author: SPURLOCK, Justice.

text:
    COOPER MACHINERY CORPORATION, Appellant, v. CIT CORPORATION, Appellee.
    No. 18050.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 1, 1979.

      Atkins & McLarty and Bill Atkins, Arlington, Texas, for appellant.
    Johnson, Bromberg, Leeds & Riggs and Alvin H. Badger, Dallas, for appellee.
   OPINION

SPURLOCK, Justice.

Assignor, without recourse, of a conditional sales contract personally guaranteed by two principals of the corporate purchaser under the sales contract, appeals from a judgment against it for breach of warranty. Assignor warranted the genuineness and enforceability of the sales contract and guaranty agreement, and that all signatures, names, addresses, and other facts contained in those contracts are true and correct. The trial court found breaches in several respects. The question presented on appeal is whether, in view of the parol evidence rule, there is evidence supporting the trial court’s construction of the warranty clause and findings of breaches thereof.

We reverse and render.

Appellant, Cooper Machinery Corporation, is an equipment dealer in Fort Worth and will be referred to as Machinery. Glen Cooper is Machinery’s president and will be referred to as Cooper. CIT Corporation financed the transaction out of which this action arose and will be referred to as CIT. CATCO Construction Company, Inc., is a closely held Texas corporation engaged in the construction business and will be referred to as CATCO. CATCO is the purchaser under the sales contract and is now apparently insolvent. H. E. Kearley, Jr., also known as Gene Kearley, is CATCO’s president and will be referred to as Kear-ley, Jr. H. E. Kearley, Sr., is Kearley, Jr.’s father and will be referred to as Kearley, Sr. Tommy Blankenship is one of CATCO’s principals and will be referred to as Blankenship.

This action involves the execution of three written contracts: (1) a conditional sales contract, (2) a guaranty agreement providing for the personal guaranty thereof, and (3) an agreement assigning all rights under the previous two agreements and containing the warranty which was allegedly breached. The dispute centers around the signature “H. E. Kearley” on the sales contract and guaranty agreement. The problem is that Machinery and CIT, believed that Kearley, Sr., had signed the contracts as CATCO’s president. Kearley, Jr., actually signed the contracts.

Kearley, Jr., on behalf of CATCO, negotiated with Machinery for the purchase of some paving equipment. CATCO had previously employed a subcontractor to do its paving and wanted to avoid losing profit by doing its own paving. Machinery was willing to enter into a conditional sales contract with CATCO if it could find someone to finance the sale by accepting an assignment of the sales contract. CIT had previously financed some sales for Machinery in this manner and Cooper contacted CIT inquiring if it would finance the sale to CATCO.

After checking CATCO’s credit, CIT agreed to accept the assignment on the conditions that CATCO make a down payment of ten percent of the contract price, and that two of CATCO’s principals would personally guarantee the sales contract. CIT named Kearley, Sr., and Blankenship as the CATCO principals it wanted to make the guarantee. CIT furnished Cooper with printed forms for the contracts to be executed, with the information it wanted to have included therein penciled on another set of forms as a guide. A Machinery employee prepared the documents actually executed by typing the penciled information in the appropriate blank spaces on the printed forms supplied by CIT.

The sales, guaranty, and assignment contracts were all executed without any problems being recognized. After making several payments on the sales contract, CAT-CO defaulted. With Machinery’s knowledge and assistance, CIT repossessed the equipment and sold it at a foreclosure sale. The sale resulted in a deficiency in excess of $15,000.00. CIT brought action against CATCO, Kearley, Sr., Kearley, Jr., Blankenship, and Machinery.

CIT’s action against Kearley, Jr., was severed before trial. He has not been served with citation because his whereabouts were and continue to be unknown. The action against CATCO was severed at the end of the trial before judgment. CIT had attempted to serve CATCO by serving Kearley, Sr., who it thought was CATCO’s president. The evidence established that Kearley, Sr., is in no way connected with CATCO. Therefore, CATCO had not been properly served. The action against Kear-ley, Sr., and Blankenship is on the guaranty agreement. The action against Machinery is on an alleged breach of warranty covering the sales contract and guaranty agreement contained in its assignment contract with CIT. No theory of fraud was involved in the trial nor on appeal. Further, no question of any agency relationship between Kearley, Sr., and Kearley, Jr., has been raised.

The trial court, without a jury, rendered judgment that CIT take nothing against Kearley, Sr.; that Blankenship is liable on his guaranty of the sale contract; and that Machinery is liable for breach of warranty. Machinery is the only party appealing. The parts of the judgment concerning Kearley, Sr., and Blankenship are final and need not be noticed. Further, we find it unnecessary to fully discuss any of Machinery’s points of error except those relating to breach of warranty. However, we will make the following brief remarks about two of these other points.

Machinery claims the trial court erred in severing CATCO prior to judgment while rendering judgment jointly and severally against it and Blankenship because CATCO is the principal obligor on the sales contract. Machinery correctly states the general rule that usually a party must maintain an action against the principal obligor to be able to obtain judgment against a party secondarily liable, with certain exceptions, none of which apply. We find this rule inapplicable as to Machinery because judgment was rendered against it for breach of its warranty rather than on any theory of liability on the sales contract or guaranty agreement. CIT has never claimed that Machinery is secondarily liable on either of these contracts. Therefore, Machinery’s point of error no. 1 is without merit and is overruled.

Machinery also complains CIT failed to request or demand that it repurchase the sales contract which it claims is a condition precedent to liability for breach of warranty. The record reflects that while CIT informed Machinery it might be asked to honor its promise to repurchase, this was never actually demanded. CIT claims that filing suit against Machinery alleging breach of warranty is sufficient demand for Machinery to honor its promises. We agree. Since there was no form for the request or demand specified in the assignment contract, we believe that suit upon allegation of breach of warranty was sufficient to put Machinery on notice that CIT wanted it to repurchase the sales contract or settle with CIT on some other remedy. We therefore overrule Machinery’s point of error no. 2 on condition precedent.

Machinery attacks the trial court’s findings and conclusions pertinent to breach of warranty by numerous points of error. These complain there is no evidence or insufficient evidence to support the court’s judgment that Machinery breached its warranty. To decide this question it is necessary to review the details of the agreements of the parties and the evidence of the transaction.

The contract assigning Machinery’s right under the sales contract and guaranty agreement was without recourse as to CAT-CO’s ability to pay under the sales contract. However, it contained the following warranty:

“Assignor warrants that: the contract and any accompanying notes, guaranties, waivers and/or other instruments are genuine, enforceable, the only contract and notes executed concerning the property described in the contract and are and will continue free from defenses, set-offs and counterclaims; all signatures, names, addresses, amounts and other statements and facts contained therein are true and correct; . . .

In order to properly construe this warranty clause we must discuss the transaction to which it applies in more detail.

The record reflects when CATCO was incorporated on March 5,1973, Kearley, Jr., signed his father’s name, H. E. Kearley, Sr., on the articles of incorporation as an incor-porator. Therefore, the articles could infer that Kearley, Sr., is one of CATCO’s principals. Cooper testified that a man known to him only as Gene Kearley negotiated for the equipment purchase on behalf of CAT-CO. Later Cooper discovered that Gene Kearley is H. E. Kearley, Jr. Cooper further testified that Kearley, Jr., indicated that his father was president of CATCO. He gave Cooper the name of H. E. Kearley (without any Junior or Senior designation) as CATCO’s president and an address 1005 E. Elm, P. 0. Box 779, Hillsboro, Texas. It is disputed whether this was intended to be a business address for CATCO or Kearley, Sr.’s residence. Kearley, Jr., also gave Cooper a list of credit references for CATCO.

Cooper forwarded all this information to CIT. CIT made a credit investigation of CATCO. It received several credit reports. Taken together, these indicate that Kear-ley, Sr., is CATCO’s president and Kearley, Jr., is its general manager. CIT obtained a financial statement from Blankenship. No such financial statement on Kearley, Sr., appears in the record. However, one credit report on him as an individual does appear. It fails to reveal a history of credit transactions anywhere near as large as this transaction. The largest amount financed according to the report is $2,750.00. The total contract price of this transaction is in excess of $46,000.00.

When CIT notified Cooper that it would finance the sale if two of CATCO’s principals would personally guarantee the contract, it named Kearley, Sr., and Blankenship. It is disputed whether CIT actually named Kearley, Sr., or merely indicated H. E. Kearley (without any Junior or Senior designation). However, the record is quite clear that at this time both Cooper and CIT believed Kearley, Sr., was the president.

Although CIT furnished Cooper with the contract forms and information to be included, it was Cooper’s responsibility to prepare the contracts and have them executed. The guaranty agreement is printed on the reverse side of the conditional sales contract. The assignment contract is on a separate form.

After a Machinery employee had prepared the instruments, Kearley, Jr., obtained them from Cooper and indicated to Cooper that he would take them to Hillsboro to have his father sign them. Kearley, Jr., returned the instruments to Cooper. They bore the signature “H. E. Kearley” (without any Junior or Senior designation) on the appropriate signature lines. On the conditional sales contract the signature was on the line designated for the corporate representative signing on behalf of the corporate purchaser. On the guaranty agreement the signature is on a line designated for an individual guarantor. In addition, on the sales contract the title of president is handwritten next to the signature. It appears that the same individual signed both the sales contract and guaranty agreement.

Cooper accepted the instrument from Kearley, Jr., without question. Later, without Kearley, Jr., being present, Blankenship executed the guaranty agreement by signing it just below the signature of Kearley. Then Cooper executed the assignment agreement on behalf of Machinery. No CIT representative was present when Blankenship and Cooper executed the contracts. CIT accepted all of these instruments without question.

After making several payments, CATCO defaulted. Upon attempting to collect under the contracts CIT discovered there was some question about which Kearley signed the contracts and about who was CATCO’s president. The trial court found that Kear-ley, Jr., is CATCO’s president; that he actually signed the contracts; and that he does not reside at the Hillsboro address he gave to Cooper. The trial court also found that Kearley, Sr., is not CATCO’s president; did not sign or have any knowledge about the contracts; and does,reside at 1005 E. Elm in Hillsboro. The court found that Machinery tendered the contracts to CIT with the belief and representation that Kearley, Sr., had signed those instruments. It found that CIT had accepted them with the belief that Kearley, Sr., had signed as CATCO’s president.

Based on these facts, the court found that Machinery breached its warranty of the sales contract in two respects, and breached its warrant of the guaranty agreement in one respect. As to the sales contract the court found as follows:

“12. Defendant Cooper Machinery Company breached its warranty as to the genuineness and correctness of all names, addresses, and other statements of facts contained in the conditional sales contract in the following respects:
“a. That the H. E. Kearley who signed the conditional sales contract does not live at 1005 E. Elm, Hillsboro, Texas, as represented thereon.
“b. That the H. E. Kearley who resided at 1005 E. Elm Hillsboro, Texas, was not the President of CATCO Construction Company, as represented thereon.”

It is Machinery’s position that even though it and CIT were mutually mistaken about which Kearley was president and signed the contracts, it did not represent that Kearley, Sr., was president or had signed the sales contract on the face of that contract. It argues that the manner in which CIT’s forms were drafted limits the representations which are covered by its warranty only to those appearing on the faces of the contracts. Further, it asserts there is no other evidence which can be properly considered of any such representations. We agree with Machinery’s argument.

Note that the warranty in this case is a written warranty. Written warranties must be construed and applied as written. No evidence of any other oral or implied warranties can be considered under the parol evidence rule. Minneapolis-Moline Company v. Purser, 361 S.W.2d 239 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.). The parol evidence rule is not a rule of evidence but is a rule of substantive law. 2 C. McCormick & R. Ray, Texas Evidence § 1601 (2d ed. 1956). Therefore, even though evidence that Cooper made oral representations to CIT during his negotiations with it prior to the execution of the written contracts in question was admitted without objection, we cannot consider this evidence upon review. Thus the warranty clause warrants only those signatures, names, addresses, and facts contained in the sales contract and guaranty agreement. Note that the sales contract provides, “[n]o oral agreement, guaranty, promise, representation or warranty shall be binding.” Therefore, we conclude that only the representations on the face of the sales contract and guaranty agreement under the facts and pleadings in this case are covered by the warranty as written. Thus, that which the parties believed to be true is not necessarily what was represented and warranted by the contracts as written and executed.

Because the trial court found breaches of warranty in that the Kearley who signed that contract (Kearley, Jr.) does not live at the Hillsboro address, and the Kearley who does reside there (Kearley, Sr.) is not CATCO’s president, the question is raised whether the sales contract represents that any particular Kearley lives at the Hillsboro address or is president of CATCO. After carefully examining the sales contract we find no express representation therein of either of these facts. The only portion of the contract where the name Kearley, title of president, and the Hills-boro address appears is in the signature block for the execution of the contract by a corporate representative on behalf of the corporate purchaser, CATCO. It appears on the contract as follows:

“Debtor” Cateo Construction Co.. Inc, (typewritten) “(Name of individual, corporation or partnership)”
“By” H. E. Kearley (handwritten) “Title” President (handwritten) “(If corporation, have signed by President, Vice-President or Treasurer, and give official title. If owner or partner, state which.)”
1005 E. Elm (P. 0. Box 7791 (typewritten) “(Sreet Address)”
Hillsboro. Hill. Texas 76645 (typewritten) “(City, County and State)”
“Show place of business m state collateral located.

Note that below the line for the city, county and state an instruction for execution of the contract is printed on the form: “Show place of business in state where collateral located.” We believe this instruction for execution of the contract requires that CATCO’s business address be included on the contract. Therefore, it is our opinion that no where on the face of the contract is there a representation that any Kearley resides at any address. While there is evidence that Cooper informed CIT that Kear-ley, Sr., lived at the Hillsboro address, this evidence is not properly considered under the parol evidence rule as discussed above. Because there is no representation that the Kearley who signed that contract lives at any address, there can be no breach of warranty concerning the place of his residence. Therefore, the trial court erred in finding a breach in this regard.

Just as there is no express representation concerning the residence of any Kearley, we find no express representation that Kear-ley, Sr., is CATCO’s president. Looking again to the signature block of the sales contract we find only “H. E. Kearley” (without any Junior or Senior designation) and the title “President” handwritten next to the signature. It is CIT’s position that, since Cooper had orally informed it that Kearley, Sr., was the president and lived at the Hillsboro address, the signature on the sales contract together with the Hillsboro address is a representation that Kearley, Sr., is the president and signed the contract. It argues that, since Kearley, Jr., signed the contract, Machinery breached its warrant of the genuineness of the signature and the truth and correctness of the names, addresses, and facts thereon. We do not agree.

There is ample evidence in the record that both Machinery and CIT were mutually mistaken about which Kearley was president. We may assume, without deciding, that Kearley, Jr., mislead Cooper by representing that his father, and not he, was CATCO’s president. Further, Kearley, Jr.’s, failure to include a Junior designation with his name when he signed the contract may be assumed to be misleading. There is also evidence that when Cooper forwarded the information he had received about CATCO from Kearley, Jr., to CIT, he represented that Kearley, Sr., was president. However, Cooper’s oral representations to CIT cannot be considered under the parol evidence rule because of the manner in which CIT’s own forms are drafted, as previously discussed.

We construe the written warranty to represent that the signatures are genuine. That is, the person whose signature appears on the contract is the person who actually executed the contract. Further, that all the names, addresses, and facts in the contract are true and correct. That is, the person who executed the contract actually possessed the capacity in which the execution was made, and that the contract was executed for the purpose therein stated,

Applying the warranty as construed to the facts, we find that Kearley, Jr., signed the contract on behalf of CATCO. Kearley, Jr., is CATCO’s president and signed his own name. There is no evidence that he executed the sales contract for any purpose other than for the purchase of the equipment upon the terms contained in the contract. Therefore, since there is no representation that Kearley, Sr., is the president, and, in light of our construction of the warranty clause as applied to the facts, it is our opinion that no breach of warranty has been shown. The trial court erred in finding that Machinery breached its warranty of the sales contract. We must now consider the guaranty agreement.

The trial court made the following conclusion regarding the guaranty agreement:

“13. Defendant Cooper Machinery Company breached its warranty as to the genuineness and enforceability of the guaranty of H. E. Kearley, Sr.”

After reviewing the guaranty agreement we find no express representation that Kearley, Sr., would guarantee the sales contract. The only reference to Kearley is the signature “H. E. Kearley” (without any Junior or Senior designation) on a signature line in the guaranty agreement designated for an individual guarantor. CIT relies on the same oral representations Cooper allegedly made as it did regarding the sales contract. For the reasons stated above, these representations cannot be considered.

As applied to the guaranty agreement, we construe the warranty clause as representing that the person whose signature appears on the agreement actually signed it; that such person actually possessed the capacity in which he signed; that it was executed for the purpose therein stated, and therefore, it is enforceable against the person who executed it. As applied to the facts, Kearley, Jr., signed his name to the guaranty. He is CATCO’s president, and there is no evidence that he did not sign it for the purpose of personally guaranteeing the sales contract. Therefore, we find no breach of warranty.

We believe this construction of the warranty of the guaranty agreement is correct especially in light of what the parties bargained for and actually received. What CIT bargained for is expressed in the testimony of one of its employees.

“Q. As I understand the position of CIT, it would be a fair statement to say that CIT was interested in having the principals of CATCO, at least two principals of CATCO, endorse this note and signed it as guarantors. Would that be a true statement?
“A. Yes.
“Q. And were (sic) CIT particularly interested in getting anyone outside of CIT — outside of CATCO to sign as guarantors?
“A. I don’t believe so. I don’t believe we were interested in anybody that was not a principal of CATCO.
“Q. So you were interested in the president and one of the officers signing this particular instrument?
“A. Since it was a relatively new corporation and a closely held corporation, we were interested in all of the principals guaranteeing the transaction.”

This clearly indicates that CIT bargained for the personal guarantee of individuals that were principals of CATCO. But for their being one of CATCO’s principals, CIT had no interest in, nor did it bargain for, the endorsement of any other individuals. Therefore, when it conditioned acceptance of the assignment on the personal guaranty of Kearley, Sr. and Blankenship, what CIT really wanted was the personal guaranty of two of CATCO’s principals. In warranting the enforceability of the guaranty, Machinery warranted that the person who signed the guaranty agreement as a principal of CATCO actually was a principal. Therefore, because Kearley, Jr., is a principal and executed the guaranty agreement as such, CIT actually received what it bargained for and what Machinery warranted. Therefore, the trial court erred in concluding that Machinery breached its warranty as to the enforceability of the guaranty agreement against Kearley, Sr.

Although not all of the appellant’s points of error have been discussed, each has been severally considered and unless otherwise indicated above, each is overruled. There is no evidence which can properly be considered supporting the trial court’s finding of breaches of warranty of the sales contract, and its conclusion of breach of warranty of the guaranty agreement. Therefore, the trial court erred in rendering judgment against the appellant for breach of warranty.

The portion of the trial court’s judgment relating to appellant, Cooper Machinery Corporation, is reversed and judgment is rendered that appellee take nothing against that appellant.

       Quotation marks indicate matter printed on tl handwritten as indicated in parenthesis. contract form. Other matter is typewritten or


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    J. Frank POWELL, Appellant, v. VIGILANT INSURANCE COMPANY, Appellee.
    No. 1239.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 1, 1979.
    Rehearing Denied Feb. 22, 1979.
    Dicky Grigg, Spivey, Hazel & Grigg, Austin, for appellant.
    Richard W. Chote, Flahive & Ogden, Austin, for appellee.
   MOORE, Justice.

Appellant, J. Frank Powell, claiming to be an employee of Ponderosa Motor Inn, a partnership, filed a claim for workers’ compensation benefits with the Industrial Accident Board and received an award for disability benefits. Appellee, Vigilant Insurance Company, appealed to the District Court with a prayer that the award be set aside. Appellant filed his counterclaim alleging that while in the course and scope of his employment for Ponderosa Motor Inn he received an injury resulting in total disability. He prayed for judgment against the insurance company for total and permanent disability under the provisions of the Workers’ Compensation Act Art. 8306, et seq., Tex.Rev.Civ.Stat.Ann.

The cause came on for hearing before the trial court on motion for summary judgment filed by appellee, Vigilant Insurance Company, under the provisions of Rule 166-A, Tex.R.Civ.P. As grounds for a summary judgment, the insurance company alleged that appellant was not entitled to recover workers’ compensation benefits because at the time of his alleged injury he was a partner with a 20% interest in Ponderosa Motor Inn and therefore could not be an employee under the workers’ compensation insurance policy in the absence of an endorsement thereon specifically showing that he was covered by the policy as required by Art. 8309, sec. la. The company alleged that the policy contained no such endorsement and therefore appellant was not entitled to recover workers’ compensation benefits. After a hearing on the motion, the trial court rendered a summary judgment decreeing that appellant take nothing by his suit, from which appellant perfected this appeal.

We affirm.

By a single point of error appellant contends that the trial court erred in granting the summary judgment because there existed a genuine issue of a material fact, namely, whether the insurance company was es-topped to deny that the policy in question amounted to a special contract of insurance covering appellant.

Appellant admits that he was a partner in Ponderosa Motor Inn and owned a 20% interest therein at the time he was injured on December 20, 1975. It is undisputed that the policy contained no endorsement providing coverage of the partners and that the name of appellant, J. Frank Powell, was not endorsed thereon as being covered as required in Art. 8309, sec. la, supra. The record shows that the policy was written as a result of solicitation by Burton Barnes, who was a self-employed partner in the firm of Eichlitz, Dennis & Wray Insurance Agency. The policy shows to be a standard workers’ compensation insurance policy covering the employees of J. F. Powell and Hixon Development Company, d/b/a Ponderosa Motor Inn. Burton Barnes testified by deposition that he knew J. Frank Powell was a partner at the time he wrote the policy and he did not intend for him to be covered by the policy. He testified that no one connected with the partnership told him that appellant was to be covered by the policy. The policy was dated on March 20, 1974, and according to Barnes was sent to Ponderosa Motor Inn shortly thereafter. A renewal policy containing identical coverage was issued to Ponderosa Motor Inn on February 22, 1975.

Plaintiff filed suit in the District Court seeking total and permanent disability under the policy and the Workers’ Compensation Act. Appellant’s petition appears to be in the usual and customary form of a compensation suit. The petition contains no allegations that either the appellant or any other member of the partnership directed the insurance agent to write a policy covering appellant, nor are there any allegations that appellant sought to recover on the basis that a special contract was intended whereby appellant would be insured for benefits equal to the benefits payable under the Workers’ Compensation Act or that the failure of the policy to cover appellant was the result of fraud, accident or mistake.

The insurance company sought a summary judgment on the ground that the undisputed summary judgment proof showed that appellant was a partner in Ponderosa Motor Inn, and since the policy contained no endorsement showing appellant was covered by the policy, appellant could not, as a matter of law, recover workers’ compensation benefits under the policy in question.

In opposition to the motion for summary judgment, appellant filed an affidavit stating that on some undisclosed date after the policy was issued he asked Burton Barnes, the agent who issued the policy, whether the policy covered him, and Barnes stated that it did. Appellant Powell further stated that at the time he was injured on May 20, 1975, he was relying on the representation of Barnes that he was covered by the policy in question. He also stated in his affidavit that he audited financial statements, and supplementary financial information supplied to the insurance company included his salary. Nowhere in his affidavit did he testify that the insurance company was instructed or that the company agreed to extend coverage to him or any other partner by endorsement on the policy in compliance with Art. 8309, la. Nor did appellant adduce any summary judgment proof showing that the insurance company said or did anything to lead the appellant to believe that the company intended to cover him with a special contract of insurance affording the benefits and indemnity provided in the policy and measured by the provisions of the Workers’ Compensation Act.

In a summary judgment proceeding, where the defendant is the movant, the question on appeal, as well as in the trial court, is whether the summary judgment proof establishes as a matter of law that there was no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Rule 166-A(c), Tex.R.Civ.P.; Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).

A partner is usually held to be an employer and therefore he cannot be said to be an employee as contemplated by the Workers’ Compensation Act, Berger v. Fidelity Union Casualty Company, 293 S.W. 235 (Tex.Civ.App.—Amarillo 1927, no writ history); Southern Surety Co. v. Inabnit, 119 Tex. 67, 24 S.W.2d 375, 377 (Comm’n App.1930, opinion adopted); Superior Ins. Co. v. Kling, 160 Tex. 155, 327 S.W.2d 422, 424 (1959), unless the insurance contract shall specifically include the partner by endorsement thereon. Art. 8309, sec. la.

Appellant admits in his sworn affidavit that he was a partner. Nowhere in his response to the motion for summary judgment does he allege that he was entitled to recover workers’ compensation benefits on the policy in question under the Workers’ Compensation Act. Obviously he could not fill the dual capacity of employee and come within the Workers’ Compensation Act, and as we understand his brief he does not so contend. In any event the summary judgment proof establishes as a matter of law that appellant is not entitled to recover on the policy in question.

This brings us to the question, that although appellant does not bring himself within the terms and conditions of the Workers’ Compensation Act, are the facts here such as to show that the insurance company intended to make a special contract of insurance covering appellant and giving him a right to recover insurance benefits provided by the policy and measured by the Workers’ Compensation Act.

Appellant argues that the facts set forth in his affidavit showing that the insurance company’s agent told him after the policy had been issued that he was covered and his further statement that audited financial statements had been sent to the insurance company showing his salary was included for the purpose of calculating the insurance premiums, were sufficient to raise a material fact issue with regard to whether the insurance company intended to create a special contract of insurance affording him coverage equal to that provided for in the workers’ compensation insurance policy. Appellant maintains the holding of the Texas Supreme Court in Superior Insurance Co. v. Kling, supra, supports his contention. We do not agree.

In our view the Kling case is distinguishable on the facts. In Kling, the court held that where the authorized agents of an insurance company had issued a workers’ compensation insurance policy to a partnership, agreeing and noting on the policy that a certain named partner was to be covered by the policy with knowledge of the fact that he was a partner and later collected premiums based on his earnings, the insurance company contracted to issue a special contract of insurance according to the benefits set forth in the policy and therefore were estopped to deny that it intended to provide coverage measured by the terms of the policy and the Workers’ Compensation Law.

In the present case the facts set forth in the summary judgment proof offered by the insurance company dispel any notion that the company entered into any type of special insurance contract. According to the deposition testimony of the independent agent who represented the company, the negotiation was for a standard form workers’ compensation insurance policy to be issued covering the employees of Ponderosa Motor Inn. He testified that although he knew appellant was a partner in Ponderosa Motor Inn, it was not his intention that appellant be covered by the policy; and that the policy contained no endorsement indicating that appellant or any other partner was to be covered. He further testified that no one connected with the partnership ever instructed him that the appellant was to be covered under the workers’ compensation insurance policy.

Thus, the summary judgment proof offered by the insurance company in the present case shows that the only agreement was that a workers’ compensation insurance policy was to be issued and that nothing was said or done showing that the insurance company intended a special contract of insurance insuring appellant. Nowhere in the summary judgment proof did appellant dispute the foregoing facts, nor did he offer any summary judgment proof indicating that the insurance company said or did anything showing it intended to make a special contract of insurance covering the appellant. Consequently, the summary judgment proof establishes that no special contract of insurance was intended or created.

It follows that the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one of the essential elements of the appellant’s cause of action. Having failed to establish that a special contract of insurance was created, or that a material fact issue remained to be determined in that regard, we do not reach the question of whether the insurance company is estopped to deny that it intended to afford appellant coverage.

We are aware of the fact that appellant states in his affidavit that in response to his inquiry, Burton Barnes, the insurance agent, told him at some undisclosed date after the policy had been issued that he was covered, and that the partnership later included his salary in certain financial statements furnished to the insurance company for the purpose of calculating premiums. However, we fail to see how these facts which occurred sometime after the initial policy was negotiated could serve to create a special contract of insurance or raise a fact issue thereon. The undisputed summary judgment proof shows that the agent was an independent agent and thus had no authority to bind the company. His statement that appellant was covered by the workers’ compensation policy constituted nothing more than a legal conclusion and for this reason would not create an issue of fact on whether a special contract of insurance existed. Further, there is no proof that the partnership actually paid any premiums on appellant’s salary.

The judgment of the trial court is affirmed.


author: MASSEY, Chief Justice.

text:
    C. M. RANDAL et al., Appellants, v. Mary RUTHERFORD et al., Appellees.
    No. 18150.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 1, 1979.
    Rehearing Denied March 1, 1979.

      D. J. Brookreson, II, Seymour, for appellants.
    Jennings, Montgomery, Dies & Turner and Elton M. Montgomery, Graham, for appellees.
   OPINION

MASSEY, Chief Justice.

The appeal reaches this court from a summary judgment upon the pleadings granted upon motion of defendants.

We reverse the judgment and remand the cause.

Here there is similarity to a case reaching the appellate court under the former general demurrer practice. Then, when there was sustained a general demurrer to a plaintiff’s pleading, there could be an appeal to rest its sufficiency to state a cause of action. On summary judgment proceedings a defendant movant might prevail even where not likewise entitled on the pleadings alone where the defendant might establish the plaintiff’s inability to supply proof to establish an issue of fact. Here the motion for summary judgment was confined to the pleadings. In other words, movants are taking the position that on the petition for relief there was no evidence, whatever it might be, which would be admissible on a trial on the merits to establish a prima facie case for any recovery against them.

The relief sought by the plaintiffs’ petition was for a declaratory judgment that a certain fractional interest in minerals, conveyed by a deed executed the 1st day of February 1938 by Clifford Rutherford and his wife to C. L. Caldwell and others, was an undivided Vuth interest and not an undivided Vatoth interest. It is obvious that the ½4⅛ interest was the whole interest owned (under the land described) by Rutherford at time the deed was executed, and, by necessary implication, being the whole of the Vkth interest he had inherited from his parents.

For purposes of test by summary judgment rules, without detailing how the defendants in the case came to be such, it is agreed that they have succeeded to the interest in the oil, gas and other minerals, if any there was, which continued to be that of Clifford Rutherford after he executed the deed on the 1st day of February 1938. And, without detailing how the plaintiffs in the case came to be such, it is agreed that they have succeeded to whatever interest of like nature which was in fact conveyed to the grantees by that same deed. Simplified, the deed may be viewed as one by Clifford Rutherford to defendants or defendants’ predecessors in title.

We quote the material portions of the deed, lending emphasis to the sections emphasized as (a), (b), and (c) as follows:

“KNOW ALL MEN BY THESE PRESENTS:
“That we, Clifford Rutherford and wife Maggie Rutherford, of Baylor County, Texas, for and in consideration of the sum of Ten and no/100 Dollars ($10.00) cash in hand paid by C. L. Caldwell, . hereinafter called Grantees, the receipt of which is hereby acknowledged, have granted, sold, conveyed, assigned and delivered and by these presents do grant, sell, convey, assign and deliver unto the said Grantees an undivided (a) one-two hundred Fortieth (Vko) interest in and to all of the oil, gas and other minerals in and under, and that may be produced from the following described land situated in Young County, Texas, to-wit:
“All of T.E.&.L. Co. Survey No. 644; All of T.E.&.L. Co. Survey No. 449; 160 acres out of T.E.&.L. Co. Survey No. 643 and (b) being all of the land out of said Survey in the name of T. H. Rutherford. For a better description of said land reference is hereby made to deeds of record in the Deed Records of Young County, Texas, and (c) the interest hereby conveyed in said lands is that portion that the grantor, Clifford Rutherford, received from his deceased parents.
“Said land being now under an oil and gas lease . . . this sale is made subject to the terms of said lease, but covers and includes — of all of the oil royalty, and gas rental or royalty due to be paid under the terms of said lease.
“It is understood and agreed that — of the money rentals which may be paid . under the terms of said lease is to be paid to the said Grantee and in event that the above described lease for any reason becomes cancelled or forfeited, then and in that event an undivided— of the lease interest and all future rentals on said land for oil, gas and other mineral privileges shall be owned by said Grantee, —owning—of all oil, gas and other minerals in and under said lands, together with — interests in all future rents.”
(Emphasis added.)

From the foregoing there is no question but that plaintiffs obtained at least Vkoth interest in the minerals; they said it was a Vkth interest. It is without question that if no more than a Vkoth interest was conveyed, Rutherford’s successors (to be hereinafter merely termed as “Rutherford”) then Rutherford retained whatever fractional mineral interest remained as his own, after the Vkoth interest was conveyed. What is a question is whether it was more than a Vkoth interest which was conveyed, and if so how much?

By the emphasized section (a) made in copying from the deed, Rutherford granted a Vkoth interest in and to the minerals; by section (b) the interest was from a certain total 160 acre tract, or from a part of such total surface, or under which total either the whole of the minerals, or a certain part thereof, was of record by the Deed Records of Young County, Texas, which exhibited ownership by T. H. Rutherford (whoever that Rutherford might have been), and that the interest intended to be conveyed out of whatever appeared from the records as owned by T. H. Rutherford, was (section (c)) that interest therein or thereunder which grantor Clifford Rutherford had received — either by deed, by will, or by the laws of descent and distribution — from his deceased parents (names not set out in the deed).

To be remembered is that we deal with a proceeding in rem, that the transaction of conveyance by deed has been complete since 1938. Our concern is with the question of whether plaintiffs should be permitted to try upon its merits the case stated by their petition. For our purposes it is to be presumed that they were prepared to introduce evidence, if entitled to do so under rules of evidence, to the effect that Rutherford intended to and did actually accomplish by the deed a transfer of all the mineral interest in and under the lands described possessed by him. For purposes of summary judgment we accept it to be a fact that the mineral interest possessed by him at the material time was an undivided Vkth fractional interest.

A cardinal rule in the interpretation of a deed is that there is the presumption that some interest passes; and if conflicting provisions cannot be harmonized and the language used leaves any doubt as to the grantor’s intention, the deed is to be construed so as to convey the greatest estate that the terms of the instrument will permit. 19 Tex.Jur.2d § 117, “Deeds”, p. 411, “Determination of estate or interest created.” Another is that generally a deed passes the interest possessed by the grantor in the land unless he uses words showing an intention to convey a lesser estate. § 119 (at p. 414), “Estate measured by grantor’s interest.” Another is that parol evidence is not'admissible to vary or modify the nature or extent of an interest defined by a deed in unambiguous terms. § 120 (at p. 416), “Extrinsic evidence — When admissible.” Another is that where a deed is pought to be proved as part of a chain of title a description by reference to the grantor’s ownership is sufficient to reasonably identify the land and it constitutes notice to subsequent purchasers of claim to title; and the same rule is applicable when the deed describes the property as owned by some designated person other than the grantor. § 132 (at p. 438) “Reference to ownership”, and the cases annotated thereunder. When a description in a deed refers to other writings those referred to must be examined along with the deed if that be necessary in order to identify the land. § 134 (at p. 441) “Reference to other documents.”

Beginning at 19 Tex.Jur.2d, p. 455, are found sections dealing with rules of construction for interpreting language in deeds. It is stated that the purpose of construing a deed is to ascertain the intention of the parties as applied, among other things, to the description of that which is conveyed; though, it is added, there is no occasion for construction where the intention is plain from a reading of the instrument. Generally, all of the descriptive language must be considered in ascertaining the intent. If the description mentions several particulars, all of which are necessary to identify the land intended to be conveyed, only land that is covered in every particular of the description is conveyed by the deed, subject to the qualification that obvious erroneous particulars may be ignored. § 145 (begins p. 455), “In general; Ascertaining intention of parties.” In the absence of language in the deed showing a contrary intention a deed conveys the land described even though the quantity of land stated in the deed is more or less than the actual described area. The presumption is that the quantity was computed from the description, not that the parties intended to convey the quantity mentioned at all events. The deed conveys title to the land described, regardless of any discrepancy in the stated area.” § 158 (p. 476), “Discrepancies between description and area.”

When we refer to the Rutherford deed and to pertinent language therein we are, for summary judgment purposes, obliged to believe that if plaintiffs had been permitted to go to trial on the merits they may have tendered evidence to prove the following: that T. H. Rutherford was the father of Clifford Rutherford and that T. H. Rutherford and his wife had died, with son Clifford inheriting Vkth interest in and to the mineral estate — out of the whole mineral estate (or fractional part thereof belonging to Mr. and Mrs. T. H. Rutherford) — under the 160 acres or that part of record as belonging to T. H. Rutherford; and that it was the entire V24th interest which was intended to be conveyed.

On the appeal the basic position assumed by Rutherford (or his successors) is that in the deed there is the particular description of the interest conveyed, to-wit: the Vkoths mineral interest, which by rules of construction take precedence over a general description of the interest conveyed. Rutherford’s contention is that in reconciling apparent inconsistencies, so as to foreclose necessity to resort to parol evidence — a result which a trial court must achieve if possible, a granting clause should be favored over later repugnant language in another portion of the deed. Our view is that all the language under scrutiny is, in fact, within the body of the granting clause and there is repugnancy or inconsistency. The repugnancy (contained in one and the same clause), is because it is stated that the interest conveyed was that which had been received from grantor’s parents (for our purposes assumed to be a V24th interest) and at the same time there is the statement that it was a Vmth interest, which was conveyed.

We have concluded that the ambiguity of the Rutherford deed lies in “a material portion of the deed”, whereby pa-rol evidence would be admissible to explain the intention of the grantor at time the deed was made. Smith v. Allison, 157 Tex. 220, 301 S.W.2d 608, 612 (1956).

We hold that the character of ambiguity in the instrument of deed is one which opens the door to parol evidence in explanation and clarification of the intended proportionate mineral interest conveyed, i.e., that there was issue of fact on Rutherford’s intent. The door being open, as is our holding, there was error in granting to plaintiffs’ adversaries a judgment on the pleadings.

The summary judgment is reversed, with the cause remanded to the trial court for further proceedings not inconsistent herewith.


author: COULSON, Justice.

text:
    Waltroud H. STEELE et al., Appellants, v. CITY OF HOUSTON, Appellee.
    No. 1942.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 7, 1979.
    Rehearing Denied Feb. 28, 1979.

      Michael A. Lamson, Prappas & Lamson, Houston, for appellants.
    Robert M. Collie, Jr., City Atty., Frank L. Mauro, Asst. City Atty., Houston, for appel-lee.
   COULSON, Justice.

This is an appeal by plaintiffs from a summary judgment granted in favor of the defendant City in a suit for damages for the destruction of the plaintiffs’ property by the Police and Fire Department employees of the City. We affirm.

In October of 1975 plaintiff Steele was the owner and plaintiffs Mozingo and Ingram were residents of a house in Houston, Texas. On October 10, 1975, a group of prisoners which had escaped from the custody of some governmental entity was discovered to be hiding in plaintiffs’ residence. At that time plaintiff Steele was living in Longview, Texas. Plaintiff Mozingo was confined to the hospital for emergency surgery and her husband, plaintiff Ingram, was detained due to the emergency medical situation of his wife. While all plaintiffs were away from the house the police made efforts to recapture the prisoners from plaintiffs’ property. During this action by the police the plaintiffs’ residence and its contents were burned and rendered a complete loss. After filing proper claim with the City for compensation, which claim was denied, plaintiffs filed this suit seeking to recover their damages from the City of Houston. The defendant City made a motion for summary judgment which was granted by the trial court after a hearing. Plaintiffs appeal from that judgment.

Plaintiffs’ first point of error complains that the trial court erred in granting summary judgment for the defendant City based on municipal immunity because plaintiffs had raised a question of whether the facts showed the creation of a nuisance. Plaintiffs urge that a common law exception to the doctrine of governmental immunity from liability for torts arises when the government creates or maintains a nuisance. This doctrine encompasses the idea that a government has no more right to create or maintain a nuisance than does a private person. See generally Gotcher v. City of Farmersville, 137 Tex. 12, 151 S.W.2d 565 (1941); Stein v. Highland Park Independent School District, 540 S.W.2d 551 (Tex.Civ.App.—Texarkana 1976, writ ref’d n.r.e.). Plaintiffs’ petition alleges that the intentional use of incendiary material by the police to set fire to the house constituted the creation of a nuisance.

The trial court’s judgment states that “Defendant, CITY OF HOUSTON, did not create nor maintain a nuisance to Plaintiffs’ damage” and that municipal immunity applies. The judgment also recites:

After a full hearing of said Motion, the arguments of all counsel thereon, and the Court’s examination of the pleadings, all interrogatories and answers thereto in the Court’s file, all depositions both oral and by written questions in the Court’s file, any and all Requests for Admissions and responses thereto in the Court’s file and the Court being of the opinion that there was an absence of a genuine issue of material fact. .

No interrogatories, depositions, or requests for admissions have been brought forward as a part of the record before this court. The appellants here have the burden of bringing the necessary parts of the record to the appellate court. On the record before us we are unable to hold that the trial court’s determination that the City did not create or maintain a nuisance was erroneous. It is presumed that the omitted depositions, interrogatories, and requests for admissions established the correctness of the judgment. Hassell v. New England Mutual Life Insurance Co., 506 S.W.2d 727 (Tex.Civ.App. — Waco 1974, writ ref’d). Plaintiffs’ first point of error is overruled.

Plaintiffs’ second point of error contends that the trial court erred in finding that the Texas Tort Claims Act, Tex.Rev. Civ.Stat.Ann. art. 6252-19 (Supp.1978), did not apply to waive the immunity of the City from suit in this case. The general rule is that in the absence of statutory or constitutional exceptions a City is not liable for damages caused by the negligence of its employees in the performance of governmental functions, which include the exercise of the City’s police power. Mills v. City of Dallas, 539 S.W.2d 402, 404 (Tex.Civ.App.— Dallas 1976, no writ); Meska v. City of Dallas, 429 S.W.2d 223, 224 (Tex.Civ.App.— Dallas 1968, writ ref’d). Plaintiffs, defendant, and the trial court all apparently operated on the assumption that the Tort Claims Act would defeat the City’s immunity from suit unless one of the exemptions in section 14 of that act applied. The Tort Claims Act is constructed in such a way that it first decrees, in section 3, that units of government “shall be liable” for damages from actions of their employees or officers in certain instances. Section 14 of the act is titled “Exemptions” and provides that the provision of the act shall not apply in certain instances.

The judgment states that section 14(10) of the Tort Claims Act applies to preserve municipal immunity in this case. Section 14(10) provides that the act shall not apply and thus immunity shall not be defeated for any claim arising out of an intentional tort. Plaintiff here had alleged that the police officers discharged incendiary material into the residence for the purpose of causing it to catch fire. Therefore the trial court’s determination that section 14(10) of the act would preserve immunity for the City is correct if the act itself applies to the actions in question.

We are of the opinion however that the Tort Claims Act does not apply to this case and that therefore the City’s immunity from suit exists independently of any exemption provided in the act. Section 3 of the Tort Claims Act provides:

Liability of governmental units
Sec. 3. Each unit of government in the state shall be liable for money damages for property damage or personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment, other than motor-driven equipment used in connection with the operation of floodgates or water release equipment by river authorities created under the laws of this state, under circumstances where such officer or employee would be personally liable to the claimant in accordance with the law of this state, or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state. Such liability is subject to the exceptions contained herein, and it shall not extend to punitive or exemplary damages. Liability hereunder shall be limited to $100,000 per person and $300,000 for any single occurrence for bodily injury or death and to $10,000 for any single occurrence for injury to or destruction of property. (emphasis added)

Tex.Rev.Civ.Stat.Ann. art. 6252-19, § 3 (Supp.1978).

We interpret this section to mean that damages to property are recoverable only when they result from the operation and use of motor-driven vehicles or motor-driven equipment. If the claim arises from the use of other tangible property only damages for death or personal injury are recoverable.

Plaintiffs here alleged that their residence was damaged as the result of the discharge of incendiary devices into the premises. We do not believe that this is sufficient to allege that motor-driven equipment or motor-driven vehicles were used and thus bring their claim within that provision of the act allowing recovery for damages to property. Plaintiffs do not claim any damages for personal injury or death and therefore cannot recover under that portion of section 3 relating to damages resulting from the use of tangible property. Thus, under the record before us, the Tort Claims Act does not operate to give plaintiffs a cause of action against the defendant City based on the facts alleged in Plaintiffs’ first amended petition. The City’s governmental immunity is intact in this instance. Appellants’ second point of error is overruled.

We are compelled by the laws of this state to affirm the action of the trial court in granting summary judgment for the defendant City of Houston. The Legislature has not seen fit to provide that the community shall bear the cost when the property of innocent individuals is destroyed as a result of actions taken by law enforcement officials in the performance of their duty to protect the safety of the community as a whole. The trial court’s judgment is affirmed.

Affirmed.


author: PHILLIPS, Chief Justice.

text:
    In the Matter of I_L_, Appellant, v. The STATE of Texas, Appellee.
    No. 12920.
    Court of Civil Appeals of Texas, Austin.
    Feb. 7, 1979.
    Rehearing Denied Feb. 28, 1979.

      Charley L. Smith, Austin, for appellant.
    Ronald Earle, Dist. Atty., Jackie Strash-un, Asst. Dist. Atty., Travis County, Austin, for appellee.
   PHILLIPS, Chief Justice.

This is an appeal from the judgment of the juvenile court of Travis County waiving its exclusive jurisdiction and transferring appellant, I_ L_, to district court for trial for murder. We affirm the judgment of the juvenile court.

The hearing to consider discretionary transfer of appellant to criminal court was held on June 30 and July 5, 1978, pursuant to Texas Family Code Ann. § 54.-02 (1975). As required by section 54.-02(a)(3), the court found that “because of the seriousness of the offense or the background of the child the welfare of the community requires criminal proceedings.” This finding is supported by evidence in the record. Appellant is accused of stabbing a man in the heart outside an Austin nightclub. Appellant’s past record includes a burglary charge which was subsequently dropped, an adjudication of delinquency for aggravated assault, and revocation of probation and commitment to Texas Youth Council for stabbing a student.

Appellant’s first two points of error deny compliance with Texas Family Code Ann. § 54.02(d) (1975) which provides:

“Prior to the hearing, the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.”

Appellant objected to the admission of the diagnostic study into evidence. Appellant contends that the diagnostic study obtained pursuant to section 54.02(d) was insufficient in its contents. The study was comprised of a psychiatrist’s report, a social evaluation and investigation by a court investigator, monthly progress reports on appellant compiled during a one-year stay at the Texas Youth Council, and an intelligence test which was made at least one year prior to the hearing during appellant’s stay at Texas Youth Council. There was no physical examination or interview with a clinical psychologist.

The legislature did not clarify what must be included in a “complete diagnostic study.” The authors of one article have suggested the elements necessary are examinations by a psychiatrist and clinical psychologist and an evaluation by a probation department caseworker. See Hays & Solway, The Role of Psychological Evaluation in Certification of Juveniles for Trial as Adults, 9 Hous.L.Rev. 709 (1972). Although no examination was made by a psychologist in the present case, we do not believe that omission merits reversal of the juvenile court’s judgment.

Appellant points out that the intelligence test was made at least one year prior to the hearing. There was, however, a psychiatric examination conducted less than a month before the hearing. The examining psychiatrist testified at the hearing that in his opinion no further testing was needed and that a complete diagnostic study had been made. Under the circumstances, the court did not abuse its discretion in the admission of the diagnostic study.

Appellant contends that the trial court erred by not including in its order a finding of fact that a complete diagnostic study had been ordered and obtained. In fact, the study was not mentioned in the order. Appellant also argues the order was void because it did not state that the judge read and considered the study. The requirements of section 54.02(d) are mandatory and must be strictly followed. See R. E. M. v. State, 532 S.W.2d 645 (Tex.Civ.App. 1975, no writ); In re J. R. C., 522 S.W.2d 579 (Tex.Civ.App.1975, writ ref’d n. r. e.); Moreno v. State, 510 S.W.2d 116 (Tex.Civ. App.1974, writ ref’d n. r. e.). Undoubtedly, the court must not only “order and obtain’ a diagnostic study, but must also consider it. R. K. A. v. State, 553 S.W.2d 781 (Tex. Civ.App.1977, no writ). It is undisputed that the diagnostic study was ordered and obtained.

The United States Supreme Court has stated that a juvenile transfer proceeding is critically important, and a reviewing court may not assume a “full investigation” has been made. Kent v. U. S., 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). We believe, however, that it must be presumed the trial judge carried out his lawful duty of considering all the evidence in the record, including the diagnostic study. The Supreme Court in Kent v. U. S., supra, stated:

“Presumably, prior to entry of his order, the Juvenile Court judge received and considered recommendations of the Juvenile Court staff, the Social Service file relating to petitioner, and a report . submitted to him by the Juvenile Probation Section.” (Emphasis added)

We hold the order of discretionary transfer was not invalid because it failed to state the diagnostic study was ordered and obtained and considered.

Appellant challenges in separate points of error findings in the order concerning the existence of evidence supporting an indictment (§ 54.02(f)(3)), the sophistication and maturity of the child (§ 54.-02(f)(4)), and the prospects of adequate protection of the public and the likelihood of rehabilitation of the child by use of procedures available to the juvenile court (§ 54.-02(f)(6)). It has been held the factors enumerated in section 54.02(f) need only be considered and each one need not be present in a specific case. See Matter of B. L. H. v. State, Docket No. 12,861, (Tex.Civ. App. Austin, Dec. 13, 1978) (not yet reported); Matter of J. R. C., 551 S.W.2d 748 (Tex.Civ.App.1977, writ ref’d n. r. e.); Meza v. State, 543 S.W.2d 189 (Tex.Civ.App.1976, no writ). In the present case there was testimony by witnesses supporting each item. This Court cannot substitute its judgment for that of the juvenile court. See B. L. C. v. State, 543 S.W.2d 151 (Tex. Civ.App.1976, writ ref’d n. r. e.).

The judgment of the trial court is in all things affirmed.

      . Section 54.02(a)(3) provides for a determination by the judge based upon “the seriousness of the offense or the background of the child . . . .” (Emphasis added)


author: PER CURIAM.

text:
    Terry BISHOP, Appellant, v. STATE of Texas et al., Appellees.
    No. 6843.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 7, 1979.

      Shafer, Gilliland, Davis, Bunton & McCol-lum, Inc., Lucius Bunton, Odessa, for appellant.
    Mark White, Atty. Gen. of Tex., John W. Fainter, Jr., First Asst. Atty. Gen., Ted L. Hartley, Executive Asst. Atty. Gen., Douglas B. Owen, Jack Sparks, Asst. Attys. Gen., Austin, for appellees.
   OPINION ON MOTION

PER CURIAM.

This is a personal injury case brought against a State university and the State of Texas. The trial Court granted the Appel-lees’ motion to dismiss on the basis that the cause was barred by the statute of limitations. Appellees move for dismissal in this Court which we grant for want of jurisdiction of the trial Court.

The Appellant was a student at Pan American University when he was allegedly injured at a school function. There is no dispute that the incident occurred in Hidalgo County on October 31, 1974. This case was filed in Presidio County on July 12, 1977. The Appellee filed a plea to the jurisdiction and a motion to dismiss the case, asserting among other defenses the statute of limitations and that the Court was without jurisdiction because of Section 5 of the Texas Tort Claims Act. (Article 6252-19, Tex.Rev.Civ.Stat.Ann.) The trial Court granted the motion to dismiss, finding the cause barred by Tex.Rev.Civ.Stat. Ann. Art. 5526, the two-year statute of limitations.

The State of Texas has governmental immunity except as waived under the Texas Tort Claims Act. Section 5 of the Act provides:

All cases arising under the provisions of this Act shall be instituted in the county in which the cause of action or a part thereof arises.

It has been previously held that this provision is jurisdictional. Hardt v. Texas Department of Corrections, 530 S.W.2d 897 (Tex.Civ.App.—Austin 1975, no writ). In Hardt, the contention that Section 5 related to venue only and was not jurisdictional was rejected. Id. at 898. Since a State may withhold entirely its consent to be sued, when it does waive liability it can impose conditions that it only be sued in certain courts and places. State v. Isbell, 127 Tex. 399, 94 S.W.2d 423 (1936). Under Section 5, the Appellee could only be sued in Hidalgo County, where the cause of action arose. Because this case was filed in Presidio County, the dismissal by the trial Court was correct.


author: OSBORN, Justice.

text:
    BARNHOUSE MOTORS, INC., Appellant, v. Henry J. GODFREY, III, Appellee.
    No. 6774.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 7, 1979.

      Scott, Hulse, Marshall & Feuille, James T. McNutt, Jr., William A. Elias, El Paso, for appellant.
    Herbert E. Marsh, Jr., El Paso, for appel-lee.
   OPINION

OSBORN, Justice.

This is an appeal from a judgment awarding treble damages and attorney’s fees under the Deceptive Trade Practices— Consumer Protection Act, Article 17.41 et seq., Tex.Bus. & Comm.Code Ann. (Supp. 1978-79). We affirm.

The Appellant sold Appellee a used 1974 Audi automobile in March, 1977. Mechanical problems developed with the transmission within about a week and six weeks thereafter the car became immobile. Ap-pellee said the car was represented at the time of sale as being a one-owner car from El Paso in a “cherry” condition and that it was the best car on the lot. The jury found that the car was (1) represented as being in excellent condition, (2) that such representation was a producing cause of the Appel-lee’s damages and (8) that the representation was in fact false or deceptive at the time it was made. The Court instructed the jury that “By the terms ‘false or deceptive’ is meant knowingly and intentionally representing with the intent to deceive that goods are of a particular quality if they are of another.” The jury found Appellee’s (6) damages to be in the amount of $1,074.44 and (7) a reasonable attorney’s fee to be $1,500.00. They failed to find that the repossession of the vehicle was a conversion by Appellant.

The Appellant presents six groups of points of error. Group I attacks the sufficiency of the evidence to support the submission of issues inquiring as to (1) a representation and (2) producing cause. In passing on the no evidence and insufficient evidence points, we considered the evidence in accordance with the direction of Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

With regard to the first issue, Mr. God-frey, on cross examination, testified as follows:

“A Mr. Barnhouse showed me the Audi.
Q Well, when you got ready to take it home, didn’t he say ‘Henry, go ahead and take it home and try it out and see how you like it. Take it to a mechanic if you want.’?
A He said ‘If you want to you can, but it is a good car.’ He told me ‘It’s a one-owner, cherry condition and from El Paso, best car on the lot.’
Q What does ‘cherry’ condition — I don’t understand that?
A ‘Cherry’ condition, mint condition.
Q Mint, good?
A Excellent condition.”

Mr. Barnhouse denied making these particular statements but did remember telling Mr. Godfrey that the car was in “very good condition.”

Based upon this testimony, we overrule both the “no evidence” and “insufficient evidence” points of error.

A complaint is also made that the Court erred in submitting Special Issue No. One because it was an evidentiary issue and because it constituted a comment on the weight of the evidence. The record contains no such objections to the Court’s charge and any complaints about the charge and the issues submitted which were not timely made have been waived. Rule 272, Tex.R.Civ.P.

With regard to the second issue, Mr. God-frey testified that the statements about the condition of the car were made many times before he bought it and that he “relied heavily on these statements.” It appears problems developed very shortly after the sale and the car eventually became immobile. Such evidence is sufficient to support the jury finding as to producing cause. Although it has been suggested that “producing cause” is the appropriate causation issue in this type case where damages are sought (see Bragg, Maxwell & Longley, Texas Consumer Litigation, 1978, Sec. 9.01), no such issue appears to have been submitted nor is its absence noted in Spradling v. Williams, 566 S.W.2d 561 (Tex.1978). But, see Wells, Measure of Damages for Misrepresentation Under the Texas Deceptive Trade Practices Act, 29 Baylor L.Rev. 135 (1977); Lynn, Anatomy of a Deceptive Trade Practices Case, 31 Sw.L.J. 867, 874 (1977). In fact, the Supreme Court opinion notes that issues in the Spradling ease were submitted in clusters of three, inquiring whether a specific act or practice happened, whether it was a deceptive trade practice and whether the customer relied upon the deceptive trade practice. In the case at bar, no issue was submitted with regard to reliance upon the representations and no complaint is made about the failure to submit such issue. See Texas Litigation Guide, Vol. 9, Sec. 220.03[4] (1978).

The last of the points in the first group urges that the submission of Special Issue No. Two constituted a comment on the weight of the evidence. This issue was conditionally submitted, based upon an affirmative answer to Special Issue No. One. We find no error in the fact that Special Issue No. Two was based upon an assumed finding of a representation that the car was in excellent condition where the issue was conditionally submitted upon an affirmative answer to the first issue. Houston General Insurance Company v. Lane Wood Industries, Inc., 571 S.W.2d 384 (Tex.Civ.App.—Fort Worth 1978, no writ). All of the points of error in Group I are overruled.

The second group of points urge that the Court erred in defining a deceptive trade practice. There was no issue submitted to the jury inquiring if any conduct was a deceptive trade practice. Nevertheless, the Court did define the term and did so in the following manner:

‘“Deceptive trade practice’ means a course of conduct that, when performed in trade or commerce, has the tendency and capacity to mislead that portion of the general public toward whom such conduct is directed. In determining ‘tendency’ and ‘capacity’ to mislead, you are instructed to look to the overall impression that such conduct would have on the general public, including the igno- ' rant, the unthinking and unsophisticated.”

This definition is basically the same general definition approved in Sprad-ling v. Williams, supra, although it does restrict the conduct complained about to only that portion of the general public toward whom such conduct is directed. In any event, we find no reversible error since the instruction is not related to any issue which forms a part of the jury’s verdict. We do believe that better practice dictates that trial courts not define terms which are unrelated to the issues submitted to the jury. Since the jury did find that the representation was in fact false and under the definition given that it was knowingly and intentionally made with intent to deceive, that finding was sufficient to establish a right to recover under Section 17.46(a), Tex. Bus. & Comm.Code Ann. (Supp.1978-79). Singleton v. Pennington, 568 S.W.2d 367 (Tex.Civ.App.—Dallas 1977, writ pending). The points of error in Group II are overruled.

The next group of points complain about the submission of special issues three and four and the lack of evidence to support the submission of such issues. The jury found in Special Issue No. Three that Appellant repossessed the automobile in question in a manner not provided for by the Retail Installment Contract, but in answer to Special Issue No. Four failed to find that such repossession was a conversion to its own use and benefit without the consent of the Appellant. These issues form no basis for the judgment entered against Appellant and we find no reversible error in their having been submitted. Rule 434, Tex.R. Civ.P. The points of error in Group III are overruled.

The fourth group of points urge error in submitting Special Issue No. Six (damages) with both no evidence and insufficient evidence points of error, and in failing to disregard the answer to Special Issue No. Seven (attorney’s fees) because the consumer did not prevail in his entire suit. Under the provisions of Section 17.50(b)(1), Tex.Bus. & Comm.Code Ann. (Supp.1978-79), a party may recover three times the amount of actual damages plus costs and attorney’s fees unless limited to actual damages, costs and attorney’s fees under the provisions of Section 17.50A of that Code. Several writers have commented on what constitutes “actual damages.” See 29 Baylor L.Rev. 135, supra; Bragg, Maxwell & Longley, Texas Consumer Litigation, supra, Secs. 8.04 & 8.05. In this case, where the automobile was repossessed and no further payments made, the jury found the actual damages to be the amount of the down payment ($740.00) and two installment payments ($334.44). Those amounts were based upon the Buyer’s Purchase Order and the schedule of note payments which were offered in evidence. These exhibits were clearly sufficient to support the submission of Special Issue No. Six. The net effect of the repossession was a rescission of the contract and the purchaser was at least entitled to recover the consideration paid in determining his actual damages. 29 Baylor L.Rev., supra, 135, 141.

The Act clearly provides for the recovery of attorney’s fees where a consumer prevails in his suit under the Act. In this case, the jury found that a false representation was made. Thus, the Act applies and attorney’s fees are recoverable. The fact that there was no recovery for conversion is immaterial. The complaint about the answer to Special Issue No. Seven cannot be sustained. The points of error under Group IV are overruled.

The next group of points complain that the trial Court erred in admitting certain evidence over the Appellant’s objection. First, it is contended that the Court erred in permitting Mr. Frank Thompson, a rebuttal witness for Appellee who worked with the Appellee at Newspaper Printing Corporation, to testify concerning a telephone conversation for purposes of impeaching one of the Appellant’s witnesses. Mr. Sherman Barnett, the Yamaha distributor in El Paso, testified for the Appellant that he had talked to Mr. Godfrey about a month after he purchased the Audi automobile and that at that time he had absolutely no complaints about the car and was very happy with the purchase of that vehicle. On cross examination of Barnett, he was asked if he had told Appellee that if he went through with this lawsuit he (Barnett) would stop advertising with him. Mr. Barnett denied making such a statement to Mr. Godfrey. Mr. Thompson later testified that Mr. Barnett had called him on the telephone concerning this case and said it would not be good for Newspaper Printing Corporation. Mr. Thompson took this to mean that it would cost them advertising.

Certainly Mr. Barnett might have been impeached by contradictory testimony. 1 C. McCormick & R. Ray, Texas Law of Evidence Sec. 682 (2d ed. 1956). But he had never been asked about any statements made to Frank Thompson, and the testimony of that witness was not inconsistent with the testimony given by Mr. Barnett when asked on cross examination about statements made to Mr. Godfrey. Thus, we conclude that the testimony was not admissible for impeachment purposes and it was error to admit it.

The Appellant also complains that the trial Court erred in admitting into evidence a copy of a handwritten complaint filed by Mr. Godfrey with the Consumer Protection Division of the Attorney General’s Office. The complaint details representations made about the car including the fact that he was told it was in excellent condition, and also sets out problems he had with the car and his belief that “it was a faulty and misrepresented automobile.”

This written complaint was offered and received into evidence while the Appellant, as the first witness, was testifying on direct examination. Thus it was not offered to rebut an imputation of recent fabrication. This exhibit was clearly hearsay and a self-serving declaration. Perez v. San Antonio Transit Company, 342 S.W.2d 802 (Tex.Civ.App.—Eastland 1961, writ ref’d); 1 C. McCormick & R. Ray, Texas Law of Evidence Sec. 786 (2d ed. 1956). As noted in that same text in Section 781 “evi dence of a statement made out of court when such evidence is offered for the purpose of proving the truth of such previous statement, is inadmissible as hearsay.” Of course, many statements made out of court qualify as an exception to the rule, but the one in this case does not.

The next question is whether the error in admitting such evidence was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Tex.R.Civ.P. We have concluded that the evidence in these two instances does not show that it probably did cause the rendition of an improper judgment. Dennis v. Hulse, 362 S.W.2d 308 (Tex.1962). Although the written complaint may have bolstered the testimony of Mr. Godfrey, it was only cumulative evidence of that testimony which had already been received without objection about the sale and operation of the automobile. We doubt that the impeachment testimony actually changed the results of the case because another witness, Wayne Hensen, testified as to Mr. Godfrey’s apparent satisfaction with the Audi after it had been driven on a trip to Arizona in April, 1977. The points of error in Group V are overruled.

The points of error in Group VI are all very general and only specify that the Court erred without specifying the legal basis or reason for such error. A point of error asserting that the trial court erred in overruling a motion for judgment non ob-stante veredicto, or that the court erred in overruling a motion for new trial, would require the appellate court to review each and every ground set forth in such motion without any specificity as to which grounds are relied upon or the reason why the specific grounds constituted error. Such points are too general for appellate courts consideration. Green v. Maxwell, 423 S.W.2d 384 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.). When we look to the argument under the points of error, as required by the holding in Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943), we find the argument to be as general as the points and present no specific error for our consideration. The points of error in Group VI are overruled.

The judgment of the trial Court is affirmed.

      . If there is any evidence to support the submission of the issue it must be submitted. The trial Court may not refuse to submit an issue on an “insufficient evidence” objection to the charge. Volkswagen of America, Inc. v. Licht, 544 S.W.2d 442 (Tex.Civ.App. — El Paso 1976, no writ).


author: JAMES, Justice.

text:
    Azucena F. HENSLEY, Appellant, v. Salvador SALINAS et al., Appellees.
    No. 5971.
    Court of Civil Appeals of Texas, Waco.
    Feb. 8, 1979.
    Rehearing Denied March 1, 1979.

      Ronald D. Zipp, Pena, McDonald, Prestía & Zipp, Edinburg, for appellant.
    Mitchell 0. Sawyer, Kelley, Looney & Alexander, Edinburg, 0. C. Hamilton, Jr. and Ricardo H. Hinojosa, Ewers, Toothaker, Ewers, Abbott, Talbot, Hamilton & Jarvis, McAllen, for appellees.
   OPINION

JAMES, Justice.

This is an appeal by a plaintiff from a judgment in trespass to try title. Plaintiff-Appellant Azucena F. Hensley and some twenty other parties were plaintiffs in the above cause in the trial court at the time of trial; whereas the Appellees, to wit, Igna-cia G. Gutierrez, Uvaldo Salinas, Jose Salinas, and Leonel Salinas were Defendants along with some fifteen other Defendants therein. Plaintiffs sought partition of a certain 1452.6 acre tract of land located in Starr County, Texas, asserting that Plaintiffs collectively owned an undivided 18/isths of said land, and alternatively contended that Plaintiffs were the sole owners of said land under the five, ten, and twenty-five year statutes of limitation.

The judgment appealed from bears the date of March 8,1978, and purports to be an agreed judgment based upon a compromise settlement, shown to be “approved as to form and substance” by the signatures of the attorneys representing all the parties.

Said judgment recites that on March 7, 1978, all of the Plaintiffs appeared by and through their attorney of record, (naming said attorney), and eight of the Defendants also appeared by and through their attorneys of record and announced ready for trial. Eleven of the Defendants did not appear nor file an answer and a default judgment was entered against those defendants. The judgment further recites that prior to the selection of a jury the remaining parties, by and through their attorneys of record, announced to the court that they had agreed upon a stipulation of facts and a compromise settlement of the dispute between them, whereupon the court proceeded to hear the stipulation of facts and the terms of the settlement agreement, and based upon such stipulation and agreement, said court rendered judgment. As stated, the judgment is shown to be approved as to form and substance by all the parties by and through their attorneys of record, and signed by the court on March 8, 1978.

The transcript contains a letter bearing date of March 11, 1978, purporting to be signed by Plaintiff-Appellant, addressed to the trial court judge, wherein Plaintiff-Appellant Hensley stated that she renounced the agreement set out in the judgment, and stated that she had not been consulted about it beforehand. Then on March 15, 1978, the District Clerk received a letter from Appellant which was filed in the papers of the case, in which Appellant moved for a new trial. Thereafter, to wit, on March 27,1978, Appellant filed her Amended Motion for New Trial alleging deprivation of property without due process of law, failure of consultation concerning the terms of the settlement agreement, and rejection of the terms of said agreement.

Appellant did not present said Amended Motion for New Trial to the court; therefore, said motion was overruled by operation of law on Friday, May 12, 1978. See Rule 329b, subparagraph 4, Texas Rules of Civil Procedure. No hearing was had upon the Amended Motion for New Trial, and therefore we have no statement of facts before us.

Appellant’s sole point of error asserts “the trial court erred in not granting the Motion for New Trial in that the judgment of the trial court was based upon a settlement agreement entered into by her attorney without her knowledge.” We overrule this point of error and affirm the trial court’s judgment.

We are mindful of the well-settled rule that a final judgment cannot be rendered on a settlement agreement if consent of one of the parties is lacking. “It is not sufficient to support the judgment that a party’s consent may at one time be given; consent must exist at the very moment the court undertakes to make the agreement the judgment of the court.” Burnaman v. Heaton (1951) 150 Tex. 333, 240 S.W.2d 288, 291. Also see Vickrey v. American Youth Camps, Inc. (Tex.1976) 532 S.W.2d 292.

However, the above rule announced in Burnaman does not come into play in the case at bar, because we have no statement of facts before us by which we are enabled to evaluate the facts and circumstances surrounding Appellant’s asserted want of consent to the agreed judgment. Appellant had the duty as proponent of the amended motion for new trial to present the same to the court for hearing, to present evidence to the trial court concerning the matters alleged in said motion, and to bring forward on appeal a statement of facts covering said hearing. Rule 329b, paragraph 4, Texas Rules of Civil Procedure; Rule 324, T.R. C.P.; also see Walden v. Sanger (Tex.Civ. App., Austin 1952) 250 S.W.2d 312, no writ.

The record is silent concerning whether Plaintiff-Appellant was personally present in court at the time of trial, or what the extent of her attorney’s authority was to make a settlement agreement in her behalf, or what the facts were concerning her alleged want of consent to the judgment. Her Amended Motion for New Trial contained as attachments thereto a purported copy of her letter to the trial judge of March 11, 1978, and her affidavit which purports to set out some of the circumstances surrounding her want of consent to the agreed judgment. Be that as it may, these are her pleadings and allegations pursuant to which Appellant has offered no proof. Under this state of the record we have no alternative but to affirm the trial court’s judgment.

AFFIRMED.


author: DICKENSON, Justice.

text:
    S. P., Appellant, v. DALLAS COUNTY CHILD WELFARE UNIT OF the TEXAS DEPARTMENT OF HUMAN RESOURCES, Appellee.
    No. 5267.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 8, 1979.
    Rehearing Denied March 1, 1979.

      Kenneth D. Carden, Carden, McKnight & Hundley, Dallas, for appellant.
    Maridell J. Templeton, Asst. Dist. Atty., Dallas, Harry J. Joe, Dallas, for appellee.
   DICKENSON, Justice.

A petition for expunction of criminal records was filed by S.P. in Criminal District Court Number Three of Dallas County, asking the expunction of all records and files arising from or relating to his arrest on March 14,1977, for child abuse. An answer to his petition was filed by Dallas County Child Welfare Unit of the Texas Department of Human Resources, asking the trial court to deny the request as to its records. Child Welfare’s answer states that a petition for termination of parental rights of S.P. over his children is presently pending and that the police reports concerning the incident of March 14, 1977, are important and necessary to Child Welfare’s proof in the termination case. A guardian ad litem was appointed for the children in the termination case, and the guardian ad litem also participated in the expunction case in the trial court and on appeal. A stipulation of evidence was signed in the expunction case by the attorney for S.P., by Child Welfare’s attorney, and by the guardian ad litem. The stipulation is that; (1) S.P. was arrested on March 14, 1977, in Dallas County, Texas, for the offense of injury to a child; (2) S.P. was no billed on April 25, 1977, by the Dallas County Grand Jury for this offense and that no other charges are pending; and (3) S.P. has never been convicted of a felony in this or any other state or in any federal court.

Based upon the pleadings and the stipulation, the trial court entered its Order on May 24, 1978, which reads in part as follows:

It is therefore ORDERED and ADJUDGED that the Petitioner is a person who is entitled to expunction. All records and files relating to or arising out of the arrest of Petitioner on or about March 14, 1977, now presently retained by the Dallas Police Department, Dallas County District Attorney’s Office, Dallas County Sheriff’s Office, Dallas County District Clerk’s Office, Judge Joe B. Brown, Justice of the Peace, Precinct # 7, Place 2, Judge Cleo Steele, Justice of the Peace, Precinct # 8, Place 2, the Texas Department of Public Safety and the Federal Bureau of Investigation are ordered expunged.
The Dallas Police Department, Dallas County District Attorney’s Office, Dallas County Sheriff’s Office, Dallas County District Clerk’s Office, Judge Joe B. Brown, Justice of the Peace, Precinct 7, Place 2, Judge Cleo Steele, Justice of the Peace, Precinct 8, Place 2, and the Texas Department of Public Safety are hereby ordered:
(1) To return all records and files that are subject to this expunction order to this Court or, if removal is impracticable, obliterate all portions of the record or file that identify the Petitioner and notify the Court of its action; and
(2) Delete from its public records all index references to the records and files that are subject to the expunction order; and
(3) To request any central federal depository to which information was sent concerning this arrest to return all records and files subject to this order of expunction.
The Court further finds that Art. 55.02 of the Code of Criminal Procedure does not provide for expunction of records of any state agency other than those state agencies named in section 1(b) of Art. 55.02 which speaks only to those state agencies directly involved in criminal matters; accordingly, records or files relating to this arrest may be retained by the State Department of Human Resources, Dallas County Child Welfare, and their attorneys.

S.P. has appealed. We will modify the Order and affirm.

The threshold question for us to decide is whether a court of civil appeals has jurisdiction to entertain an appeal from a criminal district court order with respect to the statutory construction of Articles 55.01-55.05 of the Texas Code of Criminal Procedure. We note that two recent En Banc decisions by the Court of Criminal Appeals of Texas have held that attempted appeals from orders entered pursuant to Articles 55.01-55.-05, supra, were not criminal cases. Ex parte Paprskar, 573 S.W.2d 525 (Tex.Cr.App.1978); State v. Henson, 573 S.W.2d 548 (Tex.Cr.App.1978). In reaching this holding, Paprskar states:

It would not be appropriate to reclassify this proceeding as a criminal case simply because this might be an appropriate forum to handle the matter complained of.
On the issue of whether or not this case is a criminal case it should be noted that the petitioner has not been placed in jeopardy in a matter from which he can appeal. There are no criminal penalties attached to the order of the court or involved in this expunction act, except for violation of any court order entered. The action in question is not brought by or in the name of the State and the persons against whom the action was brought are not charged with having committed a crime or violated any penal statute. Cf. Hogan v. Turland, Tex., 428 S.W.2d 316.

Article V, Section 6, Constitution of the State of Texas, provides in part that:

Said Courts of Civil Appeals shall have appellate jurisdiction co-extensive with the limits of their respective districts, which shall extend to all civil cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. . (emphasis added)

The Supreme Court of Texas concluded that a mandamus proceeding involving the Code of Criminal Procedure was a civil action and that the court of civil appeals had jurisdiction under Article V, Section 6, supra, in the case of Hogan v. Turland, 428 S.W.2d 316 (Tex.1968), stating:

The civil nature of the action is demonstrated by the fact that it is not brought by nor in the name of the state, and the •. officer against whom the writ is requested is not alleged to have committed a crime nor violated any penal statute. The complaint is that the officer simply refuses to perform his legal duty. . Further, the court of criminal appeals has indicated that it will not take jurisdiction

Since Paprskar and Henson, supra, have held that expunction proceedings, under Articles 55.01-55.05 of the Texas Code of Criminal Procedure are not criminal cases, we will entertain this appeal under Article V, Section 6, Constitution of the State of Texas, and Article 2249, Tex.Rev. Civ.Stat.Ann. (1971).

Appellant’s single point of error is that the district court erred in failing to grant expunction of the records of appellant’s arrest possessed by Dallas County Child Welfare Unit and also by the State Department of Human Resources. We agree.

Article 55.01, Code of Criminal Procedure (1979), provides that:

A person who has been arrested is entitled to have a11 records and files relating to the arrest expunged if:
(1) an indictment or information has not been presented against him for an offense arising out of the transaction for which he was arrested;
(2) he has been released and the charge, if any, has been dismissed; and
(3) he has not been convicted of a felony in the five years preceding the date of the arrest, (emphasis added)

Article 55.02, Code of Criminal Procedure (1979) provides the procedure for expunction.

Article 55.03, Code of Criminal Procedure (1979) provides that:

After entry of an expunction order:
(1) the release, dissemination, or use of the expunged records and files for any purpose is prohibited;
(2) except as provided in Subdivision 3 of this article, the petitioner may deny the occurrence of the arrest and the existence of the expunction order; and (3)the petitioner or any other person, when questioned under oath in a criminal proceeding about an arrest for which the records have been expunged, may state only that the matter in question has been expunged.

Article 55.04, Code of Criminal Procedure (1979) imposes sanctions for violations of an expunction order. Article 55.05, Code of Criminal Procedure (1979) provides for notice to an arrested person as to his right to expunction.

Child Welfare and the guardian ad litem argue that the expunction procedures are not applicable to the Child Welfare Unit and the State Department of Human Resources. We are unable to agree. Article 55.01, supra, clearly provides that all records and files relating to the arrest are to be expunged when the petitioner, as here, establishes his eligibility for expunction.

It should be noted that nonaccusatory reports under Section 34.02, Texas Family Code (Supp.1978), are not subject to ex-punction under Articles 55.01-55.05, supra. It should also be noted that investigations and written reports authorized by Section 34.05, Texas Family Code (Supp.1978), are not subject to expunction, except for any references in such reports which are based upon police records and files relating to the arrest. Those references must be expunged.

The order of the trial court (quoted here-inabove) is hereby modified by changing the last paragraph so that it will read as follows:

The Court further finds that Article 55.01 of the Code of Criminal Procedure provides for expunction of all records of this arrest; however, the records of the investigation of this incident by Dallas County Child Welfare Unit of the Texas Department of Human Resources pursuant to Section 34.05 of the Texas Family Code (except for any references in those records which are based upon the police records and files relating to the arrest) are not subject to expunction.

As modified, the order of the trial court is affirmed.


text:
    Mila K. CAMERON, Appellant, v. Honorable Joe R. GREENHILL et al., Appellees.
    No. 12977.
    Court of Civil Appeals of Texas, Austin.
    Feb. 21, 1979.
    Rehearing Denied Feb. 28, 1979.
    J. P. Darrouzet, Austin, for appellant.
    Mark White, Atty. Gen., Douglas B. Owen, Asst. Atty. Gen., Austin, for appel-lees.
   PHILLIPS, Chief Justice.

Appellant filed an administrative appeal in the district court of Travis County. In her petition appellant named each of the nine members of the Supreme Court of Texas as defendants. Appellant sued the justices “in their capacity as the regulatory or administrative head of the Legislatively controlled profession of law,” and attacked in her petition the validity of a Supreme Court order of May 3,1978, which called for a one-time fee assessment of certain members of the State Bar of Texas. The district court’s jurisdiction was alleged to exist solely under the Administrative Procedure and Texas Register Act, Tex.Rev.Civ.Stat. Ann. art. 6252-13a, § 19 (Supp.1978), and appellant contended her suit was an “appeal,” under the Act.

Appellees filed, among other pleadings, a plea to the jurisdiction which, after hearing, the trial court granted and ordered the case dismissed.

Appellant’s point of error, which we overrule, is the error of the court in refusing jurisdiction under art. 6252-13a.

The Administrative Procedure Act applies only to an “agency,” as that term is defined in art. 6252-13a, § 3(1), which reads as follows:

“ ‘Agency’ means any state board, commission, department, or officer having statewide jurisdiction, other than an agency wholly financed by federal funds, the legislature, the courts, the Industrial Accident Board, and institutions of higher education, that makes rules or determines contested cases.” Tex.Rev.Civ. Stat.Ann. art. 6252-13a, § 3(1) (Supp. 1978). (Emphasis added).

In spite of the unqualified exemption of “the courts” from this Act, appellant, nonetheless, maintains that the Supreme Court, in ordering the questioned assessments, was acting in an administrative capacity, as distinguished from its judicial capacity, and is therefore subject to the Act.

We hold that the courts are entirely exempt from the Act, regardless of the capacity in which they act.

The judgment of the district court is in all things affirmed.