author: POPE, Justice.

text:
    Eastman DILLON et al., Petitioners, v. Melvin LINTZ, Respondent.
    No. B-7745.
    Supreme Court of Texas.
    May 16, 1979.
    Andrews, Kurth, Campbell & Jones, Fred M. Knapp, Jr., Houston, for petitioners.
    Goodman L. Caplan, Shapiro & Forbes, Arthur L. Forbes, Houston, for respondent.
   POPE, Justice.

The question presented is whether the cause of action was barred by the three-year statute of limitations contained in article 581-33 C, the Securities Act. Melvin Lintz instituted this suit against Eastman Dillon, Únion Securities & Co., and Sam Dodd seeking a rescission of a contract for the sale of Omnitec securities. Trial to the court resulted in a judgment that Lintz take nothing. The court of civil appeals, by a divided court, reversed and rendered judgment for Lintz. 568 S.W.2d 147. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

On February 14, 1969, Sam Dodd, an agent employed by Eastman Dillon, telephoned Lintz and recommended that he purchase Omnitec securities for investment purposes. Based on this recommendation, Lintz authorized the purchase of 1,000 shares. Purchase was made on a “when, as and if issued” basis. Eastman Dillon confirmed the sale by telephone that day and mailed a letter of confirmation to Lintz a few days later. The confirmation stated that “we [Eastman Dillon] have this day [February 14, 1969] made the following transaction for your account This transaction is on WHEN, AS AND IF ISSUED OR WHEN DISTRIBUTED basis as indicated in ‘DESCRIPTION COLUMN.’ ” The description column listed “Omnitec Corporation when as and if issued.”

The stock was issued on March 3, 1969, and Lintz paid the purchase price to Eastman Dillon on March 28. Lintz filed this suit against Eastman Dillon on February 28, 1972, alleging among the violations that the securities were not registered as required by the Securities Act. More than three years had passed if time commenced when the contract was made on February 14,1969, but not if the time began when the stock was issued.

The nature of the condition precedent is controlling in this case. As we held in Hohenberg Brós. Co. v. George E. Gibbons & Co., 537 S.W.2d 1 (Tex.1976), “A condition precedent may be either a condition to the formation of a contract or to an obligation to perform an existing agreement. Conditions may, therefore, relate either to the formation of contracts or to liability under them.” See 5 S. Williston, A Treatise on the Law of Contracts, § 666 (3d ed. 1961).

We conclude, as did the trial court, that the contract was made on February 14, 1969, and the parties then had only to await the event of issuance of the stock before being bound on the obligation to pay. As revealed by the contract, it was not the intent to wait for the issuance of the stock to make the contract. “When-issued trading” is trading in unissued securities which is effected in contemplation of their issuance: a dealer simply makes a contract to sell the securities “when, as and if issued.” 1 L. Loss, Securities Regulation at 221 (2d ed. 1961). Such an agreement is a conditional contract by which the parties are bound to perform if the securities are ultimately issued according to the terms specified. Loss & Vernon, When-issued Securities Trading in Law and Practice, 54 Yale L.J. 741 (1945).

Since this suit was not filed until February 28,1972, Lintz exceeded the three years by two weeks. Therefore, the court of civil appeals erred in holding that his claim was not barred by the statute of limitations.

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

      . In 1977, the 65th Legislature substantially amended Tex.Rev.Civ.Stat.Ann. art. 581-33, but this appeal is governed by the law as it existed prior to the amendment.
      Article 581-33 C provided: “No person may sue under Subsection A(l) of this Section 33 more than three (3) years after the contract of sale.”


source: Caselaw Access Project

author: SPEARS, Justice. SAM D. JOHNSON, Justice,

license: Public Domain

text:
    William John EICHELBERGER, Petitioner, v. Helen Beatrice EICHELBERGER, Respondent.
    No. B-7239.
    Supreme Court of Texas.
    May 23, 1979.
    Rehearing Denied July 11, 1979.

      Segrest, Mills, Cameron & Riley, Philip R. Segrest, Waco, for petitioner.
    Bedford D. Edwards and Erich W. Schwartze, III, Waco, for respondent.
   SPEARS, Justice.

This is a divorce case. The sole question presented is whether the Supremacy Clause of the United States Constitution preempts a division by the state court of Texas of a spouse’s entitlement to benefits under the federal Railroad Retirement Act of 1974. 45 U.S.C.A. § 231 et seq. The trial court awarded the wife a portion of the husband’s expected benefits, both vested and contingent, as a part of the division of their community property, and the Court of Civil Appeals affirmed. 557 S.W.2d 587. This court heretofore refused to grant Petitioner’s application for writ of error for “want of jurisdiction,” but granted the application upon motion for rehearing. We now reverse the judgment of the Court of Civil Appeals, render judgment that the wife is not entitled to a part of the husband’s future railroad retirement benefits and affirm the remainder of the trial court’s judgment.

JURISDICTION

The threshold question that confronts this court is whether or not the conflict between the decision of the Court of Civil Appeals in this case and the recent decision of the Supreme Court of the United States in the case of Hisquierdo v. Hisquierdo, - U.S. -, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), confers jurisdiction upon this court to correct the error of the Court of Civil Appeals.

Article VI, Clause 2, of the Constitution of the United States, known as the Supremacy Clause, provides:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Article I, Section 1, of the Constitution of Texas, expressly acknowledges that the State of Texas is subject to the Constitution of the United States. This court must recognize and follow the supreme law of the land. Emmons v. Pacific Indemnity Co., 146 Tex. 496, 208 S.W.2d 884 (1948); Gutierrez v. Ei Paso & N. E. R. Co., 102 Tex. 378, 117 S.W. 426 (1909); McKee v. Brooks, 64 Tex. 255 (1885). In Emmons we said that this court was controlled in the construction of federal laws by the decisions of the Supreme Court of the United States.

We hold that under Article V, Sections 1 and 3, of the Constitution of Texas, the Supreme Court of Texas possesses the power, and thus the duty, to correct a decision of a Court of Civil Appeals that conflicts with the “supreme law of the land” as established by the Congress and Supreme Court of the United States.

The Supreme Court of Texas is vested with both original and appellate jurisdiction. Our express grant of appellate jurisdiction is contained in Tex.Const. Article V, Section 3, which provides in part:

“Sec. 3. The Supreme Court shall have appellate jurisdiction only except as herein specified, which shall be co-extensive with the limits of the State. Its appellate jurisdiction shall extend to questions of law arising in cases of which the Courts of Civil Appeals have appellate jurisdiction under such restrictions and regulations as the Legislature may prescribe. Until otherwise provided by law the appellate jurisdiction of the Supreme Court shall extend to questions of law arising in the cases in the Courts of Civil Appeals in which the Judges of any Court of Civil Appeals may disagree, or where the several Courts of Civil Appeals may hold differently on the same question of law or where a statute of the State is held void. . . ” (Emphasis supplied.)

Pursuant to this constitutional provision, we have statutory jurisdictional authority in Tex.Rev.Civ.Stat.Ann. Art. 1728 (Vernon 1962). In this case we can only look to sections 1 and 2 since divorce cases are otherwise made final in the Court of Civil Appeals. Tex.Rev.Civ.Stat.Ann. Art. 1821(3) (Vernon 1964). There is no dissent which would give us jurisdiction under section 1. Section 2 states that we have appellate jurisdiction “extending to all questions of law arising in the following cases when same have been brought to the Courts of Civil Appeals from appealable judgment of trial courts: ... 2. Those in which one of the Courts of Civil Appeals holds differently from a prior decision of another Court of Civil Appeals, or of the Supreme Court upon a question of law material to a decision of the case.” No mention is made of a conflict upon a question of law between a Court of Civil Appeals and the Supreme Court of the United States.

Since we are now faced with a case in which no express grant of jurisdiction exists, we must look to the nature of the whole judicial power granted to the courts of this state by Tex.Const. Art. V, Sec. 1, to ascertain jurisdiction. That constitutional provision specifically vests the “judicial power of this state” in one Supreme Court, in one Court of Criminal Appeals, in Courts of Civil Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law.

The judicial power is divided among these various named courts by means of express grants of “jurisdiction” contained in the constitution and statutes. The “jurisdiction” of a particular court is that portion of the judicial power which it has been expressly authorized to exercise by the constitution or statutes. Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933).

In addition to the express grants of judicial power to each court, there are other powers which courts may exercise though not expressly authorized or described by constitution or statute. These powers are woven into the fabric of the constitution by virtue of their origin in the common law and the mandate of Tex.Const. Art. II, Sec. 1, of the separation of powers between three co-equal branches. They are categorized as “implied” and “inherent” powers, though some courts have also used the terms incidental, correlative and inferred.

Both implied and inherent powers exist in this state, each with separate and independent meaning. The courts of this state have long recognized these powers. Their use has continued unchallenged through constitutional revision, express legislative confirmation, as well as the sometimes overbroad statements of our own courts. These statements have resulted from confusion and overlap, and from a failure or refusal to recognize the distinction between implied and inherent powers. See State v. Pounds, 525 S.W.2d 547 (Tex.Civ.App.—Amarillo 1975, writ ref’d n. r. e.); Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100, 109 (Tex.Civ.App.—Amarillo 1971, writ ref’d n. r. e.); see also State v. Cannon, 206 Wis. 374, 240 N.W. 441 (1932). We believe that the distinction between them is important.

The inherent judicial power of a court is not derived from legislative grant or specific constitutional provision, but from the very fact that the court has been created and charged by the constitution with certain duties and responsibilities. The inherent powers of a court are those which it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, and in the preservation of its independence and integrity. Inherent power of the courts has existed since the days of the Inns of Court in common law English jurisprudence. Nevitt v. Wilson, 116 Tex. 29, 285 S.W. 1079, 1083 (1926); People ex rel Karlin v. Culkin, 248 N.Y. 465, 162 N.E. 487 (1928). It also springs from the doctrine of separation of powers between the three governmental branches. Tex.Const. Art. II, Sec. 1. This power exists to enable our courts to effectively perform their judicial functions and to protect their dignity, independence and integrity.

The implied powers of a court do not stand on such an independent basis as those described as inherent. Though not directly or expressly granted by constitutional or legislative enactment, implied powers are those which can and ought to be implied from an express grant of power. These powers were recognized by this court in Ex Parte Hughes, 133 Tex. 505, 129 S.W.2d 270 (1939), where the court reversed a contempt conviction because the district court had no jurisdiction over the case. The defendant Hughes had failed to produce documents under the court’s subpoena in a usury suit brought by the State of Texas. We held that the court had no jurisdiction over the case since the usury statute provided a remedy between private individuals only, and such remedy could not be enforced by the state. In so doing, however, we recognized the existence of implied jurisdictional powers by the following language:

“Under our judicial system our courts have such powers and jurisdiction as are defined by our laws constitutional and statutory. Under our system there is no such thing as the inherent power of a court, ‘if, by that, be meant a power which a court may exercise without a law authorizing it.’ Messner v. Giddings, 65 Tex. 301. Of course jurisdiction is granted by law when it is either directly conferred or ought to be implied from the jurisdiction directly granted. In other words, our courts have such powers and jurisdiction as are directly provided by law, and, in addition thereto, they have such further powers and jurisdiction as are reasonably proper and necessary,— that is, as ought to be inferred, from the powers and jurisdiction directly granted.” Id. 129 S.W.2d at 273. (Emphasis supplied.)

See Burttschell v. Sheppard, 123 Tex. 113, 69 S.W.2d 402 (1934).

The language of Hughes was overbroad when it categorically denied the existence of the inherent power of a court and such language is disapproved. Several other cases decided by this court have similarly stated that inherent powers of the court do not exist; however, closer examination reveals that such statements which have negated the existence of inherent power were made to deny the existence of a court’s inherent “jurisdictional” power. Our holdings have simply been that we have no inherent power to take jurisdiction of a case when that jurisdiction has been expressly or impliedly granted to another court of this state. In so doing, we have recognized a distinction between implied and inherent powers, in regard to jurisdiction.

This is illustrated by returning the statement concerning inherent powers found in Ex Parte Hughes, supra, to its original context in Messner v. Giddings, 65 Tex. 301 (1886). There this court held that a district court had no power to exercise original jurisdiction which had been conferred on county courts alone. When the constitution expressly grants jurisdiction over a particular subject matter to a particular court and not upon another, then it is to be presumed that the “jurisdiction” so conferred is exclusive. Messner v. Giddings, 65 Tex. 301, 310 (1886).

Likewise in Pope v. Ferguson, 445 S.W.2d 950 (Tex.1969), we denied having inherent powers in a jurisdictional matter on the basis of Messner v. Giddings, supra, and Ex Parte Hughes, supra. In Ferguson, we declined to use our mandamus powers on the grounds that an adequate remedy existed by appeal and that areas of conflict between our power and the power expressly granted to the Court of Criminal Appeals would exist, should the petition for mandamus be granted. We said that it was our duty to avoid conflicts when we could do so in good conscience. It was only in the context of this duty to avoid intrusion into another court’s express jurisdiction, that we denied having inherent power.

As we have said, this court does possess inherent powers separate and distinct from our jurisdictional power; however, in the case now before us the exercise of inherent powers as we have defined them here is not appropriate. Rather, we are called upon to exercise a judicial power not within our express grant of jurisdiction.

The constitution expressly gives this court jurisdiction to review questions of law arising in cases decided by the Court of Civil Appeals. Tex.Const. Art. V, Sec. 3; Tex.Rev.Civ.Stat.Ann. Art. 1728 (Vernon 1962); Champlin Oil & Refining Co. v. Chastain, 403 S.W.2d 376 (Tex.1965); Ex Parte Godeke, 163 Tex. 387, 355 S.W.2d 701 (1962). From this express grant we hold our jurisdictional power to decide the case before us is implied. Ex Parte Hughes, supra; Burttschell v. Sheppard, supra. No other department of the government of Texas has the jurisdiction or the mechanism to correct such decision of a Court of Civil Appeals except the Supreme Court of Texas. A patent anomaly would exist if, within the sovereign State of Texas, no department, branch or official had the power to enforce in this case the mandate of the federal Supremacy Clause and the recognition of that supremacy by Tex.Const. Art. I, Sec. 1. We hold, therefore, that the Supreme Court of Texas has jurisdiction to correct a decision of the Court of Civil Appeals which is contrary to a decision of the United States Supreme Court.

FACTS AND BACKGROUND

Petitioner William Eichelberger began working for the railroad in 1946. In June of 1957, he and Helen Eichelberger, Respondent, were married. In 1973, William was placed on disability retirement under the Railroad Retirement Act of 1937 (45 U.S. C.A. § 228a et seq.). They continued living together as husband and wife until they separated in April, 1976, and Helen filed her petition for divorce.

At the time the divorce was granted by the trial court, the parties had been married for 19 years. William was 54 years old and was employed at a motel for $50 per week from which he paid $10 per week for his room. He also received $419.95 each month as his railroad retirement benefits. Helen, on the other hand, had minor education, and she was without education or skill to qualify her for any particular employment. According to her sworn petition, she was 57 years of age at the time of trial. She was living in rented quarters and had $50 cash and three $25 United States Savings Bonds. Her income was from babysitting at $5 per day, however, she had no children to sit with at the time of the trial. The trial court correctly found that there was “considerable disparity” in their earning capacities. There were no children of the marriage.

The parties agreed to a division of their community property, but the question of whether Helen was entitled to any property interest in William’s railroad retirement benefits was left for decision by the court. The trial court awarded to each the property in his and her possession as his and her separate estate pursuant to their property settlement agreement. The court then divided the retirement benefits by awarding Helen 40% of all future retirement and disability benefits (and increases) to be paid William “growing out of his employ or services as a railroad employee.” The court ordered William to deposit Helen’s 40% to her account at the Citizens National Bank of Waco, Texas.

The Court of Civil Appeals upheld the actions of the trial court. After dismissing the husband’s application for writ of error for want of jurisdiction in March 1978, we withheld action on Petitioner’s motion for rehearing pending decision by the Supreme Court of the United States in a case arising out of California, Hisquierdo v. Hisquierdo, 19 Cal.3d 613, 139 Cal.Rptr. 590, 566 P.2d 224 (1977), cert. granted, 435 U.S. 994, 98 S.Ct. 1644, 56 L.Ed.2d 82 (April 24, 1978).

FEDERAL PREEMPTION

The Supreme Court of the United States on January 22, 1979, handed down its decision in Hisquierdo v. Hisquierdo, - U.S. -, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979). The court held that benefits payable under the Railroad Retirement Act and the expectation of ultimately receiving future benefits under the Act are not subject to division by a state court as “property” upon divorce. The court further held that state courts in community property states may not “anticipate” such benefits by awarding upon divorce such other property of the parties that would compensate the non-employee spouse for the denied benefits in the retirement.

The United States Supreme Court reasoned that its decision effected congressional intent and prevented frustration of federal policy. It held that under the Supremacy Clause, California community property law as announced by the California Supreme Court was preempted by the express terms of the Railroad Retirement Act, especially the strong anti-attachment clause, § 231m, which provides that the benefits shall not be subject to any “legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated.” Thus the holding of the California Supreme Court, In re Hisquierdo, 19 Cal.3d 613, 139 Cal.Rptr. 590, 566 P.2d 224 (1977), that the retirement benefits under the Act were community property even though the benefits had not vested at the time of divorce, was reversed, and the case was remanded for further proceedings not inconsistent with the opinion.

It is clear that the Hisquierdo decision controls the disposition of this case. We held in Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976), that retirement benefits earned during the marriage constitute a community asset subject to division and consideration in the equitable division of the community estate of the parties upon divorce even though the rights are contingent and not yet matured or vested. By virtue of Hisquierdo, however, this rule cannot now apply to benefits of the Railroad Retirement System. Even though the majority in Hisquierdo does not expressly hold that the anticipated benefits are not property, the court’s opinion makes it clear that such benefits are not to be treated as “property” and future benefits are not subject to division upon divorce as property.

The holding of the Court of Civil Appeals affirming the judgment of the trial court which awarded Helen Eichelberger 40% of William’s railroad retirement benefits as a fair and equitable division of the property of the parties is therefore erroneous and must be reversed.

ALIMONY

The Hisquierdo holding is plain that railroad retirement benefits cannot be reached by “legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated ■. . quoting 45 U.S. C.A. § 231m. The only exception to this rule is found in Section 459 of the Social Security Act, 42 U.S.C.A. § 659, which permits the garnishment of railroad retirement benefits to satisfy an obligation for alimony or child support. In 1977, Congress defined “alimony” to exclude “any payment or transfer of property or its value by an individual to his spouse or former spouse in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses.” 42 U.S.C.A. § 662(c). In United States v. Stelter, 567 S.W.2d 797 (Tex.1978), this court held that a former wife could not garnish her ex-husband’s military retirement payments of which she had been awarded a part in a divorce decree, citing this definition.

Respondent Helen Eichelberger argues earnestly that because of the ruling in His-quierdo, the only way she can be compensated for her loss of any property rights to the railroad retirement benefits is by awarding her alimony for which payment can be enforced under the provisions of 42 U.S.C.A. § 659. She correctly points out that there was no other property existing at the time of divorce that could be awarded to her to do equity other than a portion of the railroad retirement benefits. Since those are not available to her, and indeed the Supreme Court has said other property could not be awarded to her to compensate for the loss of those benefits, she urges that this court should reconsider its concept that alimony is against public policy in Texas.

Alimony has been declared to be contrary to the public policy of this State since 1841. Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 47 (1931). In recent years, however, several exceptions have been carved out of the general rule by this court. In McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722 (1961), we allowed a foreign decree of alimony to be enforced in Texas under the principles of comity. We there held that enforcement of such a decree was not violative of public policy because the property was in existence at the time of the divorce. In Francis v. Francis, 412 S.W.2d 29 (Tex.1967), we allowed the enforcement of contractual alimony and held that the public policy against alimony applied only to court-ordered alimony, not to contractual alimony.

Counsel for the wife strenuously urges that this court create another exception to that public policy and allow court-ordered “income” alimony in those cases where federal retirement entitlements have been held by preemption to be “nonproperty.” They cite in support of their arguments Sampson, Common Law Property In a Texas Divorce: After Eggemeyer, the Deluge?, 42 Tex.B.J. 131 (1979); Corrigan, Federal Retirement Benefits in Texas: Division as Property Right Between Former Spouses by Divorce Court, 41 Tex.B.J. 435 (1978); Turley, A Wife’s Right to Support Payments in Texas, 16 So.Tex.L.J. 1 (1974).

We decline to do so. First, any attempt by a Texas court to substitute court-ordered alimony for a property division at this stage of the proceedings would doubtless be viewed by the Supreme Court of the United States as a transparent attempt to circumvent the proscription of Section 231m by “anticipating” the payment of such benefits.

Second, in light of the long-standing public policy against alimony in this state and the general incompatibility of the principle of spousal support after divorce with the community property system as it has existed in Texas since the Republic of Texas, we believe it to be a proper function of the Legislature to determine whether it is to be authorized, even in the limited circumstances of railroad retirement benefits. If alimony based upon spousal need and payable from future earnings and/or property not in existence at the time of divorce is needed in this state because of decisions such as Hisquierdo, it should come about after careful consideration is given to the entire scheme of the community property system of Texas. The United States Supreme Court has said that enforceable alimony is limited to its “traditional common-law meaning of spousal support," a concept foreign to our Texas system of community property law applicable upon divorce. Alimony, whether instituted as a right or as a remedy, must fit into the larger system of marital property law in a logical way and only after thorough study of all aspects of Texas’ community property law. This is a legislative, not a judicial function, and may require constitutional amendments which are the responsibility of the Legislature.

Normally, the proper disposition of this ease would be to remand the cause to the trial court for a complete redistribution of the estate of the parties under Section 3.63 of the Texas Family Code (Vernon 1975). McKnight v. McKnight, 543 S.W.2d 863 (Tex.1976). Here, however, because of the United States Supreme Court’s statements forbidding state courts to award the non-employee spouse other property to compensate for or “anticipate” the benefits, a remand would accomplish nothing. Accordingly, we reverse and render that part of the trial court’s judgment as affirmed by the Court of Civil Appeals that awards Respondent wife a portion of her husband’s railroad retirement benefits and order that she take nothing thereunder. The remainder of the trial court’s judgment is affirmed.

SAM D. JOHNSON, J., dissents.

SAM D. JOHNSON, Justice,

dissenting.

This dissent is respectfully submitted.

This writer has no disagreement with the discussion of inherent and implied powers of this court. Further, this writer has no disagreement with a more encompassing view of the jurisdiction of this court, circumscribed only by the Constitution and enabling statutes of this state.

This writer does not believe, however, that this is an appropriate case in which to exercise those powers so as to expand the jurisdiction of this court beyond the limits of the Texas Constitution and statutes. This court has historically operated under a limited jurisdiction, restricted by the Texas Constitution and statutes. See Hart, The Appellate Jurisdiction of the Supreme Court of Texas, 29 Tex.L.Rev. 285 (1951), and Moorhead, Limitations Upon the Appellate Jurisdiction of the Supreme Court, in Appellate Procedure in Texas, at 21-1 (1964).

Nevertheless, the majority opinion of this court now expands the jurisdiction of this court to include decisions by the courts of civil appeals that conflict with a “decision of the Supreme Court of the United States” or “the supreme law of the land.” The ratio decidendi of the majority opinion is the Supremacy Clause and a conflict with “the supreme law of the land.” This necessarily includes conflicts with federal statutes and the federal Constitution, as well as any United States Supreme Court decision.

The avenues to the federal courts have always been open to those not satisfied with the answers they received in the state courts. Many have met with success. The majority’s writing ignores the availability of a historically proven remedy.

This writer would dismiss the application for want of jurisdiction.

      . Texas courts have recognized or utilized their inherent powers in the following instances: to change, set aside or otherwise control their judgments, A. F. Jones & Sons v. Republic Supply Co., 151 Tex. 90, 246 S.W.2d 853 (1952),; Nevitt v. Wilson, 116 Tex. 29, 285 S.W. 1079 (1926); Townes v. Lattimore, 114 Tex. 511, 272 S.W. 435 (1925); In re House Bill 537, 113 Tex. 367, 256 S.W. 573 (1923); Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040, 1041 (1912); Cohen v. Moore, 101 Tex. 45, 104 S.W. 1053 (1907); Gage v. Dallas Power & Light Co., 241 S.W.2d 196 (Tex.Civ.App.—Dallas 1951, no writ) (per curiam); to summon and compel the attendance of witnesses, Burttschell v. Sheppard, 123 Tex. 113, 69 S.W.2d 402 (1934); Bludworth v. State, 168 Tex.Crim. 549, 330 S.W.2d 436, 438 (1959); to punish by contempt, Ex Parte Browne, 543 S.W.2d 82 (Tex.1976); Cleveland v. State, 508 S.W.2d 829, 831 (Tex.Crim.App.1974); Ex Parte Myrick, 474 S.W.2d 767, 769 (Tex.Civ.App.—Houston [1st Dist.] 1971, no writ); to regulate the admission and practice of law, Scott v. State, 86 Tex. 321, 24 S.W. 789, 790 (1894) (power to disbar is inherent judicial power); State v. Tunstall, 51 Tex. 81, 86 (1879); Jackson v. State, 21 Tex. 668, 672-73 (1858); State v. Pounds, 525 S.W.2d 547 (Tex.Civ.App.-Amarillo 1975, writ ref’d n. r. e.) (power • to disbar); Grievance Committee, State Bar of Texas, Twenty-First Cong. Dist. v. Coryell, 190 S.W.2d 130, 131 (Tex.Civ.App.—Austin 1945, no writ) (inherent power to determine what constitutes practice of law); Grievance Committee, State Bar of Texas, Twenty-First Cong. Dist. v. Dean, 190 S.W.2d 126 (Tex.Civ.App.—Austin 1945, no writ); Bryant v. State, 457 S.W.2d 72, 78 (Tex.Civ.App.—Eastland 1970, writ ref’d n. r. e.); Burns v. State, 76 S.W.2d 172 (Tex.Civ.App.—Ft. Worth 1934), rev’d on other grounds, 103 S.W.2d 960 (Tex.Comm’n App.1937, opinion adopted); Tex.Atty.Gen.Op. No. M-393 (1969); cf. Hexter Title & Abstract Co. v. Grievance Committee, Fifth Cong. Dist., State Bar of Texas, 142 Tex. 506, 179 S.W.2d 946 (1944); Wichita County v. Griffin, 284 S.W.2d 253 (Tex.Civ.App.—Ft. Worth 1955, no writ); and to provide personnel to aid the court in the exercise of its judicial function, Commissioners Court of Lubbock County v. Martin, 471 S.W .2d 100, 109 (Tex.Civ.App. — Amarillo 1971, writ refd n. r. e.) (power to provide for adult probation officers).
      This court has also exercised its inherent judicial power by establishing a Code of Judicial Conduct, 513 S.W.2d foreward p. XXXIII et seq. (Texas Cases Only), by authorizing legal specialization programs (Order dated July 16, 1974), and by regulating advertising by attorneys (Orders dated May 26, 1978 and Decem- ' ber 13, 1978).
      The legislature has confirmed a court’s inherent powers necessary for the exercise of its jurisdiction and enforcement of its orders. Tex.Rev.Civ.Stat.Ann. art. 1911a (Vernon’s Supp. 1978-79).
      Virtually every state in the United States has recognized the inherent power of the supreme court of that state to regulate the admission and practice of law. See, J. Pamess, Citations and Bibliography on the Unified Bar in the . United States, Report of American Judicature Society (1973). For instances of impermissible legislative encroachment on this power, see Sharood v. Hatfield, 296 Minn. 416, 210 N.W.2d 275 (1973); Graham v. State Bar Ass’n, 86 Wash.2d 624, 548 P.2d 310 (1976).
      In several jurisdictions, courts have invoked their inherent powers to require the payment of reasonable and necessary expenses that were essential to allow the court to function, e. g., Smith v. Miller, 153 Colo. 35, 384 P.2d 738 (1963); Noble County Council v. State ex rel. Fifer, 234 Ind. 172, 125 N.E.2d 709 (1955); Judges for the Third Judicial Circuit v. County of Wayne, 383 Mich. 10, 172 N.W.2d 436, 441 (1969), opinions substituted, 386 Mich. 1, 190 N.W.2d 228 (1971); State ex rel. Schneider v. Cunningham, 39 Mont. 165, 101 P. 962 (1909); State ex rel. Kitzmeyer v. Davis, 26 Nev. 373, 68 P. 689, 690-91 (1902); Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 274 A.2d 193 (1971). See generally, Annot., 59 A.L.R.3d 569 (1974).

      . This is not the first decision of the Supreme Court of the United States to hold that federal law preempts the application of state community property laws. See Yiatchos v. Yiatchos, 376 U.S. 306, 84 S.Ct. 742, 11 L.Ed.2d 724 (1964); Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962); Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 (1950); McCune v. Essig, 199 U.S. 382, 26 S.Ct. 78, 50 L.Ed. 237 (1905).

      . Particular attention is drawn to two cases in which the aggrieved parties reached the United States Supreme Court after this court had dismissed their applications for want of jurisdiction, which is the precise situation facing the petitioner in this case. Adam v. Saenger, 303 U.S. 59, 58 S.Ct. 28, 82 L.Ed. 515 (1937), reh. denied, 303 U.S. 666, 58 S.Ct. 640, 82 L.Ed. 1123 (1938); Sullivan v. Texas, 207 U.S. 416, 28 S.Ct. 215, 52 L.Ed. 274 (1908). See also Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968); Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965); Michigan-Wisconsin P. L. Co. v. Calvert, 347 U.S. 157, 74 S.Ct. 396, 98 L.Ed. 583 (1954); Tucker v. Texas, 326 U.S. 517, 66 S.Ct. 274, 90 L.Ed. 274 (1946); Largent v. Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873 (1943); Lone Star Gas Co. v. Texas, 304 U.S. 224, 58 S.Ct. 883, 82 L.Ed. 1304 (1938); Grovey v. Townsend, 295 U.S. 45, 55 S.Ct. 622, 79 L.Ed. 1292 (1935); Bacon v. State of Texas, 163 U.S. 207, 16 S.Ct. 1023, 41 L.Ed. 132 (1896); Annot., 7 L.Ed.2d 1025.


author: McGEE, Justice. POPE, Justice,

text:
    Vernon R. BAKER et ux., Petitioners, v. Edward GOLDSMITH et ux., Respondents.
    No. B-7793.
    Supreme Court of Texas.
    May 23, 1979.

      Eskew, Brady, Womack & Muir, R. Douglas Muir, Austin, for petitioners.
    Kendall, Randle, Finch & Osborn, Terrence Kendall, Austin, for respondents.
   McGEE, Justice.

This is a proceeding in the nature of a bill of review. The trial court denied the requested equitable relief from a prior default judgment, but the court of civil appeals reversed the judgment and remanded the cause for trial. 567 S.W.2d 590. We affirm the judgment of the court of civil appeals.

The original suit underlying this bill of review was filed by Vernon R. Baker and his wife, Audane Baker, against Edward and Juliette Goldsmith, Mark S. Barrow, and the Goldsmiths’ son, Warren. The Bakers alleged that the four defendants entered into a conspiracy to sell them a gift shop franchise to be located in Austin, Texas. Specifically, the Bakers contended that the Goldsmiths and Barrow made certain fraudulent misrepresentations concerning the franchise and that in reliance thereon the Bakers paid $10,000 for the franchise in addition to other expenses incurred in anticipation of establishing the shop.

Upon receipt of citation to appear in the Baker suit, Edward Goldsmith sent a letter to the district judge of the court in which the suit was pending, substantially denying the material allegations in the Baker petition. A certified mail receipt returned to the Goldsmiths before appearance day indicates that the letter was received by a Travis County Courthouse mail room employee on December 11, 1973. On January 4, 1974 the Bakers’ cause of action against Warren Goldsmith and Mark Barrow was severed from the suit, and neither of these defendants has participated further in the original suit or the subsequent bill of review. On the same day a default judgment was rendered against Edward and Juliette Goldsmith for $44,699.66.

On March 10, 1974, Edward and Juliette Goldsmith filed this bill of review praying that the default judgment be set aside. In their petition they alleged that the aforementioned letter constituted a timely filed answer to the Baker suit, and that the answer had been misplaced at the courthouse after its receipt. The petition also stated that the Goldsmiths received no notice of the judgment until more than 30 days after its rendition, thus precluding the timely filing of a motion for new trial. As a meritorious defense to the original suit the Goldsmiths alleged:

(1) that they had made no misrepresentations;
(2) that any representations made by them to the Bakers were true;
(3) that they had no franchise contract with the Bakers;
(4) that they had not received any money in exchange for a gift shop franchise;
(5) that if the Bakers paid a franchise fee, it was either to the two former defendants, Warren Goldsmith and Mark Barrow, or to a corporation controlled by them, that the Goldsmiths were not part of that corporation and had no knowledge of any moneys received by that corporation;
(6) that they had no knowledge of representations made by Warren Goldsmith, if any, to the Bakers;
(7) that they had no knowledge of the whereabouts of Warren Goldsmith.

After a trial before the court where evidence and testimony was presented by both sides, the court found as a matter of fact that the letter was received and forwarded to the judge of the court in which the suit was pending, but that it had subsequently “disappeared” through “no fault” of the Goldsmiths. The court further concluded that such letter constituted an “answer” to the Baker suit, but that the delivery of the instrument to the judge did not constitute a filing thereof. It was also found that the Goldsmiths received no notice of the January 4, 1974 default judgment until February 10, 1974, more than 30 days after its rendition. The court concluded, however, that a meritorious defense had not been established by a preponderance of the evidence, and rendered judgment that the Goldsmiths take nothing. Over a dissenting justice, the court of civil appeals reversed and remanded the case, holding that the trial court erred in requiring the Goldsmiths to establish their meritorious defense by a preponderance of the evidence. 567 S.W.2d 590. We granted the Bakers’ application for writ of error.

A bill of review is an independent equitable action brought by a party to a former action seeking to set aside a judgment, which is no longer appealable or subject to motion for new trial. See McEwen v. Harrison, 162 Tex. 125, 131-32, 345 S.W.2d 706, 709-10 (1961); Comment, Setting Aside Judgments Against the Absent Defendant, 37 Texas L.Rev. 208, 221 (1958). Rule 329b(b) of the Texas Rules of Civil Procedure provides that: “After the expiration of thirty (30) days from the date the judgment is rendered or motion for new trial overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law.” Tex.R.Civ.P. 329b(5) (emphasis added). The rules do not define “sufficient cause,” but Texas courts have enunciated several requirements that must be satisfied. In Alexander v. Hagedorn, 148 Tex. 565, 568, 226 S.W.2d 996, 998 (1950), this court stated that in order to be successful upon a bill of review the complainant must “allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own.” Accord, Texas Machinery & Equipment Co. v. Gordon Knox Oil & Exploration Co., 442 S.W.2d 315, 317-18 (Tex.1969); Gracey v. West, 422 S.W.2d 913, 915 (Tex.1968). The second requirement of Hagedorn, however, has been qualified in later cases. To the extent there is reliance on the erroneous official information given by an official court functionary preventing the filing of a motion for new trial, the bill of review plaintiff is excused from showing the wrongful conduct, fraud or accident of the opposite party. Gracey v. West, 422 S.W.2d 913, 915-16 (Tex.1968) (citing Hanks v. Rosser, 378 S.W.2d 31, 34 (1964)).

The Bakers first contend that there are no pleadings or proof to support the conclusion that the prior judgment was rendered as the result of fraud, accident or wrongful act of the opposite party unmixed with any negligence on the part of the Goldsmiths. This contention is without merit. As aforementioned, in Gracey v. West, 422 S.W.2d 913 (Tex.1968), this court held that where an officer of the court gives wrong information which prevents the filing of a motion for new trial, the complainant in a bill of review is excused from showing that the judgment was rendered as the result of the wrongful conduct of the opposite party. Id. at 915 (citing Hanks v. Rosser, 378 S.W.2d 31, 34 (Tex.1964)). Consistent with this, it is also acceptable for the complainant to allege and prove that he was prevented from presenting his contentions in the former action by a mistake or error of the court or a functionary thereof in the discharge of official duties. Vogel v. Vogel, 405 S.W.2d 87, 90 (Tex.Civ.App.—San Antonio 1966, no writ); Texas State Board of Examiners in Optometry v. Lane, 358 S.W.2d 636, 637 (Tex.Civ.App.—Fort Worth 1962, writ ref’d n. r. e.); 4 R. McDonald, Texas Civil Practice in District and County Courts § 18.27 (1970).

Turning to the record, we find that there are pleadings, proof, and a finding that the letter was misplaced without the fault of the Goldsmiths after it was received at the Travis County Courthouse. We agree with the conclusion of the trial judge that this letter constituted an answer, and it is to be assumed that the presiding judge entered the default judgment against the Goldsmiths under the mistaken belief that the Goldsmiths had indeed failed to answer. These circumstances obviate the necessity of pleading and proving accident, fraud or wrongful act of the Bakers.

The Bakers next contend that the Goldsmiths, as bill of review complainants, had the burden of establishing their meritorious defense by a preponderance of the evidence. The Goldsmiths respond that the court of civil appeals correctly held that the complainants were only required to present probative evidence that the result would have been different whereupon the parties are relegated to their original status of plaintiff and defendant with the burden resting upon the plaintiff to make his case.

While this court has never confronted the exact issue presented by these contentions, several cases are helpful to an analysis of the problem. In McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961), it was stated that:

. If . . a defendant has not been negligent in suffering a default judgment to be rendered against him by a court which had jurisdictional power to render it, or in permitting it to become final, and if he has a meritorious defense to the suit, he may still have the suit tried on its merits with the right to require the plaintiff to prove his case and the corresponding right to establish his defense. Texas Employers’ Ins. Ass’n v. Arnold, 126 Tex. 466, 88 S.W.2d 473, 474; Wear v. McCallum, 119 Tex. 473, 33 S.W.2d 723, 724.

Id. 345 S.W.2d at 710 (emphasis added); accord, Texas Machinery & Equipment Co. v. Gordon Knox Oil & Exploration Co., 442 S.W.2d 315, 318 (Tex.1969). This language does not indicate what quantum of proof is required to show that the bill of review complainant “has a meritorious defense,” but it is clear that at some point in the proceeding the parties will revert to their original status as plaintiff and defendant with the burden on the plaintiff to prove his case.

In an earlier case the court of civil appeals in Crosby v. Di Palma, 141 S.W. 321 (Tex.Civ.App.—El Paso 1911, writ ref’d), concluded that a good and meritorious defense had been presented when the complainant had shown that the result reached in the prior ease would have been different had the defensive matter been presented. If a prima facie meritorious defense has been shown to the court, “the measure of the law is fulfilled, and the parties are then relegated to their original status of plaintiff and defendant, with the burden of proof resting upon the plaintiff to make his case, leaving the defendant the right, if he sees fit, to rely merely upon the weakness of his adversary’s case.” Id. at 325; see Dicker v. Binkley, 555 S.W.2d 495, 498 (Tex.Civ.App. —Dallas 1977, no writ) (must show meritorious defense to the extent that, had the defense been presented, the prior judgment would not have been rendered); cf. Petrochemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 245 (Tex.1974); Overton v. Blum, 50 Tex. 417, 425 (1878).

Similarly, in Swenson v. Swenson, 466 S.W.2d 424 (Tex.Civ.App.—Houston [1st] 1971, no writ), the court stated that the complainant was not required to prove facts constituting a complete defense to the suit in which the prior judgment was rendered. Instead, if the trial court were convinced that certain facts existed that would lead to a new and different verdict and that the complainant had been prevented from presenting those facts by the wrongful conduct of the opposite party unmixed with fault or negligence on the complainant’s part, the question of meritorious defense could be resolved “by the answers to the issues on the merits submitted to the jury as in any ordinary case.” Id. at 426-27 (emphasis added). Notably, Texas commentators that have considered this question have reached the same conclusion. 4 R. McDonald, Texas Civil Practice in District and County Courts § 18.29, at 335 (1971); Meyer, The Equitable Bill of Review in Texas, 41 Tex.B.J. 699, 602 (1978).

Moreover, many other American jurisdictions do not require the complainant in a bill of review proceeding to prove his meritorious defense by a preponderance of the evidence. See, e. g., Gordon v. Halstead, 283 Ala. 578, 219 So.2d 629, 631 (1969); Olivera v. Grace, 19 Cal.2d 570, 122 P.2d 564, 569 (1942); Overstreet v. Grinstead’s Adm’r, 283 Ky. 73, 140 S.W.2d 836, 839 (1940); Hockenberry v. Cooper County State Bank, 338 Mo. 31, 88 S.W.2d 1031, 1037 (1935); Stocking v. Charles Beard Co., 102 Mont. 65, 55 P.2d 949, 952 (1936).

In light of the aforementioned authorities we now hold that the complainant in a bill of review is not required to prove his meritorious defense by a preponderance of the evidence. Since this case must be remanded for trial under correct principles, we deem it appropriate to outline the trial procedure to be utilized and the burdens of persuasion to be assumed by the respective parties.

First, in order to invoke the equitable powers of the court, the bill of review complainant must file a petition. This petition must allege factually and with particularity that the prior judgment was rendered as the result of fraud, accident or wrongful act of the opposite party or official mistake unmixed with his own negligence. See Gracey v. West, supra at 915; Hanks v. Rosser, supra at 34; McEwen v. Harrison, supra, 345 S.W.2d at 710. The complainant must further allege, with particularity, sworn facts sufficient to constitute defense and, as a pretrial matter, present prima facie proof to support the contention. Crosby v. Di Palma, supra at 325. This preliminary showing is essential in order to assure the court that valuable judicial resources will not be wasted by conducting a spurious “full-blown” examination of the merits.

The relevant inquiry is not whether “the result would probably be different” on retrial as some Texas cases have indicated. Such a test would require the court to weigh the evidence. Rather, a prima facie meritorious defense is made out when it is determined that the complainant’s defense is not barred as a matter of law and that he will be entitled to judgment on retrial if no evidence to the contrary is offered. This is a question of law for the court. Cf. Trevino v. American National Insurance Co., 140 Tex. 500, 168 S.W.2d 656 (1943); Duncan v. Butterowe, Inc., 474 S.W.2d 619 (Tex.Civ.App.—Houston [14th] 1971, no writ). Prima facie proof may be comprised of documents, answers to inter-. rogatories, admissions, and affidavits on file along with such other evidence that the trial court may receive in its discretion. The bill of review defendant may respond with like proof showing that the defense is barred as a matter of law, but factual questions arising out of factual disputes are resolved in favor of the complainant for the purposes of this pretrial, legal determination. If the court determines that a prima facie meritorious defense has not been made out, the proceeding terminates and the trial court shall dismiss the case.

On the other hand, if a prima facie meritorious defense has been shown, the court will conduct a trial. At this juncture we note that the court may, within its discretion, conduct the trial of the issues in one hearing or in separate hearings pursuant to Rule 174(b) of the Texas Rules of Civil Procedure. See Warren v. Walter, 414 S.W.2d 423 (Tex.1967). In any event, only one final judgment may be rendered in a bill of review proceeding either granting or denying the requested relief. Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex.1966).

Whether the trial is conducted in one hearing or in separate hearings the burden of persuasion is allocated in the following manner. The complainant must open and assume the burden of proving that the judgment was rendered as the result of the fraud, accident or wrongful act of the opposite party or official mistake unmixed with any negligence of his own. McEwen v. Harrison, supra, 345 S.W.2d at 710; 4 R. McDonald, supra at 335. This may be an onerous burden, but it is a major distinguishing factor between a bill of review and a motion for new trial. In a motion for new trial the movant is merely required to prove that his failure to answer in the prior trial was not intentional or the result of conscious indifference, but was due to accident or mistake, and that the granting of a new trial will occasion no delay or injury to the plaintiff. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 125 (1939) (must also set up a meritorious defense); 4 R. McDonald, supra at 267. This distinction rests on our policy favoring finality of judgments. A less onerous standard for the movant in a timely filed motion for new trial is justified inasmuch as the judgment has yet to become final and only a brief period of time has elapsed since its rendition. On the other hand, once a judgment has become final, it must be accorded a measure of respect or litigation would tend to become endless. 4 R. McDonald, supra at 318; Recent Cases, 24 Texas L.Rev. 223, 224 (1946).

While the complainant must assume this burden, the bill of review defendant must assume the burden of proving his original cause of action. Crosby v. Di Palma, supra at 335. This assures that the original, underlying cause of action is supported by the weight of the evidence.

The fact finder will determine whether the complainant has established by a preponderance of the evidence that the prior judgment was rendered as a result of fraud, accident or wrongful act of the opposite party or official mistake unmixed with negligence on the complainant’s part. This may be submitted in one broad issue under Rule 277 of the Texas Rules of Civil Procedure. Conditioned upon an affirmative finding to this issue, the fact finder will then determine whether the bill of review defendant, the original plaintiff, has proved the elements of his original cause of action. 4 R. McDonald, supra at 335; Meyer, supra at 702. Once it is found that the complainant is suffering under a wrongfully obtained judgment that is unsupported by the weight of the evidence, equity is satisfied and the court should grant the requested relief.

The judgment of the court of civil appeals which reversed the trial court judgment and remanded the cause is affirmed with instructions that further proceedings should be consistent with this opinion.

Concurring opinion by POPE, J.

POPE, Justice,

concurring.

While I concur in the result, it is my view that we are unnecessarily confounding the trials of bill of review cases. I agree that the bill of review plaintiff must prove by a preponderance of the evidence that the pri- or judgment was rendered as a result of fraud, accident or wrongful act of the opposite party which was unmixed with any fault or negligence of his own or that there was an official mistake unmixed with the negligence on the part of the bill of review plaintiff. The majority at that point injects a new step into the trial that in my opinion is unnecessary, wasteful, and confusing.

The majority requires an interim hearing at which the bill of review plaintiff must satisfy the trial court by prima facie proof that he has a meritorious defense. That hearing is not the trial of the defense that counts; it is a preliminary showing of what one will prove when it does count. It is an additional and redundant hearing. Instead of saving time, it creates an extra sub-trial of uncertain nature and duration. The rules already authorize adequate proceedings by which a frivolous or non-meritorious claim to a defense can be exposed. A partial or complete summary judgment proceeding will expose the unmeritorious case. Rule 166-A, Tex.R.Civ.P. The court may order a separate trial of an issue as authorized by Rule 174(b), Tex.R.Civ.P.

When Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950) was tried, the parties announced ready and tried the case to final judgment in one day. There was no trial before the trial. I would hold that a bill of review trial should be conducted as suggested in 4 McDonald, Texas Civil Practice § 18.29 (1971):

The controversy turns upon two issues: (I) Was the judgment complained of rendered as a result of fraud, accident, or mistake, without the negligence of the complainant either in the course of the former action or after judgment? (II) Was the judgment incorrect? The burden is upon the complainant to establish the affirmative of the elements of the first issue. If he does so, the burden of proof upon the second issue rests upon the party who would have had such burden had no judgment been entered.

That kind of a trial would certainly not be an erroneous one.


author: McGEE, Justice.

text:
    Coke L. GAGE et al., Appellants, v. RAILROAD COMMISSION of Texas et al., Appellees.
    No. B-8044.
    Supreme Court of Texas.
    May 23, 1979.
    Rehearing Denied June 20, 1979.

      Small, Craig and Werkenthin, C. C. Small, Jr., Austin, for appellants.
    Scott & Douglass, Frank Douglass, Ivan D. Hafley and Lloyd A. Broussard, Mark White, Atty. Gen., Ralph T. Aldave, Asst. Atty. Gen., Austin, for appellees.
   McGEE, Justice.

This is a direct appeal from a trial court judgment which refused to enjoin a proration order of the Texas Railroad Commission. The question presented for our determination is whether the commission acted within its lawfully delegated authority when it reinstated proration of allowable gas production in a certain field. We are of the opinion that the commission did not act within its authority. The judgment of the trial court will be reversed and the cause remanded to that court with instructions to render judgment in accordance with this opinion.

This appeal involves the Boonsville (Bend Conglomerate Gas) field which is geologically situated in the Atoka Conglomerate and underlies portions of Jack, Wise, Parker and Denton Counties, Texas. On November 1, 1957 the commission rendered special order No. 9-36,420, consolidating certain previously designated gas fields into the Boonsville field for proration and other regulatory purposes. Other gas fields were consolidated into Boonsville and operation rules were amended in 1960, 1962, 1963 and 1966.

Prior to August 1, 1975 the Mitchell Energy Corp., one of the appellees in this case, requested the commission to suspend further proration of gas production in the consolidated Boonsville field. After notice and hearing, the commission suspended the allocation formula “until conditions change sufficient to require reinstatement.” Several new wells were subsequently drilled and completed and all wells were left to produce their respective capacities.

Sometime later, Mitchell Energy Corp. requested the commission to call a hearing to reinstate proration in Boonsville, contending that many small-tract wells were producing at a rate which allowed them to produce more than their recoverable gas in place. Notice was issued, and the commission conducted a hearing to consider: (a) whether proration should be reinstated; (b) alternative allocation formulae to benefit the small-tract wells; and (c) the proper size of the optional drilling units. Over objections that the commission had no authority to issue any proration orders, special order No. 9-67,936 was issued on July 31, 1978, which reinstated proration in the subject field and amended the field rules to reflect a new allocation formula. This order was affirmed by a district court in Travis County on appeal by the Gage group.

The Gage group, with the exception of Stewert Development Co., has filed a direct appeal in this court. The commission has filed a reply brief and Mitchell Energy Corp. and Enserch Exploration, Inc., inter-venors below, have also replied in a separate brief. The Gage group contends that the lower court erred in refusing to hold that special order No. 9-67,936 (July 31, 1978) was unlawful under section 85.055 and subchapter (D) of chapter 86 of the Texas Natural Resources Code as an unauthorized attempt to prorate gas production in numerous separate and distinct common reservoirs on a consolidated basis. The response of the commission, Mitchell and En-serch is two-fold. First, they urge that the Gage group’s contention constitutes an impermissible collateral attack on the commission’s 1957 order which consolidated Boons-ville for proration and other purposes. Second, and alternatively, they argue that the findings of fact in 1978 reinstatement order support the conclusion that Boonsville “should be treated as one common reservoir of natural gas.”

We do not agree that the Gage group has brought a collateral attack on the 1957 order. Instead, it appears that they have contended below, as they contend now, that the commission was without statutory authority to issue the 1978 order reinstating proration. Accordingly, it is the 1978 order which is in issue and which we must examine in light of statutory and case law.

Under the Texas Administrative Procedure Act, a court may overturn a commission order if it is found that the substantial rights of the appellant have been prejudiced because the “administrative findings, inferences, conclusions, or decisions” are “in excess of the statutory authority” of the commission. Tex.Rev.Civ.Stat.Ann. art. 6252-13a, § 19(e)(2); see Tex.Natural Resources Code § 85.241. Pertinent to our inquiry here is the natural resources code which authorizes the commission to prorate the production of natural gas only under certain defined circumstances. Section 85.-055 of the Code specifically provides:

(a) If full production from wells producing gas only from a common source of supply of gas in this state is in excess of the reasonable market demand, the commission shall inquire into the production and reasonable market demand for the gas and shall determine the allowable production from the common source of supply.
(b) The allowable production from a common source of supply is that portion of the reasonable market demand that can be produced without waste.
(c) The commission shall allocate, distribute, or apportion the allowable production from the common source of supply among the various producers on a reasonable basis and shall limit the production of each producer to the amount allocated or apportioned to the producer.

Tex.Natural Resources Code § 85.055 (emphasis added). Section 86.081 further provides:

For the protection of public and private interests, the commission shall prorate and regulate the daily gas well production from each common reservoir to:
(1) prevent waste; and
(2) adjust the correlative rights and opportunities of each owner of gas in a common reservoir to produce and use or sell the gas as permitted in this chapter.

Id. § 86.081 (emphasis added). “Common reservoir” is defined by the Code to mean “all or part of any oil or gas field or oil and gas field that comprises and includes any area that is underlaid or that, from geological or other scientific data or experiments or from drilling operations or other evidence, appears to be underlaid by a common pool or accumulation of oil or gas or oil and gas.” Id. § 86.002(4). Under the Code “common source of supply,” “common pool,” and “common reservoir” are synonymous terms. Id. § 85.001(2).

In Railroad Commission v. Graford Oil Corp., 557 S.W.2d 946 (Tex.1977) we recognized that the commission had no statutory authority to combine several common reservoirs into a single field for proration purposes. Instead, the legislature had only authorized the commission to prorate the daily gas production from “each common reservoir” in order to prevent waste or to adjust correlative rights. Id. at 949-50. This court stated:

Since we hold that a common reservoir consists of a common pool or a common accumulation of hydrocarbons, separate and distinct pools of oil or gas, which are not connected, and which do not communicate with one another, do not constitute a “common reservoir.” Each separate pool or accumulation is, under the statute, a separate reservoir, even though several different reservoirs may underlie a single gas-producing area Consequently, the consolidation order in this [case] cannot stand unless the consolidated area is found to be a common pool or common accumulation of hydrocarbons.

Id. at 950; accord, Railroad Commission v. Shell Oil Co., 380 S.W.2d 556, 559 (Tex.1964); Benz-Stoddard v. Aluminum Co. of America, 368 S.W.2d 94, 97 (Tex.1963). After examining the commission’s findings of fact, this court affirmed the trial court injunction of the order, stating that the only reasonable conclusion that could be drawn was that the subject field consisted of several separate common reservoirs. 557 S.W.2d at 951.

We now turn to the 1978 commission order which reinstated proration in the Boonsville field. At this juncture we note that a final decision of the commission “must include findings of fact and conclusions of law, separately stated.” If a fact finding is set forth in statutory language, “[it] must be accompanied by a concise and explicit statement of underlying facts supporting the findings.” Tex.Rev.Civ.Stat. Ann. art. 6252-13a, § 16(b). The findings must be clear and specific, not couched in terms other than findings, not mere conclusions, references to, recitals or summations of evidence. Imperial American Resources Fund, Inc. v. Railroad Commission, 557 S.W.2d 280, 285-86 (Tex.1977). They should be such that a reviewing court can fairly and reasonably say that they support the “ultimate findings of fact required for [the] decision.” Railroad Commission v. Graford Oil Corp., 557 S.W.2d 946, 950 (Tex.1977); accord, Miller v. Railroad Commission, 363 S.W.2d 244, 245-56 (Tex.1962).

The pertinent fact findings of the 1978 order are set forth in the margin. Fact finding 16 states that Boonsville is a “common source of supply of natural gas.” Since this finding is couched in statutory language, section 16(b) requires that it be accompanied by a concise and explicit statement of the underlying facts to support it. We do not find such support. To the contrary, finding 6 affirmatively states that a “majority of the wells in Boonsville perforate one or more zones of porosity.” Finding 7 also recognizes that Boonsville is composed of many zones, and that it is highly lenticular in nature. Both findings state that many of the zones are in pressure communication through the well bore.

The only reasonable conclusion that we can draw from a study of these findings is that Boonsville is in truth a consolidation of several separate and distinct “common reservoirs.” Moreover, in Graford we held that separate reservoirs could not be transformed into one common reservoir as defined by statute through artificial means. Rather, the statute is drawn in terms of natural communication between producing sands or zones. The statute is not met where communication among the “vertically-separated producing zones” is through well completion in two or more zones. 557 S.W.2d at 953.

We are further of the opinion that any difficulty in delineating a field boundary as expressed by finding 7 does not authorize the commission to consolidate separate reservoirs for proration purposes where such authority does not otherwise exist. While we are appreciative of the enormous regulatory and technological problems that confront the commission in the Atoka Conglomerate, it is settled that separate and distinct “common reservoirs” cannot be consolidated into a single field for administrative convenience in prorating the area. Railroad Commission v. Graford Oil Corp., supra at 950; see Railroad Commission v. Shell Oil Co., 380 S.W.2d 556, 559 (Tex.1964); Benz-Stoddard v. Aluminum Co. of America, 368 S.W.2d 94, 97 (Tex.1963).

Since the 1978 order affirmatively reveals that the commission was without statutory authority to reinstate proration or issue proration orders, the trial court erred in refusing to enjoin the commission’s order. The judgment of the trial court is reversed and the cause remanded to that court with instructions to render judgment in accordance with this opinion.

      . The orders will be collectively referred to as the 1957 order.

      . For the purposes of convenience the plaintiffs, and appellants here, will be referred to as the Gage group. Along with Mr. Coke L. Gage, plaintiffs were Crawford Energy Co., Mote Resources, Inc., Nueve Operating Co. of Texas, Ryder Scott Management Co., Stewert Development Co., Teal Petroleum Co. and Wolfson Oil Co. Stewert Development Co., however, has not participated in an appeal of this case from the trial court judgment.

      . 6. The operators of the majority of the wells in the Boonsville (Bend Conglomerate Gas) Field perforate one or more zones of porosity and commingle in the well bore.
      7. If each zone of porosity was required to be produced separately, an operator could not do so economically and in some instances an operator could not physically separate each zone of porosity due to the highly lenticular nature of the field and the necessity of stimulation by sand frac operations. Hundreds of wells in the field have one or more zones of porosity open within a well bore which permits all such zones to be in pressure communication with each other.
      16. The Boonsville (Bend Conglomerate Gas) Field is a common source of supply of natural gas and is an extremely large non-associated gas reservoir covering almost all of Wise County and portions of Jack, Parker, and Denton Counties. -

      . In the Graford case, supra at 951 n. 5, we approved the following:
      A “lens” in oil and gas terminology has been defined as: A relatively porous, permeable, irregularly shaped, sedimentary deposit surrounded by impervious rock. The lens may serve as a local center of concentration of oil in the formation. A lenticular sedimentary bed that pinches out in all directions.
      And a “lenticular reservoir” has been defined as:
      A lens of porous and permeable sediments surrounded by strata of low permeability, often shale. There may be a number of such lens unconnected with each other in an area. Such reservoirs are often small, but completely saturated with oil or gas. The shoestring sands of the mid-continent region are notable examples of lenticular reservoirs.
      7 William & Meyers, Oil & Gas Law, Oil & Gas Terms, page 318 (1976).


author: W. C. DAVIS, Judge,

text:
    James Allen DAVIS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 59303, 59304.
    Court of Criminal Appeals of Texas.
    June 20, 1979.
    James A. Davis, pro se.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Chris T. Hanger, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   ON STATE’S MOTION FOR REHEARING

W. C. DAVIS, Judge,

dissenting.

The majority overrules the State’s motion for rehearing without written opinion. On original submission a panel of this Court set aside the orders of the trial court revoking appellant’s probation in two eases and remanded the causes, with one judge dissenting. Davis v. State, 576 S.W.2d 378. The panel held that marihuana found on appellant was unlawfully obtained for the reasons (1) that no arrest for public intoxication was made prior to the search, and (2) there was no probable cause to arrest appellant for public intoxication even if an arrest had been made.

The record reflects that on August 17, 1977, a Harris County Deputy Sheriff responded to a disturbance call in the 1400 Block of Almeda Street, which is also State Highway 248, where at about 1:30 p. m., he found appellant, who fit the description given the officer, walking along the sidewalk. The witness testified that traffic was normally medium to heavy at this particular time of the day, consisting of cars, trucks and tractor-trailer rigs. Upon asking appellant for identification, the officer noticed that appellant’s mannerisms were not normal. His speech appeared to be “slurred,” he was running his words together and appeared to be “cottonmouthed.” Although no alcoholic beverages were smelled on appellant’s breath, the experienced officer, who had observed many intoxicated people, determined that appellant was intoxicated by some unknown substance and made up his mind to arrest him. At that time, the officer noticed a bulge in the right front pocket of appellant’s tight-fitting trousers, which he thought might be a weapon. He asked appellant to remove it from his pocket and appellant complied by pulling out a plastic bag containing what the officer believed, and later proved, to be marihuana. In giving the sequence of events at this point, the officer testified:

“Q. Now, when did you determine to arrest the defendant? Was it before or after you observed this bulge in his pocket?
A. Before.
* * * * * *
Q. I notice you said that he was, as far as you were concerned, he was already under arrest before the time of the search?
A. Yes, sir.
Q. So the search was incident to the arrest, is that correct?
A. Yes, sir.”

This testimony demonstrates very clearly that there was an arrest for public intoxication prior to the search.

The majority holds that there was no probable cause to arrest appellant for public intoxication under V.T.C.A., Penal Code, Sec. 42.08, which requires that the arresting officer must have reason to believe the suspect is intoxicated “to the degree that he may endanger himself or another.”

In Britton v. State, on State’s Motion for Rehearing, delivered March 21, 1979, 578 S.W.2d 685, this Court held:

“It must be borne in mind that we are here faced with the question of proof necessary to establish probable cause for arrest rather than proof essential to a judicial determination of guilt. . Thus, when an officer is confronted with a person intoxicated in a public place, his determination as to possible danger that may befall the individual is not reviewed under the same standard used in a judicial determination of guilt.” (Emphasis added.)

In Britton, the appellant was a passenger in an automobile blocking traffic at 1:50 a. m. In the instant case, the appellant was on the sidewalk adjoining a busy state highway.

There can be no doubt that in response to the call, the officer had the right to stop and question the appellant. Baity v. State, 455 S.W.2d 305. Upon determining that the appellant was intoxicated from some substance, all alone, and only a few feet from a State Highway on which there was medium to heavy traffic, the officer was justified in believing appellant was potentially in danger, which is held in Britton to be the test rather than present danger. The evidence was sufficient to show probable cause for the arrest of appellant, which arrest authorized a valid search incident thereto.

The motion for rehearing should be granted and the judgments affirmed.

DOUGLAS and DALLY, JJ., join in this dissent.


author: PHILLIPS, Judge.

text:
    Am ELY, Appellant, v. The STATE of Texas, Appellee.
    No. 56623.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Feb. 28, 1979.
    On Rehearing July 3, 1979.

      Nicholas L. Carbajal, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann, and Robert J. Sussman, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from four misdemeanor convictions for deceptive business practices. Punishment was assessed at 180 days imprisonment and a $2,000.00 fine on each of the four counts.

Appellant’s first ground of error contends that V.T.C.A., Penal Code, Section 32.42 is void as violative of the Texas and United States Constitutions in that it (1) is vague and indefinite and (2) “fails to sufficiently describe the actions it purports to declare as criminal.” The pertinent provision of V.T. C.A., Penal Code, Section 32.42 being challenged by appellant is Section 32.-42(b)(12)(B), which provides:

(b) A person commits an offense if in the course of business he intentionally, knowingly, recklessly, or with criminal negligence commits one or more of the following deceptive business practices:
Sfc % * jfc ⅜ ⅜
(12) making a materially false or misleading statement:
* * * * sfc *
(B) otherwise in connection with the purchase or sale of property or service.

Subsection (d) provides that an offense under this section is a Class A misdemeanor. See V.T.C.A., Penal Code, Section 12.21.

Appellant’s first line of attack on the statute is that it fails to specifically describe the conduct denounced. This failure to specifically describe the conduct denounced results in a vague and indefinite statute which is enforceable on an arbitrary and erratic basis by law enforcement officials, according to appellant. The basis of this contention is that the statute fails to describe specifically what constitutes “a materially false or misleading statement.” Appellant concedes that the purpose of this statute is to protect consumers from unethical business practices. It is clear that the statute speaks in terms of the evil to be cured, i. e., to prevent “materially false or misleading statements” from being used in connection with the purchase or sale of property or services. As was stated in Boyce Motor Lines Inc. v. U. S., 342 U.S. 337 at 340, 72 S.Ct. 329 at 331, 96 L.Ed. 367 (1952), “most statutes must deal with untold and unforeseen variations in factual situations.” To require elaborate specificity as to what constitutes “materially false or misleading statements” would undermine the efficacy of the statute. The ingenuity of humans would quickly learn ways to circumvent the specific proscriptions.

The requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding.
Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 587, 76 L.Ed. 1167 (1932).

The failure to specifically elaborate each “materially false or misleading statement” which, when made in connection with the purchase or sale of property or service, constitutes an offense does not render this statute void for vagueness and indefiniteness.

There is no question that the protection of consumers is within the allowable sphere of this State’s police powers permitting it to enact laws to effectuate that protection. In the face of appellant’s challenge to the constitutionality of this statute, this statute is vested with a presumption of validity and this Court is duty bound to construe such statutes in such a way as to uphold their constitutionality. See Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066 (1937); Mugler v. Kansas, 123 U.S. 623 at 661, 8 S.Ct. 273, 31 L.Ed. 205 (1887); U. S. v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1953); U. S. v. National Dairy Products, 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); State v. Shoppers World, Inc., 380 S.W.2d 107 (Tex.1964); McKinney v. Blankenship, 154 Tex. 632, 282 S.W. 691, 697 (1955); 53 Tex.Jur.2d 225, Statutes, Section 158; Article 5429b-2, Section 3.01(1) (Code Construction Act).

The standard rule, which has become axiomatic, in considering allegations that a statute is void for vagueness and indefiniteness, is:

A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application lacks the first essential of due process of law.

See Ex parte Chernoski, 153 Tex.Cr.R. 52, 217 S.W.2d 673 at 674; Connally v. General Construction Company, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1925); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1938). As the citations in Ex parte Chernoski, supra, indicate, this rule has also been adopted and applied by this Court. However, as noted in Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), greater leeway is allowed when a court considers allegations of vagueness and indefiniteness in “regulatory statutes governing business activities.” 405 U.S. at 162, 92 S.Ct. at 843. In that respect, the Court can consider both the face of the statute and the conduct to which it is applied. See U. S. v. National Dairy Products, supra. Furthermore, in the absence of special definitions, the language under attack can be “measured by common understanding and practices” or “construed in the sense generally understood.” See U. S. v. Pe trillo, 332 U.S. 1 at 8, 67 S.Ct. 1538 at 1542, 91 L.Ed. 1877 (1947); Ex parte Chernoski, supra, at 674; Article 5429b-2, Section 2.01, Y.A.C.S.

Finally, it is noted that the introduction and application of a culpable mental state is a material consideration in determining whether a statute is vague and indefinite and subject to arbitrary and erratic enforcement. See Screws v. U. S., 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); Boyce Motor Lines Inc. v. U. S., supra; U. S. v. Harriss, supra.

The statute as set forth above and as appellant was prosecuted under clearly requires that any “materially false or misleading statement” be made “intentionally, knowingly, recklessly, or with criminal negligence.” These culpable mental states are defined in V.T.C.A., Penal Code, Section 6.02(a)-(d). A reading of these definitions clearly indicates that the required culpable mental state must attach to the proscribed act at the time the conduct is engaged in. The provisions of Section 32.42(b)(12)(B) clearly indicate that the culpable mental state must attach to the making of the “materially false or misleading statement” at the time of “the purchase or sale of property or service.” This is a necessary implication of the phrase “in connection with.” The State thus shoulders the burden of proving that (1) a person (2) intentionally, knowingly, recklessly, or with criminal negligence (3) made a materially false or misleading statement (4) at the time of the purchase or sale of the property or service. This interpretation of the statute eliminates appellant’s concern that a businessman may make an honest representation at the time of the sale which subsequent business conditions renders objectively false at the time performance is required.

The phrase “materially false or misleading statement” is not vague or indefinite. Common understanding and usage makes clear that what is prohibited is false representation of material facts relevant to the purchase or sale of property or service. It cannot be contended that this statute does not “give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” U. S. v. Harriss, supra, 347 U.S. at 617, 74 S.Ct. at 812. Further, the statute is sufficient in describing the conduct which it declares to be criminal. In conclusion, V.T.C.A., Penal Code, Section 32.42(b)(12)(B) is constitutional under Article I, Sections 10 and 19 of the Texas Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. Appellant’s first ground of error is overruled.

Appellant’s second and third grounds of error in effect attack the information charging appellant with violation of the above-referenced Penal Code provisions as being fatally defective. There was no motion to quash. The information contained four counts, each alleging the same offense to have been committed by the appellant on different dates against different complainants. The first count, which is representative of all four counts, reads as follows:

in the County of Harris and State of Texas, one ARN ELY aka: ARNOLD MOSS hereinafter referred to as . the Defendant, heretofore on or about April 22, 1975, did then and there unlawfully while engaged in the business of providing an advance fee resume service and in the course of the operation thereof, intentionally, knowingly, recklessly and with criminal negligence, commit a deceptive business practice in that Defendant made statements to Keith W. Green in connection with the sale of a service, namely that Defendant would refund the service charge of Two Hundred Fifty Dollars after one year if Keith W. Green received less than three job offers within the year and if Keith W. Green contacted Defendant in writing once each month for twelve months from the date of the contract, and such statement was materially false and misleading in that Keith W. Green did not receive three or more job offers within the year and Keith W. Green did contact Defendant in writing once each month for twelve months from the date of the contract and Defendant has refused to return the Two Hundred Fifty Dollar service charge.

Appellant’s ground of error two seems to be directed at the failure of the information to allege the culpable mental states in the disjunctive rather than the conjunctive. Such a contention is totally without merit. See Hunter v. State, 576 S.W.2d 395 (No. 59,124, Tex.Cr.App. delivered January 31, 1979). The instant indictment is sufficient to allege an offense and is not fundamentally defective. See American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598. Appellant’s third ground of error objects to the failure to allege what acts appellant committed which constitute recklessness or criminal negligence. Appellant relies on Article 21.15, Y.A.C.C.P. In light of the fact that the State also alleged intentionally and knowingly as culpable mental states in the information involved, the failure to comply with Article 21.15, V.A.C.C.P., does not render the information fundamentally defective. Further, the acts required to be alleged are in fact alleged. There is no error. Appellant’s second and third grounds of error are overruled.

Appellant’s fourth ground of error contends that the trial court erred in its charge to the jury because it changed and limited the issues presented in the information. Appellant points out that the trial court granted his specially requested charges, in part, relating to the giving of the law of the offense charged against the appellant, defining the four culpable mental states alleged, and instructing the jury on the burden of proof. The portion of the court’s charge to the jury wherein the law of the offense charged is set out omits the two culpable mental states of recklessness and criminal negligence. However, in applying the law of the State to the facts of this cause the trial court correctly inserted the four culpable mental states as charged in the information and provided for under the statute. Appellant also contends under this single ground of error that reversible error was committed by the trial court’s providing the culpable mental states dis-junctively in the application of the law to the facts provision of the charge rather than conjunctively, as charged in the information. This dual allegation of error under one ground of error constitutes a multifarious ground of error and fails to preserve error under Article 40.09(9), V.A.C.C.P. However, we will address appellant’s contentions.

With regard to the trial court’s error in not including all four culpable mental states in setting forth the law of the offense the appellant was charged with, we must consider such error to be clearly harmless since it benefited the appellant. Furthermore, all four culpable mental states were included in that part of the court’s charge that applied the law to the facts of the case and the culpable mental states were defined properly in the court’s charge. Cf. Skidmore v. State, Tex.Cr.App., 530 S.W.2d 316.

As to appellant’s second allegation concerning the alleged error of the court in submitting the culpable mental states in the disjunctive, in contrast to the conjunctive pleadings in the information, this does not constitute error. See Moreno v. State, Tex.Cr.App., 541 S.W.2d 170; Booker v. State, Tex.Cr.App., 523 S.W.2d 413; Mott v. State, Tex.Cr.App., 543 S.W.2d 623; Cowan v. State, Tex.Cr.App., 562 S.W.2d 236. Clearly, when considered as a whole this charge in no way harmed the appellant. See Bailey v. State, Tex.Cr.App., 532 S.W.2d 316. Finally, appellant’s contentions are not properly before this Court for review since there is no statement of facts in the record before us. See Creech v. State, 170 Tex.Cr.R. 563, 342 S.W.2d 757; Conwell v. State, Tex.Cr.App., 258 S.W.2d 86; and Moore v. State, 146 Tex.Cr.R. 342, 175 S.W.2d 76. Appellant’s fourth ground of error is overruled.

There being no reversible error, the judgment is affirmed.

Before the Court En Banc.

OPINION ON APPELLANT’S MOTION FOR REHEARING

On original submission we affirmed appellant’s “four misdemeanor convictions for deceptive business practices.” Leave to file appellant’s motion for rehearing has been granted to make a determination whether four or one misdemeanor conviction resulted in this case.

The information in this case alleged, in four identified counts, the same deceptive business practice was committed by the appellant on four distinct days against four distinct victims. That portion of the court’s charge which applied the law to the facts of the case reads:

Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, ARN ELY, on any one or more of the dates as alleged in the four counts of the information, in the County of Harris, and State of Texas, did then and there in the course of business intentionally or knowingly or recklessly or with criminal negligence, commit a Deceptive Business Practice by making a materially false or misleading statement in connection with the purchase or sale of property or service, you will find the defendant Guilty of the offense of Deceptive Business Practice and say so by your verdict. But if you do not so believe or if you have a reasonable doubt thereof on any one or more of the dates as alleged in the four counts of the information you will acquit the defendant and say by your verdict “Not Guilty”.

The trial court provided the jury with a verdict form divided into four sections which would permit the jury to find the appellant guilty or not guilty of each count alleged in the information.

On original submission, the State, in the introduction of its brief, submitted that the judgment should be reformed to reflect a conviction for only one count. The authority they cited in support of their request, however, is inapposite, except insofar as it supports the power of this Court to reform judgments. Antwine v. State, Tex.Cr.App., 518 S.W.2d 830.

A careful reading of the trial court’s charge to the jury in this case supports us in our conclusion that it only authorized the jury to find the appellant guilty of one deceptive business practice offense. The judgment of conviction is therefore reformed to reflect that the defendant is guilty of the offense of “a deceptive business practice as charged in the information, a misdemeanor, as found by the jury, and that he be punished, as found by the jury, by a fine of $2,000.00 and 180 days’ confinement in jail.”

Appellant’s motion is granted in part and as reformed, the judgment is affirmed.


author: ONION, Presiding Judge.

text:
    Robert Earl ROBERSON a/k/a Robert Earl Robertson, Appellant, v. The STATE of Texas, Appellee.
    No. 58065.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 21, 1979.
    Rehearing En Banc Denied July 3, 1979.

      Gladys R. Goffney, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann and Gerald R. Flatten, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction of aggravated robbery. The punishment, enhanced by a prior conviction, was assessed by the jury at fifty (50) years.

In two grounds of error appellant contends that the trial court committed reversible error in denying his motion to shuffle the names of the jury panel and in refusing to grant a mistrial after a State’s witness took from the courtroom a weapon already admitted into evidence in order to conduct ballistic tests.

Appellant first challenges the trial court’s refusal to shuffle the names of the jury panel. While the record reflects that the trial court did refuse such a request, it also reveals that the request was not made until after the voir dire of two prospective jurors. In reviewing the decisions of Griffin v. State, 481 S.W.2d 838 (Tex.Cr.App.1972), and Overton v. State, 490 S.W.2d 556 (Tex.Cr.App.1973), this court in Alexander v. State, 523 S.W.2d 720 (Tex.Cr.App.1975), stated:

“. . . The soundness of requiring such a motion to be made before voir dire begins is apparent. To allow either party to request a shuffle of the names of the jury panel after voir dire begins would be disruptive and unduly prolong the trial. Further, it would permit such an election to be based upon information already elicited on voir dire. Clearly, this was not the intent of the legislature.”

In view of this language, we conclude that in the instant case the trial court properly refused appellant’s request to shuffle the names of the jurors.

In his second contention appellant complains of the trial court’s refusal to grant his motion for mistrial after an officer of the Houston Police Department took from the courtroom a shotgun already in evidence in order to conduct a test firing. The record reflects that the weapon in question was introduced into evidence through the testimony of officer C. Knight. Knight testified that the appellant had used the gun in the commission of the offense. On cross-examination of Knight, the defense raised the issue of whether the shotgun was operable to the extent that it would fire. The State claims that this raised a defensive theory which justified the actions of the prosecuting attorney in instructing officer Rascow of the Houston Police Department to take the gun, during a noon recess, and test it. The record reflects that this was done without the knowledge or consent of the trial court or the appellant or his counsel. Rascow later testified that he had taken the gun, fired it and returned it to the courtroom without altering it in any way.

It cannot be considered proper conduct for any prosecuting attorney to instruct a State’s witness to take exhibits which have been admitted into evidence and remove them from the courtroom. Such actions certainly require the approval of the trial court pursuant to the opportunity for objection by opposing counsel. However, in the instant case we cannot conclude that the error warrants reversal.

Since the issue here was raised by the defense during cross-examination of the State’s witness, the State was properly entitled to refute the defensive theory raised. See, Waffer v. State, 500 S.W.2d 659 (Tex.Cr.App.1973); Wilburn v. State, 418 S.W.2d 832 (Tex.Cr.App.1967); United States v. Marcello, 423 F.2d 993, cert. denied, 398 U.S. 959, 90 S.Ct. 2172, 26 L.Ed.2d 543 (1970). Although the propriety in taking the exhibit without the court’s permission is questionable, the record before us fails to support appellant’s claim that he was harmed by the procedure. There is nothing to indicate that the weapon had been tampered with or that it was in a different condition than it was prior to the test firing. We therefore overrule appellant’s contention.

The judgment is affirmed.