author: GREENHILL, Chief Justice. SAM D. JOHNSON, Justice

text:
    Norma Jean GLOVER et al., Petitioners, v. NATIONAL INSURANCE UNDERWRITERS, Respondent.
    No. B-5917.
    Supreme Court of Texas.
    Jan. 12, 1977.
    Rehearing Denied Feb. 16, 1977.

      Warren Heagy, Odessa, Byrd, Davis, Ei-senberg & Clark, Tom Davis, Austin, for petitioners.
    Lord, Bissell & Brook, Terry Backus, Chicago, Ill., Little & Palmer, Jack Little, Big Spring, Fulbright & Jaworski, L. S. Carsey and Hugh Griffin, Houston, for respondent.
   GREENHILL, Chief Justice.

The question in this case is whether the pilot of an airplane which crashed and killed all aboard was “properly rated for the flight” within the meaning of an aviation liability insurance policy. The trial court held that he was and entered judgment for the petitioners. The court of civil appeals, with one justice dissenting, reversed the judgment of the trial court and rendered judgment for the insurer. Tex.Civ.App., 535 S.W.2d 662. We reverse the judgment of the court of civil appeals and affirm that of the trial court.

The crash in question occurred on the Mexican border near Quemado, Texas, north of Eagle Pass, on December 9, 1972. The pilot of the airplane was William 0. Rogers, and he was accompanied by two passengers on the flight, Burlón E. Glover and Ray Eugene Rives. All were killed.

The petitioners, herein referred to as the plaintiffs, are the wives and children of the deceased passengers. They brought an action against the estate of the pilot, Rogers, and against the Bill Rogers Trucking Company for the wrongful deaths of Glover and Rives. National Insurance Underwriters, herein called National, had prior to the crash issued a liability insurance policy to the owner of the airplane, the Bill Rogers Trucking Company. National refused to defend the wrongful death suit and denied liability under the policy it had issued to the trucking company. The parties to that suit then entered into an agreement that National would institute this suit, a declaratory judgment action, to determine its liability to the estate of Rogers under the insurance policy. The agreement provided that if National were found to be liable, then it would pay to the plaintiffs the policy limits in full settlement of their cause of action against the estate. On the other hand, if National were found not to be liable under the policy, then the plaintiffs agreed that they would dismiss their wrongful death action and make no further effort to recover for the deaths of the passengers.

Pursuant to the agreement, National brought this declaratory judgment action against the people we here call “the plaintiffs.” The parties filed a document of stipulated facts in the trial court and submitted the cause to that court for determination. The trial court found as a matter of law that the insurance policy afforded coverage, and it ordered National to pay the plaintiffs the policy limits. The court of civil appeals reversed and rendered judgment for National. Tex.Civ.App., 535 S.W.2d 662.

The insurance policy was attached as an exhibit to the stipulated facts. Under Part I of this policy, National agreed to pay all sums which the insured would become legally obligated to pay as damages because of bodily injury or death, sustained by any person, including occupants. Under “Exclusions Applicable to Part I,” however, the policy contained a provisions commonly known as a “Pilot Warranty Clause.” This clause provided that coverage under Part I would not apply “to any aircraft, while in flight, . . . whenever the pilot operating the aircraft is not qualified in accordance with the requirements specified in Item 6 . . . .” Item 6 of the declarations provided in part:

PILOTS: This policy applies when the aircraft is in flight:
(a) [only when being operated by Rogers]
(b) while holding an F.A.A. pilot certificate and ratings at least equal to those described below, with a currently effective Medical Certificate, and while properly rated for the flight and the aircraft,
(Pilot Certificate & Ratings) Private
[Emphasis supplied]

National’s contention is that the pilot of the airplane, Rogers, was not “properly rated for the flight.” It is therefore argued that the pilot clause operated to suspend National’s liability under the policy. The plaintiffs, on the other hand, argue that Rogers was “properly rated for the flight” and that National is therefore liable under its contract of insurance.

The case was tried upon an “Agreed Statement of Pacts” and five attached exhibits. The agreed statement recites that the passengers, Glover and Rives, were business acquaintances of Rogers, and the three men were en route from Odessa to Eagle Pass on a fishing trip when the crash occurred. The site of the crash was between Del Rio and Eagle Pass, about 30 miles southeast of Del Rio and 204 miles southeast of Odessa. The airplane was a single engine Piper aircraft. Rogers had a private pilot’s license to operate a single engine land aircraft, but he did not have an instrument flight rating.

At 7:55 a.m. on December 9, 1972, Mr. Rogers called the Midland F.A.A. Flight Service Station and requested a weather briefing for a flight from Odessa to Eagle Pass. He stated that his departure time would be in three or four hours. He was told that at 7:00 a.m., the weather conditions at Midland and Del Rio were “indefinite 100 feet obscuration, [100 percent of the sky hidden], with the visibility of mile and fog.” He was also told that the area forecast indicated ceilings below 1000 feet with visibility of less than two miles; and from 7:00 a.m. to 7:00 p.m., the forecast was for 300 to 800 foot ceilings, overcast, with visibility of from one to three miles and occasional near zero ceiling and visibility conditions.

Later that morning, the weather had cleared considerably in the Midland-Odessa area. At 9:00 a.m. the Midland Air Terminal recorded the conditions as showing scattered clouds at 400 and 15,000 feet, a ceiling of 25,000 feet overcast, and visibility estimated at four miles, with ground fog. At that time, the three men took off from Odessa on their flight to Eagle Pass. Rogers filed no flight plan and did not request a weather briefing before taking off.

At the time the men took off from Odessa, the conditions in the Del Rio area had not improved from those reported at 7:00 a.m., nor did they improve later in the day. At 9:20 a.m., Del Rio had a ceiling of 100 feet with visibility of one-half mile. At 11:05 a.m. and at 12:00 noon, Del Rio reported the weather as cloudy with fog, and with a ceiling of 200 feet and visibility of one-half mile. At approximately 11:20 a.m., the aircraft crashed near Quemado.

The above weather reports and weather forecasts recited in the agreed statement were apparently taken from a National Transportation Safety Board report that was attached as an exhibit to the agreed statement. This report summarized an N.T.S.B. investigation that was conducted after the crash, and the accuracy of the material in that report was stipulated to by the parties. Included in the report was a statement by the Air Traffic Control Specialist who briefed Rogers on the weather conditions on the morning of the flight. The Specialist’s statement contained the following:

At 1355 GMT [Greenwich Mean Time] the pilot of N7714P [Rogers] called by telephone and requested an outlook for a proposed VFR flight from Ector County Airport, Odessa, Texas to Eagle Pass, Texas. His proposed departure time was “in the next three or four hours.”
I gave the pilot of N7714P all the information available to me at the time which was pertinent to his proposed flight. Source material used for the briefing included surface reports from SA29 091300, MAF FT amendment 09111, and GSW FA 091240 with emphasis on pertinent AIRMET information it contained. The pilot then indicated that he intended to delay departure.

Also attached to the N.T.S.B. report were copies of the weather reports and weather forecasts that were available to the A.T.C. Specialist on the morning of December 9, 1972. These weather reports and forecasts included the forecasts referred to by the A.T.C. Specialist in his statement, but they also included forecasts that were not specifically mentioned by the Specialist. One of these forecasts was a “terminal forecast” for Del Rio. According to a “Key to Aviation Weather Reports,” which was issued by the U.S. Department of Commerce and was revised in 1974, terminal forecasts “contain information for specific airports on expected ceiling, cloud heights, cloud amounts, visibility, weather and obstructions to vision and surface wind.” They are issued twice a day and are valid for 24-hour periods.

The Del Rio terminal forecast attached to the N.T.S.B. report was issued at 5:00 a.m. on December 9, 1972; and it indicated that at the time of issuance, Del Rio was reporting a ceiling of 300 feet obscuration with visibility of two miles with fog, variable to a ceiling of 100 feet obscuration with visibility of one-half mile with fog. This terminal forecast went on to forecast that by 8:00 a.m., the ceiling would be 500 feet overcast, with visibility of four miles with fog. The forecasted weather for 10:00 a.m. at Del Rio was a ceiling of 1,000 feet, with scattered clouds at 25,000 feet and visibility of seven miles. At 1:00 p.m., the forecast called for a ceiling of 12,000 feet with scattered clouds, thin scattered clouds at 25,000 feet, and no restrictions as to visibility. Because this forecast is mentioned in the agreed statement of facts, and because the A.T.C. Specialist stated that he gave Rogers “all the information available to me at the time which was pertinent to his proposed flight,” it is clear that Rogers was given the information contained in the Del Rio terminal forecast on the morning of the flight.

Another exhibit attached to the agreed statement was a sectional map of Texas which showed the presumed flight path of the airplane, the crash site, and the weather conditions existing at the time of the flight. According to the legend on the map, the weather conditions along the flight path of the plane varied from VFR [visual flight rules] over the first one-third of the flight to probable IFR [instrument flight rules] over the second one-third, to definite IFR conditions over the final one-third.

It was stipulated for the purposes of this action that the pilot, Rogers, was negligent in each of the particulars set out in the plaintiffs’ petition in the wrongful death suit. They there alleged that Rogers was negligent:

“(a) In operating the airplane under conditions which required an instrument pilot rating;
(b) In failing to communicate with the various ground communication stations in the Del Rio, Eagle Pass area to ascertain the weather conditions existing in that area;
(c) In operating the airplane at an altitude which was dangerously low to the surface;
(d) In failing to return to Odessa or other alternate airports where the VFR weather existed: [and]
(e) In flying into an area wherein the weather was such that IFR Flight Rules existed with full knowledge of the existing inclement weather conditions.”

We agree with the parties that the only question to be here decided is whether Rogers was “properly rated for the flight” within the meaning of the pilot warranty clause. In order to construe properly that clause, a review of the regulations which govern aviation is necessary.

The Federal Aviation Act of 1958, 49 U.S.C. Sections 1301 et seq., gives the Administrator of the Federal Aviation Administration the authority to prescribe reasonable rules and regulations to govern, among other things, airmen and the operation of aircraft in the United States. The regulations promulgated by the Administrator are codified in 14 C.F.R. Sections 1-399 and shall hereafter be referred to as the FARs (Federal Aviation Regulations).

A rating is defined in FAR Section 1.1 as “a statement that, as a part of a certificate, sets forth special conditions, privileges or limitations.” A rating known as an “instrument rating” is provided for in FAR Section 61.5 to be placed on pilot certificates when applicable. FAR Section 61.65 sets out the procedures that must be followed to obtain an instrument rating.

They need not be detailed here; it is sufficient to note that the potential instrument pilot must receive ground instruction and flight instruction, must have attained certain mínimums of flight experience, and must have passed both a written and a flight test appropriate to the instrument rating. The requirements necessary to obtain a private pilot certificate, which does not include an instrument rating, are contained in the FARs Sections 61.101 through 61.120; and those sections do not require the same level of instrument flying proficiency and skill as does Section 61.65.

Section 61.3 of the FARs provides that no person may act as a pilot under instrument flight rules (IFR) or in weather conditions less than the mínimums prescribed for visual flight rules (VFR) flight, unless he holds an instrument rating. Sections 91.105 through 91.109 set forth the visual flight rules, and Section 91.105 specifies the basic VFR weather mínimums. When weather conditions are less favorable than the míni-mums prescribed in the VFR sections, then those conditions shall be referred to as “IFR conditions”; when they exceed the VFR mínimums, they shall be referred to as “VFR conditions.” Section 91.105 states, among other things, that a pilot may not operate an aircraft 1,200 feet or less above the surface, outside controlled airspace, unless flight visibility is at least one mile and the aircraft operation is clear of clouds. Therefore, when a pilot operates an airplane in weather less favorable than those minimums, then he is operating the aircraft in IFR conditions; and he violates FAR Section 61.3 unless he has an instrument rating.

Sections 91.115 through 91.129 of the FARs prescribe the instrument flight rules. The only section that need be mentioned here is 91.115. It provides that a flight plan must be filed, and an Air Traffic Controller clearance must be obtained, before a pilot may operate an aircraft under IFR in controlled airspace.

Both National and the plaintiffs have made arguments based upon the stipulated facts, the FARs, and the reported cases that have involved exclusionary clauses in insurance policies. Almost all of the cases cited to us by the parties involved fact situations and exclusionary clauses different from those here in issue. See, e.g., Mang v. Travelers Insurance Co., 412 S.W.2d 672 (Tex.Civ.App.1967, writ ref’d); Ranger Insurance Co. v. Rogers, 530 S.W.2d 162 (Tex. Civ.App.1975, writ ref’d n.r.e.); Insurance Co. of North America v. Maurer, 505 S.W.2d 931 (Tex.Civ.App.1974, writ ref’d n.r.e.). See also Ranger Insurance Co. v. Culberson, 454 F.2d 857 (5th Cir. 1971), cert. denied, 407 U.S. 916, 92 S.Ct. 2440, 32 L.Ed.2d 691 (1972); Bequette v. National Insurance Underwriters, 429 F.2d 896 (9th Cir. 1970); Arnold v. Globe Indemnity Co., 416 F.2d 119 (8th Cir. 1969); Woods v. Insurance Co. of North America, 38 Cal. App.2d 144, 113 Cal.Rptr. 82 (1st Dist. 1974); Weissman v. Prashker, 405 Pa. 226, 175 A.2d 63 (1961).

There is, however, one case in which the same pilot warranty clause as is here presented was at issue, and the facts were very similar to those herein. That case is National Insurance Underwriters v. King Craft Custom Products, Inc., 368 F.Supp. 476 (N.D.Ala.1973), aff’d per curiam, 488 F.2d 1393 (5th Cir. 1974). Under the insurance policy there in question, coverage was provided only when the pilot was “properly rated for the flight and the aircraft. ...”

The flight in King Craft was one from Miami to Mobile, Alabama, with an intermediate stop at Panama City. The pilot of the aircraft, who did not have an instrument rating, had been advised that VFR conditions existed at his destination, Mobile; and it was undisputed that the takeoff at Miami and the landing and take-off at Panama City were under VFR conditions. When the pilot reached Mobile, however, he was informed that the ceiling was 500 feet overcast with visibility of seven miles. He then requested an instrument clearance into the airport, which was granted; and he was apparently trying to land by instruments a few minutes later when he crashed.

The insurer contended that the pilot was not “properly rated for the flight,” but the trial court disagreed. It assumed that the pilot operated the airplane in IFR conditions at Mobile, but it held that “the flight” was a VFR flight from Panama City to Mobile, a flight for which the pilot was properly rated. The court stated that the pilot had at most violated the Federal Aviation Regulations by attempting to land in weather conditions which required an instrument rating. It viewed the words “the flight” used in the pilot clause as referring to the entire time the aircraft was in flight, and rejected the insurer’s attempt to break the flight into segments which would require different ratings for each segment. The court also rejected the insurer’s attempt to show that the pilot voluntarily and knowingly attempted an instrument flight when he had other choices open, and stated that such proof would be an attempt to add language to the policy which was not there. It further believed that the effect of construing the policy as argued by the insurer would be to have coverage flickering on and off as the airplane entered and departed from differing weather conditions. The King Craft court thought that such a construction should be avoided unless the language of the policy clearly demanded it.

The question here is essentially the same as the question which was before the court in King Craft, that is, was the pilot “properly rated for the flight” that ended in his death and the deaths of his passengers? The answer to this question requires an analysis of the pilot warranty clause, and its applicability to the stipulated facts of this case. In view of the Federal Aviation Regulations, which define “ratings” and prescribe the rules for aircraft operation, we believe that our inquiry should be directed to the meaning of the term “the flight” in the pilot clause. Once it is determined what “the flight” was that Rogers and his passengers undertook on December 9, 1972, then whether he was “properly rated” for it may be ascertained by reference to the relevant FARs.

In making our inquiry, we are mindful of the rules of construction set forth in Continental Casualty Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762 (1953). That case stated the rule to be that exceptions and rules of limitation will be strictly construed against the insurer. Further, we must adopt the construction of an exclusionary clause urged by the insured as long as that construction is not itself unreasonable, even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the parties’ intent. Warren, supra, at 763. See also Insurance Co. of North America v. Cash, 475 S.W.2d 912 (Tex.1972). On the other hand, we recognize that these rules of construction will be applied only when the language of the policy is such that it may reasonably be given one of several constructions. Mang v. Travelers Insurance Co., 412 S.W.2d 672, 674 (Tex.Civ.App.1967, writ ref’d). In other words, the plain language of an insurance policy, like that of any other contract, will be given effect when the parties’ intent may be discerned from that language. But when the language of an insurance contract is ambiguous, that is, is subject to two or more reasonable interpretations, then that construction which affords coverage will be the one adopted.

We have concluded that the pilot clause here in issue is ambiguous. One possible construction of the clause finds support in the dissenting opinion in the court of civil appeals below and in Weissman v. Prashker, supra. Under this construction, “the flight” of an aircraft could be viewed as being either a visual flight or an instrument flight, depending on the conduct of the pilot in operating the airplane. If the pilot used only his instruments to maintain the proper attitude, altitude, velocity, navigational course, and other positions of the craft, then “the flight” would be an instrument flight. If, however, the pilot used his* instruments only partially, and used his vision to maintain, for example, the proper attitude of the aircraft, then “the flight” would be a visual one. Under this construction, the weather conditions in which the airplane was being flown would have no bearing on the type of flight that was being conducted. A visual flight could be conducted in zero visibility conditions as long as the pilot was attempting to fly visually, and a pilot without an instrument rating would be “properly rated” for that flight. Conversely, a pilot who was flying by instruments would not be properly rated for his flight unless he possessed an instrument rating.

Other interpretations of the meaning of this pilot clause are also possible if the FARs relating to instrument flight rules and visual flight rules are referred to. For example, the plaintiffs argue that “the flight” may be characterized as either a VFR flight or an IFR flight. They point out that an IFR flight is defined as an “aircraft conducting flight in accordance with instrument flight rules.” See Pilot/Controller Glossary, 1 Airman’s Information Manual 19 (May 1976). They note that FAR Section 91.115 provides that no person may operate an aircraft in controlled airspace under IFR unless he has filed an IFR flight plan. They then argue that because Rogers did not file a flight plan, then “the flight” was not an IFR flight and was, accordingly, a VFR flight.

National’s contention is essentially the converse of the plaintiffs’ argument. It too argues that “the flight” may be either an IFR flight or a VFR flight, but would define a VFR flight as one conducted in accordance with visual flight rules. It would then characterize the operation of an aircraft in violation of the visual flight rules to be an IFR flight, for which a pilot would need an instrument rating in order to be properly rated. Because FAR Section 61.3(e) states that a pilot may not operate an aircraft in IFR weather conditions unless he holds an instrument rating, and because it was stipulated that Rogers operated the plane, and the crash occurred, in IFR conditions, National argues that “the flight” was an IFR flight for which Rogers was not properly rated. A majority of the court of civil appeals adopted this reasoning in holding for National. See 535 S.W.2d at 665.

Still another interpretation of the term “the flight” is that undertaken by the court in King Craft, supra. That court would also characterize the flight as being an IFR flight or a VFR flight, but it characterized the flight as a whole, rather than in segments, as being IFR or VFR. Under the interpretation urged by National, the IFR or VFR status of the flight would change as the pilot entered differing weather conditions; and, therefore, one segment of the entire flight might be an “IFR flight,” whereas another segment of the same flight might be classified as a “VFR flight.” The King Craft court was reluctant to adopt a construction under which insurance coverage would change as the pilot encountered differing weather conditions unless the language of the policy clearly demanded such a result. We, too, are reluctant to adopt such a construction. We also note, as did the King Craft court, that the insurance policy before us defines “in flight” as “the period from the time the aircraft moves forward in taking off or in attempting to take off for air transit, while in the air, and until the aircraft completes its landing and landing run after contact with land or water.” We therefore hold that “the flight,” as used in this pilot warranty clause, refers to the entire time the aircraft is in flight; and “the flight” must be looked at as a whole, rather than in segments, in determining its IFR or VFR character.

The remaining question is whether the flight of the Rogers aircraft in this case was a VFR flight, for which the pilot was properly rated, or an IFR flight, for which he was not. The answer to this question depends on at what point in time the status of the flight should be determined. We have concluded, as did the King Craft court, that the flight should be characterized as of its inception. The weather conditions existing at the beginning of the flight should thus be looked to in determining whether the flight is a VFR or an IFR flight. National argues that the knowledge of the pilot of the weather conditions along his flight path and at his destination should also be considered in characterizing the flight. It argues that if the pilot takes off in VFR weather with knowledge that IFR conditions exist at his destination, then the flight is an IFR flight for which the non-instrument rated pilot is not properly rated. It would distinguish King Craft on the ground that the pilot there did not know that IFR conditions would exist at his destination. A majority of the court of civil appeals below distinguished King Craft on that ground and stated that in this case the pilot knowingly flew into IFR conditions for which he was not properly rated. 535 S.W.2d at 666. The plaintiffs, on the other hand, vigorously contend that it was not stipulated that Rogers knowingly flew into IFR conditions and that the court of civil appeals was erroneous in so concluding. The plaintiffs also argue that the weather forecasts which Rogers received on the morning of the flight show that he fully expected to encounter VFR conditions at Eagle Pass that day.

We are not inclined to consider as controlling the pilot’s knowledge of weather conditions along his flight path or at his destination in characterizing a flight as an IFR or VFR flight. Our reluctance arises from our belief that very few pilots actually know when they take off what weather conditions they will encounter over two hours later. When a pilot begins a flight, he has an expectation of what weather conditions will exist later on during the flight; and this expectation is necessarily based upon his knowledge of the weather conditions existing when he takes off and the forecasts as to how those conditions will change by the time he gets to his destination. An inquiry into a pilot’s knowledge as to the weather conditions he will encounter at his destination, therefore, would in most cases involve questions as to the pilot’s expectations and the reasonableness of those expectations in the face of the weather forecasts he received. Inquiries into the reasonableness of a person’s actions might best be ignored in determining the coverage of an insurance policy designed to protect one from the consequences of one’s own negligence, especially where the language of the policy does not clearly dictate such an inquiry.

Even if the pilot’s knowledge is to be considered in characterizing the flight, the stipulated facts show that Rogers did not know at the flight’s beginning that he would be forced to operate his aircraft under IFR weather conditions. The flight is to be characterized at its inception; therefore, if the pilot’s knowledge is important, the knowledge that he will be flying in IFR weather must exist at the flight’s inception. The weather reports Rogers received before take-off indicated that IFR conditions existed along his flight path and at Del Rio, but the Del Rio terminal forecast forecasted that definite VFR weather would exist at Del Rio at his expected arrival time. The forecast proved to be wrong, and Rogers was negligent in beginning his flight into IFR conditions; but he did not know when he took off that he was flying into IFR weather. Therefore, even if Rogers’ knowledge is relevant in characterizing the flight, as National argues, the facts show that he did not possess the knowledge ascribed to him by the insurer.

Furthermore, the weather conditions existing at the flight’s beginning were definitely VFR conditions. The Midland Air Terminal reported that the ceiling was 25,-000 feet overcast with scattered clouds at 400 and 15,000 feet elevations, and the visibility was estimated to have been four miles. The parties stipulated that the flight began in VFR conditions and that the first one-third of the flight was conducted in VFR weather. We therefore conclude that the flight on which Rogers and his passengers embarked was a VFR flight, and Rogers was properly rated to fly it. The pilot warranty clause did not operate to exclude coverage and National is liable under the insurance policy.

Our holding may seem harsh to the insurer because we have held this insurance policy applicable even though it is undisputed that the non-instrument rated pilot was flying in IFR conditions when the crash occurred. We note that our construction of this pilot clause was necessary, however, only because National chose to phrase the insurance policy in the ambiguous manner heretofore discussed. Language was available to, and known to, National which would have clearly and plainly excluded from coverage a non-instrument rated pilot who operated his aircraft in IFR weather conditions. See Arnold v. Globe Indemnity Co., 416 F.2d 119 (6th Cir. 1969); National Insurance Underwriters v. Matthews, 243 Ark. 26, 418 S.W.2d 391 (1967).

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

Dissenting opinion by SAM D. JOHNSON, J., in which POPE, J., joins.

YARBROUGH, J., not sitting. He was not a member of the Court when the cause was orally argued before this Court.

SAM D. JOHNSON, Justice

(dissenting).

This dissent is respectfully submitted.

On the morning of his fatal flight the pilot called the FAA Flight Service Station in Midland at 7:55. He received information of IFR conditions not only locally but also throughout the entirety of his contemplated flight. By 9:20 a.m., the time of his departure, the local weather had cleared somewhat to VFR conditions. The forecast, however, was for continued IFR conditions throughout most of his flight and at his destination. According to the stipulation the forecast proved accurate for only the first one third of his flight was in VFR conditions. The next one third was in probable IFR conditions and the final one third in definite IFR conditions.

The pilot was rated and qualified for flight in VFR conditions. He was not, however, rated or qualified for flight in IFR conditions. Indeed, it was stipulated that he was negligent in operating the aircraft under conditions requiring instrument pilot rating, in failing to communicate to ascertain weather conditions in the area, in failing to return to the point of his departure or alternative airports where VFR conditions existed, and in flying into an area where the weather was such that IFR flight rules existed with full knowledge of the existing inclement weather conditions.

The essential question posed by the majority is whether the pilot was “properly rated for the flight” that ended in his death and the deaths of his two passengers. The majority first considers “the flight” that was undertaken. Citing National Insurance Underwriters v. King Craft Custom Products, Inc., 368 F.Supp. 476 (N.D.Ala. 1973), aff’d per curiam, 488 F.2d 1393 (5th Cir. 1974), the majority concludes “that ‘the flight,’ as used in this pilot warranty clause, refers to the entire time the aircraft is in flight; and ‘the flight’ must be looked at as a whole, rather than in segments, in determining its IFR or VFR character.” This writer respectfully disagrees. It may well be that under some circumstances a pilot can be “properly rated” for one segment and not another.

The majority next poses its remaining question, “whether the flight of the Rogers aircraft in this case was a VFR flight, for which the pilot was properly rated, or an IFR flight, for which he was not.” The majority then responds to its own question by stating that the answer depends on a particular point in time at which the status of the entire flight will be determined. The majority then concludes that the entire flight will be characterized as of its inception.

It is important to follow the reasoning of the majority: first, in determining the character of the flight as VFR or IFR it will be looked at as a whole; and, second, that determination (of the whole) will be based on the conditions (VFR or IFR) at the inception of the flight only.

The policy, however, defines “in flight” as being from the time the aircraft moves forward in taking off, while in the air, and until the aircraft completes its landing. The policy language makes it clear that the flight contemplated is the entire travel, from the beginning to the end, and that the pilot is therefore required to be properly rated for all segments of the flight. According to the stipulation here, the pilot flew directly into IFR weather, a condition of which he had been advised before the flight began and a condition of which he had full knowledge. Moreover, he voluntarily pursued his flight in IFR conditions rather than turn back and, finally, he crashed disastrously in IFR conditions near Quemado.

Under the circumstances of this case, the pilot was not “properly rated for the flight” and consequently this writer would agree with the majority of the court of civil appeals.

POPE, J., joins in this dissent.

      . The FARs that are referred to in the opinion appear in the 1976 codification of the C.F.R. The substance of these regulations has not been changed since the time of the crash, and we refer to the 1976 codification only for convenience.


source: Caselaw Access Project

author: DENTON, Justice.

license: Public Domain

text:
    Weldon GAY et ux., Petitioners, v. CITY OF HILLSBORO, Texas, Respondent.
    No. B-6094.
    Supreme Court of Texas.
    Jan. 12, 1977.
    Rehearing Denied Feb. 16, 1977.
    Carter, Jones, Magee, Rudberg, Moss & Mayes, Ralph C. Jones, Dallas, for petitioners.
    Naaman, Howell, Smith & Chase, Larry 0. Brady, Waco, for respondent.
   DENTON, Justice.

Petitioners have perfected this appeal from a take nothing summary judgment in this suit for personal injuries against the City of Hillsboro for alleged negligence in failing to keep a street in reasonable repair. The court of civil appeals held that it was the burden of the petitioners to bring forward depositions relied upon by the trial court in granting summary judgment; and that in the absence of the depositions, the court would presume that the omitted depositions establish the correctness of the judgment. 536 S.W.2d 425. We reverse and remand the cause to the court of civil appeals.

The judgment of the trial court reflects it was based on the pleadings, depositions, exhibits and affidavits. Petitioners’ timely request of the transcript to the Hill County District Clerk included the request for the depositions of six named witnesses. A transcript was timely filed in the court of civil appeals on January 23, 1976. During oral argument on April 8, 1976, counsel for appellants, petitioners here, learned that the depositions had not been included in the transcript as requested. On April 15, the court rendered judgment affirming the judgment of the trial court and holding it would presume the omitted depositions established the correctness of the trial court judgment. A motion to amend and supplement the transcript and for leave to file the depositions was filed on April 23. This motion was overruled on April 29. Petitioners’ motion for rehearing, which included an assignment of error on the failure of the court to permit the filing of the amended and supplemental transcript, was also overruled by the court.

Texas Rule of Civil Procedure 428 provides that if anything material to either party is omitted from the transcript or statement of facts, the parties by stipulation, or the trial court or appellate court on a proper suggestion or on its own initiative, may direct a supplemental record to be certified and transmitted by the clerk of the trial court supplying such omitted matter. The rule should be given a liberal construction. Tex.R.Civ.P. 1, 370.

The timely filed request for a transcript included the six depositions at issue. The fact that the district clerk omitted the depositions from the transcript was not known by petitioners’ attorney until the day of oral argument. The court should not impose on petitioners the harsh result of affirmance because it was presumed the omitted depositions established the correctness of the trial court judgment on account of the neglect of the district clerk. The court of civil appeals reached this result without affording petitioners an opportunity to overcome the presumption when it overruled petitioners’ motion to supplement the transcript. It has long been held that where on account of the neglect of the clerk, the record is incomplete so that it failed to show the jurisdiction of the appellate court, the appeal should not be dismissed without giving appellant an opportunity to correct the transcript. Wells v. Driskell, 105 Tex. 77, 145 S.W. 333 (1912); Smirl v. Globe Laboratories, 144 Tex. 41, 188 S.W.2d 676 (1945); Blalock v. Slocomb, 245 S.W. 648 (Tex.Comm’n App.1922, jdgmt. adopted).

Rule 428 authorizes the appellate court to permit or to direct a supplemental record to be prepared and filed. This Court in Barron v. James, 145 Tex. 283, 198 S.W.2d 256 (1946), construed Rule 428 in a case where the court of civil appeals declined to permit petitioners to file a supplemental transcript and statement of facts. The Court held: “We have granted petitioners’ motion filed in this Court for permission to file the supplemental record, which, in our opinion, the Court of Civil Appeals should have permitted them to file.”

We hold the court of civil appeals abused its discretion in overruling the petitioners’ motion to supplement the transcript containing the six depositions timely filed in the trial court.

The judgment of the court of civil appeals is reversed and the cause is remanded to that court for a determination of the merits of the appeal.

YARBROUGH, J., not sitting.


author: GREENHILL, Chief Justice.

text:
    Bernard DODD, Petitioner, v. TWIN CITY FIRE INSURANCE COMPANY, Respondent.
    No. B-6007.
    Supreme Court of Texas.
    Jan. 19, 1977.

      Daves & Rodkin, Larry R. Daves, Tyler, for petitioner.
    William Drew Perkins, Lufkin, for respondent.
   GREENHILL, Chief Justice.

This is a workmen’s compensation case brought by Bernard Dodd for injuries suffered as an employee of Lone Star Phosphate Company [Lone Star Phosphate] which was insured by Twin City Fire' Insurance Company [insurance company].

The insurance company asserted as a defense that Lone Star Phosphate was not the employer of Dodd at the time of the injury. It is contended that at such time, Dodd was a borrowed employee of another company, Texas Farm Products Company [Texas Farm]. Texas Farm is a nonsubscriber under the Workman’s Compensation Act. Texas Farm, was named as an additional defendant in the plaintiff’s petition; but it was not served with citation, did not appear, and was not noticed in the trial or in the judgment rendered by the trial court.

The case was tried to a jury which found that at the time of his injury, Dodd was the employee of Lone Star Phosphate and was not the borrowed employee of Texas Farm.

The trial court rendered a judgment for the plaintiff and against the insurance company on the jury’s verdict. The court of civil appeals reversed. It rendered judgment in favor of the insurance company. 535 S.W.2d 416. That court concluded that as a matter of law, Dodd was an employee borrowed by Texas Farm. The court of civil appeals also found that the trial court intended to and did dispose of all parties legally before it, including Texas Farm, which on its own motion, the Court noticed had been named in the plaintiff’s petition.

As we read the record, there is evidence to support the jury’s findings that Dodd was an employee of Lone Star Phosphate and was not a borrowed employee. Accordingly, we reverse the judgment of the court of civil appeals; and, for reasons later given, we remand the cause to the district court for a new trial. We also hold, as discussed below, that the court of civil appeals was incorrect in its holding that Texas Farm was a party properly before the court.

Two corporations, Lone Star Phosphate and Texas Farm, are owned by the same six people and are located on adjacent lots in Nacogdoches, Texas. They have the same president, secretary and treasurer, personnel manager, and, except for two people, the same board of directors. They occupy the same business office. They are in companion businesses. Texas Farm manufactures fertilizer, and Lone Star manufactures phosphate which is moved next door and becomes a part of the Texas Farm fertilizer. Employees and their foreman had been moved from one company to another, at least on the books; and this is the source of the borrowed servant problem. One man is the supervisor of the laborers at both plants; and as far as Dodd is concerned, the same man was his foreman at both plants.

On Friday, April 13, 1973, Dodd reported to Lone Star Phosphate for his regular shift of common labor which ran from 6:00 a. m. to 2:00 p. m. He began his work on the Lone Star premises and continued the same duties he had performed during his shift the day before, including the painting of one of the buildings. About 9:00 a. m., McShan, Dodd’s foreman, asked Dodd if he would go next door to the Texas Farm premises to move some potash. This involved blasting a sizable amount of potash with dynamite and then moving it with a payloader. Dodd said he would, and he did.

Dodd went to the Texas Farm premises, got 12 sticks of dynamite, and blasted some of the material. He was then directed by McShan to move the material with a “pay-loader.” While he was doing this, about 2000 pounds of a wall of material collapsed, and Dodd was partially buried for an hour and a half.

Our readings of the record convince us that reasonable minds could differ as to whether Dodd had switched, or had been completely switched, from the employment of Lone Star to that of Texas Farm.

In passing upon the question of “no evidence” to support the jury’s findings that Dodd remained an employee of Lone Star and was not the borrowed servant of Texas Farm, the evidence is to be viewed in the light most favorable to the verdict, and evidence contrary to the jury’s verdict is to be disregarded.

The elements of the “borrowed servant doctrine” have previously been established and will not be restated here. One of the basic elements, in the absence of a contractual provision, is which employer has the right to control the manner and details of the employee’s work. J. A. Robinson Sons Inc. v. Wigart, 431 S.W.2d 327 (Tex. 1968); Insurors Indemnity & Insurance Co. v. Pridgen, 148 Tex. 219, 223 S.W.2d 217 (1949).

Dodd had worked at one or the other of these companies for many years. Some 14 years before the accident in question, he had worked for Texas Farm and was carried on its books as an employee. He was transferred to Lone Star Phosphate in 1967; but there was a considerable time lag when he was still carried on the books as an employee of Texas Farm, i. e., in this period, he worked for Lone Star but ,was paid with Texas Farm checks. From this the jury could infer that “the books” of the companies were not always conclusive as to which corporation its employees worked for.

Since 1967, he had been an employee of Lone Star, the company which carried compensation insurance. He had received all his pay checks from Lone Star. His income tax and social security records were carried as a Lone Star employee.

His immediate boss or foreman was Jerry McShan, and this was so whether Dodd worked for Lone Star or Texas Farm. He did whatever McShan told him and was subject to his control. McShan testified that on the day of the injury he [McShan] worked for Texas Farm, — the uninsured corporation; but as will be indicated below, in view of McShan’s testimony and the interlocking workings of the two companies, we are of the view that reasonable minds could differ as to whether McShan had been working on the day of the accident for Lone Star or for Texas Farm. He did testify that “on this particular day,” he was employed by Texas Farm. He also testified that during the last part of March (before the accident on April 13), and during the week of Dodd’s injury, he [McShan] worked at the Lone Star Phosphate plant. McShan apparently made a judgment as to which company Dodd was working for because he made an entry on a time chart as to which “department” Dodd was working for. The time records were not produced at the trial.

In addition to McShan’s being Dodd’s foreman, there was testimony that Dodd’s supervisor, Riddle, was supervisor for both Lone Star and Texas Farm. Riddle had asked McShan to have Dodd go over to do work on the Texas Farm premises.

Dodd had, on several prior occasions, performed services on the premises of Texas Farm while working his regular shift at Lone Star Phosphate. As stated, on all occasions when he worked at Texas Farm, he received his checks from Lone Star. Mr. Beard, personnel director of both companies, testified that the companies had an agreement whereby Texas Farm reimbursed Lone Star for time its employees spent working for Texas Farm. No records were produced to substantiate this testimony, and there was no corroborating proof that Texas Farm actually reimbursed Lone Star on this occasion.

The court of civil appeals placed much emphasis on Dodd’s testimony that “they [Texas Farm] borrowed me up there;” and that from this, it was inferred that Dodd conceded [or judicially admitted] that he was working for Texas Farm as a borrowed servant when he was injured. Dodd, a married man with children and with a 10th grade education, who worked as a laborer for $2.37 per hour, further testified that what he meant was that he was a Lone Star employee, but had been asked to go next door and to work on the premises of Texas Farm, — “but I’m still on Lone Star’s time.” On redirect examination, he made it clear that he did not mean that he was a borrowed servant in a legal sense, if indeed he was capable of forming that correct conclusion upon which the learned courts below disagreed. He insisted that he did not have a contract with Texas Farm, did not agree to become a Texas Farm employee, and did not acquiesce in such change of employers.

It is possible, and legally permissible by the use of corporate veil, for a group of people to operate separate companion corporations and to protect the workers of only one of its “departments” with workman’s compensation. No imputation of improper conduct is intended to be cast here. It is disturbing that it elects not to carry compensation coverage on the part of the operation which engages in the use of dynamite and other dangerous activities, and then “borrows" workmen from its protected department to go do its dangerous work without insurance coverage. It is understandable that the courts would look carefully at such “borrowed servant” operations. The burden of proof here was on the insurance company to prove as a matter of law that Dodd had ceased to be an employee of Lone Star Phosphate and was the borrowed servant, and under the control, of Texas Farm when Dodd was injured. In our opinion, it failed to make such conclusive proof. Stated differently, we hold that there is evidence to support the jury’s finding that Dodd remained the employee of Lone Star, and that he was not the borrowed servant of Texas Farm.

As stated, the court of civil appeals held that there was no evidence to support the jury’s findings in favor of the plaintiff. It also added in its opinion that if the question were reached, it would also hold that the evidence was insufficient to support the findings. This “insufficiency” finding would result in a new trial of the case.

Notwithstanding this additional statement by the court of civil appeals, this Court has the power to remand the cause to the court of civil appeals for it to reexamine its conclusion as to the sufficiency of the evidence. In some instances, there may be good reason to ask the intermediate court to have another look at the case. Calvert and Hatched, Some Problems of Supreme Court Review, 6 St. Mary’s Law Journal 303 at 326 et seq. (1974).

In this particular instance, however, the opinion of the court of civil appeals is adamant as to its evaluation of the record. We think that it would serve no useful purpose to call on that court to review again its opinion as to the sufficiency of the evidence. The judgment of that court will, therefore, be reversed, and the cause remanded to the district court for a new trial. See Stanfield v. O’Boyle, 462 S.W.2d 270 at 272 (Tex.1971).

One other matter remains. The court of civil appeals, on its own motion, noticed that Texas Farm had been named as a defendant; and it presumed that “all parties,” i. e., Texas Farm, had been disposed of by the trial court’s judgment. It cited our opinion in North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966). In the North East case, the defendant Aldridge was served with process, filed an answer, and asserted a cross action. The third party defendant King-O-Hills was also served, and it filed an answer to the cross-action. Both defendants were legally before the court. Our holding was that when a judgment not intrinsically interlocutory in character is rendered, it will be presumed for purposes of appeal that the trial court intended to, and did, dispose of all parties legally before it, and of all issues made by the pleadings between the parties.

North East is distinguishable here. While Texas Farm was named a defendant, it is conceded that it was not served citation; it did not waive service; it did not file an answer or any other type of pleading; it did not appear, and it was not represented by counsel. With admirable candor, the single counsel for the defendant insurance company, told us on oral argument that he did not represent Texas Farm in this case; that indeed he could not, because there was a conflict of interest. The trial court repeatedly referred to “the defendant,” and the judgment clearly recites that “came on to be heard . . . the defendant ” insurance company. The judgment is silent as to Texas Farm, and there are no words such as “and others” or “et al.” to indicate other parties.

Texas Farm was, therefore, not legally before the court. The trial court had no jurisdiction over it, and no judgment could properly have been rendered for or against it. Rule 124, Texas Rules of Civil Procedure; Levy v. Roper, 113 Tex. 356, 256 S.W. 251 (1923).

If we are to presume anything here, it would be that the trial court dismissed Texas Farm from the suit. We would not, on appeal, as in the North East case, presume that the trial court rendered a judgment for or against Texas Farm, and neither could the court of civil appeals. It erred in doing so.

The judgment of the court of civil appeals is reversed, and the cause is remanded to the district court for a new trial.


author: DALLY, Commissioner. ROBERTS, Judge. DOUGLAS, Judge. ODOM, Judge.

text:
    John JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 49782.
    Court of Criminal Appeals of Texas.
    May 7, 1975.
    On State’s Motion For Rehearing Jan. 26,1977.

      James D. Durham, Jr., Amarillo, for appellant.
    Tom Curtis, Dist. Atty., and Russell Busby, Asst. Dist. Atty., Amarillo, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for forgery with the intent to defraud and harm another; the punishment enhanced under the provisions of V.T.C.A., Penal Code Section 12.42(a) is imprisonment for four years. We are presented with interesting and important questions concerning the forgery section of the New Penal Code.

The appellant asserts that V.T.C.A., Penal Code Section 32.21 is unconstitutional because it does not require that a person charged with passing a forged instrument have knowledge that it was forged. The appellant argues that the facts in this case illustrate his position. He says that since the check was passed without being endorsed the jury could have believed the appellant did not know the check was forged, but the jury could have believed that he intended to defraud and harm by passing the check unendorsed. Although we agree and find that Section 32.21 standing alone does not require knowledge that a writing passed is a forged writing, we do not find the section to be unconstitutional for this reason. However, the contention does raise issues that need careful consideration.

V.T.C.A., Penal Code Section 32.21 in pertinent part reads as follows:

“(a) For purposes of this section:
“(1) ‘Forge’ means:
“(A) to alter, make, complete, execute, or authenticate any writing so that it purports:
“(i) to be the act of another who did not authorize that act;
“(ii) to have been executed at a time or place or in a numbered sequence other than was in fact the case; or
“(iii) to be a copy of an original when no such original existed;
“(B) to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A) of this subdivision; or
“(C) to possess a writing that is forged within the meaning of Paragraph (A) with intent to utter it in a manner specified in Paragraph (B) of this subdivision.
“(2) ‘Writing’ includes:
“(A) printing or any other method of recording information;
“(B) money, coins, tokens, stamps, seals, credit cards, badges, and trademarks; and
“(C) symbols of value, right, privilege, or identification.
“(b) A person commits an offense if he forges a writing with intent to defraud or harm another.”

This section unlike the former statutes (Articles 979 et seq. V.A.P.C.) would permit finding a person guilty of an offense for the issuing, transferring, registering the transfer of, passing, publishing, or otherwise uttering a forged writing, even though that person had no knowledge that the writing was forged. The former statutes were held to provide that a person must know the instrument he passed was a forged instrument before he could be found guilty of passing it. E. g., Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972); Haney v. State, 438 S.W.2d 580 (Tex.Cr.App.1969).

For the offense of passing a forged instrument other modern penal codes require that there be knowledge that the instrument is a forgery. The American Law Institute’s Modern Penal Code, Section 224.1 reads:

“(1) Definition. A person is guilty of forgery if, with purpose to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:
“(a) alters any writing of another without his authority; or
“(b) makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or
“(c) utters any writing which he knows to be forged in a manner specified in paragraphs (a) or (b).” (Emphasis added.)

See also N.Y. Penal Law, Sections 170.05-170.30 (McKinney’s Consol.Laws, c. 40); Cal.Penal Code, Section 470 (West); 38 Ill. Ann.Stat., Section 17-3 (Smith-Hurd, Supp. 1974); 18 Pa.Stat.Ann., Section 4101.

In defining the culpable mental states “intentionally or with intent” and “knowingly or with knowledge,” V.T.C.A., Penal Code, Section 6.03 provides:

“(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
“(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.”

When the Penal Code definition of the words “intentionally or with intent” and “knowingly or with knowledge” are considered it cannot be persuasively argued that the use of the words “intent to defraud or harm” used in Section 32.21(b) means that a defendant to be guilty of the offense must have “knowledge” that the writing he passes is a forged writing.

However, we must also consider V.T.C.A., Penal Code, Section 6.02 which provides:

“(a) Except as provided in Subsection (b) of this section, a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.
“(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.
“(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b) of this section, intent, knowledge, or recklessness suffices to establish criminal responsibility.
“(d) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:
“(1) intentional;
“(2) knowing;
“(3) reckless;
“(4) criminal negligence.
“(e) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.”

Section 6.02 provides that even if the definition of an offense does not prescribe a culpable mental state a culpable mental state is required unless the definition of the offense plainly dispenses with a mental state. This section defines four culpable mental states. Two of these mental states, “with intent” and “with knowledge,” have application to the offense of issuing, transferring, registering the transfer of, passing, publishing or otherwise uttering a forged instrument. Unless we assume, and this we are unwilling to do, that a kind of strict liability was intended and that those who pass forged instruments are guilty of an offense even though they have no knowledge that the writing passed is forged, the passing of a forged writing requires two culpable mental states. The defendant to commit the offense of passing a forged writing must pass it with knowledge that it is forged as well as having an intent to defraud or harm. This is plainly required when Sections 6.02, 6.03, and 32.21 are construed together, as they must be.

When Section 32.21 is so construed a serious question is raised concerning the indictment under which this appellant stands convicted. This question, if not sufficiently raised by the appellant’s brief as required by Article 40.09, Section 9, Vernon’s Ann.C. C.P., must be reviewed in the interest of justice under the provisions of Article 40.09, Section 13, V.A.C.C.P.

An indictment that does not allege an offense is fundamentally defective, and a conviction under an indictment that does not allege an offense must be reversed because the conviction is void. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974).

The pertinent part of the indictment in this case alleges that the appellant “ . on or about the 5th day of February, A.D., 1974, ... did then and there with the intent to defraud and harm, forge, by passing to Jerry Haile, a writing as follows: . ” and then a photographic copy of a check appears on the indictment.

This indictment clearly fails to allege that the appellant passed the check knowing that it was forged; it is fundamentally defective.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

OPINION

ON STATE’S MOTION FOR REHEARING

ROBERTS, Judge.

On original submission we held that the forgery indictment in this case was fundamentally defective for failing to allege that the appellant passed the check knowing it was forged. We now conclude that this defect is not a fundamental one which may be raised for the first time on appeal.

The pertinent part of our forgery statute, V.T.C.A., Penal Code, Sec. 32.21, reads as follows:

“(a) For purposes of this section:
“(1) ‘Forge’ means:
“(A) to alter, make, complete, execute or authenticate any writing so that it purports:
“(i) to be the act of another who did not authorize that act;
“(ii) to have been executed at a time or place or in a numbered sequence other than was in fact the case;
“(iii) to be a copy of an original when no such original existed;
“(B) to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A) of this subdivision; or
“(C) to possess a writing that is forged within the meaning of Paragraph (A) with intent to utter it in a manner specified in Paragraph (B) of this subdivision.
“(2) ‘Writing’ includes:
“(A) printing or any other method of recording information;
“(B) money, coins, tokens, stamps, seals, credit cards, badges, and trademarks; and
“(C) symbols of value, right, privilege, or identification.
“(b) A person commits an offense if he forges a writing with intent to defraud or harm another.”

As we observed in our opinion on original submission, this statute, as written, “would permit finding a person guilty of an offense for the issuing, transferring, registering the transfer of, passing, publishing, or otherwise uttering a forged writing, even though that person had no knowledge that the writing was forged.” Ante, at page 773.

The question is, then, does an indictment drafted under the strict language of this statute sufficiently charge an offense? Only if it does not is the indictment fundamentally defective. Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974).

A reading of the statute reveals that it unequivocally prescribes a single culpable mental state for forgery: This is the intent to defraud or harm, which is required by subsection (b) of Section 32.21. See Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App. 1976). Thus, the requirement of V.T.C.A., Penal Code, Sec. 6.02(a) is satisfied on the face of the statute; subsections (b) and (c) of Section 6.02 simply do not apply.

On original submission we held that the culpable mental state “with knowledge” also “had application” to the offense of forgery. We remain convinced of the soundness of this conclusion, since many of the acts which constitute forgery under Section 32.21 imply a requirement of knowledge on the part of the actor that the instrument was forged. However, this culpable mental state is nowhere mentioned in the statute. The issue, therefore, is whether a forgery indictment which does not allege this implied requirement of knowledge is valid.

As we noted in Baldwin v. State, 538 S.W.2d 109, 111 (Tex.Cr.App.1976):

“Ordinarily an indictment which charges an offense in the terms of the statute is sufficient.”

However, it is also well established that:

“It is not always sufficient to follow the language of the statute. There are cases that require greater particularity, either from the obvious intention of the Legislature or from the application of known principles of law.” 1 Branch’s Ann.P.C., 2d ed., Sec. 514, p. 496.

See also Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973) (case 1); Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975); Page v. State, 532 S.W.2d 341 (Tex.Cr.App.1976).

It seems clear from an examination of our new Penal Code that the Legislature was very much aware of the concept of culpability and the delineation of four carefully defined culpable mental states; in fact, this is one of the major changes in our new Code. See the Practice Commentary to V.T.C.A., Penal Code, Sec. 6.03, and see, V.T.C.A., Penal Code, Sec. 1.07(a)(13); Art. 21.15, V.A.C.C.P., as amended; Art. 37.-09(3), V.A.C.C.P., as amended. This legislative awareness is seen in the forgery statute as well, as we have noted, in the fact that the intent to defraud or harm is made an essential part of the offense. From this we must infer that if the Legislature had desired to make knowledge an essential part of the definition of forgery, it would have done so with clarity and certainty.

Thus, we can conclude, first, that the Legislature did not intend to include knowledge that the instrument was forged an essential element of the offense of forgery, and, second, that legislative intent does not provide a requirement that the State allege such knowledge in an indictment.

The remaining question is whether “known principles of law” require that the State allege that the accused possessed such knowledge. In answering this question we turn first to Section 224.1 of the Model Penal Code, which was relied upon and reproduced in the opinion on original submission. A careful reading of subsection (1) of Section 224.1, as well as subsection (l)(a) and (l)(b) thereunder, makes it clear that one may be guilty of forgery under the Model Code if he has the “purpose to defraud or injure” or if he has “knowledge that he is facilitating a fraud or injury to be perpetrated by anyone.”

It follows that under the Model Code knowledge is not an essential element of forgery if there is a purpose to defraud or injure.

On original submission we also relied upon 18 Pa.Stat.Ann., Section 4101 — the Pennsylvania forgery statute. Section 4101 follows Section 224.1 of the Model Code almost word for word: The only significant difference between the two is that the Pennsylvania statute substitutes the word “intent” for “purpose” in the first subsection of the statute. Therefore, as is the case with the Model Code, the Pennsylvania forgery statute does not make knowledge an essential element of the offense.

The California and New York forgery statutes — both cited in our original opinion — appear to require an element of knowledge in some instances, but not in others, while the Illinois statute — also cited in the original opinion — requires both knowledge and an intent to defraud in all cases.

From this mixed group of statutes we cannot conclude that known principles of law require knowledge as an essential element of the offense where there is alleged an intent to defraud.

Therefore, we hold that an indictment or information for forgery which fails to allege knowledge as an essential element is not fundamentally defective.

However, because knowledge that the instrument is forged is an element which is strongly implied in the statutory definition of forgery, we hold that its absence in an indictment is a matter which may be raised by a motion to quash, but may not be raised for the first time after trial has commenced. See and compare Melley v. State, 93 Tex.Cr.R. 522, 248 S.W. 367 (1923); Shipley v. State, 84 Tex.Cr.R. 278, 208 S.W. 342 (1919).

This indictment alleges the offense in the language of the statute, including the requisite intent. There was no motion to quash the i: ndictment. Therefore, the failure to allege knowledge is not before us on appeal.

Next, we turn to the grounds of error raised in appellant’s brief. A summary of the facts is necessary to a discussion of these grounds.

Omitting the formal parts, the indictment alleges that on February 5, 1974, in Potter County, Texas, John Jones did then and there “with intent to defraud and harm, forge, by passing to Jerry Haile, a writing as follows:

“AND AFORESAID do further present that pri- or to the commission of the aforesaid offense by the said John Jones, to-wit, on the 6th day of September, A.D., 1968, in the 47th District Court of Potter County, Texas, in cause number 13480 on the docket of said court, the said John Jones under the name of John Arthur Jones, was duly and legally convicted in said last named court of a felony, to-wit: Assault With Intent to Murder Without Malice, upon an indictment then legally pending in said last named court and of which said court had jurisdiction; and said conviction was a final conviction and was a conviction for an offense committed by him, the said John Jones, prior to the commission of the offense hereinbefore THE GRAND JURORS him as set forth in the first paragraph hereof . . charged as

The State’s first witness was Jerry Don Hale, the owner and operator of a liquor store in Potter County. He testified that on February 5, 1974, the appellant entered his store and, in exchange for liquor and cash, gave him the check which is reproduced in the indictment. The check was not endorsed.

D. M. Newton testified that he was a partner in Greater Southwest Enterprises and that in the early part of 1974 he had hired appellant to stack lumber. The appellant worked for one day, and Newton paid the appellant for his work in cash at the end of that day. Newton testified that the appellant agreed to work the next day but did not appear. Newton identified the check passed to Jerry Don Hale as one of his company’s checks, but denied that the signature at the bottom of the check was his and also denied that he had authorized anyone to sign his name for him on the company’s checks. He also testified that the company’s checks were ordinarily signed by him and his partner (and brother) C. E. Newton, with his partner signing the first of the two signature lines.

Newton then testified that he was told by the secretary at the Midland National Bank that the check had been passed. At that time he looked in his checkbook and found that three checks, including the one passed by appellant, were missing. He stated that he always kept the checkbook in his pickup and that the appellant had been in the pickup on the day that appellant worked for Newton. He also stated that on one occasion that day the appellant (along with another temporary worker) had been alone in the pickup while Newton was not present inside the pickup.

Finally, Newton testified that he never gave a check, “payroll or otherwise,” to the appellant.

Appellant’s first contention is that the evidence is insufficient to show that C. E. Newton, D. M. Newton’s partner, did not sign the check. Appellant argues that C. E. Newton, as a partner, had authority to bind the partnership and could have signed D. M. Newton’s name to the check. C. E. Newton did not testify.

D. M. Newton’s unequivocal testimony that no one had authority to sign his name to the checks of Greater Southwest Enterprises is sufficient to show that C. E. Newton did not have this authority. See Rice v. State, 484 S.W.2d 589 (Tex.Cr.App.1972); Ware v. State, 475 S.W.2d 282 (Tex.Cr.App. 1972). Cf. Reed v. State, 533 S.W.2d 35 (Tex.Cr.App.1976). Appellant’s contention is overruled.

Appellant next contends that because the instrument was not endorsed, it could not be passed as a forged instrument. The forgery statute, V.T.C.A., Penal Code, Sec. 32.21, is set out on the first page of this opinion and will not be reproduced here.

The testimony of D. M. Newton was sufficient to show, as required by subsection (a)(l)(A)(i) of Section 32.21, that the check was made so that it purported to be his act and that he did not authorize that act. Hale’s testimony was sufficient to show, as required by subsection (a)(1)(B) of Section 32.21, that the check was passed. Hale’s inadvertent failure to require an indorsement is neither significant nor relevant in establishing the offense charged. This contention is overruled.

Appellant next contends that the forgery statute is unconstitutional and in violation of due process because it does not require knowledge that the instrument was forged. Our forgery statute requires that: “A person commits an offense if he forges a writing with intent to defraud or harm another.” Y.T.C.A., Penal Code, Sec. 32.-21(b). This is sufficient to establish mens rea and thereby to satisfy due process in this regard. See V.T.C.A., Penal Code, Sec. 6.02(e), as well as the Practice Commentary to Section 6.02, and see King v. State, 519 S.W.2d 651, 652 (Tex.Cr.App.1975), where it is stated that “the gravamen of forgery offenses is the intent to injure or defraud.” Appellant’s contention is overruled.

Finally, appellant contends that he is entitled to credit for time he served in jail after his arrest but prior to sentencing. The State agrees, citing Art. 42.03, Sec. 2, Vernon’s Ann.C.C.P. (as amended, effective August 27, 1973).

Section 2 of Article 42.03 now provides:

“In all criminal cases the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, from the time of arrest and confinement until his sentence by the trial court.” (Emphasis added.)

The statute is mandatory. Guerra v. State, 518 S.W.2d 815, 817 (Tex.Cr.App.1975).

Appellant was sentenced on June 20, 1974, after the effective date of the amendment to Section 2 of Article 42.03. The record reflects that the trial judge refused to give the appellant credit for any time he spent in jail prior to sentence. The sentence must be reformed to show that credit is given for time spent in jail after he was arrested. Art. 42.03, Sec. 2, supra; Guerra v. State, supra.

However, the record does not clearly reflect when the appellant was arrested in this cause. This date must be determined in the trial court upon receipt of this Court’s mandate, after which appellant shall be given credit from that date as required by Article 42.03, Section 2. See Guerra v. State, supra, at note 4.

The State’s Motion for Rehearing is granted. As reformed, the judgment is affirmed.

CONCURRING OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

I concur in the affirmance of the conviction, but would hold that the indictment is sufficient under the forgery statute even if there had been an exception to or motion to set aside the indictment.

The indictment alleges, in part, that “John Jones * * * on or about the 5th day of February, A.D., 1974, with intent to defraud and harm, forge, by passing to Jerry Haile, a writing as follows: . . .” A copy of the check followed that allegation.

V.T.C.A., Penal Code, Section 32.21, Forgery, provides, in part, as follows:

“(a) For purposes of this section:
“(1) ‘Forge’ means:
“(A) to alter, make, complete, execute, or authenticate any writing so that it purports:
“(i) to be the act of another who did not authorize that act;
“(B) to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A) of this subdivision; . ..”

The statute does not require knowledge that the instrument passed was forged. It does provide that the passing or transfer of a forged instrument comes within the definition of forgery. A person commits an offense under Section 32.21(b), supra, if he forges a writing with intent to defraud or harm another.

The Legislature was within its authority in defining the offense and repealing the forgery statutes in the former Code. It has provided that it is unlawful to pass an instrument that is forged with intent to defraud even though the person passing the instrument is unaware that it is forged provided that he intends to defraud with that instrument. This is the wrongful conduct that the Legislature has the authority to penalize. There is no need, cause or justification to add an element to the offense not provided for in the statute.

A culpable mental state of intentional passing is alleged in the indictment when it alleged the act with “intent to defraud and harm.” This complies with Y.T.C.A., Penal Code, Sections 6.02 and 6.03.

In Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App.1975), it was contended that a burglary indictment did not allege that the act was knowingly and intentionally done. The indictment alleged in part that “. Teniente did then and there with intent to commit theft, enter a habitation without the effective consent of Carlos Reyna, the owner.” This Court noted that the gist of the offense of burglary was entry of the habitation with the requisite intent and upheld the indictment. In the present case the gist of the offense is to pass a written instrument with intent to harm or defraud. There is no need for an allegation that he knowingly passed a forged instrument with intent to defraud. This would be like requiring an allegation that he intentionally intended, or that he knowingly intended, to pass the instrument.

It should be noted that an act done intentionally or with intent is one committed with the highest culpable mental state prescribed by the penal code. Knowledge or the lack thereof may become a legitimate factor in the proof of lack of intent to defraud.

This Court should not use or add prior laws as a part of the new statute. Article 996 of the 1925 Penal Code required knowledge that an instrument was forged before one could be convicted as passing a forged instrument. That statute was expressly repealed by the new penal code.

Y.T.C.A., Penal Code, Section 1.03(a), provides:

“(a) Conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute.”

The indictment alleges an offense under the forgery statute.

DISSENTING OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

I dissent to the majority’s disposition of this case. In my opinion knowledge that the instrument was forged is an essential element of forgery under the mode of prosecution in this case. In the absence of such a requirement, the innocent passing of a forged check received in payment is a felony even if the recipient has no knowledge that the check was forged. I dissent to such a construction of Y.T.C.A., Penal Code Sec. 32.21, and adhere to the reasoning set out in the Court’s opinion on original submission.

Furthermore, I observe that the new plurality asserts, “[T]he Legislature did not intend to include knowledge that the instrument was forged an essential element of the offense of forgery,” and then, in contradictory fashion, later pronounces, “[K]now-ledge that the instrument is forged is an element which is strongly implied in the statutory definition of forgery. . . .” This new element, according to the plurality, suddenly arises upon a motion to quash. Such knowledge either is an element or is not an element; there is no middle ground. I dissent to the plurality s internal contradictions as well as its ultimate disposition of the issue.

ONION, P. J., joins in this dissent.

      . We realize that the Legislature intended to create some offenses without clearly and certainly prescribed culpable mental states. V.T. C.A., Penal Code, Secs. 6.02(b), 6.02(c). However, because the Legislature did include a culpable mental state within the definition of forgery, it affirmatively omitted forgery from this class of offenses.

        . California Penal Code, Section 470 (West), reads as follows:
      “Every person who, with intent to defraud, signs the name of another person, or of a fictitious person, knowing that he has no authority so to do, to, or falsely makes, alters, forges, or counterfeits, any charter, letters patent, deed, lease, indenture, writing obligatory, will, testament, codicil, bond, covenant, bank bill or note, post note, check, draft, bill of exchange, contract, promissory note, due bill for the payment of money or property, receipt for money or property, passage ticket, trading stamp, power of attorney, or any certificate of any share, right, or interest in the stock of any corporation or association, or any controller’s warrant for the payment of money at the treasury, county order or warrant, or request for the payment of money, or the delivery of goods or chattels of any kind, or for the delivery of any instrument of writing, or acquittance, release, or receipt for money or goods, or any acquittance, release, or discharge of any debt, account, suit, action, demand, or other thing, real or personal, or any transfer or assurance of money, certificate of shares of stock, goods, chattels, or other property whatever, or any letter of attorney, or other power to receive money, or to receive or transfer certificates of shares of stock or annuities, or to let, lease, dispose of, alien, or convey any goods, chattels, lands, or tenements, or other estate, real or personal, or any acceptance or indorsement of any bill of exchange, promissory note, draft, order, or any assignment of any bond, writing obligatory, promissory note, or other contract for money or other property; or counterfeits or forges the seal or handwriting of another; or utters, publishes, passes, or attempts to pass, as true and genuine, any of the above-named false, altered, forged, or counterfeited matters, as above specified and described, knowing the same to be false, altered, forged, or counterfeited, with intent to prejudice, damage, or defraud any person; or who, with intent to defraud, alters, corrupts, or falsifies any record of any will, codicil, conveyance, or other instrument, the record of which is by law evidence, or any record of any judgment of a court or the return of any officer to any process of any court, is guilty of forgery.”

      . New York Penal Law, Sections 170.05-170.30 (McKinney), are as follows:
      “§ 170.05 Forgery in the third degree
      A person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument.
      Forgery in the third degree is a class A misdemeanor.
      “§ 170.10 Forgery in the second degree
      A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:
      1. A deed, will, codicil, contract, assignment, commercial instrument, or other instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status; or
      2. A public record, or an instrument filed or required or authorized by law to be filed in or with a public office or public servant; or

        3. A written instrument officially issued or created by a public office, public servant or governmental instrumentality; or
      4. Part of an issue of tokens, public transportation transfers, certificates or other articles manufactured and designed for use as symbols of value usable in place of money for the purchase of property or services; or
      5. A prescription of a duly licensed physician or other person authorized to issue the same for drug or any instrument or device used in the taking or administering of drugs for which a prescription is required by law.
      Forgery in the second degree is a class D felony.
      “§ 170.15 Forgery in the first degree
      A person is guilty of forgery in the first degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:
      1. Part of an issue of money, stamps, securities or other valuable instruments issued by a government or governmental instrumentality; or
      2. Part of an issue of stock, bonds or other instruments representing interests in or claims against a corporate or other organization or its property.
      Forgery in the first degree is a class C felony.
      “§ 170.20 Criminal possession of a forged instrument in the third degree
      A person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument.
      Criminal possession of a forged instrument in the third degree is a class A misdemeanor. “§ 170.25 Criminal possession of a forged instrument in the second degree
      A person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in section 170.-10.
      Criminal possession of a forged instrument in the second degree is a class D felony. “§ 170.27 Criminal possession of a forged instrument in the second degree; presump-tioh
      A person who possesses two or more forged instruments, each of which purports to be a credit card, as that term is defined in subdivision seven of section 155.00, is presumed to possess the same with knowledge that they are forged and with intent to defraud, deceive or injure another.
      “§ 170.30 Criminal possession of a forged instrument in the first degree
      A person is guilty of criminal possession of a forged instrument in the first degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in section 170.15.
      Criminal possession of a forged instrument in the first degree is a class C felony.”

      . The Illinois forgery statute, found at 38 Ill. Ann.Stat., Section 17-3, reads as follows:
      “§ 17-3. Forgery
      (a) A person commits forgery when, with intent to defraud, he knowingly:
      (1) Makes or alters any document apparently capable of defrauding another in such manner that it purports to have been made by another or at another time, or with different provisions, or by authority of one who did not give such authority; or
      (2) Issues or delivers such document knowing it to have been thus made or altered; or
      (3) Possesses, with intent to issue or deliver, any such document knowing it to have been thus made or altered.
      (b) An intent to defraud means an intention to cause another to assume, create, transfer, alter or terminate any right, obligation or power with reference to any person or property.
      (c) A document apparently capable of defrauding another includes, but is not limited to, one by which any right, obligation or power with reference to any person or property may be created, transferred, altered or terminated.
      (d) Sentence.
      Forgery is a Class 3 felony.”

      . The complainant’s name is spelled Hale in the transcription of the court reporter’s notes.

      . Newton “thought” that the “exact day” was February 4, 1974, but was not completely certain.


author: ONION, Presiding Judge.

text:
    Richard McCONATHY, Appellant, v. The STATE of Texas, Appellee.
    No. 52983.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1976.

      Kerry P. Fitzgerald, Dallas, for appellant.
    Henry Wade, Dist. Atty. and Harry J. Schulz, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a final judgment forfeiting a bail bond in the amount of $200.00.

The record reflects that on May 26, 1975 the principal on the bond, Ricky Brandenburg, was arrested for driving a motor vehicle on a public highway while intoxicated. On the same date he posted a $200.00 bail bond with the appellant McConathy as surety.

On February 6, 1976 appellant signed a printed form designed for use in the County Criminal Court of Dallas County which waived trial by jury and “any delay in sentencing.” On the same day he entered a plea of guilty to the charge against him. While there is no statement of facts in the record as to the guilty plea, the docket sheet reflects that Brandenburg “2-6-76 . waived trial by jury, entered plea of guilty and waived delay in sentencing, Judgment of Court is Guilty as charged and assessed defendant sentenced to confinement in the County Jail for 3 days and a fine of $150.00 plus costs of court, /s/ Ben Ellis, Judge.”

It appears that the trial judge struck the words “sentenced to” in the rubber stamp form used to make the docket entry and wrote in ink the word “assessed.”

On the same date (February 6, 1976) Brandenburg filed a motion for new trial. On February 26,1976 the appellant filed an amended motion for new trial. Such motion was overruled by operation of law on March 17, 1976, twenty days after it was filed. See McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App.1976); Morgan v. State, 519 S.W.2d 449 (Tex.Cr.App.1975); Chappell v. State, 519 S.W.2d 452 (Tex.Cr.App. 1974); Eastwood v. State, 538 S.W.2d 107 (Tex.Cr.App.1976); Morton v. State, 502 S.W.2d 121 (Tex.Cr.App.1973); St. Jules v. State, 438 S.W.2d 568 (Tex.Cr.App.1969). On March 18, 1976 the court entered a judgment nisi forfeiting the bail bond when, as the State contends, the principal Brandenburg did not appear for sentencing. On May 28, 1976, after a hearing, the judgment nisi was made final.

A sentence is required to be imposed in misdemeanor cases where confinement in jail is part of the possible punishment. See Article 42.02, Vernon’s Ann.C. C.P. Even though the amended motion was overruled by operation of law, sentencing was a “subsequent proceeding had relative to the charge.” See Article 17.09, Vernon’s Ann.C.C.P. In light of the terms of the bail bond in question and provisions of Article 17.09, supra, quoted above, the principal Brandenburg was required to be present at the sentencing on March 18, 1976 as it was a “subsequent proceeding had relative to the charge.” See and cf. McCallum v. State, 411 S.W.2d 361 (Tex.Cr.App.1967); McConathy v. State, 528 S.W.2d 594 (Tex. Cr.App.1975). Appellant’s liability as surety on the bond would not be discharged until the sentence had been imposed and no notice of appeal is given.

Appellant first argues that his liability was discharged and terminated on February 6, 1976, when the principal Brandenburg “was finally convicted and sentenced.” There is nothing in the record to show that Brandenburg was sentenced on February 6, 1976, the date of his guilty plea, or that he has ever been sentenced. It is true that he signed a printed form jointly waiving trial by jury and “any delay in sentencing” prior to the entry of his guilty plea. First, it is observed that waiver of the time (10 days) in which to file a motion for new trial or in arrest of judgment would be premature prior to trial. See and cf. Ex parte Dickey, 543 S.W.2d 99 (Tex.Cr. App.1976).

It does not appear, however, that the court considered the waiver, for no sentence was pronounced. The principal-defendant Brandenburg obviously did not consider he was bound by such waiver, for he filed his original motion for new trial on the same day as the guilty plea. We reject the claim that Brandenburg was “finally convicted and sentenced on February 6, 1976.”

In the alternative, the appellant contends the court erred in entering a final judgment regarding the forfeiture of the bail bond because his liability was discharged on March 17, 1976, when the principal-defendant’s amended motion for new trial was overruled as there was no subsequent proceeding authorized absent the filing of a notice of appeal. In view of what has been said previously about the necessity of sentencing, a subsequent proceeding following the overruling of a motion for new trial, appellant’s contention is without merit. The judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

In our opinion on original submission, we stated:

“Appellant first argues that his liability was discharged and terminated on February 6, 1976, when the principal Brandenburg ‘was finally convicted and sentenced.’ There is nothing in the record to show that Brandenburg was sentenced on February 6, 1976, the date of his guilty plea, or that he has ever been sentenced.”

By supplemental transcript, the appellant has now brought forward certified copies of the judgment and sentence entered against the principal-defendant Brandenburg on February 6/1976, and reurges that his liability as surety was discharged at that time. As discussed in the opinion on original submission, the principal-defendant Brandenburg executed a “waiver of delay of sentencing” before he entered a plea of guilty. The waiver was premature and ineffective. Ex parte Dickey, Tex.Cr.App., 543 S.W.2d 99; Bailey v. State, Tex.Cr. App., 543 S.W.2d 653. In the absence of any other showing that the principal-defendant validly waived the 10 days for filing a motion for new trial or motion in arrest of judgment after conviction, the sentence entered on February 6, 1976, was not valid. Thus, the hearing on March 18, 1976, for the purpose of imposing sentence was a subsequent proceeding under Art. 17.09, V.A.C.C.P., and at the time appellant’s liability as surety on the bond in question had not been discharged.

Appellant’s motion for rehearing is overruled.