author: McCLOUD, Chief Justice.

text:
    The CITY OF ABILENE et al., Appellants, v. Jerry SHACKELFORD et al., Appellees.
    No. 5181.
    Court of Civil Appeals of Texas, Eastland.
    Aug. 31, 1978.
    Rehearing Denied Nov. 2, 1978.

      David M. Wolpin, Asst. City Atty., Abilene, for appellants.
    Michael S. Baskerville, McMahon, Smart, Wilson, Surovik & Suttle, Abilene, for ap-pellees.
   McCLOUD, Chief Justice.

At issue is the standing of members of the “news media” to challenge a closed meeting by an alleged governmental body, and the failure of such governmental body to produce public records of such closed meeting, allegedly in violation of charter provisions and statutory enactments.

Plaintiffs, Jerry Shackelford, Abilene Radio and Television Company d/b/a KRBC Television, and Reporter Publishing Company d/b/a Abilene Reporter News, sued defendants, The City of Abilene, The Council of the City of Abilene, Fred Lee Hughes, Joe H. Alcorta, Abe Allen, Pat Agnew, George Stowe, Emil Ogden and Kathy Webster, in their official capacities as members of the Council, the Equal Employment Opportunity Board of the City of Abilene, Van Boozer, Jorge Solis, Nelson Wilson, Jimmy McNeil and Cynthia McDaniel, in their official capacities as members of the Board, seeking a declaratory judgment and injunction, alleging that defendants violated Tex. Rev.Civ.Stat. arts. 6252-17 (Open Meetings Act) and 6252-17a (Open Records Act), and the Charter of the City.

The controversy arose as a result of an employment discrimination complaint filed by Wally Gutierrez, an employee of the City. Following a nonjury trial, based on stipulated facts, the trial court rendered judgment declaring, among other things, that pursuant to Section 122 of the City Charter all meetings of the Council of the City of Abilene and all boards or commissions appointed by the Council must be in all respects open to the public and that minutes of all such meetings must be kept and constitute public records; that the Equal Employment Opportunity Board, for the purposes of Section 122 of the City Charter, is a board appointed by the Council; that the Board met in closed session on November 30, 1977, contrary to and in violation of Section 122 of the City Charter; that the Board failed to keep, and to thereafter produce as public records, minutes of the closed meeting held on November 30, 1977, contrary to and in violation of Sections 122 and 123 of the City Charter and Article 6252-17a; and, that all actions taken and decisions reached by the Board during the closed meeting on November 30, 1977, are void. The court enjoined defendants from conducting any further closed meetings with respect to the employment discrimination complaint filed by Gutierrez; taking any vote or reaching any decision in any meeting not open to the public with respect to such complaint; ratifying any decision or vote previously reached in any closed meeting with respect to such complaint; and, implementing or attempting to implement any decision previously reached in any meeting closed to the public with respect to the employment discrimination complaint.

The stipulated facts reveal that on November 29, 1977, the Equal Employment Opportunity Board, which was created as a part of the Affirmative Action Plan of the City of Abilene, held an open meeting attended by the “media” to consider the complaint of alleged employment discrimination filed by Gutierrez. Following the presentation of evidence and arguments, the Board, after being advised by the City Attorney and discussing the “Charter” and “Open Meetings Act”, asked the complainant if he would consent to deliberation in private. He stated that would be fine. The Board deliberated approximately 15 minutes, then came back into open session and announced that it could not reach a decision. The next night, November 30, 1977, a second meeting of the Board was convened in open session. The “media” was also present at the meeting. The Board discussed possible conflicts between the Charter and the Open Meetings Act. The City Attorney advised the Board they could meet in private session pursuant to the Open Meetings Act. The Board members asked the complainant if he preferred an open or closed meeting. Gutierrez told the Board he would prefer that the Board meet privately. The City Attorney advised the Board that a formal public vote as set out in Section 2(1) of the Open Meetings Act would have to take place before the vote could be final. The Board and the complainant discussed when the Board’s final report should be formally released. Gutierrez asked that he be given some time to examine the report before it was formally released to the media. The City Attorney stated the report must become public five days after it was decided upon, pursuant to the provisions of the Affirmative Action Plan of the City. Based upon the complainant’s request, the Board agreed to delay five days before releasing the report, pursuant to the provisions of the Affirmative Action Plan. The Board returned into closed session and after deliberating for sometime, returned to open session and announced publicly that it had made a decision in closed session and would have its recommendation typed and return on December 5, 1977. The nature of the decision was not revealed. One of the Board members took notes during the closed session. The Board announced following its closed meeting on November 30 that it would have

a formal typed recommendation ready for presentation to the City Manager and the complainant on December 5, 1977, and pursuant to the provisions of the Affirmative Action Plan, the written decision would be made public five days after the December 5, 1977 date. Plaintiffs filed their original petition in the instant suit at approximately 5:05 p. m., and the Board, which met at 7:30 p. m. on December 5 did not take any further action with respect to the complaint or the Board’s report thereon, because of a temporary restraining order issued by the court. The Chairman of the Board has since that date kept the Board’s report in his custody and it has not been released. On the morning of December 5, 1977, prior to the filing of plaintiffs’ suit later that afternoon, Jerry Shackelford, an investigative and reporting newsman employed by Abilene Radio and Television Company, presented a written request to the Chairman of the Board requesting the custodian to produce for inspection the minutes of the November 30 closed meeting. The requested information was not furnished to Shack-elford. Due to the issuance of the trial court’s temporary restraining order, and the court’s subsequent modified restraining order, the Board has not revealed to any person the decision reached in the closed meeting on November 30, 1977, nor has the decision been in any way implemented or acted upon pursuant to such restraining order. The complaint filed by Gutierrez remains pending and awaiting final action by the Board.

The Charter of the City of Abilene provides:

“Section 122: All meetings of the Council and all Boards or Commissions appointed by the Council shall be open to the public. Minutes of all such meetings shall be kept and such minutes shall constitute public records.”
“Section 123. All public records of every office, department or agency of the City shall be open to inspection by any citizen at all reasonable times, provided that such police records, vital statistics records, or any other records which are closed to the public by law shall not be considered public records for the purpose of this Section.”

Article 6252-17, the Open Meetings Act, provides in part:

“Sec. 2. (a) Except as otherwise provided in this Act or specifically permitted in the Constitution, every regular, special, or called meeting or session of every governmental body shall be open to the public; and no closed or executive meeting or session of any governmental body for any of the purposes for which closed or executive meetings or sessions are hereinafter authorized shall be held unless the governmental body has first been convened in open meeting or session for which notice has been given as hereinafter provided and during which open meeting or session the presiding officer has publicly announced that a closed or executive meeting or session will be held and identified the section or sections under this Act authorizing the holding of such closed or executive session.
(g) Nothing in this Act shall be construed to require governmental bodies to hold meetings open to the public in cases involving the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee or to hear complaints or charges against such officer or employee, unless such officer or employee requests a public hearing.
(k) Nothing in this Act shall be construed to allow a closed meeting of a governing body where such closed meeting is prohibited, or where open meetings are required, by charter.”

Article 6252-17a, the Open Records Act, provides in part:

“Sec. 3. (a) All information collected, assembled, or maintained by governmental bodies pursuant to law or ordinance or in connection with the transaction of official business is public information and available to the public during normal business hours of any governmental body, with the following exceptions only: . . ”

Plaintiffs contend that the Board, in holding the closed meeting on November 30, 1977, and in failing to keep and produce the minutes of the closed meeting, violated Sections 122 and 123 of the City Charter and Article 6252-17 (Open Meetings Act). We do not reach these issues. Plaintiffs also contend that the Board violated Article 6252-17a (Open Records Act). We disagree.

Defendants first argue that plaintiffs failed to allege facts showing that they had standing to seek injunctive or declaratory relief under Sections 122 and 123 of the City Charter or Article 6252-17 because they failed to allege they suffered a special or peculiar damage, not shared by the general public, as a result of the challenged closed meeting or the claimed failure to keep and produce minutes thereof. We agree.

Plaintiffs’ petition clearly shows that a purely public right is at issue. They alleged that the “public and the news media have a constitutional right of access to the affairs of government and to information in the hands of governmental institutions relative to the affairs of such institutions,” and defendants by their actions “have violated the constitutionally protected right of access to information of the public and the news media”. They further alleged that defendants, having violated the City Charter, deprived “the public and the news media of due process of law . . and plaintiffs, as well as the public as a whole, have no other remedy at law” and would suffer irreparable injury if defendants were not restrained and enjoined from further violations of the constitutional, statutory and charter enactments in question.

The rule is well established that a plaintiff fails to establish a justiciable interest if as a private citizen, he asserts a public, as distinguished from a private, right and his petition fails to show that the matters in dispute affect him differently from other citizens. McDonald, Texas Civil Practice, § 3.03.3. The rule was applied early in Texas in City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754 (1888) wherein the court said:

“We think it a principle established by the overwhelming weight of authority in the courts of all countries subject to the common law that no action lies to restrain an interference with a mere public right, at the suit of an individual who has not suffered or is not threatened with some damage peculiar to himself . .”

The rule was stated in Yett v. Cook, 115 Tex. 205, 281 S.W. 837 (1926) as follows:

“. . . It is a rule of universal acceptation that to entitle any person to maintain an action in court it must be shown that he has a justiciable interest in the subject matter in litigation, either in his own right or in a representative capacity . Whatever may be the rule in other jurisdictions, there can be no doubt that in Texas an action relating to elections or other matters of law enforcement, not involving questions of taxation or unlawful expenditure of public funds, cannot be maintained by a relator or plaintiff whose interest is only that of the public generally, in the absence of a valid statute authorizing the suit.”

See also Staples v. State, 112 Tex. 61, 245 S.W. 639 (1922); Scott v. Board of Adjustment, 405 S.W.2d 55 (Tex.1966); City of West Lake Hills v. State ex rel. City of Austin, 466 S.W.2d 722 (Tex.1971); Marshall v. City of Lubbock, 520 S.W.2d 553 (Tex.Civ.App.—Amarillo 1975, no writ); Tri County Citizens Rights Organization v. Johnson, 498 S.W.2d 227 (Tex.Civ.App.—Austin 1973, ref’d n. r. e.); 59 Am.Jur.2d, Parties § 30 (2nd ed. 1971).

The cases relied upon by plaintiffs are distinguishable. They involve suits by taxpayers attacking void ordinances, or expenditure of public funds under void contracts. These exceptions to the general rule are well established and were recognized in Yett v. Cook, supra. The exceptions are not applicable to the instant case.

Plaintiffs failed to allege or prove they suffered a peculiar or special injury resulting from the closed meeting or failure to keep and produce minutes of such meeting. The City Charter does not designate the parties who have standing to challenge an alleged violation. The common law rule is applicable. Plaintiffs failed to allege or prove facts showing that they had standing to seek injunctive or declaratory relief based upon violations of Sections 122 and 123 of the City Charter.

Plaintiffs also argue that Section 3 of Article 6252-17 expressly grants them statutory standing. We disagree. Section 3 provides:

“Any interested person may commence an action either by mandamus or injunction for the purpose of stopping or preventing violations or threatened violations of this Act by members of a governing body.”

The court in Scott v. Board of Adjustment, 405 S.W.2d 55 (Tex.1966) held that the plaintiffs, three taxpayers, had statutory standing because the statute expressly provided that “any taxpayer” could bring suit. The court stated, however, that where the statute requires that the plaintiff be an “interested person,” or the common law rule is applicable because there is no statute, plaintiff must show particular injury or damage, and he must allege and show how he has been injured or damaged other than as a member of the general public. The court said:

“In most eases of this general nature, it has usually been required that the plaintiff be a ‘person aggrieved’ or a person whose interests are adversely affected, or a person having a special interest in the matter. This has been held to be true in the absence of statute. City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754 (1888); San Antonio Conservation Society v. City of San Antonio, 250 S.W.2d 259 (Tex.Civ.App.1952, writ ref.). Many statutes give the right to review or to institute suit to ‘persons aggrieved,’ ‘persons adversely affected,’ ‘any party in interest,’ or any persons ‘whose rights are substantially affected.’ Davis, Standing to Challenge Governmental Action, 39 Minn.L.Rev. 353 at 357 (1955); Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv.L.Rev. 1265 (1961); Jaffe, Standing to Secure Judicial Review: Private Actions, 75 Harv.L.Rev. 255 (1961). Where the statute requires that the person be interested, affected, or aggrieved, or (in the absence of a statute) where the common law rule requiring the showing of particular injury or damage is controlling, the plaintiff must allege and show how he has been injured or damaged other than as a member of the general public in order to enjoin the actions of a governmental body. Such suits are essentially private in character and are for the protection of private rights.”

Section 3 of Article 6252-17, which became effective May 23,1967, expressly states that an “interested person” may commence an action. Prior to the enactment of Article 6252-17, our Supreme Court in Scott, supra, had said that when used in the type of statute now under consideration, the term “interested person” meant a person who alleged and proved that he had been injured or damaged other than as a member of the general public. It will be presumed that the Legislature in using the term “interested person” intended it to mean what the courts of this state had theretofore said it meant. Smith v. Texas Co., 53 S.W.2d 774 (Tex.Comm.App.1932); McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125 (Tex.Comm.App.1942); Texas Employers’ Insurance Association v. Haunschild, 527 S.W.2d 270 (Tex.Civ.App.—Amarillo 1975, writ ref’d n. r. e.).

Plaintiffs argue that as members of the news media, charged with the public trust of disseminating the type of information expressly made public and accessible, they have standing to bring this action. We disagree. Plaintiffs, as representatives of the “news media”, have no constitutional or other right of special access to information not available to the public generally. Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974); Houston Chronicle Publishing Company v. City of Houston, 531 S.W.2d 177 (Tex.Civ.App.—Houston (14th Dist.) 1975), writ ref’d n. r. e. per curiam, 536 S.W.2d 559 (Tex.1976).

We hold that plaintiffs’ pleadings and proof show that they have no standing to bring the action asserted under either Sections 122 and 123 of the City Charter or Article 6252-17, the Open Meetings Act.

Article 6252-17a, the Open Records Act, provides that “the person” requesting public information may seek a writ of mandamus, under certain circumstances, compelling the “governmental body” to make the information available for public inspection. Plaintiff, Jerry Shackelford, requested that the minutes of the closed meeting be made available for his inspection. Shackelford had standing to seek relief under the Open Records Act. The trial court declared in its judgment that the Board “failed to keep, and thereafter produce as public records, minutes of the closed meeting of said Board held on November 30, 1977, and that such failure was contrary to and in violation of Sections 122 and 123 of the Charter of the City of Abilene and of Article 6252-17a of the Revised Civil Statutes of the State of Texas.” We have held that none of the plaintiffs, including Shack-elford, had standing to contest the alleged violations of the City Charter. Assuming, without deciding, that the Board is a “governmental body” as defined in the Act, we nevertheless hold there has been no violation of Article 6252-17a which provides for “access by public to information in custody of governmental agencies and bodies”. The trial court expressly found there were no “minutes of the closed meeting”. The requested information was not in the custody of the Board. There was no violation of Article 6252-17a.

In Article 6252-17, the Open Meetings Act, the Legislature provided that only an “interested person” has standing to contest alleged violations of the Act. Article 6252-17a, the Open Records Act, which became effective June 14, 1973, is not so restrictive. It provides that the “person” requesting the information may contest alleged violations of the Act. Industrial Foundation of the South, Inc. v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex.1976); Houston Chronicle Publishing Company v. City of Houston, 531 S.W.2d 177 (Tex.Civ.App.—Houston (14th Dist.) 1975), writ ref’d n. r. e. per curiam, 536 S.W.2d 559 (Tex.1976). We assume that the Legislature intended that only an “interested person” should have the power to seek judicial invalidation of action allegedly taken in violation of the Open Meetings Act. Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641 (Tex.1975). There is a significant difference between invalidation of public action and inspection of public records. If, however, the “interested person” restriction frustrates the objective of the Open Meetings Act, then it is a matter to be corrected by the Legislature. If the well established common law rule, discussed in Scott v. Board of Adjustment, supra, which requires, in the absence of statutory standing, a showing that the plaintiff has suffered a peculiar or special injury not shared by the general public, should be modified in a case of this nature, then the rule should be changed by our Supreme Court. We are bound by the existing statutes and Supreme Court decisions.

The judgment of the trial court declaring that the Board violated Article 6252-17a (Open Records Act) is reversed and rendered. The judgment in all other respects is reversed and the causes of action asserted by plaintiffs are dismissed.

BRADBURY, J., not participating.

ON APPELLEES’ MOTION FOR REHEARING

On September 22, 1978, the Beaumont Court of Civil Appeals in Enterprise Company v. City of Beaumont et al., Docket No. 8231 (not yet reported) held that the Enterprise Company, publisher of two daily newspapers in the City of Beaumont, had “standing” to seek an injunction enjoining the City of Beaumont and The International Association of Firefighters, Local # 399 from engaging in labor collective bargaining negotiations in a closed meeting in violation of Section 7(e) of Article 5154c-l, Tex.Rev.Stat.Ann. The evidence showed that one of plaintiff’s reporters was denied access to a collective bargaining meeting. The City of Beaumont argued that plaintiff had no right to bring the action since it failed to show some special injury sustained by it which was not sustained by the public generally. The City cited the cases relied upon by us in our original opinion. Justice Keith stated that plaintiff had standing to maintain the suit under the rationale of Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex.Civ.App.—Houston (14th Dist.) 1975), writ ref’d n. r. e. per curiam, 536 S.W.2d 559 (Tex.1976), and noted parenthetically that the Supreme Court of Minnesota in Channel 10, Inc. v. Independent School Dist. No. 709, 298 Minn. 306, 215 N.W.2d 814, 821 (1974), held that a television station had standing to maintain a suit under the Minnesota Open Meeting Law, based in part upon “the right of the people to be informed in a practical way by the news media.” We respectfully disagree with the reasoning of the Beaumont Court if applied to an alleged violation of the Texas Open Meetings Act. First, it should be noted that the Beaumont Court expressly limited its opinion to a violation of The Fire and Poliee Employee Relations Act. The court stated it was not necessary to consider the applicability of Article 6252-17. We do not think that the authority relied upon by the Beaumont Court in any way changes the rule announced by us in our original opinion. The Houston Chronicle case was essentially concerned with the applicability of Article 6252-17a, the Open Records Act. As pointed out in our original opinion, standing to complain of an alleged violation of that Act is granted to “the person” requesting public information and not limited to an “interested person.” Furthermore, neither the Houston Court of Civil Appeals nor the Supreme Court discussed standing. In its per curiam opinion, the Supreme Court expressly stated that since the City of Houston filed no application for writ of error, the court reserved the question of whether the press and public have a “constitutional right” to obtain all of the information which the court of civil appeals held to be public information. The Minnesota Supreme Court in the Channel 10 case noted:

“(t)here is nothing in the statute in any way indicating that the object of the statute was to ensure that only persons with a particular injury or those having a special interest differing from that of the general public were to have any preferred status. . . . ”

Again, we emphasize that the Texas Open Meetings Act in Section 3 limits standing to “interested persons.”

Many states’ open meeting laws do not restrict standing. Florida grants standing to any “citizens of this state.” Fla.Stat. Ann. § 286.011 (1975). New Jersey grants standing to “any person, including a member of the public.” NJ.Rev.Stat. § 10:4-16 (1976). Any “aggrieved person” may bring suit in New York. N.Y. Public Officers Law, art. 7 § 102 (Supp.1978). In Colorado, as in Minnesota, there is no statutory designation as to who has standing. Colo.Rev. Stat.Ann. § 29-9-101 (1976). See generally, Comment, Legislation: Oklahoma’s Open Meeting Law, 29 Okl.L.Rev. 189 (1976); Comment, Invalidation as a Remedy For Open Meeting Law Violations, 55 Or.L. Rev. 519 (1976); Comment, The Iowa Open Meetings Act: A Lesson In Legislative Ineffectiveness, 62 Iowa L.Rev. 1108 (1977).

In California, the statute requiring open meetings provides that any “interested person” may commence an action. Cal.Codes Ann., Govt. Code § 54960 (1968). In Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors, 263 Cal.App.2d 41, 69 Cal.Rptr. 480 (Cal.Ct. of App. 1968), the intermediate appellate court stated that the broad declaration, contained in the California statute, of the public’s right to disclosure should logically extend standing to any county elector. See also Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors, 255 Cal.App.2d 51, 62 Cal.Rptr. 819 (1967). The court noted that the defendant did not question plaintiff’s standing to sue, and had the issue been raised in the trial court, the complaint could have been easily amended to add appropriate parties and allegations. The court applied the California definition of “interested party” which is a “person having a direct, and not merely a consequential, interest in the litigation.” Associated Boat Industries v. Marshall, 104 Cal.App.2d 21, 230 P.2d 379 (Cal.Dist.Ct. of App. 1951). The Texas definition of interested party is different. We do not consider the case persuasive.

The rationale of Enterprise Company; Channel 10, and Sacramento Newspaper Guild is that the statutes under consideration were obviously passed for the protection of the public; therefore, any member of the public should have standing to enforce such statutes. We find no defect in such logic. We encounter, however, great difficulty in applying such logically reached conclusion to the well established Texas rules regarding standing. In City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754 (1888), the court pointed out that the real reason for the rule was not to prevent a multiplicity of suits, but when the injury affects, “all the public alike an individual is not the representative of the public interest.” The court added, “A suit in such case must be brought by such officer or officers as have been intrusted by the lawmaking power with this duty.” In Yett v. Cook, 115 Tex. 205, 281 S.W. 837 (1926), the court said, “However, the people of the city are not without remedy, for the reason that the state, the guardian and protector of all public rights, can maintain a mandamus suit for redress of the wrongs complained of, if any exist.” Again in San Antonio Conser vation Soc. v. City of San Antonio, 250 S.W.2d 259 (Tex.Civ.App.—Austin 1952, writ ref’d), the court stated:

“The reason that appellants have no justiciable interest in this controversy is that any right which they have to enjoy the charm and beauty of the San Antonio River and its banks within the City of San Antonio is a right shared in common with all the people of San Antonio and with the public in general and any impairment of this right is an injury or damage sustained by appellants in common with the general public. Only lawfully constituted guardians of the public interest may maintain actions for the redress of such character of injuries . . .”

The court in Pierce v. Southern Pacific Company, 410 S.W.2d 801 (Tex.Civ.App.—Waco 1967, writ ref’d) stated, “It is the nature of the wrong, injury or damage which controls and not the extent.” After holding that the plaintiff’s injury was shared in common with the public, the court said:

“(a)n action such as this, under the circumstances alleged, may only ‘be brought by the lawfully constituted guardian or guardians of the public interest.’ City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754. We cannot discard a settled rule merely because it dictates a result which may seem harsh to a single litigant.”

The rule that a plaintiff must show that he has been injured or damaged other than as a member of the general public in order to have standing was approved by our Supreme Court in the recent case of American Nazi Party v. Zindler, 561 S.W.2d 247 (Tex.Civ.App.—Houston (14th Dist.)), writ ref’d n. r. e. per curiam, 568 S.W.2d 662 (Tex.1978).

Plaintiffs have at no time asserted that, they have a constitutional right of “access to the affairs of government” independent of and without regard to the charter and statutory provisions discussed in our original opinion. Their constitutional complaint is that because of their “unique status of public trust” they have “a constitutional right of access to the affairs and proceedings of government” and “therefore have standing to seek injunctive and declaratory relief based upon violations of Sections 122 and 123 of the Charter of the City of Abilene, Texas.” We do not think that their constitutional argument enhances their “standing” status. Furthermore, it should be noted that in the recent case of Houchins v. KQED, Inc., - U.S. -, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978), the United States Supreme Court stated:

“Branzburg v. Hayes, supra, offers even less support for the respondents’ position. Its observation, in dictum, that ‘news gathering is not without its First Amendment protections,’ 408 U.S. 665, at 707, 92 S.Ct. 2646, 33 L.Ed.2d 626, in no sense implied a constitutional right of access to news sources. . . .”

The court added:

“(t)here is an undoubted right to gather news ‘from any source by means within the law,’ id., at 681-682, 92 S.Ct. 2646, 33 L.Ed.2d 626, but that affords no basis for the claim that the First Amendment compels others — private persons or governments — to supply information.”

The court concluded:

“Neither the First Amendment nor Fourteenth Amendment mandates a right of access to government information or sources of information within the government’s control. . . .”

See generally, Comment, Invalidation as a Remedy For Open Meeting Law Violations, 55 Or.L.Rev. 519 (1976); Note, Open Meeting Statutes: The Press Fights For the “Right to Know”, 75 Harv.L.Rev. 1199 (1962).

The record reveals that in the instant case there are several persons who had standing to contest the matters in controversy had they elected to do so. As we understand the existing statutes, common law rules, and appropriate constitutional provisions, plaintiffs are not included within the group having standing to complain of the alleged closed meeting.

As stated in our original opinion, if the Texas rule regarding standing is to be changed, it should be changed by the Legislature or our Supreme Court.

We find nothing in the record to cause us to change the judgment heretofore entered. The motion for rehearing is overruled.

DICKENSON, J., not participating.

      . Section 7(e) of The Fire and Police Employee Relations Act provides:
      “(e) All deliberations pertaining to collective bargaining between an association and a public employer or any deliberation by a quorum of members of an association authorized to bargain collectively or by a member of a public employer authorized to bargain collectively shall be open to the public and in compliance with the Acts of the State of Texas.”


source: Caselaw Access Project

author: WARD, Justice. OSBORN, Justice,

license: Public Domain

text:
    In the Matter of G. B. B., Appellant.
    No. 6696.
    Court of Civil Appeals of Texas, El Paso.
    Sept. 20, 1978.
    Rehearing Denied Oct. 18, 1978.

      Lynch, Chappell, Allday & Aldridge, Randall Lundy, Tom C. McCall, Midland, for appellant.
    Leslie C. Acker, County Atty., Midland, for appellee.
   OPINION

WARD, Justice.

This is an appeal from the order of the Juvenile Court of Midland County waiving its exclusive jurisdiction of a minor and transferring the juvenile to the District Court for criminal proceedings. We affirm.

A petition was filed by the County Attorney of Midland County in the County Court of Midland County and as the Juvenile Court which alleged that the juvenile, G. B. B., had engaged in delinquent conduct in that he had committed aggravated rape and burglary on June 14, 1977. The petition prayed that a hearing be had to determine if the child should be transferred to the criminal Court for further prosecution as an adult, or, alternatively, that a hearing be had to determine if he had engaged in delinquent conduct and be further disposed of in Juvenile Court. Thereafter, the County Judge, proceeding as the designated Juvenile Court Judge of Midland County, conducted a hearing on the issue of waiver of juvenile jurisdiction, and waived the jurisdiction of the Juvenile Court and transferred the child to the 142nd Judicial District Court for criminal proceedings in accordance with the Code of Criminal Procedure.

Twenty-six points are presented in this appeal. The first point attacks the jurisdiction of the Juvenile Court because as a constitutional County Court it did not possess the subject matter jurisdiction to hear juvenile cases. The argument is that at the present time in the legislative history of the many altered changes that have been made regarding the Courts that have become eligible for designation as Juvenile Courts, the constitutional County Courts since the repeal of Article 2338-1 in 1973 (Acts 1973, 63rd Leg., p. 1485, ch. 544, Sec. 3, effective September 1,1973, and codified as Title 3 of the Texas Family Code, Sections 51.01, et seq.) are now without that jurisdiction.

In Midland County, the County Court acts as a Juvenile Court, it being conceded that it does so by virtue of its designation by the Midland County Juvenile Board. The Midland County Juvenile Board was created by Article 5139Q, Tex.Rev.Civ.Stat. Ann., and is composed of the County Judge of Midland County, the Judges of the 142nd and 238th Judicial District Courts, the Judge of the Court of Domestic Relations in Midland County, and the Judge of the County Court at Law of Midland County.

The grant to the Legislature of the power to change the jurisdiction of the County Courts comes from Article 5, Secs. 8 and 22 of the Texas Constitution. Article 5, Sec. 22, which is relevant to the question before us, provides:

“The Legislature shall have power, by local or general law, to increase, diminish or change the civil and criminal jurisdiction of County Courts; and in cases of any such change of jurisdiction, the Legislature shall also conform the jurisdiction of the other courts to such change.”

In interpreting this Section Texas Courts have consistently held that the Legislature may divest the County Court of all or part of its civil or criminal jurisdiction, or both, and the jurisdiction withdrawn may be placed in other Courts. Muench v. Oppenheimer, 86 Tex. 568, 26 S.W. 496 (1894); Regian v. Sowell, 534 S.W.2d 175 (Tex.Civ.App.—Waco 1976, writ ref’d n. r. e.).

Seemingly, the parties are in agreement that by 1957, when the Midland County Juvenile Board was created, the constitutional County Court of Midland County had the jurisdiction to hear juvenile matters. To have that jurisdictional grant at that time, it would have to have been under Section 4, Article 2338-1, as no other Statute, either general or special, can be found where the grant of power could have been conferred. Jurisdiction over juvenile matters is not conferred upon the County Court by the Constitution. See Article 5, Sec. 16. Article 2329, Tex.Rev.Civ.Stat.Ann. (1925), did give the County Courts original jurisdiction to hear juvenile delinquency cases. That Statute was repealed in 1943 when Article 2338-1 was adopted. Article 2338-1 in turn has now been repealed. The only remaining authority now conferring jurisdiction over juvenile matters in the County Court of Midland County is to be found in Section 51.04 of the Texas Family Code, which is entitled “Jurisdiction” and is as follows:

“(a) * * * the juvenile court has exclusive original jurisdiction over proceedings under this title.
“(b) In a county having a juvenile board, the board shall designate one or more district, criminal district, domestic relations, juvenile, or county courts or county courts at law as the juvenile court, subject to Subsection (d) of this section.”

The Judge of the Midland County Court is an attorney licensed to practice law in this State, and the limitation provided in Subsection (d) is not applicable.

The question is then presented as to whether or not the Legislature intended for Section 51.04 of the Family Code to confer jurisdiction on the Midland County Court. Respectable authority is to the effect that the Section is not a grant of jurisdiction in juvenile matters to the Courts there enumerated, and that the designation as the Juvenile Court under Section 51.04 of the Family Code is limited to Courts possessing jurisdiction over juvenile matters from a source other than the Family Code. E_ S_ v. State, 536 S.W.2d 622 (Tex.Civ.App.—San Antonio 1976, no writ); see Attorney General’s Opinion, No. H-325, issued June 12, 1974. Regardless of that, we hold that Section 51.04 of the Family Code does confer the jurisdiction on the Midland County Court for the reasons to be enumerated.

In the first place, Subsection (d) of Section 51.04 as originally enacted eliminated all Courts presided over by non-lawyers from receiving the Juvenile Court designation. When it is recognized that under Texas law, the only type of Court of those listed in Section 51.04(b) that could have a non-lawyer as a presiding judge is a constitutional County Court, it seems obvious that the Legislature had no intent in eliminating all constitutional County Courts from having jurisdiction over juvenile matters when it adopted Title 3 of the Texas Family Code. Further, the last two sessions of the Texas Legislature have adopted amendments to Section 51.04(d) concerning non-lawyer judges sitting as Juvenile Court Judges. If the constitutional County Courts had no juvenile jurisdiction, surely the Legislature would not have wasted its time enacting those recent amendments to Section 51.04.

Finally, since the enactment of Title 3 of the Texas Family Code in 1973, the Legislature has passed additional statutes which point to the fact that the Legislature is firm in its belief that the constitutional County Courts continue to have juvenile jurisdiction. Thus, Article 1970-372 (enacted in 1977) specifically divested the constitutional County Court of Reeves County of its juvenile jurisdiction and vested it in the therein newly created Reeves County Court at Law by using the language that the new Court would have juvenile jurisdiction “ * * * over which, by the general laws of the state, the county court of the county would have jurisdiction.” Similarly, Article 1970-371, passed in 1971, created the County Court at Law of Randall County, and granted to that new Court jurisdiction over juvenile causes as prescribed “ * * * by the constitutional and general laws of this state for county courts.” Again see Article 1970-369, also passed in 1977, which created the County Court at Law of Tom Green County. Again, the grant to that Court was of juvenile jurisdiction “ * * * over which by the constitution and general laws of the state the county courts have jurisdiction * *

For the reasons stated, we hold that the Midland County Court had jurisdiction to hear and determine juvenile matters, and the Appellant’s first point is overruled.

Appellant next contends that error occurred because the State’s pleadings were not served upon the Appellant and his parents until after detention hearing was held on June 24, 1977. The purpose of the detention hearing was for the Court to determine whether the child would or would not be detained in custody for up to ten days, and Section 54.01, Tex.Family Code Ann., specifically authorizes oral notice of such a hearing. Oral notice of this hearing was given, and the point is overruled.

Appellant asserts that error occurred because the State’s notice and summons were defective. As pointed out, the State’s petition was in the alternative, stating:

“ * * * Petitioner requests the Court to conduct a hearing and after such hearing waive its exclusive jurisdiction of [said child] and transfer the said child to the Criminal Court for prosecution as an adult in accordance with Section 54.02 of the Texas Family Code.
“In the alternative, if this Court declines to so transfer the said [child], then the Court should, after hearing, declare the said child to be a child who has engaged in delinquent conduct as defined in Section 51.03 of the Texas Family Code.”

The summons was also in the alternative, stating:

“Such hearing is for the purpose of considering discretionary transfer of such child to criminal court or, alternatively, for the purpose of determining whether such child has engaged in delinquent conduct.”

It is the Appellant’s contention that the alternative pleadings and summons do not provide adequate notice and violate due process because under the pleadings attached to the summons and under the summons, the Appellant could have been transferred to the criminal Court or adjudicated a delinquent child. Appellant contends that the two procedures are distinctly different, involve different problems of defense, and thereby deprive the Appellant of an adequate opportunity to prepare a defense or any ability to determine the actual purposes of the hearing. He further contends that the drafters of Title 3 of the Code did not intend for prosecutors to file alternative pleadings under Section 53.04 of the Texas Family Code, as 53.04(a) provides that: “ * * * a petition for an adjudication or transfer hearing * * * may be made * * *The Statute is worded in the disjunctive rather than the conjunctive. Finally, the Texas Family Code Symposium, Commentary, 5 Tex.Teeh.L.Rev. 269 at 563 (1974), argues that a binding election be made by juvenile prosecutors.

Such contentions have been previously urged in appeals from transfer orders where the prosecuting attorney first filed a petition seeking to have the Appellant adjudge delinquent and then later filed a petition seeking transfer. In each case, the complaint was held to be without merit. Stockton v. State, 506 S.W.2d 918 (Tex.Civ.App.—Waco 1974, no writ); In re W. R. M., 534 S.W.2d 178 (Tex.Civ.App.—Eastland 1976, no writ); R_ E_ M_ v. State, 541 S.W.2d 841 (Tex.Civ.App.—San Antonio 1976, no writ ref’d n. r. e.). We see no difference where the alternative pleading was filed in the present case and the separate pleadings were filed in those cases. The point is overruled.

By Points of Error Nos. 4 and 5, Appellant complains of the order waiving jurisdiction in that the reasons for waiver are not set out in the detailed manner required by Section 54.02(h) of the Texas Family Code. Without repeating the order in this case, it is noted that it is more specific than the order contained in Matter of Honsaker, 539 S.W.2d 198 at 200 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.). We hold the order complies with the requirements of the Section and the points are overruled.

By the next three points, the Appellant contends that error occurred as the Juvenile Court failed to order a full investigation into the circumstances of the alleged offenses as required by Section 54.02(d) of the Texas Family Code. In response to motion filed by the State, the Court, on June 21, 1977, ordered that the Midland County Juvenile Probation Officer obtain a complete and diagnostic study of the juvenile and make a social evaluation and full investigation of the juvenile and his circumstances. Nowhere in the order was an investigation into the circumstances of the alleged offenses ordered. It is the contention of the State that the reason for this omission was that the circumstances of the alleged offenses had already been investigated prior to the entry of the Court’s order. It is clear from the evidence offered at the transfer hearing that the circumstances of the alleged offenses were being investigated by the local police department and others from the time that the offenses were first reported, and soon after they occurred. Irrespective of the order for an investigation, the Court did hear and consider the circumstances of the alleged offenses at the transfer hearing. Testimony was offered from the complaining witness, and from the investigating private detective who had discovered the alleged weapon and the other articles used by the juvenile and who had taken statements from a friend and brother of the juvenile concerning some of the juvenile’s participation in the offenses. Further, at the transfer hearing, statements of these witnesses were all available and were presented in Court. Granted that the stakes in a transfer proceeding are exceedingly high and that it is a critical stage of the Juvenile Court process, we fail to see where any harm has occurred to the Appellant where the investigation and reports were actually made. With this in mind, we overrule these points.

The next three points again relate to the form of the pleading filed by the State asking for transfer and, in the alternative, for adjudication. At the hearing, the State announced ready on its pleadings, and the trial Court then announced that it would proceed only on that portion of the State’s pleading dealing with the transfer of the Appellant to the District Court. It then proceeded to try and determine only that issue. The Appellant’s position is that because of the State’s pleadings and unqualified announcement, the trial Court was then without power to order that the State proceed only on the transfer proceeding, to deprive the Appellant of a jury trial, and to fail to proceed without giving all of the mandatory explanations called for under Section 54.03(b) and which are mandatory at the adjudication hearing. The points are overruled. Only a transfer hearing was held, and the constitutional and statutory rights granted to a juvenile at an adjudication hearing were not involved.

The balance of the points consist of attacks on both the legal and factual sufficiency of the evidence to support the trial Court’s findings made in its transfer order, particularly with regard to the six factors which are necessary to be considered by the Court as set out in Subdivision (f) of Section 54.02 of the Code. The evidence established that the Appellant was of the age of sixteen years, four months, at the time of the commission of the offense. The finding that he committed the offense of rape against the person of the complaining witness by using a pistol is not seriously challenged. In that regard, we note that the evidence showed that a violent and repulsive offense was committed against the person of the complaining witness by a person sophisticated enough and alert enough to plan concealment of his facial identification while he committed the offense, to flee the scene after its commission, and to hide and dispose of the pistol used in the attack before any outcry could be made. Further, there was adequate evidence on which a grand jury would be expected to return an indictment against the Appellant.

Favorable to the juvenile, there was evidence from the witnesses that the juvenile cooperated with them in making their reports; that the family, through a grandparent, was financially able to see that the juvenile received the services of private institutions and that those services would be made available to the Juvenile Court; and that through those services, it was hoped that he could be rehabilitated provided he could be properly motivated and would have the support from his immediate family. Generally, the recommendations of the psychological and psychiatric examinations were that he be treated as a juvenile.

On the other side of the coin, it appeared that he was addicted to marijuana use up until two months prior to the commission of the offenses; that he exhibited suicidal and homicidal tendencies; that he had experienced psychological neglect and physical abuse from his parents, who had separated, and that he was not wanted by either. When the part of the recommendation for his rehabilitation as a juvenile seemed to depend on a reconciliation with his parents, that opinion could be viewed of little value in view of their past actions and attitudes toward each other and toward the juvenile.

We find the evidence sufficient to support the trial Court’s findings. Section 54.-02 does not require that in order for the Juvenile Court to waive its jurisdiction that all matters listed in Subsection (f) must be established. Rather, the Section provides that the Court may waive its jurisdiction if it finds that because of the seriousness of the offense or the background of the child, the welfare of the community requires criminal proceedings instead of juvenile proceedings. Matter of J. R. C., 551 S.W.2d 748 at 753 (Tex.Civ.App.—Texarkana 1977, writ ref’d n. r. e.). While a different conclusion might be reached than that reached by the trial Court, we do not feel under the evidence that we should substitute our judgment in this regard for that of the Juvenile Court. B. L. C. v. State, 543 S.W.2d 151 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n. r. e.).

All of Appellant’s points have been considered and are overruled. The judgment of the trial Court is hereby affirmed.

OSBORN, Justice,

concurring.

I concur, but feel compelled to note that in some instances a summons similar to the one in this case could be determined to be defective and constitute reversible error.

As noted in 5 Tex.Tech.L.Rev. 269, “Texas Family Code,” (1974) at 563, the committee which drafted Section 54.02 “intended that the state be forced to an election as to which petition to file.” The cases cited by Judge Ward clearly hold that the State may file both a petition for an adjudication hearing and a petition for a transfer hearing. But since the types of hearings and the rights of the juvenile in each type of hearing are substantially different, the notice or summons should set forth which type of hearing is to be held. A juvenile should not be required to complete a hearing without knowing whether the Court contemplates either^ transfer or adjudication or both while the State’s and the defense’s evidence is being presented.

In this case, that issue did not arise because the trial Court announced at the beginning of the proceeding that the Court would only consider the State’s pleading dealing with the transfer of the juvenile to the District Court. Thus, any error in the alternative pleading in the petition and the alternative notice in the summons was rendered harmless. Tex.R.Civ.P. 434.


author: McDONALD, Chief Justice.

text:
    Tom BENNETT, Jr., et al., Appellants, v. James T. MASON et ux., Appellees.
    No. 5930.
    Court of Civil Appeals of Texas, Waco.
    Sept. 21, 1978.
    Rehearing Denied Nov. 9, 1978.

      LaDonna K. Ockinga, Ken R. Davey, P. C., Dallas, J. C. Jacobs, Corsicana, for appellants.
    Frank B. Murchison, Wright & Murchison, Corsicana, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendants from judgment rescinding sale of 124.86 acres of land by defendant Bennett to plaintiffs; decreeing cancellation of the notes, deed of trust, and deed, connected with such sale; decreeing plaintiffs judgment for $16,-400.30, plus $20,000. exemplary damages (with lien on the land to secure payment) against defendant Bennett; and decreeing plaintiffs judgment for $4,809.12 against defendant Bonham Corporation.

Plaintiffs Mason and wife (buyers) sued defendants Bennett (seller) and Bonham Corporation (who bought the note on the land from Bennett) for rescission of the sale of 124.86 acres in Navarro County alleging the sale induced by fraud; that Bennett represented to plaintiffs that there was an existing county road to the property; that such representation was false; material to the transaction; and relied on by plaintiffs in buying the property. Plaintiffs prayed for rescission of the sale; cancellation of the notes, deed of trust, and deed; return of all money paid by. plaintiffs; reasonable value of permanent improvements plaintiffs made to the property; and exemplary damages.

Trial was to a jury which found:

1) On May 13, 1973 defendant Bennett represented to plaintiffs that Road 1 was a county road.
2) Such representation was false.
3) Such representation was made to induce plaintiffs to purchase the land.
4) Such representation was a material inducement to plaintiffs in purchasing the 124.86 acres from defendant.
5) Plaintiffs relied on and believed such representation.
6) Plaintiffs paid $21,268.94 to defendants on such land from May 13, 1973 to December 1, 1976 in reliance upon the representation of Bennett.
7) Such representation was willfully made by defendant Bennett.
8) $20,000. should be assessed as exemplary damages.
9) Improvements were made by plaintiffs in good faith and with no notice of the falsity of the representation by Bennett.
10) $11,000. represents the reasonable value of the improvements made to the land by plaintiffs.
11) Bennett agreed to reimburse plaintiffs for payment of school taxes.
12) In amount of $161.67.
13) Bennett did not reimburse plaintiffs for such taxes.
14) $480.50 is the fair rental value per year for plaintiffs’ use of the property-
15) Plaintiffs first had knowledge that the access road to the property was not a public road in December 1976.

The trial court rendered judgment rescinding the sale; cancelled the notes, deed of trust and deed; decreed plaintiffs recover against Bennett $16,400.30 ($16,399.82 paid to him; plus $2,121.18 for improvements; plus $161.67 for tax reimbursement; less $2,282.37 fair rental value of the land while occupied by plaintiffs); plus $20,000. exemplary damages (for a total of $36,-400.30); decreed plaintiffs recover $4,809.12 against Bonham Corporation for payments made on the note to it; and decreed plaintiffs’ lien on the land to secure payment of judgment against Bennett.

Defendants appeal on 18 points which we summarize as 5 principal contentions.

1) The trial court erred in granting plaintiffs judgment for rescission and denying defendants’ motion for judgment non ob-stante veredicto because plaintiffs waived their right to rescission and ratified the contract.

2) The trial court erred in granting exemplary damages based on Issue 7 because no predicate issue in the charge was laid that Bennett knew the representation to be false.

3) The trial court erred in granting exemplary damages based on Issue 7 because no predicate was laid that the Masons had suffered any actual damages or injury.

4) The trial court erred in granting exemplary damages because there is no evidence to support the finding.

5) The evidence establishes as a matter of law that the plaintiffs had knowledge of the fraud giving rise to the right of rescission in July 1975.

Defendant Bennett advertised 124.86 acres of land in Navarro County for sale. Plaintiffs contacted Bennett and he took them out to see the land. He carried them to the land by way of a lane next to the Southern Pacific Railroad which he represented to plaintiffs was a county road, and which he would gravel and make passable. The lane beside the railroad was not a county road, belongs to the railroad, was not gravelled by Bennett; and is not available to plaintiffs for ingress and egress of the property. Bennett made various efforts to get plaintiffs a way into the land but never succeeded. The property is totally “landlocked”. Plaintiffs paid $7,000. down, signed notes for $43,000. and have actually paid some $21,000. on the property.

Under contention 1 defendants assert plaintiffs waived their right of rescission and ratified the contract because: 1) They sought and received forebearance and reinstatement of their note; 2) They sought temporary injunction to enjoin a foreclosure during pendency of this action; 3) They wrote and requested a discount for prepayment on their note which Bennett had promised them; 4) They rendered the property for taxation as a homestead.

If a defrauded party ratifies a contract induced by fraud with full knowledge of the fraud, he waives his defense, and is bound by the terms of the contract. Rosenbaum v. Texas Bldg. & Mortg. Co., S.Ct., 140 Tex. 325, 167 S.W.2d 506.

Ratification and waiver are generally fact issues and the burden of proof is on the party seeking to establish same. Moreover, ratification and waiver both involve 1) knowledge of the fraud, and 2) voluntary intentional choice exercised in the light of such knowledge. Hooks v. Brown, CCA (Austin) NRE, 348 S.W.2d 104.

Defendant requested no issues on such defenses and same were waived. Rule 279 TRCP.

Moreover the record reflects the seeking of forebearance and reinstatement of the note occurred before the jury found plaintiffs had knowledge of defendant’s fraud; under the facts of this case plaintiffs were entitled to the temporary injunction to maintain the status quo; the request for discount for prepayment of the note was prior to the date the jury found plaintiffs had knowledge of defendant’s fraud; and rendering the property for tax purposes as homestead was not improper and in no way waives the fraud or ratifies the contract as a matter of law.

From the record we cannot hold that waiver and ratification were established as a matter of law.

Under contentions 2, 3 and 4 defendants assert exemplary damages based on Issue 7 are improper because there was no predicate issues in the charge: that Bennett knew the representation to be false, or that the Masons had suffered any injury; and that there is no evidence to support the finding.

Issue 7 reads: “Do you find from a preponderance of the evidence that such representation was willfully made by the defendant Tom Bennett, Jr.

“Answer ‘we do’ ”.

The jury had already found Bennett had represented the road by which the parties had come on the property to be a county road; that such representation was false; made to induce plaintiffs to purchase the land; was a material inducement to plaintiffs’ purchase of the land; and that plaintiffs believed and relied on the representation.

Article 27.01 Texas Business & Commerce Code provides for the award of exemplary damages upon a finding that the false representation was willfully made.

Blacks Law Dictionary (4th Edition) defines willful as “designed” or “intentional”.

Issue 7 is sufficient to support the award of exemplary damages.

If defendants be entitled to any additional instruction or issue same was waived by failure to properly object. Rule 279 TRCP.

Bennett was a real estate dealer and owned the 124.86 acres; he represented the road was a county road and that he would get it in shape for plaintiffs. He did not want the county involved in it. After starting the gravel work he abruptly stopped because the railroad stopped him. He told plaintiffs he stopped because it was too wet, and thereafter tried to obtain other ways to the property. Defendant Bennett did not take the stand to deny the representation willfully made. He misrepresented the true facts and then attempted to cover up the truth. We think the jury entitled to infer that Bennett willfully made the representation and that the evidence is ample to sustain such finding.

Contention 5 asserts the evidence establishes as a matter of law plaintiffs had knowledge of the fraud giving rise to the right of rescission in July 1975.

The jury in answer to Issue 15 found plaintiffs first had knowledge that any portion of the access road to the property was not a public road in “December 1976”. The trial court instructed: “A person knows or has knowledge of a fact when he has actual knowledge of that fact; or when he learns of facts which would place an ordinary person on inquiry which inquiry if diligently pursued, would lead to the discovery of central fact”.

There is evidence from which the jury could have believed that plaintiffs knew or should have known of defendant’s fraud in July 1975. And there is evidence from plaintiffs, from the railroad representative, and the overall facts of the case, that plaintiffs did not know of defendant’s fraud until November 1976.

The jury’s answer to Issue 15 has ample support in the evidence, and the evidence falls far short of establishing as a matter of law plaintiffs knew or should have known of Bennett’s fraud in July 1975.

All appellant’s points and contentions have been considered and are overruled.

However, from the record we are of the opinion the verdict and judgment as to defendant Bennett is excessive in the sum of $10,000. (as to the exemplary damages), and this cause should be reversed for this reason only. Plaintiffs are given 10 days from this date to file a remittitur of $10,000. Rule 440 TRCP. Flanigan v. Carswell, S.Ct., 159 Tex. 598, 324 S.W.2d 835; World Oil Co. v. Hicks, S.Ct., 129 Tex. 297, 108 S.W.2d 962; Caswell v. Satterwhite, CCA (Waco) NRE, 277 S.W.2d 237; Big Town Nursing Home v. Newman, CCA (Waco) NWH, 461 S.W.2d 195. If such remittitur is filed within 10 days, the judgment of the trial court will be reformed and affirmed.

REVERSED & REMANDED.

OPINION AFTER FILING OF REMITTITUR

Appellees having filed remittitur of $10,-000. as suggested by this Court, the judgment of the trial court is reformed in conformity with such remittitur as to appellant Bennett, and as reformed is affirmed in the amount of $26,400.30 as to appellant Bennett.

The judgment as to appellant Bonham Corporation is affirmed.

All costs of appeal are assessed against appellants.

      . Road 1 on Exhibit 2.

      . The jury found the value of such improvements at $11,000. and the trial court reduced same to the amount plaintiffs plead for.


author: DUNAGAN, Chief Justice.

text:
    Floyd Leon THOMPSON, Appellant, v. Shirley Ann THOMPSON, Appellee.
    No. 1152.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 28, 1978.

      Dale Long, Tyler, for appellant.
    Bill Clark, Tyler, for appellee.
   DUNAGAN, Chief Justice.

This is an appeal from an order of the trial court which modified a prior order by increasing the child support to be paid by Floyd Leon Thompson, appellant.

The parties to this action were married on May 23, 1956 and six children were born during the marriage. The couple was divorced in August, 1971 and the trial court ordered appellant to pay child support of $100.00 per month. Appellee, Shirley Ann Thompson, filed a motion to modify to divorce decree by increasing child support in March, 1974. In response to appellee’s request, the court increased the child support to $300.00 per month. However a joint motion, filed by both appellee and appellant in April, 1974, revested that child support be reduced to $33.33 per child per month. The trial court modified its prior order in accordance with the agreement between the parties.

As a result of alleged material and substantial changes in circumstances, appellee, in June, 1977, filed the motion to increase child support which is the basis of this appeal. The subject of this motion was three of the minor children, then ages 8, 11 and 15. In defense of this action initiated by appellee, appellant sought to introduce evidence showing that he was not the biological father of two of the children. Appellant attempted to introduce evidence of his alleged sexual sterility as a result of a vasectomy performed in 1961, prior to the conception and birth of the two children in question. Appellee’s objection to the introduction of this evidence was sustained and appellant prepared a bill of exception. A motion for discovery of the blood group of each of the children was also filed by appellant and overruled by the trial court.

The trial court entered an order which found the material allegations of appellee’s petition to be true and therefore decreed that the child support to be paid by appellant be increased to $333.00 per month. Attorney’s fees in the sum of $600.00 were awarded to appellee’s attorney, also to be paid by appellant.

Appellant has timely perfected his appeal from this order, predicated upon five points of error. The five points of error asserted by appellant are that the trial court (1) erred in excluding evidence of appellant’s sexual sterility, (2) erred in overruling appellant’s motion for discovery of the blood groups of the children, (3) erred in decreeing that appellant contribute $333.00 per month for child support because there was no evidence to support such an award, (4) abused its discretion by awarding child support of $333.00 per month, and (5) abused its discretion by the award of attorney’s fees. Appellee responds that the trial court properly refused to consider evidence regarding issues finally decided in an earlier decree and that the trial court properly exercised its discretion in regards to awarding child support and attorney fees, based upon sufficient evidence.

We shall first address the complaint asserted by appellant in his first two points of error. The question presented for determination is whether the appellant, six years after a decree of divorce was rendered, should be afforded the opportunity to introduce evidence that he is not the father of two of the minor children who are the subject of this child support action. Appellant contends that he should be allowed to present this evidence as a defense to appel-lee’s present suit for two reasons. First, appellant asserts that he was barred from raising the issue of legitimacy at the time of the original divorce action due to the strict adherence by Texas courts to Lord Manfield’s Rule. Subsequently the Texas Supreme Court modified the rule to be followed by Texas courts and therefore, reasons the appellant, this is his first opportunity to raise this defense. Appellant’s second premise is that a divorce decree is always subject to modification and appellant is therefore not estopped to now raise this issue by recitations in the prior decree. These arguments are without merit.

It is well settled that a child born during lawful marriage is presumed to be the legitimate child of the husband and wife. Esparza v. Esparza, 382 S.W.2d 162, 168 (Tex.Civ.App.-Corpus Christi 1964, n. w. h.); Lawson v. Baker, 351 S.W.2d 571, 572 (Tex.Civ.App.-Houston 1961, n. w. h.); Gonzalez v. Gonzalez, 177 S.W.2d 328, 330 (Tex.Civ.App.-El Paso 1943, n. w. h.). This presumption of legitimacy is one of the strongest known to the law. Esparza v. Esparza, supra; Pinkard v. Pinkard, 252 S.W. 265, 268 (Tex.Civ.App.-Beaumont 1923, n. w. h.). However, this is not a conclusive presumption and may be rebutted. Prior to the Texas Supreme Court’s decision in Davis v. Davis, 521 S.W.2d 603 (Tex.Sup.1975), the presumption was rebuttable by circumstantial evidence and testimony of witnesses other than the spouses themselves. Adams v. Adams, 456 S.W.2d 222, 224 (Tex.Civ.App.-Houston [1st Dist.] 1970, n. w. h.); Esparza v. Esparza, supra; Lawson v. Baker, supra at 573; Marckley v. Marckley, 189 S.W.2d 8, 10 (Tex.Civ.App.-San Antonio 1945, n. w. h.); Pinkard v. Pinkard, supra at 266.

Lord Mansfield’s Rule, as applied by the Texas courts prior to the Davis case, excluded only the declarations of the spouses by making their testimony incompetent and without probative value as to the legitimacy of a child born during lawful marriage. The Supreme Court of Texas has recognized that:

“The Rule [Lord Mansfield’s Rule] has never prevented proof of non-access of spouses for a determination of illegitimacy of a child born or conceived during wedlock. The exclusion has only applied to testimony of the spouses themselves. Proof of illegitimacy has been made more difficult, but there is no rule of law that prevents the fact from being shown if other evidence is available.”

Davis v. Davis, supra at 608.

Therefore appellant was not completely barred from contesting the legitimacy issue during the original divorce proceeding. His contention that the Texas courts’ application of Lord Mansfield’s Rule “would have precluded any testimony tending to show Appellant was not the true biological father,” is a misinterpretation of the Texas rule.

Appellant had ample opportunity to contest this issue during the original divorce action. As then required by Article 4639a, V.A.C.S. (repealed by Acts 1973, 63rd Leg., p. 1458, ch. 543, sec. 3, eff. Jan. 1, 1974), appellee alleged that six children were born to the marriage, specifically naming each. No denial of these allegations was made by appellant. Appellant, instead, waived care and custody of the children and consented “for the Court to award such custody to the Petitioner [appel-lee] . . . subject to my being awarded reasonable rights of visitation with the said minor children.” The trial court, in response to the duty imposed upon it by the statute, found that the six children named by appellee were born to or adopted by the parties to this marriage and stated the name, age and sex of each. Appellant was ordered to contribute to the support and maintenance of these children until they reached the age of eighteen years. The findings of fact by the trial court concerning the children who are the subject of this appeal were, therefore, fact issues actually litigated and essential to the rendition of the divorce decree. Neither the decree nor any finding of fact was challenged by appellant by bill of review, application for judgment nunc pro tunc, or direct attack.

Appellant contends that all divorce decrees are subject to modification and therefore he is not estopped, by the prior judgment, to now raise the issue of legitimacy. Such a decree is subject to modification where the conditions and circumstances have materially changed. However, an action to modify a prior order is not an action to set aside the prior judgment and retry the original case, as in an action for bill of review, but is a new and independent cause of action based on changed facts and circumstances, Lakey v. MeCarroll, 134 Tex. 191, 134 S.W.2d 1016, 1020 (Tex.Sup.1940); Goodman v. Goodman, 236 S.W.2d 641, 644 (Tex.Civ.App.-San Antonio 1951, n. w. h.); Lacy v. Lacy, 122 S.W.2d 1104, 1106 (Tex.Civ.App.-Dallas 1938, n. w. h.). A divorce decree is final and res judicata in the sense that the facts upon which the decree was based, those matters before the court and facts existing at the time of the prior judgment, may not be retried and relitigated. Lakey v. MeCarroll, supra; Goodman v. Goodman, supra. Such a divorce decree which contains provisions for the support, maintenance and custody of the children is a judgment to which Rule 329b, section 5, T.R.C.P., is applicable. Rector v. Rector, 454 S.W.2d 229, 230 (Tex.Civ.App.-Tyler 1970, n. w. h.).

The doctrine of collateral estoppel, or as sometimes phrased estoppel by judgment, bars relitigation in a subsequent suit upon a different cause of action of a fact issue actually litigated and essential to a prior judgment. Benson v. Wanda Petroleum Company, 468 S.W.2d 361, 362 (Tex.Sup.1971); Kirby Lumber Corporation v. Southern Lumber Company, 145 Tex. 151, 196 S.W.2d 387, 388 (Tex.Sup.1946). A finding of fact by the trial court in a divorce judgment that a child was born to the marriage of the parties is equivalent to a finding that appellant is the father of the child. Appellant will not be permitted, at this later hearing, to raise for the first time the contention that he is not the father of the child. Walters v. Walters, 565 S.W.2d 586, 587 (Tex.Civ.App.-Austin 1978, n. w. h.); Byrd v. Travelers Insurance Company, 275 S.W.2d 861, 863 (Tex.Civ.App.-San Antonio 1955, ref’d n. r. e.). A party must set up all his available defenses at the time of trial, for if he fails to do so, the judgment will be conclusive as to any defenses so omitted. Hunt v. Wichita County Water Improvement District No. 2, 213 S.W.2d 343, 345 (Tex.Civ.App.-Fort Worth 1948, ref’d n. r. e.). In the present case, appellant is barred from raising the issue of legitimacy and appellant’s first two points of error are overruled.

By point of error No. 3, appellant complains that the trial court erred by awarding $333.00 per month for child support because there was no evidence that such an amount was reasonably necessary or that appellant was financially able to contribute that amount. In passing upon this “no evidence” point, we consider only that evidence and the reasonable inferences therefrom, which viewed in its most favorable light, supports the trial court’s judgment and disregard that which is contrary thereto. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.Sup.1965); Biggers v. Continental Bus Systems, Inc., 157 Tex. 351, 303 S.W.2d 359, 363 (Tex.Sup.1957); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698 (Tex.Sup.1914).

In the instant case, the award of child support concerns three minor children, all girls. At the time of the hearing for this motion, appellee was employed on a part time basis for minimum wage. She had been so employed for only a matter of days and had never had any previous work experience. She testified that the cost of living for such expenses as food, clothing, education, and medical care was much higher now than in 1974 and that $33.00 per month per child was insufficient to support the children.

Appellant was employed for Kelly-Springfield as a mechanic in the maintenance department. He had been so employed for almost ten years and admits he presently has more job security than in the past. Appellant’s salary has increased considerably in the last few years. He estimated that his income for 1974 was approximately $16,000.00 but for the first ten months of 1977, his gross monthly salary averaged about $2,000.00. Since the court’s prior order, appellant has bought his own home and has approximately $1,500.00 in savings. Outside of the new home, appellant’s only debts were those on two vehicles. He had a total of $5,700.00 indebtedness on a car and pick-up truck valued at between $6,900.00 and $7,200.00. Appellant, himself, concluded that he was presently in much better financial shape than in 1974.

In light of our review of the record, we conclude that there was evidence of probative force to support the trial court’s judgment and therefore appellant’s third point of error is overruled.

Appellant’s fourth point of error asserts that the trial court’s child support award of $333.00 per month constituted an abuse of discretion. Each case involving child support must stand on its own facts, and the trial court is by necessity given wide discretion. Dennis v. Dennis, 512 S.W.2d 699, 701 (Tex.Civ.App.-Tyler 1974, n. w. h.); Brito v. Brito, 346 S.W.2d 133, 134 (Tex.Civ.App.-El Paso 1961, ref’d n. r. e.). The trial court has the people involved before it and is in a much better position to properly assess and analyze the needs and abilities of the parties. Brito v. Brito, supra. Both parents have an obligation of support toward their children and this duty must be considered in light of their financial abilities to pay such support, having due regard for all their lawful obligations. Gully v. Gully, 111 Tex. 233, 231 S.W. 97, 100 (Tex.Sup.1921); Hearn v. Hearn, 449 S.W.2d 141, 143 (Tex.Civ.App.-Tyler 1969, n. w. h.).

The trial court’s judgment may not be disturbed unless a clear showing of abuse of discretion is made. Labowitz v. Labowitz, 542 S.W.2d 922, 924 (Tex.Civ.App.-Dallas 1976, n. w. h.); Hearn v. Hearn, supra; Brito v. Brito, supra. We do not feel the award made by the trial court in the case at bar constituted an abuse of discretion and we overrule appellant’s fourth point of error.

Finally, appellant complains that the lower court abused its discretion by awarding attorney’s fees for the prosecution of this motion to modify the court’s prior order. Under the terms of sec. 11.-18(a), Texas Family Code, reasonable attorney’s fees may be awarded as costs in cases of this nature. Walsh v. Walsh, 558 S.W.2d 94, 96 (Tex.Civ.App.-Waco 1977, dism’d). Labowitz v. Labowitz, supra at 927; In the Interest of R_ V_ M_, a child, 530 S.W.2d 921, 923 (Tex.Civ.App.-Waco 1975, n. w. h.). Reasonable attorney’s fees may be taxed as costs and be ordered paid directly to the attorney. The award of such attorney’s fees is up to the discretion of the trial court. Derbonne v. Derbonne, 555 S.W.2d 507, 509 (Tex.Civ.App.-Houston [14th Dist.] 1977, dism’d); Labowitz v. La-bowitz, supra. We conclude that the trial court was not in error in awarding attorney’s fees to appellee’s attorney and that the award of $600.00 for such fees was not an abuse of the lower court’s discretion.

We have considered all of appellant’s points of error and believe them to be without merit and the same are hereby overruled. The judgment of the trial court is affirmed.


author: JAMES, Justice.

text:
    Adolph KURTZ, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 5893.
    Court of Civil Appeals of Texas, Waco.
    Oct. 5, 1978.
    Robert A. Canónico, Waco, for appellant.
    Jack K. Smith, Corsicana, for appellee.
   OPINION

JAMES, Justice.

This is a workmen’s compensation case, wherein the claimant’s injuries grew out of a personal encounter (fistfight) with a fellow employee. The jury found in answer to special issues that the claimant received an injury, but failed to find that claimant was injured in the course of his employment. Pursuant to and in harmony with the jury verdict, the trial court entered judgment that Plaintiff take nothing, from which he appeals. We affirm.

Plaintiff-Appellant Adolph Kurtz, claimant herein, brought this suit against Defendant-Appellee Liberty Mutual Insurance Company, the insurance carrier for General Tire and Rubber Co., employer of claimant, for injuries alleged to have been suffered by claimant and incurred on or about March 17, 1976, while on the job, which injuries grew out of a fistfight with one Edwin D. Hill, a fellow employee.

Trial was had to a jury, which found in answer to Special Issue No. 1 that Plaintiff Kurtz received an injury on or about March 17, 1976; however, in answer to Special Issue No. 2, the jury failed to find that Kurtz was injured in the course of his employment. After jury verdict, the trial court entered judgment that Plaintiff Kurtz take nothing, from which he appeals, asserting that the evidence is legally and factually insufficient to support the jury’s answer to Special Issue No. 2. We overrule Plaintiff-Appellant’s points and contentions, and thereby affirm the trial court’s judgment.

We revert to Appellant’s first point, to wit, that there is “no evidence” to sustain the jury’s negative answer to Special Issue No. 2, wherein the jury failed to find that Plaintiff-Appellant Kurtz was injured in the course of his employment. The burden of proof was upon Plaintiff-Appellant to obtain an affirmative finding to Special Issue No. 2 in order to recover. In other words, Plaintiff-Appellant had the burden of establishing that his injury was received in the course of his employment. This he failed to do. This being so, by his “no evidence” point, Plaintiff-Appellant is contending in effect that the evidence conclusively establishes as a matter of law that his injury was received in the course of his employment. The evidence does not conclusively establish this fact, as we shall see by a brief review of the evidence hereinafter set out in this opinion. Therefore, we overrule Plaintiff-Appellant’s first point.

Secondly, Plaintiff-Appellant contends that the jury’s negative answer to Special Issue No. 2 is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust, under the doctrine of In re King's Estate (Tex.1951) 150 Tex. 662, 244 S.W.2d 660. We overrule this contention.

Plaintiff-Appellant Kurtz testified that on the day he received the injury in question, he and Edwin Hill and one Emory Forward were working as a three man team in connection with machinery wherein tires were being painted, wrapped, and placed in racks. Kurtz testified that Hill was not as familiar with this particular type of work as was he (Kurtz); that Hill needed some help in racking up some tires, and he (Kurtz) was helping Hill; that after they had almost finished racking the tires, Kurtz said he told Hill, “I enjoyed working with you those four hours,” and then made a “friendly gesture” that he (Kurtz) didn’t mind carrying him, but “it was a little difficult when you drag your feet a little.” Kurtz testified that Hill replied by giving him a facial expression that let him know that he (Hill) did not take kindly to or appreciate this remark. Then Kurtz stepped away a few feet to the water fountain, after which Kurtz and Hill had to work together to put the rack over to the track in order to send the rack of tires on their way to another location. Kurtz said Hill made some remark to him; however, the place was so noisy that Kurtz could not hear and understand what Hill said; whereupon Kurtz went over to Hill, and then Hill told Kurtz he was “running off at the mouth.” Kurtz then leaned over towards Hill and asked him what he meant by this last remark, at which point Hill struck Kurtz twice in and about Kurtz’s head and face, knocking Kurtz back into the rack of tires, thereby causing the injury in question. Kurtz testified that he never struck Hill.

Hill’s testimony varied from that of Kurtz in many material particulars. Hill testified that he had known Kurtz long before the altercation in question; that Kurtz had formerly been a member of the same church in Bellmead that Hill belonged to, and in which church Hill was on the Board of Trustees. Hill said he had known Kurtz at said church, that they had prayed together, and that he (Hill) knew there was something wrong with Kurtz; and that Kurtz had had trouble with the song leader and the minister of the church. Hill said about a month prior to the fistfight in question, Kurtz came up to him on the job and asked him why he (Hill) had taken part in the church meeting the past Wednesday night wherein Kurtz was voted out of the church. Hill at this time replied that he had not been present at that particular church meeting and had nothing to do with Kurtz’s having been voted out of the church. To this, Hill testified that Kurtz told him, “you are as sorry as the rest of the people in that church.”

Hill further testified that on the occasion of the fistfight in question, Kurtz “tapped me on the chest and said, ‘Well, do something about it, do something about it.’ ” Hill said he hit Kurtz in an effort to get Kurtz to leave him alone, testifying, “I done it in self-defense and to get him away from me.”

Emory Forward, who was working with Kurtz and Hill at the time of the fistfight, testified that Kurtz was the aggressor and had agitated Hill. There was also testimony from other co-workers that Kurtz was a troublesome person who had had physical difficulties with other people.

Article 8309, among other things, provides:

“The term ‘injury sustained in the course of employment,’ as used in this Act, shall not include:
“(2) An injury caused by an act of a third person intended to injure the employee because of reasons personal to him and not directed against him as an employee, or because of his employment.
“(4) An injury caused by the employee’s wilful intention and attempt to injure . some other person, but shall include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs of business of his employer whether upon the employer’s premises or elsewhere.”

Texas Indemnity Insurance Co. v. Cheely (Amarillo CA 1950) 232 S.W.2d 124, writ refused, holds that proof that the injury occurred while the employee was engaged in or about the furtherance of his employer’s affairs or business is not alone sufficient; but that Plaintiff must also show that his injury was of such kind and character as had to do with and originated in the employer’s work, trade, business, or profession. Also see United Pacific Insurance Co. v. Farley (Waco CA 1978) 566 S.W.2d 677, no writ.

In the case at bar, the jury had the right to infer, and from their negative finding manifestly did infer, that the fistfight in question originated out of reasons personal to Kurtz, and that Kurtz wilfully intended to injure another person, to wit, Hill. This being so, we are of the opinion and hold that the evidence is factually sufficient to support the jury’s failure to find that Kurtz’s injury was received in the course of his employment. In other words, we cannot say that the jury’s negative answer to Special Issue No. 2 is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.

Judgment of the trial court is accordingly affirmed.

AFFIRMED.


author: DODSON, Justice.

text:
    Don J. HARRINGTON et ux., Appellants, v. WESTERN NATIONAL BANK OF AMARILLO, Texas, Appellee.
    No. 8920.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 10, 1978.
    J. R. Hollingsworth, Amarillo, for appellants.
    Whittenburg Law Firm, Cary Schachter, Amarillo, for appellee.
   DODSON, Justice.

In the venue phase of this action, Don J. Harrington and wife Edith A. Harrington appeal from an order of the trial court sustaining the plea of privilege by the Western National Bank of Amarillo asserting its alleged right to be sued in Randall County, the principal place of business. The bank maintains that the Harringtons failed to plead sufficient facts to maintain venue in Potter County. We determine that the Harringtons’ pleadings state a cause of action against the bank which is within the purview of subdivision 14 of article 1995, Tex.Rev.Civ.Stat.Ann. (Vernon 1964). We reverse the order of the trial court and remand the action.

The Harringtons allege that they own a certain 5.132 acre tract located in Potter County, Texas; that they executed a note and mechanic’s lien to Larry Sheffield for the construction of a residence on this property; that the mechanic’s lien was transferred to the bank; that Larry failed and refused to complete the residence within 180 days and pay in full each of his subcontractors; that they [the Harringtons] moved into the residence and completed the construction; that a substitute trustee purported to convey title to the property; and that the bank filed an action for forcible detainer in the Justice Court, Precinct One, Place Two, Potter County, Texas, seeking possession of the property.

By controverting plea the Harringtons allege that they are entitled to maintain venue in Potter County, Texas, under subdivisions 5, 14 and 29a of article 1995, supra. Subdivision 14 provides:

14. Lands. — Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.

In this action against Sheffield and the bank, the Harringtons seek to recover damages, remove the cloud from the title to the real property, and obtain an order abating the bank’s forcible detainer action in Justice Court for possession of the real property. The Harringtons further seek court costs, attorney’s fees and general relief.

The bank maintains that the Har-ringtons’ original petition is insufficient to state a cause of action under this subdivision. We do not agree. The fee ownership of real property includes the right to its peaceable possession and enjoyment. The Harringtons state a cause of action against the bank within the purview of subdivision 14 of article 1995 by alleging that they own the 5.132 acre tract of land, that the bank is asserting a right for possession of the property (which is adverse to their alleged ownership) and by requesting the court to remove the cloud from their title. See 47 Tex.Jur.2d Quieting Title §§ 14, 25 (1963) and the cases cited therein.

The bank also maintains that 12 U.S.C. § 94 (1945) provides that venue in an action against a national bank must be in the county of the bank’s residence — Randall County in this case. However, the bank in its brief recognizes that venue in rem or local actions is a generally accepted exception to this provision, citing Fort Worth National Bank v. Ballanfonte, 469 S.W.2d 9 (Tex.Civ.App.—Houston [14th Dist.] 1971, no writ). See also Houston National Bank v. Farris, 549 S.W.2d 420 (Tex.Civ.App.— Waco 1977, writ dism’d) and the cases cited therein. The action against the bank for removal of a cloud on the title to the real property is an in rem action, local in nature. The provisions of 12 U.S.C. § 94 do not apply. See Houston National Bank v. Farris, supra.

In its brief the bank also acknowledges that the court’s order sustaining its plea of privilege “was entered in response to the bank’s motion to sustain the plea of privilege because of the failure of plaintiffs’ [the Harringtons] pleadings to allege venue facts sufficient to maintain venue in Potter County.” The trial court decided the venue issue on the pleadings and did not hear any evidence on the matter. Under section 14 of article 1995 the Harringtons are entitled to maintain venue “in the county in which the land, or a -part thereof, may lie” when, as here, they have alleged a cause of action. The Harringtons allege that the 5.132 acre tract is situated in Potter County, Texas. They are entitled to an evidentiary hearing to establish this venue fact.

The Harringtons’ points of error one, two and three are sustained. Our view of these points is dispositive of this appeal; therefore, we deem it unnecessary to further discuss the Harringtons’ remaining points of error. Accordingly, the order of the trial court sustaining the plea of privilege of Western National Bank of Amarillo is reversed and the cause is remanded to the trial court.