author: MATHERNE, Judge. NEARN, Judge,

text:
    STATE of Tennessee ex rel. Charlene Denise BAKER, Appellee, v. Kenneth TURNER and the Juvenile Court of Memphis and Shelby County, Tennessee, Appellants.
    Court of Appeals of Tennessee, Western Section.
    Sept. 9, 1977.
    Certiorari Denied by Supreme Court Feb. 13, 1978.

      J. Minor Tait, Jr., Asst. County Atty., Memphis, for appellants.
    Warren Miller, Memphis, for appellee.
   MATHERNE, Judge.

The issue is whether a chancery court which awarded custody of a minor in a divorce decree retained such jurisdiction over the minor as to prevent a hearing and a placement of the minor by a juvenile court under a petition in that court to have the child declared a “dependent and neglected” child.

The chancellor held that “this child is a ward of the Chancery Court and any adjudication as to the custody of said child by the Juvenile Court is an encroachment upon the jurisdiction of this court, as between the respective parents, or the parents and strangers.”

I.

On December 21, 1972, the Chancery Court sitting in Shelby County, Tennessee granted Dellia Jane Baker a divorce from Charles Herbert Baker, Jr., and the custody of their minor child Charlene Denise Baker was awarded to the mother with visitation rights in the paternal grandfather. On July 18, 1976, the paternal grandfather and the father took the child to the Juvenile Court for Memphis and Shelby County, Tennessee and reported that the child was afraid to return to the mother’s home because of beatings she had received from her mother. The next day the grandfather filed a petition in the Juvenile Court charging that the child was a dependent and neglected child. After interviewing the grandfather, the father and the father’s girl friend, an employee of the Juvenile Court placed the child in a foster home pursuant to T.C.A. § 37-228.

The mother filed a petition for writ of habeas corpus in the Chancery Court, a fiat was issued and a hearing was had on September 1, 1976. The chancellor, in addition to the ruling heretofore noted, awarded custody of the child to the mother and ordered that:

[a]ll members of the family of Charles Herbert Baker, Jr., all agents, servants, and employees, excepting Judge Kenneth Turner, of the Juvenile Court of Memphis and Shelby County, all agents, servants, and employees of the Tennessee Department of Human Services, and all other persons having any connection with this case, excepting counsel, are hereby enjoined from proceeding further with any proceeding regarding the custody of the minor child, Charlene Denise Baker, from interfering with the mother’s custody of said minor child, from making any investigation into the fitness of said mother or reporting same to anyone except at the direction of this Court, and from interfering with the orders of this Court in this cause, all until the further order of the Court.

The chancellor certified that the judgment was final as to the respondents, the employees of the Juvenile Court of Memphis and Shelby County, Tennessee, and the employees of the Tennessee Department of Human Services and that there was no just reason to delay an appeal by those parties.

By order dated September 17, 1976, the chancellor made various rulings on child support payments and attorney’s fees, awarded “exclusive” custody of the child to the mother and dissolved the injunction as against the employees of the Juvenile Court and the Tennessee Department of Human Services.

The appellee filed a motion in this Court to dismiss this appeal because the dissolution of the injunction rendered all issues moot. We disagree with that argument because the crucial question presented is whether the juvenile court has jurisdiction to hear and determine the petition charging that the child is dependent and neglected. The motion to dismiss this appeal is overruled.

II.

The jurisdiction of a juvenile court is set out in T.C.A. § 37-203, as follows:

Jurisdiction — (a) The juvenile court has exclusive original jurisdiction of the following proceedings, which are governed by this chapter:
(1) Proceedings in which a child is alleged to be delinquent, unruly, or dependent and neglected * * *.

A chancery court has inherent jurisdiction of the persons and estates of minors, and jurisdiction to award custody in divorce proceedings. Marmino v. Marmino (1951), 34 Tenn.App. 352, 238 S.W.2d 105. The jurisdiction of the chancery court over the custody and support of the minor children of the parties to a divorce action continues and the decree may, in those respects, be changed or modified as the exigencies of the case may require. Cravens v. Cravens (1948) 30 Tenn.App. 487, 207 S.W.2d 593; Sutton v. Sutton (1967), 220 Tenn. 410, 417 S.W.2d 786.

This apparent conflict in the jurisdiction of the respective courts has been considered and decided by the courts of Tennessee.

In Marmino v. Marmino, supra, the Court held that while a chancery court has inherent jurisdiction of the persons and estates of minors, the State of Tennessee acting as parens patriae has conferred upon juvenile courts the special, exclusive jurisdiction to determine custody of a “dependent” or “delinquent” minor, because custody is necessarily involved when either of those conditions exist. The parties to such proceedings are the State against the minor and the parents, or other persons having custody. The Marmino court summarized, as follows:

We think it a sound and simple view that the Chancery Court never loses jurisdiction of the question of custody, that is, the subject matter as part of a divorce proceeding, but the right and power to exercise that jurisdiction upon the person of the minor may be suspended temporarily or permanently either prior to or after the inception of the divorce case by reason of the exercise by the Juvenile Court of the special, exclusive jurisdiction conferred on it to determine whether the minor is “dependent” or “delinquent,” as defined by the Statute and hence necessarily to determine custody.

In Kidd v. State (1960) 207 Tenn. 244, 338 S.W.2d 621, the parents were divorced in 1954 and custody of their minor child was awarded to the mother. In 1955 a petition was filed in juvenile court charging that the child was “dependent and neglected.” The juvenile court removed the child from the custody of the mother. The Supreme Court, citing Marmino, affirmed on the ground that the juvenile court had special and exclusive jurisdiction under a petition charging dependency and neglect.

We therefore hold that the juvenile court in the instant lawsuit has exclusive jurisdiction to hear and determine the petition which charges that the child is dependent and neglected. As a corollary to that jurisdiction that court may award custody in a manner different from that formerly decreed by the chancery court in the divorce decree. Any party aggrieved by the action of the juvenile court may appeal to the circuit court. T.C.A. § 37-258.

The decree of the chancellor is reversed and the costs in the chancery court and in this Court relative to the issue of jurisdiction are adjudged against the petitioner-ap-pellee.

CARNEY, P. J., concurs.

NEARN, J., dissents.

NEARN, Judge,

dissenting.

I must dissent as I feel the issue is moot and the majority Opinion therefore dicta.

Neither parent, grandparent, nor child appeals. Evidently those with real flesh and blood interests are content with the Chancellor’s decree. It is only the County and its official that appeals. In his brief counsel for petitioner prays:

(a) That the decree of the Chancellor be reversed, and (b) that this Court declare and decree that the Juvenile Court has original and exclusive jurisdiction to hear and decide a petition which alleges that a child is a dependent and neglected child within the meaning of the law of the State of Tennessee even though said child is a ward of Chancery Court by virtue of a prior divorce proceeding; and (c) that this Court declare and decree that the Juvenile Court of Memphis and Shelby County, Tennessee has jurisdiction to hear and decide the petition pending in said Court alleging that Charlene Denise Baker, is a dependent and neglected child without further interference by the Chancery Court of Shelby County, Tennessee.

As to (a), the decree complained of is the one which enjoined employees of the Juvenile Court and of the Tennessee Department of Human Services from proceeding. That injunction was dissolved by the Chancellor. Why should this Court consider the efficacy of the injunction when it no longer exists and no one is affected by it? By prayer (b) counsel for appellants tips his hand; for, by its wording, he seeks to have this Court make a sweeping pronouncement in futuro when the issue is not now before us. As to prayer (c), I do not know what is stopping appellants from hearing whatever petitions they want to hear and decide. There is no injunction prohibiting such hearing. If one should be issued by another Court and remain in effect a justiciable issue would be presented to us; but not until then. Perhaps appellants have not proceeded in the Juvenile Court because neither parents nor grandparents nor anyone else feels the child is now dependent and neglected.

I would dismiss.


source: Caselaw Access Project

author: DROWOTA, Judge.

license: Public Domain

text:
    METROPOLITAN DEVELOPMENT AND HOUSING AGENCY, Plaintiff-Appellant, v. SOUTH CENTRAL BELL TELEPHONE COMPANY et al., Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    Oct. 28, 1977.
    Certiorari Denied by Supreme Court March 13, 1978.

      Joseph L. Lackey, Jr., Lackey, Alexander & Jackson, Nashville, for plaintiff-appellant.
    J. 0. Bass, Bass, Berry & Sims and Harry Mittwede, Nashville, for defendants-appel-lees.
   OPINION

DROWOTA, Judge.

In this suit for declaratory judgment, plaintiff Metropolitan Development and Housing Agency urges that a state statute which requires it to reimburse defendant utilities for the cost of relocating their equipment to further certain urban renewal projects is an unconstitutional impairment of several of plaintiff’s contracts.

Plaintiff Metropolitan Development and Housing Agency, formerly the Nashville Housing Authority, is recognized at § 18.04 of the Charter of the Metropolitan Government of Nashville and Davidson County as both a city and county housing authority created pursuant to T.C.A. §§ 13-901 — 13-919 and §§ 13-1001 — 13-1011, respectively. These sections of the Code provide that such an agency is a “public body corporate” and charge it with carrying out the provisions of the Housing Authorities Law, Chapters 8 through 11 of Title 13 of the Code. The agency is vested by the State with a number of powers, many of which appear to have been designed to allow the agency to improve housing conditions in its area by the construction of new housing projects. See T.C.A. §§ 13-804 — 13-805.

Pursuant to its statutory authority, plaintiff in the 1960’s and 1970’s has embarked on three urban renewal projects in Nashville which have given rise to the instant suit. These projects are financed by loan and grant contracts between plaintiff and the federal Department of Housing and Urban Development (HUD). These contracts provide that the federal government will furnish ⅜ of the funds needed for the projects while the local authorities furnish the remaining ⅛. The local authorities receive “in-kind” credits toward their ⅛ share for work they actually do on the projects. Relocation of lines and equipment by defendant Electric Power Board, known as Nashville Electric Service (NES), an independent agency of the Metropolitan Government of Nashville and Davidson County (Metro), would qualify for this in-kind credit if paid for by NES. Also involved in these projects are so-called “cooperation agreements” between plaintiff and Metro, contracts in which Metro agrees to cooperate with plaintiff and aid the urban renewal projects in specified ways.

In addition to the contracts between HUD and plaintiff and between Metro and plaintiff, a third set of contracts is important in this litigation. These are the franchise agreements entered into between Metro and each of the defendant utilities except NES. The franchises in each case are agreements in which the city gives the utility the right to maintain its facilities and do business within the municipal limits and on municipal rights of way, and which set forth various conditions with which the utility is required to comply. These franchise agreements are currently-in force between Metro and the following defendant utilities: South Central Bell Telephone Company (South Central Bell), Nashville Gas Company (Nashville Gas), Colonial’ Pipeline Company (Colonial), and Western Union Telegraph Company (Western Union). NES, the only other defendant in the case, does not operate under a franchise agreement but, as an independent agency of Metro government, is controlled by provisions set forth in Appendix III to the Metro Charter.

The three urban renewal projects in question required the relocation of some equipment of all of the defendants in order to proceed. At common law, that is, in the absence of any valid legislative enactment to the contrary, the cost of such relocation is a non-compensable harm to the utility and must be borne by it. See Pack v. Southern Bell, 215 Tenn. 503, 387 S.W.2d 789 (1965). In the instant situation, the urban renewal plans were developed and most of the contracts discussed above were made when this was the state of the law. In 1971, however, the State legislature passed T.C.A. §§ 13-828 — 13-831, the statutory provisions attacked by plaintiff in this case. After stating its findings and defining its terms in §§ 13-828 and 13-829, the legislature goes on to require utilities to be reimbursed for the cost of relocating their facilities for urban renewal as follows:

13-830. Reimbursement of cost of moving utility facilities. — Whenever a municipality, housing authority, or other public body of this state determines that the relocation of public service facilities of a utility within a redevelopment or urban renewal project area is necessary to the carrying out of a redevelopment or urban renewal plan pursuant to the provisions of the housing authority law, the municipality, housing authority, or other public body shall reimburse the utility for the cost of relocation of such facilities.
13-831. Exceptions. — Sections 13-828— 13-831 shall not apply to any taking or damaging of property for which the utility is entitled compensation pursuant to the constitution of Tennessee or the United States or pursuant to any binding agreement inuring to the utility’s benefit.

On October 31, 1973, plaintiff filed this suit for a declaratory judgment against defendant utilities. The gist of the complaint was that T.C.A. §§ 13-828 — 13-831 impair the obligations of plaintiff’s contracts in violation of Article I, § 10 of the United States Constitution and Article I, § 20, of the Tennessee Constitution. Plaintiff claims that, insofar as the statute attempts to compel plaintiff to bear the burden of the cost of relocating facilities of defendant utilities to make way for the three urban renewal projects discussed above, it unconstitutionally impairs obligations in plaintiff’s contracts with HUD, in plaintiff’s contracts with Metro, and in Metro’s franchise agreements with defendant utilities. Specifically in regard to the franchise agreements, it is plaintiff’s contention that they create a contractual obligation on the part of each utility to pay for relocation of its facilities, that plaintiff is a party that can enforce that obligation because it is an agency of Metro, and that this obligation is unconstitutionally impaired by the requirement of §§ 13-828 — 13-881 that plaintiff pay the relocation costs. With regard to plaintiff’s contracts with HUD and its cooperation agreements with Metro, plaintiff also alleges unconstitutional impairment, most notably by the loss of the in-kind credit that would have accrued to the local authorities had NES paid its own relocation costs. Plaintiff asked the court to declare that the statute could not constitutionally require it to reimburse these defendants because of the pre-existing contractual relationships between the parties. In addition to presenting its contract clause arguments, plaintiff also urged that the court hold NES equitably estopped to claim reimbursement under the statute because it had submitted estimates of its relocation costs that were used in planning the urban renewal projects.

Defendants’ answers argued in support of the validity of §§ 13-828 — 13-831 as applied in the instant situation. Several defendants had entered “non-prejudice” agreements with plaintiff prior to this suit, whereby plaintiff agreed to pay their relocation expenses without prejudice to the rights of either party in the event of litigation over the statute’s validity. Defendant NES, which had entered such an agreement but apparently had not been paid, included in its answer a counterclaim asking judgment in the amount of past relocation expenses as well as an adjudication of its entitlement to be reimbursed for those incurred in the future.

The case was heard in the Chancery Court of Davidson County on May 17, 1974. It was there brought out that NES had, pursuant to plaintiff’s request, furnished plaintiff with estimates of its relocation costs, which plaintiff had relied on and used in its budgets for the projects and in its contracts with HUD. It was estimated that the total cost of relocation for all utilities would be approximately $2,100,000.00. Only the expenses of NES would be eligible for in-kind credit with HUD if each utility bore its own costs because only NES is an agency of Metro government. A multitude of exhibits was introduced, including NES’s relocation cost estimates, Metro ordinances approving the urban renewal plans and cooperation agreements executed in accordance with the ordinances, and the franchise agreements of several defendants. The record does not contain copies of the HUD contracts. Stipulations were entered at various times concerning the equipment owned by the several defendants and the cost of relocation in the urban renewal areas.

On January 29, 1975, the Chancellor filed a memorandum opinion in the case. He found that, prior to the statute’s enactment, utilities were required to pay their own relocation costs, but that the statute is “a valid enactment of the legislature” which requires plaintiff “to reimburse these utilities for the cost of relocation brought about by the urban renewal plan.” The court held that plaintiff was not a party to the franchise agreements between Metro and defendants, and that the statute therefore affected no agreements between the parties. Furthermore, the court, assuming ar-guendo that the franchise agreements required uncompensated relocation of facilities by defendants, found that the legislature could relieve defendants of this obligation without violating the contract clause. The court also rejected plaintiff’s contention that NES, due either to its own actions or to those of Metro, is estopped to claim reimbursement for its relocation expenses under the statute. On March 6, 1975, the Chancellor entered a decree dismissing the complaint and sustaining NES’s counterclaim for reimbursement from plaintiff in accordance with §§ 13-828 — 13-831. Each defendant was declared entitled to payment under the statute and provision was made, in case of dispute over the amounts due, for reference to the Clerk and Master. Reference of the claim of defendant Nashville Gas was made to the Clerk and Master, who found that utility entitled to $83,637.48 in relocation costs from plaintiff. This amount was found already to have been paid by plaintiff under a non-prejudice agreement. The report of the Clerk and Master was affirmed by the Chancellor’s decree of December 1, 1976, which also holds plaintiff liable to NES in the total amount of $231,469.63 for relocation costs already billed to plaintiff and declares plaintiff liable for the cost of relocation not yet carried out by NES in the projects. Both NES and Nashville Gas excepted to the Chancellor’s failure to allow interest on the amounts awarded to them for the period between the billing date of each expense and the date of judgment. Specific claims for reimbursement by defendants other than NES and Nashville Gas appear not to have been made, and the record contains no mention of the disposition of any such claims below.

The primary question for our consideration is the appeal of plaintiff from the Chancellor’s upholding of the statute as it applies to plaintiff in this case. Plaintiff assigns as error the Chancellor’s holding that the statute is constitutional as applied to it, his finding that plaintiff is not a party to the franchise agreements between Metro and defendants, and his conclusion that NES is not estopped to rely upon T.C.A. §§ 13-828 — 13-831. In addition to plaintiff’s appeal, defendant NES also appeals to this Court and assigns as error the Chancellor’s refusal to allow it interest on its various relocation expenses from the date each was billed.

It is obvious that plaintiff must establish a number of points to succeed in its attack upon the statute under the contract clause, which is the subject of its first and primary assignment of error. In regard to the franchise contracts between Metro and defendant utilities, plaintiff must show that it is a party or that there is some other reason for it to be given standing to attack the alleged impairment of those contracts. The Chancellor found that plaintiff was not a party, and this finding is attacked in plaintiff’s second assignment of error. Plaintiff also, of course, must show that the franchise contracts with defendants do require defendants to relocate at their own expense, and there is some doubt about this as well. Further, with regard to all the contracts involved, plaintiff has the burden of establishing an impairment within the meaning of the constitutional provision. These points and others have been briefed and argued to one extent or another, and it is far from clear that their resolution would be in plaintiff’s favor. We believe, however, that there is another factor that is clearly dispositive of plaintiff’s attack on the statute. Consequently, for purposes of this opinion, we will assume arguendo that plaintiff is in the position of a party to all the contracts involved, that the franchise contracts do require relocation of defendants’ facilities at defendants’ cost, and that there has been some impairment of all the contracts involved. We emphasize that we decide none of these points, and that there is serious doubt about many of them, but that we assume them in order to reach the dispositive issue in the case.

Sections 13-828 — 13-831 of Tennessee Code Annotated cannot be held to impair the contracts of plaintiff in this case because plaintiff, as an agency created by the State of Tennessee, cannot claim the constitutional protection of the contract clause against the alleged impairment of these contracts by the State. The case we find most nearly in point is City of Worcester v. Worcester Consolidated Street Railway Co., 196 U.S. 539, 25 S.Ct. 327, 49 L.Ed. 591 (1905). In that case a municipality, acting under authority of state law, granted defendant railway company an extension of its lines on condition that the company lay and maintain pavement for a certain area around the track. At the time of this extension, defendant was under a state law obligation to keep its tracks and the street around them in repair, but the state later changed the law so that such maintenance was no longer required. Nevertheless, the city sued to enforce its “contract” with defendant, alleging that the state’s change in the law impaired the obligation of that contract in violation of Article I, § 10 of the United States Constitution. The United States Supreme Court assumed that a valid contract had been created between the city and the company, but held that the state could constitutionally abrogate such a contract as long as the company did not object. The Court said:

A municipal corporation is simply a political subdivision of the state, and exists by virtue of the exercise of the power of the state through its legislative department. The legislature could at any time terminate the existence of the corporation itself, and provide other and different means for the government comprised within the limits of the former city. The city is the creature of the state. 196 U.S. at 548-49, 25 S.Ct. at 329.

Mr. Justice Peckham supported the opinion with citations of and quotes from numerous earlier cases, notable among which are New Orleans v. New Orleans Waterworks Co., 142 U.S. 79, 12 S.Ct. 142, 35 L.Ed. 943 (1891) and Tippecanoe County v. Lucas, 93 U.S. 108, 23 L.Ed. 822 (1876), which both involved contract clause problems very similar to that in the instant case. The conclusion of the Court in Worcester was that the municipality could not invoke the contract clause to prevent the state, its creator, from impairing a contractual obligation owed the municipality, at least insofar as the contract involved the municipality in a “governmental” rather than in a “proprietary” capacity. Other authorities have subsequently agreed with this conclusion, and it is the prevailing view. See E. Quillin, The Law of Municipal Corporations §§ 4.18 & 19.50 (3d ed. 1969), and cases there cited.

Tennessee law is in accord with the principles stated in the Worcester case and the other authority mentioned above. In Memphis v. Enloe, 141 Tenn. 618, 214 S.W. 71 (1919) it was recognized that a municipality is merely a creature of the State, and in Demoval v. Davidson County, 87 Tenn. 214, 10 S.W. 353 (1889) it was held that the State might by statute release the tax liability of a class of persons to a county, which is merely an “emanation” of the State and only had the power to impose a tax obligation initially because the State had chosen to bestow it. In City of Knoxville v. State, 175 Tenn. 159, 133 S.W.2d 465 (1939), the Court rejected the city’s argument that a State statute unconstitutionally impaired the obligations of the city’s contract with a teacher, saying “It was competent for the legislature to discharge any obligation created by its agents in favor of the State or its creatures.” 133 S.W.2d at 469. Finally, in State ex rel. Bell v. Cummings, 130 Tenn. 566, 172 S.W. 290 (1914), the Court held that the legislature could, without violating the contract clause, order funds raised by a county bond issue used for a purpose other than that originally specified. The Court discussed and approved Worcester, and said:

. a county as a mere arm of the sovereign power can have, as against the legislative power of the sovereign, no vested rights in the powers conferred upon it for governmental purposes . . . 172 S.W. at 291.

Thus, Worcester’s holding that a city could not invoke the contract clause to prevent the state from impairing a contractual obligation owed the city acting in its governmental capacity is in harmony with the law of Tennessee. We think that these principles preclude plaintiff MDHA from successfully asserting the contract clause against the State statute in the instant case. Plaintiff is an agency created under authority of State statute. It is also in many ways an agency of the Metro government. It is not, however, in a position any different from that of municipalities, counties, and other state-created entities for purposes of the principles espoused in Worcester and the other cases to which we have referred. Further, as appears more fully below, we do not find that the distinction noted in some of those cases between the “governmental” and “proprietary” capacities of such entities applies to allow constitutional protection to plaintiff with respect to any of the contracts involved in the instant ease. We hold that neither Article I, § 10 of the United States Constitution nor Article I, § 20 of the Tennessee Constitution affords plaintiff MDHA, an agency created under State authority and run under municipal auspices, protection from State statutory impairment of its contracts with HUD or with Metro, or of the franchise contracts between Metro and defendant utilities.

Plaintiff insists that it and Metro acted in a “proprietary” capacity in executing some or all of the contracts involved in this case, and that this 'entitles those contracts to constitutional protection from State impairment at plaintiff’s request. There are at least two reasons for rejecting this contention. The first is that the concept that a state-created agency may invoke the contract clause against the State in regard to matters involving the agency on its “proprietary” capacity appears to have been abandoned by the U. S. Supreme Court. In City of Trenton v. State of New Jersey, 262 U.S. 182, 43 S.Ct. 534, 67 L.Ed. 937 (1923), the Court noted that, although previous cases such as New Orleans, supra, had referred to a distinction between the right of a municipality to invoke the contract clause against the State that created it in matters involving its governmental capacity and the same right in matters involving its proprietary capacity, the Court had never held that a municipality had that right in any capacity. The Court went on to interpret prior cases as requiring it to hold that a municipality can never assert the contract clause against its sovereign state, and concluded that the case before it presented no substantial federal question. In a 1933 case, Trenton, Worcester, and other cases were cited as supporting the following more general proposition:

A municipal corporation, created by a state for the better ordering of government, has no privileges or immunities under the Federal Constitution which it may invoke in opposition to the will of its creator.

Williams v. Mayor and City Council of Baltimore, 289 U.S. 36, 40, 53 S.Ct. 431, 432, 77 L.Ed. 1015 (1933). The general proposition that an agency created under the authority of a state does not have the substantive right to attack a statute of that state on constitutional grounds has since been followed by the Court and by other jurisdictions. See, e. g., Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939); Jeter v. Ellenville Central School District, 41 N.Y.2d 283, 392 N.Y.S.2d 403, 360 N.E.2d 1086 (1977). It is obvious that if this principle is adhered to, plaintiff in the instant case cannot assert the contract clause against the State regardless of the capacity in which it acted in the circumstances surrounding the contract it seeks to protect.

The second reason for rejecting plaintiff’s argument that the franchise agreements were executed by plaintiff and Metro in a proprietary capacity and so are entitled to constitutional protection against the State at plaintiff’s request is simply that plaintiff and Metro were not acting in a “proprietary” capacity within the meaning of that word in the present context. In Tippecanoe County v. Lucas, 93 U.S. 108, 23 L.Ed. 822 (1876), it was explained that a municipal corporation’s governmental capacity, for purposes of deciding whether or not that corporation can invoke constitutional protections against the state that created it, includes the control of property “derived from the state for specific public purposes, or obtained for such purposes through means which the state alone can authorize,” such as taxation. 93 U.S. at 114. Constitutional protections were there said to be invocable only with regard to property obtained from other sources and held for special uses. This explanation of the “governmental/proprietary capacity” distinction was adopted in Tennessee in Cummings, supra, which contains a long quote from Tippecanoe. Nor is Lewis v. Nashville Gas & Heating Co., 162 Tenn. 268, 40 S.W.2d 409 (1931), cited by plaintiff, to the contrary. That case does deal with the franchise agreement of defendant Nashville Gas, and it does use the word “proprietary” in reference to it, but it uses the term to describe the municipality’s power to contract with the utility in contradistinction to its lack of “governmental” or sovereign authority to regulate rates absent a delegation to it of the State’s police power. Lewis does not involve an attempt by a municipal corporation to assert the contract clause against the State; indeed, the opinion even declares in dictum that “the state probably could have suspended” the provision of the franchise agreement in dispute in that ease. 40 S.W.2d at 412. It is clear that the “governmental/proprietary capacity” distinction for purposes of municipal invocation of the contract clause against the State, if it has any current validity, is properly set forth in Tippecanoe and Cummings, supra. Under that view, none of the contracts in issue in the instant case involve plaintiff or Metro in a proprietary capacity, for none involve property obtained by them by means other than those only the State could authorize. Thus, plaintiff can derive no benefit from this distinction.

We emphasize that our holding that T.C.A. §§ 13-828 — 13-831 do not unconstitutionally impair the obligations of any of the contracts involved in the instant case is based entirely on the circumstance that the challenge is raised by MDHA, a creature of the State and a municipal agency. Anyone not in that position would not be precluded by the principles applied in the instant case from attacking this statute or any other for impairing a contract to which he is a party. Certainly defendant utilities would have the right to attack the statute were it not that the statute “breached” their franchise agreements by releasing an obligation owed by them to the government, rather than vice versa. Similarly HUD, as a party to contracts with plaintiff, would have the right to sue the State if those contracts were impaired to HUD’s detriment by §§ 13-828 — 13-831. This is so despite the fact that, should such a suit be brought against the State by a party not its creature, it seems likely that §§ 13-828 — 13-831 would be upheld on the merits against contract clause arguments as an exercise of police power that the State cannot contract away. See City of Chattanooga v. Southern Ry. Co., 128 Tenn. 399, 161 S.W. 1000 (1913). An important factor in such a suit would be that our State Supreme Court has held a similar statute to be a proper exer-eise of the police power in Pack v. Southern Bell, 215 Tenn. 503, 387 S.W.2d 789 (1965), though this would not be controlling because Pack did not involve the contract clause. In any event, we point out that such a contract clause challenge to the statute by a third party not created by the State is not the instant case, which concerns only a constitutional attack on a State statute by a state-created agency.

We now turn to plaintiff’s argument of estoppel against NES. Basically, this argument rests on the circumstance of NES’s having supplied plaintiff with cost estimates for relocation of its facilities and of their having been relied upon by plaintiff and Metro in making up budgets and entering the contracts involved in these urban renewal projects. In particular, plaintiff claims that these estimates were relied on in computing the amount of Metro’s in-kind credit toward its ⅛ share of the projects’ cost. Plaintiff, quoting Pomeroy’s definition of equitable estoppel as found in Church of Christ v. McDonald, 180 Tenn. 86, 171 S.W.2d 817, 821 (1943), argues that these actions of NES and Metro estop NES to claim reimbursement for its relocation expenses under T.C.A. §§ 13-828 — 13-831. The Chancellor’s ruling on this contention was that “[t]he Court can find no basis on which to hold that the Electric Power Board [NES] is estopped from claiming the benefits of the statute in question.” We agree. While equitable estoppel as expounded in McDonald does not require fraudulent intent, it does require at least some voluntary action, such as intentional or negligent concealment of facts, which leads the other party to rely to his detriment by changing his position for the worse. Further, like all equitable doctrines, equitable estoppel is to be used to achieve fairness in dealings between parties. As we view the record, the evidence does not preponderate against the Chancellor’s finding that the facts do not establish the requisite elements of an equitable estoppel against NES. In addition, we note that it would indeed be odd if NES were held estopped to accept the benefits of a statute because its truthful representations were relied on by plaintiff in entering into contracts, when we have already held that any impairment of the contracts themselves by that statute is entirely valid and constitutional as far as plaintiff is concerned. This assignment of error is overruled.

Finally, we consider the assignment of error raised by defendant NES. The action complained of is the Chancellor’s dis-allowance of interest from the date of billing of the relocation expenses of NES, the only defendant to have affirmatively raised its claim for reimbursement and to have remained unpaid. NES does not claim that it is entitled to interest over that period as a matter of right, but admits that such an allowance in this case is within the discretion of the trial court under Farmers Chemical Association, Inc. v. Maryland Casualty Co., 421 F.2d 319, 323 (6th Cir. 1970) (Tennessee law) and cases cited therein. NES contends that the Chancellor unreasonably exercised his discretion in failing to grant the requested interest and that it is only fair that this request be granted. We have considered NES’s arguments on this point, but can find no abuse of discretion in the Chancellor’s action. This assignment of error is accordingly overruled. NES’s rights to interest from the date of judgment in accordance with T.C.A. § 47-14-110, of course, are unaffected by this holding.

Affirmed.

DAUGHTREY, Special Judge, and TODD, J., concur.


author: GALBREATH, Judge.

text:
    Jerry W. HENRY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 26, 1977.
    Certiorari Denied by Supreme Court March 6, 1978.
    Dale Quillen, Nashville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert E. Kendrick, Deputy Atty. Gen., Thomas H. Shriver, Dist. Atty. Gen., John E. Rodgers, Asst. Dist. Atty. Gen., Nashville, for appel-lee.
   OPINION

GALBREATH, Judge.

This is a classic circumstantial evidence case. Following a burglary of a McDonald’s Restaurant in Nashville on February 8, 1975, the defendant’s wallet was found a few feet from a hole in the ceiling that had been made after entrance had been gained through another hole in the roof. The jury rejected the defendant’s explanation that his wallet must have been previously stolen by the thief who either lost it or purposefully left it at the scene of the crime to incriminate him.

The appeal from the burglary conviction and sentence of not less than three nor more than six years in prison contends only that the evidence preponderates against the verdict. This contention was resolved by the trial jury and court below, and we cannot disturb that adverse finding unless it is demonstrated here that there is more evidence of innocence than of guilt in the record, because the defendant is before us encumbered with the presumption of guilt. Whether or not he offered a reasonable explanation of the incriminating fact that convicted him so as to raise a reasonable doubt as to his guilt was an issue for the jury to settle. The standard of excluding all reasonable theories other than guilt before convicting an accused on evidence which is totally circumstantial, as detailed in Marie v. State, 204 Tenn. 197, 319 S.W.2d 86 (1958), is not an appellate review standard. See State v. Brown, 551 S.W.2d 329 (Tenn.1977). Here we look to the preponderance of the evidence as discussed at length in McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

The judgment is affirmed.

RUSSELL, P. J., and DAUGHTREY, J., concur.


author: BYERS, Judge.

text:
    James R. SHEPARD, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 16, 1977.
    Certiorari Denied by Supreme Court March 13, 1978.
    Rehearing Denied April 10, 1978.
    James V. Mondelli, Nashville, for appellant.
    Brooks McLemore, Jr., State Atty. Gen., Robert E. Kendrick, Deputy State Atty. Gen., Victor S. Johnson, III, Asst. Dist. Atty. Gen., Nashville, for appellee.
   OPINION

BYERS, Judge.

The Appellant seeks to have the judgment of the trial court denying him a suspended sentence reversed because of an alleged abuse of discretion.

The judgment of the trial court is affirmed.

The Appellant was given the rights contemplated by the statutory scheme of T.C.A. § 40-2904. He was allowed to file a petition for probation, was given a hearing thereon and a report by the Probation Department was made and considered by the court. Stiller v. State, 516 S.W.2d 617 (Tenn.1974).

The probation report and the evidence upon which the trial judge acted show the Appellant entered a plea of guilty to attempt to commit a felony in removing a stereo set from his employer and falsifying the records of the company to conceal his actions. The evidence of his social history shows that the Appellant had thirteen (13) different jobs from 1963 until May of 1972, that he is separated from his wife, that he entered a plea of guilty to petit larceny in 1970 after breaking a window of a jewelry store and removing some items therefrom, an offense for which he was placed on probation, and that he had not made restitution to his employer or paid on an account owed to the employer although he says he purchased more than one restaurant and tavern after his plea of guilty.

The Appellant makes the novel assertion that the trial judge put too much emphasis on his past record. When a trial judge makes a decision on probation, he is making a present conclusion on the likely future performance of the Appellant — a hazardous projection at best. Without discounting the nature of the present crime as an important signpost, the past of an applicant is the most reliable road map to his future. The failure or refusal of a decision maker to consider the route the applicant has previously traveled would be unwise.

The trial judge properly considered the present condition and past history of the Appellant in reaching his decision. His action herein is not arbitrary, capricious or an abuse of his discretion. Ilgner v. State, 537 S.W.2d 714 (Tenn.Cr.App.1975).

The judgment is affirmed.

DUNCAN AND TATUM, JJ., concur.


author: DENTON, Justice.

text:
    GULF COAST STATE BANK, Petitioner, v. J. C. EMENHISER et al., Respondents.
    No. B-6518.
    Supreme Court of Texas.
    Feb. 22, 1978.
    Rehearing Denied March 29, 1978.
    Harry S. Long and Clint W. Lewis, Beaumont, McCall & McCall, Hamshire, for petitioner.
    Weller, Wheelus & Green, George A. Weller, Beaumont, John H. Kennamer, Houston, for respondents.
   DENTON, Justice.

This action was brought by Gulf Coast State Bank to recover funds advanced on a sight draft which proved to be uncollectible. There are two controlling questions to be decided. The first is whether as a matter of law the plaintiff as a collecting bank, upon dishonor of the sight draft, was entitled to recover from defendants funds advanced on the draft. The second issue is whether certain special instructions in the court’s charge were erroneous, and whether any error therein was preserved. The trial court, based upon the jury verdict, rendered a take nothing judgment against the plaintiff bank. The court of civil appeals affirmed. 544 S.W.2d 722. We agree that the bank has not established its right to recover the funds advanced on the dishonored draft as a matter of law. However, we reverse the judgment of the court of civil appeals and remand for new trial because of harmful error in the special instructions to the jury.

The plaintiff bank brought suit against J. C. Emenhiser, a rice farmer; Lillian Emen-hiser, his divorced wife; and their landlords, the Doornbos defendants. The Em-enhisers sold their rice crop through the Co-op at Winnie, Texas, where Waldo Hebert acted as manager. Along with his wife and landlords, Emenhiser executed two mortgages on his 1968 rice harvest to the Commodity Credit Corporation (CCC). Early in 1969, Emenhiser agreed in writing to sell a large quantity of rice to Rex Rice Company (Rex) for $24,652.28. The rice was subject to the CCC mortgage in the amount of $16,255.21, and could not be removed from storage until the CCC issued its “authorization for removal.” The necessary authorization was issued in February, 1969, listing Rex as the approved buyer. A copy of it was sent to Rex informing them that the mortgage was not released until the payment due CCC was remitted by Rex.

After the sale was arranged, Waldo Hebert, the manager of the Co-op, prepared a “distribution sheet” showing how the proceeds of the sale were to be allocated. A copy was sent to Rex and on March 4, after it accepted delivery of the rice, Rex mailed four sight drafts to the Co-op. The drafts were drawn by Rex on itself, but were payable “through” Louisiana Bank and Trust Company, Crowley, Louisiana, as follows: (1) $144.50 payable to the Co-op for storage fees; (2) $1,178.93 payable to the landlords, the Doornbos defendants; (3) $7,073.59 payable to the Emenhisers; (4) $16,255.21 payable to “Gulf Coast State Bank a/c J. C. Emenhiser.” The Co-op forwarded the first three drafts to the respective payee-defendants along with a copy of the distribution sheet. The drafts were deposited for collection by the defendants in their respective banks. The last draft, which is the basis of this suit, was placed in the Co-op safe by Waldo Hebert.

On March 13, 1969, Hebert presented the sight draft in question at Gulf Coast State Bank to Mrs. Labay, an assistant cashier. At Hebert’s request, she advanced him cash in the form of two cashier’s checks payable to the CCC, showing Rex and the Emenhis-ers as remitters. Mrs. Labay treated the draft as a cash item at Hebert’s request because he was a regular customer and handled many similar transactions through the bank. The bank president testified that Mrs. Labay had authority to treat the draft as a cash rather than collection item and issue cashier’s checks on such drafts. He testified that the bank regularly cashed sight drafts drawn on rice companies and that he considered Rex the “purchaser” of the two cashier’s checks payable to CCC. Cashier’s checks were required because the CCC would not accept sight drafts. It is undisputed that none of the defendants endorsed the draft or were contacted about it.

Hebert subsequently paid the CCC mortgages with the two cashier’s checks. The bank treated the sight draft as a check or cash item and transmitted it to a Beaumont correspondent bank. It then went through a Houston bank before arriving at the Louisiana bank through which it was payable. Due to the insolvency of Rex, the draft was dishonored and returned uncollected. The plaintiff bank brought this suit after the Emenhisers and Doornbos defendants refused to reimburse it.

The bank alleged that the sight drafts had been properly forwarded for payment after a provisional settlement was made with the defendants’ agent, Waldo Hebert, to pay the defendants’ debt to the CCC. The bank further alleged that after the draft was returned dishonored, the defendants refused to reimburse it. The bank also asserted that it had with its own money discharged defendants’ indebtedness to the CCC, and that its handling of the draft as a cash rather than collection item was in accordance with customary banking procedure.

The defendants denied that Hebert was their agent in this transaction. They asserted that the draft was not payable to them or anyone authorized in their behalf; that the bank was not authorized to act as their agent in this transaction; that the bank was negligent in failing to treat the draft as a collection item by forwarding it immediately by mail to the Louisiana bank; and that the bank was negligent in not inquiring of the Louisiana bank prior to cashing the draft whether Rex had sufficient funds to cover the draft. Based upon jury answers to special issues, the trial court rendered a take nothing judgment against the plaintiff bank.

The court of civil appeals affirmed, holding that the controlling issue was whether Waldo Hebert was the defendants’ agent when he cashed the sight draft. Since the jury finding of no agency was not challenged, the court of civil appeals concluded that the plaintiff bank failed to establish its cause of action. We disagree with this reasoning.

The plaintiff bank correctly asserts that a finding of Hebert’s agency was not an indispensable element of its cause of action. In support of its argument, the bank cites section 4.201(a), which provides:

Unless a contrary intent clearly appears and prior to the time that a settlement given by a collecting bank for an item is or becomes final . . the bank is an agent or sub-agent of the owner of the item and any settlement given for the item is provisional. This provision applies regardless of the form of indorsement or lack of indorsement and even though credit given for the item is subject to immediate withdrawal as of right or is in fact withdrawn, but the continuance of ownership of an item by its owner and any rights of the owner to proceeds of the item are subject to rights of a collecting bank such as those resulting from outstanding advances on the item and valid rights of setoff. When an item is handled by banks for purposes of presentment, payment and collection, the relevant provisions of this chapter apply even though action of parties clearly establishes that a particular bank has purchased the item and is the owner of it.

Under this provision, the collecting bank is the agent of the owner of an item until settlement becomes final. Citizens First National Bank of Tyler v. Cinco Exploration Co., 540 S.W.2d 292, 295 (Tex.1976). Emenhiser was clearly the owner and payee here because there was testimony that the draft was made payable to “Gulf Coast State Bank a/c J. C. Emenhiser” only for the convenience of Co-op employees so that they would not be required to track down every farmer who sold rice to obtain his endorsement on the draft. This way, the drafts could be deposited or forwarded for collection by Co-op personnel without the endorsement of the farmer who sold the commodity.

Section 4.212 gives the collecting bank which makes a provisional settlement a right of charge-back or refund from the customer if the item is dishonored. This right of charge-back or refund terminates, however, when settlement for the item becomes final. Settlement becomes final under section 4.211(c)(3) if the bank “fails to seasonably present, forward for collection, pay or return a remittance instrument or authorization to it to charge before its midnight deadline.” Thus, the bank as an agent of the payee has the right to refund of credit given on a dishonored draft so long as the bank seasonably presents or forwards the item for collection before its midnight deadline. Section 4.202(a) requires that a bank use ordinary care in presenting an item or sending it for presentment. Citizens First National Bank of Tyler v. Cinco Exploration Co., supra. Section 4.204(a) requires that a collecting bank send items by a “reasonably prompt method taking into consideration any relevant instructions, the nature of the item, the number of such items on hand, and the cost of collection involved and the method generally used by it or others to present such items.” The collecting bank is therefore under a duty to use a reasonably prompt method of presenting an item or forwarding it for presentment. 2 Bender’s U.C.C. Service § 9.08[3][d] (1976).

Both plaintiff and defendants introduced evidence as to the customary method of handling sight drafts. The plaintiff bank contends that it established as a matter of law that it had properly presented the draft or forwarded it for presentment, and thus, it is entitled to reversal and rendition of judgment in its favor. We hold that the issue of whether the bank properly presented the draft or forwarded it for presentment was a fact issue for the jury to resolve, and that the bank did not establish it as a matter of law. Therefore, the plaintiff bank is not entitled to rendition in its favor.

In answer to special issues, the jury found that the plaintiff bank failed to act in good faith and to exercise ordinary care in the manner in which it handled the sight draft. The jury also found that the failure to mail the sight draft for collection, as well as the failure to ascertain whether Rex had sufficient funds to cover the draft, was negligent and the proximate cause of the plaintiff bank’s loss. Under these fact findings, the provisional settlement on the draft became final and the bank’s right to charge-back or refund thereby terminated. However, our action on the second issue of this case which reverses and remands for new trial because of improper jury instructions vitiates these findings. It will be the plaintiff bank’s burden on retrial to prove proper presentment or forwarding for presentment as a fact issue.

The second issue in this case concerns the propriety of the special instructions given to the jury in the court’s charge. Special Instruction No. 1 instructed the jury that Gulf Coast State Bank was required to “promptly and directly” forward the sight draft to the Louisiana bank for collection, and that if the failure to collect payment of the draft was due to its failure to follow the law, then the plaintiff bank is responsible for the failure to collect. The second special instruction informed the jury that plaintiff bank was required to present the draft to the Louisiana bank “promptly and by the most direct route” by midnight of the next business day after receipt of the draft. The instruction concluded that if the jury found undue delay by the bank resulted in the dishonor of the draft, that the jury should find for the defendants. It then asked the jury if under Special Instruction No. 2 it found for the defendants, to which the jury answered “yes.” Special Instruction No. 3 informed the jury of Louisiana law which provided that if the Louisiana bank retained the draft for more than twenty-four hours, it became liable for its payment. The instruction then told the jury that if it should find that if the plaintiff bank had mailed the draft, it would have been paid or held by the Louisiana bank for more than twenty-four hours after presentment, then the jury should find for defendants. The jury was then asked if under Special Instruction No. 3 it found for defendants, to which the jury answered “yes.” The fourth special instruction instructed the jury that Rex Rice Company was required under section 9-307(1) of the Uniform Commercial Code to pay the CCC directly for any balance due on the rice mortgage. It further instructed the jury that the plaintiff bank accepted the credit of Rex in issuing payment to the CCC on the sight draft.

In its application for writ of error, the bank asserts that each of the four special instructions “was an illegal comment on the weight of the evidence by the trial court, a misstatement of the applicable law, constituted a general charge and amounted to nothing more than a directed verdict for the defendants.” The only objection to the special instructions lodged in both the motion for new trial and in points of error in the court of civil appeals, however, was that the special instructions were “a misstatement of the law.” In a case in which a motion for new trial is required, a ground of error not distinctly raised in the motion for new trial is waived. Tex.R.Civ.P. 324 & 374 (1977); Meadows v. Bierschwale, 516 S.W.2d 125, 130 (1974). Likewise, grounds of error not asserted by points of error or argument in the court of civil appeals are waived. Tex.R.Civ.P. 418; Airway Insurance Co. v. Hank’s Flite Center, Inc., 534 S.W.2d 878 (Tex.1976).

While this Court cannot consider on writ of error the points which were waived, our action should not be interpreted as approving either the form or the substance of these special instructions. The instructions violated Tex.R.Civ.P. 277 in that they constituted more than an incidental comment on the weight of the evidence and advised the jury of the effect of their answers. It is not permissible for the trial court to marshal the facts or parties’ contentions in an instruction, and then instruct the jury to find for one party if they believe certain facts to be true. See Pope and Lowerre, Revised Rule 277 — A Better Special Verdict System For Texas, 27 Sw.L.J. 577, 588-89 (1973); Pittsburg Coca-Cola Bottling Works v. Ponder, 443 S.W.2d 546 (Tex.1969). The jury’s concern is to find disputed facts, rather than to achieve a particular result. These instructions were neither helpful to the jury nor proper.

The plaintiff bank’s objection to the special instructions which was properly preserved was that they constituted a misstatement of the law. As stated above, a collecting bank has a duty under section 4.204(a) to send items by a “reasonably prompt method taking into consideration any relevant instructions, the nature of the item, the number of such items on hand, and the cost of collection involved and the method generally used by it or others to present such items.” Settlement on the item becomes final and the bank’s right of refund terminates under section 4.211(e)(3) if the bank “fails to seasonably present, forward for collection, pay or return a remittance instrument . . . before its midnight deadline.” (emphasis added) Section 4.202(a) requires that the bank use ordinary care in presenting an item or sending it for presentment. Thus, the statutes provide for a measure of flexibility in the standards applicable to the sending or forwarding of items by a collecting bank. See U.C.C. § 4-204, Comment 1.

Special Instruction No. 2 instructed the jury that the plaintiff bank was required to “present” the draft for payment to the Louisiana bank by midnight of the next business day after receipt of the draft. Special Instruction No. 3 stated, in pertinent part:

If you should find that had the Gulf Coast State Bank at Winnie mailed the draft in question direct [sic] to Louisiana Bank and Trust Company, Crowley, Louisiana, for presentment and such would have been presented at a time when the draft would have been paid or would have been held by the Louisiana bank for more than twenty-four (24) hours after presentment, then you will find for the Doornbos Defendants and the Emenhiser Defendants in this case.

Special Instruction No. 3 clearly gave the impression that the bank was required to forward the sight draft by mail directly to the Louisiana bank, and that the failure to do so was negligence. Special Instruction No. 2 gave the impression that the plaintiff bank was required to “present” the draft (presumably in person) to the Louisiana bank before midnight of the next banking day. The Code does not specifically make such requirements. A collecting bank’s duty is to take action by its midnight deadline to present an item or forward it for presentment by a reasonably prompt method in light of the circumstances. Whether the bank acted seasonably is a fact issue on which both sides produced evidence. It is the jury’s function to resolve this issue.

A trial court’s charge which does not instruct the jury as to the correct law applicable to the facts is improper. Wichita Valley Ry. v. Williams, 116 Tex. 253, 288 S.W. 425 (1926); Irick v. Andrew, 545 S.W.2d 557 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.); Forney v. Memorial Hospital, 543 S.W.2d 705 (Tex.Civ.App.—Beaumont 1976, writ ref’d n.r.e.). The erroneous charge constituted error which was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.Civ.P. 503. The judgment of the court of civil appeals is reversed and the cause is remanded for a new trial.

      . Statutory references are to Tex.Bus. & Comm. Code Ann. (Vernon 1968).

      . It should be noted that Rule 324 has been amended and Rule 374 has been repealed, effective January 1, 1978, so that a motion for new trial is generally no longer a prerequisite to appeal in a jury case. Although the preexisting rules are applicable in this case, the asserted grounds of error were also waived under the new rules since they were not raised in the court of civil appeals.


author: PER CURIAM.

text:
    In the Matter of W. L. C.
    No. B-7194.
    Supreme Court of Texas.
    March 1, 1978.
    Raymond C. Matkin, Waco, for petitioner.
    Don S. Caldwell, Jr., Dist. Atty., Richard White, Asst. Dist. Atty., Groesbeck, for respondent.
   PER CURIAM.

This is a juvenile case in which the juvenile court waived its jurisdiction over W.L.C. and transferred his case to the district court for criminal proceedings. The issue raised is whether the presentation of a document entitled “Precept to Serve” to the juvenile during the transfer hearing was sufficient service of process to successfully invoke the jurisdiction of the juvenile court. The court of civil appeals found such service sufficient and affirmed the juvenile court. 556 S.W.2d 133. We reverse.

The State instituted a juvenile delinquency proceeding against W.L.C. and filed a motion to transfer therein, on the grounds of commission of murder in the course of a burglary. At the beginning of the hearing on the transfer motion, W.L.C.’s attorney objected that summons on W.L.C. had not been returned and was not on file with the court. The judge overruled this objection. The court proceeded with the transfer hearing where Probation Officer Koester testified that he did not have personal knowledge of whether W.L.C. had been served with summons. After this testimony, the judge ordered the clerk of the court to serve W.L.C. in open court. The only documentary evidence of service in the appellate record is an instrument entitled “Precept to Serve” executed by the clerk, which directed the sheriff to serve W.L.C. with a copy of the original petition. The return of service form on the reverse side of the precept is blank. Immediately after the clerk handed the precept to W.L.C., the transfer hearing proceeded. At the conclusion of the hearing, the juvenile court waived its jurisdiction and transferred W.L.C. to the district court.

The court of civil appeals affirmed the judgment of the juvenile court holding that the testimony of Probation Officer Koester did not conclusively establish that appellant was not served with process. This holding is in conflict with sections 53.06(e) and 54.-02(b) of the Texas Family Code Ann. (1975).

Section 54.02 of the Family Code governs waiver of jurisdiction by the juvenile court and discretionary transfer of the juvenile to criminal court. Section 54.02(b) provides that: “[t]he petition and notice requirements of Sections 53.04, 53.05, 53.06 and 53.07 of this code must be satisfied, and the summons must state that the hearing is for the purpose of considering discretionary transfer to criminal court.”

Section 53.06(a) of the Family Code specifically provides that in a juvenile proceeding, the juvenile named in the petition shall be served with summons. Compliance with section 54.02(b) and the Code sections to which it refers is mandatory and prerequisite to the juvenile court jurisdiction to consider waiver of jurisdiction and discretionary transfer to criminal court. In re TTW, 532 S.W.2d 418 (Tex.Civ.App.—Texarkana 1976, no writ); In re MW, 523 S.W.2d 513 (Tex.Civ.App.—El Paso 1975, no writ).

Section 53.06(e) states that: “[a] party, other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing.” This section codifies the common law rule that a minor is without legal capacity to waive service of process. Sprague v. Haines, 68 Tex. 215, 4 S.W. 371 (1887); DeProy v. Progakis, 269 S.W. 78 (Tex.Comm.App.1925, holding approved); Morris v. Drescher, 123 S.W.2d 959 (Tex.Civ.App.—Waco 1938, writ ref’d). We hold that a juvenile must be served with summons and that, absent an affirmative showing of service of summons in the record, the juvenile court is without jurisdiction to transfer the juvenile to district court.

Pursuant to Tex.R.Civ.P. 483, we grant the application for writ of error and without hearing oral argument, reverse the judgments of the juvenile court and the court of civil appeals and remand the cause to the juvenile court for further proceedings not inconsistent with this opinion.


author: ONION, Presiding Judge. TOM G. DAVIS, Judge. ONION, Presiding Judge,

text:
    Denoris RICHARDS, Appellant, v. The STATE of Texas, Appellee.
    No. 54344.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1977.
    Opinion On State’s Motion for Rehearing March 1, 1978.
    Rehearing Denied March 22, 1978.
    Brad D. Reid, Abilene, for appellant.
    Lynn Ingalsbe, Dist. Atty. and Jorge A. Solis, Asst. Dist. Atty., Abilene, Jim D. Vol-lers, State’s Atty., Austin, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for burglary of a building. See V.T.C.A., Penal Code, § 30.02. Following a plea of guilty, punishment was assessed at fifteen (15) years by the jury.

At the outset we are confronted with appellant’s contention that in admonishing the appellant as to his guilty plea the court failed to inquire whether or not he was influenced by any consideration of fear, or by any persuasion or delusive hope of pardon prompting him to confess his guilt. The real thrust of his contention is that the court did not determine whether the plea was freely and voluntarily made.

While the inquiries mentioned by the appellant were included in a former version of Article 26.13, Vernon’s Ann.C.C.P., such statute has been amended.

The amendment in effect at the time of the guilty plea reads as follows:

“(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
“(1) the range of punishment attached to the offense; and
“(2) the fact that any recommendation of the prosecuting attorney as to punishment is not binding on the court.
“(b) No plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.
“(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.” (Acts 1975, 64th Leg., p. 909, ch. 341, § 3, eff. June 19, 1975)

Under the amendment the court does not have to use the exact inquiries found in the former version of the statute but should still determine whether the plea is free and voluntary, and the former inquiries are helpful in this regard.

The record before us reflects that the court admonished the appellant as to the range of punishment and inquired as to his mental competency. The court made no inquiry as to the plea being free and voluntary except to ask if the appellant had been “promised anything.” There was no inquiry as to whether, despite the lack of a promise, the appellant was entering his plea because of any duress, fear, undue compulsion, and persuasion or other offers of leniency, improper influence, etc. He was not even asked in a broad and general way if the plea was being freely and voluntarily made.

We cannot agree that there was even a substantial compliance with the statute under the circumstances presented. Reversal is thus mandated.

Further, there exists a federal constitutional problem. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), held that it was error, plain error, for a state trial judge to accept a guilty plea without an affirmative showing that it was intelligent and voluntary. The basic mandate of the Constitution of the United States as interpreted by the Supreme Court of the United States is that a trial court must determine that a plea of guilty is “knowingly, intelligently, voluntarily and willingly entered.” See Pinson v. State, 530 S.W.2d 946, 951 (Tex.Cr.App.1975) (dissenting opinion). See also Goode v. State, 312 N.E.2d 109 (Court of Appeals, Indiana, 3rd Dist. 1974); Branan v. State, 316 N.E.2d 406 (Court of Appeals, Indiana, 3rd Dist. 1974).

Since the record does not reflect an affirmative showing that the guilty plea was intelligently and voluntarily given, we conclude that Boykin v. Alabama, supra, also calls for reversal.

The judgment is reversed and cause remanded.

DOUGLAS-and ODOM, JJ., dissent.

OPINION ON STATE’S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

On original submission, reversal resulted (1) for failure of the trial judge to substantially comply with the requirements of Art. 26.13, V.A.C.C.P. and (2) the failure of the record to “reflect an affirmative showing that the guilty plea was intelligently and voluntarily given” as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). We granted the State’s motion for leave to file a motion for rehearing and now conclude that substantial compliance with Art. 26.13, supra, is shown, and that appellant was not deprived of any federal constitutional right Under Boykin v. Alabama, supra.

The record reflects appellant was admonished in pertinent part as follows:

“You understand that you have a right to be tried by a Jury and be proven guilty beyond a reasonable doubt, do you understand that?
“THE DEFENDANT: Yes.
“THE COURT: By your plea now, you have made an admission of guilt, and if you insist on pleading guilty the Court is going to instruct the Jury to find you guilty and assess a punishment accordingly, do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: All right.
“You understand that the law is that you do not have to testify against yourself, but if you do take the stand that’s a decision between you and your attorney? “THE DEFENDANT: Yes, sir.
“THE COURT: Have you been promised anything to cause you to make this plea? “THE DEFENDANT: No, sir.
“THE COURT: All right.
“Then, do you understand the punishment, during the voir dire examination awhile ago the attorneys talked about the range of punishment being two years to twenty years in the State Penitentiary, together with a $10,000.00 fine, either one or both of them, do you understand that? “THE DEFENDANT: Yes, sir.”

Article 26.13, supra, in effect at the time of appellant’s plea, reads as follows:

“(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
(1) the range of punishment attached to the offense; and
(2) the fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court. .
“(b) No plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.
“(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court. (Acts 1975, 64th Leg., p. 909, ch. 341, § 3, eff. June 19, 1975.)”

Appellant does not suggest that he was misled in any way or that he was not fully aware of the consequences of the plea or that he was harmed in any manner by the admonishment given by the court. An examination of the record reflects that no such objection was voiced in the trial court. There is no suggestion on appeal that the plea was not knowingly and voluntarily made. Rather, counsel argues that the inquiry “Have you been promised anything to cause you to make this plea?” failed to track the language formerly found in Art. 26.13, V.A.C.C.P.

We cannot agree that there must be an express inquiry as to whether a defendant is freely and voluntarily entering a plea of guilty to constitute substantial compliance with Art. 26.13, supra. There being no showing that appellant was misled or harmed by the admonishment, and finding that the trial court was in substantial compliance with the requirements of Art. 26.13, supra, we conclude that no error is shown. See Pinson v. State, Tex.Cr.App., 530 S.W.2d 946; Guster v. State, Tex.Cr.App., 522 S.W.2d 494; Tellez v. State, Tex.Cr.App., 522 S.W.2d 500.

Further, we find no constitutional problem as in Boykin v. Alabama, supra, where it was held that a state trial judge should not accept a plea of guilty without an affirmative showing that a plea of guilty was intelligently and voluntarily given.

In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the Supreme Court set forth the standard used to determine if a guilty plea were voluntarily and knowingly made as follows:

“The standard as to the voluntariness of guilty pleas must be essentially that defined by Judge Tuttle of the Court of Appeals for the Fifth Circuit:
‘[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business . .’ ” (Footnotes omitted.)

In Williams v. State, Tex.Cr.App., 522 S.W.2d 483, we noted with respect to the requirements of Boykin v. Alabama, supra, that:

“The Supreme Court’s requirement for the determination of voluntariness is the consideration of the entire record. The review of the voluntariness of the guilty plea should not be based solely on questions and answers in the statement of facts, but on the record as a whole.”

We find that the record here meets the requirements of Boykin v. Alabama, supra.

Lastly, appellant contends that the court erred in receiving a fatally defective jury verdict which assessed no punishment.

The verdict form, as it was submitted to the jury, reads in pertinent part:

“We the jury ... do hereby assess his punishment at _ years in the Texas Department of Corrections and in addition to such imprisonment assess a fine of $_
Foreman of the Jury”

The jury wrote the number “15” in the blank space before years and the verdict was signed by the foreman. Appellant appears to argue that the jury should have written the word “years” after “15.” The intention of the jury can be easily ascertained and we reject appellant’s contention that the verdict was defective. See Ainsworth v. State, Tex.Cr.App., 517 S.W.2d 274.

The State’s motion for rehearing is granted. The judgment is affirmed.

Before the court en banc.

YOLLER, J., not participating.

ONION, Presiding Judge,

dissenting.

“. . .It never ceases to amaze me that this court will require peace officers, not legally trained, to give the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Article 38.22, Vernon’s Ann.C.C.P., before confessions can be used and even encourage the use of ‘blue’ and ‘green’ cards containing such warnings, but will not require legally trained judges to properly admonish defendants as to their guilty pleas, even passing the burden on to the unwary defendant to timely call to the legally trained judge’s attention where he has fallen short in his obligations required by law. We have really reached a sad state of affairs.” Pinson v. State, 530 S.W.2d 946, 951 (Tex.Cr.App.1975) (dissenting opinion).

On original submission this cause was reversed because the trial court failed to substantially comply with Article 26.13, V.A.C.C.P., as amended 1975, in effect at the time, in that it did not determine whether the plea was freely and voluntarily made, and further, that the record did not reflect an affirmative showing that the guilty plea was intelligently and voluntarily given. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). There were no dissents.

The opinion on original submission stated in part:

. . The court made no inquiry as to the plea being free and voluntary except to ask if the appellant had been ‘promised anything.’ There was no inquiry as to whether, despite the lack of a promise, the appellant was entering his plea because of any duress, fear, undue compulsion, and persuasion or other offers of leniency, improper influence, etc. He was not even asked in a broad and general way if the plea was being freely and voluntarily made.”

Now on rehearing a majority affirms the judgment based on the same facts, finding a substantial compliance with Article 26.13, supra, and with Boykin v. Alabama, supra.

The history of Article 26.13, supra, and its forerunners has been elsewhere detailed and need not be repeated here. See Bosworth v. State, 510 S.W.2d 334, 336 (Tex.Cr.App.1974) (dissenting opinion). The emasculation of the mandatory statute began with Espinosa v. State, 493 S.W.2d 172 (Tex.Cr.App.1973), and Mitchell v. State, 493 S.W.2d 174 (Tex.Cr.App.1973), and continued unabated. See, e. g., Bosworth v. State, supra; Guster v. State, 522 S.W.2d 494 (Tex.Cr.App.1975); Walker v. State, 524 S.W.2d 712 (Tex.Cr.App.1975); Ex parte Taylor, 522 S.W.2d 479 (Tex.Cr.App.1975); Pinson v. State, 530 S.W.2d 946 (Tex.Cr.App.1975); Tellez v. State, 522 S.W.2d 500 (Tex.Cr.App.1975).

As a result of some of these decisions, efforts have been made to amend the mandatory statute in an attempt to validate the past emasculation of a wholesome statute. The Article was amended in 1973 (Acts 1973, 63rd Leg., p. 968, ch. 399, § 2(A), eff. Jan. 1, 1974). It was again amended by Acts 1975, 64th Leg., p. 909, ch. 341, § 3, eff. June 19, 1975. It is this amendment which was in effect at the time of the guilty plea in the instant case.

The majority misreads the 1975 amendment. The amendment did not remove from the trial court the obligation of admonishing the defendant, but squarely placed that duty on the court where it has always rested. What it provided was that a substantial compliance by the court was sufficient unless the defendant shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court. What the amendment requires is that there must be a substantial compliance in each case. It is only where there has been a substantial compliance with the statute that the defendant must go further and show he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court. If there has been no substantial compliance, then the statute has not been followed and it is not incumbent upon the unwary or even illiterate defendant in such cases to object, to tell the judge how to do his job, or to demonstrate then or later he was unaware of the consequences of his plea or that he was misled or harmed by the admonishment. This point the majority misses. Must an uneducated defendant represented by a young and inexperienced appointed lawyer or representing himself have the duty to object and call to the legally educated and experienced district judge what he should tell the defendant in his admonishment? If this be the rule, why not abolish the statute altogether. It not only no longer serves its former purpose, but serves no purpose at all.

The majority never tells how it arrived at its conclusion there was substantial compliance with the statute. Was the singular inquiry “Have you been promised anything to cause you to make this plea?” sufficient standing alone to show that the plea was free and voluntary? If it is, will any singular inquiry relating to whether the plea was free and voluntarily made, such as a singular inquiry to threats, be sufficient in the future to show substantial compliance? This the majority never reveals. If the majority relies upon other portions of the colloquy between the court and the appellant for its conclusion, it does not make this clear. If there is this reliance, one may well wonder how a defendant’s acknowl-edgement that he doesn’t have to testify against himself, that he has a right to a jury trial, that the burden of proof is on the State beyond a reasonable doubt, that the jury will be instructed to find him guilty if he pleads guilty, has any real bearing upon whether the plea is in fact free and voluntary. A defendant may know all these things but yet be entering his plea because of coercion, duress, fears, threats, improper influence or persuasion, misrepresentation, delusive hope of pardon, etc. The majority may well be saying where certain parts of the statute are followed then there is substantial compliance even if there is no inquiry at all concerning whether the plea is free and voluntary. We will have to wait for another day and another opinion for the majority opinion in the instant case does not reveal its reasoning, if any.

The approach used by the majority is reminiscent of the “anything goes” approach used in revocation of probation eases. See, e. g., Casarez v. State, 468 S.W.2d 412 (Tex.Cr.App.1971) (dissenting opinion); Barnes v. State, 467 S.W.2d 437 (Tex.Cr.App.1971) (dissenting opinion). It is only a revocation of probation, who cares? It is only a plea of guilty, who cares? One wonders just whom the majority seeks to protect, the defendant from the entry of an improvident guilty plea, or the district judge from reversal on appeal.

It is a sad day when we lower our standards again and again at a time when the vast majority of criminal cases in this State are disposed of by pleas of guilty and nolo contendere. When an individual in a felony case is subject to losing his life or suffer imprisonment, we should take every precaution to insure that the procedure in a guilty plea is fair and impartial and in accordance with due process of the law, the due course of the law of the land.

The majority does not, however, stop with its conclusion that the requirements of the statute have been met, but plunges ahead finding no constitutional problem as in Boykin v. Alabama, supra. With boldness it quotes from Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), as to a standard of voluntariness which clearly isn’t met by the instant ease. Undismayed, the majority then quotes from Williams v. State, 522 S.W.2d 483 (Tex.Cr.App.1975), for the proposition that in addition to the “questions and answers in the statement of facts” the record as a whole must be looked at in determining voluntariness. Then the majority, without mentioning any part of the record, “other than questions and answers,” simply states: “We find that the record here meets the requirements of Boykin v. Alabama, supra.

An unprecedented boot strapping operation is thus revealed. Surely the majority of this court, a court of last resort, need not stoop so low to affirm a conviction. Yet they do.

In Boykin v. Alabama, supra, and Brady v. United States, supra, the Supreme Court delineated the meaning of a voluntary and knowing guilty plea. In Boykin the court held that in order to satisfy the constitutional requirements of due process the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understanding^ and voluntarily. Brady enunciated the guidelines for voluntariness by adopting specific language from Judge Tuttle’s opinion in Shelton v. United States, 242 F.2d 101 (5th Cir. 1957):

“. . . ‘[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business . . .
. . Thus, the Supreme Court has established that defendants who decide to plead guilty must do so in complete awareness of the consequences of their action which includes both the ramifications of the possible punishment and the waiver of the rights and privileges set forth in Boykin, and additionally that defendant do so free from coercion, threats, or improper promises. . . . ” (Emphasis supplied.)

Fisher v. Wainwright, 435 F.Supp. 253 (D.C.Fla.1977).

In American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty, § 1.5 (determining voluntariness of plea), it reads:

“The court should not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. By inquiry of the prosecuting attorney and defense counsel, the court should determine whether the tendered plea is the result of prior plea discussions and a plea agreement, and, if it is, what agreement has been reached. If the prosecuting attorney has agreed to seek charge or sentence concessions which must be approved by the court, the court must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the court. The court should then address the defendant personally and determine whether any other promises or any force or threats were used to obtain the plea.” (Emphasis supplied.)

In Ex parte Taylor, 522 S.W.2d 479 (Tex.Cr.App.1975), it was suggested that the trial court follow the recommendations of the American Bar Association’s Standards for Criminal Justice, Pleas of Guilty, Approved Draft 1968.

This court has long held that the trial court is required to exercise great care in preventing the improvident entry of a plea of guilty. Garcia v. State, 91 Tex.Cr.R. 9, 237 S.W. 279 (1921); Stanton v. State, 159 Tex.Cr.R. 275, 262 S.W.2d 497 (1953).

“That a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized.” Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463 at 1468, 25 L.Ed.2d 747 (1970).
“. . . This mode of conviction [guilty plea] is no more foolproof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we should continue to do so, whether conviction is by plea or by trial.” Brady v. United States, supra, 397 U.S. at 758, 90 S.Ct. at 1474.

In pleading guilty, a defendant must be free from coercion, threats or improper promises. Fisher v. Wainwright, 435 F.Supp. 253 (D.C.Fla.1977). In Fambo v. Smith, 433 F.Supp. 590 (D.C.N.Y.1977), it was held that a guilty plea must be entered by a defendant who understands the situation and who has been neither deceived nor coerced.

The fear of the United States Supreme Court in Boykin about the possibility of threats or improper inducements under a record that does not affirmatively show that a defendant who pleaded guilty entered his plea understanding^ and voluntarily is applicable here in the instant case.

For the reasons stated in the opinion on original submission, this cause should be reversed.

ROBERTS and PHILLIPS, JJ., join in this dissent.

En banc.

      . After the court learned that appellant had been treated in “mental hospitals” for use of heroin, it spent some time inquiring into appellant’s mental competency, and for this reason may have overlooked other inquiries.

      . There was no admonishment that any recommendation as to punishment by the prosecuting attorney is not binding on the court. This was perhaps due to the fact that a jury had been impaneled. It would be good practice to admonish the defendant that any recommendation by the prosecutor to the jury as to punishment is not binding on the jury and they can assess any punishment within the range of penalties set for the particular offense.

      . As noted in the original opinion, the record reflects that the court admonished the appellant as to his mental competency. Plea of guilty was before a jury and therefore obviates the necessity of admonishing appellant that the prosecuting attorney’s recommendation was not binding on the court.

      . The majority, in order to strengthen its position, attempts to take appellant’s ground of error out of context. A reading of the ground of error and argument clearly shows that he contends that his guilty plea was not freely and voluntarily made. See Article 40.09, § 9, V.A.C.C.P. The majority’s statement, “There is no suggestion on appeal that the plea was not knowingly and voluntarily made,” is erroneous.

      . Said Article 26.13 has again been amended (Acts 1977, 65th Leg., p. 748, ch. 280, § 1, eff. Aug. 29, 1977).

      . The majority states, “There being no showing that appellant was misled or harmed by the admonishment, and finding that the trial was in substantial compliance with the requirements of Art. 26.13, supra, we conclude no error is shown.” This is obviously a case of getting the cart in front of the horse.

      . See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . Article I, § 19, Texas Constitution.

      . “The requirement that a plea of guilty must be intelligent and voluntary to be valid has long been recognized. See nn. 5 and 6, infra. The new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily. . .

        Brady v. United States, 397 U.S. 742, 747, footnote 4, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747, 756 (1970); see also North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
      In Boykin, the Court stated:
      “What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought (citations omitted), and forestalls the spin-off of collateral proceedings that seek to probe murky memories.” 89 S.Ct. at 1712-1713.