author: CHADICK, Chief Justice.

text:
    Julia K. DESSOMMES, Appellant, v. Lawrence F. DESSOMMES et al., Appellees.
    No. 8391.
    Court of Civil Appeals of Texas, Texarkana.
    Oct. 26, 1976.
    Rehearing Denied Nov. 16, 1976.

      John R. Bryant, Dallas, for appellant.
    Michael R. Knox, Thompson, Coe, Cousins & Irons, Bertrán T. Bader III, Bader, Wilson, Menaker, Cox & Branson, Dallas, for appellees.
   CHADICK, Chief Justice.

This is a suit by a former wife to recover an interest in her divorced husband’s retirement benefits accruing under a succession of pension and retirement plans funded in part by contribution of money earned during the marriage. The trial court judgment denied relief. Such judgment is reversed and judgment rendered.

Pertinent facts will be stated as the necessity arises. See Dessommes v. Dessommes, 461 S.W.2d 525 (Tex.Civ.App. Waco, 1970, no writ) and Dessommes v Dessommes, 505 S.W.2d 673 (Tex.Civ.App. Dallas 1973, writ ref’d n.r.e.) for background and developments in this litigation preceding the latest action and this appeal. The parties’ familiarity with previous proceedings is assumed and lengthy excerpts will be avoided. Here, Mrs. Julia K. Des-sommes, the plaintiff below is appellant, and Mr. Lawrence F. Dessommes, Coats & Clark Sales Corporation and Connecticut General Life Insurance Company, defendants below are appellees.

Judge Guittard wrote the Dallas Court of Civil Appeals opinion in the second appeal (505 S.W.2d 673) and separated the appeal issues for discussion under three headings. Under Limitations, the court held Mrs. Des-sommes’ cause of action filed May 23, 1969, for recovery of an interest in the retirement plan or plans pertinent here was not barred by the four year statute of limitations, Tex. Rev.Civ.St. Ann. art. 5529. The opinion says that Mrs. Dessommes’ cause of action did not arise until benefits payable under the retirement plan or plans began on August 1,1969, and that any previous cause of action she may have had for declaration of her rights in the retirement fund would have arisen only on a denial or repudiation of those rights. Because the record did not show denial or repudiation more than four years before the suit was filed, decision was expressly reserved on the question of “whether failure to commence a declaratory judgment action within four years after repudiation of her interest in the fund would bar subsequent action to recover her share of the benefits paid.”

Under the heading Extent of Plaintiff’s Interest, the opinion decided that Mrs. Des-sommes’ interest should'be determined by a formula that is referred to as an “apportionment theory”. Under the formula, the portion of retirement benefits attributable to earnings before marriage and after divorce are considered separate property of Mr. Dessommes and the portion attributed to earnings during the marriage represents a community interest in which Mrs. Des-sommes is an equal participant. Judge Guittard’s opinion ordered reversal and remand with instructions that if Mrs. Des-sommes established in a new trial “as she did before, an equal ownership in the (retirement) fund at the time of divorce, defendant (Lawrence F.) Dessommes will have the burden to establish the extent of his ownership in the fund attributable to contributions other than those made during marriage.” (Parenthetical matter added.) The opinion explains the reason the burden of proof in this particular is placed upon Mr. Dessommes.

Judge Guittard’s opinion recognizes that in ordinary cases of commingling of funds, where the amounts of the contributions are shown, the parties are held to be owners in proportion to contributions. However, because the current effective retirement plan allowed credit for contributions to the previous retirement plans, it having superseded the former, a proper division of present annuity payments cannot be based strictly upon the amount of contributions alone, particularly, if the fund has been earning interest. This is obvious as interest accumulated under prior plans and brought forward would have a bearing on the amount of the annuity under the effective plan. The court concluded:

“. . . full development of the facts should enable the court and jury to make a fair division, although the results may not be mathematically precise. If the amount of the contributions to the various plans before, during and after marriage are properly proved, expert testimony may be available to establish with reasonable certainty that portion of the present benefits which may be fairly attributed to contributions made by and on behalf of the employee other than those made during the marriage. Plaintiff’s (Mrs. Dessommes’) interest would be one-half of the portion remaining.” (Parenthetical matter added.)

On Motion for Rehearing in the Dallas court the opinion discussed the apportionment theory further and with respect to it said:

“Although the law on this point cannot be regarded as settled, we conclude that the apportionment theory does substantial justice in determining the extent of a community property interest which has vested during the marriage. Accordingly, we adhere to the instruction in our original opinion.”

Following the Dallas court’s decision, the parties amended and supplemented their pleadings. The new allegations that are material in this discussion are allegations by Mr. Dessommes and his co-defendants setting up pleas of the two and four year statutes of limitation and a defense that Mrs. Dessommes’ suit was barred by the equitable doctrine of laches, together with, allegation that if Mrs. Dessommes is entitled to a portion of the retirement benefits the entitlement would not exceed a stated amount per month.

Limitations and Laches

The trial court submitted special issues to the jury and answers thereto established that the date the controversy between Mr. and Mrs. Dessommes over property rights in the retirement plan arose was February of 1963; and that Mr. Dessommes first began to make adverse claim to the rights of Mrs. Dessommes in the retirement plan at that time. Also, the jury refused to find that Mrs. Dessommes pursued her rights in the retirement plan after an unreasonable delay and after Mr. Dessommes had changed his position to his detriment. Evidence was produced tending to show that Mr. Dessommes, at the time of divorce, advised Mrs. Dessommes that he repudiated her claim and denied she had an interest in the retirement plan. There is no contention or proof that any party to the litigation, other than Mr. Dessommes, made adverse claim to Mrs. Dessommes’ rights in the retirement plan.

The Dessommes were divorced February 7,1963. Mrs. Dessommes filed suit to enforce her rights May 23,1969. The Waco court held (Tex.Civ.App., 461 S.W.2d 525) that under the pleading then before the court a controversy arose March 15, 1968, and suit filed May 23, 1969, was not as a matter of law barred by the four year statute of limitations. The Dallas court’s view of the limitation questions and decision thereon has previously been noticed. It was established by the Waco court (461 S.W.2d 527) that the retirement fund was not in the possession of either Mr. or Mrs. Dessommes and that since the 1963 divorce decree made no partition or disposition of the fund, these parties were owners thereof as tenants in common. Both had an ownership right in the fund but not possession. There is no evidence that the former husband could or did oust his former wife and co-tenant from possession of the fund. In Duncanson v. Howell, 222 S.W. 232 (Tex.Com.App.1920, opinion adopted), one co-tenant pled that he had been ousted by the other. The pleading here is different, the rule of that case has no application. It is apparent in the absence of possession that Mr. Dessommes could not rely upon adverse possession to commence a limitation period or perfect a title in him to the fund. It has been noted that the only question of limitation left undecided by the two previous appeals is “whether (Mrs. Dessommes’) failure to commence a declaratory action within four years after repudiation of her interest in the fund would bar subsequent action to recover her share of the benefits . . ” (Parenthetical matter added.) Although determination by the Dallas appellate court that her cause of action and suit filed May 23, 1969, were not barred by the four year statute of limitation effectively determines this issue, the question of when a declaratory judgment suit must be filed to avoid a statute of limitation will be discussed because decision was reserved on the question in the last appeal. The answer is found in the cases next cited.

Judge Reuben Hall, speaking for this Court in what has become a leading case, Murphy v. Honeycutt, 199 S.W.2d 298 (Tex.Civ.App. Texarkana 1946, writ ref’d) quoted with approval a rule stated in Anderson on Declaratory Judgments, Sec. 108, P. 281, to-wit: “Until an actual controversy has arisen between the parties, no cause for declaratory relief has accrued and the statute of limitation is not operative, . . . ” Outlaw v. Bowen, 285 S.W.2d 280 (Tex.Civ.App. Amarillo 1955, writ ref’d n.r.e.), states:

“In Texas, the statutes of limitation do not apply to a partition suit; . nor to a bill to remove cloud from title; . nor to a suit for a declaratory judgment, at least until the provisions of such are set in action by the actual occurrence of a controversy; Murphy v. Honeycutt, Tex.Civ.App., 199 S.W.2d 298 (writ ref’d).”

And on the question of accrual of a right of action, Williams v. Pure Oil Co., 124 Tex. 341, 78 S.W.2d 929 (1935, opinion adopted) says:

“It seems to be the settled law of this state that limitation does not begin to run until the right or cause of action accrues. The right or cause of action does not exist until facts exist which authorize the person asserting the claim to seek relief in a court of competent jurisdiction from the person due to make reparation. It involves both the existence of the right and facts sufficient to constitute a cause of action.” (Emphasis supplied).

Giving effect to the last cited case, it is apparent that Mrs. Dessommes’ cause of action against Mr. Dessommes for a partition and recovery of retirement benefits did not accrue before payment became due under the retirement plan and were paid on August 1, 1969. It was at that time that she was first entitled to have a judgment against him as a party liable to make reparation to her. Prior to that time, Mr. Des-sommes possessed nothing belonging to her and was not liable to her for payment of retirement benefits or liable to her for any reason shown by the record; she was not required to cross a bridge before she reached it. A suit by Mrs. Dessommes and a judgment declaring her rights would have gained her nothing she did not already have as a tenant in common in the retirement fund. Proof of Mr. Dessommes’ notice to Mrs. Dessommes that he denied her right in the retirement plan and repudiated her claim to an interest in its benefits prior to the time he was liable to make reparations did not set in operation the statute of limitations.

Instructions — Lower Court Compliance

The law of a case is established when a question of law is determined in an appeal by a court of last resort. Resolution of such question of law governs a case in all subsequent stages, including retrial and a subsequent appeal. 4 Tex.Jur.2d, Appeal and Error — Civil Cases, Sec. 997. The doctrine is intended to achieve uniformity of decision, as well as economy of effort, and narrows the issues in the successive stages of the litigation. Closely related to the doctrine is judicial policy that in a subsequent appeal instructions given a trial court in a former appeal will normally be adhered to and enforced. Wall v. Wall, 143 Tex. 418, 186 S.W.2d 57 (1945, opinion adopted); 4 Tex.Jur.2d, Appeal and Error — Civil Cases, Sec. 1009.

It has been noticed that the opinion of the Dallas Court of Civil Appeals instructed the parties that on retrial if Mrs. Dessommes’ proof established an equal ownership in the retirement fund, the trial court would determine Mrs. Dessommes’ interest on the apportionment theory and in doing so Mr. Dessommes would have the burden of showing contributions to the retirement fund that he made before marriage and after divorce. Mrs. Dessommes made requisite proof. The court’s instruction provided a simple formula for determining the part or portion of the monthly benefit of $537.86 that was attributable to Mr. Dessommes’ separate funds or to interest derived therefrom or to other accumulations of separate property that enhanced the benefit. On retrial, instead of complying with appellate instructions, Mr. Des-sommes and bis codefendants offered evidence of the contributions of Mr. Des-sommes and his employer to the fund during marriage, but not those made before or after. Total contributions during marriage was shown to be $17,685.85.

During retrial, despite objections, the trial judge did not by submission of the issues to the jury, or otherwise, undertake to apportion interest in the retirement benefits in accordance with the Dallas court’s instructions. To the contrary, the trial court undertook to determine Mrs. Dessommes’ interest by receiving evidence of calculations by an actuary showing in terms of an annuity the value of Mrs. Dessommes’ interest as of February 7,1963. The actuary assumed facts stated and testified to the amount of an annuity contribution made during the marriage period would purchase at the given date. Proof was also offered showing the plan in effect began paying monthly benefits of $537.86 on August 1, 1969. On such date, the actuary calculated it would have required a lump sum payment of $80,500.00 to produce the specified monthly benefit. No testimony or evidence was produced to show that contributions to the several retirement plans made by or on behalf of the Dessommes did or did not draw interest or what, if anything other than bare contributions, was carried forward from one plan to the next.

The trial court’s determination of Mrs. Dessommes’ interest was erroneous for several reasons:

(1) The submission in the trial court violated the appellate court’s instructions that Mr. Dessommes’ interest be determined in a different but specified manner.

(2) An annuity, as testified to by the actuary, purchased with the bare total of funds contributed during marriage did not take into account or give effect to the increment, if any, to contributions.

(3) The calculation of Mrs. Dessommes’ interest made by the court left out of consideration the annuity in fact purchased by all contributions and their increment, if any.

(4) The absence of proof that interest or other accumulations were or were not carried forward into successor plans made it impossible to calculate the annuity contributions would buy.

Mr. Dessommes, it may be assumed, acted in good faith in agreeing to the several revisions of his retirement contract. If he did in fact contract for a more advantageous retirement annuity than an actuary would project on the basis of actual contributions, Mrs. Dessommes was entitled to a fair apportionment of the benefits actually agreed upon and paid for with contributions in which she had an interest. The Dallas court’s instructions contemplated that proof of the nature ordered should be produced if substantial justice was to be done.

Disposition

The Dessommes have been divorced more than thirteen years. Payment of retirement benefits to Mr. Dessommes began over seven years ago. Three trials of the controversy have been had and this is the third appeal. Mr. Dessommes was given opportunity to apportion benefits in accordance with the Dallas court’s instructions. Neither equity nor the ends of justice require this case to be again remanded for that same purpose since Mr. Dessommes refused or neglected to do so after the last remand. Under these circumstances this court is compelled to consider Mr. and Mrs. Dessommes equal tenants in the retirement benefits.

In reversing for new trial the Dallas court invoked the rule that “when the proportions contributed by several owners to a common fund cannot be established and the equities are equal, the owners must be considered equal tenants in common.” Under all the circumstances the equities now appear to be equal. Mr. Dessommes has refused or neglected to sustain his burden and make the proof required of him. The history of the case shows that the employer and underwriter make no pretext of being impartial stakeholders. The employer, an acknowledged partisan of Mr. Dessommes, and the underwriter are represented by the same legal counsel. The limitation defense urged by all appellees would not, if meritorious, have reduced the underwriters overall liability yet the employer and the underwriter take a stance favoring Mr. Des-sommes. Unless these parties were able to sustain the barely arguable limitation defense, they recognized liability to Mrs. Des-sommes in some amount.

Under all of the circumstances shown by the record, Mrs. Dessommes is entitled to a reversal of the trial court judgment and rendition here that she have and recover from Mr. Dessommes, Coats & Clark Sales Corporation and Connecticut General Life Insurance Company, jointly and severally, one-half of the benefits that have accrued between August 1, 1969, and the date of the judgment herein, calculated on the basis of benefits at $537.86 per month, together with interest upon her one-half interest in all benefits from date of accrual during such period. Also, she is entitled to have judgment for a like part and interest thereon upon unpaid benefits accruing after date of this judgment, limited by and subject to an order that Connecticut General Life Insurance Company will, as soon as practical after judgment herein becomes final, pay directly to Mrs. Dessommes her one-half interest in the monthly benefits as they accrue to her.

The former opinion herein is withdrawn and this substituted for it. All motions for rehearing are overruled. The judgment of the trial court is reversed and judgment rendered as herein directed.

IT IS SO ORDERED.

      . The time consumed in this case, whatever its cause, is a reproach to the Texas judicial system. The ages of the beneficiaries of the retirement plan are factors that should not be overlooked. Postponement of decision may well deny the beneficiaries an opportunity to establish and enjoy retirement benefits during their life time. Court ambivalence and further delay is intolerable if substantial justice may be done under the present record.


source: Caselaw Access Project

author:
KLINGEMAN, Justice.
      CADENA, Justice

license: Public Domain

text:
    The HOME INDEMNITY COMPANY, Relator, v. The Hon. James A. McKAY, Jr., and Lulu Belle Flores, Respondents.
    No. 15580.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 27, 1976.
    Kenneth L. Clark, Clark, Thornton & Summers, San Antonio, for appellant.
    James R. Warncke, San Antonio, for ap-pellee.
   KLINGEMAN, Justice.

This is an original proceeding in this Court in which the Home Indemnity Company, relator, seeks a writ of mandamus to compel Honorable James A. McKay, Jr., District Judge of the 150th Judicial District Court of Bexar County, Texas, to enter judgment on the verdict in Cause No. 74-CI-9607, Lulu Belle Flores v. The Home Indemnity Company, Inc., a/k/a The Home Indemnity Company, and to set aside his order therein declaring a mistrial.

The case in which the order of mistrial was entered is a workmen’s compensation case. Trial was to a jury, and during the process of the trial the parties stipulated that the average weekly wage of the respondent, Lulu Belle Flores, for the purpose of the trial, was $80.77.

The only special issues submitted may be summarized as follows:

1. Plaintiff received an injury on or about March 15, 1974.

2. She was injured in the course of her employment.

3. The injury was not a producing cause of any total incapacity.

4. The injury was a producing cause of some partial incapacity.

4A. The partial incapacity began on March 19, 1974.

4B. The partial incapacity ended on April 19, 1974.

4C. Plaintiff’s average weekly earning capacity during partial incapacity was $80.77.

5. Chiropractic and physical therapy services were reasonably required as the result of such injury.

5A. The reasonable cost of such required chiropractic and physical therapy services was $455.00.

Defendant filed a motion for judgment asserting that under the jury verdict, when considered in connection with the stipulation made by the parties, plaintiff was entitled to a judgment of $455.00 for past chiropractic and physical therapy services, and that defendant was entitled to a take-nothing judgment as to plaintiff’s claims for all other workmen’s compensation benefits. Plaintiff filed a motion for mistrial alleging that the jury’s answers to Special Issue No. 4 and Special Issue No. 4C are in irreconcilable conflict and will not support a judgment, requiring a mistrial. The trial court overruled defendant’s motion for judgment, finding that the answers to such issues are irreconcilable conflict, and also granted plaintiff’s motion for mistrial on the same grounds.

The special issues submitted to the jury were submitted in accordance with the new Texas Pattern Jury Charges. The definitions of “total incapacity,” “partial incapacity,” and “earning incapacity” are identical with the definitions given in PJC 22.02 (Yol. 2, 1970). The pertinent definitions here involved are as follows:

‘PARTIAL INCAPACITY’ means any degree of incapacity less than total incapacity, whereby a person suffers a reduction in earning capacity.
A person cannot have both total and partial incapacity at the same time.
‘EARNING CAPACITY’ means ability and fitness to work in gainful employment for any type of remuneration, including salary, commissions, and other benefits, whether or not the person is actually employed. It does not necessarily mean the actual wages, income, or other benefits received during the period inquired about.

Both parties cite and rely on our Supreme Court’s decisions in Employers Reinsurance Corporation v. Holland, 162 Tex. 394, 347 S.W.2d 605 (1961), and Indemnity Insurance Co. of North America v. Craik, 162 Tex. 260, 346 S.W.2d 830 (1961). Respondent asserts that the case before us is on all fours with and controlled by Holland, and that the trial court correctly granted a mistrial. Relator, on the other hand, asserts that this case falls within the holding in Craik, and that relator is entitled to have a judgment in accordance with the jury’s verdict.

Both Holland and Craik were handed down by the Supreme Court on the same date, and the Supreme Court referred to such cases as companion cases.

In Holland, the parties stipulated that the average weekly wage of plaintiff before and at the time of injury was $100.00. The jury found that the injuries suffered by plaintiff were a producing cause of some partial incapacity. In answer to another special issue, the jury found that the average weekly wage earning capacity during the existence of his partial incapacity was $100.00, exactly the same as his average weekly wage before and at the time of the injury. The Court stated that it was quite clear from the language of the Workmen’s Compensation Act that partial incapacity cannot exist unless the average weekly earning capacity after injury is less than the average weekly wage before injury. The Court held that the jury’s answers to Special Issues Nos. 2 and 6 could not be reconciled, and that the order of mistrial was proper.

In Craik, the parties stipulated that the average weekly wage of the plaintiff before his injury was $86.80. In Answer to Special Issue No. 9, the jury found that the plaintiff had sustained a partial disability as a result of his injury, but in answer to Special Issue No. 13, found that plaintiff’s average weekly wage earning capacity during his disability was $86.80. The trial court held that the jury’s answers to these issues, when considered with the stipulation, were in fatal conflict and ordered a mistrial. The Supreme Court held that there was not fatal or irreconcilable conflict in the jury’s answer even when considered with the stipulation of plaintiff’s average weekly wage. The Court, in discussing the two cases, stated that there was a material difference in the posture of the cases as they came to the Supreme Court, and that the difference lies in the definition of “partial incapacity” as given in the Holland case and “partial disability” as given in the Craik, case.

The Court, in Craik, stated:

It will be observed that under the foregoing definition the jury could find that the plaintiff has suffered a partial disability without finding that he had suffered ‘a depreciation or deduction in his earning capacity.’ Under the definition, the jury was authorized to find partial disability if the plaintiff was ‘able to procure and retain employment reasonably suitable to his physical condition and ability to work’ even though he had suffered no depreciation in his earning capacity.

It is to be noted that the definition of partial incapacity in the case before us is plain and simple — partial incapacity means any degree of incapacity less than total incapacity, whereby a person suffers a reduction in earning capacity. It contains no other alternatives.

As before stated, the special issues submitted to the jury were in accord with the new Texas Pattern Jury Charges, and Special Issue No. 4C is worded exactly the same as PJC 22.12, Earning Capacity During Partial Incapacity (Alternative). The comment contained under such special issue contains the following caveat:

CAVEAT. If the above issue is used, a finding by the jury of average weekly earning capacity which is as much or more than the plaintiff’s average weekly wage before the injury would be in conflict with a finding of partial incapacity. See Employers Reinsurance Corp. v. Holland, 347 S.W.2d 605 (Tex.1961). See also Indem. Ins. Co. of No. America v. Craik, 346 S.W.2d 830 (Tex.1961) (no conflict where partial incapacity defined in terms other than reduction of earning capacity).

We have concluded that under the holding of the Supreme Court in Holland and Craik and the comment hereinabove referred to in the new Texas Pattern Jury Charges, that the trial court was correct in overruling defendant’s motion for judgment and that his order of mistrial was proper. Writ of mandamus is denied.

CADENA, Justice

(concurring).

Our statute follows the format of workmen’s compensation legislation in this country by basing compensation payable to a partially incapacitated employee on the difference between actual earnings before the injury and post-injury earning capacity. It is immediately apparent that the two items to be compared are not the same. The pre-injury earnings factor is a relatively concrete quantity which, in the usual case, can be determined by reference to historical data. On the other hand, “earning capacity” is a more nebulous concept. The fact that it is different from wages earned is made manifest by the fact that the Legislature deliberately used different terminology to describe the pre-injury and post-injury factors to be considered in determining the compensation payable.

According to our statute, the amount which is recoverable by an employee who has suffered a general injury resulting in partial incapacity is an amount equal to 66⅜%” of the difference between his average weekly wages before the injury and his average weekly wage earning capacity during the existence of such partial incapacity . .” [Emphasis added.] Tex.Rev. Civ.Stat.Ann., art. 8306, § 11.

Clearly, under the statute, a partially incapacitated claimant is entitled to compensation if, and only if, as a result of his partial incapacity, his earning capacity is reduced to such an extent that he cannot earn as much as he earned prior to the injury. Simply stated, not all depreciation of earning capacity is compensable. If the claimant’s actual earnings before the injury do not exceed his post-injury earning capacity, he is not entitled to compensation.

The definition of “partial incapacity” embodied in the trial court’s charge in this case precluded a finding of partial incapacity in the absence of a diminution in the claimant’s earning capacity. Therefore, the finding of partial incapacity necessarily included a finding of reduced earning capacity. But, if we accept the plain meaning of the statutory language, a finding of reduced earning capacity is not enough to entitle the claimant to judgment. It does not, standing alone, establish that claimant has suffered a compensable reduction in earning capacity. In order to determine whether the reduction in capacity is com-pensable, it must be determined whether the claimant, because of his partial disability, has lost the capacity to earn as much as he was earning prior to the incapacitating injury. It is, therefore, necessary to submit an additional issue for the purpose of determining the claimant’s post-injury earning capacity. In this case, in order to elicit all information required for the purpose of determining whether claimant was entitled to recover and, if so, the amount of such recovery, an issue was submitted requiring the jury to find plaintiff’s earning capacity during the period of disability.

If the jury finds that claimant’s post-injury earning capacity equals or exceeds the amount he earned prior to the injury, then, according to the statutory formula, he is entitled to no compensation. There is no necessity to discuss the question of conflicting findings. While, given an affirmative answer to the “partial incapacity” issue, claimant has established that he has suffered a reduction in earning power, he has failed to establish that he has suffered a reduction in earning capacity which is com-pensable under the statute.

The conclusion that the findings in this case relating to partial incapacity and earning capacity conflict to an extent which prevents the entry of any judgment and requires the declaration of a mistrial, therefore, does not rest on the language of the statute as written, but on the judicial rewriting of the statute by a bare majority of the Supreme Court fifteen years ago in Employers Reinsurance Corporation v. Holland, 162 Tex. 394, 347 S.W.2d 605 (1961). In that case, five members of our highest tribunal clearly embraced the theory that the purpose of workmen’s compensation legislation is to compensate injured employees for any difference in earning capacities before and after the injury. The fact that the pre-injury factor was described in terms of actual earnings rather than earning capacity presented an obvious obstacle to the adoption of this theory. That is, it was necessary to translate “average weekly wages before the injury” into “average weekly wage earning capacity before the injury.” This was accomplished by announcing that the Legislature had created an irrebuttable presumption to the effect that “average weekly wages before injury” is synonymous, as a matter of law, with “earning capacity before injury.” 347 S.W.2d at 606. What the Holland majority viewed as the impossible task of subtracting post-injury apples from pre-injury oranges was resolved by simply decreeing that pre-injury oranges were, in fact, the same as pre-injury apples. The possibility of avoiding the difficulty by simply recognizing that apples and oranges are both apples and oranges representative of an amount of money was apparently overlooked. The statute does not require that oranges be subtracted from apples. It requires that dollars and cents be subtracted from dollars and cents.

In the ordinary case, the result of subtracting from the dollar amount representing “weekly wages before injury” from the dollar amount representing “weekly wage earning capacity” after the injury will be exactly the same as that reached by subtracting from the dollar amount representing weekly wage “earning capacity before injury” (conclusively presumed to be the same as “weekly wages before the injury”) the dollar amount representing “weekly wage earning capacity” after the injury. But where, as is the ease here and was the case in Holland, the minuend and the subtrahend are equal, the difference in results is startling. Whether we accept the plain meaning expressed by the unambiguous language of the statute, or accept the judicial gloss imposed on such language by the Holland majority, the difference is “zero.” But, if we apply the statute as written, the result is a judgment denying compensation, while if we apply the statute as rewritten by the Holland majority, the unavoidable result is the declaration of a mistrial. Where the situation presents the opportunity to choose between a rule which results in a judgment and a rule which results in an unproductive expenditure of time and money, it makes little, if any, sense to opt for the rule which, in effect, declares, “It ain’t nothing. Do it again.”

It would, of course, be presumptuous for an intermediate appellate judge to suggest that the Supreme Court reconsider its holding, since that is a privilege which, apparently is reserved to authors of legal treatises and writers of leading articles, comments, and case notes in law reviews. As long as Holland stands, the finding of a conflict in this case of such a nature as to require a retrial is unavoidable. But, perhaps, it would not be at variance with traditional standards of judicial conduct to suggest that the manner of submitting the issues relating to partial incapacity which was used in this case should be avoided, thus eliminating the possibility of conflicting findings. This can be easily accomplished by submitting the issue relating to reduction in earning capacity in the form suggested by the Committee on Pattern Jury Charges. PJC 22.11 (Vol. 2,1970). As long as “partial incapacity” continues to be defined in terms of reduction of earning capacity, the finding of partial incapacity constitutes a finding of reduced earning capacity, and the sole remaining issue to be determined is the question of the amount of such reduction. If the “earning capacity” issue had been submitted in this case in the form suggested in PJC 22.11, the answer to that issue would have been “$0.00,” eliminating the finding of a conflict under Holland. Use of this form of submission, of course, would require, in cases where the parties have entered into a stipulation relating to claimant’s “average weekly wages before injury,” that the jury be told of such stipulation.

      . Partial incapacity was defined in the charge as follows:
      ‘It shall mean where an employee by reason of injuries sustained in the course of his employment is only able to perform part of the usual task of a workman, but nevertheless, is able to procure and retain employment reasonably suitable to his physical condition and ability to work or is only able to perform labor of a less remunerative class than he performed prior to his injuries, whereby he suffers a depression or reduction in his earning capacity.’

      . Partial disability was defined in the charge as follows:
      ‘By the term “partial disability” is meant disability less than total where an employee, by reason of injuries sustained in the course of his employment, is only able to perform part of the usual tasks of a workman, but, nevertheless, he is able to procure and retain employment reasonably suitable to his physical condition and ability to work, or he is only able to perform labor of a less remunerative class than he performed prior to his injury whereby he suffers a depreciation or deduction in his earning capacity.’

      .“Section 11 of Article 8309 [8306] requires determination of the ‘difference between [the injured employee’s] average weekly wages before the injury and his average weekly wage earning capacity during the existence of such partial incapacity.’ The court may compute this ‘difference’ by subtracting the amount found in answer to the above issue from the employee’s average weekly wage before the injury as determined from the jury’s answer . . . or as stipulated by the parties.”


author: J. CURTISS BROWN, Chief Justice.

text:
    Hardie Ray HARRISON, Appellant, v. Lillie Bernice HARRISON, Appellee.
    No. 1404.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 27, 1976.
    Rayburn M. Hamilton, Houston, for appellant.

      W. C. Shead, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

Lillie Bernice Harrison (wife or appellee) filed for divorce in the Court of Domestic Relations of Harris County against her husband, Hardie Ray Harrison (husband or appellant). The husband filed a plea of privilege to be sued in the county of his residence, Liberty County. The wife duly filed her controverting affidavit, alleging that she was a resident of Harris County. After a hearing expressly stated to be a plea of privilege hearing, the trial court denied the husband’s plea of privilege and retained venue in Harris County. The husband has perfected this appeal.

The parties were married on April 7, 1973. They established their residence at a house owned by the husband and located in Harris County. In November of 1973 they began spending the majority of their time at a house located in Liberty County. Most of their mail was received there and apparently most of their business was conducted from there. Both parties spent most of their time in Liberty County, returning to the house in Harris County occasionally, until they separated on December 29, 1975. The wife filed her suit for divorce on January 6, 1976. Since the separation the wife has lived exclusively in the Harris County house.

Tex.Rev.Civ.Stat.Ann. art. 1995, subd. 16 (Supp.1976) states that “[sjuits for divorce shall be brought in the county in which the plaintiff shall have resided for six months next preceding the bringing of the suit. . ” Tex.Family Code Ann. § 3.21 (1975) states that “[n]o suit for divorce may be maintained unless at the time suit is filed the petitioner or the respondent has been a domiciliary of this state for the preceding six-month period and a resident of the county in which the suit is filed for the preceding ninety-day period.” It has been said that the failure of the legislature to conform Article 1995, subdivision 16 to the provisions of section 3.21 of the Family Code was apparently an oversight. 1 L. Simpkins, Texas Family Law 422 (Speer’s 5th ed. 1975).

In Lutes v. Lutes, 538 S.W.2d 256, 258 (Tex.Civ.App.—Houston [14th Dist.] 1976, no writ) this court had occasion to consider the cases of McKinney v. McKinney, 274 S.W.2d 908 (Tex.Civ.App.—Amarillo 1954, no writ) and Randell v. Randell, 222 S.W.2d 252 (Tex.Civ.App.—Fort Worth 1949, writ dism’d). Those cases construe Article 1995 together with former Article 4631 (Tex.Laws 1957, Ch. 155, § 1, at 341), the predecessor of section 3.21 of the Family Code. We reached the conclusion that a plea of privilege was not a proper vehicle through which to challenge a plaintiff’s residency qualifications. A plea in abatement is the appropriate remedy. Furthermore, in Lutes, 538 S.W.2d at 258, we held that the petitioner in a divorce suit may bring a suit in either the county of his or her residence or in that of the respondent. The choice of which of those counties the suit is to be filed in is given to the petitioner.

No findings of fact or conclusions of law being requested or filed in this case, the judgment of the trial court implies all necessary fact findings in support of the judgment. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613 (1950). Therefore, if appellant’s plea of privilege is construed as a plea in abatement he cannot prevail on this appeal. Appellee moved all of her furniture into the Harris County home at the time of the marriage of the parties. After they began spending the majority of their time at the residence in Liberty County, the home in Harris County was still maintained. It was not rented out. Appellee’s furniture and some of her clothes remained there. She received some of her mail there. Her driver’s license and some identification cards bore the Harris County address. She testified that at various times between November of 1973 and December 29, 1975 they spent “a couple of nights a week” there, at other times spending only a night or two each month. She stated that since she married the appellant she had always considered Harris County as her permanent address. We hold that the above is some evidence that appellee maintained a residence in Harris County within the requirements of the Lutes case.

Appellee has filed in this court a motion to dismiss the appeal for want of jurisdiction, alleging that appellant failed to give notification to appellee’s counsel of the filing of appellant’s appeal bond. Effective January 1, 1976, Rule 354(b) of the Texas Rules of Civil Procedure provides that “[notification of the filing of the bond or certificate of deposit shall promptly be given by counsel for appellant by mailing a copy thereof to counsel of record of each party other than the appellant . . . .” We do not believe the supreme court intended this requirement to be jurisdictional. See Graves v. George Dullnig & Co., 538 S.W.2d 149 (Tex.Civ.App.—San Antonio 1976, no writ) (per curiam). It is our opinion that under some circumstances lack of such notification may, in a proper case, authorize a court of civil appeals to dismiss the appeal. An example of such a case might be presented where the non-appealing party has changed his position to his detriment in reliance on his adversary’s compliance with Rule 354(b). However, since no such circumstances have been alleged in the present case, appellee’s motion to dismiss is denied.

The judgment of the trial court is affirmed.

Affirmed.

      . Emphasis added unless otherwise indicated.


author: CIRE, Justice.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Arthur HOLLEN, Appellee.
    No. 1454.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 27, 1976.
    Rehearing Denied Nov. 17, 1976.

      David E. Lueders, Wohlt, Lueders & Hope, Houston, for appellant.
    ■Marc Flatow, Flatow & Hinojosa, Larry W. Hohle, Frank B. Stahl, Jr., Lorance, Thompson & Wittig, Houston, for appellee.
   CIRE, Justice.

This appeal attacks a summary judgment entered against an insurer in an automobile accident case. Seventeen-year-old Jack Hollen was driving on February 1, 1974, when he had a one-car accident in which two passengers, Janet Hernandez and Dora Barclay, were injured. Hollen carried no liability insurance. The two passengers, through their parents as next friends, brought an action against State Farm Mutual Automobile Insurance Company claiming recovery under the uninsured motorist provision of policies issued to the parents. This provision obligates the insurer to pay all sums which the insured would be entitled to recover from the owner or operator of an uninsured automobile involved in an accident. State Farm brought a cross-action against Jack Hollen and his father, Arthur Hollen, claiming indemnity on the main suit; plaintiffs amended to sue the Hollens. The trial court, on motion by Arthur Hollen, severed the action of the passenger plaintiffs and State Farm against Arthur Hollen and granted a summary judgment. State Farm alone appeals.

State Farm’s cross-action alleged Arthur Hollen was liable for the accident because he negligently entrusted an automobile to his son, who was not licensed to drive. The only evidence offered in support of Hollen’s motion for summary judgment on this cause of action was the deposition of Jack Hollen. Because he is a party to the suit, his testimony does no more than raise a fact issue to be decided at trial. An exception to this rule exists if his statement is uncontradicted by any other witness or attendant circumstances, if it is clear, direct, and positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion on it. Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908 (1942). Such testimony may be further strengthened by the failure of an opposing party to contradict it, where there was a means and an opportunity for the opposing party to do so. Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.Sup.1967). The deposition of Jack Hollen does not come within the exception. It is not clear, direct, and positive, and the circumstances of the case tend to impeach his statement; it is so likely that such a witness would try to protect his parent that his statement cannot be given conclusive credibility. Moreover, State Farm had no opportunity to contradict this testimony, as the only persuasive impeachment evidence could come from another party, Arthur Hol-len.

The order sustaining the motion for summary judgment shows that the trial court based its decision on the argument of counsel, the pleadings, and the deposition. Since the deposition of an interested party presents only a fact issue, the movant here could not have established a case for summary judgment.

Appellee’s counterpoint one asserts that State Farm’s cause is moot because plaintiffs Hernandez and Barclay have not appealed. Appellee contends that under the uninsured motorist policies of Hernandez and Barclay and Texas Insurance Code article 5.06-1 (Pamp.Supp.1976), State Farm acquires only those rights which the insureds have. Appellee says that because the insureds have chosen not to appeal and time for appeal is now run, the judgment is final as to the insureds and State Farm’s action against Arthur Hollen is thus moot. We disagree. The plaintiffs originally sued only State Farm. State Farm brought a cross-action in its own name against Jack and Arthur Hollen. Plaintiffs then amended their petition to assert claims against the Hollens. The plaintiffs have the right to choose not to pursue their claim against Arthur Hollen, but this cannot prohibit State Farm from protecting and pursuing its subrogation rights by appealing from the summary judgment.

The judgment is reversed and the cause remanded for trial.


author: PRESLAR, Chief Justice.

text:
    Arturo OLIVAS et al., Appellants, v. Raymundo ZAMBRANO, Appellee.
    No. 6506.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 27, 1976.

      Long & 'Koehler, Ward L. Koehler, El Paso, for appellants.
    Niland & Niland, Jack T. Niland, El Paso, for appellee.
   OPINION

PRESLAR, Chief Justice.

This is a suit for title and possession of certain real estate brought by the remain-dermen of the grantee against one who holds under the grantor. Based on a jury verdict, the trial Court entered judgment for the defendant. We affirm.

This suit arises from a deed executed February 18,1922, by Esteban Zambrano to his sister, Elisa Olivas, conveying the four lots involved. The case has twice been before this Court, once when we reversed it because the judgment was interlocutory in nature and not appealable, Zambrano v. Olivas, 477 S.W.2d 299 (Tex.Civ.App.—El Paso 1972, no writ); then, in 1973, it was before the Court on a summary judgment and was reversed because of the existence of a fact issue, 490 S.W.2d 218 (Tex.Civ.App.—El Paso 1973, writ ref’d n.r.e.). The reader is referred to that case for a full statement of the facts and the nature of the case.

The deed from Esteban Zambrano to Oli-vas recited that it was for and in consideration of the promise and agreement of Olivas to supply the residents of the Sambrano Suburb with water for domestic purposes and to keep the water repair system in repair, and furnish water to the residents for a reasonable charge for a period of three years. The grant was to Olivas for her lifetime and to her children who survive her. The surviving children are the plaintiffs in this suit. They brought this suit after the death of Olivas in 1969. As indicated, the deed from Esteban to Olivas was dated February 28, 1922. Thereafter, on September 5, 1923, Olivas conveyed the property to a brother, Victor Zambrano, and on August 25, 1924, Victor conveyed the property to Esteban. In 1933, Esteban conveyed the property back to Victor, and then Victor, by his will, left the property to Esteban on his death in 1934. Following Esteban’s death in 1937, the Administrator of his Estate brought suit in trespass to try title against Olivas, and title was found to be in Esteban. This Court affirmed that judgment, 117 S.W.2d 482 (Tex.Civ.App.—El Paso 1938, no writ). It is the Appellants’ position that they are entitled to title and possession to the four lots as remaindermen under the deed from Esteban to Olivas; that there was no forfeiture or breach of the conditions subsequent in that deed; and that there has never been a reentry by the grantor.

Two issues were submitted to the jury, and they found (1) that Olivas did fail to supply water and maintain the water works, and (2) that Esteban cancelled the deed because of such failure. There is ample evidence as to the condition of the water system under Olivas to support the jury finding that she failed to maintain it and supply water, as required by the deed; considering only the evidence favorable to the finding and disregarding all inferences to the contrary, there is some evidence of her failure to comply; considering all of the evidence, the finding is not against the great weight and preponderance thereof.

On the question of whether there was a cancellation of the deed by Esteban or a reentry, there is testimony of a son of Esteban that his father took the property back: “ * * * he took the property back,” and he took it back in the “name of Victor.” Under the circumstances in which this testimony was offered, we hold that it was admissible. The related testimony was that it was a fact well known in the family that he took it back. This ancient fact well known in the family was evidence of the circumstances under which that deed was received; it was not a fact to prove title in itself, because title is there by the deed, but to prove the circumstances surrounding that deed. Such evidence under such circumstances was held admissible in Chapman v. Kellogg, 252 S.W. 151 (Tex.Comm. App.1923, judgmt. adopted, holding approved).

If we be wrong in the admissibility of the above evidence, the judgment must still be affirmed because the matter of reentry is otherwise established.

The obligation of Olivas under the deed from Esteban was to maintain the water works for a period of three years. However, before that three years was passed, title was back in the grantor, Esteban. He was the grantor who created the condition, and he was the holder of the right to forfeit. When Esteban took the deed from Victor in August of 1924, he became the owner of such rights as he had originally granted to Olivas and such rights as he retained under the condition, and there was a merger of the two estates in him. Where a greater estate and a lesser estate are acquired by the same person, the lesser is absorbed by the greater and the estates become merged. 22 Tex.Jur.2d, Estates, Sec. 15, and authorities there cited. Merger cannot destroy a vested remainder, but this occurred before the three years were up and before the obligation had been completed so that there was no vesting.

No estate ever vested in these Appellants, for they were contingent remain-dermen. Their rights were contingent on the pérformance of the conditions subsequent in the deed from Esteban to Olivas; the estate could be defeated by the failure of Olivas to perform. Since she failed to perform for the period of three years, and there was a reentry, the judgment of the trial Court is correct. As to the nature and characteristics of a contingent remainder, see 28 Am.Jur.2d, Sec. 220, and 22 Tex. Jur.2d, Estates, Sec. 6.

A suit to recover the land is also held to be a reentry. 15 Tex.Jur.2d, Covenants, Sec. 103; Dennis v. Royal Petroleum Corporation, 326 S.W.2d 538 (Tex.Civ.App.—Texarkana 1959), rev’d on other grounds, 160 Tex. 392, 332 S.W.2d 313 (1960), and Connecticut General Life Ins. Co. v. Bryson, 148 Tex. 86, 219 S.W.2d 799 (1949). There was, then, a reentry when Olivas was sued in trespass to try title by the Administrator of the estate of Esteban; reentry was established then as a matter of law in the case before us. In the Connecticut General Life Insurance case, it was held that the suit against the life tenant constituted a reentry and terminated all the rights of the remaindermen, even though they were not parties to the suit.

In the suit by the Administrator of the estate of Esteban against Olivas, it was found that record title was in Esteban, even though Olivas had pled in that suit the defense that she had performed the conditions subsequent in her deed. It was also held in that suit, and found by the jury, that Esteban had title by adverse possession under the ten-year statute of limitations. The finding of title under the ten-year statute of limitations means that his title was held adverse to the world, including these remaindermen. The judgment was that he had fee simple title. That judgment stands to this day and is good.

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


author: OSBORN, Justice.

text:
    DAHLSTROM CORPORATION et al., Appellants, v. ASPHALT EQUIPMENT, INC. OF NEW MEXICO, Appellee.
    No. 6543.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 27, 1976.
    Rehearing Denied Nov. 17, 1976.
    John F. Tomlin, Pecos, for appellants.
    Studdard, Melby & Schwartz, Harold E. Crowson, Jr., Jonathan D. Schwartz, Jr., El Paso, for appellee.
   OPINION

OSBORN, Justice.

This is a venue case. The order of the trial Court overruling the Appellants’ pleas of privilege is reversed and the case is ordered transferred to the resident counties of each of the respective Appellants.

The Appellee filed suit under the provisions of the McGregor Act, Article 5160, et seq., Tex.Rev.Civ.Stat.Ann., to recover for work performed as a subcontractor against a prime contractor and its bonding company. The work was performed in Culberson County where this suit was filed. The prime contractor and its bonding company, the Appellants herein, timely, filed pleas of privilege to have the case transferred to the county of their residence, namely Tarrant County and Dallas County. The Appellee did not file a controverting affidavit within ten days as provided for in Rule 86, Tex.R. Civ.P. Instead, it filed a motion to strike the pleas of privilege a little over two weeks after the pleas of privilege had been filed. The trial Court set the matter for hearing and subsequently entered an order overruling the pleas of privilege.

The Appellants present three points of error, all closely related, complaining of the trial Court’s determination of the venue question. The points are all sustained.

Article 5160-G, Tex.Rev.Civ.Stat.Ann., provides in part as follows:

“G. All suits instituted under the provisions of this Act shall be brought in a court of competent jurisdiction in the county in which the project or work, or any part thereof, is situated. * * ⅜ ”

The basic issue in this case, and the one upon which the parties differ, is whether or not Article 5160 is a special statute coming under the provisions of Subdivision 30 of Article 1995, Tex.Rev.Civ.Stat.Ann. If Subdivision 30 of the venue statute is applicable, then the normal venue procedures apply, and a controverting affidavit must be filed in order to sustain venue in any county other than that urged in the plea of privilege. That is the holding of the Court in Cowan v. State, 356 S.W.2d 170 (Tex.Civ.App.—Austin 1962, writ dism’d), where the issue involved venue under Article 7436, Tex.Rev.Civ.Stat.Ann. In that case, the Court said:

“In view of the holding of the Supreme Court of Texas in Universal Credit Co. v. Dunklin, supra, [129 Tex. 324,105 S.W.2d 867], if Art. 7436, V.C.B. is a special statute coming under the provisions of Sec. 30, Art. 1995, appellant’s plea of privilege could only be attacked by appellee by timely filing his controverting plea asserting the right to maintain venue in the District Court of Williamson County, Texas, under Exception 30 and could not be attacked by appellee’s motion to quash or any other similar pleading not filed in accordance with Rule 86.”

Thus, it can be seen that if Article 5160 is a special statute coming under the provisions of Subdivision 30, then the Appellee’s motion to strike the Appellants’ plea of privilege in this case is of no benefit where a controverting plea was not filed in accordance with Rule 86.

The answer to the question concerning the applicability of Article 5160 is found in Cole v. Western Brick & Supply Company, 364 S.W.2d 761 (Tex.Civ.App.—Amarillo 1963, writ dism’d), where Chief Justice Den-ton writing for the Court said:

“Article 5160(G) is a special venue statute pertaining to suits for the collection for labor and materials furnished prime contractors on projects contracted by the State or any of its political subdivisions. A statute of this nature which authorizes a particular action and procedure and describes its venue is especially made a part of the venue statutes by the very terms of Subdivision 30 of Article 1995. Universal Credit Company v. Dunklin, 129 Tex. 324, 105 S.W.2d 867. Ballard v. Shock, (Tex.Civ.App.), 91 S.W.2d 385.”

We conclude from that decision that Article 5160 is controlled by Subdivision 30 of Article 1995, and venue as to any county other than that of the residence of the Appellants cannot be put in issue other than by a controverting plea. Texas Highway Department v. Jarrell, 418 S.W.2d 486 (Tex.1967).

The order of the trial Court is reversed and the pleas of privilege are sustained. The suit against Dahlstrom Corporation is ordered transferred to a District Court of Tarrant County, Texas, and the suit against The Travelers Insurance Company is ordered transferred to a District Court of Dallas County, Texas.


author: O’QUINN, Justice.

text:
    George B. SHEPHERD, Appellant, v. CITY OF AUSTIN, Texas, Appellee.
    No. 12434.
    Court of Civil Appeals of Texas, Austin.
    Oct. 27, 1976.
    Rehearing Denied Nov. 24, 1976.
    Robert W. Norris, Phillips & Norris, Paul D. Jones, Jones & Jones, Austin, for appellant.
    Donald Lee Wolf, Acting City Atty., Austin, for appellee.
   O’QUINN, Justice.

Appellant George B. Shepherd, asserting title to 172 acres of land in Travis County, brought this suit in November of 1972 against the City of Austin as an inverse condemnation action to recover damages for the tract, which the City occupied and used as a permanent extension of its electric generating system.

On grounds arising principally by reason of a prior suit, brought by the City, which had been dismissed by the district court for want of jurisdiction, the City of Austin moved for summary judgment in this cause. The trial court sustained the motion and entered judgment that Shepherd take nothing.

We will reverse the judgment of the trial court and remand the cause for trial.

The City of Austin filed the earlier suit in 1966 in district court of Travis County, purporting to seek condemnation of Shepherd’s tract for use in connection with the Decker Lake project, having dual purposes of generating electricity and affording recreation for the public. While that suit was still pending various actions were taken by the district court, including the fixing of a sum to be deposited by the City to enable the City to take possession of the land, although Shepherd at the outset had filed his motion to dismiss on the ground that the district court was without jurisdiction of the subject matter.

Finally, in October of 1972, the district court sustained Shepherd’s motion and entered judgment dismissing the cause for want of jurisdiction. Neither party perfected appeal from the order of dismissal, and shortly thereafter Shepherd brought this action, now on appeal.

The record discloses that at the time this lawsuit was initiated by Shepherd in November of 1972 the City was in possession of the property and had not, after dismissal of the prior suit nor at any time earlier, sought to condemn the land through proceedings in eminent domain initiated in county court.

It is settled that the type of suit Shepherd brought is appropriate “ . where one having the power of eminent domain has taken property without the exercise of such power and has not made any payment for the property so taken.” Payne v. City of Tyler, 379 S.W.2d 373, 378 (Tex.Civ.App. Tyler 1964, writ ref. n. r. e. per curiam 383 S.W.2d 804); Art. 3269, V.A.C.S. Inverse condemnation has as its essence the situation “ . . . that property has been taken and the property owner is attempting to recover compensation therefor.” City of Abilene v. Burk Royalty Co., 470 S.W.2d 643, 646 (Tex.Sup.1971). See also Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 104 (1961); Cabanis, Inverse Condemnation in Texas—Exploring the Serbonian Bog, 44 Tex.L.Rev. 1584 (1966).

A short time prior to a jury trial setting of this case the City filed a motion for summary judgment contending that (1) Shepherd consented in the 1966 action to the City’s taking of the property and (2) in the alternative the inverse condemnation action was barred by the two- and four-year statutes of limitation. The gist of the City’s contention below and on appeal is that Shepherd, by withdrawing a security deposit ordered by the district court in the earlier suit, took action tantamount to a constitutional consent, contemplated under Section 17, Article I, of the Constitution of Texas.

It appears without dispute between the parties that proceedings in the prior suit were as now set out. In the 1966 suit Shepherd’s first pleading was a plea to the court’s jurisdiction of the subject matter on the ground that the district court was without power to entertain the suit as one in eminent domain. Without first determining the merits of Shepherd’s plea to the jurisdiction, the trial court entered an order fixing a security deposit to be posted by the City, and then ordered the clerk of the court to disburse portions of the deposit to certain lien holders. The court further granted possession of the property to the City. Thereafter, several months later, the court ordered the balance of the deposit to be disbursed to Shepherd.

Subsequent to these orders, the district court found it had no jurisdiction of the cause and entered final judgment dismissing the action for want of jurisdiction of the subject matter. After the court announced its ruling, and prior to entry of judgment dismissing the case, Shepherd returned to the registry of the court, subject to withdrawal by the City, the entire amount of the security deposit, including all sums disbursed to the lien holders.

At no time in proceedings had in the earlier suit was there convened a tribunal to determine the just compensation to which Shepherd was entitled for the taking and appropriation of his property by the City of Austin.

On appeal the City argues that by withdrawal of the security deposit, fixed by the trial court, Shepherd caused title to vest in the City and barred himself from any subsequent cause of action in which claim to title could be put in question, even if only as a formality, as in the present action of inverse condemnation. The City argues that withdrawal of the deposit, on November 27,1967, functioned not only as consent to the taking, but also changed the character of the action into one limited to issues of recovery of money for damages and compensation. Since recovery of real estate, the City reasons, was not in issue after withdrawal of the deposit, the action became one in debt and recovery of money damages, barred by statute after two years. Art. 5526, secs. 1 & 4 (1958), V.A.C.S. Even if not barred as a claim for money damages after two years, the City contends, suit was barred after four years as a civil action other than for recovery of real estate. Art. 5529 (1958), V.A.C.S.

Shepherd brings two points of error urging that the trial court erroneously sustained these contentions of the City below. We sustain appellant’s contentions under both points of error.

Dismissal of the City suit in 1972 for want of jurisdiction of the subject matter became final. No appeal was taken by either party, and the judgment is binding on all parties. The effect of a judgment, dismissing an action for want of jurisdiction of the subject matter, is to render void the entire proceedings taken in the cause so dismissed. San Lorenzo Title and Improvement Co. v. City Mortgage Co., 48 S.W.2d 310 (Tex.Civ.App. El Paso 1932), affirmed, 124 Tex. 25, 73 S.W.2d 513 (1934). The rule, as stated in McDonald, is that “In civil actions Texas continues to respect ‘the tradition that getting into the wrong court is a monstrous sort of error which ruins the case beyond redemption, and that nothing remains but to hold the entire proceeding null and void from the beginning.’ ” 1 McDonald, Texas Civil Practice, sec. 1.18, quoting from Sunderland, The Problem of Jurisdiction, 4 Tex.L.Rev. 429, 436 (1926). The appropriate order, and the only one “a court properly may enter upon discovering its lack of jurisdiction of the subject matter[,] is to dismiss the cause.” McDonald, idem, and eases cited in footnote 4.

The City relies on decision of the Supreme Court in City of San Antonio v. Grandjean, 91 Tex. 430, 41 S.W. 477 (1897), rehearing denied, 91 Tex. 430, 44 S.W. 476 (1898), for the proposition that there is a waiver of jurisdictional error when a compensation award is accepted. Grandjean is not controlling under the facts of this case and may be distinguished in several respects. In Grandjean the court was concerned with jurisdiction of the person, rather than the subject matter of the suit, and in that case acceptance by the condemnee was of an award made by special commissioners appointed to assess damages and not a security deposit ordered by a district judge. Finally, the litigation barred in Grandjean was by challenge of jurisdiction in a separate suit in district court, following earlier acceptance of the commissioners’ award in the eminent domain proceedings in county court. Shepherd questioned jurisdiction of the district court in the proceedings brought in 1966 from inception of that suit, brought by the City ostensibly to condemn in district court instead of county court.

The effect of the judgment dismissing the prior suit in October of 1972 was to put “ . . . the parties in the position that they were in before the court’s jurisdiction was invoked just as if the suit had never been brought.” The prior suit was “ . in no way an adjudication of the rights of parties . . . ” Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 104 (Tex.Sup.1962); Schenker v. City of San Antonio, 369 S.W.2d 626, 630 (Tex.Civ.App. San Antonio 1963, writ ref. n. r. e.); Transamerica Insurance Company v. Frost National Bank, 501 S.W.2d 418, 422 (Tex.Civ.App. Beaumont 1973, writ ref. n. r. e.); 4 McDonald, Texas Civil Practice, sec. 17.20 (1971).

Whatever consent to the taking of his property may have been implied by Shepherd’s temporary withdrawal of the security deposit ordered by the district court was negated when the court dismissed the suit for want of jurisdiction of the subject matter, and the parties were then left in the same position they held prior to suit. The present action by Shepherd is one of inverse condemnation, and the appropriate statute of limitations in such suits is the ten-year statute. Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 109 (Tex.Sup.1961). This lawsuit was brought well within the limits of the statute, and we find it unnecessary to determine applicability of Article 5539a (1958), V.A.C.S., which concerns refiling of suit after dismissal of an earlier suit for jurisdictional reasons. See 4 McDonald, Texas Civil Practice, sec. 17.20 (1971).

The City, by its first counterpoint, claims that appellant failed to bring certain essential matters forward in the record. This Court granted appellant’s motion to file supplemental transcripts, which were thereafter filed, and the City has moved to strike the supplemental transcripts. We overrule the City’s contentions in this respect.

The judgment of the trial court is reversed. The cause is remanded to district court for trial.


author: PHILLIPS, Chief Justice.

text:
    Malcolm E. GOSDIN, Appellant, v. BLUE LAKE ESTATES PROPERTY OWNERS ASSOCIATION, INC., Appellee.
    No. 12431.
    Court of Civil Appeals of Texas, Austin.
    Oct. 27, 1976.
    Andrew Gary, Morgan & Gary, San Marcos, for appellant.
    James A. Childress, Senterfitt & Adams, San Saba, Wilburn Oatman, Jr., Llano, for appellee.
   PHILLIPS, Chief Justice.

Blue Lake Estates Property Owners Association, Inc., appellee here, brought this suit in the trial court to enjoin the appellant permanently from parking a Winnebago recreational vehicle on his driveway adjacent to his home in Blué Lake Estates. Appellee contended that the parking of the Winnebago on the property was in violation of certain restrictive covenants which, due to pur disposition of the case, are not important here.

After trial to the court, the court found that appellant was in violation of the restrictive covenants and granted a permanent injunction against appellant. We order the case dismissed.

The record discloses that at the time of trial the appellant no longer owned the Winnebago, as he had sold it; therefore, the case was moot at the time of trial and should have been dismissed. This Court in In re Ivey, 534 S.W.2d 163 (Tex.Civ.App. Austin 1976, writ ref. n.r.e.), stated that an appellate court will not review a judgment if the controversy has been terminated. This Court went on to state that the existence of an actual controversy is essential to the exercise of appellate jurisdiction. If the controversy has terminated, the appeal is moot. State v. Society for Friendless Children, 130 Tex. 533, 111 S.W.2d 1075 (Tex.1938); City of West University Place v. Martin, 132 Tex. 354, 123 S.W.2d 638 (1939). Because the appellant sold the Winnebago before trial in the lower court no actual controversy exists between the parties. Therefore, there can be no appellate review.

Appellant testified that he intends to purchase another Winnebago. It appears that the parties would value this Court’s opinion as to whether such vehicle comes within definitions of those structures proscribed by the restrictions. We are unable to comply with this request as we are without authority to issue advisory opinions. The law is well settled in this State that courts are created, not for the purpose of deciding abstract questions of law or rendering advisory opinions, but for the judicial determination of presently existing disputes between parties in relation to facts out of which controverted questions arise. John E. Mitchell Company v. Anderson, 520 S.W.2d 927 (Tex.Civ.App. Waco 1975, writ ref. n.r.e.). There is, presently, no existing dispute between the parties. An opinion rendered on the merits would be nothing more than advisory. The Supreme Court has repeatedly held that under the Constitution of Texas the judicial power does not embrace the giving of advisory opinions. See In re Ivey, supra, and cases cited therein.

When a case becomes moot on appeal, all previous orders and judgments should be set aside and the case, not merely the appeal, should be dismissed. Guajardo v. Alamo Lumber Company, 159 Tex. 225, 317 S.W.2d 725 (1958), and Middleton v. Martin, 508 S.W.2d 495 (Tex.Civ.App. Austin 1974, no writ). Because the controversy is moot, all previous orders and judgments are set aside, and the case is dismissed.

Reversed and Dismissed.

      . The record before us does not contain a description of a Winnebago, nor have we been able to find such definition in any dictionary. We will, however, take judicial notice of the fact that it is a self-propelled motor home containing amenities for eating, sleeping, along with toilet and, possibly, bathing facilities.


author: SHANNON, Justice.

text:
    Raul MEZA, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 12465.
    Court of Civil Appeals of Texas, Austin.
    Oct. 27, 1976.

      Malcolm Greenstein, Austin, for appellant.
    Robert O. Smith, Dist. Atty., Travis County, Alton Lynn Ellison, Jr., Asst. Dist. Atty., Travis County, Austin, for appellee.
   SHANNON, Justice.

This appeal is from the judgment of the juvenile court of Travis County waiving its exclusive original jurisdiction and transferring appellant, Raul Meza, Jr., to another district court for a criminal trial. We will affirm that judgment.

The State alleged that on December 31, 1975, Meza, age fifteen, committed aggravated robbery at a U-Tote-M store in Austin. The State alleged further that Meza, while engaged in theft of personal property, shot the store manager.

By four points of error appellant seeks to reverse the judgment. Appellant’s first complaint is that the court erred in overruling Meza’s motion suggesting “mental illness or defect.” By that motion Meza claimed that “. . . as a result of mental disease or defect he is mentally ill or suffers from a mental illness or defect.” Appellant requested the court to order an appropriate medical and psychiatric inquiry to assist in determining “. . . whether he is mentally ill or suffers from a mental illness or defect . . .”

Texas Family Code Ann. § 55.04 provides in part as follows:

“(a) No child who as a result of mental disease or defect lacks capacity to understand the proceedings in juvenile court or to assist in his own defense shall be subjected to discretionary transfer to criminal court, adjudication, disposition, or modification of disposition as long as such incapacity endures.
“(b) If it appears to the juvenile court, on suggestion of a party or on the court’s own notice, that a child alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision may be unfit to proceed, the court shall order appropriate medical and psychiatric inquiry to assist in determining whether the child is unfit to proceed because of mental disease or defect.
“(c) The court or jury shall determine from the psychiatric and other evidence at a hearing separate from, but conducted in accordance with the requirements for, the adjudication hearing whether the child is fit or unfit to proceed.”

Appellant, by the terms of his motion, invoked the protection offered by § 55.04. The court erred in overruling the motion.

Appellant, however, did not discharge his burden of demonstrating that the error of the court amounted to such a denial of his rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.Civ.P. 434. See D. L. C. v. State, 533 S.W.2d 157 (Tex.Civ.App.1976, no writ). Pursuant to a previous court order, Dr. David Poole, a psychologist, had examined Meza. Dr. Poole’s report was in evidence, and it contained nothing to indicate that Meza suffered from mental disease or defect. At trial appellant called Dr. Poole, but no effort was made to show that Meza was mentally ill.. The State called Dr. Jaime Jaramillo, a psychiatrist, who had examined Meza. Jaramillo saw no symptoms of psychosis or schizophrenia in Meza and was of the view that Meza was fully oriented. Dr. Jaramillo testified further that he did not detect any hallucinations, delusions, or any sort of disorder in Meza.

The admission into evidence of his oral confession is the foundation for appellant’s second point of error. Without the confession and the “fruits” of the confession, appellant says there was not “. enough competent evidence to expect a grand jury to return an indictment.” Whether a grand jury might be expected to return an indictment is one factor to be considered by the court in a transfer hearing. Tex.Family Code Ann. § 54.02(f)(3). Specifically, appellant claims that before an oral confession of a child is admissible in evidence, Tex.Family Code Ann. § 51.09 (1975) requires that the child be given notice of his “Miranda” rights by a magistrate prior to the time the confession is taken. Prior to confession, appellant was given notice of his rights by a policeman rather than by a magistrate. It should be added that appellant does not attack the admission of the confession upon the basis that § 51.-09(b)(2) (1975) is unconstitutional.

Texas Family Code Ann. § 51.09(b)(1) (1975) requires that before the written confession of a child is admissible in evidence, the child must be given notice of his rights by a magistrate before the confession is taken. Section 51.09(b)(2) (1975) refers to the admissibility of oral confessions. That section provides simply that the confession of a child is admissible in evidence if “. it be made orally and the child makes a statement of facts or circumstances that are found to be true, which conduct tends to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.”

Meza was afforded protections beyond those required by § 51.09(b)(2) (1975). He was given notice of his rights by the investigating officer prior to the time he made an oral confession as to his part in the robbery. The officer’s statement to Meza included a warning that he, as a juvenile, could be certified and tried as an adult. Although Meza was of low average intelligence, the evidence was that he was capable of understanding the nature of the officer’s warnings. In fact, Meza testified that he understood the warnings. Prior to confession, Meza was not held for any long period of time. He gave the confession freely and not after any lengthy period of interrogation. Nothing in the record suggests star-chamber methods in obtaining the confession. After confessing, Meza directed the officers to the location where he had hidden the extra rifle shells which he had carried during the robbery. Under the circumstances, and by the authority of § 51.09(b)(2) (1975), the court properly admitted appellant’s oral confession.

Point of error three is that the court erred in finding that appellant was of sufficient maturity and sophistication that he should be treated as an adult. The “sophistication and maturity” of the child is one factor, among others, to be considered by the court in determining whether or not to transfer the child to criminal district court for trial. Tex.Family Code Ann. § 54.-02(f)(4).

Meza was not a sophisticated or mature child. Prior to hearing, the court obtained a diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense. § 54.02(d). Gretchen Runge, a physician and medical director of the Austin Evaluation Center, Inc., reported to the juvenile court that Meza’s overall performance on psychological tests “. fell in the upper part of the range of borderline intelligence. Performance score was somewhat higher than verbal. Raul does poorly in language areas. Achievement testing indicates that his academic level is below grade level.”

Also, as a part of the diagnostic study, Meza was examined by David R. Poole, a psychologist. Part of Dr. Poole’s report is as follows:

“TEST RESULTS
“Roy [Raul] is an attractive adolescent of average height and weight, with well-groomed, ear-length dark hair. He appeared for teh [sic] session appearing suspicious, depression [sic], and had an air of underlying anger. He wore a T-shirt, and jeans to the session, and had tatooed arms.
“Roy says that he is the 2nd of six siblings, currently living with the mother and step-father in Austin; he says that he never knew his father, and that his mother married his present step-father earlier this year. There have been other step-fathers in this family, and apparently the home situation has been somewhat chaotic for a number of years. Roy himself has had chronic school and behaviour problems, and has been seen at the Child Guidance Center and the Austin Evaluation Center; assessment work has been undertaken by these agencies and by the school district, and juvenile authorities have been involved with the boy since 1973, for offenses such as shoplifting, arson, and burglary. Considerable social history information and evaluation summaries are available to the court.
“Roy manifests no particular neurological difficulty, though his Bender-Gestalt figures were mildly immature for his age. Intellectually, he probably functions within the low average range (IQ 80-90). There were no indications of a thought disorder or psychosis.
“His projectives characterized a profoundly depressed youngster with very low self-esteem. He appears to have long felt ‘outside’ his family, cut off from both his parents. He is an intensely lonely youngster, who projects himself as having been without guidance or caring from adults. He sees males as hostile toward him, and as inturders [sic] and aggressive thieves in his life.
“He is an impulsive young man, who seems generally prone to act before thinking, and to act out his feelings in direct, physical ways. He is not prone to be very insightful or verbal, and consequently has had difficulty getting very much perspective about his situations. He has bad feelings about himself that he probably experiences as rather threatening and diffuse, and his acting out and his anger seem to function as a somewhat desparate [sic] defense against this very deep depression and self-rejection. He is also prone to project hostile feelings onto others, and is prone to see them as judge-mental [sic], cold and angry towards him. He doesn’t appear to expect much of himself or his life, and seems a strong candidate at this point for a life of recidivism or various direct or indirect expressions of suicidal inclinations.
“Dynamics involve an apparently seductive, sporadically involved mother, who on the one hand apparently tantalizes the boy with covert promises of acceptance and concern, but who has problems following through on this. Fathers evidently have been only sporadically involved, and have primarily served to distract the mother from her relationship with her son. The instability and inconsistency in the home, particularly in terms of the mother’s expressions of affection for him, have made separation very difficult, and have left Roy feeling quite guilty and badly about himself. He perceives himself as rearing himself ultimately alone, without help or encouragement from others. These issues have apparently been chronic, and a stormy adolescence could perhaps have been foretold. Residential treatment continues to be strongly indicated in this case, from the point of view of Roy’s emotional development.
“Developmentally, Roy has some serious gaps, primarily in terms of early tasks, such as separation and individuation from the mother in childhood. He currently feels alienated and friendless, and is decidely immature from a socio-in-terpersonal point of view.”

Section 54.02(f)(4) enumerates only one factor among several required to be considered by the court in the transfer hearing. Under the circumstances of this case, the error of the court concerning the sophistication and maturity of Meza does not require reversal of the judgment. In this connection the evidence showed that Meza committed the offense in an aggressive and premeditated manner. Derly Ramirez, the store employee whom Meza allegedly shot, testified that after midnight two men entered the store armed with a shotgun and a rifle. After forcing Ramirez to open the cash register, one of the men, allegedly Meza, forced Ramirez to enter the freezer compartment, turn away, and kneel down. The man then shot Ramirez.

The blemished record and previous history of Meza, which the court was required to consider, showed Meza was accused of shoplifting in October, 1973, of burglary in November, 1973, of attempted burglary in January, 1974, and arson in January, 1974. As a result of the alleged act of arson, Meza was detained at the juvenile home. After a few weeks he escaped from the juvenile home, but was returned by his mother. On March 30, 1974, Meza was given a weekend leave with his mother. During the same weekend he was arrested and charged with the burglary of an automobile.

On April 5, 1974, after a dispositional hearing, Meza was placed in the custody of the Texas Youth Council, and was sent to the Giddings State Home and School. The caseworker at that institution reported, “Roy has been a discipline problem while at Giddings. In his first few months, he did run away and broke into a country store. This was perhaps his most serious infraction.”

Appellant’s final point claims that the court erred in finding that appellant could not be rehabilitated by the use of procedures, services and facilities currently available to the juvenile court. That point will be overruled.

Under the point of error, appellant says there was insufficient evidence as “. to what procedures, services and facilities were currently available to the juvenile court.” In this connection the court in its findings stated, “The court, of its knowledge, is well aware of the facilities, services and procedures it has at its disposal.” The court’s order discloses that the matters listed in § 54.02(f)(6) were considered, and the order states specific reasons for the waiver. The fact that some of the recitations constitute conclusions does not require a reversal. In re W. R. M., 534 S.W.2d 178 (Tex.Civ.App.1976, no writ).

The final contention under this point of error is that there was insufficient evidence that appellant could not be rehabilitated. We have previously listed much of the evidence from which the court could have reasonably concluded that Meza could not be rehabilitated.

The judgment is affirmed.

      . Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: JAMES, Justice.

text:
    Dennis POWERS, Appellant, v. The STATE of Texas, Appellee.
    No. 5617.
    Court of Civil Appeals of Texas, Waco.
    Oct. 28, 1976.
    Rehearing Denied Nov. 10, 1976.

      Jim Crow, Waco, for appellant.
    Martin D. Eichelberger, Waco, for appel-lee.
   OPINION

JAMES, Justice.

This is a mental illness case, Appellant Dennis Powers having been committed for an indefinite period by the County Court of McLennan County, Texas. Trial was to a jury which found: (1) That Powers is mentally ill, and (2) he requires hospitalization in a mental hospital for his own welfare and protection or the protection of others. Based upon the jury verdict, the trial court entered judgment which decreed Powers to be mentally ill and committed him for an indefinite period to the Veterans Administration Hospital at Waco, Texas.

Appellant assails the trial court’s judgment on four points of error, to wit: that the court committed fundamental error and thereby violated due process (1) by applying a vague standard of commitment, (2) in using the wrong burden of proof in submission of special issues to the jury, and (3) by “not giving notice to Appellant of his right to an independent medical examination.” Appellant’s remaining point complains of legal insufficiency of the evidence to support the jury’s answers to the special issues. We overrule all of Appellant’s points of error and affirm the trial court’s judgment.

We revert to Appellant’s first point, that is, that the trial court applied a vague standard of commitment and thereby violated due process under the Fourteenth Amendment to the Federal Constitution. The trial court submitted special issues to the jury in compliance with Article 5547-51, Vernon’s Annotated Texas Statutes. Special Issue No. 2 inquired of the jury: “Do you find from a preponderance of the evidence, if any, that the proposed patient requires hospitalization in a mental hospital for his own welfare and protection or the protection of others?” Appellant says that this standard of commitment is too vague because it leaves the jury free to decide whether to commit the Appellant without any fixed legal standard and that such a standard lends itself to arbitrary, discriminatory, and inconsistent applications of the law. We do not agree.

Appellant has cited us to no Texas case holding that the standard of commitment prescribed by Article 5547-51 is unconstitutional, and we have found none. Moreover, we find authority from among the decisions of Federal Courts which tend to uphold the constitutionality of the Texas standard of commitment prescribed by Article 5547-51. See Humphrey v. Cady (1972) 405 U.S. 504, 509, 92 S.Ct., 1048, 31 L.Ed.2d 394. In Humphrey the U. S. Supreme Court in dictum at 92 S.Ct. 1052 recites with implied approval the standard of commitment prescribed by the Mental Health Act of the State of Wisconsin, which is very similar to and substantially the same as the Texas standard. Also see Reynolds v. Sheldon (D.C.Texas 1975) 404 F.Supp. 1004, 1009; Bell v. Wayne County General Hospital at Eloise (D.C.Michigan 1974) 384 F.Supp. 1085, 1096, 1102. In the absence of any Texas case law on the subject, and in the light of the Federal authorities herein-above cited, we hold that the standard of commitment prescribed by Article 5547-51 is constitutional. Appellant’s first point is overruled.

Appellant’s second point asserts the trial court erred in requiring the State to prove its case by a “preponderance of the evidence,” and contends thereby that appellant has been denied due process of law under the Fourteenth Amendment to the Federal Constitution. Appellant says the trial court should have required and applied a more stringent burden of proof for the State to assume, such as proof by “clear, unequivocal, and convincing evidence” or proof “beyond a reasonable doubt.” We overrule this point of error and these contentions.

In the case at bar, the trial court submitted the two special .issues hereinabove mentioned by prefacing each with the language:

“Do you find from a preponderance of the evidence _?” The Mental Health Code of the State of Texas (Article 5547-1 to 204, inclusive, Vernon’s Annotated Texas Statutes) does not prescribe the burden of proof to be imposed upon the State in commitment proceedings. However, it has been held in Texas that the Mental Health Code is not unconstitutional for failure to require the State to prove “beyond a reasonable doubt” that the proposed patient is mentally ill and requires hospitalization for his own welfare and protection of himself and others.

Greene v. State (Tex.Civ.App. Houston 1st CA 1976) 537 S.W.2d 100, no writ. Moreover, in Tippett v. State of Maryland (4th Cir. 1971) 436 F.2d 1153, 1159, certiorari dismissed as improvidently granted under the name of Murel v. Baltimore City Criminal Court (1972) 407 U.S. 355, 92 S.Ct. 2091, 2093, 32 L.Ed. 791, wherein the burden of proof used was “by a preponderance of the evidence,” it was held that such burden of persuasion did not violate due process. The Court in Tippett further said on page 1159: “In any event, in the present state of our knowledge, choice of the standard of proof should be left to the state.” We agree, and hold that the burden of proof used by the trial court, to wit, by a “preponderance of the evidence” did not violate due process and is a constitutional burden of proof. Appellant’s second point of error is accordingly overruled.

Appellant challenges the constitutionality of Articles 5547-42, 44, and 49, V.A.T.S., because they do not call for an independent medical examination before a person can be involuntarily committed, nor do they call for Appellant's right to such independent medical examination at court expense if he were indigent. We are cited to no Texas authority holding the above articles to be unconstitutional, and we have found none. We fail to see any basis for holding such statutes unconstitutional, and thereby overrule this point of error. Appellant stresses the desirability of the Defendant-Appellant being entitled to an independent medical examination at his own expense or at court expense in the event Defendant-Appellant is indigent. Be that as it may, this is a matter to be addressed to the Legislature and not to the courts, and in our opinion does not bear upon the constitutionality of these statutory provisions.

Finally, Appellant challenges the legal sufficiency of the evidence supporting the jury’s findings in answer to the two special issues hereinabove described. However, no statement of facts was brought forward.

In the absence of a statement of facts, it must be presumed on appeal that legally and factually sufficient evidence was introduced to support the findings and judgment of the trial court. Ehrhardt v. Ehrhardt (Waco CA 1963) 368 S.W.2d 37, writ refused; Englander Co. v. Kennedy (Tex.1968) 428 S.W.2d 806.

All of Appellant’s points and contentions have been carefully considered, and are overruled. Judgment of the trial court is accordingly affirmed.

AFFIRMED.