text:
    John POLLOCK, Appellant, v. Honorable Greer DOWELL, Tamera Ann Pollock and Carrie Ann Pollock, a minor, Appellees.
    No. 20064.
    Court of Civil Appeals of Texas, Dallas.
    June 11, 1979.

      Dennis Schwartz, Crowder & Mattox, Dallas, for appellant.
    Craig Fowler, Dallas, for appellee.
    Before GUITTARD, C. J., and CARVER and STOREY, JJ.
   CARVER, Justice.

This is a proceeding on a petition for writ of mandamus in which relator asks that the Honorable Greer Dowell, Judge of the 302nd District Court in Dallas County, Texas, be commanded to rescind his order dismissing that part of a divorce suit relating to the conservatorship of the parties’ minor child and to proceed to trial and final judgment in the cause. Two issues are presented. First, does the court of civil appeals have jurisdiction to issue mandamus? Second, did the trial court have jurisdiction of the conservatorship issue? We answer both issues in the affirmative, and we grant relator’s petition for writ of mandamus.

John Pollock, relator, and Tamera Ann Pollock, respondent, were married in 1974. In 1978, relator filed a petition in the 302nd District Court of Dallas County for divorce and asked that he be named the temporary managing conservator of the parties’ minor child. Respondent was served with process in Indiana where she was visiting her parents. Faced with the prospect of divorce, she testified she then decided to remain in Indiana. Respondent answered the Texas suit and filed a cross-petition asking for a divorce and that she be appointed as the child’s temporary managing conservator. The respondent did not file a special appearance under Tex.R.Civ.P. 120a. In September, 1978, the Texas court entered an order appointing the respondent temporary managing conservator and relator temporary possessory conservator. In February, 1979, respondent filed in Indiana virtually the same suit as her Texas cross-petition. Relator moved to dismiss that suit and the Indiana court granted relator’s motion on March 30,1979. On March 23,1979, respondent filed a motion in the Texas court to dismiss the issue in regard to conservator-ship. The Texas court granted respondent’s motion. It is the dismissal of the conserva-torship issue that relator complains of in his petition for writ of mandamus.

With respect to the first issue, we find that this court does have jurisdiction to hear the petition for writ of mandamus. As a general rule, a court of civil appeals may issue a writ of mandamus to correct an order of the trial court refusing to take jurisdiction of a claim if that refusal was based on an erroneous theory of law. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823 (1961); Boswell, O’Toole, Davis & Pickering v. Stewart, 531 S.W.2d 380 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ); McGregor v. Clawson, 506 S.W.2d 922 (Tex.Civ.App.—Waco 1974, no writ); Rushing v. Bush, 260 S.W.2d 900 (Tex.Civ.App.—Dallas 1953, writ dism’d). Here, the trial judge dismissed the part of the case dealing with conservatorship. Tex.Fam.Code Ann. § 3.55(b) (Vernon 1975) clearly states:

If the parties are parents of a child, as defined in Section 11.01 of this code, and the child is not under the continuing jurisdiction of any other court under Section 11.05 of this code, the suit for divorce, annulment, or to declare the marriage void, must include a suit affecting the parent-child relationship under Subtitle A, Title 2, of this code. [Emphasis added.]

Because it is undisputed that the parties are the parents of the child in question, the terms of this statute are clearly mandatory. Consequently, the conservatorship issue must be entertained by the trial court. The order of dismissal was based on the erroneous theory that the court had no jurisdiction over the child.

With respect to the second issue, respondent claims that section 3.55(b) is not applicable to this suit since the child no longer resides in Texas, but is now domiciled in the state of Indiana. Respondent’s reliance on this theory is misplaced as the residence of the child is irrelevant when the suit affecting the parent-child relationship is initially filed as a part of the divorce action under section 3.55(b). Brown v. Brown, 566 S.W.2d 378, 380 (Tex.Civ.App.—Corpus Christi 1978, no writ). Moreover, the child was not a resident of Indiana at the time the suit was filed. By respondent’s own admission, her residence in that state, and, consequently, the child’s residence, was not established until after the date the original petition was filed and she was served with process. Since the Texas court had jurisdiction when the suit was filed, that jurisdiction could not be defeated by the subsequent actions of the parties.

In the present case we have no reason to suppose that the district judge will fail to reinstate the conservatorship issue for trial upon the receipt of this opinion. For this reason, a preemptory writ of mandamus will be issued only in the event that the trial judge should not proceed to trial as anticipated. The writ of mandamus is conditionally granted.

      . Since respondent failed to file a special appearance, she submitted herself to the jurisdiction of Texas courts. Webb v. Webb, 582 S.W.2d 168 (Tex.Civ.App.—Beaumont, 1979).


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    Bob BULLOCK, Comptroller of Public Accounts, et al., Appellants, v. TEXAS SKATING ASSOCIATION et al., Appellees. Bob BULLOCK, Comptroller of Public Accounts, et al., Appellants, v. ESCOBEDO ENTERPRISES, INC., d/b/a Bridgeport Ballroom, Appellees.
    Nos. 12894, 12900.
    Court of Civil Appeals of Texas, Austin.
    June 13, 1979.
    Rehearing Denied July 11, 1979.

      John L. Hill, Atty. Gen., Austin, for appellants in both cases.
    R. L. Lattimore, Asst. Atty. Gen., Austin, for appellants in 12894.
    Myra A. McDaniel, Asst. Atty. Gen., Austin, for appellants in 12900.
    Donald W. Ray, Ray & Wood, Austin, for appellees in 12894.
    George G. Potts, Claude R. Wilson, Jr., H. David Herndon, Golden, Potts, Boeckman & Wilson, Dallas, for appellee in 12900.
   O’QUINN, Justice.

Appeals in these two causes, on motion of appellee in Cause No. 12,900, were consolidated and heard for submission and oral argument on the same day. Both suits attack validity of admission taxes levied under Article 21.02, Title 122A, Taxation-General, V.A.T.S.

Escobedo Enterprises, Inc., doing business as Bridgeport Ballroom, went to trial in district court on its Fifth Amended Petition in Cause No. 12,900. This plaintiff brought suit under Article 1.05, Title 122A, Taxation-General, to recover admission taxes, paid under protest, on its operation of a ballroom during specified tax periods of 1976 and 1977. The principal basis for protest was the claimed invalidity of Article 21.02(4) because it was in violation of provisions of the Constitution of Texas and of the Constitution of the United States.

After trial before district court without a jury, the court found that Article 21.02(4), levying admission taxes on dance halls, night clubs, and other like places of amusement, violated Sections 1 and 2, Article VIII, of the Constitution of Texas and the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. The court awarded Escobe-do Enterprises recovery of $4,366.40 in taxes paid under protest.

We will reverse judgment of the trial court and render judgment that Escobedo Enterprises take nothing by its suit.

Texas Skating Association, Luther Bernstein and Ernest L. Pruett, appellees in Cause No. 12,894, brought their suit in 1974 as a class action “. . . on behalf of themselves and others similarly situated who are owners of roller skating rinks located in the State of Texas.” The principal complaint made by plaintiffs, as operators of roller skating rinks, is grounded on a claim that the statute “is arbitrary and discriminatory in that roller derby contests [emphasis added] are operated as businesses in substantially the same manner in which said plaintiffs operate,” and are not included in the tax statute.

The State contended below and contends on appeal that plaintiffs in this suit failed to obtain legislative consent to sue the State and may not maintain this action without consent, granted either by specific or general permission of the Legislature.

Trial before district court resulted in conclusion of the trial court that Article 21.-02(2) “is violative of Article VIII, Section 2, of the Constitution of Texas” and therefore “held to be unconstitutional, void and of no force and effect.”

We will reverse judgment of the trial court and render judgment that plaintiffs take nothing by their suit.

The main thrust of the taxpayers’ attack on validity of the admissions tax statutes stems from the legislative history of Article 21.02 and ease law affecting the statute from its inception to the present time.

Admissions taxes in general were levied initially by statute in 1936 with passage of certain “omnibus tax measures” to “. . provide, in part, for payment of old age assistance benefits . . . ” (Acts 1936, 44th Leg., 3rd C.S., p. 2040, ch. 495, Article III, sec. 6, eff. Oct. 31, 1936). From the Act of 1936 the present admissions tax statutes were codified in 1959 under Chapter 21 of Title 122A, Taxation-General. (Acts 1959, 56th Leg., 3rd C.S., p. 187, ch. 1).

Article 21.01 and its predecessor statutes provided that every person, firm, association, or corporation owning or operating any place of amusement charging an admission price, including certain specified types of such places, “shall file with the Comptroller” certain reports and pay to the Treasurer “a tax in rates and amounts as hereinafter provided.” The taxes referred to in Article 21.01 are imposed under provisions of Article 21.02, which, as enacted in 1959 and amended through 1969, provided in the sections pertinent to issues in these appeals the following:

“(1) There is hereby levied a tax of one cent (1$) on each ten cents (10$) or fractional part thereof paid as admission to entertainments such as motion pictures, operas, plays and like amusements held at places other than at a fixed and regularly established motion picture theater, where the admission charged is in excess of fifty-one cents (51$) per person.
(2) There is hereby levied on each admission to entertainments such as motion pictures, operas, plays and like amusements held at a fixed or regularly established motion picture theater, where the admission charged is in excess of One Dollar and Five Cents ($1.05) and not more than One Dollar and Fifteen Cents ($1.15) a tax of one cent (1$); and where the admission charged is in excess of One Dollar and Fifteen Cents ($1.15) a tax of two cents (2$) plus one cent (1$) on each ten cents (10$) or fractional part thereof in excess of One Dollar and Twenty-five Cents ($1.25).
(3) There is hereby levied a tax of one cent (1$) on each ten cents (10$) or fractional part thereof paid as admission to horse racing, dog racing, motorcycle racing, and like mechanical or animal contests and exhibitions, except automobile racing.
(4) There is hereby levied a tax of one cent (1$) on each ten cents (10$) or a fractional part thereof paid as admission to dance halls, night clubs, skating rinks, and any and all other like places of amusements, contests, and exhibitions where the admission charged is in excess of fifty-one cents (51$).”

In 1962 the Supreme Court held that levy of a tax on admissions to places “other than at a fixed and regularly established motion picture theater,” when admission exceeded fifty-one cents per person, was not a reasonable and valid classification when compared to no tax levied on entertainments at regularly established theaters unless the amount charged exceeded $1.05. Calvert v. McLemore, 163 Tex. 562, 358 S.W.2d 551 (1962). Thereafter district courts in Travis County, in cases not appealed, held that the levy on regularly established motion picture theaters was discriminatory and therefore invalid under the reasoning in McLemore. The Supreme Court pointed out in McLe-more, “It is essential . . . that there be a reasonable basis for the classification,” but the classification by which the Legislature sought to make a difference between “the same picture or play” exhibited to similar audiences in regularly established theaters and in places other than established motion picture theaters constituted “. . . discrimination is too plain to admit of argument . . .” (358 S.W.2d 553). The place of exhibition did not justify the classification.

In 1975 the Legislature amended paragraphs (2), (3), and (4) of Article 21.02. We are concerned here only with amendments to paragraphs (2) and (4), the net effect of which was to transfer skating rinks from paragraph (4) to paragraph (2), leaving the stated subjects in paragraph (4) as dance halls, night clubs, and any and all other like places of amusements, contests and exhibitions. (Acts 1975, 64th Leg., p. 2307, ch. 719, eff. Sept. 1, 1975). By such transfer the Legislature applied a tax rate to skating rinks different from the rate theretofore applied.

Escobedo Enterprises argues at length that as paragraph (4) of Article 21.02 now stands, “. . .it taxes virtually only one amusement — ballrooms—when it was intended to tax all amusements and, therefore, is unreasonable, arbitrary and discriminatory.” (Emphasis by taxpayer). It is argued that the statute therefore violates Article VIII, Sections 1 and 2, of the Constitution of Texas and contravenes the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. Section 1 of Article VIII requires that taxation be “equal and uniform,” and Section 2 prescribes that “[a]ll occupation taxes shall be equal and uniform.”

We regard it as well established in law that various businesses or occupations, such as in this case amusements, may be further divided by the Legislature for tax purposes according to the particular classes of amusements in which they engage. That principle was stated by the Supreme Court as early as 1907 in Texas Co. v. Stephens, 100 Tex. 628, 103 S.W. 481, 485 (1907). “The considerations upon which such classifications shall be based,” the Supreme Court stated, “are primarily within the discretion of the Legislature. The courts, under the provisions relied on, can only interfere when it is made clearly to appear that an attempted classification has no reasonable basis in the nature of the business classified, and that the law operates unequally upon subjects between which there is no real difference to justify the separate treatment of them undertaken by the Legislature. This is the rule applying both to state and federal Constitutions, and it has been so often stated as to render unnecessary further discussion of it.” (103 S.W. 485).

The principles found in Stephens were applied later in sustaining the chain store tax, and even though the classification inherently contained “some element of arbitrariness,” the Court stated, “To strike down the act we must hold that the Legislature acted arbitrarily or capriciously.” Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d 896, 903 (Tex.Comm’n App.1937, opinion adopted). The Court concluded: “The lines must be drawn somewhere, and the authorities above cited hold that the determination of where to draw them is for the Legislature and not for the courts.” (110 S.W.2d 903).

Escobedo Enterprises insists that the tax on admissions to ballrooms is invalid because the Legislature failed to tax all amusements, even though by general language in Article 21.01 the Legislature spoke of “every person,” or other entity, required to file certain reports with the Comptroller, and thereafter in Article 21.02 specified only certain named amusements out of the myriad of amusements which might be taxed. This argument fails under the rule of Stephens, that “The mere fact that discrimination is made proves nothing against a classification which is not, on its face, an arbitrary, unreasonable, or unreal one.” (103 S.W. 485). The Supreme Court of the United States stated in 1937, “A legislature is not bound to tax every member of a class or none.” Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 509, 57 S.Ct. 868, 872, 81 L.Ed. 1245 (1937). The Supreme Court of Texas rejected contention of the taxpayer in 1969 that since Article 21.01 created but one classification [“any place of amusement which charges a price or fee for admission”] any attempt by the Legislature thereafter to impose a different tax upon various members of the amusements class would be unconstitutional and void. Dancetown, U. S. A., Inc. v. State, 439 S.W.2d 333, 335 (Tex.Sup.1969). The contention thus made by Escobedo Enterprises is overruled as without merit.

It is also contended by the taxpayer that to tax skating rinks at a rate lower than the tax rate on ballrooms constitutes discrimination. We have examined the record with care and we conclude that Escobe-do Enterprises has failed under its burden to demonstrate that the classification of ballrooms under Article 21.02(4), at one tax rate and skating rinks under paragraph (2) of the statute at a lower rate, results in discrimination and unequal treatment sufficient to invalidate the statute. The Supreme Court of the United States stated the rule, also applied by the courts of this state, that, “The burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Madden v. Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84 L.Ed. 590 (1940).

The reasoning behind this principle is more fully developed in this Court’s opinion in American Transfer and Storage Company v. Bullock, 525 S.W.2d 918, 924-926 (Tex.Civ.App. Austin 1975, writ ref’d). There it was pointed out that in Madden, the Supreme Court observed that, “ ‘. . .in taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes.’ ”

We have no difficulty in perceiving differences between ballrooms and skating rinks to constitute a valid basis for separate classifications by the Legislature. Escobe-do Enterprises contends that the Legislature, in moving skating rinks in 1975 from prior classification and an identical tax rate with ballrooms to a separate classification and a lower tax rate, created an arbitrary and unreasonable classification in violation of constitutional safeguards against unequal treatment.

The record shows that the Legislature might reasonably have determined in 1975 that the characteristics of skating rinks had changed sufficiently since 1936 to justify a different and lower rate for skating rinks which would be more equitable. Evidence was introduced showing that skating rinks two to three decades prior to 1975 drew their patronage in the main from young adults, whereas in more recent years youngsters of preschool age through junior high school age are the principal patrons. Hours and days of operation have changed to accommodate the younger groups. The principal competition of skating rinks in recent years comes from carnivals, movies, and football games, certainly not from night clubs and ballrooms. An amusement shown to be a favorite with school children, where, as in this record, it is shown that the skating rinks on occasions are rented for private parties, principally by churches, where alcoholic beverages are not served and drinking is discouraged, is an amusement so plainly distinguishable from ballrooms and nightclubs, a matter adult citizens, including judges of courts, are able to notice without extensive proof, that the essential difference becomes sufficiently apparent to negative any claim of unreasonable and arbitrary classification. The Supreme Court observed in Dancetown, “The statute [Article 21.02] does operate unequally upon the several classes, but the power of the Legislature to classify for purposes of taxation is quite broad.”

We are bound to employ the test that a statute should be deemed constitutional if there is any basis that could have seemed reasonable to the Legislature. Clark v. Finley, 93 Tex. 171, 54 S.W. 343, 346 (1899); Gerard v. Smith, 52 S.W.2d 347, 350 (Tex.Civ.App. El Paso 1932, writ ref’d); San Antonio Retail Grocers v. Lafferty, 156 Tex. 574, 297 S.W.2d 813, 815 (1957). Summaries of other decisions in which classification of business and occupations has been considered by Texas courts are to be found in Dancetown, 439 S.W.2d 337, col. 1; and in Horton v. Cook, 538 S.W.2d 221, 224, col. 1 (Tex.Civ.App. Austin 1976, writ ref’d n. r. e.).

Escobedo Enterprises further urges that those portions of Article 21.02 remaining after other parts were held to be unconstitutional are not properly severable and cannot be regarded as valid because their survival alone was not intended by the Legislature. The Act by which Article 21.02 came into being as law contained a severability clause, which the Supreme Court has recognized as an important factor, although “by no means all-controlling.” Harris County Water Control and Improvement District v. Albright, 153 Tex. 94, 263 S.W.2d 944, 947 (1954). In that case the test stated is that the remaining portion of the statute will be held separable “. . . unless it appears that the legislature would not have enacted the section without the offending provision, or that the remainder does not present an independent, complete and workable whole without it.” (263 S.W.2d 947, col. 1).

We find this contention of the taxpayer without merit. Article 21.02 was reviewed by the Supreme Court in Dance-town, where a similar contention was made, and long after the Court had held part of the statute unconstitutional in Calvert v. McLemore, supra. Upon examining the remaining portions of the statute, the Court in Daneetown said, “From a reading of the statutes and in view of the severability clause enacted as part of [the Act] . it is our opinion that the invalidity of Paragraph 1 does not affect the other provisions or Articles 21.01 and 21.02.” (439 S.W.2d 336). To this the Court later added, “Even if the effect and application of Paragraph (5) were so uncertain as to render the same invalid, that would not affect the remainder of the statute.” (439 S.W.2d 337, col. 2).

On appeal Escobedo Enterprises filed its motion to dismiss the appeal by the State on the ground that the Attorney General brought the appeal “against the instructions of the Comptroller . . . and the Attorney General refuses to dismiss the Appeal even though instructed to do so by the Comptroller . . . ” We dismiss the motion as without merit.

The Attorney General is a defendant in suits of this type in the same manner that the Comptroller and the Treasurer are jurisdictional parties, although the State of Texas is the actual party in suit to recover taxes. Escobedo Enterprises argues that the Comptroller, in the exercise of his administrative duties, such as tax refunds, can bring litigation to a halt at any time.

In this suit the Comptroller obviously exercised his administrative discretion and rejected request for refund of taxes paid under protest; otherwise there would have been no litigation. Thereafter, upon filing of suit, the Comptroller’s statutory powers ended. In matters of litigation the Attorney General is the officer authorized by law to protect the interests of the State, and even in matters of bringing suit the Attorney General “must exercise judgment and discretion, which will not be controlled by other authorities;” Charles Scribner’s Sons v. Marrs, 114 Tex. 11, 262 S.W. 722, 727 (1924); Lewright v. Bell, 94 Tex. 556, 63 S.W. 623 (1901). It was within discretion of the Attorney General, not that of the Comptroller, to decide whether to appeal a case in which the State had experienced an adverse judgment in the trial court. In such matters the Attorney General, not the Comptroller of Public Accounts, is authorized to perform the duties of the State’s attorney. The motion to dismiss the appeal is overruled.

Having disposed of the issues in Cause No. 12,900 on appeal, we turn to further examination of appeal in No. 12,894, in which Texas Skating Association, Luther Bernstein and Ernest D. Pruett were plaintiffs below and are appellees in this Court.

This action named as defendants three individual public officials who, at the time of filing the petition, held the offices of Comptroller, Treasurer, and Attorney General of the State of Texas, and also are the same officers required to be sued in any suit to recover admissions taxes paid under protest. Thus it appears that plaintiffs sought to bring their action against individual officers, although specifically identified in the petition with the respective offices held by these officials. Such identity as officers of the State was established also by stipulation of the parties in district court.

Plaintiffs went to trial on their First Amended Original Petition, in which they prayed that “. . . the Court decree that Article 21.02(2) ... is unconstitutional and void in its application to said Plaintiffs in that it invidiously discriminates against Plaintiffs in violation of Article VIII, Sections 1 and 2 of the Texas Constitution . . . ” Prior pleadings and prayer for injunctive relief were abandoned.

Defendants excepted to plaintiffs’ petition on the ground that on its face the petition showed “. . . that it is a suit brought against the State of Texas, as the real party in interest, without showing permission of the State to be sued.”

The record in this case contains no statement of facts. The transcript shows that plaintiffs alleged that the State officers named as defendants “. . . have threatened that any failures of Plaintiffs to comply with reporting, filing and paying taxes imposed . . . will bring down upon plaintiffs action by said defendants in the courts of . Texas to prevent the continuance of business by plaintiffs and for the enforcement of provisions of Art. 21.03 and 21.04 ... by criminal prosecution.”

The stipulations entered into at trial show that the officers who are defendants “. . .in the exercise of governmental authority, are charged with adherence to, and the enforcement, execution, and administration of the taxation laws of the State of Texas.” As noted above, plaintiffs abandoned their original pleadings and prayer for injunctive relief against threatened action, if any, by the defendants.

The record does not disclose that plaintiffs as taxpayers complied with statutes requiring payment under protest of taxes due before filing suit. (Arts. 1.05, Title 122A, Taxation-General, and 7057b, V.A.T. S.). Plaintiffs brought this suit, as pointed out earlier, as a class action, on behalf of themselves and others similarly situated who are owners of roller skating rinks. Under Article- 7057b, Section 2, as amended in 1939, a class action may be brought under prescribed circumstances, but “A class action shall include any suit filed by any two or more persons, firms, corporations or association of persons who have paid under protest such taxes . . .” referred to under Section 1 of the statute. (Emphasis added).

Stipulations of the parties in the main supply facts designed to support the class action nature of this suit by agreement, for example, that there are some 200 owners of roller skating rinks, operating in cities throughout the state, and that the statute complained of applies to them as well as to plaintiffs. The stipulations to some extent describe the characteristics of roller skating rinks and how they operate and, in comparison, the nature and manner of operation of businesses, other than plaintiffs’, to “exhibit contests between two professional teams of skaters,” known as “roller derby events.”

The parties stipulated that “Defendant Bob Bullock does not require owners of roller derby events to report and pay admissions tax when a general admission is charged by a roller derby in excess of $1.05.” The parties agree that the Attorney General in a written opinion has held that roller derby events or contests are not made taxable under the statute imposing admissions taxes.

We are aware of the established case law that suit against the State may not be maintained without consent of the State, granted by its legislative body, either by general law, by resolution, or by bill enacted in specific instances. State v. Isbell, 127 Tex. 399, 94 S.W.2d 423 (1936). We conclude that this suit is not an action against the State in the sense prohibited by the settled principle of law that the State may not be sued without its consent.

This is not a suit to impose liability on the State or to compel performance of a contract; it is not in essence a suit to recover money from the State, or by judgment to put a charge upon the treasury of the State; the purpose of this suit is not to control action of the officers acting within powers conferred on them by law, as neither injunctive relief nor mandamus is sought. Nor do the provisions of Article 7057b, V.A.T.S., referred to earlier, furnish an adequate and exclusive remedy. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712-13 (1945). This is an action in substance to obtain judgment declaring that plaintiffs are wrongfully and without constitutional authority placed under a tax statute which defendants may not lawfully enforce.

A comparable situation was considered by this Court in Majestic Industries, Inc. v. St. Clair, 537 S.W.2d 297, 300 (Tex.Civ.App. 1976, writ ref’d n. r. e.), where it was held that it is not a function of the Legislature, by giving or withholding its consent, to determine whether its mandate conforms to the Constitution, but rather that such function rests solely with the courts.

We overrule the contention of appellants that the trial court was without jurisdiction to consider the merits of this case because it is a suit brought against the State without proper consent.

We now consider the merits of the cause which rests mainly on the contention, in brief, that Article 21.02(2) is “violative of Article VIII, Section. 2 of the Constitution of Texas.” Stated in more detail, the taxpayers contend the statute is void because (1) “of the inadequacy of its own provisions by virtue of inartful and unconstitutional drafting of the major portion of the statute” or (2) “on the theory that the statute discriminates against Appellees because it is incapable of constitutional interpretation and administration because skating rinks and roller derby rinks must fall within the same constitutional classification, yet the clear and plain language of the statute applies the tax only upon skating rinks.”

We interpret this language to mean that the taxpayers insist the statute is unconstitutional because (1) all amusements in the state are not taxed but only such amusements as are named in paragraphs (2), (3), (4) of Article 21.02; and because (2) operators of “roller derby contests” were omitted from the statute imposing a tax on roller skating rinks.

For the reasons stated in disposition of Cause No. 12,900 on appeal, we hold that failure to include all amusements in the state within tax provisions of the statute does not render the statute void.

The second ground urged by appel-lees, that the statute is void because roller derby contests were not included in the statute and taxed equally with roller skating rinks, appears to rest on the further contention that no valid difference exists between the two operations. Stipulations of the parties show that skating rinks are operations in which participants pay to skate and spectators may refrain from skating, or for another fee may also skate; whereas roller derby contests are exclusively for spectators and no persons other than the contestants are permitted to skate. These differences alone would afford sufficient ground for separate classification by the Legislature, and equally permit the inclusion of one business without including the other. This conclusion is based upon reasons already stated in- disposition of Cause No. 12,900.

We reverse judgment of the trial court in Cause No. 12,900 on appeal and render judgment that appellee, plaintiff below, take nothing by its suit.

We reverse judgment of the trial court in Cause No. 12,894 on appeal and render judgment that appellees, who were plaintiffs below, take nothing by their suit.


author: J. CURTISS BROWN, Chief Justice.

text:
    W. H. O’BRYAN et al., Appellants, v. COUNTY OF HARRIS, Appellee.
    No. A2144.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    June 13, 1979.
    Rehearings Denied July 11, 1979.

      Joel D. Sherlock, Jr., Houston, for appellants.
    Joe Resweber, County Atty., Paul R. Bibler, Jr., Asst. County Atty., Houston, County of Harris, for appellee.
    Before BROWN, C. J., and COULSON and MILLER, JJ.
   J. CURTISS BROWN, Chief Justice.

W. H. O’Bryan and other landowners (appellants) appeal from the denial by the trial court of their bill of review in an eminent domain proceeding. In 1977 Harris County filed a petition to condemn approximately two and one half acres of appellants’ land for use as a public park. Special commissioners were named and a hearing was held on October 11, 1977, at which Mr. O’Bryan was present. An award in the amount of $22,500.00 was filed by the commissioners on November 2, 1977, on which date a postcard notice was mailed to O’Bryan. This notice was received on November 21, nineteen days later, and advised him that the award had been filed and that the landowners had until the first Monday after twenty days to file objections in order to preserve their right to appeal the award. O’Bryan mailed his objection to the award by certified mail on November 23, and it was received by county authorities on November 29, one day after the last day to file such objections. The County then moved to have the award entered as the judgment of the court, since no objections had been timely filed. This was done on January 13, 1978.

Appellants filed a bill of review alleging that they had a meritorious defense to the condemnation proceeding, and that they were prevented from filing their timely objections by acts of Harris County, the special commissioners, and the trial court. The trial court on its own motion severed the trial into two parts, the compliance with the bill of review requirements and, conditioned on the outcome of that, the trial on the merits of the claim for compensation. The trial court then found that appellants had failed to show the elements necessary for relief by bill of review. This appeal followed.

Appellants first contend that there exists in the eminent domain procedure in Texas a “lack of due process for failure of notice sufficient to inform the Defendants of the date the award of special commissioners was filed,” a date which initiates the statutory time period during which objections must be filed. Appellants further urge that they were deprived of due process in that the postcard notice they did receive was insufficient to allow a reasonable opportunity to appeal the award of the commissioners in a trial de novo.

The Texas Supreme Court considered a similar claim in Dickey v. City of Houston, 501 S.W.2d 293 (Tex.Sup.1973). That court, after examining the notice requirements of the eminent domain statutes, and the appellant’s challenges thereto, stated:

There is no merit in this contention. The record shows that petitioners were duly notified of and appeared at the commissioners’ hearing. It was then their duty to take cognizance of the subsequent acts of the commissioners. They were chargeable with notice that it was the duty of the commissioners to make an award and return it as provided by law, and that the judge would cause it to be entered in the minutes as the judgment of the court unless timely objections were filed.

501 S.W.2d at 294 (emphasis added).

We are bound by the supreme court’s determination that procedural due process is satisfied by notice to the con-demnee oí the original hearing. Further, appellants did actually receive notice of the award by mail a full week before their objections were due, and are therefore not in a position to claim that they were harmed by the absence of a statutory notice requirement. Accordingly we overrule appellants’ first and second points of error.

However, this court has previously expressed a concern that the absence of a provision requiring notice to the condemnee of the award presents a serious due process question. We said:

[W]here one’s rights to property may be substantially affected by his failure to object to an award filed with a court in a condemnation proceeding, and where the statutory period for making objections to the award runs from the time of the filing of the award, and further, where no notice of the filing of the award is required to be given and none is given the one whose property is in issue, the requisites of procedural due process would not appear to be satisfied.

Dickey v. City of Houston, 494 S.W.2d 648, 649-50 (Tex.Civ.App.—Houston [14th Dist.] 1973), affirmed, 501 S.W.2d 293 (Tex.Sup.1973). This is particularly true in the absence of a mandatory time frame within which the commissioners must make their award. Despite the language of the supreme court, we remain unconvinced, in light of recent United States Supreme Court holdings in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), and the line of cases following, that the statutory scheme of condemnation in Texas provides a fair and realistic opportunity for the condemnee to learn of the award and preserve his right to appeal.

Appellants next urge that it was error for the trial court to overrule their bill of review. Appellee responds, correctly, that appellants have failed to meet the requirements set out in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950) and Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240 (Tex.Sup.1974). These two cases were both appeals from judgments in judicial proceedings and therefore, unlike the present case.

The supreme court has spoken in two cases involving bills of review in condemnation proceedings. Rose v. State of Texas, 497 S.W.2d 444 (Tex.Sup.1973); Dickey v. City of Houston, 501 S.W.2d 293 (Tex.Sup.1973). In Rose the court stated that a bill of review “will lie to correct a judgment upon proof of fraud, accident, or mistake; . ” 497 S.W.2d at 446, and then proceeded to approve the reformation of a judgment which was incorrect due to a mutual mistake of the parties. In Dickey the court stated that a bill of review does lie from a judgment entered on the commissioners’ award, but must contain allegations of fraud, accident, or mistake, and purport to invoke the equitable powers of the court. Further, in Petro-Chemical the court stated that the Hagedorn rule was “entirely sound as applied to a defendant who suffered a default judgment after proper personal service of citation, but it does not govern the disposition of all bill of review cases.” 514 S.W.2d at 244. From a reading of these three cases we believe that the Hagedorn prerequisites for relief by a bill of review are not applicable to the facts in the case before us, that is, a ministerial entry of judgment in an administrative proceeding, and that the appellants are entitled to relief if they can show either fraud, accident, or mistake in the proceedings below.

The judgment states that no objections were timely filed to the award. We find that the objections of appellants were timely filed, and that therefore the trial judge was mistaken in entering judgment as he did.

W.e believe that the principle enunciated by the supreme court in Ward v. Charter Oak Fire Insurance Company, 22 Tex.S. Ct.J. 184 (January 13, 1979) applies to this case. That case involved the filing of objections to an award by the Industrial Accident Board. Ward, the injured employee, mailed her objections by first class mail on July 12, six days before the expiration of the statutory period. Due to post office error the notice was received on July 20, two days after the expiration of the statutory period. The court noted that previously section 5 of article 8307, Tex.Rev.Civ. Stat.Ann., had been strictly construed to mean that in such a situation the notice provision had not been complied with, the rationale being that the United States Post Office was the sender’s agent and therefore its negligence was attributable to the sender.

The court then stated that this construction would lead to “a harsh and inequitable result,” since Ward had employed “a method of giving notice that is almost universally recognized” by “[depositing] her notice of intention to appeal in the mail at a time when it should have reached the Industrial Accident Board within twenty days of the Board’s ruling.” 22 Tex.S.Ct.J. at 185. Then, in order to avoid such a harsh result, the .court stated:

We . . . conclude that if the notice of intention to appeal from a ruling of the Industrial Accident Board is sent to the Board by first-class United States mail in an envelope or wrapper properly addressed and stamped, and the notice is deposited in the mail one day or more before the expiration of the twenty-day statutory period and received by the Board not more than ten days after the expiration of the statutory period, then the notice shall be deemed timely filed. In the interest of uniformity, this construction . . coincides with the notice provisions of Rule 5 of the Texas Rules of Civil Procedure.

22 Tex.S.CtJ. at 185.

As under the worker’s compensation law, the right to appeal in a condemnation case is an inherent part of the process contemplated by the statute. While the Ward holding expressly applied to cases arising under the worker’s compensation statutes, we believe the principle enunciated there to be broad enough to extend to other types of cases wherein a statutory time period is imposed in which it is necessary to file objections to the actions of a board or commission in order to preserve the right to appeal.

Here appellant O’Bryan sent his objection by certified mail on July 23, five days prior to the expiration of the statutory period. It was received on July 29, one day after such period, thus falling squarely within the Ward principle. The objection therefore was timely filed, and the trial court mistakenly entered judgment in accordance with the award.

We hold that this mistake was sufficient to constitute grounds for bill or review under the Rose and Dickey cases, supra. We therefore reverse and remand this case to the trial court.

Reversed and remanded.

      . While it is not clear that an actual severance was made, the record does show that the final judgment entered was intended to dispose of the entire case.


author: BISSETT, Justice.

text:
    C. F. BEAN CORPORATION, Appellant, v. Feliciano RODRIGUEZ et al., Appellees.
    No. 1431.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 13, 1979.
    James W. Wray, Jr., Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appellant.
    William R. Edwards, Edwards & Perry, Corpus Christi, for appellees.
   OPINION

BISSETT, Justice.

The controlling question presented by this appeal is whether a conditional tender by the defendant of the full amount of a prior judgment (under the circumstances existing) with interest thereon to date of tender stopped the running of interest on the judgment, although the judgment did not become final until the mandate from the Supreme Court was issued at a later date. We answer that question in the negative.

In the instant case, C. F. Bean Corporation, plaintiff herein, sought 1) a declaratory judgment that the judgment rendered on April 7, 1976, hereinafter referred to as the “prior judgment,” was satisfied in full, both as to principal and interest, when the tender was made on April 22,1976, and 2) a permanent injunction against Feliciano Rodriguez, his attorneys, and the Sheriff of Nueces County, defendants, enjoining execution on the prior judgment. Following a trial before the court on June 22, 1978, judgment was signed on October 6, 1978, which denied the plaintiff all relief sought by it, and decreed that the amount of $55,-592.88, theretofore paid by the plaintiff to the defendant Feliciano Rodriguez be applied first to payment of interest on the prior judgment for the period April 7, 1976, through June 20,1978, and next to principal “as partial satisfaction of the principal of such judgment.” Plaintiff has appealed. We affirm.

The case before us in this appeal was precipitated by judgment rendered by the District Court of Nueces County, Texas, in the case of Rodriguez v. B-R Dredging Co., 552 S.W.2d 601 (Tex.Civ.App.). C. F. Bean Corporation is the successor in interest of B-R Dredging Co., defendant in the first case. The jury returned a verdict of $150,-000.00 in damages in Rodriguez v. B — R Dredging Co., but the trial court rendered judgment in favor of Rodriguez for the reduced amount of $55,388.02 on the basis of contributory negligence findings made by the jury. On April 22,1976, fifteen days after such judgment was rendered on April 7, 1976, B-R Dredging Co. tendered payment of $55,592.88 (the amount of such judgment with interest through April 22, 1976), conditioned that Rodriguez would sign a full release and abandon his appeal. Because Rodriguez believed that the tender had unacceptable conditions attached thereto, it was rejected. Subsequently, Rodriguez timely perfected an appeal to this Court, which reversed and rendered judgment for him in the sum of $150,000.00. See Rodriguez v. B—R Dredging Co., Inc., 552 S.W.2d 601 (Tex.Civ.App.—Corpus Christi 1977). However, the Supreme Court reversed this Court and reinstated the judgment as originally rendered by the trial court. See B—R Dredging Co. v. Rodriguez, 564 S.W.2d 693 (Tex.1978).

The mandate of the Supreme Court was issued on May 22, 1978. C. F. Bean Corporation (the successor in interest to B — R Dredging Co.) paid Rodriguez $55,592.88 (the amount of the prior judgment plus interest thereon to April 22, 1976) on June 21, 1978. This payment was accepted by Rodriguez as a partial payment on the judgment, without relinquishing any claim he might have to the amount of interest which might have accrued subsequent to April 22, 1976.

Thereafter, Rodriguez caused to be issued a writ of execution to enforce the judgment. This suit was filed on June 21, 1978, to enjoin Rodriguez’ efforts to recover any amount on the judgment and interest thereof in excess of $55,592.88 on the ground that the tender of that sum of money on April 22,1976, stopped the running of interest as of that date, and, therefore, the payment by C. F. Bean Corporation to Rodriguez of $55,592.88 on June 21, 1978, completely satisfied the prior judgment. The trial court, in the judgment in this case, in effect, denied these contentions.

Rodriguez and his attorneys, defendants-appellees, contend in this appeal that the offer of payment of the prior judgment, made on April 22,1976, was conditioned on: 1) the execution of a full release in satisfaction of judgment; and 2) abandonment of the appeal of the prior judgment. C. F. Bean Corporation, plaintiff-appellant herein, on the other hand asserts in its brief:

“Rodriguez’ problem with accepting payment of the judgment lies not in the fact that he would have been required to acknowledge satisfaction of the judgment, or even to abandon his appeal, but rather lies in the fact that if he voluntarily accepts the benefits of a judgment, he cannot thereafter prosecute an appeal, whether or not he acknowledges satisfaction of judgment.”

A tender, to be effective, must be legally valid; it must be unconditional; it is without legal effect if it is accompanied by conditions which the debtor has no right to impose. Baucum v. Great American Insurance Co. of New York, 370 S.W.2d 863 (Tex.1963); Plasky v. Gulf Insurance Company, 160 Tex. 612, 335 S.W.2d 581 (1960).

The burden of proving a valid tender is on the party asserting it. Rozelle v. First Nat. Bank in Dallas, 535 S.W.2d 768 (Tex.Civ.App.—Waco 1976, writ ref’d n. r. e.); Business Aircraft Corp. v. Electronic Commun., Inc., 391 S.W.2d 70 (Tex.Civ.App.—San Antonio 1965, writ ref’d n. r. e.).

Plaintiff-appellant, in points 1 and 2, asserts that the trial court erred 1) in refusing to enter a declaratory judgment that the prior judgment in 552 S.W.2d 601 (Tex.Civ.App.). “Rodriguez v. B-R Dredging Co.,” was satisfied in full both as to principal and interest,” on April 22, 1976, when the tender was made; and 2) in refusing to permanently enjoin the defendants-appel-lees from causing a writ of execution to issue on the prior judgment in the prior cause. The points cannot be sustained.

The only evidence in the record which relates to whether the tender in question was unconditional appears in the testimony of Mr. William R. Edwards, an attorney for Rodriguez and a defendant-appellee herein, who testified:

“It was my understanding that my client (Rodriguez) would not get the money unless he was willing to sign a full release and satisfaction of judgment and abandon his appeal.”
******
“. . . [djiscussion ensued about the fact that we would have been expected to abandon our right of appeal and quit as of the time of tender if we were going to get the money. And Mr. Dyer (an attorney for B-R Dredging Co.) agreed that that was the essence of the tender.”

Mr. Edwards’ testimony was not contradicted by any other witness.

We believe that Fields v. Texas Emp. Ins. Ass’n, 565 S.W.2d 327 (Tex.Civ.App.—Amarillo 1978, writ ref’d n. r. e.) is squarely in point. There, Fields, the insured workman in a workman’s compensation case, appealed from a judgment that was rendered in his favor on March 9, 1977. Thereafter, on March 25, 1977, the insurance company tendered into the registry of the trial court the full amount of the judgment with interest thereon to date of tender. The judgment of the trial court was affirmed. By cross point the insurance company contended that Fields was not entitled to interest on the judgment from and after May 25, 1977. The Amarillo Court of Civil Appeals overruled the cross point for the reason:

“. . . [Tjexas Employers’ tender, by its terms, is conditioned on settlement of the litigation, avoidance of further contentions . . Such a conditional tender is not a valid payment of the judgment in full, and it should not stop the running of interest on a judgment being appealed.”

We follow the holding of the Fields case in disposing of the issue relating to interest presented by this appeal. We hold that the tender made by B-R Dredging Co. on April 22, 1976, was not unconditional. Points 1 and 2 are overruled.

The plaintiff-appellant further claims that the trial court erred in decreeing that the payment of $55,592.88 be applied first to payment of interest on the prior judgment for the period April 7,1976, through June 20, 1978, and the balance as partial satisfaction of the principal of such judgment.

It is argued that “the defendants in this case asked for no such relief,” and that portion of the judgment “is not supported by pleading.” The record is otherwise. Defendants-appellees, in paragraph IX of their original answer, their live pleading, alleged:

“The sum of Fifty-five Thousand Five Hundred Ninety-two Dollars and Eighty-eight Cents ($55,592.88) must be applied first to accrued interest and then to principal due.”

Point of error 3 is overruled.

The judgment if the trial court is AFFIRMED.


author: YOUNG, Justice.

text:
    HOUSE OF FALCON, INC., Appellant, v. Jose H. GONZALEZ et al., Appellees.
    No. 1435.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 13, 1979.

      H. H. Rankin, Jr., Kirk L. James, Rankin, Kern, Martinez & Jones, McAllen, for appellant.
    A. A. Munoz, II, Atlas, Hall, Schwarz, Mills, Gurwitz & Bland, McAllen, for appel-lees.
   OPINION

YOUNG, Justice.

House of Falcon, Inc. sued Jose H. Gonzalez, Lillie A. Gonzalez and Bego Enterprises, Inc. for royalty payments which purportedly accrued on an open account after the reproduction of certain musical compositions. Defendants denied these allegations and further asserted that the statute of limitations barred the plaintiff’s claim. Recognizing that the limitations period for its claim had run, the plaintiff contended that the defendants had later acknowledged the barred debt; that the plaintiff was a third party beneficiary of a contract between the defendants and third parties; and that plaintiff could bring this action as the assignee of the same third parties’ right to sue the defendants. The case was submitted to the trial court without a jury on an agreed statement of facts. The trial court found that the limitations defense did bar the appellant’s cause of action and entered a take nothing judgment against the plaintiff. See Tex.Rev.Civ.Stat.Ann. art. 5526(5) (1958). Plaintiff appeals. We affirm.

The agreed statement of facts indicates the following facts and circumstances. Ramms Music Company was a division of House of Falcon, appellant. Ramms began licensing Bego Enterprises, Inc., sometime prior to January 1, 1969, to publish certain musical compositions. During the period from January 1, 1969, to October 4, 1970, Bego reproduced several compositions and consequently publisher royalties accrued to Ramms on an open account. The royalties were due on or before thirty days after the termination of each quarter of the year for records produced during that quarter. The parties agreed that the unpaid royalties for the period from January 1, 1969, through October 24, 1970, amounted to $7,500.00.

On November 17, 1970, the appellees sold all of the assets of Bego Enterprises, Inc. to Royalco International Corporation and Ar-noldo Ramirez. Section 2(f) of the contract for the sale between appellees and Royalco provided:

“Sellers agree to be responsible for all personal and company income taxes, sales and general taxes due to city, county, state and federal governments and for all royalties owing to composers, publishers and/or publishers agents under mechanical licenses, and does hereby agree to indemnify and hold Buyers harmless from any liability, obligation, cost or expense arising out of or related to any action for the collection of any of the said items that accrued prior to October 24, 1970. However, after October 24, 1970, Buyers will be responsible for any such payment due therefore.”

The present cause of action was filed on November 6, 1974, and the plaintiff’s original petition was thereafter amended several times. Then .in March of 1975, Royalco assigned to House of Falcon all rights and causes of action it had against the appellees under the contract of November 17,1970, in consideration for, among other things, the House of Falcon’s agreeing to refrain from suing Royalco for royalties due. Subsequently, in March of 1976, House of Falcon purchased all the assets of Royalco.

House of Falcon made numerous demands upon the appellees for payment of the royalties due, but all were refused. The trial below and appeal here followed.

Appellant brings forward four points of error. In its points 1 and 2 appellant contends its cause of action was not barred by limitations because section 2(f) of the November 17, 1970, agreement between the appellees and Royaleo was an acknowledgment of the debt appellees owed to House of Falcon for certain accrued royalties.

Tex.Rev.Civ.Stat.Ann. art. 5539 (1958) provides:

“When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party to be charged thereby.”

In connection with this statute, where a debtor acknowledges in writing the justness of a creditor’s claim, the creditor may bring suit on this new promise evidenced by the written acknowledgment. Allied Chemical Corp. v. Koonce, 548 S.W.2d 80, 81 (Tex.Civ. App.—Houston [1st Dist.] 1977, no writ).

In order for a written instrument to be sufficient to take a debt, otherwise barred, out of the operation of the statute of limitations under Article 5539 it must contain two elements; namely, an unequivocal acknowledgment of the justness of the claim, and an expression of a willingness to pay. Mullens v. Bailey, 374 S.W.2d 455, 457 (Tex.Civ.App.—Corpus Christi 1964, no writ). And, where the party sought to be charged with acknowledging a debt clearly acknowledges the existence of the debt against him, it is implied that he promises to pay the same. Stein v. Hamman, 6 S.W.2d 352, 353 (Tex.Comm’n App.1928, opinion adopted); Trautman Bros. Inv. Corp. v. Del Mar Conserv. Dist., 440 S.W.2d 314 (Tex.Civ.App.—Waco 1969 writ ref’d n. r. e.). See 30 Baylor L.Rev. 153 (1978).

In addition to the above requirements, there are further requirements of form. First, the acknowledgment must in some way refer to the obligation or there must be introduced parol evidence that the statement was intended to acknowledge the debt being sued upon when the evidence indicates more than one debt is owing to the creditor or that there were no other debts between the parties other than the one being sued upon. Cotulla v. Urbahn, 104 Tex. 208, 135 S.W. 1159 (1911); Martindale Mortg. Co. v. Crow, 161 S.W.2d 866, 871 (Tex.Civ.App.—El Paso 1941, writ ref’d w. o. m.); Hutchings v. Bayer, 297 S.W.2d 375, 378 (Tex.Civ.App.—Dallas 1956, writ ref’d n. r. e.). And, secondly, the amount acknowledged must be susceptible of ready ascertainment, though it need not be specified. Mandola v. Oggero, 508 S.W.2d 861 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ); Hutchings v. Bayer, supra.

We find none of the aforementioned requirements has been met by the purported acknowledgment before us. First, we find no expression of a willingness to pay a particular debt. Secondly, section 2(f) of the contract is equivocal and does not specify or acknowledge any particular debt. It merely states that the seller will be responsible for the debts if incurred prior to October 24, 1970, and will indemnify the buyer for any liability, obligation, cost or expense related to any action for expenses incurred prior to October 24, 1970. It is no more than an apportionment of liability and indemnity clause between the parties.

A similar type indemnity provision was considered in Mandola v. Oggero, supra. There the court held the language to be both equivocal and unspecific as to the amounts owed. In this regard, the language of the instant indemnity provision is also without any specificity as to the amounts owing. Furthermore, the creditor, Ramms as a division of House of Falcon, is nowhere mentioned, and, though the evidence shows the execution of several royalty contracts on different dates in 1969 and 1970 creating different obligations, there is no indication in the present indemnity clause which, if any, royalty contracts and their debts the appellees intended to acknowledge. Accordingly, appellant’s points 1 and 2 are overruled.

Appellant’s point 3 is an assertion that the suit is not barred by the statute of limitations because appellant is a third party creditor beneficiary of the November 17, 1970, sales contract between appellees and Royalco by reason of the language in section 2(f) of that contract. We do not agree.

The law is clear that a third party may sue to enforce a contractual provision made for his benefit, but to entitle him to enforce such a provision, it must be shown that the contracting parties intended to make the provision for his benefit. Taggert v. Crews, 521 S.W.2d 703, 708 (Tex.Civ.App.—San Antonio 1975, writ ref’d n. r. e.); Corpus Christi Bank and Trust v. Smith, 525 S.W.2d 501, 503 (Tex.1975). In deriving intent we must presume that the parties contract for themselves, and a third party cannot recover under a contract unless he establishes that the contracting parties clearly intended that he benefit by it. Corpus Christi Bank and Trust v. Smith, supra; O’Boyle v. Dupose-Killeen Properties, Inc., 430 S.W.2d 273 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.). We find no clear indication in the contract herein, specifically in section 2(f), that the parties intended by their agreement to confer any benefit upon the appellant. The first and last part of section 2(f) of the November 17, 1970, contract merely apportions obligations between appellees and Royalco, and the middle provision was clearly intended to indemnify Royalco. The terms of these provisions do not newly obligate the appellees to the appellant. Appellees were already purportedly obligated to the appellant at the time of the contract.

The Restatement of Contracts § 133 (1932) provides concerning third party creditor beneficiaries:

“Where performance of a promise in a contract will benefit a person other than the promisee, that person is, except as stated in Subsection (3):
******
(b) a creditor beneficiary if no purpose to make a gift appears from the terms of the promise in view of the accompanying circumstances and performance of the promise will satisfy an actual or supposed or asserted duty of the promisee to the beneficiary . . .” (Emphasis supplied.)

We have no evidence in the agreed statement of facts of any actual, supposed or asserted duty of the purported promisee, Royalco, to the purported beneficiary appellant. And just because Royalco purchased all the assets of Bego does not without more render it liable to the appellant for Bego’s debts. American Surety Co. of New York v. M-B Ise Kream Co., 38 S.W.2d 118 (Tex.Civ.App.—Dallas 1931) aff’d 65 S.W.2d 287 (Tex.Comm’n App.1933, judgmt. adopted).

Moreover, a promise to indemnify does not create any liability until the prom-isee, here Royalco and Ramirez, have incurred a liability, loss, or expense. Until then the promisee has no right of action, and consequently one claiming can assert no derivative right against the promisors, here appellees, much less a direct right. 2 Willi-ston on. Contracts § 402 (3d ed. 1957). See also Fidelity & Deposit Co. of Maryland v. Reed, 108 S.W.2d 939 (Tex.Civ.App.—San Antonio 1937 no writ). Appellant’s point 3 is overruled.

In its point 4, appellant argues that it was suing as an assignee of Royalco’s indemnity rights under the November 17, 1970, contract. As such, it claims a right to enforce the appellees “new promise” to pay the appellants for their accrued royalties found in section 2(f) of the November 17, 1970; contract.

In our discussion of point 1 we pointed out the absence of any new promise to perform the old debt. In fact the only provision in Section 2(f) of the November 17,1970, contract which the appellant could enforce was the indemnity provision. But the right of indemnity was conditioned upon a liability or obligation arising out of or related to any action. We find no evidence of any action in this case and therefore there can be no cause of action based upon the indemnity agreement. Appellant’s point 4 is overruled.

The judgment of the trial court is affirmed.


text:
    UNIVERSITY INTERSCHOLASTIC LEAGUE et al., Appellants, v. Bennie GREEN et al., Appellees.
    No. 1475.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 13, 1979.
    Robert W. Gauss, Richard Scott Rafes, Asst. Attys. Gen., Austin, for appellants.
    Douglas M. Kennedy, Spann & Smith, Corpus Christi, for appellees.
   OPINION

BISSETT, Justice.

This is an appeal from an order granting a temporary injunction. Suit was brought by the parents, individually and as next friends, of Bennie Green, Jr., Jeffrey Albro and Roy Bailey, minors and senior students at King High School in Kingsville, Texas, against the University Interscholastic League (League), the League’s director, the chairman of the League’s State Executive Committee, the League’s Athletic Director, the District 27 AAAA Executive Committee (Committee), the Kingsville Independent School District’s superintendent and the Corpus Christi Independent School District’s superintendent. Suit was filed on November 22, 1978. The plaintiffs sought to invalidate the order of the Committee made on November 15,1978, which declared that Bennie Green, Jr., Jeffrey Albro and Roy Bailey, minor plaintiffs were ineligible for the 1978-1979 basketball season by reason of their participation in a “three-on-three” basketball tournament in July, 1978. They also sought a temporary injunction during the pendency of the invalidation suit to enjoin the enforcement of the November 15, 1978, order. Following a hearing on the injunctive relief asked for, the trial judge, by order signed on December 18, 1978, enjoined the Committee and its members from enforcing the November 15, 1978, order “during the pendency of this cause.” Furthermore, the superintendents of the Kings-ville Independent School District and of the Corpus Christi Independent School District were each enjoined from prohibiting the minor plaintiffs from participating in any basketball games for the 1978-79 season as a result of their having participated in the July, 1978 tournament. Those enjoined by the temporary injunction have appealed. They will henceforth be referred to as “defendants.” Bennie Green, Jr., Jeffrey Alb-ro and Roy Bailey will be referred to as “students.”

The seeds of the present controversy were planted during the summer of 1978 when the students participated in a “three-on-three” basketball tournament sponsored by the Health and Physical Education Club of Corpus Christi State University, and held at the King High School Gymnasium in Corpus Christi, Texas. A three-on-three basketball tournament is a competition which pits groups of three players against one another on one half of a regulation size basketball court. This particular tournament did not involve any type of formal coaching. In fact, the event was rather informal, although it was an organized tournament and prizes were awarded.

Subsequent to the tournament, and after the beginning of the 1978 — 79 school year (September 1, 1978), a question arose regarding the effect of the students’ participation in the summer tournament upon their eligibility as varsity players on the King High School basketball team during the 1978-79 season because of a possible violation of Rule 23 and 28 of the League’s by-laws covering interscholastic basketball. Rule 23 provided that:

“Postseason Participation. — No member of a high school basketball team shall be allowed to participate as a player on any nonschool basketball team following the close of a school’s regular season schedule.”

Rule 28, in pertinent part, provided that:

“28. Dates for Practices and Games. —There shall be no organized or formal basketball practice for a contestant or a team, before or after school prior to:
October 15 — Boys’, Conferences AAAA.”
“No interschool scrimmages or games shall be played prior to .
November 15 — Boys’ and Girls’, Conferences AAAA ... or before or after school after the last day for certifying district champions, except as necessary for state playoffs.”

The Committee held a meeting on November 18, 1978. At that meeting, it was decided that the students were ineligible to play basketball during the 1978 — 79 season because their participation on the three-on-three basketball tournament was in violation of Rules 23 and 28.

The Committee’s decision was final within the framework of the League, which is a voluntary association of public schools and a part of the Extension Division of the University of Texas at Austin. It is “reformed” every year for the purpose of regulating and furthering the goals of interscholastic competition in varied fields, including athletics. It drafts a Constitution and set of By-laws every school year by which the member schools are governed. Rules 23 and 28 were contained in the League’s 1978-79 Constitution and By-laws.

By their points of error 1 and 6, the defendants essentially attack the power of the trial court to entertain the plaintiffs’ suit as a matter of jurisdiction and sovereign immunity on the ground that the plaintiffs did not obtain the consent of the State to be sued before they filed this suit. We disagree. We hold that the trial court had jurisdiction to hear the suit based on the principles enunciated by the Court in Sims v. University Interscholastic League, 111 S.W.2d 814 (Tex.Civ.App.—Beaumont 1937) jdg. vacated, case dismissed, and app. dism’d as moot, 133 Tex. 605, 131 S.W.2d 94 (Tex.Comm’n App.—1939 opinion adopted). We also hold that, although the League is an agency of the State of Texas for certain purposes, it and the other defendants were not sued in this action in their capacities as agents of the State. Additionally, the students alleged loss of their civil and constitutional rights by virtue of the Committee’s action. Hence, consent by the State to be sued was not required. Maritine v. Board of Regents, et al, 578 S.W.2d 465 (Tex.Civ. App.—Tyler 1979, no writ).

By their points of error 2, 3, 4 and 5, the defendants attack the injunction on the grounds that the trial judge abused his discretion. At the hearing upon the plaintiffs’ request for a temporary injunction, the only question before the trial judge was whether they were entitled to preservation of the status quo of the subject matter of the suit pending a trial on the merits. Davis v. Huey, 571 S.W.2d 859 (Tex.1978). Under the record here presented, we cannot say that the trial judge clearly abused his discretion in enjoining the defendants from enforcing the Committee’s ruling of ineligibility during the pendency of the suit.

As is evident by the six points of error which have been brought forward, two questions, and two questions only, are to be resolved in this appeal. First, did the trial court have jurisdiction of the suit? Second, did the granting of the temporary injunction constitute an abuse of discretion? The issue of whether the participation by the students in the tournament made them ineligible for the 1978 — 79 basketball season is not before us in this appeal, and we express no opinion relating thereto. That issue can only be decided following a trial on the merits.

We have considered all of the points of error which have been brought forward in this appeal. They are overruled.

AFFIRMED.

      . King High School in Kingsville, the minor plaintiffs’ school and a Conference AAAA School, is not to be confused with King High School in Corpus Christi, the school which hosted the three-on-three tournament, also a Conference AAAA School.

      . Saenz v. University Interscholastic League, 487 F.2d 1026 (5th Cir. 1973).


text:
    Apolonio ALVARADO, Sr., et al., Appellants, v. Maria ALVARADO, Appellee.
    No. 1504.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 13, 1979.

      Steven Gross, San Antonio, for appellants.
    Anita Janene Forster, Ricardo L. Laurel, Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

In this habeas corpus case involving an appeal from an order of the trial court awarding possession of a child to his mother, the controlling issue concerns the jurisdiction of the trial court to enter its order. We affirm and hold that a habeas corpus proceeding brought pursuant to Tex.Fam. Code Ann. § 14.10(a) (Supp.1979) may be filed in the county where relator resides.

This habeas corpus proceeding was initiated on January 8, 1979, by Maria Alvarado in the 105th District Court of Nueces County. In her sworn application for a writ of habeas corpus Maria (relator), a resident of Nueces County, contended that she was presently entitled to possession of Jason Alvarado by virtue of an order rendered by the 57th District Court of Bexar County on July 29, 1974, in Cause No. 74CI-5009, styled “In The Matter of the Marriage of Marcus Narvarz, Jr., and Maria Perez Nar-varz and in the Interest of Gabriel Narvarz, Mark Anthony Narvarz, Sharon Narvarz, Children.” In the divorce decree rendered by the Bexar County District Court, a certified copy of which was attached to relator’s application for habeas corpus, relator was appointed managing conservator of Jason Alvarado. According to relator’s application, Jason was presently being illegally restrained by Apolonio and Socorro Alvarado (respondents) in Medina County, Texas.

In response to the application for writ of habeas corpus, respondents filed a motion to dismiss the application for want of jurisdiction. According to the motion to dismiss, Jason Alvarado had resided in Medina County for more than two years. It was contended in the motion to dismiss that the habeas corpus proceeding should either be heard in Medina County pursuant to Tex. Fam.Code Ann. § 11.04(c)(4) (Supp.1979) or in Bexar County pursuant to Tex.Fam.Code Ann. § 11.05 (Supp.1979).

During argument before the trial court upon relator’s application and respondents’ motion to dismiss, it was stipulated by the parties that the child, Jason, presently resided in Medina County. There was no indication, however, of the actual physical location of Jason at the time relator filed her application for writ of habeas corpus. We take the relator’s allegation in her application that Jason was illegally restrained in Medina County to be a judicial admission that Jason was not physically present in Nueces County at the time the application was filed.

On January 15, 1979, the 105th District Court of Nueces County rendered an order awarding possession of Jason Alvarado to relator based upon the Bexar County divorce decree. In its order, the court stated it was “of the opinion that said motion is improperly filed in Nueces County and that this matter should therefore be dismissed for want of jurisdiction.” Nevertheless, the court awarded possession of Jason to relator. Thus, the court, in effect, granted the writ of habeas corpus.

Respondents now seek to set aside the court’s order as being void for want of jurisdiction. They argue that under Trader v. Dear, 565 S.W.2d 233 (Tex.1978), the filing of a habeas corpus proceeding pursuant to Section 14.10(a) of the Family Code is limited to the courts of any county in which the child is found, as well as in the court of continuing jurisdiction.

Section 14.10 of the Family Code sets forth rules applicable to a habeas corpus proceeding initiated for the purpose of regaining possession of a child. Section 14.10, however, makes no provision for jurisdiction of a habeas corpus proceeding brought under its terms. In point of fact, jurisdiction is conspicuously mentioned in TITLE 2, SUBTITLE A of the Family Code, of which section 14.10 is a part, only in the context of “continuing jurisdiction,” a concept which has proved a continuing cause of confusion in the courts.

The concept of “continuing jurisdiction” is fixed by the Family Code in section 11.-05(a) (Supp.1978), which provides:

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

In Trader, supra, it was argued that a section 14.10 habeas corpus proceeding could be filed only in the county of the court of continuing jurisdiction. In that case husband and wife were divorced in Harris County and wife was awarded managing conservatorship of her daughter. Eventually, though, the daughter came to live with the father in Travis County where the mother filed a habeas corpus proceeding under section 14.10 of the Family Code. The district court of Travis County denied her application for habeas corpus and she sought mandamus in the Supreme Court to compel the trial judge to grant the application. The Court, while acknowledging the Harris County Domestic Relations Court to be the court of continuing jurisdiction, granted the mother’s petition for mandamus. In doing so, the court stated:

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

Trader, supra at 235.

Subsequently, in Garza v. Schilling, 576 S.W.2d 147 (Tex.Civ.App.—Corpus Christi, 1978, no writ), this Court faced a similar issue of construing the effect of the venue rules upon habeas corpus proceedings brought under section 14.10 of the Family Code. In Garza, which involved a proceeding brought under section 14.10(e), instead of 14.10(a), as in Trader, a mother filed an application for writ of habeas corpus in Nueces County, where she resided, seeking the return of her child who was allegedly being illegally restrained in Hidalgo County. The sole point of error on appeal was whether the district court of Nueces County erred in overruling the respondents’ plea of privilege to be sued in Hidalgo County. Like the problem of jurisdiction, section 14.10 of the Family Code is silent on the question of venue.

In holding in Garza that neither the venue rules provided in Tex.Fam.Code.Ann. § 11.04 (Supp.1979) nor those in Tex.Rev. Civ.Stat.Ann. art. 1995 (1964) apply to a section 14.10 habeas corpus proceeding, we merely expressed that which was implicit in Trader. Specifically, we held that habeas corpus under section 14.10 was not a “suit affecting the parent-child relationship” as that phrase is used in the Family Code. See Ex Parte Jabara, 556 S.W.2d 592 (Tex.Civ.App.—Dallas 1977, no writ).

We believe a logical corollary of our holding in Garza is that the district court of the county where relator resides has jurisdiction to entertain a habeas corpus proceeding under section 14.10 of the Family Code although the county where the child is found and the county of the court of continuing jurisdiction are elsewhere. Such a rule does not conflict with the Supreme Court’s language in Trader, which involved the filing of a habeas corpus proceeding in the county where the child was found, as did the authorities cited therein. See McElreath v. Stewart, 545 S.W.2d 955 (Tex.Sup.1977); Ex Parte Jabara, 556 S.W.2d 592 (Tex.Civ.App.—Dallas 1977, no writ). The question of whether relator could also file a habeas corpus proceeding in the county of his or her residence was never at issue in Trader, or in the cases relied upon by the Supreme Court.

Our express holding in the case at bar is clearly consistent with the policy of the Family Code as was so eloquently stated by the Supreme Court in Trader. According to Trader, by enacting the Family Code the Legislature “adopted a scheme for handling parent-child matters in a manner that avoids forum shopping, races to the courthouse, child snatching, and the harassment of a parent by the other parent’s filing suit in random courts.” Trader, supra at 235. As part of this scheme, the Legislature drafted section 14.10, which was designed to “overrule that body of law which previously permitted a habeas corpus proceeding to put in issue anew the right of custody.” Instead, section 14.10

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

Strobe1 v. Thurman, 565 S.W.2d 238, 239 (Tex.1978).

Allowing a relator to file a habeas corpus proceeding under section 14.10 in the county of his or her residence will certainly insure the writ as a “ready means for deliverance of a child from unlawful detention.” Consider the injustice which could occur if Trader were read restrictively to limit ha-beas corpus filings to counties where the child was found or to the county of the court of continuing jurisdiction. Assume: 1) that husband and wife are divorced in Texarkana, Texas, and that wife is awarded managing conservatorship of the child; 2) that mother and child move to Brownsville, Texas, while father moves to El Paso, Texas; 3) that father kidnaps the child and takes him to El Paso. Under respondent’s strict reading of Trader the mother in this hypothetical example would be forced to travel either to Texarkana or El Paso in order to file a habeas corpus proceeding. Such a result is obviously unjust and clearly inconsistent with the Family Code’s purpose of avoiding child snatching and parental harassment. Under our holding, however, the hypothetical mother could file a habeas corpus proceeding in Brownsville and force the father to bring the child to Cameron County. Hence, the only inconvenience caused would be to the father who is prima facie in the wrong.

We have considered all of respondents’ points of error and they are overruled. Judgment of the trial court awarding possession of Jason to the relator is AFFIRMED.

      . “1. § 14.10 Habeas Corpus
      (a) If the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator if and only if it finds that the relator is presently entitled to possession by virtue of the court order.
      (b) The court shall disregard any cross action or motion pending for modification of the decree determining managing conserva-torship, possession, or support of or access to the child unless it finds that:
      (1) the previous order was granted by a court that did not have jurisdiction of the parties; or
      (2) the child has not been in the relator’s possession and control for at least 6 months immediately preceding the filing of the petition for the writ.
      (c) The court may issue any appropriate temporary order if there is a serious immediate question concerning the welfare of the child.
      (d) While in this state for the sole purpose of compelling the return of a child through a habeas corpus proceeding, the relator is not amenable to civil process and is not subject to the jurisdiction of any civil court except the court in which the writ is pending and in that court only for the purpose of prosecuting the writ.
      (e) If the right to possession of a child is not governed by a court order, the court in a habeas corpus proceeding involving the right of possession of the child shall compel return of the child to the relator if, and only if, it finds that the relator has a superior right to possession of the child by virtue of the rights, privileges, duties and powers of a parent as set forth in Section 12.04 of this code.
      (f) The court shall disregard any motion for temporary or permanent adjudication relating to the possession of the child in a habeas corpus proceeding brought under Subsection (e) of this section unless at the time of the hearing an action is pending under this statute, in which case the court may proceed to issue any temporary order as provided by Section 11.11 of this Code.”


author: PHILLIPS, Chief Justice.

text:
    ALLIED FINANCE COMPANY, Appellant, v. Edward Lee COOKE, Jr., Appellee.
    No. 12979.
    Court of Civil Appeals of Texas, Austin.
    June 13, 1979.
    Larry Z. Sechrist, Michael E. Ditto, Dallas, for appellant.
    Pat C. Hargadon, Austin, for appellee.
   PHILLIPS, Chief Justice.

This is a venue case. Appellant Allied Finance Company appeals from an order overruling its plea of privilege to be sued in the county of its residence, Dallas County, Texas. Suit was filed in Travis County, Texas.

The case arises out of the sale of a motor vehicle to Edward Lee Cooke, Jr., appellee, by Republic Motor Sales. The sale occurred in December, 1975. In April, 1976, Republic sold appellee’s contract, along with a number of other contracts, to appellant. Appel-lee filed this lawsuit on January 18, 1978, against Republic Motor Sales and appellant under the Texas Consumer Credit Code, Tex.Rev.Civ.Stat.Ann. art. 5069-7.06(3) (1971) (disclosures concerning required insurance).

Appellee’s controverting plea set forth as alternative grounds for venue in Travis County three subdivisions of Tex.Rev.Civ. Stat.Ann. art. 1995 (1964). These are subdivisions 4, 23 and 30 (as it is related to Tex.Rev.Civ.Stat.Ann. art. 5069-8.04 (Supp. 1978)). As a result of our disposition of the case, we will consider only subdivision 30 and connected article 5069-8.04.

Prior to deciding the venue issue, we must consider another point raised by appellant. Appellant argues that appellee’s controverting plea was superseded by two words, “or agency,” by virtue of a trial amendment to the controverting plea. This argument is based on the fact that appel-lee’s lawyer stated to the court at the venue hearing: “I was going to offer today a controverting plea which would add one word to the one we have filed subject to your approval.” Appellee’s lawyer explained that he desired to add “or agency” to his subdivision 23 allegations. Appellant objected and the judge said he would allow the amendment. A search of the record does not reveal an amended controverting plea or that the words were interlined on the original. In our view, appellee obtained approval for a trial amendment but did not follow through and make the amendment. See Smith v. Davis, 453 S.W.2d 340 (Tex.Civ.App.1970, writ ref’d n. r. e.); Welch v. Overton, 416 S.W.2d 879 (Tex.Civ.App.1967, writ ref’d n. r. e.); cf. Western Union Telegraph Co. v. Graham, 244 S.W. 579 (Tex.Civ.App.1922, no writ). The point is overruled.

Subdivision 30 of article 1995 provides:

“Special venue. — Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

Article 5069-8.04 states, inter alia :

“Actions under this Chapter may be brought in the county where the transaction was entered into or where the Defendant resides at the time the action was filed.”

Appellee does not contend that appellant has ever resided in Travis County. We hold the “transaction” to which article 5069-8.04 refers is the sale of the motor vehicle, from which sale the contract sued upon originated. “Transaction” does not mean the assignment of the contract by Republic to appellant, appellee having had no involvement in the assignment.

To sustain venue in Travis County, appel-lee need only have proved that the sale of the motor vehicle occurred in Travis County. Cf. Allied Finance Co. v. Miro, 568 S.W.2d 910 (Tex.Civ.App.1978, no writ). But cf. National Mortgage Corp. of America v. Maxwell, 541 S.W.2d 626 (Tex.Civ.App.1976, no writ). The secretary treasurer of Republic Motor Sales testified at the hearing that he “entered into this contract with [appellee] to purchase an automobile” in Travis County, Texas. We hold appellee met his burden of showing venue in Travis County, Texas, under article 5069-8.04.

The order of the trial court overruling the plea of privilege is affirmed.

Affirmed.

      . Although “transaction” is not defined in Chapter 8 of article 5069, it is defined in Chapter 7 for purposes of that chapter, unless the context otherwise requires. Tex.Rev.Civ.Stat. Ann. art. 5069-7.01(d) (1971). That section provides:
      “ ‘Transaction’ means any transaction as a result of which a retail buyer acquires a motor vehicle from a retail seller under a retail installment contract for a sum consisting of the cash sale price and other charges as limited by this Chapter and agrees with a retail seller to pay part or all of such sum in one or more deferred installments.”


author: McDONALD, Chief Justice.

text:
    The STATE of Texas, on Relation of W. D. NEEDHAM, et al., Appellants, v. Mrs. Jess WILBANKS et al., Appellees.
    No. 6029.
    Court of Civil Appeals of Texas, Waco.
    June 14, 1979.
    Rehearing Denied July 12, 1979.

      Felipe Reyna, Criminal Dist. Atty., Lyndon Olson, Wilson, Olson, Stem & Farr, Waco, for appellants.
    J. Robert Sheehy, Sheehy, Lovelace & Mayfield, Waco, for appellees.
   OPINION

McDONALD, Chief Justice.

This is a quo warranto action brought by the State of Texas thru the District Attorney of McLennan County on relation of W. D. Needham, et al, against Mrs. Jess Wil-banks, et al, seeking to declare the incorporation of the City of Hallsburg invalid. Mrs. Wilbanks is the Mayor of Hallsburg and the other defendants are City Councilmen. The State alleges the defendants are unlawfully holding office since the town of Hallsburg was never legally incorporated.

In November 1973, residents of the Halls-burg community filed with the County Judge of McLennan County a petition asking an election be called for the incorporation of the City of Hallsburg. The petition gave a metes and bounds description of the area sought to be incorporated and stated it contained more than 600 inhabitants. The County Judge ordered an election, in which 74 votes were cast for incorporation and 18 votes against incorporation. The County Judge entered an order declaring the incorporation of the City of Hallsburg on December 6, 1973, and on December 28, 1973 this case was filed seeking to set aside the incorporation.

Trial was to a jury, pertinent findings of which follow:

“Special Issue 1) Do you find from a preponderance of the evidence, if any, that the area incorporated as the City of Hallsburg, Texas, was not an existing city or town immediately prior to incorporation thereof on December 6, 1973?
Answer it was or it was not.
ANSWER It was.
“By the term city or town as used herein is meant a collection of inhabited houses. The term carries with it the idea of a considerable aggregation of people living in close proximity. A city or town population is distinguishable from a rural population, which is understood to signify people scattered over the country. A city or town should be susceptible of receiving some municipal services.”
“Special Issue 2) Do you find from a preponderance of the evidence, if any, that the area incorporated as the City of Hallsburg included only a part of the city or town existing prior to incorporation, and excluded other parts?
Answer it did or it did not.
ANSWER It did,”

Defendants moved for Judgment on the Verdict, and plaintiffs moved for Judgment Non Obstante Veredicto.

The trial court rendered judgment: 1) denying plaintiffs’ motion for judgment non obstante veredicto; 2) decreeing the City of Hallsburg was properly incorporated; 3) decreeing defendants properly elected officials; and 4) denying all relief sought by plaintiffs.

Plaintiffs appeal on 5 points which we summarize as 3 contentions.

1) The trial court erred in overruling plaintiffs’ motion for Judgment Non Ob-stante Veredicto, and rendering judgment declaring the incorporation of Hallsburg valid, because the undisputed evidence shows conclusively and as a matter of law that the area sought to be incorporated did not constitute a town or city at the time of its incorporation.

2) The trial court erred in rendering judgment declaring the incorporation of Hallsburg valid because there is insufficient evidence to support the verdict and judgment.

3) The trial court erred in rendering judgment declaring the incorporation of Hallsburg valid because only a part of the alleged City of Hallsburg was included in the incorporated area.

Contentions 1 and 2 assert the evidence shows as a matter of law the area sought to be incorporated did not constitute a town or city at .the time of its incorporation; and/or there is insufficient evidence to support the verdict.

The purpose of the incorporation statutes is not to create a city or town, but to allow those already in existence to incorporate. Harang v. State of Texas, ex rel. City of West Columbia, Tex.Civ.App. (Houston 14) NWH, 466 S.W.2d 8; Ewing v. State ex rel. Pollard, 81 Tex. 172, 16 S.W. 872.

The City of Hallsburg is located east of Waco in a basically rural part of McLen-nan County. The area incorporated has an unusual configuration, lies adjacent to some 31 miles of State and County roadways; and consists of a strip alongside such roadways 200 feet in width in places, 300 feet in width, 400 feet in width, and 500 feet in width in other places.

There is evidence the town of Hallsburg started about 1901, and that it has continued to be a community to the present day; that the school and churches were the center of the community; that a new school was built in 1970; that it has an active PTA; that for several years the community has been growing both residentially and businesswise; that the corporate limits of Hallsburg generally encompass the area that is considered to be Hallsburg; that the residents receive water from rural water cooperatives; police protection from a resident Deputy Sheriff; have a volunteer fire department with equipment furnished by the City; receive electricity from the TP&L and Limestone Coop; have a contract garbage service; the incorporated area contains at least 78 residences and 3 business establishments; that the lines of the City were drawn to take in all residents of Halls-burg community and urban land, but to exclude agricultural land in the area. A witness for plaintiff agreed there was a Hallsburg community but that the argument was whether there was enough of a community to be incorporated. The County Judge’s finding of more than 600 inhabitants is unassailed.

The evidence is ample to sustain the jury’s finding to Issue 1, and it is not established as a matter of law that the area sought to be incorporated did not constitute a town or city.

Further the Legislature passed Article 974d-21 effective September 1, 1975, which provides:

“Section 1. The incorporation proceedings of all cities and towns incorporated or attempted to be incorporated under the general laws before the effective date of this Act, which have functioned or attempted to function as incorporated cities or towns since their incorporation or attempted incorporation, are validated in all respects as of the date of the incorporation or attempted incorporation. The incorporation proceedings may not be held invalid because they were not performed in accordance with law.”
“Section 4. The provisions of this Act shall not apply to any city or town now involved in litigation questioning any of the acts or proceedings, other than incorporation proceedings or boundary extensions, hereby validated if such litigation is ultimately determined against the legality thereof; nor shall this Act be construed as validating any proceeding which may have been nullified by a final judgment of a court of competent jurisdiction.”

Hallsburg has functioned as a city since its incorporation in 1973; that while litigation was pending when the validation act was passed and became effective, no final judgment had been rendered invalidating the incorporation proceedings of Hallsburg.

Our Supreme Court in Perkins v. State, Tex., 367 S.W.2d 140 holds that the Legislature has all power not denied or prohibited to it by the Constitution, and that even though an act of incorporation is void from its inception, the Legislature may validate such act and make it live.

Contention 3 asserts the incorporation is rendered invalid because only a part of the alleged city was included in the incorporated area.

The evidence is that a small portion of the City of Hallsburg which included the school and a church was inadvertently excluded from the corporate limits. There is no evidence the exclusion was arbitrarily done, and absent evidence and finding to such effect, such cannot render the incorporation invalid. State ex rel. Wilke v. Stein, Civ.App., 26 S.W.2d 182; 36 S.W.2d 698; Harang v. State ex rel. City of West Columbia, Tex.Civ.App. (Houston 14) NWH, 466 S.W.2d 8.

Moreover the asserted defect in incorporation was cured by the validation statute. Perkins v. State, supra.

All plaintiffs’ points are overruled.

AFFIRMED.

      . Italics ours.