author: GUITTARD, Chief Justice.

text:
    Ex parte Rickey Lee WEST.
    No. 19464.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 17, 1977.

      Kenneth D. Fuller, Garland, for appellant.
    Charles H. Await, Dallas, for appellee.
   GUITTARD, Chief Justice.

This application for writ of habeas corpus raises the question of whether the new family district courts have jurisdiction to enforce by contempt proceedings the orders of the domestic relations courts which they replace. We hold that they do have such jurisdiction.

The question arises under the Family District Court Act, Tex.Laws 1977, ch. 859 at 2144. This Act “substitutes district courts of general jurisdiction, to be called family district courts, for the existing domestic relations and special juvenile courts.” Id., § 1.02(a). Among the new family district courts created by the Act is the 330th District Court, which “replaces the Court of Domestic Relations No. 4 of Dallas County.” Id., § 2.31. The former domestic relations and special juvenile courts are abolished by repeal of the acts creating them. Id., § 3.04. With respect to pending cases, the Act provides:

Sec. 3.03 When a family district court is created:
(1) all cases pending in the replaced court are transferred to the family district court which replaces it; and
(2) all process and writs pending in or issued by the replaced court are transferred to the family district court which replaces it and are returnable to that family district court.

This act became effective September 1, 1977.

In the present case the record shows that on December 4,1974 the Domestic Relations Court No. 4 of Dallas County ordered relator, Rickey Lee West, to make certain payments for the support of his child. On August 12, 1977 a motion for contempt was filed in that court, alleging that relator had willfully disobeyed the order and that certain payments were in arrears. On the same day the judge of the domestic relations court signed an order requiring relator to appear before the court on September 13, 1977, and show cause why he should not be held in contempt. We assume that notice of this order was promptly served on relator, although no copy of the notice of the return is in the record before us, since relator makes no complaint of lack of notice.

On September 1, 1977, under the provisions of the Family District Court Act, the Domestic Relations Court No. 4 was replaced by the 330th District Court. The motion for contempt was heard by the new court on October 25, and on that day the judge signed an order finding relator in contempt and ordering him to be confined in jail until he should purge himself of contempt by payment of the arrearage and an attorney’s fee. He applied to this court for a writ of habeas corpus on the ground that the order of commitment was void because the 330th District Court had no authority to enforce by contempt the order of the Domestic Relations Court No. 4. We granted bail under the provisions of Tex. Rev.Civ.Stat.Ann. art. 1824a (Vernon Supp. 1976), heard arguments of counsel, and on November 7 announced our decision denying the writ and remanding relator to he custody of the sheriff. We now state the reasons for that decision.

Relator bases his argument on the general rule that one court has no authority to enforce by contempt the orders of another court. Alternatively, he argues that even if the family district court has jurisdiction to punish a contempt occurring after the effective date of the transfer of the case to that court by the terms of the Act, it had no jurisdiction to punish a contempt of the domestic relations court that occurred before the transfer. In support of these contentions, relator cites such cases as Ex parte Gonzales, 111 Tex. 399, 238 S.W. 635, 636 (1922); Ex parte Depew, 119 Tex. 63, 24 S.W.2d 813 (Tex.Comm.App.1930, judgment adopted); Carlson v. Johnson, 327 S.W.2d 704 (Tex.Civ.App.—Houston 1959, no writ).

We conclude that the authorities cited are not controlling because in each of those cases the court that issued the original order still existed and could have enforced the order, whereas in this case the domestic relations court was abolished and “replaced” by the family district court. In this respect the intent of the legislature, though perhaps not expressed as explicitly as it might have been, is nevertheless reasonably clear, since § 3.03 of the Act provides not only for transfer of all pending cases to the family district court, but also provides that “all process and writs pending in or issued by the replaced court are transferred to the family district court which replaces it and are returnable to that family district court.” This provision, by necessary implication, confers jurisdiction on the family district court to act upon all matters, including contempt matters, that were pending in the domestic relations court before the transfer.

Relator further contends that if the act is construed as authorizing the family district court to enforce the orders of the former domestic relations court, it is unconstitutional because such action would be beyond the powers conferred on district courts by the Texas Constitution, article 5, § 8. He refers particularly to that part of § 8 which provides that district courts “shall have power to issue writs of habeas corpus, mandamus, injunction and certiorari, and all writs necessary to enforce their jurisdiction.” This language, he argues, restricts the contempt powers of the family district court to enforcement of its own orders.

We cannot accept this restrictive interpretation of the constitutional language. Appellant’s argument assumes the main point at issue, that is, whether the family district court has jurisdiction to enforce the orders of the domestic relations court. If it has such jurisdiction, then, under the constitutional provision quoted, it has power to issue the necessary writs to enforce that jurisdiction. In our view other provisions of § 8 are broad enough to confer such jurisdiction on the district court. That section provides that such courts “shall have general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution, and such other jurisdiction, original and appellate, as may be provided by law.”

In view of this broad language, we do not think that the provision relied on by relator can properly be interpreted as restricting the power of the legislature to confer on the new family district courts full power to enforce the orders of the former domestic relations courts. If relator’s view were adopted, no court would have jurisdiction of a proceeding to enforce by contempt the orders of the abolished domestic relations courts. Such a restrictive interpretation would be contrary to the express provision conferring on the district court jurisdiction “over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution.” Moreover, the general constitutional power conferred on the district court to exercise “such other jurisdiction, original and appellate, as may be provided by law,” gives the legislature clear authority to extend the jurisdiction of the family district courts in this respect.

Writ of habeas corpus denied.


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    ATLANTIC RICHFIELD COMPANY, Appellant, v. R. B. TRULL, et al., Appellees.
    No. 1207.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 23, 1977.
    Rehearing Denied Dec. 22, 1977.

      Ray T. Fortenbach, Stephen R. Kirklin, Childs, Fortenbach, Beck & Guyton, Houston, Oren B. Hamlin, Bay City, James R. Coffee, Dallas, for appellant.
    Ivan D. Hafley, Frank R. Douglass, Scott & Douglass, Austin, Bert L. Huebner, Bay City, for appellees.
   OPINION

YOUNG, Justice.

In this venue appeal R. B. Trull and twenty-one other plaintiffs sued Atlantic Richfield Company for the recovery of underpaid royalties and for the forfeiture of underdeveloped oil properties. ARCO filed a plea of privilege to be sued in Dallas County. Based upon Tex.Rev.Civ.Stat.Ann. art. 1995, subd. 14 (1964), the trial court overruled ARCO’s plea of privilege and ordered venue retained in Matagorda County. The defendant ARCO appeals. We affirm.

ARCO contended below and contends here that the Trulls pled their cause of action for forfeiture of oil properties in bad faith in order to maintain venue in Mata-gorda County; that the primary purpose of the Trulls’ suit was one for royalties instead of one for an interest in land; and that, therefore, its plea of privilege should have been granted.

This case arises out of two oil, gas and mineral leases entered into on June 30, 1958, by the Trulls as lessors, and a certain L. L. Dinkins, as lessee. One of these leases was given only by R. B. Trull, and covered only his undivided one-half interest in the minerals underlying a 376.95 acre tract of land in Matagorda County. The second lease was given by Florence M. Trull and the other appellees, including R. B. Trull, and covered all of the minerals underlying a 320 acre tract of land, which adjoins the R. B. Trull lease, in Matagorda County. Both leases were subsequently acquired by ARCO from L. L. Dinkins. These two leases have identical provisions, except for the names of the lessors and the descriptions of the tracts involved.

ARCO thereafter entered into a mutual development agreement with Mobil Oil Corporation, which had acquired a lease to the other undivided interests in the same property. From the period of 1960 through 1968 ARCO and Mobil drilled ten wells on the leased property, seven on the R. B. Trull lease and three on the Florence M. Trull lease. We are here concerned with the Frio A oil sand stratum located at approximately 8150 feet below the surface and the Frio gas sand strata located between 10,900 feet and 11,300 feet below the surface.

On June 30, 1976, Trulls brought a two count suit against ARCO in Matagorda County. Therein they alleged in the first count damages for drainage and failure to drill offset wells. They alleged in the second count damages for failure to pay the full amount of royalties due under the leases. On July 29,1976, ARCO filed its plea of privilege to be sued in Dallas County, its principal place of business. Thereafter on August 9, 1976, Trulls filed their first amended original petition and controverting plea. The amended petition supplanted the original first count for drainage with a count for a declaratory judgment asking the court to declare that the lease as to the Frio A oil sand and the Frio gas sands had been forfeited because of lack of reasonable development. Trulls in their controverting plea maintained that because of the forfeiture count, which is a suit to recover title to lands, venue should remain in Matagorda County under Subdivision 14. ARCO then filed an amended plea of privilege which alleged that the forfeiture cause in count one of the first amended original petition was brought in bad faith.

At the hearing to the court without a jury, it was uncontroverted that the Trulls’ petition was amended after Trulls had told their attorney that they did not desire a cause for drainage and after Mr. George, a petroleum expert, had informed them that several sands above and below those being produced were capable of commercial productivity.

Also at the hearing, Mr. George testified that the leases herein had only two wells completed in the Frio A oil sand and that several other wells could be either drilled or dually completed profitably in this sand. Additionally, he said that the Frio gas sand strata had been encountered in one well on the R. B. Trull lease and that these sands were capable of profitable development. Whereupon the trial court entered an order overruling ARCO’s plea of privilege and therein specifically found that Trulls’ first amended original petition and controverting plea were filed in good faith.

Findings of fact and conclusions of law need not be filed in a plea of privilege case. See Rule 385(e), T.R.C.P. Where they are not filed, the judgment may be affirmed if there is sufficient evidence to support it upon any lawful theory. Every issue sufficiently raised by the evidence must be resolved in support of the judgment. Holiday Lodge Nursing Home, Inc. v. Huffman, 430 S.W.2d 826 (Tex.Civ.App.—Texarkana 1968, no writ); Bryant v. Kimmons, 430 S.W.2d 73 (Tex.Civ.App.—Austin 1968, no writ).

In this appeal, ARCO brings forth eight points of error. Points one through five generally allege the trial court erred in holding that Trulls’ count one for recovery of land was brought in good faith because the court erred in interpreting the forfeiture clause in the leases herein mentioned.

The venue facts under Subdivision 14 are: 1) the nature of plaintiffs’ claim and 2) the location of the land. But when the defendant alleges bad faith, the additional issue of bad faith is raised for decision on the venue hearing. Noel v. Griffin & Brand of McAllen, Inc., 478 S.W.2d 633 (Tex.Civ.App.—Corpus Christi 1972, no writ), Batex Oil Company v. LaBrisa Land and Cattle Company, 352 S.W.2d 769 (Tex.Civ.App.—San Antonio 1961, writ dism’d). To prove bad faith in our case, ARCO must show: 1) that a valid claim for forfeiture of certain oil sands does not exist and 2) that lessors knew or should have known this at the time they filed suit. See Hagan v. Anderson, 513 S.W.2d 818 (Tex.Sup.1974).

In each lease the provision in issue here provides:

“8. If at the expiration of the primary term oil or gas in paying quantities has been discovered on the lease premises, or if thereafter oil or gas is discovered in paying quantities on said premises under the terms hereof, lessee shall proceed to reasonably develop the acreage retained hereunder, but in discharging this obligation lessee shall in no event be required to drill more than one well per forty (40) acres of the area retained hereunder and capable of producing oil in paying quantities or more than one well per 160 acres of the area retained hereunder and capable of producing gas in paying quantities above the depth of 6500', or more than one well per 320 acres of the area retained hereunder and capable of producing gas in paying quantities below the depth of 6500', from the surface of the ground. It is agreed, however, that lessee shall reasonably develop all sands encountered on the leased premises capable of producing oil or gas in paying quantities. In discharging said obligation to reasonably develop, it is agreed that Lessee shall within a reasonable time after the expiration of the primary term, or after the completion of the initial discovery well (if it be after the expiration of the primary term), but in no event later than six months thereafter, commence drilling operations on the first such well and shall thereafter not allow more than six months to elapse between completion or abandonment of one well and the commencement of actual drilling of a subsequent well until the acreage covered hereby has been developed to the density stated above. Failure of lessee to reasonably develop the leased premises as above provided shall cause a forfeiture and termination of this lease as to all acreage covered hereby SAVE AND EXCEPT as to forty (40) acres around each producing oil well or 160 acres around each producing or shut-in gas well above the depth of 6500', or 320 acres around each producing or shut-in gas well below the depth of 6500', said retained tracts to be as nearly in the form of a square as practicable with the well or wells in the approximate center thereof.”

Trulls pursue their forfeiture cause pursuant to the above language which provides: “lessee shall reasonably develop all sands encountered on the leased premises capable of producing oil and gas in paying quantities.” They further rely upon: “Failure of lessee to reasonably develop the leased premises as above provided shall cause a forfeiture and termination of this lease. . . . ”

It was the uncontroverted testimony of Mr. George that the Frio A oil sand and the Frio gas sands had not been reasonably developed. As a result, Trulls sued for forfeiture of those sands encountered but not developed.

ARCO on the other hand, in order to satisfy the two requirements for showing bad faith, (Hagan, supra), contends that the “Save and Except” clause of paragraph 8 precludes any possibility of a forfeiture in that the Florence M. Trull lease of 75 acres has two producing oil wells (40 acres each) and two deep gas wells (320 acres each), enough to prevent forfeiture on 720 acres. It also contends that the R. B. Trull lease of 314.5 acres has five producing oil wells (40 acres each) and two deep producing gas wells (320 acres each), enough to save 840 acres from forfeiture. ARCO contends that these facts coupled with the “Save and Except” clause in the forfeiture paragraph, prevent any possible action for forfeiture, and that Trulls knew or should have known this.

Trulls counter by saying the term “acres” in the savings clause means only surrounding acres in the sand stratum where a currently producing well lies. ARCO, however, argues that the term “acres” refers to a measure of land measured at the surface but including the earth beneath to the center of the earth, citing Shell Oil Company v. Stansbury, 401 S.W.2d 623 (Tex.Civ.App.—Beaumont), writ ref’d n. r. e., 410 S.W.2d 187 (Tex.Sup.1966).

Even if we assume, arguendo, that ARCO’s definition is correct, we find, after studying the record and the disputed paragraph, that the trial judge properly concluded that paragraph 8 of the lease was susceptible of a good faith interpretation in keeping with Trulls’ cause of action for forfeiture. Indeed, R. B. Trull himself gave the forfeiture provision this same interpretation in a letter written to ARCO, then Sinclair Oil & Gas Company, on October 15, 1963, demanding that certain sand strata be released for failure to develop certain encountered sands.

Consequently, we find that there was evidence to support the trial court’s judgment and that ARCO’s position was not established otherwise as a matter of law. Points one through five are overruled.

ARCO’s sixth point alleges the trial court erred in finding that the claim for failure to develop was asserted in good faith since the evidence established as a matter of law that Trulls agreed to and did accept payment in 1963 from ARCO in lieu of development, and Trulls knew this when their suit was filed. In passing on this legal insufficiency point, we must consider only the evidence and inferences which support the finding and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); Southern Pacific Transportation Company v. Peraiez, 546 S.W.2d 88 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.).

While we doubt that ARCO’s amended plea of privilege properly plead this affirmative defense of accord and satisfaction, it is not necessary for us to reach that issue. Upon our reviewing the entire record, we find there was evidence adduced at the venue hearing which would sustain the trial court’s implied conclusion that the consideration received by Trulls from ARCO in 1963, relative to the leases in issue, was payment for Trulls’ agreeing to allow a unit to cross the R. B. Trull and Florence M. Trull lease boundary lines, rather than payment in lieu of all future development on the contested leaseholds. ARCO’s sixth point is overruled.

ARCO claims in its seventh and eighth points of error that the principal right asserted and relief sought by Trulls in this lawsuit is a claim for underpaid gas royalties and, thus, the case does not fall within Subdivision 14. As we have noted, the venue facts which the Trulls had the burden to establish under Subdivision 14 were: 1) the nature of lessors’ claim and 2) the location of the land. The nature of a suit is determined by the principal right asserted in the petition and the relief sought. South Padre Development Company, Inc., etc. v. Texas Commerce Bank Nat., 538 S.W.2d 475 (Tex.Civ.App.—Corpus Christi 1976, no writ); 1 McDonald, Texas Civil Practice, § 4.22.2 (1965).

In the instant case there are two independent sets of facts which could give rise to liability and which arise out of a divisible contract. Thus, we have two separate and distinct causes of action. Universal Life & Accident Ins. Co. v. Shaw, 139 Tex. 434, 163 S.W.2d 376 (Tex.Sup.1942); Reserve Life v. Shelton, 415 S.W.2d 281 (Tex.Civ.App.—Austin 1967, writ dism’d). See also 1 Tex. Jur.2d Actions § 78 (1959).

If two or more causes of action are joined, the first question is whether at least one of the claims falls within Subdivision 14. 1 McDonald, Texas Civil Practice § 4.22.2 (1964). After inspecting the petition and controverting affidavit, we find the principal right and relief sought in Trulls’ first count is to recover certain lands. It comes within the requirements of Subdivision 14. The second count of Trulls’ petition is for the principal purpose of recovering the balance of unpaid royalties due. Consequently, there is no one primary or ultimate purpose to this suit. There is no need, as ARCO contends, to compare the two causes of action to see which cause contains the primary right sought. Brazos Valley Harvestore Systems, Inc. v. Beavers, 535 S.W.2d 797 (Tex.Civ.App.—Tyler 1976, writ dism’d); Wallace Investments, Inc. v. Blackstock, 384 S.W.2d 910 (Tex.Civ.App.—Houston 1964, no writ). See also Best Investment Company v. Parkhill, 429 S.W.2d 531 (Tex.Civ.App.—Corpus Christi 1968, no writ). ARCO’s points seven and eight are overruled.

The judgment of the trial court is affirmed.

      . “14. Lands. — Suits for the recovery of lands or damages thereto, or to remove incumbran-ces upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the County in which the land, or a part thereof, may lie.”


author: J. CURTISS BROWN, Chief Justice.

text:
    HOUSTON LIGHTING & POWER COMPANY, Appellant-Appellee, v. Annie FISHER et al., Appellees-Appellants.
    No. 1561.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 30, 1977.
    Rehearing Denied Jan. 4, 1978.

      Finis E. Cowan, Justin M. Campbell, Baker & Botts, Houston, for appellees-appel-lants.
    William H. White, Houston, for appellant-appellee.
   J. CURTISS BROWN, Chief Justice.

Both sides have appealed from the judgment rendered in this hard-fought condemnation case.

Houston Lighting and Power Company will be designated as appellant since that company perfected its appeal first. For the sake of brevity, Annie Fisher and others will be referred to as appellees even though they also occupy the position of cross-appellants.

Appellant’s sole point of error contends that the jury argument on behalf of appel-lees was improper in numerous respects. In their role as cross-appellants, appellees assign five points of error. The first complains that the trial court erred in overruling appellees’ motion for summary judgment on the grounds that the appellant had failed to pass, prior to the filing of the petition in condemnation, a resolution declaring a public necessity and convenience and authorizing the taking of the subject property by condemnation. The other four points attack the admission by the trial court of the testimony of one Hobart W. Enoch.

We consider, initially, appellant’s point of error relating to jury argument. The only complaint appellant makes concerns the following opening argument:

I am not going to intentionally mislead you about any of the testimony or anything that occurred in this trial. I am not going to infer to you that I did not ask an appraiser to make an appraisal, when I did. I am not going to infer to you that I didn’t write a letter to an appraiser asking him to make an appraisal, when I did.

Appellant believes that this argument amounts to an unwarranted attack on opposing counsel. We think that appellant is unduly sensitive. Evidence had been received concerning the relationship of appellant’s counsel with appellees’ witness Reed and whether he had written Reed concerning some other prior and unrelated case. With this background it is possible to infer that appellees’ counsel was not merely establishing his own virtue but left unsaid the suggestion that appellant’s counsel was not equally pure in heart. The argument was innocuous and not improper. There was no objection to it and the statement certainly was not of the nature as to constitute incurable error.

Following appellees’ opening argument appellant’s counsel made a strong and effective argument. During the course of his argument he took some pretty strong shots at appellees’ counsel:

Now, folks, Mr. White can talk to you all he wants about credibility of witnesses, but I would submit to you that his preaching in that regard maybe sort of falls on deaf ears when we look at the reality of the situation, which is that if what Otis Grahm told us was not true, Mr. White could have put a subpoena on Mr. Wilburn and established just exactly what the fact was.
Mr. White tries to blur that over and say they got one figure once and one figure later on. He is obscuring the facts.
And further,
Now, that makes some sense, I would submit to you, unless you distort it, the way I submit to you Mr. White has twisted it.

Counsel for appellant took occasion to praise the impartiality of Hobart Enoch, the tax assessor of the Goose Creek Independent School District, saying “he has absolutely no reason to put an artificially low value on the property because the higher the values the easier it is for the independent school district to assess taxes.” Appellant argued that counsel had “twisted the testimony of the witnesses” and suggested that the reference to evidence that land in the vicinity had been purchased by a light company employee was a “rabbit trail.” With respect to the witness Reed he said “. . . my quarrel is that George Reed has not with honesty and integrity applied the principles of his calling, nor has he made in his direct examination to you a full disclosure.” He went on to observe that while Reed was not “dishonest” he had played the “shell” game with the jury.

We do not consider any of the arguments made on behalf of the appellant to be erroneous, with the possible exception of that relating to the testimony of the tax assessor and collector. The argument taken as a whole, however, was of such a nature to invite a vigorous response. Appellees’ counsel made such a response in his closing arguments, and it is to these arguments that most of appellant’s complaints are directed. Appellant contends that three categories of improper argument are present: attacks upon appellant, attacks upon appellant’s valuation witnesses, and attacks upon appellant’s trial counsel. Some of the arguments complained of were borderline. However, appellees are correct in their claim that these improper comments were invited by or were made in response to appellant’s evidence and jury argument. The most serious complaint concerns the following argument:

He carried forward the same errors in the sales that he confirmed. He wants to tell you this man has been a professor for fourteen years and a teacher and that they have held these public offices.
Ladies and gentlemen, that’s kind of like saying defending the Watergate defendants because they held high public office, isn’t it?

This argument was unnecessary and improper. However, appellant’s objection was promptly sustained by the trial court and the jury instructed to disregard the argument.

In considering points relating to jury argument we follow certain well-settled principles. Counsel is not required to make such a luke-warm and sterile argument that the jury is unable to determine which side of the case he is on. Likewise, of course, counsel must be indulged the privilege of flights of oratory, and he is entitled to draw inferences from the evidence presented, whether reasonable or not.

Moreover, before a judgment is reversed because of improper argument of counsel, two elements must appear: (1) the argument must be improper; and (2) it must be such as to satisfy the reviewing court that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596, 599 (1953); see Goforth v. Alvey, 153 Tex. 449, 271 S.W.2d 404 (1954); Tex.R.Civ.P. 269(e), 434.

Jury argument is considered “curable” if an objection is required to preserve reversible error and the argument is one for which an instruction by the court to disregard is considered adequate relief. On the other hand, “incurable” argument is one that brings to the attention of the jury matters that could not have been properly presented in the case or are so prejudical and inflammatory that their harmfulness cannot be eliminated by an instruction from the court. An incurable argument may be one that appeals to passion or otherwise so as to make the suggestion that imaginary testimony has been presented, and which is not based upon testimony in the case. Otis Elevator Company v. Wood, 436 S.W.2d 324, 333 (Tex.Sup.1968); McNeil v. Current, 484 S.W.2d 394, 398 (Tex.Civ.App.-Houston [1st Dist.] 1972, writ ref’d n.r.e.); Utica Mutual Insurance Company v. Jacobs, 483 S.W.2d 500, 503 (Tex.Civ.App.-Houston [14th Dist.] 1972, no writ).

With the exception of the “Watergate” argument, most of the complaints by appellant relate to statements to which there was no objection. We cannot say that these arguments, viewed singly or as a whole, were reasonably calculated to cause and probably did cause the rendition of an improper judgment.

Appellant’s point of error is therefore overruled.

By way of cross appeal, appellees have raised five points of error. The first point challenges the trial court’s overruling of appellees’ motion for summary judgment based on appellant’s failure to confer jurisdiction on the court by presenting evidence that appellant’s Board of Directors had made by resolution a proper determination of public convenience and necessity for condemning appellees’ property.

In response to appellees’ motion for summary judgment, appellant presented the affidavits and depositions of several officers of appellant including the Chairman of the Board and the Secretary and Treasurer. It appears from this evidence that during the period 1961 to 1962,' appellant determined that additional generating facilities would be necessary to satisfy future demands. Various studies were conducted under the supervision of the Chairman of the Board by the Engineering and Rate and Economic Research Departments. These studies recommended the construction of the Cedar Bayou Project which would include the purchase of certain rights-of-way for transmission lines. In November 1966, a proposed annual budget for the following year was prepared encompassing the expenditure necessary to carry out this project. Included in this budget was the acquisition of the Cedar Bayou to Webster right-of-way which covered appellees’ nine acre tract. The budget also contained the statement: “[A]ll of the above rights-of-way are required for the expansion of the transmission system, and it is considered advisable to proceed with these purchases.” The Board of Directors specifically approved the budget by resolution at its regular meeting on December 7, 1966. In 1967, the Board again authorized the expenditure for the Cedar Bayou to Webster right-of-way. There was also a resolution passed in 1969, subsequent to the institution of condemnation proceedings, ratifying the prior determination of convenience and necessity for acquisition of the right-of-way.

Appellees argue that this action by the Board was insufficient. They contend that the Board was required to pass a resolution specifically declaring the convenience and necessity for condemnation. We agree that an entity vested with the power of eminent domain must make a determination of public convenience and necessity for the acquisition of property by condemnation. The cases cited by appellee indicate that a resolution is a proper method for declaring that this determination has been made. We have found, however, no ease which holds that such a formal resolution is the only method of declaring public convenience and necessity. See Maberry v. Pedernales Electric Cooperative, Inc., 493 S.W.2d 268 (Tex.Civ.App.-Austin 1973, writ ref’d n. r. e.); Horton v. County of Mills, 468 S.W.2d 876 (Tex.Civ.App.-Austin 1971, no writ); Stirman v. City of Tyler, 443 S.W.2d 354 (Tex.Civ.App.-Tyler 1969, writ ref’d n. r. e.); Vey v. City of Fort Worth, 81 S.W.2d 228 (Tex.Civ.App.-Port Worth 1935, writ dism’d); M. Rayburn, Texas Law of Condemnation § 84 (1960). For example, one case states that the governing body should adopt a resolution or “other action.” Maberry v. Pedernales Electric Cooperative, Inc., 493 S.W.2d at 270-71.

We note two cases cited by appellant in which no resolution of convenience and necessity was passed. In Bolin v. Brazoria County, 381 S.W.2d 206 (Tex.Civ.App-Houston 1964, no writ), the State Highway Commission passed orders directing the State Engineer to prepare engineering surveys and right-of-way deeds for the proposed construction of a highway facility. Subsequently, the Commission let a contract to build a road on part of the highway. The court held that from these facts it could be concluded that a determination of necessity and suitability was made by the Commission. Id. at 209.

In Boucher v. Texas Turnpike Authority, 317 S.W.2d 594 (Tex.Civ.App.-Texarkana 1958, no writ), the only evidence of a determination of convenience and necessity by the Texas Turnpike Authority’s Board of Directors was certain resolutions stating approval of a survey and appraisal of tracts required, and directions to the operating personnel to acquire the tracts by purchase or condemnation. The court found that those actions, along with the entire record on summary judgment, constituted a sufficient showing of compliance with the prerequisites of condemnation. Id. at 601-02.

In this case the Cedar Bayou Project was the subject of several years of studies by appellant’s departments. These studies were made for the purpose of determining the most practical and feasible location for the generating plant and connecting transmission lines. These studies resulted in a proposed budget which appellant’s Board of Directors approved by resolution. There was evidence that the members of the Board were not apprised of the specific details of the project including the necessity of acquiring the specific nine acre tract owned by appellees; however, considering the magnitude of this project, it would be unreasonable to require that each individual member of the Board be knowledgeable about every specific acquisition. It is sufficient that they approved the acquisition of a right-of-way from the plant to Webster, which included appellees’ tract. The budget itself stated that these acquisitions were “required” and “advisable” for the expansion of the transmission system. Considering these facts, we feel that appellant’s Board of Directors made the requisite determination of the convenience and necessity of acquiring appellees’ tract.

Appellees’ points of error two, three, four and five complain of the admission of the deposition of Hobart W. Enoch. Enoch had been Tax Assessor and Collector for the Goose Creek Consolidated Independent School District. He is also a certified Assessment Evaluator, a licensed Certified Texas Assessor, and a licensed real estate broker. Mr. Enoch was asked his opinion of the value of appellees’ property as of January 1,1969, and he stated that it was valued at $975.00 per acre. Appellees objected to the admission of this testimony, stating that this valuation was not based on the proper test of market value in condemnation proceedings, but rather, on the tax assessment of the property as of January 1, 1969. Appellant, on the other hand, argues that- Enoch did not testify to the tax assessment value of the appellees’ property, but only to his opinion of the market value which he defined as “the amount of money a willing seller and willing buyer would pay

In this regard, it is generally held that the value placed upon real property for the purposes of taxation by assessment without participation of the landowner is not evidence of its value for purposes other than taxation. See McLane v. Paschal, 74 Tex. 20, 11 S.W. 837, 839 (1889); West v. Houston Lighting & Power Co., 483 S.W.2d 352, 358 (Tex.Civ.App.-Houston [1st Dist.] 1972, no writ); see generally Annot., 39 A.L.R.2d 209 (1955). Such testimony is hearsay and represents an opinion not subject to cross-examination. West v. Houston Lighting & Power Co., 483 S.W.2d at 358; Annot., 39 A.L.R.2d 209 § 9 (1955). Exclusion of such testimony is also considered a rule of practicality, since tax assessments rarely reflect the true market value. 5 Nichols on Eminent Domain § 22.1 (3d ed. 1975).

While it is true that the manner in which counsel couched the question of valuation was in the form of Enoch’s opinion, we cannot overlook the fact that this witness was the tax assessor for property in Chambers County at the time of taking, and that his opinion was of the property value not at the time of taking but as of January 1,1969, a date more significant for tax assessment purposes than for determining the market value of the condemned property. We cannot condone appellant doing indirectly what it would be prohibited from doing directly. The court should have refused to allow such evidence. In this case, however, the jury’s answers to special issues on the value of the property condemned are clearly reflective of the valuation given by the other witnesses and do not appear to have been influenced by Mr. Enoch’s testimony. Under such circumstances we consider the trial court’s error in admitting the deposition into evidence to have been harmless. See State v. Stiefer, 443 S.W.2d 275 (Tex.Civ.App.-Tyler 1969, writ ref’d n.r.e.).

The judgment of the trial court is affirmed.

Affirmed.


author: SPURLOCK, Justice.

text:
    Virgil N. MILLS, Appellants, v. Leota Edith MILLS, Appellee.
    No. 17927.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 1, 1977.
    Rehearing Denied Dec. 29, 1977.

      Short & Copeland and Donald E. Short, Wichita Falls, for appellants.
    Hogan, Fudge & Elder and Billy T. Elder, Burkburnett, for appellee.
   OPINION

SPURLOCK, Justice.

Husband (hereafter known as appellant) has appealed from that portion of a judgment in a divorce suit granting attorney’s fees on behalf of the wife (hereinafter known as appellee.)

Wife has also perfected an appeal; her complaint is in the form of a cross point.

Affirmed in part and reversed and remanded in part.

On September 2,1976, husband filed for a divorce from his wife. The final judgment awarded appellee-wife $3500.00 for legal services in the trial court and $1,000.00 for legal services in case of an appeal. These attorney’s fees constitute the basis of this appeal.

We will not discuss appellant’s points of error in the sequence in which they appear in his brief. By his third point of error, appellant contends that the trial court abused its discretion in awarding to appel-lee attorney’s fees in the amount of $4500.00.

Tex. Family Code Ann. § 3.63 (1975) directs the trial court in a divorce or annulment to “order a division of the estate of the parties in a manner that the court deems just and right, having due regard to the rights of each party and any children of the marriage.” This was also the law in Texas prior to the adoption of the Family Code. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950). In Carle, supra, the supreme court wrote:

“The attorney’s fee is but a factor to be considered by the court in making an equitable division of the estate, considering the conditions and needs of the parties and all of the surrounding circumstances. . . .” Id. at 1005.

In making a division of the community property of the parties, the trial court has wide discretion, and such discretion will not be disturbed on appeal in the absence of an abuse of discretion by the trial court. Lipshy v. Lipshy, 525 S.W.2d 222 (Tex.Civ.App.—Dallas 1975, writ dism’d).

The recovery of an attorney’s fee in a divorce case can be based upon proof (inter alia) of disparate earning capabilities, different business opportunities, the relative abilities of the parties, the relative financial standing of the parties, their physical conditions, their probable future needs for support, educational background, fault in breaking up the marriage, and the benefits the innocent spouse would have received from a continuation of the marriage. Lipshy v. Lipshy, supra; Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ); Houssiere v. Houssiere, 389 S.W.2d 533 (Tex.Civ.App.—San Antonio 1965, no writ).

With regard to the appellant, the evidence shows that (1) he initiated the divorce proceedings, (2) he is a successful and experienced businessman, and (3) he received all of the income-producing property and cash. As for the appellee, the evidence shows that (1) she has no previous business or job experience, (2) she has an eighth grade education, (3) she has had major back surgery, and (4) she received no income-producing property or cash.

On the evidence before us, we hold that the trial court did not abuse its discretion in ordering the husband to pay the $4500.00 in attorney’s fees for appellee. We overrule appellant’s third point of error.

By his first and second points of error, appellant contends that (1) there was no evidence of probative force to sustain the award of attorney’s fees, and (2) that there was insufficient evidence to sustain such an award.

In reviewing the evidence, this court is bound by the rules as set forth in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Gary Dobbs, a certified family law specialist, testified that a reasonable attorney’s fee for legal services rendered through the trial in the court below, would be from $7500.00 to $9500.00. He had reviewed the appellee’s attorney’s file and the property settlement agreement.

Evidence is necessary to sustain an award of attorney’s fees. Great American Reserve Insurance Co. v. Britton, 406 S.W.2d 901 (Tex.1966). Britton, supra, holds that the trial judge may not adjudicate the reasonableness of an attorney’s fee without evidence. There is no evidence in the record as to what a reasonable attorney’s fee would be for an appeal. We sustain appellant’s “no evidence” point of error insofar as it relates to the $1000.00 attorney’s fee awarded in case of an appeal. We also sustain appellant’s “insufficient evidence” point insofar as it relates to the $1000.00 attorney’s fee in case of an appeal.

Appellee has brought forth one cross point of error; i. e., she contends that the trial court erred in rendering judgment for only $4500.00 in that the trial court abused its discretion in disregarding the uncontradicted testimony of Mr. Dobbs that a reasonable attorney’s fee would be somewhere between $7500.00 and $9500.00. The factfinder is not bound by the opinion testimony of an expert witness, but it may accept or reject any or all of it. Tix v. Employers’ Casualty Co., 368 S.W.2d 105 (Tex.Civ.App.—Houston 1963, no writ). We overrule appellee’s cross point.

Since we must reverse the trial court’s judgment insofar as it relates to attorney’s fees for the appeal, we have concluded that the interests of justice would be best served by a remand of the case on the issue of what a reasonable attorney’s fee would be for an appeal. Huntley v. Huntley, 512 S.W.2d 767 (Tex.Civ.App.—Austin 1974, no writ); Harding v. Harding, 461 S.W.2d 235 (Tex.Civ.App.—San Antonio 1970, no writ), subsequent appeal after remand, 485 S.W.2d 297 (Tex.Civ.App.—San Antonio 1972, no writ), Tex.R.Civ.P. 434 (1976) provides in part:

“[I]f it appear to the court that the error affects a part only of the matter in controversy and that such part is clearly separable without unfairness to the parties; the judgment shall only be reversed and a new trial ordered as to that part affected by such error . . . .”

Also see Young- v. Hicks, 559 S.W.2d 343 (Tex.1977); Southwest Title Ins. Co. v. Northland Bldg. Corp., 552 S.W.2d 425, 430 (Tex.1977); Jack Pope and Daniel J. Shee-han, Jr., “Try, Try, Again . . .” A Proposal to Limit the Scope of New Trials in Texas, 7 St. Mary’s L.J. 1 (1975).

The portion of the judgment awarding appellee $3500.00 in attorney’s fees for the trial is affirmed, and the portion of the judgment awarding attorney’s fees for an appeal is reversed, severed and remanded to the trial court for a new trial on that issue. The costs of this appeal are taxed against the appellant.


author: HALL, Justice.

text:
    Bobbie M. THOMSON, Appellant, v. The CHARTER OAK FIRE INSURANCE COMPANY, Appellee.
    No. 5793.
    Court of Civil Appeals of Texas, Waco.
    Dec. 1, 1977.
    Thomas F. Ryan, Ryan & Dobbs, Houston, for appellant.
    Frank Gibbs, Vinson & Elkins, Houston, for appellee.
   HALL, Justice.

In this suit appellant Bobbie M. Thomson sought to recover workmen’s compensation benefits. After trial to a jury, a take-nothing judgment was rendered on the verdict against appellant. She appeals. We affirm.

In her single point of error appellant asserts the court erred in submitting an incorrect definition of the term “injury” to the jury and in refusing to submit her requested definition. Appellant’s only objection to the definition submitted was that she “objects to the definition of the injuries.”

Rule 274, Vernon’s Tex.Rules Civ.Proc., provides that a party objecting to a charge “must point out distinctly the matter to which he objects and the grounds of his objection,” and that any complaint “as to an instruction, issue, definition, or explanatory instruction, on account of any defect, omission, or fault in pleading, shall be deemed waived unless specifically included in the objections.” Appellant’s statement that she “objects to the definition” did not meet the specificity called for by this rule, and in effect was not an objection. Texas Employers’ Insurance Association v. Jones, 393 S.W.2d 305, 306 (Tex.Sup.1965). Appellant’s complaint was therefore waived.

The judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    Tom WHITIS and Joyce Whitis, Individually and d/b/a Whitis Holstein Farms, Appellants, v. John Edward DENTON, Appellee.
    No. 5813.
    Court of Civil Appeals of Texas, Waco.
    Dec. 1, 1977.
    Richard D. Coan, Coan & Terrill, P. C., Stephenville, for appellants.
    Daniel M. Francis and Betty Denton, Jones & Francis, Inc., Waco, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by Tom Whitis and wife from order of the trial court overruling their plea of privilege to be sued in Erath County, and involves Subdivisions 3, 29a and 31 Article 1995 VATS.

Plaintiff Denton, a resident of McLennan County sued defendants Tom Whitis and Joyce Whitis, residents of Erath County, and defendant Henry P. Bartel, a resident of Ellsworth, Wisconsin, in McLennan County, alleging Bartel, as agent for the Whitises, issued and mailed to plaintiff a brochure which induced plaintiff to attend a cattle sale at the Whitis farm; that pursuant to representations and warranties of defendants plaintiffs purchased two hol-stein cows, paying $2075. for same; that defendants and each of them jointly and severally represented to plaintiff the cows to be “straight and right in every respect unless otherwise stated,” and that no statements were made otherwise; that immediately upon purchase plaintiff discovered one cow had a mashed teat, and refused to take possession, demanding return of his money; that plaintiff took possession and moved the second cow to his farm and in two or three days discovered the cow’s udder contained a hidden and latent defect which was not reasonably available to plaintiff by ordinary inspection, and of which defect defendants knew or should have known; that the two cows were totally unfit for the purposes sold; and totally unfit under the warranty made by defendants and each of them; that plaintiff offered to return the cattle and demanded return of his purchase price to no avail. Plaintiff further plead breach of warranty of merchantability; that the cows were not fit for the purpose of milk cows; that defendants dishonor of warranty representation constitutes false, misleading or deceptive acts by defendants and each of them jointly and severally within the meaning of Sec. 17.46 Texas Business and Commerce Code; to plaintiff's damage.

Defendants Tom and Joyce Whitis filed plea of privilege to be sued in Erath County. Plaintiff controverted asserting venue maintainable in McLennan County under the Subdivisions 3, 29a and 31 of Article 1995 VATS.

The trial court after hearing overruled the Whitises’ plea of privilege.

The Whitises appeal on 3 points contending the trial court erred in denying their plea of privilege under Subdivisions 3, 29a and 31.

Subdivision 3 provides: “If one or all of several defendants reside without the State * * * suit may be brought in the County in which plaintiff resides”.

Subdivision 29a provides: “Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto”.

The facts necessary to maintain venue in McLennan County against Bartel under Subdivision 3 were established when it was proved that plaintiff is a resident of McLennan County, and that defendant Bar-tel resides outside of Texas. The existence of a cause of action is not an essential venue fact under that subdivision. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758, 764.

Ladner further holds: “When an action is maintainable in a particular county under some subdivision other than 29a, the plaintiff, if successful, will be entitled to certain relief in the suit which thus can be brought in such county. Every person whose join-der is necessary to afford the plaintiff the full relief to which he is entitled in the suit which can thus be maintained in that county is a necessary party within the meaning of Subdivision 29a. * * *

“Where the plaintiff, if he recovers, will be entitled to a joint judgment against two defendants and the suit is maintainable where brought as to one of the defendants under another subdivision of Article 1995, the other defendant is a necessary party within the meaning of Subdivision 29a”. Ladner v. Reliance Corp., supra p. 764.

There is evidence Bartel prepared a brochure (which is in evidence) warranting the cows purchased by plaintiff as “straight and right in every respect unless otherwise stated”; that such means the cow is sound in every respect; that the two cows were in fact defective and not fit for use as milk cows; that one had a mashed teat and the other a defective udder; that the cows were owned by the Whitises; that Bartel was their sales manager and agent; that Bartel received the $2075. from plaintiff; and reimbursed the Whitises later for their portion of the sale price; retaining a portion for himself for getting up the sale, preparing the brochure and conducting the sale.

Plaintiff expressly plead for rescission against defendants and tendered the cows to them. The proof supports this relief. The Whitises were necessary parties to plaintiff’s action against Bartel if plaintiff is to be accorded this relief.

The Whitises’ points are overruled.

AFFIRMED.


author: SHANNON, Justice.

text:
    Frank SMITH, Appellant, v. TRAVIS COUNTY BAIL BOND BOARD, Appellee.
    No. 12639.
    Court of Civil Appeals of Texas, Austin.
    Dec. 7, 1977.
    Rehearing Denied Jan. 4, 1978.
    Stephen M. Orr, Orr & Davis, Austin, for appellant.
    James L. McMurtry, Travis County Atty., Austin, for appellee.
   SHANNON, Justice.

Appellant, Frank Smith, appeals from the judgment of the district court of Travis County denying his application for a temporary injunction. Smith sought temporary relief pending judicial review of the order of the Travis County Bail Bond Board denying his application for a license to execute bail bonds. Appellee is the Travis County Bail Bond Board. We will affirm the judgment.

On April 15, 1974, the Board licensed Smith as a bondsman. Twenty-three months later on March 15, 1976, Smith wrote an informal letter to the Board requesting that the Board renew his license. The Board made no response to Smith’s letter. On January 13, 1977, Smith filed with the Board a formal application for a license. The Board entered its order thereafter on February 17,1977, denying Smith’s application. Smith then filed suit in the district court of Travis County for judicial review of the Board’s order.

In his suit Smith applied for a temporary injunction restraining the Board “ . . from in any way interfering with or denying the right of the Plaintiff [Smith] to post bail bonds in Travis County, Texas,” pending a final determination of his administrative appeal.

Texas Rev.Civ.Stat.Ann. art. 2872p-3 governs the licensing and regulation of bail bondsmen. Section 11 of the Act provides for an appeal from the order of the County Bail Bond Board revoking, suspending, or refusing to issue a license. The pertinent part of § 11 provides:

“An appeal shall be by trial de novo, as in proceedings appealed from justice to county courts. The decision of the board shall have full force and effect pending the determination of the appeal.’’ (Emphasis added).

Smith’s threshold problem in obtaining temporary relief from the order of denial pending review is found in the emphasized language of § 11. If that language is given effect, the judgment is correct.

Statutes which prohibit injunctions or stays of administrative orders pending judicial review are not uncommon, 2 Am. Jur.2d Administrative Law, § 739, and such statutes are not unconstitutional as violations of due process unless the party demonstrates that he has suffered the loss of a protected property right. Porter v. Investors Syndicate, 286 U.S. 461, 52 S.Ct. 617, 76 L.Ed. 1226 (1931); Francisco v. Board of Dental Examiners, 149 S.W.2d 619 (Tex.Civ.App.1941, writ ref’d).

The Board’s order did not cause the loss of a protected property right. Our reasons for that conclusion follow. Article 2372p-3 § 8(a) provides that a bail bond license expires twenty-four months after the date of its issuance. On March 15,1976, twenty-three months after the Board issued him a license, Smith by informal letter attempted to renew the license. Section 8(a) of the statute requires that an application for renewal of a license have the same form and documentation as an application for an original license. Smith’s letter could not, and did not, qualify as a renewal application. The Board took no action with respect to Smith’s letter, and, as a result, Smith’s license to act as a bondsman terminated as a matter of law by the terms of the statute after April 15, 1976. When Smith then filed his application for a license on January 13, 1977, no license existed. Smith had no property right subject to protection because he had no claim of entitlement to a bail bond license. Instead, Smith was before the Board, as any other applicant, seeking a license the issuance of which is controlled by the “will and pleasure” of the state. See Bishop v. Wood, 426 U.S. 341, 345, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976).

There is an additional basis for the af-firmance of the judgment. The purpose of a temporary injunction is to preserve the status quo of the subject matter of a suit pending a final trial of the case on its merits. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517 (1961). Smith’s license terminated on April 15, 1976. As a result, after that date the status quo was that Smith had no license.

The judgment is affirmed.

Affirmed.

      . Contrary to counsel’s view, we do not read the holding in Travis County Bail Bond Board v. Smith, 531 S.W.2d 236 (Tex.Civ.App.1975, no writ), to preclude an affirmance upon the authority of § 11.


author: WALTER, Justice.

text:
    STATE of Texas, Appellant, v. E. A. HOLDER, INC., Appellee.
    No. 5087.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 8, 1977.
    Rehearing Denied Dec. 29, 1977.

      Joyce Beasley, Asst. Atty. Gen., Austin, for appellant.
    Aubrey Roberts, Jr., Mays, Moore, Dickson & Roberts, Inc., Sweetwater, Lloyd Scurlock, Sayers, Scurlock, Binion & Brack-ett, Port Worth, for appellee.
   WALTER, Justice.

This is a suit to determine the scope of authority of Specialized Motor Carrier Certificate, No. 5984, issued to E. A. Holder, Inc., by the Texas Railroad Commission. The suit was instituted by the State of Texas against Holder at the request of the License and Weight Division of the Texas Department of Public Safety.

The State contends Holder was not authorized by its Specialized Motor Carrier Certificate, No. 5984, to transport gypsum wallboard and sheathing for hire; therefore, being in violation of the Motor Carrier Act, Tex.Rev.Civ.Stat.Ann. art. 911b. The trial court disagreed and we affirm the trial court’s decision.

Holder was hired by National Gypsum Company, a manufacturer, to transport gypsum material to different points in Texas. Once manufactured, National placed the wallboard and sheathing on pallets or skids of varying sizes depending upon the order instructions of the consignee. In servicing its account with National, Holder transported the material on flatbed tractor-trailer trucks. A forklift was used in loading and unloading the product.

The issue before this court is the construction of terms used in Holder’s Specialized Motor Carrier Certificate. In pertinent part, Holder’s certificate authorizes the transportation of “heavy bridge timbers, steel and heavy building materials used in the construction of bridges and the framework of buildings . . . ” We must determine whether the gypsum wallboard and sheathing are “heavy building materials” and if these materials are used in the “framework of buildings.”

The Texas Motor Carrier Act, Tex.Rev. Civ.Stat.Ann. art. 911b, was amended in 1941 to provide for the granting of specialized motor carrier certificates authorizing the transportation of property requiring the use of specialized equipment in the transportation and handling thereof. The Act in part states:

“Property requiring specialized equipment is limited to . (4) commodities which by reason of length, width, weight, height, size or other physical characteristics require the use of special devices, facilities or equipment for their loading, unloading and transportation.”

The general rule for construing the authority of a motor carrier’s certificate was established in W. J. Dillner Transfer Co., 79 M.C.C. 335 (1959), aff’d., W. J. Dillner Transfer Co. v. I. C. C., 193 F.Supp. 823 (W.D.Pa.1961), aff’d. mem.; W. J. Dillner Transfer Co. v. United States, 368 U.S. 6, 82 S.Ct. 16, 7 L.Ed.2d 16 (1961).

Under its certificate, Dillner was authorized to engage in the transportation of “heavy machinery and such commodities which because of their weight and size require special equipment.” The Interstate Commerce Commission used the “inherent nature” of the commodity as a standard to determine whether the rights of carriers under a heavy hauler’s certificate include a commodity when bundled, packaged or palletized.

In finding Dillner lacked authority to transport certain bundled articles of iron and steel and palletized firebrick, the Commission stated:

“In bundling, aggregating or palletiz-ing, it should be the general rule of construction (1) that the individual ‘commodity itself’ is the controlling consideration as respects a carrier’s authority; (2) that the limited exception which the Black. case, 64 M.C.C. 443, represents, where commodities are bundled for protection or as otherwise required by their ‘inherent nature’, must be maintained within its strictest limits; (3) that the minimum bundle which is required by the ‘inherent nature’ of the commodity is the size or type of bundle which must be considered in any determination whether necessity exists for the use of special equipment; and (4) that in order reasonably to maintain these limits it shall be presumed, in absence of sound basis for concluding to the contrary, that commodities tendered to carrier, in bundles or aggregations, are within the general rule and not within the limited exception thereto.”

This general rule and exception were recognized by the Supreme Court of Texas in State v. Bilbo, 392 S.W.2d 121 (Tex.1965). Bilbo’s limited common motor carrier’s certificate authorized the transportation of “heavy building materials, machinery and supplies between all points in Texas”. The commodities transported by Bilbo consisted in part of asphalt shingles on 2,000-lb. pallets, rolls of asphalt siding on 2,000-lb. pallets and bundles of asbestos shingles on 2,000-lb. pallets. The court ruled Bilbo was not authorized to transport the commodities under his certificate because there had been no showing that palletization of the materials was required for their protection or as otherwise required by their inherent nature.

The inherent nature exception to the general rule established in Dillner is found in R. Q. Black, 64 M.C.C. 443 (1955). The application of this exception requires close examination of the commodities in question.

In Black, the investigation concerned, in part, pieces of aluminum sheet metal. The individual sheets of steel were 100 inches long and either 20 or 48 inches wide. The sheets were loaded on pallets and bound, 100 sheets to the pallet, by steel bands. Loading and unloading was done by crane and in some instances by heavy duty forklift trucks. The sheet metal was sold in such bundles. This was the “customary method of handling by the manufacturer”. Black, at 445. The Interstate Commerce Commission determined that bundling was required by the inherent nature of the commodity and sustained the carrier’s authority to transport the sheet metal. The Commission said:

“Single sheets are unstable, subject to bending or other damages, and, having in mind their size, awkward or impossible to handle without bundling.”

We hold the same considerations apply to the handling and transportation of gypsum wallboard and sheathing, thereby satisfying the inherent nature test.

The gypsum material in the instant case was loaded on pallets, twenty (20) to one hundred (100) pieces to the pallet, depending upon the customer’s order instructions. The most common palletized unit ordered was fifty (50) pieces. The weight of each pallet ranged from 1,700 pounds to 3,000 pounds, requiring a forklift for loading and unloading. The material was four (4) feet wide and either eight (8) or twelve (12) feet long.

The evidence shows that two pieces of the gypsum wallboard is the “limit” of what two people can carry “without knocking all of the corners off of it”. We hold the inherent nature of the commodity requires it to be palletized to protect it from being damaged. As palletized, it is necessary to load and unload the gypsum material using special equipment. A forklift qualifies as special equipment “so long as the commodity itself is otherwise authorized”. State v. Bilbo, 392 S.W.2d 121 (Tex.1965).

Once the inherent nature of the commodity is established, requiring aggregation on pallets, additional factors may be considered to determine the authority of the heavy hauler’s certificate. Factors such as (1) the economy and efficiency of placing the commodity on pallets is to be taken into account in determining the minimum size bundle required; (2) the commodities basic characteristics; and, (3) the industry-wide practices with regard to handling the commodity. Ace Doran Hauling and Rigging Co., Investigation of Operations, 108 M.C.C. 717 (1969).

Two pieces of the gypsum material are placed together face-to-face, bound by strips of paper for protection. The State argues this is the “minimum bundle” capable of being manually “handled on the construction site,” therefore, not qualifying as heavy building material. Additional findings of fact were requested by the State on this point. This request was refused.

The “minimum bundle” requirement expressed in Dillner refers to the minimum bundle necessary to protect the commodity from damage, or otherwise required by its inherent nature for transportation. The Dillner case was not referring to the minimum bundle capable of being handled on the construction site. Therefore, we hold the trial court did not err in refusing to make the additional findings of fact as requested.

Since the Texas Supreme Court’s decision in State v. Bilbo, 392 S.W.2d 121 (Tex.1965), courts have expanded the “inherent nature” exception. These cases recognize the “physical possibility” of manually handling the commodity in question but conclude the adoption of such a standard goes beyond the bounds of “reasonable practicality”. Aero Trucking, Inc. v. United States, 346 F.Supp. 826 (W.D.Pa.1966). Moss Trucking Co. Inc., Investigation of Operations, 103 M.C.C. 91 (1966), The court in Aero further stated:

“If the bare physical possibility that a commodity could be individually and manually loaded were to be adopted as the standard for determining the ‘inherent nature’ we see no room for any further application of the Black rule. We can see few, if any, commodities which are customarily offered to carriers bundled or palletized which would not be susceptible of being loaded individually if we disregard the economy, efficiency and practical necessity of bundling or palletiz-ing.”

We hold the bundled or palletized gypsum material qualifies as “heavy building material”.

The State further contends:

“ . . . The Trial Court erred as a matter of law when it construed the term ‘used in the construction of . the framework of buildings,’ in E. A. Holder, Inc.’s Specialized Motor Carrier Certificate No. 5984 as including the application of gypsum wallboard and sheathing.”

The evidence shows that residential construction contractors are paid at three different stages in constructing buildings. The first payment comes after the foundation has been laid, the second payment comes after the “framing stage” and the third payment at completion of the building. Nathan Armstrong, a building contractor, gave testimony pertaining to the gypsum wallboard and sheathing as being part of the framework of buildings:

“Q So when the sheetrock — you call that the framing stage. And when that has been completed you are paid?
A They call it ‘Dried in stage.’ Yes, sir.
Q And it is the framing?
A Yes, sir. No interior finish.
Q No interior finish whatsoever. You are talking about framing of the structure?
A Yes, sir.”

The operations manager for E. A. Holder, James Wadlington, produced additional evidence showing the gypsum material is used in the framework of buildings. Wadlington testified substantially as follows:

The second stage of construction of a building is considered the framing stage. During this framing stage the gypsum wallboard and sheathing will be directly applied to the framing studs.

We overrule the State’s point of error. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974).

The State argues in its last point of error that the judgment of the trial court is against the great weight and preponderance of the evidence. We have considered the entire record and find the trial court’s judgment was not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We have considered all of appellant’s points of error and find no merit in them. They are overruled.

The judgment of the trial court is affirmed.


text:
    Ex parte Clyde Livingston WILSON, Relator.
    No. 12742.
    Court of Civil Appeals of Texas, Austin.
    Dec. 14, 1977.

      Fred McLeroy, James W. Piper, Legal Aid & Defender Society of Travis County, Austin, for relator.
    Richard Craig, Tex. Dept, of Human Resources, Child Support Enforcement Div., Austin, Charles Hardy, Travis County Asst. Dist. Atty., Austin, for respondent.
   SHANNON, Justice.

This is an original habeas corpus proceeding filed in this Court pursuant to Tex.Rev. Civ.Stat.Ann. art. 1824a (Supp.1976). The important question concerns relator’s right to counsel at a contempt proceeding.

The statement of facts was agreed. Relator, Clyde Livingston Wilson, and Linda Gail Wilson were divorced on October 5, 1973. The divorce decree ordered relator to pay child support in the sum of fifty dollars each week. Relator has made none of the support payments.

On July 19, 1976, after hearing in which relator was represented by counsel, relator was found in contempt for failing to pay child support. The district court then ordered relator confined for six months. The court, however, suspended that punishment, and instead, ordered relator to pay two hundred forty dollars each month as a condition for the suspension of the order of confinement.

In October, 1976, Linda Gail Wilson assigned her right to collect child support payments from relator to respondent Texas Department of Human Resources.

In August, 1977, respondent filed a motion for contempt with the district court alleging that relator was in contempt for failure to pay child support as directed by the court in its order of July, 1976.

On August 26, 1977, the district court heard the motion for contempt. Relator was present in court, but he was not represented by counsel. When the district court asked relator if he had an attorney, he replied that he did not. Although counsel for relator asserted in the brief that relator was indigent, there is no showing in the record whether or not relator was indigent at the time of the contempt hearing. During the hearing for contempt relator was called and testified.

After hearing, the district court entered an order finding relator in contempt for violating the order of July, 1976. As punishment relator was ordered confined to jail for six months and to pay a five hundred dollar fine.

To make more precise the issue, we first determine whether the contempt for which relator was charged was civil or criminal and whether the contempt was direct or constructive.

“The purpose of civil contempt is remedial and coercive in nature. A judgment of civil contempt exerts the judicial authority of the court to persuade the eon-temnor to obey some order of the court where such obedience will benefit an opposing litigant. Imprisonment is conditional upon obedience and therefore the civil con-temnor ‘carries the keys of [his] prison in [his] own pocket.’ ” Ex parte Werblud, 536 S.W.2d 542, 545 (Tex.1976); accord, Ex parte Hosken, 480 S.W.2d 18, 23 (Tex.Civ.App.1972).

“Criminal contempt on the other hand is punitive in nature. The sentence is not conditioned upon some promise of future performance because the contemnor is being punished for some completed act which affronted the dignity and authority of the court.” Ex parte Werblud, supra.

A direct contempt occurs within the presence of the court; a constructive contempt outside the presence of the court. Ex parte Ratliff, 117 Tex. 325, 3 S.W.2d 406 (1928).

Because the order punishes relator for a completed act which affronted the dignity and authority of the district court, the contempt is classified as criminal. Since relator violated the July, 1976, order outside the presence of the court, the contempt is a constructive contempt.

Relator, then, appeared pro se at a constructive criminal contempt proceeding. Was relator deprived of his liberty without due process of law because he was not represented by counsel?

Relator’s thesis is that in a criminal constructive contempt, the contemnor is entitled to all of the protections afforded a defendant in a criminal prosecution. More specifically, relator claims that he was entitled to counsel pursuant to the Sixth Amendment of the Constitution of the United States.

As a beginning point, relator relies upon Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Gideon held that an indigent defendant in state court who is accused of a felony offense is entitled to a court appointed attorney. In Argersinger, the petitioner was convicted in a Florida state court of a misdemeanor offense and sentenced to ninety days in jail. The petitioner, an indigent, was not represented by counsel at trial. The Supreme Court reversed the conviction stating that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at trial. In Gault, the Court refused to recognize a distinction between a juvenile delinquency proceeding and a criminal prosecution. The Court held that due process required that in proceedings to determine delinquency which may result in commitment to an institution in which the juvenile person’s liberty is curtailed, the juvenile and his parents must be notified of the juvenile’s right to be represented by counsel.

Relator correctly states that several United States Courts of Appeals have held that indigents accused of either civil or criminal contempt are entitled to appointed counsel. Most of those cases acknowledge Argersinger as authority for the holding. U. S. v. Anderson, 553 F.2d 1154 (8th Cir. 1977); In re Di Bella, 518 F.2d 955 (2nd Cir. 1975); Henkel v. Bradshaw, 483 F.2d 1386 (9th Cir. 1973); In re Kilgo, 484 F.2d 1215 (4th Cir. 1973); U. S. v. Sun Kung Kang, 468 F.2d 1368 (9th Cir. 1972).

Several of the state courts have concluded that in either civil or criminal contempt hearings, an indigent contemnor has a constitutional right to court appointed counsel. Tetro v. Tetro, 86 Wash.2d 252, 544 P.2d 17 (Wash.1975); Otton v. Zaborac, 525 P.2d 537 (Alaska 1974); Annot., 52 A.L.R.3rd 1002 (1973). In those jurisdictions that the courts refused to apply Argersinger in civil contempt hearings, the inferences in the opinions were that the holding in Arger-singer would apply to a criminal contempt proceeding. Duval v. Duval, 114 N.H. 422, 322 A.2d 1 (1974); Sword v. Sword, 399 Mich. 367, 249 N.W.2d 88 (1976).

Finally, even in cases involving non-indigent contemnors, several courts have concluded that in any civil or criminal contempt proceeding where imprisonment is a possibility, a contemnor, appearing pro se, must be informed of his right to counsel prior to the hearing. Ferris v. Maass, 75 Wis.2d 542, 249 N.W.2d 789 (1977); Eastern Assoc. Coal Corp. v. Doe, 220 S.E.2d 672, 682 (W.Vir.1975).

Respondent’s best authority is Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In Gagnon the Court held that due process did not require the appointment of counsel for a probationer in a revocation of probation hearing. The Court observed that the requirement of counsel in all revocation cases would impose “direct costs and serious collateral disadvantages without regard to the need or likelihood in a particular case for a constructive contribution by counsel.” The requirement of counsel in such hearings would prolong the decision-making process, “and the financial cost to the State — for appointed counsel, counsel for the State, a longer record, and the possibility of judicial review — will not be insubstantial.”

There is no in point authority in Texas. The Texas Supreme Court has observed, in general, that contempt proceedings, whether criminal or civil, are criminal in nature and, accordingly, should conform as nearly as practicable to a criminal proceeding. Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 829 (1960); see Ex parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961). The Beaumont Court of Civil Appeals concluded in a criminal contempt proceeding that the contemnor’s Sixth Amendment right to counsel was violated by the district court’s refusal to permit the contemnor to hire an attorney before the hearing. Ex parte Hosken, supra.

One significant distinction obtains between the case at bar and most of the cases marshalled by relator, that being that the record does not show that relator was indigent. Otherwise, we acknowledge that relator’s authority is persuasive.

In connection with the respondent’s argument grounded upon Gagnon, we judicially know that criminal contempt hearings in this state, on an annual basis, number in the several hundreds and, of that number, many of the contemnors appear pro se. We also recognize that the requirement of counsel in such hearings would prolong the decision-making process and, in the case of indigents, increase the financial burden to the state.

In the absence of controlling precedent from the Supreme Court of the United States, or the Supreme Court of Texas, and under the circumstances of this case, this Court, being an intermediate appellate court, will deny the application for writ of habeas corpus. Texas Rev.Civ.Stat.Ann. art. 1737 does empower, however, the Supreme Court of Texas to entertain applications for writs of habeas corpus, and it is both fitting and proper for that Court to finally determine an issue which affects the liberties of many and the purses of all.

Application Denied.


author: PALMORE, Justice.

text:
    Geraldine CALHOUN, Appellant, v. Darrell CALHOUN, Appellee.
    Supreme Court of Kentucky.
    Jan. 14, 1977.
    Paul Fauri, Larry Sword, Appalachian Research and Defense Fund of Kentucky, Inc., Prestonsburg, Kay Adrian, Metropolitan Legal Aid of Denver, Denver, Colo., for appellant.
    Joe Hobson, Burnis Martin, Prestonsburg, for appellee.
   PALMORE, Justice.

Geraldine Calhoun appeals from that portion of a divorce judgment which awards custody of her two infant children, Angelia and Johnny, to their father, Darrell Calhoun, subject to weekly visitation by and with the mother. It is another of those domestic controversies that would vex even the great Solomon.

Geraldine and Darrell are now about 29 years of age. They were married in 1966 and finally separated in 1974. Angelia was born on August 9, 1967, and Johnny on February 10,1969. Geraldine lives with her parents, and Darrell and the children live with his parents, all in the neighborhood of Water Gap in Floyd County. Geraldine has had intermittent hospitalization for mental illness and at the present time is not gainfully employed. Except for the bounty of her parents, her only sustenance disclosed by the record is $20 every other week which the judgment requires Darrell to pay for her maintenance. Darrell has a regular job with the state highway department during the day and works nights and Saturdays for a local florist. According to Geraldine, he grosses about $470 per month, whereas Darrell says his “take-home” pay is $340 to $350 per month. Out of this he makes car payments of $90 per month and payments of $20 per month on a long-standing hospital bill.

Geraldine’s father is a retired coal miner who is disabled and unable to work. Her mother is employed by a shoe company in Prestonsburg. They live on a dirt road at the head of a hollow. We have no description of their household, but they have near their home a vacant three-room house that would be available to Geraldine if she were to regain custody of the children. However, it does not have running water and would have to be improved before it could be comfortably occupied. According to Darrell’s testimony, there are other children in the home of Geraldine’s parents.

For most of their lives the infant children have resided in or near the home of Darrell’s parents. For some of this time Geraldine and Darrell lived with the Calhouns, and at the time of their last separation they were living just across the creek in a house trailer which had been given to them by the Calhouns. The elder Calhoun is a retired coal miner drawing a U.M.W. pension and preaching at three churches without compensation. It seems to be conceded that the Calhouns are better off than the Whitts, which Geraldine contends is the reason the trial court gave custody of the children to Darrell. The main thrust of her case is that poverty is not a valid basis for depriving a mother, who is otherwise fit, of the custody of her children. With that we agree, but it is not all that simple.

Geraldine’s illness is of a schizophrenic nature and has existed from high-school days. On three different occasions she has been hospitalized for extended periods of time, once for nine months. Nevertheless, her doctor, a psychiatrist employed by Eastern State Hospital, says that with the medication she is taking there is no reason why she cannot care for the children in a proper and adequate manner, that she needs them and they need the mother’s “touch.” She is, incidentally, preparing to go to a vocational school so that she may assume a gainful occupation. She is described by the witnesses in general as a good girl, neat, clean, highly intelligent, and a good mother.

Geraldine’s counsel argue that in effect the custody of the children has been granted to the paternal grandparents as opposed to the mother, and that such a disposition is unauthorized without a finding, or evidence to support a finding, that the mother is unfit. They cite our recent statement in Chandler v. Chandler, Ky., 535 S.W.2d 71, 72 (1975), that in order for a parent to be deprived of the custody of a child in favor of a nonparent, “not only must it be shown that the child’s welfare will be better served under the custody of the nonparent, but also it must be found that the parent is not a suitable custodian.” We do not agree, however, that merely because the parental custodian is living with and keeping a child in the home of his own parents, and will be away most of the time by reason of his work, the grandparents perforce are the custodians. The selection of whom he will leave the child with, at what times, and for how long, is an incident of his own custodial function and discretion. What they do with and toward the child is subject to his dominion — his veto, as it were. That he may, for example, send the child to a boarding school does not make the school the custodian; it is simply his agent.

We are inclined to think also that if Geraldine had custody of the children Darrell could make the same argument. In the first place, the only way in which it was suggested that she could live separately from her own parents is that Darrell be required to put up the money to make the three-room house habitable and then contribute at least $250 per month for maintenance and child support. Geraldine estimated that the initial cost would be about $200. It is common knowledge that the installation of a bathroom alone would cost more than that. Then there is the fact that Geraldine expects to find employment, which would result in the children’s being left in the care of some one or more of the members of her family during non-school hours while she is away at work. In summary, we simply cannot resolve this case on the basis of its being a custody contest between a parent on the one hand and grandparents on the other. One set or the other of the grandparents is going to occupy a major role in the lives of the children whichever way it goes.

We have gone to such length in discussing this problem for the reason that the trial court made no findings of fact on the point. It is a great temptation, when a trial court decides a matter without giving a reason, to infer that there really was not any good reason, and to reverse the decision summarily. But CR 52.04 bids us otherwise.

All other things being equal, as between the parents it is recognized, not as a rule of law but as a fact, that children of tender years usually are better off with the mother. See discussion in Casale v. Casale, Ky., 549 S.W.2d 805 (decided today). In this instance, however, all else is not equal, or at least not nearly enough equal to justify holding the trial court’s determination to be clearly erroneous. Quite aside from her mental instability, which is not without some degree of significance, it is clear that Geraldine’s only source of financial means to provide and maintain a home for herself and the children would be whatever can be squeezed from Darrell, and his income is not enough to stand it. Her own prospects of supplementing that source of revenue are, at present, speculative and remote. It seems inevitable that she and the children would wind up in the home of her parents and their other children. Their life would be a constant battle in the court house to force Darrell to provide funds, transportation and medical treatment for the children (both of whom have serious physical problems) that he now provides voluntarily. Unquestionably, the home in which the children have spent most of their lives, and the one they know best, is the home of their father’s parents. If the father were dead the scales might weigh differently, but the fact that he makes his home with his parents cannot diminish his right to have the custody if under all circumstances that is what reasonably appears best for the children.

In summary, while it is true that the courts must in every case accord great weight to the fact that small children need a mother more than they need a father during their tender years, and is equally true that the mother’s poverty alone ought not be allowed to deprive them of it, still “the overriding issue is what is for the best interest of the child.” Eviston v. Eviston, Ky., 507 S.W.2d 153 (1974). Though every effort must be made to exclude or offset the element of economic disadvantage, it cannot be completely ignored if the ultimate objective really is the welfare of the child. Regrettably, it is a fact of life and there is no honest way to deny its relevance.

West v. West, 294 Ky. 301, 171 S.W.2d 453 (1953), cited in Geraldine’s behalf, is in many respects comparable with this case. Rarely, however, are two domestic relations cases on all fours. In weighing up the welfare of a child there are factors on both sides of the scales, and these various factors do not weigh the same from case to case, or even from time to time in the same case. In West, for example, there was a “clearly proven unfitness” on the part of the father. 171 S.W.2d at p. 456. It is not so in this instance, and that alone is enough to distinguish the cases.

As pointed out in Eviston v. Eviston, Ky., 507 S.W.2d 153 (1974), the custody of these children is subject to review and change as provided in KRS 403.340. If and when Geraldine, with such additional financial support as Darrell can reasonably be required to contribute, is better able to maintain them in a separate home of her own, and if there be no deterioration in her mental condition, she will have a strong case for either a transfer of custody or a more equitable division of custody as between her and the father.

We have considered the evidence in this record very carefully and with real compassion for the mother, but we cannot in good conscience hold that it contains no reasonable basis for the judgment of the trial court.

The judgment is affirmed.

All concur.


author: REED, Justice.

text:
    Eugene PHILLIPS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Dec. 9, 1977.
    Jack Emory Farley, Public Defender, William C. Ayer, Jr., Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., B. Frank Radmacher, III, Asst. Atty. Gen., Frankfort, for appellee.
   REED, Justice.

Eugene Phillips was indicted and tried for the offense of first-degree robbery, KRS 515.020, and for being a persistent felony offender, KRS 532.080. The jury convicted Phillips of first-degree robbery and fixed his punishment at 15 years’ imprisonment. On the second stage of the bifurcated trial, the jury convicted Phillips of being a persistent felony offender, and he was sentenced to 40 years’ imprisonment.

Phillips attacks only the conviction of being a persistent felony offender.

Phillips was convicted in the Letcher Circuit Court of the offense of storehouse breaking in 1942 and was sentenced to imprisonment for two years. In 1944 he was again convicted in Letcher County of the offense of housebreaking and sentenced to imprisonment for two years.

When the prosecution sought to introduce the 1942 and 1944 judgments of conviction, Phillips objected on the ground that the documents did not affirmatively show that Phillips was represented by counsel in the proceedings which resulted in his conviction. The trial judge advised Phillips that if he would state that he was not represented by a lawyer in the cases in question, the judgments would not be used. Phillips stood on his objection as made. The trial court thereupon overruled the objection to the introduction of the previous judgments and they were then admitted into evidence and read to the jury. Phillips appeals and claims that the trial court violated the requirements announced by the United States Supreme Court in Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).

In our view, Phillips has misconstrued the effect of 88 S.Ct. 258 (1967) as it applies to this case. In Burgett and in the cases decided by the U. S. Supreme Court both before Burgett and after its rendition, the absence of representation by counsel for the defendant accused of a felony was put in issue either by the testimony of the defendant or by an affirmative statement in the judgment of conviction that was used by the prosecution.

In the appeal under consideration the 1942 and 1944 Kentucky circuit court judgments were silent concerning whether Phillips was represented by a lawyer. There was no question of waiver, intelligent or otherwise, raised either by the prosecution or by Phillips. The trial judge advised Phillips in substance that if he stated that he was not represented by a lawyer in the cases in question the judgments would not be used. Phillips, the only available witness who knew the truth, remained as silent as the judgments of conviction. The ground of his objection was “the documents did not show that he was represented by counsel at either trial.” To this hour, Phillips has never claimed that he was not represented by counsel at these trials, and, of course, the question of some waiver of counsel by him never came into issue and might not ever have been the subject of a claimed excuse by the prosecution even if Phillips had asserted that he was unrepresented by counsel on these occasions.

Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962) was cited as authority in Burgett, supra. Carnley was tried in a Florida state court. The trial transcript showed that he tried to represent himself. It was undisputed that he was without counsel. He was convicted. The Florida Supreme Court rejected his appeal in which he asserted that he had been denied his constitutional right to counsel. The Florida Supreme Court held that since the record showed he did not have counsel, it would be presumed that he waived the benefit of counsel. The U. S. Supreme Court held that no such presumption of waiver of a constitutional right could be based on a silent record. Aside from the fact that our experience over the last thirty years in the Kentucky legal system convinces this court that substantially all indigent criminal defendants accused of felony were provided counsel in this state long before Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), we are confident that Kentucky has never espoused a conclusive presumption of valid waiver of counsel if a silent record is the only evidence presented by the prosecution to rebut a claim of involuntary or unintelligent waiver of counsel by a defendant accused of felony as did Florida in Carnley.

In Burgett v. State of Texas, supra, the Supreme Court dealt with a one-stage recidivist trial where the prosecution introduced a Tennessee judgment of conviction for a previous offense. The certified Tennessee judgment originally introduced recited, “Came the Assistant Attorney-General for the State and the Defendant in proper person and without Counsel.” The majority opinion held that this certified record on its face raised a presumption that petitioner was denied his right to counsel in the Tennessee proceeding and that, therefore, in the absence of other countervailing evidence the Tennessee conviction was void. The majority then added that presuming waiver of counsel from a silent record was impermissible under Carnley.

In April 1971, four years after Burgett, the Supreme Court disposed of the case of Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519, by a per curiam opinion. Kitchens pleaded guilty to robbery in a Georgia state court in 1944. He escaped while serving his sentence and did not return to Georgia until 1969. The Georgia courts rejected his habeas corpus claim that his conviction was void under Gideon because he was not represented by counsel. The Georgia Supreme Court said that although Kitchens testified that he did not have a lawyer, he did not say he wanted one, or asked for one, or that because of his poverty or for any other reason, he was unable to hire a lawyer. The U.S. Supreme Court said: “Of course, to establish his right to appointed counsel in 1944, petitioner had the burden of proving his inability at that time to hire an attorney.” The court then went on to hold that the petitioner’s uncontradicted testimony was sufficient to demonstrate that he was not afforded a lawyer and was unable to hire one because of his indigency.

The fallacy of Phillips’ contention in this case is completely revealed when one analyzes the plurality opinion authored by Mr. Justice Stewart and Mr. Justice Rehnquist’s dissent in Loper v. Beto, 405 U.S. 475, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). Loper was decided five years after Burgett. Lop-er sought federal habeas corpus relief from a Texas state conviction for statutory rape. The prosecution had used previous convictions in other states, when he was cross-examined, to impeach his credibility as a witness. In the habeas corpus hearing, he testified that he was without counsel on the occasion of all the prior convictions which were used. A certified record of one of the proceedings recited that Loper appeared “in his own proper person.” The record of another proceeding recited that Loper appeared “in person.” The Supreme Court granted certiorari limited to a single question: “Does the use of prior void convictions for impeachment purposes deprive a criminal defendant of due process of law where their use might well have influenced the outcome of the case?” Not surprisingly, the Court’s answer to this question was “yes.” Footnote 6 of the plurality opinion states in part:

“But despite these observations the Court of Appeals, perhaps recognizing the error in the statement of the District Court quoted above, did not rest its decision on a finding that the petitioner had failed to meet his burden of proving the invalidity of the prior convictions. It reached the merits of the legal question involved, and we granted certiorari to review that decision. There is thus no basis in the record upon which we may either dismiss this case or affirm the decision below on the ground that the petitioner did not meet his burden of proving that the prior convictions were invalid, (citing cases).” (emphasis supplied).

In his dissent Mr. Justice Rehnquist points out that in Johnson v. Zerbst, 304 U.S. 458, 468-469, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461 (1938), Mr. Justice Black stated: “Where a defendant, without counsel, acquiesces in a trial resulting in his conviction and later seeks release by the extraordinary remedy of habeas corpus, the burden of proof rests upon him to establish that he did not completely and intelligently waive his constitutional right to assistance of Counsel. If in a habeas corpus hearing, he does meet this burden and convinces the court by a preponderance of evidence that he neither had counsel, nor properly waived his constitutional right to counsel, it is the duty of the court to grant the writ.” Thus it is demonstrated that in Loper both the plurality opinion and the dissenting Justice Rehnquist agreed on at least one proposition: the defendant has the burden to produce evidence that his constitutional right to counsel was improperly denied him. Therefore, this court rejects the apparently contradictory holdings in McConahay v. State, 257 Ark. 328, 516 S.W.2d 887 (1974) and Highsmith v. State, 55 Ala.App. 272, 314 So.2d 874 (1975).

If Phillips’ argument is carried to its logical conclusion, thirty-year-old judgments must recite affirmatively, and in specific terms, that every constitutional right of a criminal defendant, either then known or later discovered and made retroactive, was afforded him. The defendant would not be required to assert that he had suffered the deprivation of a constitutional right, he need not risk perjury, all that is required is that he silently point to a silent record. The administration of criminal justice becomes a chess game totally unrelated to a search for truth.

Phillips had a constitutional right to counsel unless he voluntarily and intelligently waived that right. He has neither claimed that he had no counsel in this thirty-year-old conviction nor has he claimed that he waived counsel without knowledge of the extent of his rights. Ingram v. Commonwealth, Ky., 427 S.W.2d 815 (1968) and McHenry v. Commonwealth, Ky., 490 S.W.2d 766 (1973), were both correctly decided and are in harmony with the expressions of the Supreme Court of the United States in its subsequent application of the principle of Burgett.

The judgment is affirmed.

All concur.