author: STEAKLEY, Justice.

text:
    Karl E. KRAFT, Petitioner, v. Ivan LANGFORD et al., Respondents.
    No. B-7019.
    Supreme Court of Texas.
    April 5, 1978.
    Rehearing Denied May 10, 1978.

      McClain, Harrell & McClain, W. C. McClain, Conroe, Karl E. Kraft, Houston, for petitioner.
    Sears & Burns, C. Charles Dippel, Fred A. Collins, Houston, for respondents.
   STEAKLEY, Justice.

This suit was instituted by Karl E. Kraft in Montgomery County against Downing & Wooten Enterprises, Inc., and Ivan Lang-ford. It is described by Kraft in his Application for Writ of Error as a suit “to recover from Respondents [Downing & Wooten and Langford], jointly and severally, for damages to land caused by the intentional diversion of surface waters in violation of Section 5.086 of the Texas Water Code . . . and to enjoin the continuance of such diversion.” An initial and somewhat detailed statement of the factual background will bring into focus the rulings of the courts below, 551 S.W.2d 392, and the controlling issues under the present record.

Kraft is the owner of a 21.27 acre tract of land in Montgomery County on which he resides. Downing & Wooten, to which we will sometimes refer as “the Developer,” is a land development corporation and the owner of a 50 acre tract of land lying generally to the north and west of Kraft’s tract and bordering on its western boundary. A portion of the Developers’ land, referred to as the “panhandle,” extends eastward over the northern boundary of the Kraft land, but is separated from it by the property of others. The principal actors in the development corporation are Lloyd Downing and Foster Wooten. Downing & Wooten developed its tract into what is named the Vicksburg subdivision. Lang-ford was the design and supervisory engineer for the subdivision and, among other things, designed the storm sewer system. Prior to the construction of the subdivision, a small drainage channel or drainway lay upon the two tracts in question. This drainway was a natural feature of the land and originated on the Vicksburg tract from whence it meandered generally south and east across the Vicksburg land and across the Kraft land before discharging into the Panther Branch waterway. The drainway did not have a continuous flow of water and served only to drain excess rainwater from the land. The storm sewer system designed by Langford and subsequently constructed drained the entire Vicksburg tract into an underground pipe which generally followed the course of the natural drainway and discharged the collected water onto Kraft’s land at the point at which the natural drainway had entered his land.

Langford and the Developers did not have a written contract detailing the obligations and duties of Langford as the engineer on the project. Langford testified that he was hired to serve only as a consulting engineer. Downing and Wooten testified that Langford’s duties were to handle all phases of the design and construction of the drainage system, engineering and otherwise. It was established that Langford initially determined that the drainage system he was designing would drain more of the Vicksburg land into the drainway before it entered Kraft’s land than had naturally drained into it, but that he did not inform his client of this fact. There was also evidence that Langford assumed the responsibility of attempting to secure Kraft’s permission to clear the drainway on his property in order to facilitate the increased drainage from the Vicksburg tract. It was undisputed that Kraft refused to give his permission and that he cautioned Langford not to discharge more water onto his land than was normal. It was Langford’s further testimony that it would normally have been his practice to communicate this information to his clients but that he did not recall having done so. The Developers, on the other hand, testified that he did not tell them of Kraft’s refusal. It was also undisputed that Kraft sent a letter to Langford complaining of a discharge of excessive amounts of water and directing him to take action to cease the practice. A copy of this letter was also sent to the Developers. One of the Developers, Wooten, testified that this letter was the first knowledge that the corporation had of a problem concerning Kraft and that he did not read the entire letter but turned it over to Langford to handle. It was also undisputed that Lang-ford then wrote a letter on his own stationery and over his signature in which he suggested that Kraft, at his convenience, meet with the Developers and “their engineers” to discuss the problem. This appears not to have transpired.

This is the second appeal. The first appeal was from a judgment of the trial court granting Kraft a temporary injunction against the diversion, and overruling Lang-ford’s plea of privilege to be sued in Harris County. This judgment was affirmed by the Court of Civil Appeals, Langford v. Kraft, 498 S.W.2d 42 (Tex.Civ.App.1973). Downing & Wooten and Langford each applied for writ of error. We let stand the temporary injunction by refusing Downing & Wooten’s Application for Writ of Error as to it with the notation “no reversible error.” We did not have jurisdiction of Langford’s Application for Writ of Error from the judgment overruling his plea of privilege and his application was dismissed for want of jurisdiction. So in this first appeal, we were concerned only with the judgment of the trial court temporarily enjoining the diversion.

The current appeal is from the judgment of the trial court after trial to a jury on the merits. The jury found that the entire Vicksburg tract had not drained onto the Kraft land prior to the construction of the drainage system; that the discharge of water from the improvements was more than the natural capacity of the drain way; that the overflow did not result from an act of God; that both the Developers and Langford diverted the natural flow of water from Vicksburg onto the land of Kraft; that the Developers allowed the diversion to continue after being notified of it; that the diversion was the proximate cause of permanent damage to the Kraft tract; that the permanent damage to the Kraft tract for the period between April, 1972, and October, 1975, was $38,991.10; that both Langford and the Developers acted willfully, wantonly, or wrongfully in diverting the flow of the waters; and that exemplary damages should be awarded against the Developers and Langford jointly in the amount of $102,000.00.

Based on the jury findings, the trial court rendered a joint and several judgment for Kraft against Downing & Wooten and Langford (1) awarding Kraft actual damages in the amount of $38,991.10; (2) awarding Kraft exemplary damages in the amount of $100,000.00; and (3) permanently enjoining Downing & Wooten from discharging water upon Kraft’s tract of land from the drainage system. Upon appeal, the Court of Civil Appeals reversed this judgment and generally remanded the cause to the trial court. 551 S.W.2d 392. Kraft and Langford filed separate Applications for Writ of Error from this judgment and each was granted.

There are three controlling questions to be resolved. The first is whether the Court of Civil Appeals correctly reversed the judgment of the trial court because of error in submission of the damage issue. The second is whether Langford as a third party owning no interest in the Vicksburg tract is subject to the statutory cause of action asserted against him by Kraft under the provisions of Section 5.086 of the Texas Water Code. The third question is whether as a matter of law under this record Langford is immune from any liability to Kraft and thus entitled to a rendition of judgment in his favor.

We agree with the ruling of the Court of Civil Appeals that there was reversible error in the manner of submission of the damage issue. We hold further that Lang-ford is not subject to the statutory cause of action provided by Section 5.086 of the Texas Water Code but that his immunity from liability under any other theory is not established as a matter of law. We therefore affirm the judgment of the Court of Civil Appeals generally remanding the cause to the trial court.

I.

THE KRAFT APPLICATION FOR WRIT

The award of actual damages in favor of Kraft is based entirely on the jury response to Special Issue No. 8, which read as follows:

“SPECIAL ISSUE NO. 8
What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Karl E. Kraft for the permanent damage, if any, to his 21.27-acre tract of land proximately caused by the diversion of surface water, if any, from Vicksburg Subdivision onto Plaintiff’s tract between April 1, 1972, and October 27, 1975, but not thereafter?”

The answer given by the jury, $38,991.10, was the exact sum given by an expert witness for Kraft as the amount his land had diminished in value because of the drainage system. The charge of the court defined the terms “permanent damage” and “market value”; however, the latter term was not included in the special issue. The question before us is whether this issue, which was submitted over the objections of Lang-ford and the Developers, properly stated the applicable measure of damages. The Court of Civil Appeals held that it did not and we agree.

The type of compensation to be awarded for an injury to real property is not invariable, but will depend upon the nature of the injury. See, Atlas Chemical Industries, Inc. v. Anderson, 524 S.W.2d 681 (Tex.1975); see, generally, 25 C.J.S. Damages § 84 (1966). Permanent injuries give rise to a cause of action for permanent damages, normally measured as the difference in the value of the property before and after the injury. See, e. g., Fort Worth & D. C. Ry. Co. v. Hogsett, 67 Tex. 685, 4 S.W. 365 (1887). Temporary injuries, on the other hand, give rise to a cause of action for temporary damages, the proper measure of which is the amount of “damages which have accrued during the continuance of the injury covered by the period for which the action is brought.” Lone Star Gas Co. v. Hutton, 58 S.W.2d 19, 21 (Tex.Comm.App. 1933, holding approved). Stated differently, the proper measure of damages for a temporary injury to real property is the amount necessary to place the owner of the property in the same position he occupied prior to the injury.

The character of an injury as either permanent or temporary is determined by its continuum. Permanent injuries are those which are constant and continuous, not intermittent or recurrent. Atlas Chemical Industries, Inc. v. Anderson, supra. Temporary injuries are those which are not continuous but are “sporadic and contingent upon some irregular force such as rain.” Id. Another characteristic of a temporary injury is the ability of a court of equity to enjoin the injury causing activity. An injury which can be terminated cannot be a permanent injury. The concepts of temporary and permanent injuries are mutually exclusive and damages for both may not be recovered in the same action. Lone Star Gas Co. v. Hutton, supra, at 21.

The injuries alleged by Kraft in the present case possess only the characteristics of temporary injury and none of the characteristics of permanent harm. The flow of water through the storm drainage system depends upon the fortuitous event of rain and is not continuous. Further, Kraft has prayed for and received injunctive relief as well as “permanent damages.” While it is permissible to plead for alternative relief in a case such as this, the applicable rule has been well stated by Professor Dobbs:

Actually, a great deal of the problem would be solved or avoided if plaintiffs in all these suits recognized the merger of law and equity and sought injunctions as well as damages. If the injunction issues to forbid further invasion, that fact alone will normally establish that the invasion is temporary rather than permanent and damages can thus be appropriately limited. On the other hand, if the injunction is denied, or if it proves unenforceable, and if the condition or operation meets the test of physical permanency, permanent damages can be awarded appropriately, since denial of the injunction assures “legal permanency.”

D. Dobbs, Handbook on the Law of Remedies, § 5.4 at 342-3 (1973). The injury here alleged and established was altogether of a temporary nature and, as held by the Court of Civil Appeals, the trial court erred in submitting the issue on permanent damages over the objection of Langford and the Developers.

II.

THE LANGFORD APPLICATION FOR WRIT

As stated in Kraft’s Application for Writ of Error, quoted earlier, Kraft in his suit against Langford, both in pleading and jury submission, sought to invoke a cause of action under Section 5.086 of the Texas Water Code. This section provides, in part, as follows:

(a) No person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded.
(b) A person whose property is injured by an overflow of water caused by an unlawful diversion or impounding has remedies at law and in equity and may recover damages occasioned by the overflow.

The threshold problem is whether this statute gives Kraft a cause of action against Langford, who is a third party and owns no interest in the tract of land composing the Vicksburg subdivision.

Section 5.086 is the codification of a statute which dates back to the various sovereigns of Texas and the land grants made during their tenures. Chief Justice Cureton traced this history in Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 85 A.L.R. 451 (1932), and his comprehensive analysis will not be repeated here. Suffice to note that, absent a statute governing the rights of land holders, those owners whose title derives from Spanish or Mexican land grants are governed by the civil law, whereas those whose title derives from subsequent grants are governed by the common law. See, Miller v. Letzerich, supra. See also, State v. Valmont Plantations, 346 S.W,2d 853 (Tex.Civ.App.1961), aff’d, 163 Tex. 381, 355 S.W.2d 502 (adopting opinion of the Court of Civil Appeals). The distinction between the two legal systems is significant in the field of surface water because different property rights were secured under them. Under the civil law rule a landowner could not burden adjacent lands with surface water he accumulated or discharged except in the same manner in which it would naturally flow. Miller v. Letzerich, supra. See also, Kinyon & McClure, Interferences With Surface Waters, 24 Minn.L.Rev. 891 (1940) (hereinafter cited as Kinyon & McClure); W. Hutchins, The Texas Law of Water Rights, ch. 14 at 515 (1961) (hereinafter cited as Hutchins); Bouldin, Rights in Diffused Surface Water in Texas, Water Law Conference, (U. of Tex., 1952-1956) 1955 at 5 (1956). The effect of the civil law rule was to impose a natural easement on the land of those adjacent to a surface water owner. The extent of the easement ran only to the natural flow of surface water, however, and the servient estate was under no obligation to receive a different flow or greater quantities of water than would be natural. Miller v. Letzerich, supra.

The rule at common law is not easily susceptible to general statement. It appears that the true rule pertaining to surface waters was the same under the common law as under the civil law; but it also appears that another doctrine, the so-called “common enemy rule,” has often been erroneously identified as the common law rule. See, Hutchins, supra, at 526-33; Kin-yon & McClure, supra, at 899; National Water Commission, A Summary-Digest of State Water Laws, § 3.7 (1973); Miller v. Letzerich, supra; 93 C.J.S. Waters § 114 (1956); 78 Am.Jur.2d Waters § 120 (1975). The “common enemy rule” was adopted by this Court in 1889 under the mistaken view that it was the common law rule. Gross v. Lampasas, 74 Tex, 195, 11 S.W. 1086 (1889). See also, Miller v. Letzerich, supra.

The status of the law, then, after Gross was that the civil law rule as to surface water applied to lands granted by the governments of Spain and Mexico; while the common enemy doctrine was applicable to the lands granted by the Republic of Texas and the State of Texas. This difference in the law was eliminated by the Legislature in 1915, when it enacted Article 7589a, the predecessor statute to Section 5.086. The effect of the statute was twofold. It first prescribed that the civil law rule as to surface water would henceforth govern all property. In doing so, the statute created property rights for those landowners taking under grants made subject to the common law and thereby recognized the civil law rule of “natural easements.” The second effect of the statute was to create a statutory cause of action in favor of property owners whose property has • been injured by an overflow of surface waters caused by the diversion or impounding of their natural flow. The statute does not purport to establish an exclusive remedy and that which it provides is additional to the common law remedies for interferences with interests in real property. The elements of the statutory cause of action are (1) a diversion or impoundment of surface water which (2) causes (3) damage to the property of the plaintiff landowner. See, Hutchins, supra, at 532 and cases cited therein. The statute is a rule of property that defines and limits the rights of property owners. As a rule of property which creates easements and limits their use, the statute has no application to persons or entities who are not proprietors of land. As noted by Chief Justice Cureton in Miller, supra, “The act of 1915 changed the rule and gave a cause of action where the owner of one estate [Italics added] so used his property as to injure an adjacent tenement.” Accordingly, a party injured by an excess overflow of surface water caused by the acts of a third party, whether or not acting for or with the knowledge and consent of the other, must, as to the third party, look to the common law for remedy.

The final question is whether, as asserted by Langford, his status as a professional engineer precludes Kraft from any other remedy against him as a matter of law. We hold that it does not and the general remand ordered by the Court of Civil Appeals is therefore affirmed.

We alluded earlier to the first appeal in this case where, in resolving questions of venue, the Court of Civil Appeals ruled that in designing the drainage system Langford violated Section 5.086 and that “the servitude — the right to cast the excess waters upon Kraft not having been acquired by his principals — he must bear his portion of the damages caused by the joint acts of the parties.” Langford v. Kraft, 498 S.W.2d at 52. We did not have jurisdiction to entertain an appeal from this determination of the Court of Civil Appeals and the question remained open in this Court. We have now decided this question contrary to the decision of the Court of Civil Appeals in the venue appeal. It is manifest, however, that Kraft had good reason until now to continue his statutory suit against Langford. In the earlier part of this opinion we reviewed briefly the relationship between the Developers and Langford, together with the activities of Langford in his design and supervision of the construction of the drainage system. The evidence is conflicting in many respects. This can be resolved upon the remand of the ease to the trial court where Kraft will have opportunity to pursue such remedies as he may now invoke to redress the injury to his property.

The judgment of the Court of Civil Appeals is affirmed.

      . In his motion for judgment on the verdict, Kraft filed a remittitur of $2,000.00 as to the award of exemplary damages in that it exceeded the amount for which he had prayed. The judgment reflects the award less the amount remitted.

      . All references are to Tex.Rev.Civ.Stat.Ann.

      . Under the “common enemy rule,” water is seen as the natural enemy of all property holders and each proprietor is free to fend it off without regard for the rights of the surrounding landowners. No natural easements existed and every landowner had the right to burden his neighbor’s land with the overflow of surface water created by his acts of diversion or im-poundment. See Miller v. Letzerich, supra.

      . This statute, first enacted in 1915, was omitted from the Revised Statutes of 1925 and was therefore repealed. It was reenacted in 1927 in almost identical terms before being codified in Section 5.086. The 1927 statute was as follows:
      That it shall hereafter be unlawful for any person, firm or private corporation to divert the natural flow of the surface waters in this State or to permit a diversion thereof caused by him to continue after the passage of this Act, or to impound such waters, or to permit the impounding thereof caused by him to continue after the passage of this Act, in such a manner as to damage the property of another, by the overflow of said water so diverted or impounded, and that in all such cases the injured party shall have remedies, both at law and in equity, including damages occasioned thereby, provided that the passage of this Act shall in no way affect the construction and maintenance of levees and other improvements for the purpose of controlling floods, overflows and freshets in rivers, creeks and streams, nor the construction of canals for conveying waters for irrigation or other purposes; and provided further that nothing in this Act shall be so construed as to authorize or give authority to persons or private corporations owning or constructing canals for irrigation or other purposes to construct or maintain any canal, lateral canal or ditch in such manner as to obstruct any river, creek, bayou, gully, slough, ditch or other well defined natural drainage.
      1927 Tex.Gen.Laws, Ch. 56 at 80.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    Albert J. COHEN, Temporary Administrator, Petitioner, v. Gene McCUTCHIN et al., Respondents.
    No. B-7093.
    Supreme Court of Texas.
    April 26, 1978.
    Rehearing Denied May 31, 1978.

      Turner, Rodgers, Sailers, Jordon & Callo-way, R. W. Calloway, Turner, Hitchins, Mclnerney, Webb & Hartnett, John E. Gangstad, Dallas, for petitioner.
    John L. Roach, Inc., John L. Roach and A. H. Duvall, Dallas, for respondents.
   BARROW, Justice.

This is an appeal from a take-nothing summary judgment granted Gene, Jerry, and Alma McCutchin in Albert J. Cohen’s third-party action whereby Cohen, as administrator of the estate of Byron M. McKnight, sought to recover certain drilling costs due pursuant to two written agreements allegedly entered into by the McCutchins with McKnight. The court of civil appeals affirmed after concluding that the written agreements sued upon by Cohen did not meet the requirements of the Statute of Frauds because they were neither signed by McKnight nor did they disclose his identity. 554 S.W.2d 844. We have concluded that the summary judgment was properly granted and affirm the take-nothing judgment.

The question presented by this appeal is whether the McCutchins discharged their summary judgment burden to establish as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of Cohen’s cause of action.- Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970); Prestegord v. Glenn, 441 S.W.2d 185 (Tex.1969). Primarily it is urged that the summary judgment proof does not foreclose the existence of additional writings which were signed by or on behalf of McKnight.

On June 3, 1974, American Quasar Petroleum Co. entered into an agreement with McKnight whereby McKnight agreed to participate, to the extent of a 25% working interest, in the drilling and completion of an exploratory oil and gas well described generally as the Barstow Townsite Unit No. 2, Ward County, Texas. The well was drilled and completed, but production was not sufficient to pay the costs. In the meantime, McKnight died. American Quasar subsequently filed suit against Albert J. Cohen, Temporary Administrator of the Estate of Byron M. McKnight, Deceased, to recover McKnight’s share of the drilling costs. In turn, Cohen filed a third-party action against respondents, Gene McCutch-in, Jerry McCutchin, and Alma McCutchin, seeking to recover the pro rata shares of the drilling costs owed by the McCutchins pursuant to two written agreements they had allegedly entered into with McKnight on June 12, 1974. It was alleged that under these agreements the McCutchins acquired the following interests in the exploratory well by assignment from McKnight: Gene McCutchin — 8.7143%, Jerry McCutch-in — 5.7143% and Alma McCutchin — 5.7143%. The written agreements are set out in full in the opinion of the court of civil appeals and therefore need not be recopied here. Cohen v. McCutchin, supra at 846-847. It is sufficient to state that the two letter agreements, bearing the date of June 12, 1974, although apparently written by the McCutchins’ assignor, are neither signed by McKnight nor written on his letterhead, nor do they identify McKnight as the assignor in any way. They are signed only by the McCutchins.

The Statute of Frauds, Section 26.01, Texas Business and Commerce Code Annotated, provides in part as follows:

(a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is
(1) in writing; and
(2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.
(b) Subsection (a) of this section applies to:
(4) a contract for the sale of real estate; .

This statute requires that, with respect to the agreements defined therein, there must be a written memorandum which is complete within itself in every material detail, and which contains all of the essential elements of the agreement, so that the contract can be ascertained from the writings without resorting to oral testimony. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945); Boddy v. Gray, 497 S.W.2d 600 (Tex.Civ.App.—Amarillo 1973, writ ref’d); Walker Avenue Realty Co. v. Alaskan Fur Co., 131 S.W.2d 196 (Tex.Civ. App.—Galveston 1939, writ ref’d).

Cohen concedes that the agreements sued on were conveyances of real estate within the meaning of subsection (b)(4) of the Statute of Frauds. See Taber v. Pettus Oil & Refining Co., 139 Tex. 395, 162 S.W.2d 959 (1942). He urges, however, that the lower courts erred in considering only the two letters of June 12,1974, in determining the validity of the agreements sued upon. Specifically, he asserts that the identity of McKnight is established by a transmittal letter of June 12, 1974, wherein Hubert H. Thompson, on behalf of Gene McCutchin, transmitted to McKnight checks from Alma McCutchin, Jerry McCutchin, and Gene McCutchin to cover “their portion of costs on the Barstow Townsite Unit No. 2, Ward County, Texas, as reflected by the executed Agreements also enclosed.” Cohen further urges that check stubs which reference partial payment of drilling costs of this particular well by the McCutchins should have been considered along with the agreements to satisfy the Statute of Frauds.

We agree with the holding of the court of civil appeals that these memoranda do not identify McKnight as a party to the June 12, 1974, letter agreements sued on here. Accordingly, they are insufficient to satisfy the requirements of the Statute of Frauds.

The major thrust of Cohen’s argument before this Court is that, even if the summary judgment record in its present state establishes as a matter of law that the agreements sued on do not meet the requirements of the Statute of Frauds, the judgment is, nevertheless, improper because the McCutchins did not discharge their summary judgment burden of negating the existence of other memoranda which might meet the requirements of the Statute of Frauds.

In support of this contention, Cohen cites Botello v. Misener-Collins Company, 469 S.W.2d 793 (Tex.1971), wherein this Court held that a movant, seeking to invoke the Statute of Frauds to support a summary judgment, was required to establish that every material exchange contended to have passed between the parties was included in the record. However, this rule does not aid Cohen here for largely the same reason it did not aid Botello to avoid the adverse summary judgment against him. After setting forth the foregoing rule, we said:

However, Botello himself forecloses the existence of additional agreement. He makes no complaint of a failure to allow him an opportunity to prove the full agreement. His points of error attack only the construction of the written contract and the holding that it is indefinite.
It is Botello’s position that he has pleaded his contract and that it is enforceable.

Here the letter agreements of June 12, 1974, were expressly pleaded by Cohen as the basis of his cause of action against the McCutchins. He did not and has not alleged the existence of any other memoran-da which is signed by McKnight. Rather, he seeks to have this Court take judicial notice that it is ordinary business practice for a person sending a letter to sign it or at least to identify himself as the sender. While we agree that this is probably ordinary business practice, there is nothing in this record to show that McKnight did sign on this occasion. Therefore, we will not take judicial notice that he did so. The agreements attached to Cohen’s petition are not signed. There is nothing in the record to support the inference urged by Cohen that there are other copies of the agreement in existence which might contain McKnight’s signature. There are actually six copies of the two letter agreements in the transcript of this case, but all are photocopies of the same letters which contain only the signatures of the McCutchins and neither is signed by McKnight or identifies him in any way.

This suit had been pending for over eight months at the time the summary judgment was granted and was apparently fully developed. In fact, Cohen’s own motion for summary judgment was denied at the time the McCutchins’ motion was granted.

We conclude that the trial court did not err in holding that the summary judgment record established that Cohen was barred by the Statute of Frauds from recovering drilling costs from the McCutchins under the written agreements of June 12, 1974.

The judgment of the court of civil appeals is affirmed.

      . This case was tried prior to the amendment of Rule 166-A, Texas Rule of Civil Procedure, which now provides in part:
      “Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”

      . Kelly Bell was originally joined as a cross-defendant but the claim against him was subsequently dismissed by Cohen after his plea of privilege was sustained.


author: POPE, Justice. DANIEL, Justice,

text:
    Nancy Kay (Smith) TRADER, Relator, v. Honorable James F. DEAR, Jr., Respondent.
    No. B-7340.
    Supreme Court of Texas.
    April 26, 1978.

      London & Stokes, Joe Daniel Stokes, III, Austin, for relator.
    Kent M. Rider and Jo Betsy Lewallen, Austin, for respondent.
   MANDAMUS

POPE, Justice.

Nancy Smith Trader and John Smith were divorced in Harris County in September 1976, and Nancy was awarded managing conservatorship of their daughter, Shannon Marie. On August 3, 1977, Nancy and John Smith signed an agreement by which Nancy agreed that John, who lives in Austin, Travis County, would have the temporary custody of Shannon and act as managing conservator for a period of one year, with an automatic month to month extension until either party gave notice in writing to the other of the cancellation of the agreement. The agreement recited that the arrangement for the temporary custody was in the best interest of Shannon.

Nancy Trader, the mother, agreed to the change of the managing conservatorship because she was planning to go to Singapore for a year. She returned to Austin, however, on January 13, 1978, after she failed to receive reports on Shannon’s progress. Four days later, upon John’s refusal to surrender Shannon, Nancy instituted habeas corpus proceedings in Travis County. The trial judge of the 126th District Court of Travis County on January 19, 1978, denied the petition for habeas corpus. The court’s order recited that there was then pending in both the original court of Harris County and also in Travis County a motion for the change of custody from Nancy to John Smith and “that it is in the best interest of Shannon Marie Smith that the custodial status quo be maintained until further order of this Court or the Court of Domestic Relations Number One of Harris County, Texas.” Nancy Trader now seeks a mandamus ordering the trial judge to grant the habeas corpus.

This is another case in which the trial court has failed to recognize the legislative scheme that the court of continuing jurisdiction is the one that has the exclusive power to reexamine its prior order which evaluated the best interest of the child. The Legislature. by enacting the Family Code adopted a scheme for handling parent-child matters in a manner that avoids forum shopping, races to the courthouse, child snatching, and the harassment of a parent by the other parent’s filing suits in random courts.

The first inquiry in any action concerning a modification of parent-child orders is that of jurisdiction. Section 11.05(a) of the Family Code is explicit in fixing the continuing jurisdiction of a court:

Except as provided in Subsections (b), (c), and (d) of this section, when a court acquires jurisdiction of a suit affecting the parent-child relationship, that court retains continuing jurisdiction of all matters provided for under this subtitle in connection with the child, and no other court has jurisdiction of a suit affecting the parent-child relationship with regard to that child except on transfer as provided in § 11.06 of this code. [Emphasis added.]

The Court of Domestic Relations Number One, of Harris County, acquired jurisdiction over Shannon Smith in the divorce suit in which a final decree was rendered on September 27,1976. That court is the one that had the continuing exclusive jurisdiction over Shannon, and all other courts of Texas are required to respect its jurisdiction. See Koons, Jurisdiction, Venue, and Transfers in Suits Affecting the Parent-Child Relationship (Where All Parties Reside in Texas), 9 Tex.Tech.L.Rev. 243, 244-48 (1978).

Section 14.10 of the Family Code was designed to overrule that body of law which previously permitted a habeas corpus proceeding to put in issue anew the right to custody. Smith, Commentary on Title Two, Texas Family Code, 5 Tex.Tech.L.Rev. 389, 435-36 (1974). The section changed the rule applied in Herrera v. Herrera, 409 S.W.2d 395 (Tex.1966), and similar cases in which habeas corpus placed in issue the best interest of the child.

The habeas corpus proceeding under the Family Code may be filed in the courts of any county in which the child is found, as well as in the court of continuing jurisdiction, to enforce an outstanding order. McElreath v. Stewart, 545 S.W.2d 955 (Tex. 1977); Ex parte Jabara, 556 S.W.2d 592 (Tex.Civ.App.—Dallas 1977). Its purpose is to uphold the order of the court of continuing jurisdiction. Section 14.10 of the Family Code clearly expresses that purpose:

§ 14.10 Habeas Corpus
(a) If the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator if and only if it finds that the relator is presently entitled to possession by virtue of the court order.
(b) The court shall disregard any cross action or motion pending for modification of the decree determining managing con-servatorship, possession, or support of or access to the child unless it finds that:
(1) the previous order was granted by a court that did not have jurisdiction of the parties; or
(2) the child has not been in the relator’s possession and control for at least 6 months immediately preceding the filing of the petition for the writ.
(c) The court may issue any appropriate temporary order if there is a serious immediate question concerning the welfare of the child.

Two features of this present case differ from those which this court has already decided: (1) the Travis County trial court recognized that the court in Harris County had continuing jurisdiction and was the one which should reexamine the best interest of Shannon, but nevertheless, made temporary orders based on the child’s best interests, and (2) the change in Shannon’s possession from the mother to the father resulted from the parents’ agreement. Neither distinction is a sound legal basis for altering the legislative scheme for orderly disposition of these cases by the court that has continuing jurisdiction.

The court of continuing jurisdiction, so long as it has exclusive jurisdiction, is the one that also makes the temporary orders pending the trial on the merits about modification of the prior order. Tex.Fam. Code Ann. § 11.11. Otherwise, we revert to the practice by which several courts are simultaneously making temporary and final orders about the same child.

After the Harris County court rendered its order in 1976, the parents made the agreement by which the mother permitted the father to have Shannon on a temporary basis. Our question is whether the parents’ agreement ousted the jurisdiction of that court which had continuing jurisdiction. We hold that it did not. 59 Am. Jur.2d Parent and Child § 33 (1971); 67 C.J.S. Parent and Child § 11d(3), at 645-46 (1950). When, as in this case, there is an agreement, but the parents have again fallen into disagreement, it is the court of continuing jurisdiction that must become the final arbiter about the managing conservatorship. “Unfortunately, experience has shown that the question of custody, so vital to a child’s happiness and well-being, frequently cannot be left to the discretion of parents.” Ford v. Ford, 371 U.S. 187, 193, 83 S.Ct. 273, 277, 9 L.Ed.2d 240 (1962). We have previously enforced the prior order of the court that had continuing jurisdiction in instances in which the parents had voluntarily relinquished a child. Saucier v. Pena, 559 S.W.2d 654 (Tex.1977); Lamphere v. Chrisman, 554 S.W.2d 935 (Tex.1977).

Our holding that a parental agreement does not defeat a court’s continuing jurisdiction does not mean that the agreement has no significance. Many students of the parent-child relations make valid arguments that such matters as access, the details of visitation, and child rearing are often better resolved by responsible parents than by courts. Mayo, Access — Child’s Right or Parents’ Privilege? Should Court or Custodian Decide?, 5 Anglo Am.L.Rev. Ill, 123-27 (1976). The endless number of details incident to child rearing, the court’s lack of time and its crowded docket, the court’s lack of supervisory personnel, the inability to predict the future, and the advantages of resolving matters without the expense of court hearings, justify responsible parental arrangements, and we do not discountenance them nor declare them void.

A voluntary arrangement between the parties is a matter which a court should take into consideration in deciding who should be the managing conservator and whether an existing order should be changed. That does not mean, however, that any available court may intervene to make that decision. The court which is the court of continuing jurisdiction is the only court that should make the determination. The jurisdiction of the court of continuing jurisdiction should not be interrupted, inter-ferred with or divided by interim modification orders by other courts. When this cause was first brought to the attention of the district court of Travis County and it determined, as it did, that the Harris County District Court had continuing jurisdiction, it should have peremptorily granted the habeas corpus to protect and enforce the jurisdiction of the court of continuing exclusive jurisdiction. By such an order, the court of continuing jurisdiction could have more promptly made both temporary and final orders in the best interest of the child. Saucier v. Pena, 559 S.W.2d 654 (Tex.1977); Lamphere v. Chrisman, 554 S.W.2d 935 (Tex.1977); McElreath v. Stewart, 545 S.W.2d 955 (Tex.1977); Standley v. Stewart, 539 S.W.2d 882 (Tex.1976). Jones, Child Custody Modification and the Family Code, 27 Baylor L.Rev. 725 (1975); Smith, Commentary on Title Two, Texas Family Code, 5 Tex.Tech.L.Rev. 389, 435-36 (1974).

It is assumed that Judge Dear will vacate his order denying Nancy Trader’s application for habeas corpus and that he will grant the requested writ. A writ of mandamus will issue only if he declines to do so. Pursuant to Rule 515, Texas Rules of Civil Procedure, no motion for rehearing will be entertained.

Concurring opinion by DANIEL, J.

DANIEL, Justice,

concurring.

I am compelled to concur in the opinion of the Court because the Legislature has enacted a law which, under the circumstances of this case, compels the trial court to grant the writ of habeas corpus without regard to the best interests of the child.

It is obvious from the number of cases which have reached us on this same point that numerous members of the bar and trial judges have either overlooked Section 14.10 of the Family Code, effective January 4,-1974, or have chosen to ignore it. The same is true to some extent with reference to Section 11.05(a) of the Family Code, which, subject to stated exceptions, provides that the original court acquiring jurisdiction of a parent-child relationship shall retain continuing jurisdiction and that “no other court has jurisdiction of a suit affecting the parent-child relationship” except upon transfer as provided in Section 11.06 of the Code.

Even a court of continuing jurisdiction, however, is bound by the mandatory language of Section 14.10. It must grant a writ of habeas corpus for the delivery of possession of a child in accordance with an existing court order without any delay for separate or simultaneous consideration of a pending motion for modification of the existing custody order and without consideration of the best interests of the child. McElreath v. Stewart, 545 S.W.2d 955 (Tex. 1977); Standley v. Stewart, 539 S.W.2d 882 (Tex.1976). There are certain exceptions which are set forth in Section 14.10 and in the Court’s opinion this day handed down in Strobel v. Thurman, 565 S.W.2d 238 (Tex. 1978).

It is understandable that some trial judges are slow to disregard the best interest of the child in any child custody proceeding, especially if they have not studied the important mandatory change made by the Legislature when it enacted Section 14.-10 of the Family Code. For many years prior to that time the best interest of the child was the paramount consideration in both original child custody cases and habeas corpus proceedings relating thereto. Herrera v. Herrera, 409 S.W.2d 395 (Tex.1966); Hendricks v. Curry, 401 S.W.2d 796, 802 (Tex.1966); Mumma v. Aguirre, 364 S.W.2d 220 (Tex.1963); Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79, 81-82 (1953); Duckworth v. Thompson, 37 S.W.2d 731 (Tex.Com.App.1931); Legate v. Legate, 87 Tex. 248, 28 S.W. 281 (1894).

Many changes in child custody proceedings were made in the Family Code. Perhaps Section 14.10 is one of the most harsh, far-reaching and difficult for some trial judges to apply. A study of some of the cases which have reached this Court will show that some decisions have been compelled by the statute which were not in the best interests of the children. However, the statute is clear and definite. It should be studied and followed by the courts until and unless it is changed by the Legislature. In this connection, it has been suggested that the Legislature might well consider an amendment which would permit the court of continuing jurisdiction to give paramount consideration to the welfare and best interest of the child by consolidating hearings on writs of habeas corpus and any pending cross actions or motions for change of custody.

      . There are exceptions which are not here applicable. Tex.Fam.Code Ann. § 11.05(b)—(d) & § 11.06.

      . Subsection (b)(1) is not applicable in this case and the trial judge expressly found that the 6 months provision of (b)(2) did not apply.

      . Section 14.10 of the Texas Family Code, which is quoted in the Court’s opinion.

      . See, in addition to this case, Strobel v. Thurman, 565 S.W.2d 238 (Tex. 1978); Robertson v. Hazlett, 21 Tex.Sup.Ct.J. 23 (Oct. 22, 1977); Saucier v. Pena, 559 S.W.2d 654 (Tex.1977); Lamphere v. Chrisman, 554 S.W.2d 935 (Tex. 1977);. McElreath v. Stewart, 545 S.W.2d 955 (Tex.1977); Standley v. Stewart, 539 S.W.2d 882 (Tex.1976). See also Ex Parte Jabara, 556 S.W.2d 592 (Tex.Civ.App.1977); Fountain v. Nelson, 546 S.W.2d 102 (Tex.Civ.App.1977, no writ); Lugo v. Wade, 534 S.W.2d 726 (Tex.Civ.App.1976, no writ); Clayton v. Newton, 524 S.W.2d 368 (Tex.Civ.App.1975, no writ).

      .The principal exception which would seem to apply to the facts of some of the cases which have reached us, but which has seldom been used in such cases, is in Subsection 14.10(c), which provides: “The court may issue any appropriate temporary order if there is a serious immediate question concerning the welfare of the child.”


text:
    Joan Marion STROBEL, Relator, v. Honorable Mace B. THURMAN, Jr., Respondent.
    No. B-7346.
    Supreme Court of Texas.
    April 26, 1978.
    David L. Shapiro, Austin, for relator.
    Charlie L. Smith, Austin, for respondent.
   POPE, Justice.

Joan Marion Strobel seeks a mandamus ordering the trial judge to grant a writ of habeas corpus ordering her former husband, Walter H. Strobel, to surrender their child, David Strobel, to her. We conditionally grant the writ of mandamus.

Mr. Strobel concedes that an Indiana court awarded custody of David, age 13, to Mrs. Strobel by a divorce decree entered on June 19, 1976. David arrived in Austin on December 16, 1977, from Massachusetts, where he was living with his mother. His father had sent him an airplane ticket for the trip. On that same day, Mr. Strobel filed in the District Court of Travis County, Texas, a motion to modify the Indiana custody decree. Mr. Strobel also concedes that David had not been out of Mrs. Strobel’s possession more than six months. For these reasons, under section 14.10, Family Code, the original court’s jurisdiction over David was not interrupted.

Mrs. Strobel filed an application for writ of habeas corpus in the Texas court where the father had filed his motion to modify the decree of the Indiana court. At the hearing on Mrs. Strobel’s habeas corpus, Mr. Strobel asked the court to make appropriate temporary custody orders during the time before his own petition for modification of that Indiana decree was set for hearing in Texas. The court, after a brief hearing and a private interview with the child in chambers, denied the mother’s application for writ of habeas corpus in these words:

The Court, having examined the pleadings and heard the evidence and argument of Counsel, finds it to be in the best interest of the child that the application for Writ of Habeas Corpus be, and the same is hereby denied.

The Family Code changed the earlier practice in Texas by which habeas corpus was used as a vehicle to relitigate custody. Trader v. Dear, 565 S.W.2d 233 (Tex.1978); Saucier v. Pena, 559 S.W.2d 654 (Tex.1977); Lamphere v. Chrisman, 554 S.W.2d 935 (Tex.1977); McElreath v. Stewart, 545 S.W.2d 955 (Tex.1977); Standley v. Stewart, 539 S.W.2d 882 (Tex.1976). Jones, Child Custody Modification and the Family Code, 27 Baylor L.Rev. 725 (1976); Smith, Commentary on Title Two, Texas Family Code, 5 Tex.Tech L.Rev. 389, 435-36 (1974).

The Code restored the writ of habeas corpus to its purpose as an ancient common law writ. As such, it is a ready means for deliverance of a child from unlawful detention. It has often been termed the Great Writ. Its special value comes not only from its purpose, but also from the speed and simplicity with which it may and should be employed.

Mrs. Strobel proved the existence of a valid outstanding order, and upon the basis of that proof it was the duty of the Texas court that heard the application for habeas corpus to enforce the mandate of the existing court order rather than go behind or ahead of it. The Legislature has established a system by its enactment of the Family Code which compels the respect for a court’s existing order and for its continuing jurisdiction. Upon proof of the pri- or order, absent , dire emergency which is not here urged and which under the facts proved does not exist, the grant of the writ should be automatic, immediate, and ministerial. The writ should be granted upon proof of the bare legal right to possession. Section 14.10.

There are some exceptions to this use of the remedy. A writ may be denied if the prior order “was granted by a court that lacked jurisdiction,” section 14.10(b)(1), “if the child has not been in the relator’s possession for at least 6 months,” section 14.-10(b)(2), “if there is a serious immediate question concerning the welfare of the child,” section 14.10(c), or “if the right to possession of a child is not governed by a court order.” Section 14.10(e). None of those exceptions exist in this case.

The father suggests that there may be a serious question concerning the welfare of the child because of his threat to run away from home. The court’s order was not placed on that ground, and the brief record does not show any serious immediacy for a disregard of the Indiana decree. In McElreath v. Stewart, 545 S.W.2d 955 (Tex.1977), we had a similar situation and substantially the same facts. The child in McElreath did not want to live with his mother who made him angry, gave him responsibilities, and nagged him. In McElreath, this court explained the nature of the seriousness which would justify disregard for a court order. It was that of a child who was in such imminent danger of physical or emotional harm that immediate action was necessary to protect the child. McElreath v. Stewart, supra, at 958; Page v. Sherrill, 415 S.W.2d 642, 645 (Tex.1967).

It is assumed that Judge Thurman will vacate his order denying Joan Marion Stro-bel’s application for habeas corpus and that he will grant the requested writ. A writ of mandamus will issue only if he declines to do so. Pursuant to Rule 515, Texas Rules of Civil Procedure, no motion for rehearing will be entertained.

Concurring Opinion by DANIEL, J.

DANIEL, Justice,

concurring.

I concur for the reasons stated in my concurring opinion in Trader v. Dear, B— 7340,565 S.W.2d 233 (Tex. 1978).

The courts of this State are compelled to follow and apply the clear and mandatory language adopted by the Legislature in Section 14.10 of the Family Code. The concurring opinion in Dear, supra, suggests consideration by the Legislature of an amendment which would permit courts of continuing jurisdiction to consider the best interest of the child by consolidating habeas corpus hearings with pending motions for modification of existing child custody orders.

      . All statutory references are to Tex.Fam.Code Ann., as amended.


author: PER CURIAM. NYE, Chief Justice.

text:
    TEXAS HAULING CONTRACTORS CORP., Appellant, v. ROSE SALES COMPANY, Appellee.
    No. 1259.
    Court of Civil Appeals of Texas, Corpus Christi.
    Opinion on Motion Nov. 3, 1977.
    Opinion March 31, 1978.
    Rehearing Denied April 27, 1978.

      Benjamin Shefman, New Braunfels, for appellant.
    Milton W. Walton, Corpus Christi, for appellee.
   OPINION ON MOTION

PER CURIAM.

The question of proper authentication and resolution of objections to the statement of facts is before this Court in various postures in three different appeals now pending in this Court. The question presented in Cause Number 1259, “Texas Hauling Contractors Corp. v. Rose Sales Company”, is the same as the question in Cause Number 1255, “Nueces Trust Company v. Carlos T. (Buddy) White”, and the remedy is also applicable in Cause Number 1286, “Gaudalupe S. Farias v. Texas General Indemnity.”

The appellants in Causes 1259 and 1255 timely presented statements of fact for filing in their respective appeals. In each case, the statement of facts was signed by the trial judge but not by counsel for appellant or appellee. On appeal, the respective appellees have filed motions to strike the statements of fact, contending that Rule 377(d), T.R.C.P., does not permit authentication by the trial judge unless the parties are unable to agree on the correctness of the statement of facts and have presented the document to the judge so that he might settle the differences and make the statement of facts conform to the truth.

Rule 377(d) provides:
“It shall be unnecessary for the statement of facts to be approved by the trial court or judge thereof when agreed to by the parties. If any difference arises as to whether the record truly discloses what occurred in the trial court, or if the opposing party fails to agree or to disagree within ten days after being furnished with a copy of the proposed statement of facts, the matter shall be submitted to and settled by the trial court or judge thereof and the statement of facts be by him made to conform to the truth.”

The rule states that it is “unnecessary” to secure the approval of the trial judge unless, the parties fail or refuse to agree on the statement of facts, but it does not state that it is improper to secure the approval of the trial judge in other circumstances. The question, therefore, is whether the trial judge’s signature on the statement of facts constitutes a valid authentication.

Authentication is an informality which can be waived under Rule 404, T.R.C.P., if no objection is made within 30 days. Roberson Farm Equipment Company v. Hill, 514 S.W.2d 796 (Tex.Civ.App.—Texarkana 1973, writ ref’d n. r. e.); Sparks v. Chandler, 201 S.W.2d 252 (Tex.Civ.App.—El Paso 1947, no writ). Since objections were raised by the appellees in Causes 1255 and 1259 within 30 days of the filing of the statements of fact, no waiver has occurred in these two cases.

The courts have not been entirely consistent in their approach to authentication under Rule 377(d). Approval by the trial judge without prior presentation of the statement of facts to appellee has been considered sufficient compliance with Rule 377(d) to serve all the purposes contemplated by the rule. Wells-Grinnan M.A.B. v. Belton Sand and Gravel Co., 293 S.W.2d 70 (Tex.Civ.App.—Austin 1956, no writ); Newsom v. Boyd, 203 S.W.2d 874 (Tex.Civ.App.—Galveston 1947, no writ); Sparks v. Chandler, supra. In Sparks the court stated:

“Section (d) contemplates, we think, that the statement of facts when prepared will be submitted to the opposing party for action thereon, but there is no provision that does in anywise condemn one prepared, certified and approved as a full and complete and true statement of the facts adduced on the trial.”

As an additional reason to permit filing of the statement of facts, the court in Sparks cited waiver under Rule 404 due to lateness of the motion to strike. In Wells-Grinnan and Newsom, however, there was no indication that the objections were tardy.

In contrast, the Ft. Worth Court viewed a statement of facts signed by a judge as “incomplete” because it contained no certificate showing the necessity for the judge’s approval. Foster v. Buchele, 213 S.W.2d 738 (Tex.Civ.App.—Ft. Worth 1948, writ ref’d n. r. e.). In Foster, the appellee’s motion to strike the statement of facts contained numerous objections to purported errors and omissions. Rather than striking the statement of facts or filing it as presented, the Court granted the parties 15 days in which to reach an agreement. If no agreement was achieved in the allotted time, then the parties to the appeal were to follow the procedures in Rule 377(d) in seeking authentication by the trial judge.

The Beaumont Court in St. Paul Fire & Marine Insurance Company v. Lake Livingston Properties, Inc., 546 S.W.2d 404 (Tex.Civ.App.—Beaumont 1977, writ ref’d n. r. e.), struck the statement of facts and held that a statement of facts signed only by the court reporter and judge to be “unauthenticated.” We believe that this result is too harsh and is not called for by the Rules of Civil Procedure or the prior case law.

We agree with the reasoning in Roberson Farm Equipment Company v. Hill, supra. The opinion clearly and correctly states the law in regard to the need for authentication and the circumstances under which it can be waived. In Roberson, neither the trial judge nor the parties had signed the statement of facts. We find nothing in the opinion which expressed a need or even a preference for first seeking the approval of the parties before presenting the statement of facts to the judge. Neither Roberson nor Rule 377(d) requires such a severe penalty as striking the statement of facts when the same has been submitted to the judge for approval rather than the parties or their attorneys. Wells-Grinnan M.A.B. v. Belton Sand and Gravel Co., supra.

The clear intent of Rule 377(d) is to avoid the necessity of asking judges to review statements of fact except in instances where a disagreement between the parties needs to be resolved. We believe that attorneys should be encouraged to follow this procedure. However when time or circumstances seems to require the prior approval by the trial judge, we see no need for enforcing strong sanctions against the appellant just because the parties do not approve the statement of facts prior to filing in the appellate court. We therefore adopt an approach to the problem similar to that outlined. in Foster v. Buchele, supra. Where, as in the situations here presented, there is a question of proper authentication of the statement of facts, and an objection to the statement of facts is made within 30 days after the same is filed in a Court of Civil Appeals, the objecting parties may request a reasonable time in which to approve the statement of facts or present his objection to the opposing party for his approval to the objected matter. Where resolution of the differences cannot be had between the parties, then such disagreements shall be submitted to the trial judge for his resolution based on his own recollections as rule 377(d) envisions. If any material matter has been omitted or it is shown that the statement of facts was prepared in violation of the rules, remedial action under Rules 428 and 429, T.R.C.P., is available.

In Cause 1286, a different type of objection to the statement of facts was raised, but the remedy is similar to that prescribed above. Appellant Farias, under Rule 355, T.R.C.P., secured a transcript and statement of facts without having to pay or give security for the cost. The trial judge ordered the court reporter to prepare a statement of facts in narrative form. Appellant contends that he is entitled to a question and answer statement of facts.

There is no right to a question and answer form for the statement of facts in a case appealed in forma pauperis. In re Garcia, 443 S.W.2d 594 (Tex.Civ.App.—El Paso 1969, no writ); Seele v. Seele, 371 S.W.2d 922 (Tex.Civ.App.—San Antonio 1963, writ ref’d n. r. e.); Ackerson v. Farm & Home Savings & Loan Ass’n of Missouri, 71 S.W.2d 381 (Tex.Civ.App.—San Antonio 1934, no writ); Rule 380, T.R.C.P. When an objection is timely made to the contents of the narrative statement of facts, then the above procedure with respect to Causes 1255 and 1259 will be followed in order that the parties may have a reasonable time to resolve their differences or submit the statement of facts to the trial judge to settle any disputes between them.

The motions to strike the statements of fact in Causes 1259 and 1255 are hereby denied. However, the objecting appellee in each of those eases will have 15 days from the date of this opinion within which to approve (by signature) the statement of facts now on file in this Court or to notify appellant, in writing, his specific objections and reasons why he will not approve the statement of facts. If the parties then agree, they shall sign the statement of facts and return the same (within the time so allotted) to the clerk of this Court. In case of a dispute between the parties, and if agreement between the parties is not reached within 20 days from the date of this opinion, the parties will return the statement of facts to the clerk of this Court with his written objections attached thereto. Whereupon, this Court will deliver the statement of facts to the respective trial judge for his hearing and resolution of the differences between appellant and appellee.

The motion to extend the time in which to file a substitute statement of facts in Cause 1286 is hereby denied, with the instruction that the parties follow the same procedure set out above to settle any disputes which may occur concerning the content of the narrative statement of facts.

MOTIONS DENIED WITH INSTRUCTIONS.

OPINION

NYE, Chief Justice.

Rose Sales Company (appellee) sued Texas Hauling Contractors Corporation (appellant) on a sworn open account for the purchase price of a used motor. An invoice with a specific warranty was prepared by Rose Sales Company at the time the defendants received the motor in question. The defendant, purchaser, defended on the grounds that the motor was defective when purchased and that the motor was returned pursuant to an oral warranty that was different from that contained in the written invoice. Trial was to the court, sitting without a jury. Judgment was entered for Rose Sales Company for the purchase price of the motor and attorney’s fees. Defendant purchaser perfected his appeal to this Court. The question before this Court is the sufficiency of the evidence to sustain the trial court’s judgment.

At trial, the defendant contended that its president, Floyd McLaughlin, telephoned Rose Sales Company on March 12, 1976, to inquire whether Rose Sales had a good used “366 engine” for a disabled truck. McLaughlin testified that he was informed that Rose Sales had such a motor to sell and that if the engine was not “good”, the purchaser could return the motor. Rose Sales contended on the other hand that the engine was sold under a specific warranty guaranteeing an exchange in the event the heads, crankshaft or block failed. At the conclusion of all of the evidence, the trial court rendered judgment in favor of Rose Sales Company for $500.00, the purchase price of the used engine.

The trial court recited certain fact findings and legal conclusions in its judgment. It did not file separate findings of fact or conclusions of law. Since no findings of fact were filed by the trial court, we are relegated to an examination of the implied findings for support of the trial court’s judgment. Such recitation in the judgment itself are not proper. It tends to mislead the parties, sometimes resulting in the failure by them to request and receive specific findings of fact essential to an attack based on insufficient evidence of the various elements necessary to support a judgment. Recitations contained in the judgment cannot be substituted for separately filed findings of fact and conclusions of law. As such, they do not afford any basis upon which a losing party may attack the trial court’s judgment. Morin v. Morin, 561 S.W.2d 263 (Tex.Civ.App.—Corpus Christi 1978, no writ); Fenlon v. Jaffee, 553 S.W.2d 422 (Tex.Civ.App.—Tyler 1977, writ ref’d n. r. e.); Roberson Farm Equipment Company v. Hill, 514 S.W.2d 796 (Tex.Civ. App.—Texarkana 1973, writ ref’d n. r. e.).

Where no findings of fact or conclusions of law have been filed, as in this case, the judgment of the court will be affirmed if there is any evidence of probative force to support it upon any theory authorized by law. Lassiter v. Biiss, 559 S.W.2d 353 (Tex. Sup.1977); Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup.1962); Atlantic Richfield v. Trull, 559 S.W.2d 676 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d w. o. j.); Don’s Marine v. Haldeman, 557 S.W.2d 826 (Tex. Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.); Godde v. Wood, 509 S.W.2d 435 (Tex. Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.). The Courts of Civil Appeals presume that the trial court found all necessary facts in favor if its judgment, and the reviewing court is bound by such implied findings if there is any evidence of probative value to support them. Atlantic Richfield v. Trull, supra; Don’s Marine v. Haldeman, supra; Pruske v. National Bank of Commerce of San Antonio, 533 S.W.2d 931 (Tex.Civ.App.—San Antonio 1976, no writ). In reviewing the evidence, we must consider only that evidence most favorable to the trial court’s presumed findings and disregard all contrary evidence. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Fenlon v. Jaffee, supra; Bowen v. El Paso White Truck Co., 434 S.W.2d 931 (Tex.Civ.App.—El Paso 1968, no writ); Oxford Development Co. v. Eppes, 422 S.W.2d 583 (Tex.Civ. App.—Corpus Christi 1967, no writ).

This case was filed upon a sworn open account, which was met by a denial under oath by the purchaser that each and every item stated in the account was not just or true. This sworn denial of the account sued upon placed the burden upon Rose Sales Company to prove its case as at common law and independent of Rule 185, Texas Rules of Civil Procedure. J. E. Earnest & Co. v. Word, 137 Tex. 16, 152 S.W.2d 325 (1941); Opryshek v. McKesson & Robbins, Inc., 367 S.W.2d 357 (Tex.Civ.App.—Dallas 1963, no writ); Trice Contract Carpets & Furniture, Inc. v. Martin, 334 S.W.2d 554 (Tex.Civ.App.—Amarillo 1960, no writ); Davis v. Gilmore, 244 S.W.2d 671 (Tex.Civ. App.—San Antonio 1951, writ ref’d); Burtis v. Butler Bros., 243 S.W.2d 235 (Tex.Civ. App.—Dallas 1951, no writ).

The burden was upon Rose Sales Company to establish each and every item of its account by legal and proper evidence. The essential evidence of such proof includes the following: 1) sale and delivery of the merchandise; 2) that the prices charged for the goods were in accordance with an agreement, or in the absence of an agreement that they were usual, customary or reasonable; and 3) that as of the date of the delivery of the goods for thirty days thereafter the amount due remained unpaid. California Chemical Co. v. Sasser, 423 S.W.2d 347 (Tex.Civ.App.—Corpus Christi 1967, no writ); Bosco Bolt, Nut, Screw Co. v. Mercer Construction Co., 412 S.W.2d 322 (Tex.Civ.App.—Corpus Christi 1967, no writ); Burrus Mills, Inc. v. Hein, 399 S.W.2d 950, 952 (Tex.Civ.App.—Houston 1966, writ ref’d n. r. e.); Opryshek v. McKesson & Robbins, Inc., supra at 358; Trice Contract Carpets & Furniture Inc. v. Martin, supra at 558.

The parties agree on this appeal that the only real dispute is whether Rose Sales Company gave a binding oral warranty over the telephone to the president of Texas Hauling Contractors to the effect that if the used engine purchased was not “good”, Texas Hauling Contractors could exchange the motor. This dispute concerns the first element of plaintiff’s cause of action — i. e., a sale was consumated in accordance with the warranty listed on the invoice which guaranteed the heads, crankshaft and block of the motor.

There is ample evidence in the record to support the trial court’s implied finding. Evarispo Espinoza, truck foreman for the purchaser, testified that he and the chief mechanic, Sam Zapata, went to Rose Sales Company on behalf of the purchaser to acquire a used “366 engine” and some other parts not material to this appeal. Espinoza testified that they dealt with Mike Rose of Rose Sales who prepared an invoice that Mr. Espinoza signed. He further testified that they took the engine from Rose Sales and delivered it back to the site at which Texas Hauling Contractors Corporation was then working. Mike Rose testified that he sold the motor to the employees of Texas Hauling Contractors Corporation and that he gave them the same guarantee given by Rose Sales on all of the motors that they sell. This guarantee is that the block, head and crankshaft are good. He further testified that Espinoza and Zapata started the engine and checked it out prior to the time they accepted and removed it from the premises of Rose Sales.

The record also indicates that shortly after this engine was installed in the purchaser’s disabled truck, it was returned to Rose Sales with a broken connecting rod. Mike Rose testified that even though this failure was not covered by the express warranty, he agreed to exchange it for a second used motor in order to try to keep the business relations between the parties continuing. He testified that two business partners, two mechanics, and he, himself, personally checked out the second motor to make certain that it was in good running condition. Mr. Espinoza and Mr. Zapata picked up this second engine and delivered it to Texas Hauling Contractors’ work site. Prior to taking the second engine, Mr. Zapata testified that he examined the engine while it was running, and then concluded that it was in good working order. The record indicates, however, that this second engine threw a rod after 97 miles of operation. This failure was not covered by the express written warranty.

The evidence is sufficient that the sale was consummated at Rose Sales’ place of business and that both parties agreed to the express warranties contained in the written invoice. There is testimony in the record that it is not customary in the trade to give any warranty on a used motor. However, contrary to the usual and customary practice in the industry, Rose Sales did guarantee the motor as to the head, crankshaft and block. The invoice, containing this warranty, was prepared and signed on the spot at the time of sale. The defect, if any, did not go to the parts warranted by Rose Sales.

The evidence regarding an alleged oral warranty is conflicting. The trial court, as the trier of facts in this case, was at liberty to believe all or none or any part of the testimony of any party or any witness. Under the above stated rule, we look only to that evidence favorable in upholding the trial court’s judgment. We cannot substitute our judgment for that of the trial court even if we might have reached a different conclusion.

The judgment of the trial court is AFFIRMED.


author: J. CURTISS BROWN, Chief Justice.

text:
    Shellie MOORE, Appellant, v. TEXAS EMPLOYMENT COMMISSION, Appellee.
    No. 1752.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 5, 1977.
    Rehearing Denied May 3, 1978.
    Carol Hildebrand, Houston Legal Foundation, Houston, for appellant.

      John L. Hill, Atty. Gen., Michael E. Stork, Gayle Johnson Cipriano, Martha E. Smiley, Asst. Attys. Gen., Austin, for appel-lee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from a judgment that there was substantial evidence to support the Texas Employment Commission’s finding that the appellant refused to participate in the Work Incentive Program without good cause.

Shellie Moore (Moore or appellant) entered the Texas Employment Commission (TEC or appellee) Work Incentive Program (WIN) in October 1975 in order to qualify for Aid to Families with Dependent Children (AFDC). Moore attended WIN orientation classes and watched films on how to apply for jobs. Between October 17, 1975 and November 28, 1975, she was given sixteen job referrals. In December 1975, the TEC employee responsible for directing Moore’s job search made the determination that Moore had failed to report to seven of her scheduled job interviews. Moore was subsequently notified that she had been deregistered from WIN, and that her AFDC grants would be reduced accordingly, because of her failure to participate in the program.

Moore appealed to a TEC appeal tribunal, which determined that she had been lawfully participating in the program and should be allowed to continue to do so. The decision of the appeal tribunal was subsequently reversed by TEC, and Moore was deregis-tered from WIN and her AFDC grant reduced. Moore then brought an action for damages and injunctive relief in district court in Harris County. The court held that TEC’s order was supported by substantial evidence and rendered judgment that Moore take nothing, from which judgment she appeals.

Moore contends, in her two points of er-' ror, that the trial court erred in holding that TEC’s decision was supported by substantial evidence and in refusing to grant the injunctive relief that she had requested. TEC asserts, in its sole cross point, that the trial court erred in denying TEC’s motion to dismiss for lack of jurisdiction. Our decision on the threshold question of whether the trial court had jurisdiction over the subject matter of this suit obviates a discussion of the appellant’s points of error.

Moore alleged, in her first amended petition, that the trial court had jurisdiction under articles 1906, 5221b — 4, and 6252-13a of the Texas Revised Civil Statutes. Article 5221b — 4 provides for judicial review of TEC decisions on claims for “benefits.” Article 5221b — 17 defines “benefits” to mean “the money payments payable to an individual . . .” Tex.Rev.Civ.Stat.Ann. art. 5221b-17(b)(l) (1971). Moore concedes that the benefits she lost because of her deregis-tration from WIN were not money payments, but consisted of counseling services, job referrals, and eligibility for AFDC benefits paid by another agency. Since Moore’s claim was not one for benefits, the trial court did not have jurisdiction under article 5221b — 4 to review her deregistration from WIN.

TEC contends that article 6252 — 13a does not authorize judicial review of its administrative decisions because TEC is an agency wholly financed by federal funds. See Tex.Rev.Civ.Stat.Ann. art. 6252-13a, § 3(1) (Supp.1978) (defining state agencies subject to judicial review). We reject that assertion. TEC clearly is not wholly financed by federal funds. Tex.Rev.Civ.Stat. Ann. arts. 5221b-5(a), 5221b-9(a), 5221b — 11, 5221b-12, 5221b — 22a (1971). We therefore hold that administrative decisions of the Texas Employment Commission are subject to judicial review pursuant to articles 1906 and 6252-13a. See Tex.Rev.Civ.Stat.Ann. art. 1906, § 6 (1964), and art. 6252-13a, § 19 (Supp.1978).

Although TEC decisions to deregis-ter participants from WIN are subject to judicial review generally, the trial court did not acquire jurisdiction in the present case. Moore failed to comply with the statutory requirement that she file her action for judicial review in a district court of Travis County, Texas. See Tex.Rev.Civ.Stat.Ann. art. 6252-13a, § 19(b)(1) (Supp.1978). Nor did she exhaust her administrative remedies by filing a timely motion for a rehearing of the TEC decision. That decision was not, therefore, a final and appealable decision subject to judicial review in the district court. Texas State Bd. of Pharmacy v. Kittman, 550 S.W.2d 104 (Tex.Civ.App.—Tyler 1977, no writ); Tex.Rev.Civ.Stat.Ann. art. 6252-13a, §§ 16(c) and 19(a)-(b) (Supp.1978).

The judgment of the trial court is reversed and the cause dismissed for lack of jurisdiction.


author: RALEIGH BROWN, Justice.

text:
    Charles Kenneth CAMPBELL, Appellant, v. NORTHWESTERN NATIONAL LIFE INSURANCE COMPANY, Appellee.
    No. 5101.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 22, 1977.
    Rehearing Denied Jan. 12, 1978.
    Earle Cobb, Jr., Cobb, Thurmond & Bain, San Antonio, for appellant.
    George Spencer and Nolan Welmaker, Clemens, Spencer, Welmaker & Finck, San Antonio, for appellee.
   RALEIGH BROWN, Justice.

Charles Kenneth Campbell sued Northwestern National Life Insurance Company for specific performance of an alleged option contract authorizing his purchase of an apartment complex owned by Northwestern and alternatively, for the value of Campbell’s services in managing and remodeling the property. Northwestern’s motion for judgment notwithstanding the verdict of the jury was granted and judgment rendered for Northwestern. Campbell appeals. We affirm.

Campbell alleges that he is an architect and businessman who customarily operates and manages apartments that he owns. He is not in the business of managing apartments for others. On July 8, 1975, an agreement was made between Campbell and Northwestern wherein Campbell agreed to manage and remodel the Les Cha-teaux Apartments, which were in a “distress” condition, restoring them to reputable condition. Campbell contends that for his services Northwestern promised to pay certain expenses, which were paid, and in addition promised him an option to purchase the apartments at their “cash cost” to Northwestern. Northwestern contends no such promise was made and that Campbell has been paid the only consideration promised.

The following special issues were submitted to and answered by the jury:

“ISSUE NO. 1
Do you find from a preponderance of the evidence that Charles K. Campbell offered to manage and remodel the Les Chateaux Apartments for the amounts paid him by Northwestern National Life Insurance Company and an option to purchase the apartments at the cash cost to Northwestern National Life Insurance Company?
Answer ‘We do’ or ‘We do not’.
We the jury answer We do
If you have answered Issue No. 1 ‘We do’, then answer Issue No. 2. If you have answered Issue No. 1 ‘We do not’, then do not answer Issues 2 through 9.
ISSUE NO, 2
Do you find from a preponderance of the evidence that Northwestern National Life Insurance Company accepted the foregoing offer?
Answer ‘We do’ or ‘We do not’.
We the jury answer We do
If you have answered Issue No. 2 ‘We do not’, then answer Issue No. 3. If you have answered Issue No. 2 ‘We do’, then next answer Issue No. 4.
ISSUE NO. 3
Do you find from a preponderance of the evidence that Northwestern National Life Insurance Company caused Charles K. Campbell to believe that his offer had been accepted?
Answer ‘We do’ or ‘We do not’.
We the jury answer_
ISSUE NO. 4
What do you find from a preponderance of the evidence to be the increase in value, if any, of the apartments resulting from Charles K. Campbell’s management and remodeling?
State the amount, if any, in dollars and
cents.
We the jury answer $400,000 (Four hundred thousand dollars).
ISSUE NO. 5
Do you find from a preponderance of the evidence that the remodeling and improvements made by Charles K. Campbell to the apartments were done because of the good faith belief that Charles K. Campbell had an option to buy the property at the cash cost to Northwestern National Life Insurance Company?
Answer ‘We do’ or ‘We do not’.
We the jury answer We do
ISSUE NO. 6
What do you find from a preponderance of the evidence to be the cash cost to Northwestern National Life Insurance Company of the Les Chateaux Apartments?
Answer in dollars and cents, if any.
We the jury answer $1.450.053.00
ISSUE NO. 7
Do you find from a preponderance of the evidence that Pernel Eeitan had the apparent authority to bind Northwestern National Life Insurance Company?
Answer ‘We do’ or ‘We do not’.
We the jury answer We do
ISSUE NO. 8
What amount of money, if any, if paid now in cash, do you find from a preponderance of the evidence, will fairly and reasonably compensate Charles K. Campbell for his unpaid services, if any, rendered in behalf of Northwestern National Life Insurance Company in remodeling the Les Chateaux Apartments?
Answer in dollars and cents, if any.
We the jury answer $80.095.63
ISSUE NO. 9
What amount of money, if any, do you find from a preponderance of the evidence to be the reasonable value of the necessary legal fees incurred by Charles K. Campbell in connection with this suit.
Answer in dollars and cents, if any.
We the jury answer $4.980.00 .”
Campbell contends that he is entitled (1) to the reasonable value of his services under the rule noted in Scott v. Walker, 141 Tex. 181, 170 S.W.2d 718 (1943); or (2) to the enhancement in value of the property because of the improvements made thereon under the rule stated in Sharp v. Stacy, 535 S.W.2d 345 (Tex.1976).

In Scott, Mrs. Walker sought title and possession of a town lot. She sued for specific performance of a contract to convey or devise the premises in consideration of services performed by her alleging full performance and breach of the contract because of a transfer of the property to others. Alternatively, she sought to recover the reasonable value of her services. Defenses pleaded were the statute of frauds and the two year statute of limitations. The court said:

“Notwithstanding the fact that contracts like that upon which respondent relies are within the statute of frauds, the party who has performed the services contemplated by the contract is not without remedy. By reason of the statute, he may not bring an action to enforce the other party’s obligation to convey or devise real estate, but he may sue for and recover the reasonable value of the services rendered ... To prevent injustice the law implies, instead of the promised conveyance or devise of real estate, the obligation to pay the reasonable value of the services, or, as said in Laughnan v. Laughnan’s Estate, 165 Wis. 348, 162 N.W. 169, the law substitutes for the promise to convey or devise real estate as a consideration for the services the promise to pay their reasonable value. In such case the suit is not for the enforcement of the parol contract; it is on the implied contract to pay for the services performed .
While the contract is unenforceable by reason of the statute of frauds, it is nevertheless important to the plaintiff, suing for the value of services, to establish the contract, in order to show that the services were not gratuitously rendered and that the suit is not barred by limitation . . . ”

The rule in Scott permits recovery for reasonable value of services rendered when by reason of the Statute of Frauds an action to enforce the other party’s obligation to convey or devise real estate will not prevail. Scott, however, contemplates establishment of a contract.

Sharp also contemplates a contract between the parties, the court saying therein:

“The alleged oral agreement between Junior and his parents is clearly within the statute of frauds. Tex.Bus. & Comm. Code Ann. § 26.01(b)(4). To be resolved is whether the performance by Junior Stacy ‘relieves it from the operation of the statute of frauds, or, as more accurately stated, renders the contract enforcible in equity notwithstanding the statute.’ Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921).”

Campbell concedes “there was no specific agreement as to time and manner of payment of the purchase price and time of performance, and the contract violated the Statute of Frauds”.

The court in Botello v. Misener-Coliins Company, 469 S.W.2d 793 (Tex.1971) considering the enforceability of a contract said:

“. . . the parties may have reached some partial agreement for the sale and purchase of the land, but by that agreement only $5,000 of the $200,000 was to be paid in cash and the balance was to be deferred for payment and receipt at some subsequent time or times. As to the payment of $195,000, there was no agreement as to time or how that time could be determined. Without an agreement of the parties on this essential feature of the trade, there is no contract for the court to enforce — either by ordering specific performance or by awarding damages for a breach. Bryant v. Clark, supra; Bean v. Holmes, 236 S.W. 120 (Tex.Civ.App.1922, writ ref’d); Anno., 68 A.L.R.2d 1221 (1959).”

The special issues to which the jury responded fail to establish how Campbell was to pay the “cash cost” of the apartment. An enforceable contract granting Campbell an option to purchase the apartments was, therefore, not established. This court in Sharp v. Stacy, 525 S.W.2d 721 (Tex.Civ.App.—Eastland 1975) considering the effect of answers to immaterial issues on the granting of a judgment notwithstanding the verdict quoted Pigg v. International Hospitals, Inc., 421 S.W.2d 169 (Tex.Civ.App.—Dallas 1967, writ ref. n. r. e.), wherein the court said:

“. • . Rule 801, T.R.C.P., authorizes the court to disregard any special issue jury finding that has no support in the evidence. It has been held repeatedly that a jury finding which is immaterial to the real issues in the case, even though supported by evidence, may likewise be disregarded. First American Life Ins. Co. v. Slaughter, 400 S.W.2d 590 (Tex.Civ. App., Houston 1966, writ ref’d n. r. e.); Schiller v. Rice, 151 Tex. 116, 246 S.W.2d ■ 607 (1952); Owens v. State, 342 S.W.2d 183 (Tex.Civ.App.—Fort Worth 1961 no writ).”

We hold the court correctly disregarded the jury’s immaterial findings and granted judgment non obstante veredicto. Rule 301, T.R.C.P.

We have considered and overrule all other points of error.

Judgment is affirmed.


author: GUITTARD, Chief Justice.

text:
    L. L. S., Relator, v. Henry WADE and John Mead, Respondents.
    No. 19533.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 13, 1978.
   ORIGINAL APPLICATION FOR PROHIBITION

GUITTARD, Chief Justice.

The relator, sixteen years of age, was accused of murder. The juvenile court transferred her to a criminal district court for trial as an adult under Texas Family Code Annotated § 54.02 (Vernon 1975). From that order, she has taken an interlocutory appeal to this court under § 56.-01(c)(1) of the Code. Meanwhile, her trial has been set in the criminal district court for February 27, 1978, and her motion for continuance, based on pendency of the appeal, has been overruled. She now applies to this court for a writ of prohibition to prevent the district court from proceeding until the interlocutory appeal has been decided. We deny the writ on the ground that the trial in the district court would not interfere with our jurisdiction.

Petitioner recognizes that § 56.01(g) of the Code expressly provides that an appeal does not suspend the order of the juvenile court unless that court so orders, and she concedes that if the criminal trial results in a conviction and we should later reverse the transfer order of the juvenile court, the conviction would be vacated. She argues, however, that one of the principal purposes of the code provisions concerning juvenile delinquents is to avoid the taint of criminality and that this purpose would be defeated by a criminal trial, even though the conviction should later be vacated.

We conclude that this possible taint of criminality does not authorize issuance of a writ of prohibition. Our original jurisdiction is found in Texas Revised Civil Statutes Annotated, article 1823 (Vernon 1964), which authorizes courts of civil appeals to issue “writs necessary to enforce the jurisdiction of said courts.” The writ of prohibition may be used to prevent interference by a trial court with an appellate court in deciding a pending appeal or to prevent a trial court from entertaining suits which would relitigate controversies already settled by the appellate court. Smith v. Grievance Committee, 475 S.W.2d 396, 399 (Tex. Civ.App. — Corpus Christi 1972, no writ). Since our order on the interlocutory appeal would be given effect regardless of the result of the criminal trial, issuance of the writ is not necessary to enforce our jurisdiction. The taint of criminality resulting from a conviction is not a matter that interferes with our jurisdiction.

If relator desires a decision of the interlocutory appeal before the trial in the criminal court, her remedy is a motion to advance the appeal. She has filed such a motion, which we have granted. The submission of that appeal is now set for February 22, 1978, before the date set for the criminal trial.

Application for writ of prohibition denied.