority of the Commissioners Court under two different statutes. The Appellant contends he is entitled to have his office in the main courthouse because Tex.Rev.Civ.Stat.Ann. art. 2379 provides:

“When the justice precinct where the courthouse of any county is located contains more than seventy-five thousand inhabitants, the commissioners court of said county shall provide and furnish a suitable place in such courthouse for such justice to hold court.”

The Appellees contend that they properly relocated the Justice of the Peace with the new jail facility under Tex.Rev.Civ.Stat. Ann. art. 2370b, Sec. 1, which, in part, provides:

“Section 1. Whenever the Commissioners Court of any county determines that the county courthouse is not adequate in size or facilities * * *, the Commissioners Court may * * * [acquire an additional building] in which any one or more of the county or district offices or county, district or justice of the peace courts * * * may be housed, conducted and maintained * *

In this case Article 2370b, which was passed in 1957, did not expressly repeal Article 2379, which was enacted in 1919. Nevertheless, we conclude that there is a positive repugnance between the provisions, and the latter expression of legislative intent must be controlling. City of Dallas v. Brown, 475 S.W.2d 833 (Tex.Civ.App.—Dallas, 1971, wit ref’d n. r. e.); Stevens v. State, 70 Tex.Cr.R. 565,159 S.W. 505 (1913).

Of course, the fundamental rule in the construction of statutes is to ascertain and give effect to the intention of the Legislature. Jessen Associates, Inc. v. Bullock, 531 5.W.2d 593 (Tex.1975); Calvert v. Texas Pipe Line Company 517 S.W.2d 777 (Tex.1974). With regard to construction of civil statutes, Tex.Rev.Civ.Stat.Ann. art. 10, Sec. 6, provides:

“6. In all interpretations, the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil and the remedy.”

When we follow that mandate, we find that when the old law, i. e., art. 2379, was passed in 1919, Texas was largely a rural area. By 1957, many counties contained fast-growing urban areas which resulted in overcrowded, outmoded courthouses. This was particularly true because of the increase in the number of courts being created by the Legislature to meet the needs of an urban society. In order to meet the problem caused by the creation of new courts, the Legislature provided a remedy. It empowered Commissioners Courts with the right to locate County and District Courts and Justice of the Peace Courts in other buildings besides the courthouse.

The May 12, 1976 Opinion No. H-821 of the Attorney General of Texas neither mentioned nor considered Article 2370b, and it is in error in concluding that the Commissioners Court may not locate a Justice of the Peace at a place other than the courthouse as earlier required by Article 2379.

We conclude that the Bexar County Commissioners Court had authority to locate Appellant’s office and Court in a building other than the main courthouse. The Appellant’s point of error is overruled. The judgment of the trial Court is affirmed.


author: STEPHEN F. PRESLAR, Chief Justice.

text:
    David B. TERK, Appellant, v. Jon Grady DEATON, Appellee.
    No. 6612.
    Court of Civil Appeals of Texas, El Paso.
    July 20, 1977.

      Shafer, Gilliland, Davis, Bunton & McCol-lum, Inc., Elton Gilliland, Gary C. Riley, Odessa, for appellant.
    Glen Williamson, Kermit, for appellee.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is an appeal from the overruling of the Defendant David B. Terk’s plea of privilege in a malicious prosecution suit brought by Plaintiff Jon Grady Deaton. The questions discussed on appeal are the proof of want of probable cause and of malice, and the making of a full and complete statement of facts to the prosecuting attorney in good faith. We reverse the judgment of the trial Court.

Jon Grady Deaton and Kathleen Deaton filed this suit in Winkler County against David B. Terk and Terk Distributing Company alleging malicious prosecution and, in the alternative, libel and slander for the filing of a criminal complaint of theft against Jon Grady Deaton by David B. Terk. The trial Court granted the plea of privilege of Terk Distributing Company and that of David B. Terk as to Plaintiff Kathleen Deaton, but, as indicated, overruled the plea of privilege of David B. Terk as to the suit by Jon Grady Deaton. We will refer to these two parties as Plaintiff and Defendant.

Plaintiff relies on Tex.Rev.Civ.Stat.Ann. art. 1995, Subdivision 9, to defeat Defendant’s plea of privilege. Under this Subdivision, Plaintiff is required to prove that (1) a crime or offense was committed, (2) that it was committed in the county of the suit, and (3) that the Defendant participated. 1 McDonald, Texas Civil Practice, Sec. 4.16 (1965); Pearson v. Stevens, 446 S.W.2d 381 (Tex.Civ.App.—Houston [1st Dist.] 1969, no writ). We are of the opinion that the Plaintiff has failed to sustain his burden as to element (1).

The elements of a cause of action for malicious prosecution which must be proved by the Plaintiff are: (1) that there was a prosecution by the Defendant; (2) that it was malicious; (3) that it was without probable cause; (4) that the prosecution ended in acquittal; and (5) that damages resulted to the Plaintiff. Ada Oil Company v. Dillaberry, 440 S.W.2d 902 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ dism’d); Ellis v. Sinton Savings Association, 455 S.W.2d 834 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n.r.e.); Flowers v. Central Power & Light Co., 314 S.W.2d 373 (Tex.Civ.App.—Waco 1958, writ ref’d n.r.e.). Failure to prove any one of these elements is fatal to the Plaintiff’s case. Ada Oil Company v. Dillaberry, supra; Montgomery Ward & Co. v. Kirkland, 225 S.W.2d 906 (Tex.Civ.App.—San Antonio 1949, writ ref’d n.r.e.). We are of the opinion that in this case the proof fails as to malice and want of probable cause. The general rule, and one which is followed in Texas Courts, is that a party filing or causing the filing of a criminal complaint does so upon probable cause where he, in good faith, makes a full and fair disclosure of the facts and circumstances known to him and the complaint is thereafter filed. Ada Oil Company v. Dillaberry, supra; Jackson v. Train, 495 S.W.2d 36 (Tex.Civ.App.—Beaumont 1972, no writ); Andrews v. Dewberry, 242 S.W.2d 685 (Tex.Civ.App.—Fort Worth 1951, writ ref’d n.r. e.). The matter of probable cause is not a defensive matter but a part of Plaintiff’s basic cause of action, that is, the Plaintiff has the burden of proving that the Defendant failed to make a full and fair disclosure. There is nothing in the record before us indicating that the Defendant gave the District Attorney any false information or failed to disclose any information. The evidence is that he stated the facts to the prosecuting attorney, who in turn determined that there had been a violation of the penal statute and drew the complaint for Defendant’s signature.

The record does not establish malice on the part of the Defendant. The evidence is that he approached the District Attorney with the facts surrounding his debt, not knowing that those facts amounted to a violation of the penal code until so informed by the District Attorney. He stated that he did not want to cause the Plaintiff any more trouble than he already had, and when asked by the District Attorney if he would be satisfied with the return of his merchandise, he answered yes. In Ellis v. Sinton Savings Association, supra at 842, the Court quoted from Ada Oil Company v. Dillaberry, supra, as follows:

“ * * While the using of criminal process for private purposes, such as the coercion of the payment of a debt when the complaining party knows the accused is not guilty of crime, may show malice and want of probable cause, a motive on the part of the informant to get back his own property is not necessarily an improper one under the law of malicious prosecution. It is not improper if it coexists with an honest belief that a crime has been committed and if there exists probable cause for a criminal prosecution. 54 C.J.S. Malicious Prosecution § 42b, p. 1006; § 93, p. 1080, note 9; § 18, p. 974, note 28; Prosser, Law of Torts, (3rd Ed.), pp. 859, 860; Grissom v. Lopez, 280 S.W. 613 (Tex.Civ.App.), writ dismd.; 37 Tex. Jur.2d Sec. 13, p. 535. * * *

Failure to prove a cause of action also results from the application to this case of the rule of law that an action for malicious prosecution cannot be based on a criminal prosecution where the defendant in good faith made a full and fair statement of the facts to the prosecuting attorney and was advised that a criminal prosecution could be sustained. Ada Oil Company v. Dillaberry, supra; 37 Tex.Jur.2d Malicious Prosecution, Sec. 22 (1962); Andrews v. Dewberry, supra; Igoe v. Peinado, 54 S.W.2d 556 (Tex.Civ.App.—El Paso 1932, no writ); 10 A.L.R.2d 1215 (1950).

Because of the failure to prove the commission of a crime or offense, necessary proof of the venue facts has failed. That part of the order of the trial Court denying and overruling the plea of privilege of David B. Terk as to Plaintiff Jon Grady Deaton is reversed and judgment is here rendered that the cause of action between those two parties be transferred to the District Court of Ector County.


author: PRESLAR, Chief Justice.

text:
    EXTRACTION RESOURCES, INC. and Title Service Company, et al., Appellants, v. Clifford Jefferson FREEMAN et al., Appellees.
    No. 6583.
    Court of Civil Appeals of Texas, El Paso.
    July 27, 1977.
    Appellants’ Motions for Rehearing Denied Aug. 24, 1977.

      M. McDonnold, Jr., Jack L. Hart, Midland, Shafer, Gilliland, Davis, Bunton & McCollum, Inc., Odessa, Bullock, Scott & Neisig, Midland, for appellants.
    Hultgren, Jewell & Kolb, Edward J. Kolb, William G. Love, Dallas, Garland Casebier, Stubbeman, McRae, Sealy, Laugh-lin & Browder, W. B. Browder, Jr., David K. Brooks, Midland, Kenneth P. Fountain, Houston, for appellees.
   OPINION

PRESLAR, Chief Justice.

This oil and gas ease presents two questions. First, the nature of the estate conveyed, whether royalty or an interest in the minerals in place, and second, whether the owners of the royalty interest have a right to receive payment in kind as distinguished from cash.

This ease was brought by the Appellees, who were grantees under some of 366 deeds executed by one Burl Stiff, asking for a construction of the deeds and, secondly, to cause Exxon Corporation, the operator of leases on the lands involved, to pay royalties which they were holding in suspense pending a determination of whether they were to be paid in money or in kind. The trial Court construed the deeds in question to convey a perpetual non-participating royalty and it ruled that Exxon should pay the royalties in money. We affirm the judgment of the trial Court.

As indicated, certain of the Appellees were Plaintiffs and grantees under the deeds from Burl Stiff and they originally brought this as a class action, but since that was disallowed by the trial Court, the remaining grantees of the 366 deeds of Burl Stiff were then cited as Defendants and will hereafter be referred to as Defendants-cited-by-publication. Their interest in the litigation is the same as that of the Plaintiffs. In fact, through their attorney ad litem they cross-acted seeking relief as Plaintiffs. The Appellants, who are involved in the first question to be discussed, are Defendants who claim through the heirs of Burl Stiff, and in discussing the first question we will refer to them as Appellants.

The 366 deeds in question were given by Burl Stiff during the period of time from 1926 to 1928. Prior to that, he had acquired a Vwth non-participating royalty interest in five sections of land in Winkler County, and the trial Court found that the 366 deeds were “for the purpose of dividing and selling the perpetual nonparticipating royalty interest he had acquired.” The common source of title for all concerned is that of John A. Haley and wife, Julia, who by two royalty deeds conveyed the Vwth royalty to one C. P. Lehman, who in turn conveyed it to Burl Stiff. Burl Stiff thereafter gave . the 366 deeds, and each of these deeds was identical in form and purported to convey to the grantee therein V&ith of the oil, gas, and other minerals in a certain number of undivided acres out of each of one or more of the sections involved. Each of the deeds was on a printed form entitled in conspicuous letters “Royalty Deed,” but the conveying part of the deed was as follows:

“One sixty-fourth interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following described lands, situated in Winkler County, Texas, to-wit: * * * [description follows], together with the right of ingress and egress at all times for the purpose of mining, drilling and exploring said lands for oil, gas and other minerals, and removing the same therefrom.”

Thus, Burl Stiff used a royalty form deed and filled in the blanks accordingly, but he failed to add that it was a royalty interest and left the deed in fact in the form of a conveyance of the minerals in place.

Appellants contend that under the rules of construction of an unambiguous instrument, the interest conveyed by each of these deeds is a mineral interest. This would be a V^th of the mineral estate which would include a corresponding V^th of the royalty. Pan American Petroleum Corporation v. Texas Pacific Coal and Oil Company, 340 S.W.2d 548 (Tex.Civ.App.—El Paso 1960, writ ref’d n. r. e.). The present lease on the premises provides a Vwths royalty, and Appellants say that the grantees of Burl Stiff, Appellees, therefore own a V&fth of that Vieths royalty, and this results in a residue of 18/i6ths in the grantor Burl Stiff which they now own by reason of having purchased same from his heirs. The Appel-lees, as grantees from Burl Stiff, contend that since Burl Stiff did not own minerals but owned only royalty, the maximum interest he could have conveyed, and thus did convey, to them was a perpetual free royalty out of total production. With that we agree for two reasons: first, because of the nature of the estate owned by Burl Stiff and, second, because the intention of the parties was to convey a Vm royalty interest.

As background, we look briefly to the incidents of ownership of a mineral interest. Under Texas law, the owner of a mineral estate possesses a bundle of interests which can be separately conveyed or reserved; these include the rights to execute oil, gas and mineral leases, and the right to receive bonuses, rentals and royalties. As indicated, each can be severed into a separate interest, and each is a property right and has been so regarded by Texas Courts. Brown v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935 (1935); Sheffield v. Hogg, 124 Tex. 290, 77 S.W.2d 1021 (1934) reh. den. 124 Tex. 290, 80 S.W.2d 741 (1935); Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 254 S.W. 290 (1923). And, as Texas Courts have often said, “The words ‘Royalty,’ ‘Bonus,’ and ‘Rentals,’ each and all have a separate, distinct and well established meaning in the oil and gas business. See Schlittler v. Smith, 128 Tex. 628, 101 S.W.2d 543 * * * Masterson v. Gulf Oil Corporation, 301 S.W.2d 486 (Tex.Civ.App.—Galveston 1957, writ ref’d n. r. e.). There are varying forms of these estates, which we do not need to discuss, but it is important to note that each can be separately conveyed or reserved, and when so conveyed or reserved, they become separate estates. In Texas, oil and gas in place are, by the established rules of property, a part of the realty or corpus of the land and as such are subject to ownership, severance, conveyance, lease, and taxation. This includes royalty. Sheffield v. Hogg, supra; Watkins v. Slaughter, 144 Tex. 179, 189 S.W.2d 699 (1945).

In the case before us, all parties agree that Burl Stiff acquired a ½6⅛ non-participating royalty interest. The Haleys carved that interest out of their mineral estate, specifying that the grantee is restricted to the right to receive a portion of the oil or gas produced with no right in the owner thereof to join in future leases or to receive a portion of the bonus or delay rentals; and being unlimited as to time, it is a perpetual non-participating royalty. The parties are in agreement that this was the estate Stiff owned and that he never owned any other interest in the lands involved. The other sticks in the bundle of interests making up the mineral estate, i. e., the rights to bonuses, rentals, remaining royalty rights, and the rights to execute oil and gas leases, were owned by others. Under the facts of this case, when Appellants urge that Stiff conveyed an interest in the mineral estate, they are in effect saying that he conveyed something owned by others. It is elementary that one cannot convey what he does not own. This was the effect of the holding in Belote v. Brown Securities Corporation, 129 S.W.2d 395 (Tex.Civ.App.—Texarkana 1939, no writ), in which one owning a life estate attempted to convey in fee and the Court limited the conveyance to that which she owned — a life estate. And in Cockrell v. Texas Gulf Sulfur Company, 157 Tex. 10, 299 S.W.2d 672 (1956), the Court said:

“We take it that no authority need be cited for the proposition that a deed can pass no greater estate than that owned by the grantor. Likewise it is fundamental that a warranty deed will pass all of the estate owned by the grantor at the time of the conveyance unless there are reservations or exceptions which reduce the estate conveyed. Harris v. Currie, 142 Tex. 93, 176 S.W.2d 302; Alfrey v. Ellington, Tex.Civ.App., 1955, 285 S.W.2d 383, n. r. e. * * * ”

Appellants claiming under the heirs of Stiff contend that they own the “residue” of the remaining estate in each deed (Vfeith of 18/i6ths). Under the trial Court’s ruling, there is no residue and Stiff is held to have granted the greatest estate possible — ⅛4⅛ of total production, all he owned. Where the quantum of the estate granted is in doubt, the rule is that that doubt should be resolved against the grant- or and be held to convey the greatest estate permissible under the language of the deed. Garrett v. Dils Company, 157 Tex. 92, 299 S.W.2d 904 (1957); Curdy v. Stafford, 88 Tex. 120, 30 S.W. 551 (1895); Allen v. Creighton, 131 S.W.2d 47 (Tex.Civ.App.—Beaumont 1939, writ ref’d). Burl Stiff, who owned royalty, conveyed the maximum royalty out of total production, the full Vm th called for in each deed.

On the question of whether the royalty is payable in money or “in kind,” the Plaintiffs/Appellees and the Defendants-cited-by-publication are in agreement that the payment should be in money. Despite our disposition of the first question above, it is still necessary to pass on this second question because certain of the Appellants hold interest under grantees of Burl Stiff and contend that they are entitled to royalty “in kind.” In carving out of their mineral estate the royalty interest which Burl Stiff owns, the Haleys reserved executive rights in the following terms:

“It is understood that the one-sixteenth interest herein conveyed is to be a royalty interest only, and the grantee shall have no interest in any rentals, bonuses or revenues or moneys received or derived from the leasing of said lands and neither the grantee, his heirs nor assigns shall ever have any control over the leasing of said lands for minerals or other purposes, but for the purpose of leasing and making any and all contracts for leasing or having said land developed and prospected for oil or other minerals of any kind, the grantors herein, are hereby made agents of the grantee, and the grantee need not be consulted at any time in regard to leasing or prospecting same; but in case oil or other minerals shall at any time hereafter be produced from said land, then and in that event the grantee shall receive one-sixteenth of all the oil, gas or other minerals, the same to be directed to the grantee, his heirs or assigns.”

The leases in question are producing gas, and Appellants contend that under this last clause they are entitled to receive the gas “in kind” rather than to be paid for it in money because of the quoted phrase “the same to be directed to the grantee, his heirs or assigns.” They look to “directed” as being synonymous with “delivered.” We arrive at a different conclusion by looking to the entire instrument, as we must under the rules of construction. 19 Tex.Jur.2d Deeds, Sec. 112 (1960). The royalty owners’ rights are fixed by the royalty deed from the Haleys; they took subject to the retained executive rights of the Haleys; it was specified that the royalty owners had no leasing rights; and the royalty they receive depends entirely on what the Haleys bargained for. The bargain that was struck by the Haleys’ successors was that the lessee would pay 3/i6ths of the proceeds of gas sales in money; that does not conflict with the provision that the same is to be “directed to the grantee.” The royalty provided by the leases is what the grantees and their successors are entitled to, and that is being directed to them. “Directed” to them would apply whether in kind or in money. The trial Court’s order directs Exxon to pay it to them in money.

The judgment of the trial Court is affirmed.


author: WALTER, Justice.

text:
    Melvin NIELL et ux., Appellants, v. Don MOONEY, Appellee.
    No. 5024.
    Court of Civil Appeals of Texas, Eastland.
    July 28, 1977.
    Henry J. Anderson and Thomas Schrandt, Wichita Falls, for appellants.
    William H. Heatly, Dist. Atty., Paducah, for appellee.
   WALTER, Justice.

This a summary judgment case. Producers Grain Corporation secured a judgment against Melvin and Kathlee Niell on December 13, 1971, for $8,142.50. Thereafter in the same styled and numbered cause, Producers filed a motion for damages against Don Mooney and United States Fire Insurance Company. On December 11, 1974, the court rendered judgment against Mooney and U. S. Fire Insurance Company, jointly and severally for $7,961.98. Don Mooney filed this suit against Melvin and Kathlee Niell seeking to be subrogated to the rights of Producers Grain Corporation. Mooney’s original petition alleges on March 11,1976, he delivered to Producers his check for $11,131.33 “to pay off the judgment rendered against Melvin and Kathlee Niell.” He also alleges that as a result of said payment he is entitled to “subrogation to the rights of Producers Grain Corporation.” In his prayer, he asks “that he have his damages in the amount of $11,131.33 plus interest and for costs of suit.

In his motion for summary judgment, Mooney asserts it is predicated upon the pleadings and exhibits attached. The exhibits are certified copies of the two judgments rendered on December 13, 1971, and December 11, 1974.

Mooney’s motion for summary judgment was granted and the Niells have appealed.

In the supplemental transcript, we find the motion for summary judgment which has attached to it proper certified copies of the two judgments described above. Rule 166-A, T.R.C.P., dealing with summary judgments provides in Section (c), “. No oral testimony shall be received at the hearing . . . ” The rule also limits the evidence to “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . ” “This evidence must be in writing, be admissible, and have probative force . .” Summary Judgment in Texas, 14 Hous.L. Rev. 854 (1977).

A statement of facts has been filed in this ease. It reflects the court correctly admonished the lawyers he was “not going to hear any evidence at a summary judgment hearing.”

We find no admissible summary judgment evidence that Mooney paid the judgment rendered against the Niells or that it has been released by Producers. The only summary judgment proof in the record are the certified copies of the two judgments.

We hold the appellee has not discharged his burden of establishing as a matter of law that there are no genuine issues of fact as to one or more of the essential elements of his cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970).

The judgment is reversed and the cause is remanded.


text:
    Robert N. CHAPLIN, Appellant, v. Lawrence MILNE, Appellee.
    No. 6594.
    Court of Civil Appeals of Texas, El Paso, Texas.
    Aug. 3, 1977.
    Rehearing Denied Aug. 31, 1977.

      Collins, Langford & Pine, William C. Collins, Charles E. Vinson, El Paso, for appellant.
    Studdard, Melby, Schwartz, Crowson & Parrish, Harold E. Crowson, Jr., El Paso, for appellee.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is a suit on a promissory note executed by the Appellant and payable to the Appellee. Involved is the question of the application of the Parol Evidence Rule where a contemporaneous oral agreement is judicially admitted. The trial Court awarded judgment for the principal sum due plus interest and attorney’s fees, and a verdict was directed as to Appellant’s cross-action. We affirm the judgment of the trial Court.

The note was a printed form and absolute as to its terms with payment due six months from date of its execution. Appellant says that there was a contemporaneous oral agreement that on the due date the note would be renegotiated. He says this agreement was judicially admitted by the following testimony of the Appellee:

“Q Did you actually expect Mr. Chaplin to pay that note off at the end of six months, this $20,000.00?
“A I expected cash or negotiation.
“Q Cash or negotiation?
“A Yes.
“Q What do you mean by that?
“A Well, either we would make a deal or he would either pay me off or we would make a deal as to—
“Q In other words, you would make a new arrangement with him at the end of six months, is that what you are saying?
“A Well, yeah, but you always do on a note.”

What we traditionally call the Parol Evidence Rule is embodied in Section 2.202 of the Uniform Commercial Code, entitled “Final Written Expression: Parol or Extrinsic Evidence.”

“Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented.”

There then follows two situations in which the writing may be explained or supplemented, but neither are applicable here. The prohibition is against contradictory terms by parol or extrinsic evidence. Here, that evidence is in the form of a judicial admission. Admittedly, that establishes the fact of the oral agreement. We then have the written agreement and the oral agreement, and we are back to the basic rule that the writing controls. In the words of Section 2.202, “such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement.” It is not a question of the manner of showing the pa-rol agreement, whether by judicial admission or otherwise; rather, it is the operative effect of the evidence, for the Parol Evidence Rule is one of substantive law. As this Court said in Hill v. Meadows, 476 S.W.2d 705 (Tex.Civ.App.—El Paso 1972, no writ):

“ * * * In addition, the parol evidence rule, being a rule of substantive law rather than a rule of evidence, properly precludes the enforcement of prior or contemporaneous inconsistent oral agreements. McCormick and Ray, Texas Law of Evidence, See. 1601, p. 444; Rasey v. Perryman, Tex.Civ.App., 262 S.W.2d 761 (n.w.h.); McCormick et al. v. Kempmann, supra, [102 Tex. 215, 115 S.W. 24]; Venuto v. Strauss, Tex.Civ.App., 415 S.W.2d 543 (n.w.h.).”

The trial Court did not err in granting judgment based on the written note, and it follows that it did not err in excluding Appellant’s proffered evidence as to such oral agreement. The judgment of the trial Court is affirmed.


text:
    The CITY OF LAKE DALLAS et al., Appellants, v. LAKE CITIES MUNICIPAL UTILITY AUTHORITY, Appellee.
    No. 17864.
    Court of Civil Appeals of Texas, Fort Worth.
    Aug. 4, 1977.
    Rehearing Denied Sept. 8, 1977.

      Shirley W. Peters, Denton, for appellants.
    Jack Gray, Denton, William N. Stokes, Jr., Lake Dallas, and Gary Tim Banks, Den-ton, for appellee.
   OPINION

SPURLOCK, Justice.

This appeal is from a summary judgment which permanently enjoined the City of Lake Dallas from taking over the assets and assuming the liabilities of, or in any other way interfering with the operations of, the Lake Cities Municipal Utility Authority pursuant to two city ordinances. These ordinances purported to adopt the provisions of Tex.Rev.Civ.Stat.Ann. art. 1182c — 1 (1963) and under such statutory authority, to abolish the Authority. The principal issue presented is whether the procedure contained in art. 1182c-l, § 2a may be used to abolish the Authority, instead of that in former Tex.Rev.Civ.Stat.Ann. art. 8280 — 293, § 17(a) (Water Auxiliary Laws, Table III, 1975 Pamphlet), which is now found in an amendment to the act by which the Authority was established. (Tex.Laws 1963, Ch. 312, as amended by Tex.Laws 1965, Ch. 599, § 3(a), at 1303).

We affirm.

The record reflects the following factual background. The City of Lake Dallas was incorporated for municipal purposes on September 30, 1960. Because of its history of political turmoil the City was unable to sell bonds in order to construct water and sewer facilities. As a result of this difficulty, and with septic tanks posing a serious health hazard to the community, legislation was sought to correct the problem and to meet the demands of state and county officials. Effective May 30, 1963, what was then known as the Lake Dallas Municipal Utility Authority was created by former Tex.Rev. Civ.Stat.Ann. art. 8280-293. To finance its operations the Authority issued general obligation bonds, of which $340,000.00 remain outstanding and unpaid.

Under the original provisions of art. 8280-293, members of the Authority’s board of directors were appointed by the Lake Dallas City Council, its tax rolls were those of the City, and its territory was coextensive with that of the City. When, on June 8, 1964, the City of Lake Dallas was disin-corporated following a city-wide election, the Authority was left without tax rolls or a means to fill vacancies on its board of directors.

Although a new City of Lake Dallas was incorporated on April 19, 1965, an effort was made to prevent the recurrence of a situation which might again render the Authority unable to function. Effective June 17, 1965, an amendment to art. 8280-293 allowed the creation and election of a board of directors by eligible residents of the Authority so that it would be able to function independently of the City of Lake Dallas, Tex.Laws 1965, Ch. 599, § 2, at 1301.

During the period that the City of Lake Dallas was disincorporated, the Town of Hickory Creek annexed seventeen acres of what had been the old City of Lake Dallas. The Authority continued to serve the residents of that area. After another amendment to art. 8280-293 permitting the addition of land to the Authority’s territory upon petition and hearing, .the Authority added to its territory an area within the corporate limits of the Town of Shady Shores, Tex.Laws 1969, Ch. 136, at 366. By contract the Authority also serves some areas of Denton County not within the corporate limits of any town or city.

In 1975 the Legislature again amended art. 8280-293 to reflect the new territorial limits of the Authority, changing its name from Lake Dallas Municipal Utility Authority to Lake Cities Municipal Utility Authority. Tex.Laws 1975, Ch. 655, at 1974.

On May 18, 1976, the Lake Dallas City Council passed the following ordinances:

I.
AN ORDINANCE OF THE CITY OF LAKE DALLAS, TEXAS ADOPTING THE PROVISIONS OF ARTICLE 1182c-l, VERNON’S ANNOTATED CIVIL STATUTES; AND DECLARING AN EFFECTIVE DATE.
WHEREAS, the City of Lake Dallas, Texas is desirous of taking over the assets and liabilities of the Lake Cities Municipal Utility Authority, and;
Article 8280 — 293 of Vernon’s Annotated Civil Statutes created the Lake Cities Municipal Utility Authority effective May 30, 1963, and;
WHEREAS, the City of Lake Dallas, Texas was an incorporated City at the time of the adoption of Article 8280-293 and the formation of Lake Cities Municipal Utility Authority, but since that time the City of Lake Dallas, Texas has been dissolved and was incorporated again on April 19, 1965, and;
WHEREAS, the land comprising the incorporated city limits of the City of Lake Dallas, Texas, on April 19,1965 was the same boundaries as existed for the City of Lake Dallas at the time the Lake Cities Municipal Utility Authority was created by the State Legislature;
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF LAKE DALLAS, TEXAS, HEREBY ORDAINS:
SECTION I.
That the City of Lake Dallas, Texas, hereby adopts the provisions of Article 1182c-l, Vernon’s Annotated Civil Statutes of the State of Texas,
II.
AN ORDINANCE ABOLISHING THE LAKE CITIES MUNICIPAL UTILITY AUTHORITY AND ASSUMPTION OF THE ASSETS AND LIABILITIES OF SAID MUNICIPAL AUTHORITY BY THE CITY OF LAKE DALLAS, TEXAS; DECLARING AN EFFECTIVE DATE WHEN SAID CITY SHALL TAKE OVER AND ASSUME ALL DEBTS AND ASSETS OF THE LAKE CITIES MUNICIPAL UTILITY AUTHORITY; AND DECLARING AN EFFECTIVE DATE.
WHEREAS, the City of Lake Dallas, Texas has previously adopted the provisions of Article 1182c-l, Vernon’s Annotated Civil Statutes, and;
WHEREAS, the services furnished and functions performed by the Lake Cities Municipal Utility Authority can be served and performed by the City of Lake Dallas, Texas, and;
WHEREAS, that it would be to the best interest of the citizens and property within said Lake Cities Municipal Utility Authority and the citizens and the property within the City of Lake Dallas, Texas that such Municipal Authority be abolished, and;
WHEREAS, the City of Lake Dallas, Texas is desirous of abolishing the Lake Cities Municipal Utility Authority and taking over the assets and liabilities of said Municipal Authority; now therefore THE CITY COUNCIL OF THE CITY OF LAKE DALLAS, TEXAS, HEREBY ORDAINS:
SECTION I.
That the City of Lake Dallas, Texas, pursuant to Article 1182c-l, Vernon’s Annotated Civil Statutes hereby abolishes the Lake Cities Municipal Utility Authority and takes over the assets and liabilities of said Municipal Authority.

In response the Authority sought and obtained by summary judgment a permanent injunction against the City, its mayor, Johnny J. Vinson, and city council members Roy V. Harper, W. L. Beene, James W. Hutto, J. C. Payne and Lee Roy W. Schramm, to prevent the take-over of the Authority.

The City’s two points of error are that the trial court erred in assuming jurisdiction and granting the Authority’s motion for summary judgment because in so doing, the court in essence held (1) that a quasi municipal corporation could maintain a suit to enjoin its own abolition despite the absence of a grant of the power to sue, and (2) that the Legislature was without authority to provide for abolishing a quasi municipal corporation by means of a city ordinance passed pursuant to art. 1182c-l.

The City in no way challenges the sufficiency of the proof offered in support of the Authority’s motion for summary judgment; it attacks only the trial court’s application of the law in this ease.

The City’s main argument under Point of Error Number One is that only the State of Texas may bring this action and that the court lacked jurisdiction to entertain a suit by a party lacking the legal authority to bring it. The City contends that even a municipality may exercise only such powers specifically granted it and those necessarily implied or incident to the powers expressly granted. As a quasi municipal corporation the Authority has still more limited powers: it has no powers beyond those clearly granted by the Legislature, and those powers granted will be strictly construed. The City argues that the Legislature’s failure to grant the Authority the power to sue was intentional, citing other examples in which the power to sue has been specifically granted: to water control and improvement districts. (Tex.Water Code Ann. § 51.099 (1972)), to fresh water supply districts (Tex. Water Code Ann. § 53.088 (1972)), and to municipal utility districts (Tex. Water Code Ann. § 54.119 (1972)). The City further contends, without citation, that in 1963, the Legislature created several conservation and reclamation districts, including the Authority, and in all but one or two instances, expressly granted them the power to sue.

The City also argues that a municipal corporation lacks the implied power to sue to prevent its own dissolution and, by logical extension, so does a quasi municipal corporation.

The Authority contends, on the other hand, that the City’s position is without merit because its plea in abatement (a) is insufficient in law to raise the issue of the Authority’s capacity, (b) was not properly brought to the trial court’s attention in order to obtain a ruling thereon, and (c) was waived when not made a part of and included in the City’s motion for summary judgment.

The Authority further asserts that in any event, the contention that the Authority is without capacity to bring this action is also without merit.

We will first discuss the propriety of the City’s challenge to the Authority’s capacity to bring suit for injunctive relief.

The granting of the Authority’s motion for summary judgment in this case does not, as the City contends, amount to a holding that a quasi municipal corporation may maintain a suit in the absence of a grant of power to sue. The City failed to challenge properly the Authority’s alleged lack of capacity. If the City’s challenge is based on its plea in abatement, it did not make any definite allegations concerning the Authority. It merely alleged that there were “other proper and necessary parties, to-wit; the State of Texas” (emphasis added), and it did not set forth the factual basis for this allegation. Altgelt v. Texas Co., 101 S.W.2d 1104 (Tex.Civ.App.—Austin 1937, writ dism’d). Nor does the record reflect that the City sought and obtained a ruling on its plea. Having failed to do so, the City has waived any possible challenge to the Authority’s capacity on the ground of nonjoinder of the State. Watson v. Baker, 67 Tex. 48, 2 S.W. 375 (1886); Phillips v. Phillips, 223 S.W. 243 (Tex.Civ.App.—Austin 1920, no writ).

The City’s argument on appeal that the Authority is barred from maintaining this action because it lacks statutory authority to do so is also waived. The City failed to plead as a bar to this action the alleged lack of statutory authority to sue and may not raise it for the first time on appeal. Bank of Garvin v. Freeman, 107 Tex. 523, 181 S.W. 187 (1915); Phelps v. Connellee, 285 S.W. 1047 (Tex.Com.App. 1926, jdgmt adopted).

The central question under the City’s second point of error is which statute governs the method of abolition of the Authority: art. 1182c-l, § 2a (Supp.1976-77) of the general law or former art. 8280-293, § 17(a) which is contained in the act creating the Authority (Tex.Laws 1963, Ch. 312 as amended by Tex.Laws 1965, Ch. 599, § 3(a), at 1303.

The City relies on and acted in accordance with art. 1182c-l, § 2a (Supp.1976-77) which authorizes the governing body of a city to abolish any water control and improvement district, fresh water supply district or municipal utility district which has “heretofore been or which may hereafter be created out of territory which, at the time of such creation, was situated wholly within the corporate limits of any incorporated city . by a vote of not less than two-third (⅜) of the entire membership of its governing body. [The governing body may] adopt an ordinance abolishing such . district if such governing body finds (a) that such district is no longer needed or (b) that the services furnished and functions performed by such district can be served and performed by the city and (c) that it would be to the best interests of the citizens and property within said district and the citizens and property within such city that such district be abolished. . . .”

The Authority argues in opposition that the attempted abolition is void because there was no “majority vote of the taxpaying qualified voters residing in such Authority at an election held for the purpose of determining whether or not such Authority shall be abolished,” as required by art. 8280-293, § 17(a) (Tex.Laws 1965, Ch. 599, § 3(a), at 1303).

The City concedes that there might be some merit to the Authority’s position that art. 8280-293, § 17(a), rather than art. 1182c-l, provides the exclusive method for abolition of the Authority if art. 8280-293 were a “special or local law.”

We disagree with the City’s implied categorization of art. 8280-293 as a general law and consequently cannot accept its primary contention.

The City cites three cases for its proposition that art. 8280-293 is not a local law: County of Cameron v, Wilson, 160 Tex. 25, 326 S.W.2d 162 (1959); Brown v. Memorial Villages Water Authority, 361 S.W.2d 453 (Tex.Civ.App.—Houston 1962, writ ref’d n. r. e.); Walling v. North Central Texas Mun. Water Authority, 359 S.W.2d 546 (Tex.Civ.App.—Eastland 1962, writ ref’d n. r. e.). But in all three cases the challenge made and rejected was that the act creating the respective entities was a “local” or “special” law within the meaning of the prohibition in Tex. Const, art. Ill, § 56, which prohibits the passage of such laws concerning enumerated subjects “except as otherwise provided” in the Constitution. The City’s apparent position is that an act is not local or special in any sense, if, though operating in a defined area, it also “operates on a subject in which the people of the State are interested, that is, the conservation and development of natural resources.” Brown, supra at 456. Neither Brown nor the other two cases cited by the City support this position.

Article 8280-293 is unquestionably a “local or special” act. “A local act is an act applicable only to a particular part of the legislative jurisdiction. A special or private act is a statute operating only on particular persons or private concerns.” Vincent v. State, 235 S.W. 1084, 1086 (Tex.Com.App. 1921, jdgmt adopted).

Thus we are presented with a conflict between the methods of abolition contained in the general law for water control and improvement districts, fresh water supply districts, and municipal utility districts (art. 1182c-l, § 2a) and that contained in a local law for the Authority (former art. 8280-293, § 17(a); Tex.Laws 1965, Ch. 599, § 3(a), at 1303).

To resolve this conflict we must look to the intent of the Legislature. The City argues that because the general law was passed after art. 8280-293, it was intended to control. But it is well settled that provisions in a general act will not control those in a local or special act unless there is clear evidence of such legislative intent. Jefferson County v. Board of County and Dist. R. Indebt., 143 Tex. 99, 182 S.W.2d 908 (1944). In the absence of clear evidence that the Legislature intended the general law to control, the local or special act is deemed the more accurate reflection of legislative intent.

As a further indication of legislative intent concerning the Authority, we note that rather than referring to, or incorporating the general law concerning the method of abolition, art. 8280-293 spells out in detail the procedure to be followed. Aikin v. Franklin County Water District, 432 S.W.2d 520 (Tex.1968). In contrast, art. 8280-293 specifically incorporates the general law concerning elections held by the Authority (§ 14(d)) and condemnation (§ 9(a)).

Accordingly, we hold that former art. 8280-293, § 17(a) (Tex.Laws 1965, Ch. 599, § 3(a), at 1303), provides the exclusive procedure for abolition of the Authority. It is undisputed that the requirements of that statute for abolition of the Authority have not been met.

Having thus determined that art. 1182c-1, § 2a does not apply to the Authority, we need not discuss the City’s arguments under Point of Error Number Two concerning the proper construction of that statute.

Both points of error having been considered and overruled, the judgment is affirmed.

       Art. 8280-293 is listed in Tex.Rev.Civ.Stat.Ann., Water Auxiliary Laws, Table III (1975 Pamphlet), an “Alphabetical Table of Districts Created And/Or Validated Pursuant to Const, art. 16, § 59,” which gives the following explanation:
      “Pursuant to Const. Art. 16, § 59, a number of water districts were created and/or validated by legislative act, many of which were classified to Title 128, Water, of Vernon’s Texas Civil Statutes. They have not been repealed and are not carried into the Water Code. They have been dropped from Vernon’s Texas Civil Statutes as special laws.” (Emphasis added.)
      The provisions of former art. 8280-293 are now contained only in Tex.Laws 1963, Ch. 312, as amended by Tex.Laws 1965, Ch. 599, Tex. Laws 1969, Ch. 136 and Tex.Laws 1975, Ch. 655.


author: MeCLOUD, Chief Justice.

text:
    BRAZOS ELECTRIC POWER COOPERATIVE, INC., Appellant, v. SOUTHWESTERN GAS PIPELINE, INC., Appellee.
    No. 5019.
    Court of Civil Appeals of Texas, Eastland.
    Aug. 4, 1977.

      Philip R. Segrest, Smith, Segrest, Mills & Cameron, Waco, Tom Creighton, Creighton & Cleveland, Mineral Wells, for appellant.
    John P. Ritchie, Mineral Wells, Louis B. Paine, Jr., Houston, for appellee.
   MeCLOUD, Chief Justice.

This is a venue case. Plaintiff, Southwestern Gas Pipeline, Inc., sued defendant, Brazos Electric Power Cooperative, Inc., in Palo Pinto County seeking a declaratory judgment that its written contract to furnish natural gas to Brazos Electric was terminated as of June 30, 1976, because defendant failed to comply with certain provisions of the contract. Brazos Electric filed a plea of privilege asserting that its residence was in McLennan County. Southwestern Gas filed a controverting plea alleging venue was proper under Subdivisions 5 and 23 of Article 1995, Vernon’s Ann.Civ.Stat. The trial court overruled defendant’s plea of privilege and it has appealed. We reverse and render.

Brazos Electric first argues that we should dismiss the case because under the recently enacted Public Utility Regulatory Act, Article 1446c, Vernon’s Ann.Civ.Stats., exclusive jurisdiction to hear the subject matter of the cause is expressly given to the Texas Railroad Commission. Defendant cites Southwestern Bell Tel. Co. v. City of Kountze, 543 S.W.2d 871 (Tex.Civ.App.—Beaumont 1976, no writ) as authority for dismissal, and points out that Sec. 19(b) of the Public Utility Regulatory Act provides that the “railroad commission shall have exclusive original jurisdiction over the rates and services of gas utilities distributing natural gas or synthetic gas in areas outside the limits of municipalities.” Southwestern answers that the instant case involves termination rights under a contract and argues the Act does not give the Texas Railroad Commission exclusive jurisdiction to determine such issues. It relies upon Railroad Commission of Texas v. City of Austin, 524 S.W.2d 262 (Tex.1975); Southern Union Gas Co. v. City of Port Neches, 544 S.W.2d 176 (Tex.Civ.App.—Beaumont 1976, no writ); and Crystal City v. Lo-Vaca Gathering Company, 535 S.W.2d 722 (Tex.Civ.App.—El Paso 1976, ref. n. r. e.), in support of its argument.

This is an appeal of an interlocutory order under Article 2008, Vernon’s Ann.Civ. Stats., and we have jurisdiction only to consider venue questions. The rule restricting our jurisdiction was stated clearly in Johnson v. Sharpstown State Bank, 508 S.W.2d 73 (Tex.1974), wherein the court said:

“Plaintiff, Emery 0. Johnson, sued the Defendants, Sharpstown State Bank, et al., a state bank in liquidation, seeking to have a note to said bank declared void. The suit was filed in Dallas County. The bank is domiciled in Harris County. Upon the bank’s plea of privilege and in accordance with Article 342-801 et seq., V.A.C.S., the trial court in Dallas County transferred the cause to the District Court of Harris County. Emery O. Johnson appealed to the Court of Civil Appeals on points of error dealing with venue. The Court of Civil Appeals dismissed the cause, reasoning that Article 342-801 et seq. provided exclusive jurisdiction in Harris County. Tex.Civ.App., 503 S.W.2d 667.
An order sustaining or overruling a plea of privilege is interlocutory. It is appealable only by virtue of Article 2008. The Court of Civil Appeals had jurisdiction to consider only the questions concerning venue. Its dismissal of the cause conflicts with Article 2008 and Texas State Board of Examiners in Optometry v. Carp, 162 Tex. 1, 343 S.W.2d 242 (1961).”

The contract in question which designates Plaintiff, Southwestern Gas Pipeline, Inc., as “Seller” and defendant, Brazos Electric Power Cooperative, Inc., “Buyer”, provides in part:

“Buyer owns and operates an electric generating station in Parker County, Texas, situated approximately twelve miles east of the City of Weatherford, Texas (which station is sometimes referred to as ‘the NTSP Plant’), and an electric generating station in Palo Pinto County, Texas, situated approximately nine miles northeast of the City of Gordon, Texas, (which station and any enlargements thereof, additions thereto and extensions thereof and herein referred to as the ‘Miller Plant’) and which stations and the related facilities and any enlargements and additions thereto are herein referred to collectively as ‘the Plants’:
The points of delivery of all gas sold and delivered by Seller to Buyer hereunder shall be at the outlet side of Seller’s regulating and metering stations at or near the sites of the Plants to which the same is delivered.
Buyer agrees that on or before October 1, 1972, it will submit to Seller a written estimate of the daily maximum and annual total fuel requirements for the Buyer’s Plants for the calendar years 1973 through 1977. On or before October 1 of each year thereafter, Buyer shall submit to Seller a written estimate of the daily maximum and annual total fuel requirements for the fifth succeeding calendar year, and Buyer further agrees to take or pay for a minimum of eighty (80) percent of such annual total fuel requirement estimates.”

Keith Klugston, Vice-President and General Manager of Southwestern Gas, testified that Southwestern sold gas under the contract to Brazos Electric in Palo Pinto County. He stated that Brazos Electric had not taken or paid for eighty percent of its fuel requirements during the year 1975. On cross examination he testified: “they did not take their estimated annual value, eighty percent of that.” He also testified that to his knowledge Southwestern Gas had not rendered a bill to Brazos Electric showing the amount it was deficient and Brazos had never refused to pay any amount it might be deficient.

Southwestern Gas argues venue is proper in Palo Pinto County under Subdivisions 5 and 23 of Article 1995, Vernon’s Ann.Civ.Stats. We disagree.

There is no evidence, as required by Subdivision 5, that the written contract by its terms provides for performance in Palo Pinto County of the obligation sued upon. Also, there is no evidence, as required by Subdivision 23, that the contract was breached in Palo Pinto County.

The contract expressly provides that payment is to be made in Houston, Texas. To establish a breach, plaintiff must first establish a duty. Under the contract defendant had the option to “take” gas at its plant in Palo Pinto County, or at its plant in Parker County, or it could “pay” for the gas not taken. Plaintiff could not require defendant to “take” any gas in Palo Pinto County.

Plaintiff points out it is not seeking damages for defendant’s failure to pay, but is seeking termination of the contract because of defendant’s failure to comply with its terms. Defendant cites Lone Star Gas Co. v. Municipal Gas Co., 117 Tex. 331, 3 S.W.2d 790 (1928) as authority in support of its argument that the forfeiture or termination clause in the contract is against public policy and plaintiff is relegated to its remedy in damages. We will not decide the issue of the enforceability of the forfeiture clause.

Plaintiff seeks to terminate the contract because defendant has breached the “take or pay” clause. This is the obligation in question whether plaintiff seeks damages or termination as a remedy. The fact that defendant has received gas in Palo Pinto County is not controlling. The only obligation that plaintiff could rely upon for termination is the failure to “pay” because defendant has no obligation under the contract to “take” any gas at its plant in Palo Pinto County. Defendant has the option to “take or pay”. We hold that plaintiff has failed to prove that venue is proper in Palo Pinto County. See Rorschach v. Pitts, 151 Tex. 215, 248 S.W.2d 120 (1952) and Delhi Gas Pipeline Corporation v. Allgood, 492 S.W.2d 651 (Tex.Civ.App.—Tyler 1973, no writ).

Judgment of the trial court is reversed and judgment is rendered transferring the cause to McLennan County.

      . Subdivision 5 states in part: “Contract in writing, (a) Subject to the provisions of Subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

      . Subdivision 23 states in part: “Corporations and associations. Suits against a private corporation, association, or joint stock company may be brought in the county in which its principal office is situated; or in the county in which the cause of action or part thereof arose;