author: YARBRQUGH, Justice.

text:
    Mary Elizabeth WAITES, Relator, v. Ruby SONDOCK, Judge, et al., Respondents.
    No. B-6611.
    Supreme Court of Texas.
    June 20, 1977.
    Cooper & George, Gordon R. Cooper, II, Houston, for relator.
    Craig Washington, Houston, for respondents.
   YARBRQUGH, Justice.

This is an original mandamus action in which relator, Mary Elizabeth Waites, seeks issuance of the writ to compel Judge Ruby Sondock, judge of the court of domestic relations in Harris County, to set aside an order granting a legislative continuance and to proceed to trial.

The continuance was granted in a contempt proceeding filed by Ms. Waites (the mother) to compel her former husband, Ronald Edward Waites (the father), to comply with a child support order. The support payments were ordered in a March 10,1971, divorce decree, which required the father to pay $100.00 per month to the mother for support of their minor daughter. In her motion for contempt the mother claimed that the father was $4,600.00 in arrears in these payments. The court set the motion for hearing, but on December 9, 1976, the matter was reset for January 13, 1977, apparently on the father’s motion. In the meantime, the Honorable Craig A. Washington, a member of the Texas House of Representatives became the attorney for the father. On January 13, 1977, Representative Washington filed an Affidavit and Motion for Legislative Continuance in which he requested that the contempt action be continued pursuant to Tex.Rev.Civ. Stat.Ann. art. 2168a (Supp.1976), until at least thirty days after May 31, 1977, the closing date for the Regular Session of the Sixty-fifth Legislature.

In her motion opposing the continuance, the mother stated that she was in “dire need of support payments,” that the father had made no payments since May 28, 1975, and that over her physician’s objections she had been forced to take a second job in order to support her daughter. Upon the basis of a sworn motion, Judge Sondock granted the legislative continuance without hearing any evidence in support of these allegations. On March 7, 1977, the mother filed her Motion for Leave to File Petition for Mandamus. We granted leave to file in order that we might consider the constitutional question that we reserved in Government Services Insurance Underwriters v. Jones, 368 S.W.2d 560 (Tex.1963), and in Schwartz v. Jefferson, 520 S.W.2d 881 (Tex.1975): whether the legislature constitutionally may require mandatory continuances of causes or suits involving legislators when the party opposing the continuance or a person in their charge faces irreparable harm from the delay in enforcing existing rights. We now hold that mandatory continuances under such circumstances violate the due process clause of the Fourteenth Amendment of the United States Constitution and Article I, sections 13 and 19 of the Texas Constitution.

Article 2168a provides:

In all suits, either civil or criminal, or in matters of probate, pending in any court of this State, and in all matters ancillary to such suits which require action by or the attendance of an attorney, including appeals but excluding temporary restraining orders, at any time within thirty (30) days of a date when the Legislature is to be in Session, or at any time the Legislature is in Session, or when the Legislature sits as a Constitutional Convention, it shall be mandatory that the court continue such cause if it shall appear to the court, by affidavit, that any party applying for such continuance, or any attorney for any party to such cause, is a Member of either branch of the Legislature, and will be or is in actual attendance on a Session of the same. If the member of the Legislature is an attorney for a party to such cause, his affidavit shall contain a declaration that it is his intention to participate actively in the preparation and/or presentation of the case. Where a party to any cause or an attorney for any party to such cause is a Member of the Legislature, his affidavit need not be corroborated. On the filing of such affidavit, the court shall continue the cause until thirty (30) days after the adjournment of the Legislature and such affidavit shall be proof of the necessity for such continuance, and such continuance shall be deemed one of right and shall not be charged against the party receiving such continuance upon any subsequent application for continuance. It is hereby declared to be the intention of the Legislature that the provisions of this Section shall be deemed mandatory and not discretionary.
Notwithstanding the foregoing, the right to such continuance, where such continuance is based upon an attorney in such cause being a member of the Legislature, shall be discretionary with the Court in the following situations and under the following circumstances, and none other, to wit:
(1) Where such attorney was employed within 10 days of the date such suit is set for trial.

Article 2168a represents a legislative determination that the interests of the people of the State will best be served by the attendance of legislator-attorneys at legislative sessions. We have held in the past that article 2168a promotes the public welfare by relieving legislators of the burden of choosing between serving in the legislature and appearing as a party or as an attorney in a pending suit during such sessions. Government Services Insurance Underwriters v. Jones, supra; Mora v. Ferguson, 145 Tex. 498, 199 S.W.2d 759 (1947). By couching article 2168a in mandatory terms, the legislature, in effect, has decreed that the public policy behind that statute shall always take precedence over whatever the needs of individual litigants for access to the adjudicative power of courts. Since postponing adjudication of a dispute generally will not give rise to any injury over and above the inconvenience associated with delay, the legislature could have reasonably concluded that in the ordinary case the policy behind article 2168a would outweigh an individual’s need for access. Article 2168a, however, makes no provision for those cases in which delay will cause an injury that cannot be remedied later, an injury over and above the common inconvenience of delay, an injury that can only be prevented by immediate access to the court. The legislature has created an irrebuttable presumption that the policy behind article 2168a is entitled to prevail in all cases, except temporary restraining orders.

Article I, section 13 of the Texas Constitution provides:

All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.

This provision prohibits “legislative bodies from arbitrarily withdrawing all legal remedies from one having a cause of action well established and well defined in the common law”. Lebohm v. City of Galveston, 154 Tex. 192, 197, 275 S.W.2d 951, 954 (1955). In Lebohm this court went on to say:

[Legislative action withdrawing common-law remedies for well established common-law causes of action for injuries to one’s “lands, goods, person or reputation” is sustained only when it is reasonable in substituting other remedies, or when it is a reasonable exercise of the police power in the interest of the general welfare. Legislative action of this type is not sustained when it is arbitrary or unreasonable.

154 Tex. at 199, 275 S.W.2d at 955.

Article 2168a effectively withdraws the common law remedy of litigants who, in emergency situations, seek to enforce court decrees and obtain other relief other than by a temporary restraining order. Although article 2168a appears on its face merely to postpone pending suits and matters ancillary thereto, in the present case the delay in enforcement caused by the legislative continuance allegedly inflicts harm that is not susceptible to remedy at a later date. The mother here claims that the support payments are critical to her ability to feed and support her children. The trial court, after the expiration of the continuance, may force the father to pay any overdue sums, but these payments will not compensate the child for any injury resulting from the mother’s present inability to care for the child. The legislative basis for withdrawing the mother’s remedy — the presumption that the policy behind article 2168a outweighs a litigant’s right of redress — is arbitrary and unreasonable when, in situations such as this, a party allegedly faces irreparable injury from inaction. Clem v. Evans, 291 S.W. 871 (Tex.Com.App.1927, holding approved); see also Cleveland Board of Educaton v. LaFleur, 414 U.S. 632, 644, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973).

The courts of other states also have rejected arguments that legislative continuance statutes are mandatory in situations of emergency or irreparable harm. In A.B.C. Business Forms, Inc. v. Spaet, 201 So.2d 890 (Fla.1967), the trial judge granted a legislative continuance because he felt the statute left him with no discretion to do otherwise in spite of the showing of irreparable harm by the party opposing the continuance. The Florida Supreme Court, in ordering the trial court to hold a hearing, stated:

[T]he courts should support the legislative attempt to assure the presence of its membership unless the legislative enactment is a clear invasion of the judicial field. Generally, in non-emergency cases [the statute providing for legislative continuances] is constitutional and should be liberally construed. But, as to litigation involving emergency relief and irreparable damage, we find the statute an invasion of the judicial field and violative of constitutional prohibition. . . . As a right guaranteed by the Constitution, the courts must be open to every person for relief against injury. Whether, in a given cause, the litigant may suffer irrepa-rabie injury in the application of the statute is one of sound judicial discretion, not subject to legislative control.

201 So.2d at 892.

In Thurmond v. Superior Court, 66 Cal.2d 836, 59 Cal.Rptr. 273, 427 P.2d 985 (1967), a legislative continuance had been granted in an action against the father of an unborn child for support, maintenance, and medical expenses necessary for the child during pendency of a paternity suit. The trial court viewed the legislative continuance statute as mandatory and therefore granted the continuance without holding a hearing on allegations of irreparable harm made by the guardian of the unborn child. The California Supreme Court issued a writ of mandamus ordering the trial court to hold a hearing on the motion for continuance because the Supreme Court construed the statute as directory only. The basis of this decision was the inherent power of the court to control the order of its business to safeguard the rights of litigants. The court stated:

The guardian in the present case points out that the right of the mother and child to apply for relief pendente lite will be materially impaired and perhaps destroyed by the imposition of any substantial continuance; neither the birth of the child nor its need for care and support can be postponed. A similar result could follow in other cases in which a party has a right to invoke a provisional remedy, such as pendente lite support in domestic relations controversies, attachment and sale of perishable goods, receivership of a failing business, and temporary restraining orders or preliminary injunctions. Situations other than those involving provisional remedies may also arise in which a substantial existing right would be defeated or abridged by extended continuances.
We are convinced that such a result, with the serious constitutional questions which would ensue, was not intended by the Legislature, and that the statutory provisions here involved are to be applied subject to the discretion of the court as to whether or not its process and order of business should be delayed. .
Among the factors to be considered by the court will be the nature and urgency of the rights involved .

66 Cal.2d at 839-40, 59 Cal.Rptr. at 275, 427 P.2d at 987.

We agree with the conclusions of these courts insofar as their decisions deal with the constitutionality of mandatory legislative continuances when the non-moving party faces irreparable harm. At the same time we reiterate the limited nature of our holding: a legislative continuance is mandatory except in those cases in which the party opposing the continuance alleges that a substantial existing right will be defeated or abridged by delay. In eases of this type the trial court has a duty to conduct a hearing on the allegations. If the allegations are shown to be meritorious the court should deny the continuance.

Accordingly, relator’s petition for writ of mandamus is conditionally granted. We assume that Judge Sondock or her successor will set aside her order and proceed to trial, including any pretrial hearings or proceedings, to determine the validity of the mother’s allegations. A writ will issue only if the judge of the court of domestic relations fails to do so.

      . In Schwartz v. Jefferson we said:
      Neither [Mora v. Ferguson, 145 Tex. 498, 199 S.W.2d 759 (1947), nor Government Services Insurance Underwriters v. Jones, 368 S.W.2d 560 (Tex.1963)] involved any delay or interference with the inherent power of a court to enforce its final judgments. Furthermore, in the latter case this Court specifically noted that the application of Article 2168a was not challenged as denying due process or equal protection of the laws in violation of the Fourteenth Amendment to the Constitution of the United States or Article I, Secs. 13 and 19 of the Texas Constitution. This caveat is significant in that both the Court and Legislature have apparently recognized that the act has not yet been subjected to constitutional tests which might arise under fact situations where a mandatory continuance would itself cause a deprivation of existing rights or emergency provisional remedies.
      520 S.W.2d at 886. The contempt action in the present case is distinguishable from that in the Schwartz case because the motion for contempt in Schwartz sought additional relief in the form of penalties and punishment for the relator’s failure to vacate a house as ordered in a final judgment. The continuance of the contempt action there did not deprive Mr. Franz-heim of any property rights that had been vested by the judgment, nor did it deprive Judge Jefferson of other means of enforcing the judgment. There was no constitutional impediment to the continuance in the contempt proceeding because there was no showing that it was necessary to enforce the judgment. In the present case the mother does not seek punishment or penalties, but rather to enforce an order of the court. She has alleged that she is being deprived of property rights adjudged to her on behalf of her child in a final divorce decree.

      . A temporary restraining order would not help the mother here. Until the enactment of the Family Code, the parent awarded custody of the child by a divorce decree had only one remedy for delinquent child support payments, citation for contempt of court. Under the Family Code the party having custody now has the additional remedy of reducing unpaid installments to judgment. Tex.Family Code Ann. § 14.09(c) (1975). However, these are the sole procedures available to the mother to enforce the support order. Either of these remedies has all of the elements of a separate suit and thus would be subject to a mandatory legislative continuance under a literal reading of article 2168a. Schwartz v. Jefferson, supra at 885.

      . In Gunn v. Cavanaugh, 391 S.W.2d 723, 726-27 (Tex.1965), we stated:
      A child cannot be likened to a chattel that may be stored in a warehouse for preservation and safe-keeping. He is one of the most fragile and easily damaged of all living creatures. His requirements must be met with dispatch if he is to survive or escape serious damage .
      Although delay in suits such as those for child support payments gives rise to a near-presumption of irreparable harm, the situation may arise in which the unavailability of support payments for an extended period of time would not do more than inconvenience the parent seeking to recover the payments, and thus would not constitute an emergency.

      . See also the caveat of the Michigan Supreme Court in Bishop v. Montante, 395 Mich. 672, 677, 237 N.W.2d 465, 467 (1976):
      This Court is mindful that unreasonably long periods of immunity could, in a hypothetical case not before us, amount to a denial of due process, particularly if the legislator were an essential party to the litigation. The need of a wife for a judgment of divorce or of a child for a decree of support may compel a legislator’s participation in the judicial process. It is conceivable that immunity unreasonably extended could result in a loss of a cause of action without a judicial tempering of the privilege, such as a rule tolling the statute of limitations during the period of inability to pursue process.

      . Judge Sondock was appointed to the district court bench after the continuance in question was granted.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Wendell Harvey VIBROCK, Petitioner, v. Lynda Kae VIBROCK, Respondent.
    No. B-6799.
    Supreme Court of Texas.
    July 27, 1977.
    Jeff Walker, Arlington, for petitioner.
    Carter, Jones, Magee, Rudberg, Moss & Mayes, Charles M. Wilson, III, Dallas, for respondent.
   PER CURIAM.

The application for writ of error is refused, no reversible error.

Wendell Vibrock sold insurance policies for Fidelity Union during his marriage to Lynda Vibrock. Under his employment contract with Fidelity Union, Wendell Vi-brock was to receive renewal commissions when these policies were renewed. Lynda Vibrock sued Wendell Vibrock claiming an interest in certain of these renewal commissions. She asserts these commissions are community property which were not considered in the partition of the parties’ property upon divorce. The court of civil appeals reversed the summary judgment rendered by the trial court in favor of Wendell Vibrock and remanded the cause for trial. 549 S.W.2d 775.

The disposition of this case by this court indicates neither approval nor disapproval of the language contained in the opinion of the court of civil appeals which suggests that these renewal commissions are not community property. See Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976).


text:
    Ruth GEE, Independent Executrix, Petitioner, v. Thomas P. READ, Jr., Independent Executor, Respondent.
    No. B-6866.
    Supreme Court of Texas.
    Sept. 27, 1977.
    William Andress, Jr., Dallas, Richard S. Stark, Gainesville, for petitioner.
    William A. Nobles, Decatur, Wayne A. Melton, Dallas, for respondent.
   PER CURIAM.

The application for writ of error is denied with the notation, “Refused. No Reversible Error.” Our action should not be interpreted as approving the conclusion of the Court of Civil Appeals that the trial court committed fundamental error which may be reviewed without assignment. 551 S.W.2d 496, 501. The discussion of fundamental error was not material or necessary to the disposition of this case.


author: DANIEL, Justice.

text:
    TANNER DEVELOPMENT COMPANY et al., Petitioners, v. Robert B. FERGUSON et al., Respondents.
    No. B-6366.
    Supreme Court of Texas.
    Oct. 19, 1977.
    Rehearing Denied Dec. 7, 1977.

      Vinson, Elkins, Searls, Connally & Smith, Paul E. Stallings and David T. Harvin, Houston, for petitioners.
    Sears & Burns, David F. Beale, Houston, for respondents.
   DANIEL, Justice.

This is a suit seeking to recover the statutory penalties on a contract alleged to be usurious. Respondents, Robert B. Ferguson and Twelve Ferguson Ltd., a partnership, hereinafter referred to as Ferguson, brought suit against Tanner Development Company, a joint venture, asserting that a promissory note given by Ferguson to Tanner as partial consideration for the conveyance of ten acres of land in Harris County was usurious. Ferguson sought recovery of usury penalties, interest and attorney’s fees in excess of $290,000, and prayed for an injunction prohibiting a trustee’s sale of the property. Tanner filed a counterclaim in which it sought judgment declaring that the note was in default; that a valid lien pursuant to a deed of trust executed by Ferguson existed on the property; and that the lien be foreclosed and the property be sold.

Trial was before the court. Judgment was rendered for Tanner Development Company, the trial court holding that the note was not usurious but was in default and that Tanner was entitled to have the lien foreclosed on the property.

The Court of Civil Appeals reversed and rendered. It held that the contract was usurious; that Ferguson should recover $202,865.74 (figured as twice the amount of interest contracted for) plus $59,144.04, which it figured to be the interest already paid to Tanner under the terms of the note. The Court of Civil Appeals also awarded attorney’s fees to Ferguson in the sum of $28,000 and reversed the trial court’s judgment of foreclosure for Tanner. 541 S.W.2d 483. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

On November 8, 1973, Tanner conveyed to Ferguson approximately ten acres of unimproved land in Harris County. In consideration, Ferguson paid $6,000 in cash as a down payment and executed a note payable over a five-year period in the principal sum of $226,388.77 with interest at nine and one-half percent (9V2%) per annum, secured by a vendor’s lien and deed of trust.

The note provided for payment in advance of the first year’s interest, which amounted to $21,506.93. Interest thereafter was to be paid quarterly in advance on the 20th day of January, April, July and October, of each calendar year beginning on January 20, 1974, and continuing until July 20, 1977. Payments on principal were deferred during this period. Thereafter no interest was to be paid until after all prepaid interest was credited to the note.

Principal payments of $2,800 were to be paid on the 20th day of October, January, April and July, of each calendar year beginning on October 20, 1977, and continuing until November 8, 1978. At that time the entire principal balance left due and owing was to be paid. The note provided for attorney’s fees if placed in the hands of an attorney for collection or if collected through legal proceedings.

\

The note executed by Ferguson also provided that interest would cease in the event of prepayment of principal and that any unearned prepaid interest should be applied as a credit upon the principal. It provided that the maker of the note would not be personally liable thereon and that the payee or other holder of the note would look solely to the enforcement of the retained liens for the satisfaction of the debt in the event of default.

The final paragraph of the note reads:

“This note shall be construed under the laws of the State of Texas, and the terms of this note have been made on the assumption that all scheduled payments will be made when herein provided, and in the event of the prepayment of principal, as herein provided for, or accelerated maturity from any cause, any interest paid on this note which is in excess of the maximum lawful rate permitted by the usury laws of the State of Texas as construed by courts having jurisdiction thereof, shall be considered for all purposes as payment on principal, and so credited to the note.”

The deed of trust contains this provision:

“In no event shall Grantor be required to pay, for the use, forbearance or detention of the money evidenced by the note secured hereby, more than the maximum legal rate of interest allowed by the laws of Texas, and the right to demand any such excess shall be and is hereby waived; any payment of an amount in excess of the legal rate shall be considered a mistake with the excess being applied to the principal of the note secured hereby; and this provision shall control every other provision of the note and deed of trust.”

Ferguson paid the first year’s interest ($21,506.93) in advance of November 12, 1973, as agreed. Thereafter, he paid on or about the due dates six quarterly payments of $5,376.73 each and a partial payment in July of 1975 in the sum of $3,376.73, for a total of $57,144.04. When Ferguson failed to pay in full the interest installment which became due on July 20, 1975, Tanner gave him an extension of time to complete the payment, but he failed to do so. Thereafter, Tanner exercised its option under the note and deed of trust to declare the unpaid balance of the note immediately due and payable and gave notice to Ferguson of the acceleration and date of foreclosure. Whereupon, Ferguson filed this suit.

Article 16, Section 11 of the Texas Constitution, as amended November 8, 1960, authorized the Legislature to “define interest and fix maximum rates of interest.” Pursuant thereto the Legislature defined interest as “the compensation allowed by law for the use or forbearance or detention of money . . .,” and enacted the following relevant statutes, effective on October 1, 1967:

“Article 5069-1.04. Limit on rate

“The parties to any written contract may agree to and stipulate for any rate of interest not exceeding ten per cent per annum on the amount of the contract; and all other written contracts whatsoever, except those otherwise authorized by law, which may in any way, directly or indirectly, provide for a greater rate of interest shall be subject to the appropriate penalties prescribed in this Subtitle.”

Article 5069-1.06 provides in pertinent part:

“(1) Any person who contracts for, charges or receives interest which is greater than the amount authorized by this Subtitle, shall forfeit to the obligor twice the amount of interest contracted for, charged or received, and reasonable attorney fees fixed by the court provided that there shall be no penalty for a violation which results from an accidental and bona fide error.”

A difficult question is presented by the terms of the Ferguson note, because the stipulated rate of interest (9½%) on the stated principal ($226,388.77) was legally within the maximum permitted by law if spread over the entire five-year contract, but during the first year of the contract interest payments exceeded 10% of the principal. The excess during the first year was due to the provision by which both the prepayment of the first year’s interest and several quarterly advance interest payments for the second year were made during the period of November 12, 1973, to November 12, 1974.

Voluntary Payments

One of the grounds for the trial court’s decision, against Ferguson’s claim of usury was its conclusion that the payment of interest in advance was voluntary and hence not usurious. On this point the trial court found that it was Ferguson who insisted upon prepayment of the first year’s interest in advance and that the quarterly payments during the first three years be made as advance interest payments rather than principal so that he and his associates would receive the advantage of earlier income tax deductions. It found that Ferguson would not have made the purchase from Tanner without these provisions for advance first year and quarterly payments being designated for advance interest rather than principal. Ferguson admitted that for tax benefits he was the one who insisted on the first year’s interest being payable in advance after learning that Tanner required more than $6,000 be paid at the time of closing. The trial court concluded, and Tanner insists, that this amounted to a voluntary prepayment of interest for the convenience of Ferguson. Tanner bases its argument on the holding of Vela v. Shacklett, 12 S.W.2d 1007 (Tex.Com.App.1929, jdgmt adopted), and the rule stated in 45 AmJur., Interest and Usury § 178 at 142 that interest is not usurious if voluntarily paid in advance by the borrower for his own personal convenience and not as a matter of contractual compulsion. See also 57 A.L.R.2d 630, 670-71.

The Court of Civil Appeals correctly overruled Tanner’s contention on this point. Negotiations of the parties may have some relevance in ascertaining the dominant purpose and intent of the parties embodied in the contract interpreted as a whole and in light of attending circumstances and of the governing rules of law that the parties are presumed to have intended to obey. Walker v. Temple Trust Company, 124 Tex. 575, 80 S.W.2d 935 (1935). However, once the agreed terms have been reduced to writing in the form of a compulsory contract, the test of alleged usury is not concerned with which party might have originated the alleged usurious provisions.

Spreading of Interest Over the Term of the Contract

Neither of the lower courts based their judgments on the effect of the first year’s excessive payments alone. Instead both looked to the whole five-year term of the note. Both tested the contract by comparing the total interest provided for in the note with the maximum amount that could lawfully be charged over the five-year term, using the method employed by this Court in Nevels v. Harris, 129 Tex. 190, 102 S.W.2d 1046 (1937). The lower courts ended up with opposite results only because they used different “true” principal sums of the note in making their computations.

The trial court held that the “true” principal sum of the note was the stated face amount of $226,388.77. On this amount it held that the rate per annum of 9½% over the five-year period was not usurious because the total yield did not exceed the amount that could have been charged under the maximum legal rate. It found that upon default and acceleration on August 11, 1975, Tanner, as provided in the note, credited pre-paid interest in excess of the amount accrued to reduce the unpaid principal balance due and owing on the note, leaving a remainder of unpaid principal in the sum of $206,778.74. It was for this amount, plus 10% interest after August 11, 1977, and 10% attorney’s fees that the trial court rendered judgment for Tanner, to be satisfied only by sale of the land and without any personal liability against Ferguson.

The Court of Civil Appeals held that the “true” principal of the note was $204,881.84, because it erroneously concluded that the $21,506.93 prepayment of interest “in reality constituted a portion of the principal which was not to be advanced until it was applied to the loan beginning July 20,1977.” Accordingly, the Court of Civil Appeals deducted the $21,506.93 of “prepaid interest” from the $226,388.77 stated principal and computed its maximum “actual” legal rate for the five-year period on the reduced principal sum of $204,881.84. On this reduced principal sum the maximum legal rate of interest payable over the term of the note was figured to be $101,442.67. This compares with its calculation of total interest contracted to be payable on the note as $106,520.42, or a total of $5,077.75 more than the maximum allowed by law. However, in the $106,520.42 figure, the $21,506.93 prepayment was included as interest. Except therefor, the total interest payable on the reduced principal would have been well within the maximum legal rate over the five-year term of the note. It is an obvious error in these calculations to count the $21,506.93 prepayment as both principal and interest.

As heretofore indicated, the trial court properly made its spreading calculations and comparisons on the principal sum as stated on the face of the note, treating all prepaid payments as interest when so designated by written agreement of the parties. When so spread and averaged the total rate of interest payable on the face of the note during its term equals precisely 9½ % per annum. We have been cited no authority, and have found none, which would support the action of the Court of Civil Appeals in judicially declaring the first year’s prepayment of interest to be principal and then deducting it to arrive at a lower “true” principal sum. If it is proper to judicially declare the prepayment to be something different from what the parties called it in their contract, there is greater support in the evidence for treating it as an additional down payment on the principal and thus reducing both the principal and the total interest in equal amounts. However, as recognized by the Court of Civil Appeals in a subsequent conflicting paragraph of its opinion, “[t]he initial payment was called interest and was to be applied as interest. . . . The intention of the parties concerning amount of interest due and the dates on which it was to be paid is clear.” Obviously, it was error to convert the prepaid interest into principal or to apply it to principal in any manner other than as specifically provided in the “savings clauses” of the note and deed of trust.

The Court of Civil Appeals may have fallen into the error of reducing the principal sum by the amount of the prepayment of interest because in Nevels and other cases where fees or commissions were deducted from cash loans, the “true” amounts of the loans and the notes were reduced accordingly in testing for usury. The amount of cash actually received by the borrower was held to be the “true” principal. On this point, the facts of the present case are different. The transaction here was not a loan of money from which any fee, commission or interest was withheld from the payor. Rather, it was a sale of real estate in which Ferguson received a deed to ten acres of land in exchange for his cash down payment and the delivery of the promissory note in the sum of $226,-388.77. None of the consideration for Ferguson’s note was reserved by Tanner or returned by Ferguson to Tanner. Ferguson had at all times the full use and benefit of the ten acres. Ferguson’s prepaid interest was received and credited by Tanner as stipulated in the note. It was contrary to the terms of the contract to treat the prepayment of the first year’s interest in any other manner than as provided by the note and the deed of trust.

We hold that the “true” principal sum of the note was its stated face amount. If the Court of Civil Appeals had applied its computations and comparisons to the stated principal sum, its result would have been the same as that of the trial court.

Conflicting Authorities on “Spreading’’

While the note in question is not usurious under the “spreading” doctrine of Nevels, Ferguson argues that it is, in any event, usurious under Commerce Trust Co. v. Ramp, 135 Tex. 84, 138 S.W.2d 531 (1940), which the lower courts declined to follow. Ramp stands for the proposition that payment of more than ten percent interest in any one year of the effective term of an extended loan is usurious, even though the total interest payments for the whole period did not exceed the rate and amount of yield authorized by law. Thus, it conflicts with Nevels.

It must be conceded that during the decade of 1930 to 1940 this Court was not entirely consistent in its writings on this phase of the usury law. These decisions predated the modern practice of charging points in addition to the constant long-term interest rate, and the recently popular tax sheltered investment in real estate on long-term notes which defer principal payments and require only interest to be paid during the early years of the note. More importantly, our conflicting cases were written before usury penalties were extended to the entire amount of “interest contracted for,” whether or not it was “received” by the payee. Yet, in this first case since 1940 in which our Court has been called upon to resolve the point at issue, we find principles enunciated in the earlier cases which are helpful in the present task.

To begin with, it was held in 1930 that usury does not result from the long practice of charging not to exceed one year’s interest at the highest lawful rate one year in advance of maturity. Bothwell v. Farmers’ & Merchants’ State Bank & Trust Co., 120 Tex. 1, 30 S.W.2d 289 (1930). See also Shropshire v. Commerce Farm Credit Co., 120 Tex. 400, 30 S.W.2d 282 (1930), which was decided on the same day. This rule would govern the present case if only prepayment of the first year’s interest were involved. It does not sanction, however, the additional overlapping of advance quarterly interest payments made for the second year during the first twelve months of the note. The question remains as to whether these advance quarterly payments of interest during 1974 may be spread over the subsequent years of the five-year note.

In 1935, the forerunner of the Nevels concept was written in a Commission of Appeals opinion adopted by this Court in Adleson v. B. F. Dittmar Co., 124 Tex. 564, 80 S.W.2d 939 (1935). In that case a $6000 note was payable in 60 monthly installments, including interest at 9.48% per an-num, plus a $240.00 “commission” charged by the lender when the note was executed. The “commission” was regarded as additional interest, which meant that interest in the first year (including the front-end commission) had been collected at a usurious rate of 13.48% per annum. A usury suit was filed against the lender after the third year. Upon the theory that any usurious interest was received only in the first year, the lender contended that the statute of limitations (then two years) barred recovery, since no usurious interest was charged or received within the two years prior to the suit. The Commission disagreed. It averaged the full amount of interest charged over the entire term of the note and concluded that a usurious rate of 11.268% per annum was charged throughout the term, including the two years immediately preceding the suit.

The same procedure was followed as to a $70 “commission” deducted from a $1500 loan in Eubanks v. Simpson, 90 S.W.2d 291 (Tex.Civ.App.1936, writ ref’d). The $70 was held to be interest and the loan would have been usurious if the interest paid during the first year had been considered separately. The court, however, averaged the interest charges over the full term of the note and found that the contract was not usurious. See also Southern States Mortgage Co. v. Lykes, 85 S.W.2d 780 (Tex.Civ.App.1935, writ ref’d), for a similar holding.

In 1937 the Dittmar and Eubanks approach was embraced in Nevels v. Harris, supra, which is often cited as the leading authority on “spreading.” Its basic facts have been discussed above. The judicially declared interest (a $320 front-end fee) added to the contracted 8% per annum on a five-year $6400 stated principal (or $6080 true principal) would have rendered the first year’s interest payments usurious. However, the Court looked to the full term of the note, spread the interest over the five-year term of the contract and found that the note was not usurious. What has since been referred to as the Nevels doctrine was stated by this Court as follows:

“If the contract for the use and detention of the principal debt is not a sum greater than such debt would produce at 10 percent per annum from the time the borrower had the use of the money until it is repaid, it is not usurious.”

Nevels was followed on this point more recently in Imperial Corp. of America v. Frenchman’s Creek Corp., 453 F.2d 1338 (5th Cir. 1972), and Commerce Savings Ass’n of Brazoria County v. GGE Management Co., 539 S.W.2d 71 (Tex.Civ.App.1976), which was modified on another point and affirmed by this Court in 543 S.W.2d 862 (1976). There is also authority for spreading interest paid in advance over the entire term of the loan in other jurisdictions.

On the other hand, the Ramp approach, which would prohibit “spreading” and apply a year-by-year testing even of long-term contracts, was derived from a 1933 opinion of the Commission of Appeals in Dallas Trust & Savings Bank v. Brashear, 65 S.W.2d 288 (Tex.Com.App.1933, jdgmt adopted). In that case Brashear borrowed $3000 from the bank at 9% interest per annum for a term of ten years. He executed a series of notes which resulted in an effective rate of interest of 11% during each of the first five years and 7% during the last five years. Spread and averaged over the ten-year term, the loan bore interest at the rate of 9% per annum. However, amounts equal to 2% interest for the ten-year period were “squeezed” into the first five years, so that the actual amount of interest collected during each of the first five years exceeded 10% per annum. This was held to be usurious.

In Commerce Trust Co. v. Ramp, 135 Tex. 84, 138 S.W.2d 531 (1940), this Court, in a similar fact situation followed the rule announced in Brashear. Ramp involved a ten-year loan with multiple notes which “squeezed” an additional 2½% interest into four annual payments “instead of being spread over the ten year period of the loan, and this made the first four years in excess of 10 percent per annum.” This was held to be usurious.

The Brashear and Ramp cases have not been followed on this point as often as the contrary result reached in the Nevels line of cases. One of the most recent cases to follow Ramp in testing a loan for usury was Southwestern Investment Co. v. Hockley County Seed & Delinting, Inc., 511 S.W.2d 724 (Tex.Civ.App.1974, writ ref’d n. r. e. with per curiam, 516 S.W.2d 136 (Tex.1974)). The Court of Civil Appeals held the note in that case to be usurious because it provided for more than 10% per annum interest during the first year and part of the second year of the note. Just as easily the court could have found the note to be usurious under the spreading concept of Nevels, because it was undisputed that the annual interest rate over the entire term of the loan was 10.798% per annum. In electing to follow Ramp, the Court observed that “a loan contract is considered usurious if for the first year or first few years it requires the payment of more than the lawful rate, even though the interest calculated over the entire loan period does not exceed the statutory limit.”

In a per curiam opinion, 516 S.W.2d 136 (1974), we cited Ramp on a completely different holding and agreed with that point. However, on the rather obvious dictum contrary to the Nevels concept of spreading, we reserved judgment in the following words:

“In the course of its opinion, the court of civil appeals held that a loan contract is regarded as usurious if during the first year, or first few years, it requires the payment of interest at greater than the legal rate, even though the interest calculated over the entire period of the loan does not exceed the statutory limit. The effect of such a holding is to label as usurious any loan in which the stated interest rate plus any discount, fees, points, or other front-end charges that are judicially determined to be interest exceed the lawful rate for the first year even though spreading the front-end charges over the term of the loan results in an overall interest rate below the legal limit. No question as to the spreading of front-end charges over the life of a loan is presented by the facts in this case, and our action on the application for writ of error is not to be interpreted as an expression of opinion on that question.”

We have purposely refrained from making any distinctions in this opinion between interest stipulated by the parties and judicially declared interest, or between interest in advance and front-end interest. Technical and economic differences exist. However, all forms of compensation for the use, forbearance or detention of the principal debt have been treated alike in applying the usury laws for such a long period of time that it would only create more confusion if they were now treated in any different manner.

The confusion in the cases and their treatment of “interest in advance” and “front-end interest” is discussed in detail by several law review writers. See also the discussion in Riverdrive Mall, Inc. v. Larwin Mortgage Inv., 515 S.W.2d 5 (Tex.Civ.App.1974, writ ref’d n. r. e.). Existence of the problem was apparently recognized by the Sixty-Fourth Legislature when, on June 2, 1975, it enacted House Bill 351, the relevant portion of which is now codified as Article 5069-1.07(a) and reads as follows:

“(a) On any loan or agreement to loan secured or to be secured, in whole or in part, by a lien, mortgage, security interest, or other interest in or with respect to any interest in real property, determination of the rate of interest for the purpose of determining whether the loan is usurious under all applicable Texas laws shall be made by amortizing, prorating, allocating, and spreading, in equal parts during the period of the full stated term of the loan, all interest at any time contracted for, charged, or received from the borrower in connection with the loan. However, in the event the loan is paid in full by the borrower prior to the end of the full stated term of the loan and the interest received for the actual period of the existence of the loan exceeds the maximum lawful rate, the lender contracting for, charging, or receiving all such interest shall refund to the borrower the amount of the excess or shall credit the amount of the excess against amounts owing under the loan and shall not be subject to any of the penalties provided by law for contracting for, charging, or receiving interest in excess of the maximum lawful rate.”

While Tanner does not contend that this statute should be applied retroactively, it does argue that as to loans secured by real estate the Legislature merely codified the existing law as applied in the Nevels line of cases. There is some legislative history in support of this view. On the other hand, Ferguson argues that if the Nevels doctrine was already applicable to all forms of interest paid in advance, then there was no need for the new statute. In any event, under the points as presented in this appeal we are not required to determine whether Article 5069-1.07(a) should be considered, and we decide the case without regard to Article 5069-1.07(a). We simply observe in passing that the statute did in fact adopt the Nevels doctrine of spreading all interest over the whole term of loans secured by real property, whether it be “interest in advance,” “front-end interest,” or a mixture of both.

As heretofore indicated, long before the Ferguson-Tanner contract was executed in 1973, this Court had adopted the Nevels doctrine of testing for usury by spreading judicially determined interest over the entire term of the contract. We hold that the same rule should be applied to stipulated interest in the present case. When, in 1967, the Legislature extended the usury penalties to interest “contracted for” during the entire term of a note (Article 5069-1.06), it seems only reasonable that it intended for the contract to be tested for usury on the basis of the compensation charged for the entire term during which the borrower had use, detention or forbearance of the principal debt. Since the contract in question provided Ferguson, the payor, with the full use of the consideration represented by the actual face amount of the note (the ten acres of land) for the entire term of the contract, and since usury penalties are now applied to the entire contract, we are corn-pelled to hold that the advance interest payable under the present note should be spread over the entire term of the contract. To do otherwise would be manifestly unfair and unjust under the law as it existed when the Ferguson-Tanner contract was executed. In our opinion, it would be beyond the obvious intent of the Legislature in the enactment of Article 5069-1.06 to impose its severe penalties solely upon proof that one year’s interest payments exceeded the statutory limit, where over the effective period of the contract, interest payments were not, in the aggregate, in excess of the amount authorized by law. We hold, therefore, that the note in question was not usurious.

This opinion is limited to contracts covered by Article 5069-1.06(1), wherein the stated rate of interest on the principal debt does not exceed 10% per annum and wherein all consideration (contracted for and judicially determined) for use, detention or forbearance of the principal debt is a sum no greater than such principal debt would produce at 10% per annum during the full time that the payor has use of the principal debt or the consideration (such as land) which is represented by the principal debt. Insofar as the opinion in Commerce Trust Co. v. Ramp, supra, is in conflict with this opinion, it is overruled. Likewise, the conflicting holding of the Court of Civil Appeals in Southwestern Investment Co. v. Hockley County Seed & Delinting, Inc., supra, is disapproved.

Accordingly, the judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.

McGEE, J., notes his dissent.

JOHNSON, J., concurs in the result.

ON MOTION FOR REHEARING

In a motion for rehearing Respondent Ferguson insists that we should have treated the principal of the vendor’s lien note ($226,388.77) as though it had been a loan of money from which the lender had deducted the prepaid interest ($21,506.93), thus resulting in a true principal of $204,881.84 and a total yield of more than ten percent interest per annum during the five year term of the note. Ferguson contends that our failure to so reduce the principal and hold the contract usurious will serve as a precedent for the same result where loans of money are involved.

Since this case involves no loan of money, and our opinion distinguishes the nature of the principal debt from a loan of money, we doubt the necessity of disclaiming it as a precedent for testing money loans from which interest or other front-end payments have been deducted by the lender or returned to the lender. To make this abundantly clear, however, we reiterate that in cash loan transactions from which the lender deducts interest, fees, commissions or other front-end charges, the amount of dollars actually received or retained by the borrower is held to be the “true” principal. In such cases the amount of the stated principal is reduced accordingly in testing for usury. See Nevels v. Harris, 129 Tex. 190, 102 S.W.2d 1046 (1937), and our statement of this rule in our opinion of October 19, 1977.

As stated in our opinion, the transaction in the present case was not a loan of money from which any fee, commission or interest was withheld from the payor. Rather, it was a sale of real estate in which Ferguson received a deed to ten acres of land. The $226,388.77 vendor’s lien note was given by Ferguson as partial payment for ten acres of land deeded to him by Tanner. None of the consideration for Ferguson’s note was reserved by Tanner or returned by Ferguson to Tanner. Ferguson had the full use and benefit of the ten acres purchased by the note. Furthermore, the note provided that Ferguson would not be personally liable to pay any sum of money thereon and that the payee would look solely to the liens on the ten acres for satisfaction of the note in the event of default. Clearly, this transaction is distinguishable from a loan of money, and there was no reason to judicially reduce the principal of the note so long as Ferguson had use of the land and forbearance on the stated principal during the entire term of the note.

Alternative Points on Interest “Charged”

In his motion for rehearing, Ferguson for the first time calls our attention to his alternative points in the Court of Civil Appeals on interest “charged,” which were not disposed of by that Court. While cross-points in this Court would have been the better procedure, it is properly urged that we may now consider and rule on these points rather than remand the case to the Court of Civil Appeals. Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977); McKelvy v. Barber, 381 S.W.2d 59 (Tex.1964); Hatch-ell and Calvert, Some Problems of Supreme Court Review, 6 St. Mary’s L.J. 303, 318-322 (1974).

The alternative points assert that, even if the loan contract is not usurious, Tanner by its actions “charged” Ferguson usury during the events surrounding the attempted acceleration and foreclosure of the note. The alleged “charging” of the full face amount of the note without crediting unearned interest is based upon (1) a letter on behalf of Tanner dated August 12, 1975, notifying Ferguson that because of default the owner of the note had elected to accelerate maturity and demanding “the full unpaid principal balance together with accrued interest, delinquent interest, and attorney’s fees”; (2) an enclosed notice of trustee’s sale to satisfy “said indebtedness . now wholly due . . .”; and (3) a letter to Ferguson on behalf of Tanner dated August 20, 1975, returning a $2,000 late cash deposit; reiterating that the maturity of the loan had already been accelerated; and stating that the tendered $2,000 was insufficient to pay “the full principal balance of the note, accrued interest, delinquent interest, collection fees and attorney’s fees.”

The letter of August 20, 1975, written by the Trustee under the deed of trust, Julian M. Moss, Jr., stated: “You may obtain the exact pay off amount necessary by calling my office between 8:30 a. m. and 5:00 p. m. Monday through Friday.” Ferguson testified that he called Moss for such information; that Moss was out of town; and that Ferguson never received any pay off amount from Moss or Tanner. The first time Tanner associates calculated the balance due on the note was on September 1, 1975, at which time unearned interest was credited to the principal as provided in the note. This was also done in arriving at the sum of $206,778.74 as the balance due on the note when Tanner first filed its counterclaim for debt and judicial foreclosure on December 10, 1975.

Article 5069-1.06 applies in the disjunctive to either a contract for, a charge of, or receipt of usurious interest, and the occurrence of any one of such conditions triggers the penalty provisions of the statute. Windhorst v. Adcock Pipe and Supply, 547 S.W.2d 260 (Tex.1977). In Adcock there was no contract between the parties, but the retailer unilaterally charged to its customer’s open account definite sums equal to one and one-half percent per month interest as a “finance charge.” This was held to be a usurious “charging.” A similar holding was made with reference to “charging” under the provisions of Articles 5069-8.01 and 5069-8.02 of the Texas Consumer Credit Code in Moore v. Sabine National Bank of Port Arthur, 527 S.W.2d 209 (Tex.Civ.App.1975, writ ref’d n.r.e.), wherein the bank had demanded a definite sum of $11,842.96 in its notice of intention to repossess, its original petition, and its sequestration affidavit. This sum included an unearned finance charge of $3,957.89, and the demand, suit and sequestration action were held to be an unlawful “charging” under Articles 5069-8.01 and 5069-8.02.

The foregoing cases are the only ones cited by Ferguson in support of his contention that Tanner’s letters and notice amounted to a “charging” of usurious interest. Both are distinguishable from the facts of this case. The letters to Ferguson on behalf of Tanner refer only to a claim for the “full unpaid principal balance," and “the full principal balance,” respectively. (Emphasis supplied.) Neither they nor the notice demand payment of the full face amount of the note. Rather, the use of the term “principal balance” in the letters implies a demand for something less than the full face amount of the note. We construe the letters as referring to whatever balance was due on the principal after applying all payments and credits under the terms of the note. One of the terms was that any unearned interest payments shall be credited on the principal, and that is what Tanner did in arriving at the first and only dollar amount demanded of Ferguson. Since Tanner neither demanded nor sued for any interest in excess of ten percent per annum during the period of forbearance, we agree with the conclusion of the trial court that Tanner did not charge Ferguson any interest in excess of the amount permitted by law. Therefore, Ferguson’s alternative points on “charging” are overruled.

Accordingly the motion for rehearing is overruled.

      . The Court of Civil Appeals included a later non-accepted payment of an additional $2,000 in its calculation of $59,144.04 as the total amount of interest paid.

      . Article 5069-1.01(a). This and all other statutory references are to Vernon’s Annotated Texas Civil Statutes unless otherwise noted.

      . The procedure and calculations are set forth on computation sheets attached as an Appendix to the opinion of the Court of Civil Appeals. 541 S.W.2d 483 at 496-99. There are minor differences between some of the totals as stated in the opinion and as shown on the computation sheets.

      . As heretofore quoted on page 779, supra, the final paragraph of the note provided that “in the event of prepayment of principal . . . any interest on this note which is in excess of the maximum lawful rate permitted by the usury laws . . . shall be considered for all purposes as payment on principal, and so credited to the note.” This is the type of specific savings clause which was approved in Nevels v. Harris, supra. See also Imperial Corp. of America v. Frenchman’s Creek Corp., 453 F.2d 1338 (5th Cir. 1972).

      . In Nevels, supra, the note was in the stated sum of $6,400 payable in five years at an interest rate of 8% per annum, but the lender charged the borrower a $320 fee for making the loan and deducted it from the cash proceeds of the loan. This Court treated the actual loan as $6,080 in determining that the interest charged was not in excess of the legal maximum over the five-year term of the note. See also Adleson v. B. F. Dittmar Co., 124 Tex. 564, 80 S.W.2d 939 (1935).

      . A “point” denotes a fee or charge equal to one percent of the principal amount of the loan, usually collected as a “front-end” payment and judicially treated as “front-end interest.”

      . See Graham, The Prepaid Interest Deduction Viewed from the Perspective of Real Estate Transactions, 29 SW L.J. 412 (1975).

      . Prior to October 1, 1967, the effective date of Article 5069-1.06(1), usury penalties on loans to individuals were twice the amount of usurious interest “received” by the lender. See repealed Article 5073. Extension of the penalty to all “interest contracted for,” whether or not paid, could amount to a substantially larger sum on long-term notes alleged to be usurious. For instance, the penalties sought by Ferguson in this case amount to nearly as much as the original purchase price for the land.

      . The rule is an actual quote from Southern States Mortgage Co. v. Lykes, 85 S.W.2d 780, 788 (Tex.Civ.App.1935, writ ref’d). The words almost paraphrase a much earlier statement of this Court in Mills v. Johnston, 23 Tex. 308, 329-30 (1859), wherein it was said:
      “The law, in deciding whether a settlement involves usury or not, will look at the whole amount of interest reserved . . and to the whole period of forebearance extended; and if the charges, properly imputable to interest, do not exceed the highest interest allowed by law, for the whole period of fore-bearance, then the settlement cannot be held to be usurious.” (Emphasis supplied.)

      . Green v. Conservative Loan Co., 153 Ark. 219, 240 S.W. 13 (1922); American Inv. Co. v. Roberts, 29 N.M. 99, 218 P. 1037 (1928); American Inv. Co. v. Lyons, 29 N.M. 1, 218 P. 183 (1923); Metz v. Winne, 15 Okl. 1, 79 P. 223 (1904); Montgomery Fed. Sav. & Loan Assn. v. Baer, 308 A.2d 768 (D.C.App.1973).

      . See Monning, Usury Implications of Front-End Interest and Interest in Advance, 29 SW L.J. 748 (1975); Weaver, Usury in Texas: Spreading Interest Over the Entire Period of the Loan, 12 Houston L.Rev. 159 (1974); Loi-seaux, Some Usury Problems in Commercial Lending, 49 Texas L.Rev. 419 (1971); and Pearce and Williams, Punitive Past to Current Convenience — A Study of the Texas Law of Usury, 22 SW L.J. 233 (1968). See also, Note, Problems of Interest: Texas Municipal Bonds and the Usury Laws, 54 Texas L.Rev. 1130, 1137-41 (1976). Citation of these writings is not an indication of our agreement with any of the conclusions stated therein except as specifically set forth in this opinion.

      . Acts 1975, 64th Leg., p. 47, Ch. 26, No. 1, effective September 1, 1975. Tanner makes no contention that this statute, effective subsequent to the contract in question, is retroactive under the exceptions discussed in 4 A.L.R.2d 932, 944-948. Neither does it contend that the new provision should be interpreted in para materia with the previously enacted Articles 5069-1.04 and 1.06, dealing with the same subject matter.

      . See Monning, 29 SW L.J. 748, supra, at pages 749 and 763-64 for a discussion of the legislative history. A proponent explained to a Senate Committee: “[W]hat we are doing by the interest amortization in the first provision is just codifying what the existing law is.” Minutes of the Economic Development Committee of the Senate, 64th Leg., p. 7 (March 10, 1975). The Bill Analysis attached in the House states that it “would limit interest rates and points to a maximum of 10%.” ‘‘What the Bill Proposes to Do,’’ H.B. 351, 64th Leg. (Second Official House Printing, Feb. 19, 1975).


author: DENTON, Justice.

text:
    Johnie L. SLAUGHTER, Petitioner, v. ABILENE STATE SCHOOL et al., Respondents.
    No. B-6567.
    Supreme Court of Texas.
    Oct. 26, 1977.
    Robinson, Hanna, Chappell, Burke & Moore, W. L. Burke, Jr., John W. Weeks, William S. Perry, Abilene, for petitioner.
    John L. Hill, Atty. Gen., David M. Kendall, Jr. and Jack Sparks, Asst. Attys. Gen., Austin, for respondents.
   DENTON, Justice.

This is a suit for personal injuries under the Texas Tort Claims Act. The trial court entered judgment on the jury verdict for the plaintiff. The court of civil appeals reversed and remanded. 546 S.W.2d 106. We reverse the judgment of the court of civil appeals and affirm that of the trial court.

The petitioner, Johnie L. Slaughter, while an employee of the Abilene State School, was injured when another employee of the Respondent School backed a tractor over Slaughter and pinned him between the tractor wheel, the ground and a building. It is undisputed that he received severe injuries as a result of the incident.

Slaughter contends that the court of civil appeals was in error in holding the opinion testimony of Doctor Krege was inadmissible. Respondents complain of certain testimony of Doctor Krege in behalf of the petitioner because the doctor “examined the plaintiff solely for the purpose of testifying, and prescribed no treatment” and his opinion was based in part on history given by petitioner and upon subjective symptoms. Petitioner introduced the deposition of Doctor Krege, an orthopedic surgeon of the United States Air Force stationed at Lackland Air Force Base Hospital. Petitioner had been seen by several doctors and had started going to the hospital at Lack-land since he was a retired military veteran. He saw Doctor Freeman, who was also an Air Force orthopedic surgeon, at Lackland Air Force Base Hospital who prescribed a back brace for Slaughter. When Slaughter returned to Lackland Hospital, Doctor Freeman had been transferred and Doctor Krege was assigned to examine Slaughter. It is this testimony of Doctor Krege, based on this one visit, that forms the basis of the admissibility of his testimony.

Doctor Krege testified he saw Slaughter on one occasion on September 26, 1975; that he obtained a complete history from Slaughter which included a statement as to how the accident occurred and his complaints. He then gave Slaughter a physical examination which included X-rays of the affected areas of the body. Based upon history of the case given by Slaughter, the subjective symptoms, together with the objective findings obtained from the physical examinations and X-rays, Dr. Krege rendered an opinion as to his physical condition and prognosis. On cross-examination Dr. Krege testified that he had seen Slaughter only on the one occasion and “at that time” he did not prescribe any treatment; that he examined Slaughter “solely for the purpose of giving your opinion as to his condition.”

In ruling that Doctor Krege’s testimony is inadmissible the court of civil appeals primarily relied upon Pacific Employers Insurance Company v. Gibson, 419 S.W.2d 239 (Tex.Civ.App.1967, no writ); Texas Employers’ Insurance Association v. Wallace, 70 S.W.2d 832 (Tex.Civ.App.1934, no writ); Gaines v. Stewart, 57 S.W.2d 207 (Tex.Civ.App.1933, no writ). These cases hold that where the doctor who examines the patient only for the purpose of making a report and testifying, if necessary, he cannot base his opinion as to the condition of the patient in part on the history of the case as related by the patient. It must be based on an examination and study of objective symptoms and X-rays. See also Goodrich v. Tinker, 437 S.W.2d 882 (Tex.Civ.App.1969, writ ref’d n. r. e.); Texas Employers’ Insurance Association v. Wells, 207 S.W.2d 693 (Tex.Civ.App.1947, writ ref’d n. r. e.); Texas Employers’ Insurance Association v. Morgan, 187 S.W.2d 603 (Tex.Civ.App.1945, ref’d w. o. m.); Southern Underwriters v. Blair, 144 S.W.2d 641 (Tex.Civ.App.1940, no writ). We are of the opinion this rule places an unfair limitation upon a reasonable practice of those preparing their case for trial, namely that of securing qualified physicians and surgeons to make an examination for the purpose of later aiding the court and jury to better understand the claimant’s physical condition. We agree with leading commentators that the better reasoned authorities admit testimony based, in part, upon reports of others but which the expert customarily relies upon in the practice of his profession.

The record here reveals that Doctor Krege’s testimony concerning Slaughter’s physical condition and prognosis was based on three things: the history of the case given by the patient, a physical examination and X-rays. The doctor testified the patient’s subjective complaints were consistent with his objective findings. Under these circumstances, we think the trial court was correct in admitting the opinion testimony of Doctor Krege because it was clearly not based wholly upon hearsay. Texas courts have followed the general rule that where it appears a witness’ testimony is predicated both upon personal knowledge and upon hearsay, his testimony is admissible. Combined Insurance Company of America v. Kennedy, 495 S.W.2d 306 (Tex.Civ.App.1973, writ ref’d n. r. e.); Aetna Casualty & Surety Company v. Scruggs, 413 S.W.2d 416 (Tex.Civ.App.1967, no writ); Gray v. Bird, 380 S.W.2d 908 (Tex.Civ.App.1964, writ ref’d n. r. e.); Texas Employers’ Insurance Association v. Rogers, 368 S.W.2d 21 (Tex.Civ.App.1963, writ ref’d n. r. e.). We therefore hold that the testimony of Doctor Krege, even though not a treating doctor, which was based upon the case history, physical examination and X-rays, was admissible. Those cases holding to the contrary are disapproved.

Respondents Abilene State School and Texas Department of Mental Health and Mental Retardation complain of the court of civil appeals holding that the 1953 John Deere tractor in question was a motor vehicle under the terms of section 19A of the Texas Tort Claims Act. Section 19A provides:

The provisions of this Act shall not apply to school districts or to junior college districts except as to motor vehicles.

It is uncontradicted that Abilene State School is an Independent School District. Since the statute does not define the phrase “motor vehicles,” it must be construed according to its ordinary import or as the phrase is generally defined. Often the phrase is defined with reference to a statute or insurance policy. We note that the definition appearing in the statutes regulating the registration of motor vehicles used on the public highways and providing for driver’s licenses is substantially the same as the definition generally given.

Art. 6675a-l. Definitions of terms

The following words and terms, as used herein, have the meaning respectively ascribed to them in this Section, as follows:
(a) “Vehicle” means every device in, or by which any person or property is or may be transported or drawn upon a public highway, except devices moved only by human power or used exclusively upon stationary rails or tracks.
(b) “Motor Vehicle” means every vehicle, as herein defined, that is self-propelled.
* ⅜ ⅜ sfc # ⅜
(e) “Farm-tractor” means every motor vehicle designed and used primarily as a farm implement for drawing other implements of husbandry.

The definition given in Corpus Juris Sec-undum is “the term ‘motor vehicle’ ordinarily means a vehicle which is self-propelled, a vehicle operated by a power developed within itself and used for the purpose of carrying passengers or materials, and generally includes all vehicles propelled by any power other than muscular power, except traction engines and such motor vehicles as run only upon rails or tracks.” 60 C.J.S. Motor Vehicles § 1, p. 147.

The courts have held the term “motor vehicle” to be different from and broader than the term “automobile.” State v. Ridinger, 364 Mo. 684, 266 S.W.2d 626, 42 A.L.R.2d 617 (1954). Common usage has made the phrase “motor vehicle” a generic term for all classes of self-propelled vehicles not operating on stationary rails or tracks, and therefore, as a result all automobiles are motor vehicles, but the contrary proposition is not true. The term “motor vehicle” is much broader than the word “automobile” and includes various vehicles which cannot be classified as automobiles. Jernigan v. Hanover Fire Insurance Company, 235 N.C. 334, 69 S.E.2d 847 (1952). It has been held that a farm tractor is within the scope of the statute providing that no person shall operate a motor vehicle when he is in an intoxicated condition. State v. Powell, 306 S.W.2d 531 (Mo.1957).

The respondents rely principally upon Brookshire v. Houston Independent School District, 508 S.W.2d 675 (Tex.Civ.App.1974, no writ), which held that a forklift was not a motor vehicle for purposes of the Tort Claims Act. The court stated that definitions of “motor vehicle” elsewhere in the Revised Civil Statutes were not conclusive as to the term’s meaning under the Tort Claims Act, and that in its opinion, a forklift was closer to “motor driven equipment,” as found in section 3 of the Tort Claims Act, than to a “motor vehicle.” We agree; however, under the facts of that case we do not think it is controlling here. We conclude that the court of civil appeals correctly held that the tractor involved in this accident is a motor vehicle within the meaning of section 19A of the Texas Tort Claims Act.

The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.

      . Tex.Rev.Civ.Stat.Ann. art. 6252-19 (1970).

      . McCormick, Evidence § 15 (2d ed. 1972); 3 Wigmore, Evidence § 688 (Chadbourn Rev. 1970); McCormick and Ray, Texas Law of Evidence § 1404 (2d ed. 1956).


text:
    Tom Watson WEAVER, Petitioner, v. Raymond WITT, Respondent.
    No. B-6923.
    Supreme Court of Texas.
    Nov. 16, 1977.

      Brown & Haden, Charles M. Haden, Houston, for petitioner.
    Hicks, Hirsch, Glover & Cochran, Marc Allan Sheiness, Houston, for respondent.
   PER CURIAM.

This is a malpractice case involving an alleged negligent surgical operation. Dr. Raymond Witt performed a hemorrhoidec-tomy on Tom Weaver on February 1, 1971. In this action for damages, it was alleged that the operation was performed negligently by Dr. Witt in that the nerves and muscles in Weaver’s rectum were damaged, causing him to lose control of his bowels. Weaver’s suit was not filed until January 16, 1976, and, to avoid the bar of the two year statute of limitations, Weaver alleged that Dr. Witt fraudulently concealed the cause of the injury and that it was not until June 1975 that Weaver discovered his injury was the result of Dr. Witt’s alleged negligent surgical performance.

The district court rendered summary judgment for Dr. Witt. The Court of Civil Appeals affirmed. 552 S.W.2d 565. The appellate court held that both fraudulent concealment and the discovery rule were affirmative defenses to the statute of limitations with the burden on plaintiff to produce proof raising issues of fact as to the existence of each. Since Weaver failed to produce any summary judgment proof, it was concluded that summary judgment for Dr. Witt was proper.

As to the fraudulent concealment plea, the Court of Civil Appeals was correct. Fraudulent concealment is an affirmative defense to the statute of limitations under which the plaintiff has the burden of com-1 ing forward with proof to support the allegation. Nichols v. Smith, 507 S.W.2d 518 (Tex.1974).

The discovery rule referred to may be stated as the legal principle that a statute of limitations barring prosecution of an action for medical malpractice runs, not from the date of the practitioner’s wrongful act or omission, but from the date the nature of the injury was or should have been discovered by the plaintiff. Hays v. Hall, 488 S.W.2d 412 (Tex.1972). The rule is not a plea of confession and avoidance of the statute of limitations but is the test to be applied in determining when a plaintiff’s cause of action accrued. Hays v. Hall, supra. To be entitled to summary judgment, the burden is on the movant, defendant here, to negate the pleading of the discovery rule by proving as a matter of law that there is no genuine issue of fact concerning the time when the plaintiff discovered or should have discovered the nature of the injury. Zale Corp. v. Rosenbaum, 520 S.W.2d 889 (Tex.1975); Oram v. General American Oil Company of Texas, 513 S.W.2d 533 (Tex.1974). See Nichols v. Smith, supra; Torres v. Western Casualty & Surety Co., 457 S.W.2d 50 (Tex.1970).

The only summary judgment proof offered by Dr. Witt was an affidavit stating that January 22, 1973 was the last date on which he examined Weaver. This proof does not negate the discovery rule allegation. It was error to render summary judgment on the ground that no genuine issue existed as to the time when Weaver discovered or should have discovered the nature of his injury.

The holding of the Court of Civil Appeals is in conflict with Zale Corporation v. Rosenbaum, supra, and Hays v. Hall, supra. The application of Tom Watson Weaver is granted and, without oral argument, the judgments of the courts below are reversed. Rule 483, Texas Rules of Civil Procedure. The cause is remanded to the district court for trial on the merits.

      . For causes of action accruing after August 29, 1977, the Medical Liability and Insurance Improvement Act provides that “no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed.” Tex. Laws 1977, ch. 817, § 10.01, at 2052.

      . In a conventional trial on the merits, proof of facts suspending operation of a statute of limitations is the burden of the party pleading suspension. Wise v. Anderson, 359 S.W.2d 876 (Tex.1962).


author: CHADICK, Justice.

text:
    Juan BRISENO, Individually and as next friend of his minor son, Jerry Briseno, Petitioner, v. W. L. MARTIN et al., Respondents.
    No. B-6689.
    Supreme Court of Texas.
    Nov. 23, 1977.

      Hope, Henderson, Hohman & Georges, A. J. Hohman, Jr. and James E. Hope, San Antonio, for petitioner.
    Stolhandske, Simmons & Stolhandske, William F. Stolhandske and Randall B. Richards, San Antonio, for respondents.
   CHADICK, Justice.

Jerry Briseno was injured on July 24, 1974 when the automobile in which he was a passenger collided with a telephone pole. The automobile was owned by W. L. Martin, Sr., and operated by the senior Martin’s son, W. L. Martin, Jr. at the time of the collision. A negligent entrustment suit was instituted in Jerry Briseno’s behalf. The trial court in response to jury findings awarded recovery of damages for Briseno’s injury. The court of civil appeals reversed the trial court judgment on the ground that the submitted special issues impermissibly commented on the weight of the evidence. 547 S.W.2d 364.

The appeal is before this court on the issue of whether the submission of Special Issue No. 7 and the conditional submission of Special Issue No. 8 made an impermissible comment on the weight of the evidence. The special issues in question, and answers thereto, are as follows:

SPECIAL ISSUE NO. 7
Do you find from a preponderance of the evidence that prior to the occasion of July 24, 1974, W. L. Martin, Jr. was a reckless and incompetent driver?
Answer “We do” or “We do not.”
We, the Jury, answer: We do.
If you have answered Special Issue No. 7 “We do” and only in that event, then answer the following question.
SPECIAL ISSUE NO. 8
Do you find from a preponderance of the evidence that when W. L. Martin, Sr. permitted W. L. Martin, Jr. to drive the vehicle on July 24, 1974, he knew that W. L. Martin, Jr. was a reckless and incompetent driver?
Answer “We do” or “We do not.”
We, the Jury, answer: We do.

Respondent Martin contends that both Special Issue No. 7 and Special Issue No. 8 contain a comment on the weight of the evidence. He argues that Special Issue No. 7 is erroneous because it assumes that if Martin, Jr. was a reckless driver at any time before July 24, 1974, then he was a reckless driver on July 24,1974, the date on which Martin, Sr. entrusted his son with the car. Special Issue No. 8 is said to make an impermissible comment on the weight of the evidence because it assumes the fact that Martin, Jr. was a reckless and incompetent driver.

Whatever the faults of Special Issue No. 7 may be, it is not defective for the reason that its wording expressly excludes July 24, 1974 as a determinative date of the alleged negligent entrustment. Absence of this alleged error is manifest on examination of the entire charge. The validity of an objection to any portion of a charge requires an examination of the charge in its entirety. Pickens v. Harrison, 151 Tex. 562, 252 S.W.2d 575 (1952); Texas Employers Insurance Association v. McKay, 146 Tex. 569, 210 S.W.2d 147 (1948).

The trial court’s charge, in three special issues preceding Special Issue No. 7, referred to the July 24, 1974 collision in which Briseno was injured as the “occasion in question.” The words “occasion of July 24, 1974” used in Special Issue No. 7, though not the identical words used in the preceding issues, had the same meaning and referred to the same event. In Graham v. Morris, 366 S.W.2d 792 (Tex.Civ.App.—Amarillo 1963, no writ), the trial court submitted special issues on various acts of the defendant’s truck driver. The court used the phrase “at the time and on the occasion of the collision in question” in each of the issues. The defendant objected that as worded the issues were a comment on the weight of the evidence, particularly as to the defense of emergency, because the phrase precluded the jury from considering the truck driver’s conduct prior to the time he, the truck driver, got into a perilous situation. The Amarillo court concluded that the phrase was broad enough to include the time leading up to the collision in question. The same conclusion is reasonable and appropriate in this case. The “occasion of July 24, 1974” when considered in context with the remainder of the charge clearly refers to and includes the time leading up to the collision on that date. The jury’s affirmative answer was a finding that W. L. Martin, Jr. was a reckless and incompetent driver at and prior to the time of the collision on the date stated. No error was committed by the submission of Special Issue No. 7.

On the other hand, the statement in Special Issue No. 8 that “. . . W. L. Martin, Jr. was a reckless and incompetent driver,” without qualifying the assertion by appropriate language, such as, “if you have so found,” incidentally comments on the weight of the evidence. The language in question obliquely states the fact that was inquired about in Special Issue No. 7. However, Special Issue No. 8 is expressly conditioned on an affirmative finding in Special Issue No. 7 that Martin, Jr. was a reckless and incompetent driver. The trial court is forbidden by Texas Rules of Civil Procedure 277 to directly comment in its charge on the weight of the evidence, but it is not objectionable under the rule that a charge incidentally makes such comment. An impermissible comment is not made by the conditional submission of Special Issue No. 8. See Proctor v. Cisco & Northeastern Railway Co., 277 S.W. 1047 (Tex.Comm.App.1925, jdgmt adopted); Pharr v. Coldeway, 256 S.W.2d 917 (Tex.Civ.App.—Amarillo 1952, no writ); McClelland v. Mounger, 107 S.W.2d 901 (Tex.Civ.App.-Amarillo 1937, writ dism’d); 1 McDonald’s Texas Civil Practice § 12.03.2.

There is no error in the charge submitted by trial court. The judgment of the court of civil appeals is reversed and that of the trial court is affirmed.

      . Knowledge of the incompetency of the driver at the time consent is given is an essential element of a negligent entrustment action. Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063 (1939). Martin suggests, and this court agrees that the problems in Special Issue No. 7 might have been avoided by submitting the issue as follows: “Do you find from a preponderance of the evidence that at the time W. L. Martin, Jr. borrowed W. L. Martin, Sr.’s automobile, W. L. Martin, Jr. was a reckless and incompetent driver?” See McIntire v. Sellers, 311 S.W.2d 886 (Tex.Civ.App.-Austin 1958, writ ref’d n. r. e.).


text:
    BAYLOR UNIVERSITY MEDICAL CENTER, Petitioner, v. Luther FLEMING, Respondent.
    No. B-7083.
    Supreme Court of Texas.
    Dec. 7, 1977.
    Burford, Ryburn & Ford, James H. Holmes, III, Dallas, for petitioner.
    Helm, Pletcher, Hogan & Burrow, J. Donald Bowen, Houston, for respondent.
   PER CURIAM.

Luther Fleming was injured by a fire that occurred in his hospital room at Baylor University Medical Center. The trial court directed a verdict against Fleming on the ground that there was no evidence that his injuries were proximately caused by negligent conduct on the part of the Medical Center. The Court of Civil Appeals reversed and remanded the cause for a new trial. It held that the evidence introduced raised issues of fact as to negligence and proximate cause. 554 S.W.2d 263. We agree that a new trial is required.

The Court of Civil Appeals also held that the Medical Center’s interrogatories to Mrs. Fleming waived application of the Dead Man’s Statute, Tex.Rev.Civ.Stat.Ann. art. 3716. The action of this Court should not be understood as approving the portion of the opinion pertaining to waiver of that Statute. Application for writ of error is refused, no reversible error.


author: POPE, Justice.

text:
    N-S-W CORPORATION, Relator, v. Honorable John SNELL, Jr., et al., Respondents.
    No. B-6967.
    Supreme Court of Texas.
    Dec. 14, 1977.
    Cox, Pakenham & Roady, Joe G. Roady, Houston, for relator.
    J. Donald Bowen, Houston, for respondents.
   POPE, Justice.

N-S-W Corporation seeks a mandamus ordering the trial judge to set aside an order that reinstated a cause upon the docket. It insists the order is void since the judge ordered the reinstatement more than thirty days after the date of its dismissal order and after the court had lost jurisdiction over its prior order. We conditionally grant the writ of mandamus.

H. R. George Gwyn, III sued NS-W Corporation for damages for breach of a contract. On May 5, 1977, the trial court dismissed the action for want of prosecution. On May 25, Gwyn filed his motion to reinstate the cause. Under those facts it was necessary for the trial court to order the reinstatement within thirty days after May 5, which would have been by June 4, 1977. Rule 165a, Tex.R.Civ.P. That date was a Saturday, so the following Monday, June 6, 1977, is our critical date. Rule 4. The dispute before us is whether the trial judge rendered a judgment for reinstatement on June 6, which would be the last day within the thirty days during which the court still retained jurisdiction. Conclusive evidence of the date of the order is contained in the order of reinstatement:

On this the 13th day of June, 1977, came on to be heard Plaintiff’s Motion to Reinstate a Case on the Docket of the Court, and the Court having duly heard and considered same, is of the opinion that such motion should be and is in all things granted, it is, therefore
ORDERED that the above entitled and numbered cause be reinstated on the docket of this Court, to have the same status as before the call of the dismissal docket.
SIGNED AND ENTERED this 11th day of July, 1977.
/s/ Peter S. Solito
John Snell, Jr.,
Judge Presiding

Respondent Gwyn says that the recital that the order came on for hearing on June 13 is brought in question by this entry on the docket sheet:

granted "June 6-1977 M to reinstate deiiied as per order"

Respondent Gwyn says that the word "denied" was stricken on June 6, at which time the judge actually granted the motion to reinstate. Relator, N-S-W Corporation on the other hand, says that the trial judge changed the order after June 6, but, in any event, the docket entry may not impeach the court's order.

A docket entry may supply facts in certain situations, Matthews v. Looney, 132 Tex. 313, 123 S.W.2d 871 (1939), but it cannot be used to contradict or prevail over a final judicial order. Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 110 S.W.2d 561 (1937); Ex parte Rains, 113 Tex. 428, 433, 257 S.W. 217, 220 (1923); Stark v. Miller, 63 Tex. 164 (1885).

We accordingly grant the prayer for a mandamus ordering the vacation of the July 11 order. Judge John Snell, Jr., who heard the motion, is now deceased, and this mandamus is directed to his successor in office. The writ of mandamus will issue only in the event the reinstatement order is not vacated.


text:
    Henry R. CHAVEZ et ux., Petitioners, v. AETNA FINANCE COMPANY, Respondent.
    No. B-6994.
    Supreme Court of Texas.
    Jan. 4, 1978.
    Stephen G. Cochran, San Antonio, for petitioners.
    Howard E. Moore, Dallas, for respondent.
   PER CURIAM.

The judgment of the court of civil appeals, 558 S.W.2d 174, in remanding the cause for new trial is correct, and accordingly we refuse the application for writ of error, no reversible error.

The applicability of the so-called Rule of 78ths, Tex.Rev.Civ.Stat.Ann. art. 5069-3.-15(6), to the situation of default and acceleration was not directly considered by the lower courts. We express no opinion as to its applicability in the event the question is raised in the second trial.


text:
    A. Donald DAVIES, Bishop of the Episcopal Diocese of Dallas, Relator, v. Frank A. MASSEY, Chief Justice et al., Respondents.
    No. B-7139.
    Supreme Court of Texas.
    Jan. 18, 1978.

      Golden, Potts, Boeckman & Wilson, H. David Herndon, Dallas, for relator.
    Robert M. Huey, Austin, for respondents.
   CHADICK, Justice.

Relator A. Donald Davies, Bishop of the Episcopal Diocese of Dallas, instituted this mandamus proceeding to require the Justices and Clerk of the Court of Civil Appeals for the Second Supreme Judicial District at Fort Worth to file the transcript and statement of facts tendered by Davies in his appeal from an adverse judgment in the District Court of Hood County, Texas.

In the underlying cause of action judgment was rendered against Davies by the trial court sitting without a jury on July 14, 1977. No motion for new trial was filed. In order to perfect his appeal to the Court of Civil Appeals, it was necessary and jurisdictional for Davies to have filed a cost bond with the District Clerk within 30 days after rendition of the judgment. Rule 356(a), Texas Rules of Civil Procedure; Roth v. Maryland American General Insurance Co., 454 S.W.2d 779 (Tex.Civ.App.—San Antonio 1970, writ ref’d). Since the thirtieth day, August 13,1977, was a Saturday, the critical date became Monday, August 15. Rule 4, Texas Rules of Civil Procedure. The transcript shows that Davies’ cost bond was not filed until August 23, eight days late. On September 12 the Clerk of the Court of Civil Appeals received the transcript and statement of facts for Davies’ appeal. The Clerk notified counsel for Davies that the record would not be filed because it was shown that the cost bond was filed late.

Davies filed a motion with the Court of Civil Appeals to deem the cost bond timely filed under Rule 5, Texas Rules of Civil Procedure, on the ground that it was mailed to the District Clerk more than one day before it was due and received not more than ten days late. Unfortunately, the mailing envelope of the cost bond was not saved by the District Clerk and no one in the office had knowledge of the postmark date.

By affidavit attached to Davies’ motion, a secretary to Davies’ counsel stated that the cost bond was sent to the District Clerk by first-class United States mail in an envelope properly stamped and addressed on August 5, 1977. It is proper for the Court of Civil Appeals to consider this affidavit in determining its jurisdiction of Davies’ appeal. Tex.Rev.Civ.Stat.Ann. art. 1822. Davies’ motion to deem the cost bond timely filed was overruled by the Court of Civil Appeals and this mandamus was instituted to require that Court to file the appellate record and docket the underlying cause for appeal. The Supreme Court has the power to determine whether the facts in the uncontroverted affidavit are sufficient to confer jurisdiction on the Court of Civil Appeals. Glidden Co. v. Aetna Casualty & Surety Co., 155 Tex. 591, 291 S.W.2d 315, 318 (1956).

Rule 5 provides, in part, that no court may:

enlarge the period for taking any action under the rules relating to new trials or motions for rehearing or the period for taking an appeal or writ of error from the trial court to any higher court or the period for application for writ of error in the Supreme Court, except as stated in these rules; provided, however, if a motion for new trial, motion for rehearing, any matter relating to taking an appeal or writ of error from the trial court to any higher court, or application for writ of error is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail one day or more before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time; provided, however, that a legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing.

Filing a cost bond is unquestionably a “matter relating to taking an appeal” under Rule 5. The filing is a necessary and jurisdictional step in perfecting an appeal. Rules 354, 363, Texas Rules of Civil Procedure; Roth v. Maryland American General Insurance Co., supra.

The secretary’s uncontroverted affidavit shows that Davies’ cost bond was mailed more than one day before it was due. The District Clerk received the bond not more than ten days late. Davies’ cost bond was timely filed and his appeal has been properly perfected. Gaskin v. Perritt, 472 S.W.2d 211 (Tex.Civ.App.-Texarkana 1971, no writ).

We assume that the Court of Civil Appeals will comply with this Court’s judgment that Davies’ appeal has been properly perfected. A writ of mandamus will issue only if it should refuse.

      . It would be desirable for all court clerks to make provisions to save mailing envelopes when the proviso of Rule 5 is involved for the timely filing of court instruments. Some jurisdictional problems could thereby be avoided.