author: GUITTARD, Justice.

text:
    DALLAS OIL AND GAS, INC., et al., Appellants, v. Roy M. MOUER et al., Appellees.
    No. 18798.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 8, 1976.

      Laurence S. Sanger, Colvin & Jackson, Dallas, for appellants.
    John Hill, Atty. Gen., John H. Richards, Asst. Atty. Gen., Austin, for appellees.
   GUITTARD, Justice.

The trial court denied an application for a temporary injunction to restrain defendants, individually and as officials of the State of Texas, from interfering with plaintiffs’ business of selling fractional interests in oil and gas leases. We affirm.

The petition alleges that the five plaintiffs are corporations engaged in interstate offerings and sales of fractional interests in mineral leases within an exemption from registration provided by Regulation B of the Securities and Exchange Commission under the Securities Act of 1938, 15 U.S.C. § 77c(b) (1970). The financial disclosures required for such offerings, which are less comprehensive than for registered securities, are specified in “Schedule D” of Regulation B. Thus plaintiffs are known as “Schedule D operators.” Defendants are Texas Securities Commissioner Roy M. Mouer, Deputy Commissioner James A. El-lisor, Senior Investigator Ray McGregor, and Assistant Attorney General Bill Fla-nary. The petition alleges that since plaintiffs operate solely in interstate commerce and within SEC regulations, their activities are not subject to regulation under the Texas Securities Act, but that nevertheless defendants have entered into a conspiracy to drive plaintiffs out of business and in the course of such a conspiracy have caused plaintiffs irreparable harm by harassing the plaintiffs and by making unauthorized and wrongful disclosures to the press and public of confidential information obtained from plaintiffs in the course of an investigation into plaintiffs’ activities. Plaintiffs pray for damages for tortious interference with plaintiffs’ business as well as an injunction to restrain further acts of conspiracy. The trial court denied the temporary injunction generally and then dismissed the action as against Commissioner Mouer and Deputy Commissioner Ellisor.

On this appeal plaintiffs do not assert that the evidence admitted by the trial court was sufficient to require issuance of a temporary injunction, and they do not pray that this court reverse the trial court’s order and grant them such relief. Rather, plaintiffs pray for a reversal and remand to the trial court for a new hearing of their application for temporary injunction. Their first point of error complains of the trial court’s dismissal of defendants Mouer and Ellisor. In their remaining points of error they complain of the exclusion of evidence at the temporary injunction hearing. They argue that the trial court “abused its discretion in making narrow evidentiary rulings so as to exclude relevant and essential testimony regarding the facts necessary to support the issuance of a temporary injunction.”

Dismissal of Defendants Mouer and Ellisor

On this interlocutory appeal we have no jurisdiction to consider the order dismissing the action as against defendants Mouer and Ellisor. Our jurisdiction is limited by the provisions of Tex.Rev.Civ.Stat.Ann. art. 4662 (Vernon 1952), which gives an aggrieved party a right of appeal from an order granting or refusing a temporary injunction or an order granting or overruling a motion to dissolve a temporary injunction. An appeal under this statute cannot be used as a vehicle to review other interlocutory orders of the trial court. Hastings Oil Co. v. Texas Co., 149 Tex. 416, 234 S.W.2d 389, 398 (1950); Bloomfield Royalty Corp. v. Carco Investments, Inc., 435 S.W.2d 178 (Tex.Civ. App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.).

Under article 4662 we have jurisdiction to review the trial court’s order in so far as it denies a temporary injunction against the dismissed defendants as well as’ the other defendants. However, none of the alleged grounds for injunction apply only to the dismissed defendants. Consequently, unless we find that the cause should be reversed for a further hearing generally, we need not consider whether plaintiffs are entitled to pursue the application for temporary injunction against the dismissed defendants. Thus plaintiffs’ first point of error depends on their remaining points, all of which complain of exclusion of evidence at the temporary injunction hearing.

The News Stories

The trial court’s rulings on the evidence points must be considered in the light of the pleadings. Plaintiffs’ principal complaint, as stated in their petition, stems from a series of news stories which appeared in the Dallas Morning News on five consecutive days beginning July 20, 1975, under the bylines of reporters Ed Golz and John Cran-fill. Plaintiffs allege that these stories are defamatory and false and that they have caused great injury to plaintiffs in their business of selling interests in oil and gas leases. The petition further alleges that this adverse publicity was the result of a conspiracy on the part of defendants to drive plaintiffs out of business, and that the effect of the stories was “to cast a cloud of suspicion on all Schedule D oil and gas operators because of the inaccuracies, misrepresentations, illegal leaks and disclosures of selected portions of confidential material which were in the custody of some of the defendants herein.” The petition alleges that defendants committed the “tort of disclosing and divulging confidential information and/or privileged communications to unauthorized third persons.” Plaintiffs pray for actual and exemplary damages and also pray that defendants be restrained temporarily pending suit and thereafter permanently from disclosing such information and committing other acts in furtherance of their conspiracy to drive plaintiffs out of business.

The petition alleges that plaintiffs have been damaged by false and defamatory statements in the press, but it does not state grounds for a temporary injunction because injunctive relief is not available as a prior restraint of defamatory publications, however false and however damaging. Such a prior restraint would in itself violate the guarantees of freedom of speech and freedom of press in Tex.Const. art. I, § 8. Ex parte Tucker, 110 Tex. 335, 220 S.W. 75 (1920); Amalgamated Meat Cutters v. Carl’s Meat & Provision Co., 475 S.W.2d 300, 303 (Tex.Civ.App.—Beaumont 1971, writ dism’d). Therefore, plaintiffs’ claim for injunctive relief against further public statements must rest on their allegations of unlawful disclosures by defendants of confidential information.

In this respect plaintiffs rely on the Texas Securities Act, Tex.Rev.Civ.Stat.Ann. art. 581-28 (Vernon 1964), which provides that all information obtained by the Securities Commissioner as a result of issuance of a subpoena or summons requiring testimony and production of records concerning matters which the Commissioner has authority to investigate “shall be treated as confidential by the Commissioner and shall not be disclosed to the public except under order of court.” Although there is no evidence here that any of the information in question was obtained as a result of compulsory process for the disclosure of information, we treat the statutory requirement of confidentiality, for the purpose of this appeal, as extending to any information obtained by the Commissioner and his subordinates in the course of investigation from the persons or firms under investigation. We also assume, without deciding, that unauthorized disclosure of information made confidential by article 581-28 would afford ground for injunction on a showing of harm, although the statute itself provides no sanction against such disclosure.

Plaintiffs thus had the burden at the temporary injunction hearing of establishing that defendants threatened irreparable damage to their business by further disclosures of confidential information, and not simply by publication of “inaccuracies and misrepresentations” concerning plaintiffs and other Schedule D operators.

The newspaper stories in question do not show affirmatively that they are based on any disclosures of confidential information by defendants. Copies of the stories are attached to the petition. The information is attributed to various sources in the usual journalistic style. Very little is attributed to sources which can be interpreted as including defendants. The first story states, “This scheme has been unraveled by looking at Federal and State Securities files and talking with investigators, victims and insiders,” and comments further: “Some legitimate Schedule D firms are operating, but few in Texas.” Schedule D offerings are described in the series of stories as schemes to sell interests in “junk wells” to investors outside the state. The impression is given that most of these offerings are fraudulent schemes to get money from unsuspecting “suckers” in distant states, who are willing to “take a chance” in the hope of sharing in fabulous Texas oil riches, but who seldom, if ever, realize any return from their investments. A characterization of the Schedule D exemption as a “license to steal” is attributed to “government securities investigators.” Detailed complaints of individual investors are related, and information is attributed to investigative personnel of the Securities and Exchange Commission and the securities regulation agencies in various states, including Texas. Many operators other than the plaintiffs are named. Some'of the plaintiffs are listed as operators against whom “cease and desist” orders have been issued in other states. One of the stories names a “consultant” to plaintiff Dallas Oil and Gas, Inc., as “a Dallas man who, in the words of law enforcement authorities, is an associate of organized crime figures on the West coast.” This story gives an. account of a personal interview with this “consultant.”

Some of the information in these stories is attributed to sources that appear to include the defendants. For instance, a “state securities agent” is quoted as saying, “Most Schedule D promoters would not get approval of their offerings to investors under Texas’ fair, just and equitable standards.” Likewise, a “Texas Securities Board attorney” is quoted as saying, “Once you get a Schedule D victim hooked, there are so many ways you can skin him.” Defendant Mouer, the Securities Commissioner, is given as the source of statements that sales by Schedule D firms in Dallas and Houston are “very substantial,” that “most Schedule D offerings are just awful,” and that “anybody who’s been around the oil and gas business would know that these are ripoffs.” Defendants Mouer and Flanary are quoted concerning a “new policy” of the State Securities Board, which will “spell out new, strict standards for regulation of Schedule D firms based in Texas but selling to investors in other states.”

The record contains no evidence that any of the information contained in these articles was obtained by defendants from plaintiffs or any other Schedule D operators in the course of an investigation of their affairs. Plaintiffs contend on this appeal that “narrow evidentiary rulings” of the trial judge denied them the opportunity to develop such evidence. We turn now to the points which complain specifically of these rulings.

Exclusion of Evidence

1. Newsmen’s Sources.

Plaintiffs’ second point complains of the court’s refusal to compel newsmen witnesses to reveal their sources. Defendants reply that this ruling was correct because a newsman is privileged to protect the confidentiality of his sources against disclosure in a civil case under the guaranty of freedom of the press in the First Amendment to the Constitution of the United States. We need not determine the existence and scope of this alleged constitutional privilege because we find that the constitutional issue is not squarely presented in this record.

The only newsman actually called as a witness for plaintiffs was Bill Waldrop, a reporter for the Dallas Times Herald, and not one of the reporters that had written the series in the Dallas Morning News. Waldrop had written a story which appeared in the Times Herald on August 26, 1975, the day before the temporary injunction hearing began. This story states that Guy Wynn, an officer of one of the plaintiffs, who was expected to appear at the hearing the next day, was under guard by the Texas Rangers because of threats on his life. The story states further: “Texas Rangers were notified Sunday of threats against Wynn, an informed source said, after several calls were made to the man and his family.”

Toward the close of the hearing, plaintiffs’ counsel called Waldrop to the stand, showed him a copy of this story, and called his attention to the reference to “an informed source.” Counsel then asked Wal-drop “who that informed source was.” Waldrop advised the court that he did not choose to answer the question because the information was confidential. His attorney then addressed the court and claimed a constitutional privilege. The court ruled that the witness had the right to refuse to answer under the First Amendment to the United States Constitution.

We find no reversible error in the exclusion of this evidence. Regardless of the question of privilege, the testimony was not shown to be relevant to the issues at the temporary injunction hearing. Plaintiffs made no suggestion that if the witness should identify the “informed source,” they would undertake to show that the information concerning the alleged threat on Wynn’s life was or could have been obtained in the course of defendants’ investigation of the affairs of Schedule D operators rather than from Wynn’s own voluntary disclosure to defendants or to others. Wynn himself had previously testified as a witness for plaintiffs, but counsel for plaintiffs had asked him no questions concerning threats on his life. Counsel had interrogated him about certain written statements he had made, but the content of these statements was not offered in evidence. The record indicates that counsel’s interrogation of Waldrop was an attempt to rebut a suggestion that plaintiffs had induced Wynn to change his testimony. The judge excluded any further interrogation along this line as irrelevant to the issues at the temporary injunction hearing. Plaintiffs’ counsel made no representation to the court that the question concerning the source of Waldrop’s information was likely to elicit testimony showing that any of the defendants had disclosed confidential information to the press. Under these circumstances we conclude that the trial court had discretion to exclude this matter at the temporary injunction hearing.

Different questions are raised with respect to the proposed testimony of the reporters Golz and Cranfill, who had written the series in the Dallas Morning News, but were not called as witnesses. After sustaining Waldrop’s objection to the question put to him concerning identity of his “informed source,” the judge announced that this ruling would apply “to any other newspaper reporters presented to this court concerning confidentiality of their sources for the limited purpose of this hearing.” Counsel then announced to the court that in that case plaintiffs would not call reporters Golz and Cranfill “because principally we wanted to interrogate them about the sources of the articles and stories that they wrote.” Counsel made no bill of exception showing any particular questions he intended to ask Golz or Cranfill. He did file with the clerk a paper styled “Proffer of Proof,” which contains, among other matters, the following:

Further, Plaintiffs would respectfully urge the Court to permit Plaintiffs to examine Dallas Morning News reporters Earl Golz and John Cranfill in depth about the manner and means in which they obtained information used to write and publish various articles and stories about Schedule D oil and gas operators and the Plaintiffs in particular, such articles and stories appearing before the filing of this suit and after such filing. Consistent with the law, Plaintiffs desire to interrogate such reporters about the sources of the information for such articles and stories. Since those stories and articles contained derogatory and false information about all Schedule D operators, such derogatory and false information had and continues to have a severe adverse impact on Plaintiffs and their businesses.

We hold that no reversible error is shown in this respect. Plaintiffs made no attempt to show the judge that any of the proposed interrogation would have been relevant to the issues at the injunction hearing. Neither at the time of the court’s ruling nor in their “Proffer of Proof” did plaintiffs give any indication that their purpose was to show that defendants had disclosed confidential information to the press. Rather, the “Proffer of Proof” indicates that plaintiffs’ purpose was to obtain evidence establishing that the derogatory information in the series of stories in the Dallas Morning News was false. Whether plaintiffs are entitled to disclosure of the newsmen’s sources in their suit for damages for defamation is a question not presented on this appeal from denial of a temporary injunction. Evidently the proposed inquiry would have gone far beyond any public disclosure of information obtained by defendants in the course of their investigation of plaintiffs and other Schedule D operators.

In reviewing the trial court’s exclusion of evidence, we are governed by the requirement that the excluded evidence must be shown to be relevant and also by the rule that when testimony offered is partly admissible and partly inadmissible, and the offering party fails to point out the admissible part and offer it separately, he cannot complain if the whole is excluded. Robinson v. Stuart, 73 Tex. 267, 11 S.W. 275 (1889); Hanover Insurance Co. v. Peyson, 373 S.W.2d 701 (Tex.Civ.App.—Fort Worth 1963, no writ); Texas Co. v. Andrade, 52 S.W.2d 1063 (Tex.Civ.App.—Dallas 1932), aff'd on other grounds, Carter v. Texas Co., 126 Tex. 388, 87 S.W.2d 1079 (1935). Here plaintiffs proposed to interrogate the newsmen generally concerning their sources, which, according to the stories themselves, included many sources other than defendants. With respect to information obtained from defendants, plaintiffs did not propose to limit the interrogation to confidential information obtained by defendant from plaintiffs and other Schedule D operators under investigation. Consequently, under the above authorities, no reversible error is shown.

In this connection we cannot accept plaintiffs’ characterization of the trial court’s action in sustaining these objections as “narrow evidentiary rulings.” The judge was confronted with a claim of constitutional privilege. Although a newsman may not have a general privilege against disclosure of confidential sources in civil cases, even those courts which have denied the privilege have done so on considerations of balancing the public interest in the free flow of information against other important interests. Carey v. Hume, 160 U.S.App.D.C. 365, 492 F.2d 631, 636 (1974); cf. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). Disclosure will not be compelled in absence of a concern so compelling as to override the rights of freedom of speech and press. Baker v. F & F Investment, 470 F.2d 778, 785 (2d Cir.1972). In order to weigh properly the interests of plaintiffs in the disclosure sought in the present case against the public interest in full information, the judge was justified in requiring a strict showing that the testimony would be relevant and admissible before requiring the disclosure. No such showing appears in this record.

2. Exclusion of News Stories

Plaintiffs’ third point complains of the court’s refusal to admit in evidence as against defendants McGregor and Flanary individually the news stories attached to the petition and described above. These stories were offered for the limited purpose of showing that they had appeared in a regularly-published newspaper and that they had been disseminated to the public. The stories were before the trial court and were admitted against some of the defendants for the purpose stated, but the judge sustained an objection on behalf of defendants McGregor and Flanary that they were “immaterial and irrelevant” to any issue at the temporary injunction hearing. Plaintiffs now contend that these stories were relevant and material “for the purpose of showing what confidential material was divulged and who divulged it,” although they made no such contention in the trial court when the evidence was offered. The stories appear to contain much information that was irrelevant to the issue of disclosure of confidential information by McGregor and Flanary, and plaintiffs made no effort to separate those portions of the stories that bore on that issue. Consequently, under the authorities above cited, plaintiff is in no position to complain of the exclusion.

Plaintiffs further contend that admission of these news stories was necessary to lay a predicate for subsequent inquiry into the alleged breach by defendants McGregor and Flanary of their confidential relationship with plaintiffs. Thus plaintiffs’ principal complaint here is not the exclusion of the stories themselves, but rather the denial of plaintiffs’ opportunity to establish other facts relevant to their claim for injunctive relief against defendants McGregor and .Flanary.

We find no reversible error here because plaintiffs did not establish what they expected to show by the further inquiry. They made no bill of exceptions establishing the nature of the proposed inquiry and made no request to the judge for permission to interrogate any witness concerning the newspaper stories for the purpose of such a bill. Since the stories were admitted without objection with respect to the other defendants, it is difficult to see how their exclusion as against McGregor and Flanary actually prevented plaintiffs from pursuing any relevant line of interrogation.

Moreover, the record contains no suggestion that plaintiffs expected to prove that any of the information included in the stories was the same as the information obtained from plaintiffs or from any other Schedule D operators under investigation. In fact, the only investigation of plaintiffs shown by the record occurred on August 5, 1975, after the series by Golz and Cranfill were published, when defendants McGregor and Flanary visited the offices of plaintiff Landmark Petroleum, Inc. Under these circumstances we hold that plaintiffs have not shown that the court’s ruling concerning these stories prevented them from presenting any relevant evidence at the temporary injunction hearing.

3. Fianary’s Radio Broadcast

Plaintiffs’ fourth point complains of the exclusion of testimony concerning defendant Fianary’s appearance on radio station KRLD. They assert that testimony concerning Fianary’s statements in this radio interview was necessary to establish the alleged illegal disclosure of confidential information and the substantial adverse impact on plaintiffs’ business.

Our review of the record fails to show any questions to Flanary which, if answered favorably to plaintiffs, would have tended to establish these allegations. Only two instances of exclusion of testimony concerning the radio broadcast are mentioned in plaintiffs’ brief. In the first, Flanary had testified, in answer to questions by plaintiffs’ counsel, that plaintiffs invest “very little of their own money” in the wells that they drill. Counsel then began a question: “In your statement on the KRLD broadcast, that you had no information—.” Defendants interrupted with an objection, which was sustained. The question was never completed for the record. In the second instance, Flanary had testified that none of the plaintiffs had ever registered their Schedule D offerings with the State of Texas and also that some applications for registration had been made by Schedule D operators but none of the offerings had ever been registered. Counsel then asked, “That’s a different answer than you gave on the radio talk show, isn’t it?” Here another objection was sustained.

The evident purpose of both of these questions was to show that Flanary made statements on the broadcast inconsistent with his statements on the stand. However, neither of the questions appeared to concern disclosure of confidential information. In the first instance, counsel apparently intended to show that Flanary had said on the radio that he had no information on matters he was testifying about. The question, as far as it goes, does not appear calculated to elicit an admission that he had disclosed confidential information on the broadcast. The second instance appears to concern matters of public record voluntarily filed with the State Securities Board rather than any confidential information obtained as a result of investigation. Thus neither of the questions to which objections were sustained appears to have had a direct bearing on the issue of disclosure of confidential information. We are not advised what other questions plaintiffs would have propounded to Flanary about the radio interview. In temporary injunction- appeals, as in other appeals, a proper bill of exception is necessary to review of the trial court’s rulings on matters of evidence. See Hunt v. Merchandise Mart, Inc., 391 S.W.2d 141, 146 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.). Consequently, we find no abuse of discretion in this respect.

4. Defendants’ Statements to Newsmen

Plaintiffs’ fifth point of error complains of exclusion of the testimony of defendants Mouer, Flanary, and McGregor about whether they had made certain statements concerning Schedule D operators which had appeared in the series of stories in the Dallas Morning News. The record reveals that counsel for plaintiffs was allowed to ask each of the defendants about statements he had made to the reporters Golz and Cranfill concerning plaintiffs specifically, but that objections were sustained when the questions concerned Schedule D operators in general or “all Schedule D operators.” Plaintiffs argue that any statement concerning “all Schedule D operators” necessarily included them, and consequently, that the court erred in excluding this testimony.

We find no error in the court’s rulings on these objections. Plaintiffs failed to point out to the judge what bearing the excluded testimony would have had on the issues at the temporary injunction hearing. Counsel explained that any general statement concerning “all Schedule D operators” necessarily included plaintiffs, but even if this point be conceded, the relevancy of the testimony is not established. Statements made by defendants to the press would not afford grounds for injunction unless such statements contained information obtained by defendants in the course of an investigation under the Texas Securities Act and made confidential by the provisions of article 581-28. Plaintiffs wholly failed to prove that defendants had obtained any information from plaintiffs or any other Schedule D operator under investigation which, if disclosed to the public, would have harmed plaintiffs’ business. So far as the record shows, all derogatory information which appeared in the news stories in question may have been obtained from sources other than those protected as confidential. In fact, plaintiffs offered no evidence tending to show what information, obtained as a result of investigation under the Act, would have harmed plaintiffs if disclosed to the public.

If there is doubt concerning relevancy of evidence, offering counsel must specify the purpose for which it is offered or other facts necessary to render its admissible. Willis v. Sanger, 15 Tex.Civ.App. 655, 40 S.W. 229, 232 (San Antonio 1897, writ ref’d); 1 C. McCormick & R. Ray, Texas Evidence § 21, at 19 (2d ed. 1956). If plaintiffs intended to show that any of the statements made by defendants to the reporters included information obtained from operators under investigation, counsel had the duty to advise the judge that plaintiffs intended to supply this essential element of their proof. As the record stood, the judge had no reason to suppose that any statement by defendants to the press concerning “all Schedule D operators” would have included any information made confidential by article 581-28. Plaintiffs’ cross-examination of defendants in this matter indicates to us, as it probably did also to the trial judge, that counsel was merely attempting to fix responsibility on defendants for defamatory statements in the press. Although defendants’ responsibility for defamatory statements may have been a relevant inquiry in plaintiffs’ action for defamation, it had no bearing on the issue of unauthorized disclosure of confidential information without proof that the information in the statements was, in fact, confidential. Consequently, we find no reversible error in the judge’s exclusion of this testimony at the temporary injunction hearing.

5. Attorney-Client Privilege

Plaintiffs’ sixth point complains of the court’s exclusion of testimony concerning discussions between defendants Flanary and McGregor. The court sustained objections to this testimony on the ground of the attorney-client privilege. Plaintiffs contend that there is no showing that the discussions between Flanary and McGregor were intended to be secret, and, therefore, no basis for the claim of privilege. Plaintiffs assert that their purpose in this line of inquiry was to establish their injury and probable right to injunction regarding harassment, intimidation and threats by the defendants.

We find no abuse of discretion in the court’s exclusion of these discussions. The two discussions inquired about took place shortly before and shortly after defendants Flanary and McGregor visited the offices of plaintiff Landmark Petroleum, Inc. on August 5, 1975. Flanary testified that he and McGregor and two other persons decided at lunch on that day to visit the offices of plaintiff Landmark. It was a “joint decision,” he said. Counsel for plaintiffs then asked, “Who was in charge of the group?” Counsel for defendants then took the witness on voir dire and brought out that defendant Flanary was acting as attorney for the Securities Board and its employees, including defendant McGregor, and that the defendants had not waived their privilege against disclosure of confidential communications. The objection on the ground of the attorney-client privilege was sustained, and plaintiffs made no representation to the court as to what line of testimony he intended to pursue.

Later, when defendant McGregor was on the stand, he was asked what he and Fla-nary and the others discussed after the visit to Landmark. Defendants’ counsel objected to conversations between Flanary and McGregor and the other employees of the Securities Board on the ground of the attorney-client privilege, and this objection was sustained as to any conversation between Flanary and McGregor. Once again, counsel made no representation to the court concerning his purpose in asking the question, and he did not state for the record any further questions which he proposed to ask defendant McGregor.

Plaintiffs contend that there is no evidence that McGregor was seeking legal advice from Flanary and that both were involved in an investigation in which Flanary was acting as an investigator rather than as an attorney, and that there was no proof that McGregor expressed any desire for confidence and secrecy. We are unwilling to hold that a lawyer is acting outside his capacity as an attorney when he is acting for his client in investigating a possible violation of law. Neither do we hold that a conference between an attorney and client in the course of such an investigation does not fall within the privilege against disclosure of confidential communications. Here the indicated inquiry was so general that we are unable to determine whether the privilege was applicable. We are also unable to determine whether the proposed inquiry was relevant to any issue at the temporary injunction hearing. The answer to the question to Flanary, “Who was in charge of the group?” could not have been controlling at the temporary injunction hearing, and the record does not show what further line of interrogation would have been pursued if the judge had allowed it. Likewise, the question to McGregor concerning the “nature of the discussion” between McGregor and Flanary after the Landmark visit was extremely general. Some of the discussion at that time may have been within the privilege and some may not have been. Here McGregor was the client, and McGregor was claiming the privilege. We are unable to determine whether the privilege was applicable, or whether the proposed line of inquiry was relevant to the issue at the hearing, without more specific information in the record concerning the questions which plaintiffs intended to ask. In the absence of a bill of exception showing more specifically what the proposed inquiry would have been, we find no reversible error in the judge’s ruling.

Jurisdiction of Suit against Flanary and McGregor

Defendants have filed a cross-point in which they contend that the judge erred in failing to dismiss defendants Flanary and McGregor from the action upon their plea to the jurisdiction. We cannot consider this point because, as we have pointed out with respect to the dismissal of defendants Mouer and Ellisor, our jurisdiction on this interlocutory appeal is limited to the propriety of temporary injunctive relief.

Affirmed.


source: Caselaw Access Project

author: ELLIS, Chief Justice.

license: Public Domain

text:
    Nita L. DeGRASSI, Appellant, v. William M. DeGRASSI, Appellee.
    No. 8578.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 12, 1976.

      Clayton & Stubblefield, Cleo G. Clayton, Jr., Amarillo, for appellant.
    Robert R. Sanders, Amarillo, for appellee.
   ON MOTION FOR REHEARING

ELLIS, Chief Justice.

Our opinion issued on November 24, 1975, is withdrawn, and the following opinion, issued subsequent to appellant’s motion for rehearing, is substituted therefor:

This is an appeal brought by Nita L. DeGrassi, defendant-appellant, from the judgment of the trial court in a trespass to' try title suit. Judgment was rendered by the District Court of Potter County, Texas, that plaintiff-appellee, William M. DeGras-si, is the owner of title to the residential real estate located at 2601 Bowie Street in Amarillo, Texas and that he is entitled to possession thereof. Affirmed.

Appellee filed this trespass to try title suit against appellant claiming by virtue of a deed jointly executed and duly acknowledged on December 23, 1970, by his father Hollis B. DeGrassi, Sr. and Nita L. DeGras-si, as grantors, to appellee as grantee. The residential real estate situated in Potter County, Texas, and described in the deed was acquired by Hollis B. DeGrassi, Sr. prior to his marriage to the appellant. The property had been used as the home of Hollis B. DeGrassi, Sr. and appellee’s mother, Martha DeGrassi, for approximately 17 years. Martha DeGrassi died in January, 1966, and Hollis B. DeGrassi, Sr. married Nita L. DeGrassi in September, 1966. Hollis B. and Nita L. DeGrassi lived on the property until the death of Hollis B. De-Grassi, Sr. in January, 1972.

At the time of the execution of the deed here involved, appellee was in Germany but returned in February, 1971. The deed was duly recorded by Hollis B. DeGrassi, Sr.

After the death of Hollis B. DeGrassi, Sr., appellant continued to live at the residence. In August, 1974, appellee notified appellant that he wished to sell the home. Subsequently, appellant refused to vacate the premises.

Judgment in favor of plaintiff-appellee was based upon the jury’s response to two special issues. These issues, together with the court’s instructions, and the jury’s answers are set out as follows:

“SPECIAL ISSUE NO. X
“Do you find from a preponderance of the evidence that the deed dated the 28rd day of December, 1970 was signed by Nita L. DeGrassi and delivered to Hollis B. DeGrassi by reason of undue influence exercised upon her by Hollis B. DeGrassi?
Answer ‘We do’ or ‘We do not’.
Answer We do not
“In connection with the above issue, you are instructed that the term ‘undue influence’ means such influence or dominion by excessive importunity, imposition, or fraud at the time of the signing and delivering the deed, as destroys the free agency of the person signing and delivering the deed and overcomes her wishes in regard to the disposition of her property to such an extent that the deed does not in fact express her wishes as to the disposition of her property, but those of the person or persons exercising the influence.
“You are further instructed that not every influence exerted by one person over the mind of another may be classed as undue influence. Persuasion, entreaty, importunity, argument, intercession, and solicitation are permissible and do not constitute undue influence unless they subverted and overthrew the will of the person to whom they are directed.”
“SPECIAL ISSUE NO. 2_
“Do you find from a preponderance of the evidence that the deed in question was not delivered to William B. DeGras-si?
Answer ‘it was delivered’ or ‘it was not delivered’.
Answer: It was delivered
“You are instructed that ‘delivery’ of a written instrument is a parting with the possession or custody thereof with the intention that the same become immediately operative.
“In connection with the foregoing issue, you are instructed that no particular form or actions is necessary to constitute delivery of a deed and manual delivery of a deed is not necessary to constitute delivery.
“The signing, acknowledgement and recording of a deed is prima facie evidence of delivery of a deed, and in the absence of a showing to the contrary, the presumption of delivery prevails.
“The burden of proof is upon the person challenging the presumption to show, by a preponderance of the evidence, that there was no delivery of the deed.”

Appellant’s twenty-two points of error complain of the issues and instructions submitted to the jury, of the factual and legal insufficiency of the evidence to support the jury’s findings, of the failure of the trial court to obtain the findings necessary to support its judgment, and of the failure of the trial court to admit certain testimony.

In points of . error numbers 1, 2, 3, 9, and 10, appellant contends that special issue number one erroneously placed upon her the burden of proving undue influence. Appellant further challenges the language of the explanatory instructions defining undue influence given with reference to special issue number one.

Appellant contends that the husband-wife relationship between her and Hollis B. DeGrassi, Sr. at the time of the execution of the deed gave rise to a presumption of unfairness which appellee, the grantee under the deed, must overcome. The cases cited by appellant as support for this contention are factually distinguishable from the instant case. These cases involve husband-wife, attorney-client, or certified public accountant-client relationships, where, under the facts and circumstances of the particular transactions between the parties, the one with superior knowledge was in a position to take an unfair advantage over the one whose confidence he possessed in their particular fiduciary relationship, thereby creating a presumption of unfair dealing which the one with the superior knowledge was required to overcome. In the instant case the appellant sought and received independent legal advice from an attorney in another city concerning her rights and the advisability of her executing the deed. The jury was entitled to find that she considered this advice, was aware of her legal position and made her own assessment of the situation before she executed the deed, which execution the jury found was not by reason of undue influence (which under the instruction included fraud) exercised upon her by her husband. Thus, it is our opinion that under the existing facts and circumstances, this transaction was not such as to raise a presumption of unfair dealing on the husband’s part, and that the cases cited by appellant are not controlling here.

The evidence raised the issue of undue influence as submitted to the jury and the instruction fairly defined undue influence in accordance with the evidence as presented in this case. In Long v. Long, 133 Tex. 96, 125 S.W.2d 1034 (1939), a will case, the Supreme Court recognized that the manner in which the question of undue influence is submitted to the jury depends upon the facts of each case. Also, it is recognized that the rules for determining the existence of undue influence apply substantially in the same manner to wills, deeds and other written instruments. Martindale v. Martindale, 366 S.W.2d 665 (Tex. Civ.App.—Amarillo 1963, writ ref’d n. r. e.); Self v. Thornton, 343 S.W.2d 485 (Tex.Civ.App.—Texarkana 1960, writ ref’d n. r. e.).

It is contended that the trial court should have submitted the issue in the form requested by the appellant. The issue requested by appellant would have placed the burden upon appellant to establish by a preponderance of the evidence that the execution of the deed was accomplished by reason of undue influence practiced upon appellant by her husband. We note that the burden of proof in the requested issue was placed in the same manner by the issue submitted to the jury.

There was evidence in this ease that Hollis B. DeGrassi, Sr. had discussed the disposition of his properties for some time prior to December 23, 1970, and that appellant was aware of her husband’s intent. Additionally, there is the undisputed testimony that appellant sought independent advice from an attorney in another city as to whether she should join her husband in the conveyance to appellee. The only testimony tending to establish undue influence was from appellant. The weight and credibility of all the evidence was for the jury to determine. Based upon a consideration of all the evidence, we think the instruction of the trial court was proper in requiring that in order to constitute undue influence, persuasion, entreaty, importunity, argument, intercession, and solicitation must subvert and overthrow the will of the person to whom they are directed. Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208 (1954); Long v. Long, supra.

From a review of the pleadings and the evidence, we have concluded that the submission of special issue number one and the instructions accompanying it were proper in all essential respects. Points of error numbers 1, 2, 3, 9, and 10 are overruled.

In points of error numbers 4 through 6, appellant complains of the submission to the jury of special issue number two and of the refusal of the trial court to submit appellant’s requested special issue number one. The issue requested by appellant would have placed the burden of proof upon appellee to establish that the deed was delivered with the intent that it should become operative as a conveyance of the home. Specifically, appellant contends that special issue number two, as submitted, erroneously placed upon her the burden of defeating prima facie delivery of the deed evidence by the undisputed testimony of the signing, acknowledging, and recording of the deed.

The issue submitted to the jury properly placed the burden of proof upon appellant to defeat delivery of the deed to appellee. Manual delivery of a deed to the grantee or his agent is not required to effect delivery. Earl v. Mundy, 227 S.W. 970 (Tex.Civ.App.—El Paso 1921, writ ref’d); Hayes v. Pennock, 192 S.W.2d 169 (Tex.Civ.App.—Beaumont 1945, writ ref’d n. r. e.). Indeed, the law prescribes no particular form of action or words necessary to constitute delivery of a deed. Taylor v. Sanford, 108 Tex. 340, 193 S.W. 661 (1917); Tyler v. Bauguss, 148 S.W.2d 912 (Tex.Civ.App.—Dallas 1941, writ dism’d jdgmt. cor.). Whether a deed has been delivered is a question for the jury’s determination, Ragland v. Kelner, 148 Tex. 132, 221 S.W.2d 357 (1949), and the question is primarily one of the grantor’s intent. Taylor v. Sanford, supra; Henry v. Phillips, 105 Tex. 459, 151 S.W. 533 (1912).

The question of appellant’s intent to deliver the deed was fairly presented in special issue number two. The rebuttable presumption of delivery created by uncon-tradicted evidence of the signing, acknowledgment and recordation of the deed by Hollis B. DeGrassi, Sr., was not overcome by appellant. Gravis v. Rogers, 214 S.W.2d 886 (Tex.Civ.App.—Austin 1948, writ ref’d n. r. e.); Callaway v. Callaway, 23 S.W.2d 808 (Tex.Civ.App.—Fort Worth 1930, no writ). Points of error numbers 4 through 6 are overruled.

Appellant, in points of error numbers 7, 8, and 11 through 17, challenges the factual and legal sufficiency of the evidence to support the jury’s response to special issue number two. The evidence is ample to support the response to special issue number two. There was undisputed testimony that appellant’s husband, a grantor under the deed, delivered the deed to the clerk of Potter County, Texas, for recordation on January 26, 1971. There was also evidence that appellee paid the insurance premiums on the residential property during the time that appellant lived alone at the residence.

At a meeting of family members at the bank after the death of Hollis B. De-Grassi, Sr., a safety deposit box rented in the name of appellees’ brother to which both the brother and Hollis B. DeGrassi, Sr. had access, was opened and its contents inventoried. At that meeting, the deed in question was listed as being owned by ap-pellee. Appellant and appellee orally agreed at the meeting that appellant would not be required to vacate the premises, but could remain there until appellee needed the property. At the meeting appellant made no claim of ownership of the property. There was testimony that appellant, after paying the taxes for one year, directed the tax assessor-collector to send all tax statements to appellee, and testimony that, upon being informed of appellee’s desire to sell the property, appellant requested of appellee that he list the house for sale with a realtor friend of appellant. All these circumstances support the finding of the jury in special issue number two that the deed was delivered to appellee with the intent that it would become immediately operative. The only evidence of non-delivery was from testimony by appellant. The question of intent to deliver is one of fact for the jury, based upon all the facts and circumstances. More v. More, 7 S.W.2d 1096 (Tex.Civ.App.—San Antonio 1928, writ ref’d). Points of error numbers 7, 8, and 11 through 17 are overruled.

By points of error numbers 18 through 21 appellant challenges the matter of consideration to appellant for the conveyance and the lack of a finding of the appellant’s authorization or ratification of delivery of the deed in question. From the record we note that appellee objected to testimony elicited as to consideration insofar as such testimony would have the effect of diminishing the estate granted by the plain language of the deed. The effect of the testimony as to consideration was to reserve in appellant a homestead right, contrary to the plain language of the deed which expressed no reservation. Under this deed the grantors acknowledged the receipt of good and valuable consideration, and the rule permitting parol proof to explain consideration is not applicable if the effect is to limit, qualify or impose a condition upon the estate conveyed. Russell v. Russell, 132 Tex. 73, 120 S.W.2d 793 (1938); Morriss v. Hesse, 231 S.W. 317 (Tex.Comm’n App.1921, jdgmt. adopted).

Appellant alleges that the conveyance to appellee was a pretended gift. The plain language of the deed contains no reservation or exception limiting the estate granted. In view of the evidence discussed above as to the actions of the parties to the conveyance and in view of the issues submitted inquiring of the grantors’ intent, the jury findings established that the delivery of the deed was intended to make it immediately operative as a conveyance. Also, appellant contends in point number 20 that there was no valid delivery of the deed as to the appellant without her assent or ratification. In view of the trial court’s instructions and the jury’s response to special issue number two which, in effect, established that delivery was fully accomplished and that the deed was immediately operative as a conveyance to the grantee, it is our opinion that no further assent or ratification by the appellant was required. We note that an issue as to her ratification was conditionally submitted and was to be answered by the jury only in the event the jury had found undue influence in response to special issue one, or that the deed had not been delivered in response to special issue number two. Since the jury did not find either undue influence or that the deed had not been delivered, the jury, in accordance with the trial court’s instructions, made no answer to the question of ratification of the deed by the appellant.

The occupancy of the residence by the grantors after the conveyance was with the permission of appellee and constituted a tenancy at will. That the grantors paid no rent for their occupancy does not affect the existence of the landlord-tenant relationship. Philadelphia Trust Co. v. Johnson, 257 S.W. 280 (Tex.Civ.App.—Beaumont 1923, writ dism’d). Further, contrary to appellant’s contention, Tex.Const. art. XVI, § 50 has no application to the facts of the instant case. In Anglin v. Cisco Mortg. Loan Co., 135 Tex. 188, 141 S.W.2d 935 (1940), cited by appellant in support of her contention, the Supreme Court stated that it is the pretended sale intended as a security for certain debts which is prohibited by the constitution. No such circumstances exist in this case.

Points of error numbers 18 through 21 are overruled.

In point of error number 22 appellant complains of the failure of the trial court to admit the testimony of a certain witness who would have testified explaining why Hollis B. DeGrassi, Sr. kept the deed in his possession after its execution and recordation. The effect of the offered testimony would have been to vary the express terms of the deed. Also, this evidence would be hearsay as to appellee. The testimony as to a conversation which has reference to a grantor’s intent after execution of the deed was properly excluded. Callaway v. Callaway, supra. Point of error number 22 is overruled.

For the reasons above stated, the judgment of the trial court is affirmed. Appellant’s motion for rehearing is overruled.


author: KLINGEMAN, Justice.

text:
    Alice WALKER Individually and as next Mend of David Michael Walker and Kimberly Walker, children, Appellant, v. Harry SHEAVES, Appellee.
    No. 15421.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 14, 1976.
    Rehearing Denied Feb. 11, 1976.

      Thomas Rocha, Jr., Rocha, Tutt & Rosenberg, San Antonio, for appellant.
    George A. Rigely, Jason W. Chozick, Davis, Rigely & Fagan, Inc., San Antonio, for appellee.
   KLINGEMAN, Justice.

Petitioner, Alice Walker, individually and as next friend of her children, David Michael Walker and Kimberly Walker, appeals from a judgment that she take nothing by her suit against respondent, Harry Sheaves, for arrears in child support payments. Trial was to the court without a jury, who granted respondent’s motion for instructed verdict, after petitioner had rested her case.

Petitioner and respondent were divorced on March 21, 1967 in Cause No. 717162, styled Alice Sheaves vs. Harry Sheaves, in the Court of Domestic Relations No. 4 of Harris County, Texas. Petitioner was given custody of three minor children: David Michael, Kimberly, and Lynette. Respondent was ordered to pay $325 per month child support payments for the three children, and respondent was granted specific visitation rights with regard to the three children.

Alice Sheaves was thereafter married to Willis Walker. Respondent allegedly stopped making child support payments in 1970. Lynette Walker was married on March 14, 1974 and became 18 years of age on June 2, 1974.

Prior to June 6,1974, Alice Walker filed a proceeding in the District Court of Bexar County, Texas to terminate the parent-child relationship between Harry Sheaves and David Michael and Kimberly Walker; and on June 14, 1974, the court terminated the parent-child relationship between Harry Sheaves and such children. Petitioner also filed a petition seeking a judgment for past-due child support on the same day as she filed the proceedings to terminate the parent-child relationship.

On June 5, 1974, in Cause No. 717162, in the Court of Domestic Relations No. 4 of Harris County, Texas, Harry Sheaves filed a motion seeking to have Alice Walker held in contempt of court for violation of the visitation portions of the divorce decree. The Harris County Court, on July 26, 1974, overruled the motion for contempt, holding that all matters pertaining to the minor children with regard to Harry Sheaves had become moot, because Lynette Walker had been emancipated by marriage, and because the parental rights of Harry Sheaves as to David Michael and Kimberly Walker had been terminated by court order.

Petitioner’s pleading on which she went to trial in the proceeding herein seeks four types of relief: (1) that respondent be held in contempt for failure to comply with the child support provisions of the divorce decree; (2) a judgment for debt for unpaid child support payments, alleged to be in the approximate amount of $15,000.00; (3) a support order under the Uniform Reciprocal Child Support Act; (4) a money judgment for necessities allegedly furnished Lynette Walker by petitioner and her husband, Willis Walker.

The trial court made extensive findings of fact and conclusions of law which we do not deem necessary to set forth in full. In general, the court found that (1) all rights, duties, and obligations arising out of the parent-child relationship between Harry Sheaves and David Michael and Kimberly Walker were terminated on June 14, 1974 by the court decree of the District Court of Bexar County, Texas; (2) all rights, duties and obligations arising out of the parent-child relationship between Harry Sheaves and Lynette Walker terminated on the date of the marriage of Lynette Walker; (3) neither Alice Walker or her husband, Willis Walker, are entitled to recover any expenditures made by them for Lynette Walker, because such expenditures were made voluntarily without any exception of reimbursement; (4) the only court having jurisdiction to hold respondent in contempt of court is the court whose order is alleged to be violated; (5) the judgment of the District Court of Harris County, Texas, in the contempt proceedings for violation of visitation rights, was res judicata of all matters and issues involved in the herein suit, and was binding and conclusive on petitioner under the doctrines of res judicata and es-toppel by judgment; (6) upon termination of the parent-child relationship of David Michael and Kimberly Walker and Harry Sheaves, and the marriage of Lynette Walker, the Court of Domestic Relations No. 4 of Harris County, Texas lost jurisdiction to enforce orders previously entered by that court concerning said relationship.

Petitioner asserts two points of error: (1) the trial court erred in holding that when the parent-child relationship is terminated, the termination absolves the parent whose rights are terminated of all responsibility for past-due child support payments; (2) the court erred in holding that respondent is not responsible to petitioner or her husband for child support arrearages pertaining to Lynette Walker.

We have concluded that the trial court erred in granting respondent’s motion for instructed verdict, and that this cause must be reversed. It is apparent from the trial court’s findings of fact and conclusion of law, that the court regarded this proceeding as solely a contempt proceeding. As here-inbefore pointed out, in addition to seeking to hold respondent in contempt, petitioner also sought a judgment for debt for all unpaid child support payments.

Although neither party placed much emphasis on the provisions of Section 14.09 of the Texas Family Code, we regard the provisions thereof applicable to the herein proceeding. Section 14.09 provides as follows:

(a) Any order of the court may be enforced by contempt.
(b) A court may enforce an order for support as provided in Rule 308A of the Texas Rules of Civil Procedure or any subsequent version of the rule promulgated by the supreme court.
(c) On the motion of any party entitled to receive payments for the benefit of a child, the court may render judgment against a defaulting party for any amount unpaid and owing after 10 days’ notice to the defaulting party of his failure or refusal to carry out the terms of the order. The judgment may be enforced by any means available for the enforcement of judgments for debts.
(d) A parent may be compelled to testify fully in regard to his ability to support the child.

This statute was construed in Harrison v. Cox, 524 S.W.2d 387 (Tex.Civ.App.—Ft. Worth 1976, writ ref’d n. r. e.). Mr. Harrison and Mrs. Cox were divorced in the Jack County District Court on October 27, 1970. The divorce decree awarded custody of the four children to the mother, and ordered Harrison to pay $350 a month as child support for the four children. On August 22, 1974 Mrs. Cox filed a proceeding in the divorce case pursuant to Section 14.09(c) of the Family Code, alleging that Harrison had not paid child support as he had been ordered to pay it in the divorce decree, and asking that she be awarded a judgment in the amount that the court had ordered, but which had not been paid. Judgment was awarded for $9,000.00. On appeal the appellate court affirmed the judgment. Harrison contended on appeal, among other things, that Section 14.09(c) is only applicable in circumstances where Section 14.09(a) (contempt) would also be applicable, arguing that the two remedies are options available to the court, but neither are justified unless the other was also justified. The Court of Civil Appeals, in overruling this point, stated:

We are convinced that the purpose of Art. 14.09 was to provide courts with efficient means of enforcing the payment of child support obligations and that the Legislature intended the different remedies provided by that Statute for the collection of child support to operate independently of each other as well as concurrently. In other words, it is not necessary for the facts in a case to be such that the court would be authorized to hold the defaulting parent in contempt of court before the court could render a judgment against him for delinquent child support payments as provided for in Art. 14.09(c).

Petitioner cites and relies on Ex Parte Hooks, 415 S.W.2d 166 (Tex.1967), in which it was held that a court can order child support until the child reaches 18, and has the power to enforce the child support order after the child reaches the age of 18 years. This was a contempt proceeding prior to the enactment of the Texas Family Code, and involved a construction of then existing Art. 4639a, Tex.Rev.Civ.Stat.Ann., which was the source of judicial authority to make judgments concerning child support. Hooks was in arrears in child support payments of approximately $4,000.00 at the time the youngest child reached 18. His sole contention on appeal was that the district court was powerless to enforce its order after the youngest child reached 18. The Supreme Court, in discussing the statute stated:

The statute is in two parts. The first part empowers the court to order periodical payments until the child reaches eighteen. The enforcement provision immediately follows the grant of powers to order the support. The statute limits orders for support to the pre-eighteen period; the enforcement provision, however, contains no such limitation. Instead, the statute states that the court shall have ‘full power and authority to enforce said judgments * * ⅜.’

The Supreme Court further said:

Hook’s contention infers a legislative intent that an order to pay accrued support payments would be wholly undone by the delinquent parent who, as Hooks has done, successfully persuades a judge to postpone payment of delinquent support payments until the child reaches eighteen. It would mean that a contemnor who is in jail by an order entered before a child reaches eighteen, must be discharged when the child becomes eighteen despite his continued contumacious conduct. It would mean that a delinquent parent, as a practical matter, could always escape the final payment of child support. We should cautiously attribute such reasoning to the Legislature.

In view of the provisions of Section 14.09 of the Texas Family Code, the authorities herein cited, and the record before us, we have concluded that the trial court erred in preemptorily granting an instructed verdict that petitioner take nothing by her suit.

Although we do not deem it necessary to discuss respondent’s various counter points, we have concluded that the judgment in the contempt proceedings in Houston involving visitation rights is not res judicata of all matters involved in the instant suit and was not binding and conclusive on petitioner on such matters under either the doctrines of res judicata or estop-pel by judgment. We have further concluded that the decree terminating the parent-child relationship between Harry Sheaves and David Michael and Kimberly Walker, did not have the effect of barring a suit for accrued unpaid child support payments against the defaulting party.

The judgment of the trial court is reversed and the cause is remanded for a new trial.

      . Petitioner also sought a support order under the Uniform Reciprocal Child Support Act, and a money judgment for necessities provided to Lynette Walker by her husband and herself. Petitioner concedes that during the trial she abandoned her claim for recovery under the Uniform Reciprocal Child Support Act, and under any contract theory as to the two minor children. Moreover, under the record before us, petitioner and her husband are not entitled to any recovery for necessities allegedly furnished to Lynette Walker.


author: PEDEN, Justice.

text:
    The TEXAS DEPARTMENT OF PUBLIC SAFETY, Appelant, v. Thomas James RYLAND, Appellee.
    No. 16606.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Jan. 15, 1976.

      Joe G. Resweber, County Atty., Richard I. Colton, Asst. County Atty., for appellant.
    No brief filed for appellee.
   PEDEN, Justice.

Thomas James Ryland was convicted of operating a motorcycle upon a public street without wearing upon his head protective headgear which had been approved by the Department of Public Safety of Texas. The question on appeal is whether this was a conviction of a moving traffic law violation. We hold that it was.

Mr. Ryland had earlier been found to be an habitual violator of the traffic laws of the state, under Article 6687b, Sec. 22(b)4, Vernon’s Texas Civil Statutes, and his license ordered suspended for two months, but the suspension was probated for six months conditioned upon his not being “convicted of any moving traffic law violation . . . during his probationary period ...”

Some months later, after a hearing in Municipal Court in Houston, Ryland’s probation was revoked and his operator’s license was ordered suspended because, during his probationary period, he had been convicted of operating a motorcycle without wearing a helmet. He appealed this suspension by filing suit in a Harris County Civil Court at Law. After a non-jury trial, the judge entered a judgment that included these findings:

That the Plaintiff Thomas James Ryland was convicted of the offense of operating a motorcycle on a public street or highway without protective headgear (helmet), and that said offense occurred during the period that the Plaintiff was on driver’s probation for being an habitual violator of the traffic laws of the State of Texas.
The Court further finds that the offense of operating a motorcycle on a public street or highway without protective headgear (helmet) is not a moving violation as contemplated by Art. 6687b, V.T. C.S.
And that, therefore, Plaintiff Thomas James Ryland did not violate the terms of his driver’s probation said terms requiring that Plaintiff is not to be convicted of any moving traffic violation which occurred during the time of said probation.

The Texas Department of Public Safety complains that the trial court erred in concluding that Ryland did not violate the terms of his probation because the failure to wear protective headgear while operating a motorcycle is not a moving violation of the traffic laws of this State. The appel-lee did not file a brief in this court.

Article 6701c-3, Sec. 2, V.T.C.S., provides:

Necessity of protective headgear

Sec. 2. After December 31, 1967, no person may operate a motorcycle on a public street or highway of this state unless he wears protective headgear which has been approved by the Department of Public Safety, nor may any person carry a passenger on a motorcycle on a public street or highway of this state unless the passenger wears protective headgear which has been approved by the Department of Public Safety, nor may any person ride as a passenger on a motorcycle on a public street or highway of this state unless he wears a protective headgear which has been approved by the Department of Public Safety.

In Texas Dept. of Public Safety v. Bonds, 493 S.W.2d 275 (Tex.Civ.App.1973, no writ), we did not reach the question here presented. We stated:

We find no statutory definition of the term “moving violations of the traffic laws,” but in several cases Texas appellate courts have passed on whether certain traffic offenses constitute moving violations. In Miller v. Texas Department of Public Safety, 375 S.W.2d 468 (Tex.Civ.App.1964, reversed on other grounds, Tex., 386 S.W.2d 760), the court held that the offense of driving without lights constituted a moving violation in contemplation of Art. 6687b, Sec. 22(b). Held not to be moving violations were “no brake lights”, in Dept. of Public Safety v. Guleke, 366 S.W.2d 662 (Tex.Civ.App.1963, no writ), and “double parking” in Texas Dept. of Public Safety v. Cumbow, 430 S.W.2d 552 (Tex.Civ.App.1968, writ ref.).

The Texas Court of Criminal Appeals held in Ex parte Smith, 441 S.W.2d 544 (1969) that Article 6701c-3 was designed and intended to promote the welfare and safety of the general public as well as the cyclist.

We think that by providing “no person may operate a motorcycle ... . unless he wears protective headgear . . . ,” the legislature contemplated that one must move a motorcycle to operate it. We hold that the offense constituted a moving traffic law violation and that the suspension of the operator’s license for two months should have been upheld.

Reversed and rendered.


author: COLEMAN, Chief Justice.

text:
    FIRST BANK & TRUST and Comfort Supply, Inc., Appellants, v. William H. GOSS et al., Appellees.
    No. 16613.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Jan. 15, 1976.

      Parrish & Parrish, Angelo Parrish, Houston, for appellant.
   COLEMAN, Chief Justice.

This is an appeal from a summary judgment discharging a garnishee in a post-judgment garnishment proceeding. The trial court determined, as a matter of law, that income accumulated in a spendthrift trust and payable to a beneficiary by the terms of the trust was not subject to garnishment while in the hands of the trustee. We agree.

The trust involved in this case was created by the will of Myrtle Matney, deceased grandmother of Benny L. Matney. By her will Mrs. Matney placed certain real property in trust for the benefit of two of her grandsons. She appointed William H. Goss trustee of the trust estate, with directions that he rent the property to himself as long as he desired to do so and at yearly intervals pay the net income to the beneficiaries. In the event he did not desire to use the property he was authorized to sell same and deliver the purchase price to her beneficiaries. Mr. Goss accepted the position of trustee and has been administering the trust as directed by the will. He for some years has been unable to locate Benny L. Matney by reason of which circumstance the sum of $3,528.10 has accumulated. Pursuant to directions contained in the will this money must be deposited at a bank in a savings account.

Garnishors First Bank & Trust and Comfort Supply, Inc. own an unsatisfied judgment against Benny L. Matney. They directed a writ of garnishment to William H. Goss as Trustee, who answered admitting possession of the funds but asserting that they are exempt from writs of garnishment by virtue of a spendthrift clause contained in the will of Myrtle Matney.

The spendthrift clause reads:

“I direct that the interests of the beneficiaries of any and all trusts hereunder shall not be subject or liable in any manner to or for their or any of their anticipations, assignments, sales, pledges, debts, contracts, engagements or liabilities, or subject or liable to attachment, execution or sequestrations under any legal, equitable or other process, prior to actual receipt by the beneficiary.”

The courts of Texas have recognized the validity of spendthrift trusts except where the settlor creates the trust and makes himself the beneficiary. Adams v. Williams, 112 Tex. 469, 248 S.W. 673 (Tex.1923).

In Adams v. Williams, supra, the court said:

“Mrs. Cooper, as the owner of the property in controversy, had absolute right to dispose of it by her will as she saw fit and to put upon the title thereto and upon the right to use and appropriate the same such limitations as she deemed proper, provided they were not in violation of law or against public policy. She had a right to devote her own property to promote and secure the welfare and comfort of her sister and to protect her against the vicissitudes of fortune. Mrs. Williams gave nothing for the benefits accruing to her under the will. Her ability to respond to the demands of her creditors was in no way lessened thereby. It was a pure bounty conferred by her sister, Mrs. Cooper, who had the right to prescribe the terms upon which such bounty should be enjoyed. Mrs. Cooper had the right to create a trust, to designate a trustee, and to put the property in his hands to be applied to the use, welfare, and comfort of her said sister, free from the demands of her said sister’s creditors . . .”

Where it appears from the terms of the instrument creating the trust that it was the donor’s or testator’s intention to create a trust estate immune from liability for the debts of the beneficiary and to prohibit its alienation by him during the term of the trust, a spendthrift trust is created, and the intentions of the donor or testator will be enforced by the courts of this State. Nunn v. Titche-Goettinger Co., 245 S.W. 421 (Tex.Comm.App., Section A, judgment adopted, 1922); Long v. Long, 252 S.W.2d 235 (Tex.Civ.App.—Texarkana, 1952, writ ref’d n. r. e.).

Neither the corpus nor the income of a spendthrift trust while in the hands of the trustee are subject to the claims of the creditors of the beneficiary. This is true not only of the corpus and future income but also the income which has already accrued in the hands of the trustee, but which has not been paid to the beneficiary. Huestis v. Manley et al., 110 Vt. 413, 8 A.2d 644 (1939); Hines v. Sands, 312 S.W.2d 275 (Tex.Civ.App.—Fort Worth, 1958, no writ history).

The intention of Mrs. Matney was clearly expressed in her will. She directed that the interests of the beneficiary in the trust should not be liable for the debts of the beneficiaries prior to the actual receipt of funds by the beneficiary. She further directed that the undistributed income should not be invested but should be deposited with the Harrisburg State Bank in savings to accumulate interest at the prevailing rate. She directed the trustee to collect the rents from the property and accumulate it until the end of each calendar year and at that time to pay from such rents all taxes, maintenance costs, and other valid debts. She directed that then the net income be divided equally, one-half to be paid directly to Benny Lawrence Mat-ney, the other half to be managed for the benefit of Charles Ray Matney. Mrs. Mat-ney foresaw that there might be years when the income would not be paid to the beneficiary as anticipated and provided for that contingency. The accumulated income remains a part of the res of the trust. It is an active trust. That provision of the will of Mrs. Matney directing that the interest of Benny L. Matney in the trust would not be subject to the demands of his creditors prior to the actual receipt by the said Benny L. Matney of the income or principal of the trust should be enforced. As the Supreme Court of Texas stated in State of California Department of Mental Hygiene v. Bank of the Southwest National Association, 354 S.W.2d 576 (Tex.1962):

“The ultimate issue in that case, however, as it is here, was the intent of the testator as reflected in the language of the trust instrument . . . ”

The appellants argue that Matney, presumably by virtue of his unavailability to receive the accrued income from the trust, has unilaterally altered the terms of the trust and by doing so, made himself the settlor of the accumulated income under his own revocable trust. We find no merit in this contention. As suggested above Mrs. Matney foresaw the possibility that the trust funds might not be distributed each year as she had directed and made provision for that contingency.

The judgment is affirmed.


author: CHADICK, Chief Justice.

text:
    Nancy PARHAM et al., Appellants, v. GLASS CLUB LAKE, INC., Appellee.
    No. 8323.
    Court of Civil Appeals of Texas, Texarkana.
    Jan. 20, 1976.
    Rehearing Denied Feb. 17, 1976.
    See also, Tex.Civ.App., 485 S.W.2d 796.

      J. R. Cornelius, Cornelius Law Firm, Jefferson, Old & Moye, Mt. Pleasant, for appellants.
    Leslie R. Echols, Cornett, Echols & Biard, Paris, for appellee.
   CHADICK, Chief Justice.

I.

This case was instituted in the trial court as a declaratory judgment action authorized by Tex.Rev.Civ.Stat.Ann. art. 2524-1. A summary judgment was entered and appellants Mrs. Nancy Parham, Mrs. May Bene-field and Joe Marvin Parham, Jr., the defendants below, have perfected an appeal. The judgment is affirmed.

II.

The appellants are successors in title to L. E. Parham and wife, Ruby Parham, who, on August 6, 1921, entered into a written land lease with trustees for appellee herein, Glass Club Lake, Inc., the plaintiff below. The lease embraces 155 acres of land, provides for a yearly rental of $500.00 and runs for a primary term of 50 years. Following the language of the lease covenant governing rental payment is this sentence: “Lessee to have the right and option at the end of this lease to renew this lease for another fifty years upon like terms arid conditions of this lease.” Before expiration of the lease, Glass Club Lake, Inc., notified the appellants that it was exercising the option to renew the lease for an additional 50 year term. Glass Club Lake, Inc.’s trial pleadings alleged that appellants refused to recognize the validity of the renewal covenant and prayed for judgment declaring the option valid and binding. Both the plaintiff and defendants moved for summary judgment in the trial court and plaintiff’s motion was sustained.

III.

Appellants insist that the option was not supported by an independent consideration, and, alternately that exercise of the option constituted a qualified acceptance of the terms and conditions of the original lease, as Glass Club Lake, Inc. intended during the renewal period to continue violations of the lease that prevailed during the primary term. The lease appears to be an integrated agreement, that is to say, there is nothing in the record or the written lease to suggest that the parties intended to contract separately for (1) demise of the land for the primary term of 50 years and (2) the option to renew; or that consideration was for the demise of the land alone and not for the option or other covenants therein. The general rule is that an option to renew, incorporated in a lease, is supported by the consideration for the lease. Bridgeman v. Jefferson Amusement Co., 207 S.W.2d 138 (Tex.Civ.App. Beaumont 1947, writ ref’d n. r. e.); Hereford v. Tilson, 198 S.W.2d 275 (Tex.Civ.App. Amarillo 1946, no writ); 50 Am.Jur.2d, Landlord and Tenant, Sec. 1157; 51C C.J.S. Landlord & Tenant § 56(4), p. 175. The lease in this instance comes within the general rule, that is to say, Glass Club Lake’s covenant to pay rentals constituted consideration for both demise of the land and the option to renew. The option is supported by a valid consideration and is a viable part of the lease agreement unless rendered inoperative for other reasons.

The contention that Glass Club Lake, Inc. did not opt to accept a renewal of the lease according to the original terms and conditions assumes violation of its terms and conditions during the primary term. Violations or not, and the consequence of violations, will be discussed next.

IV.

The general purpose to which the land demised by the lease agreement was to be devoted is recited in the agreement, as follows, “building and maintaining a Club Lake for fishing, hunting, bathing, boating, and other lawful sports.” The club’s specific use of the demised land is regulated by these covenants in the instrument, to-wit:

“Said club lake to be builded and constructed on said land as now planned by the Engineer who has made the survey, and lessee to have the right to all covered by said lake, and to a space for fifty feet (50) on the outside of the water around said lake, and also a road or passage over other land of lessor to said lake, said passage to be selected by lessors, but to be reasonably convenient for lesses (sic) to use.
“It is agreed that the pasutre (sic) surrounding said lake small (sic) remain an pasture, and the lake unfenced, but should lessors, at any time, abandon the pasture land and use said land for other purposes than pasture, then lessees shall have the right to fence said lake, and the fifty feet of land around same, in order to protect the lake.
“It is also agreed that the lessee are to have suitable land adjoining the lake and the right of way around the same for the purposes of building Club-Houses, and buildings for use of the club, and they shall also have the right to build bath houses, boat-houses and other improvements, of like character on the land adjoining the lake.
“It is further agreed, that in addition to the above rights, lessee shall have the right to lay off a suitable ball ground in said pasture, and construct thereon suitable grand-stand for the purpose of baseball and other games, golf-links and things of that nature that might be used by the club during the term of this lease.”
$ * * ⅜ ⅜ *

The summary judgment evidence showed, and Glass Club Lake admits, that sixty-seven houses built by club members occupy land located more than 50 feet from the lake water’s edge; that eleven or twelve houses are fenced and that one-tenth of the lake shore line is thereby fenced off the surrounding open pasture. No club house for common use of the members has ever been erected but a bath house for common use and six or seven boat houses for individual use have been built. Three of the houses located on the leased premises are used as homes by members; one member keeps “some kind” of livestock or chickens at his house and probably two of the sixty-seven houses are in disrepair. Only members and their guests are permitted to use lake houses. The club requires member’s houses to be not less than 400 square feet in size and to otherwise comply with standards set by a building committee. With respect to land use, buildings and occupancy, the leased premises have been used in the same manner as currently used since shortly after the lease agreement was made.

Doubt as to the meaning of the language of the lease is to be resolved most strongly against the lessor. In this instance, vague and imprecise language must be given an interpretation as favorable to Glass Club Lake, Inc., as the lease instrument permits when all provisions are considered. Red Oak Fishing Club v. Harcrow, 460 S.W.2d 151 (Tex.Civ.App. Waco 1970, no writ); Sirtex Oil Industries, Inc. v. Erigan, 403 S.W.2d 784 (Tex.1966). The lease agreement does not expressly prohibit a member of the club from building a lake house and individually occupying and using it. The use of club land and facilities by a member with the club’s consent and in the mode it directs is a use by the club. Permitting members to erect lake houses and regulation thereof may be construed as an implementation of the lease provision that club houses (plural) and buildings (plural) may be erected for use of the club. The lease vests an unrestricted right in the club to use a strip of land fifty feet wide “on the outside of the water” together with a convenient passageway to the lake over lands belonging to the lessor. In a separate paragraph it is agreed that the club is to “have suitable land adjoining the lake and the right of way around the same for the purposes of building Club-Houses, and buildings for use of the club.” These provisions are reasonably construable as agreement that land embraced in the lease but lying outside or more than fifty feet from the water’s edge may be used as the location of houses for the use of the club. The lease is silent on permanent occupancy of buildings as homes and on keeping livestock or chickens at authorized buildings. The facts, when lease provisions are construed most favorably to the club, show no violation of the lease, except to the extent that fencing a house and its grounds had the result of fencing the lake. The record evidences no right in the club to fence the lake or a part of it. This violation will be further considered.

V.

The rental payment covenant of the lease provides that on failure of the club to pay according to the lease’s terms the lessor “shall have the right to declare this lease forfeited, and all rights under shall at once revert back to lessors.” Summary judgment proof shows payment of all rentals. The right to forfeit the lease is not expressly nor impliedly allowed by the lease for violations or nonperformance of covenants other than for payment of rent. Forfeitures generally are not favored. See 25 Tex.Jur.2d, Forfeitures, Secs. 3 and 11. Exercise of the option to renew is not conditioned upon performance of or compliance with all or any of the lease’s covenants. A breach of the fencing agreement does not release the lessors from the obligation to renew. Ewing v. Miles, 12 Tex.Civ.App. 19, 33 S.W. 235 (1895, writ ref’d); 50 Am. Jur.2d, Landlord and Tenant, Sec. 1178; 51C C.J.S. Landlord & Tenant, § 62(l)b. See also Bertrand v. Pate, 284 S.W.2d 802 (Tex.Civ.App. Eastland 1955, no writ); Shepherd v. Sorrells, 182 S.W.2d 1009 (Tex.Civ.App. Eastland 1944, no writ). The club’s liability to respond in damages for breach of its contract was not an issue in the trial court.

VI.

The appellants’ points of error presenting other issues have been examined. Waiver of nonperformance or violations of the lease are not shown as a matter of law, but as heretofore explained affirmance is grounded upon a contractual right to renew. No error requiring reversal is found. All of appellants’ points of error are overruled. The judgment of the trial court is affirmed.

CORNELIUS, J., not participating.