author: STEWART, Justice. CARVER, Justice,

text:
    CITY OF MESQUITE, Appellant, v. James V. COLTHARP, et al., Appellees.
    No. 05-83-00392-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 18, 1984.
    Rehearing Denied Jan. 25, 1985.

      Elland Archer, City Atty., Elizabeth A. Lunday, Asst. City Atty., Mesquite, for appellant.
    Jack C. Morgan, Kaufman,. Tom Unis, Dallas, for appellees.
    Before AKIN, CARVER, and STEWART, JJ.
   STEWART, Justice.

The City of Mesquite sought an injunction prohibiting appellees, officers of the Improved Order of Redmen — Cherokee Number 34 (Lodge), from operating a commercial bingo establishment in an area zoned exclusively for general retail use. The lodge responded by seeking an injunction prohibiting interference with their operation and prohibiting prosecution for violation of the zoning ordinance. When the city rested its case, the trial court granted the lodge’s motion for judgment and denied the city’s application for injunction but granted the lodge’s application. The city appeals, urging in four points of error that the trial court erred in determining that the city’s comprehensive zoning ordinance does not prohibit the playing of bingo at 108 Town East Shopping Center, Mesquite, Texas; in making seven of its findings of fact and conclusions of law (not stated separately) because they are contrary to the greater weight and preponderance of the evidence and are contrary to law; and in enjoining criminal prosecution of appellees without a finding that the applicable city ordinance was unconstitutional. We reverse the judgment and remand the case for a new trial.

In reviewing the ruling of a trial court on a permanent injunction, the test on appeal is not whether the trial court abused its discretion. Rather, as an appellate court sitting in equity, we must review the ordinance in question together with all the evidence to determine whether the ruling of the trial court was correct, as in any other appellate review. Electronic Data Systems Corp. v. Powell, 524 S.W.2d 393, 395 (Tex.Civ.App.—Dallas 1975, writ ref’d n.r.e.).

In 1973 the City of Mesquite adopted a comprehensive zoning ordinance. Both permitted uses and conditional uses are allowed in various districts. The comprehensive ordinance was enacted when bingo was not legal in the state and the ordinance does not specifically address the topic. Eleven types of non-residential districts were created by the ordinance, including “commercial,” “light commercial,” and “general retail” areas. The trial court found that the fraternal organization was not precluded from operating commercial bingo games in an area designated exclusively for general retail purposes.

The comprehensive ordinance prohibits all uses except those provided expressly or by reasonable implication:

06.00 CONFORMANCE REQUIRED: No land shall be used for and no building shall be erected for, or converted to, any use other than provided in the regulations prescribed for the district in which it is located except as hereinafter provided. (Emphasis added)

The city argues that commercial bingo is not permitted within a “general retail” area because it falls within the classification of indoor commercial recreation, which is limited by the ordinance to areas zoned commercial and light commercial. The comprehensive ordinance defines indoor and outdoor commercial recreation as follows:

43.011 INDOOR AND OUTDOOR COMMERCIAL RECREATION: Any type of commercial recreation or amusement, including but not limited to baseball fields, swimming pools, skating rinks, golf driving ranges, drive-in theaters, miniature golf, carnivals and similar open-air facilities and all indoor facilities provided such establishments shall be a distance of at least one hundred (100) feet from any residential district and that any lighting used to illuminate any commercial recreation shall be so arranged as not to deflect onto any adjacent residential district and all coin-operated music and skill or pleasure machines shall not be exhibited within three hundred (300) feet of a church, school, or hospital ...

The record reflects that the trial court construed this section, based on the specific items listed, to concern special use facilities or buildings where the structure lends itself primarily to only one use or character of use. Because playing bingo does not require a special or single use facility, the trial court concluded that bingo was not within the definition of indoor commercial recreation. The trial court’s construction of this section might be correct if we were determining whether a given activity is outdoor commercial recreation, but it has no application to the definition of indoor commercial recreation. As we construe this section, indoor commercial recreation means “any type of commercial recreation or amusement ... [in] all indoor facilities.” We conclude, therefore, that the lodge’s commercial bingo operation is indoor commercial recreation, as defined in the ordinance, and limited to areas zoned “commercial” and “light commercial.”

Nevertheless the lodge argues that it did not violate the zoning ordinance because: (1) fraternal organizations are not prohibited from conducting their business in general retail zoned districts and bingo is an incidental or secondary activity of appel-lees; (2) the lodge qualifies for a nonconforming use; and (3) the lodge’s bingo has no adverse effect in the area and the city’s interpretation of the zoning ordinance is arbitrary and unreasonable.

The parties stipulated that fraternal organizations are allowed to meet in districts zoned general retail. The trial court found, “That the playing of commercial bingo by the Redman’s Fraternal Lodge is a secondary or incidental activity for fund raising_” Further, the city’s expert witness, Frost, testified that, if indoor commercial recreation is not the primary purpose and use of a premises, then the operation of such activity in the general retail district is not a violation of the ordinance. Thus, the lodge contends that the ordinance does not prohibit its bingo operation. We would agree if the record contained evidence to support the trial court’s finding that commercial bingo is a secondary or incidental activity of the lodge at the Town East Shopping Center. The record reflects that the lodge conducts commercial bingo games there for four hours, three nights a week. The city maintains that this bingo operation is the lodge’s primary use of the premises, rather than its use of the premises as a place to conduct its meetings. The lodge offered no controverting evidence on this question. Consequently, the trial court erred to the extent-that it based its denial of the city’s application for injunction on its finding that playing bingo was a secondary activity of the lodge.

The lodge also contends that its bingo operation is authorized as a nonconforming use because it was playing bingo prior to the November 1, 1982, amendment to the zoning ordinance. The amendatory ordinance reads in pertinent part:

07.00 EXISTING NON-CONFORMING USES — CONTINUATION:
He * * * * *
Provided, further that fraternal organizations organized for charitable purposes operating Bingo games at a location pri- or to January 1, 19[80], may continue to operate in the same location without a zoning change but shall not move said operation to a new location unless such location shall comply with the current requirements for indoor commercial recreation.

The lodge’s reliance on the amendatory ordinance is misplaced. The comprehensive zoning ordinance of 1973 controls whether commercial bingo is a nonconforming use, not the November 1, 1982, amendment. The operation of commercial bingo was an illegal use of property at the time the comprehensive ordinance went into effect. Thus, the city could have prohibited it under that ordinance in all zoned districts and at any time thereafter until commercial bingo was legalized in Mesquite in April of 1982. Thereafter, commercial bingo was converted from an illegal use to a conditional use as indoor commercial recreation in commercial and light commercial zoned districts. By enacting the amendatory ordinance, the City Council recognized that commercial bingo is a nonconforming use of property in areas that do not allow indoor commercial recreation and it authorized this nonconforming use for fraternal organizations satisfying the requirements of that ordinance. This amendment, on its face, does not apply to the lodge because it is undisputed that it was not operating bingo games at 108 Town East Shopping Center prior to January 1, 1980.

The lodge also argues that there is ample proof that the prohibition of bingo in this area is not an essential part of the general zoning scheme and that the protection afforded the general public is negligible when compared to the damage to the lodge if bingo is prohibited. To support its position the lodge cites City of West University Place v. Ellis, 134 S.W.2d 1038 (Tex.Comm’n App.1940, opinion adopted). In that case, the Commission of Appeals quotes the following portion of the Texas Supreme Court opinion in Houston & T.C. Ry. Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648 (Tex.1905):

[T]he courts may inquire into the reasonableness of a proposed exercise of [the police power], and may deny the right where the public protection to be accomplished by a city ordinance involves an oppressive loss to the property owner affected, in proportion to the good accomplished, the question of reasonableness being one of law, but dependent upon the facts to be established.

Ellis, 134 S.W.2d at 1040. In attempting to apply this standard to this case, we conclude that we are unable to determine the reasonableness of the city’s proposed enforcement of the ordinance because no evidence was introduced as to the “oppressive loss” that the lodge would suffer if the city were allowed to proceed. The lodge will have the opportunity on remand of this case to develop its evidence on this issue.

Finally, the lodge maintains that the city’s interpretation of the zoning ordinance is arbitrary and unreasonable because enforcement of the ordinance against the lodge’s property bears no substantial relation to the health, safety, morals, or general welfare of the community. A comprehensive zoning ordinance is presumed to be valid, City of Fort Worth v. Johnson, 388 S.W.2d 400, 402 (Tex.1964), and this presumption of validity also applies to an amendatory ordinance, Baccus v. City of Dallas, 450 S.W.2d 389, 391 (Tex.Civ.App.—Dallas 1970), writ ref'd n.r.e., 454 S.W.2d 391 (Tex.1970). Adoption of a zoning ordinance by the governing body of a city represents the exercise of a delegated legislative discretion. Enforcement or non-enforcement is not a matter for judicial discretion. If evidence is conclusive that the zoning ordinance is arbitrary and unreasonable, it is the duty of the courts to refuse to enforce it. In the absence of such proof, it is the duty of the courts to enforce it. City of Fort Worth, 388 S.W.2d at 402.

The only evidence supporting the lodge’s contention that enforcement of the ordinance against its property bears no substantial relation to the health, safety, morals, or general welfare of the community follows. On cross-examination by the lodge, Frost, the city’s expert witness, testified she was not in any physical danger when she played bingo at the shopping center; that she assumed the noise did not carry outside; that there might be some disturbance from traffic, but that bingo players make no more noise with their cars than someone going to a fraternal meeting. In addition, Hanz, the City Planner, testified on cross-examination that the only problem he had with putting indoor recreation in a general retail area was the increased traffic load that the recreation would create; that the shopping center was located at the intersection of two 6-lane thoroughfares; that as far as he knew there was plenty of parking; that there were sufficient exits to and from the center; and that the effect of traffic would not create a problem just by this one particular use [of indoor commercial recreation in the lodge’s premises]. This evidence is insufficient to meet the lodge’s burden to show that no conclusive or even controversial facts or conditions exist which offer support for the action of the city’s governing body in enacting or amending an ordinance. Baccus, 454 S.W.2d at 392. If reasonable minds may differ as to whether a particular zoning restriction has a substantial relationship to public health, safety, morals, or general welfare, no clear abuse of discretion is shown by the governing body and the restriction must stand as a valid exercise of the city’s police power. This issue is a question of law, not of fact. City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477, 481 (1955). Since the court granted a motion for judgment at the end of the city’s case-in-chief, the lodge has not yet had an opportunity to meet its burden by direct evidence. The city’s third point of error is sustained.

Further, for the reasons stated above, we also sustain the city’s fourth point of error and hold that under this record the trial court erred in its findings of fact and/or conclusions of law that:

10. Defendants were lawfully conducting Bingo games at 108 Town East Shopping Center on and prior to November 1, 1982.
11. That the Comprehensive Zoning Ordinance of the City of Mesquite does not prohibit the playing of Commercial Bingo.
12. That Commercial Bingo is not “indoor commercial recreation” as defined in the Comprehensive Zoning Ordinance of the City of Mesquite.
* * * * * *
15. That Defendants have not violated the zoning ordinances of the City of Mesquite by conducting bingo games at 108 Town East Shopping Center, Mesquite, Texas.
16. Defendants, as officers of the Improved Order of Red Men — Cherokee # 34, a non-profit fraternal organization have complied with all of the City of Mesquite and State of Texas laws and hold a Texas License to Conduct Bingo at 108 Town East Shopping Center, Mesquite, Texas.
17. That Plaintiff should desist and refrain from interferring [sic] with Defendant’s use of the premises at 108 Town East Shopping Center in Mesquite for conducting bingo games as defined by the Bingo Enabling Act because of any violation of the Comprehensive Zoning Ordinance and/or Ordinance 1838 of the City of Mesquite and from filing and/or prosecuting criminal proceedings against Defendants for alleged violations thereof.
18. The Comprehensive Zoning Ordinance of the City of Mesquite and any amendments thereto, do not prohibit the Improved Order of Red Men — Cherokee #34 from meeting and/or conducting bingo games as defined by the Bingo Enabling Act of Texas at 108 Town East Shopping Center, Mesquite, Texas.

In its second point of error, the city urges that the trial court erred because it enjoined criminal prosecution of appellees without a finding that the applicable city ordinance is unconstitutional. We need not reach this point of error under the state of the record in this case. However, because we are remanding this case for a new trial, we make the following observations. The trial court erred in granting the lodge’s application for injunction when it granted its motion for judgment at the end of the city’s case-in-chief because the evidence offered by the lodge through its cross-examination of the city’s witnesses was insufficient to overcome the presumption of the ordinance’s validity under the Baccus standard. Of course, at that time, the lodge had offered no direct evidence to support its application. The trial court apparently reasoned that, because it concluded that the ordinance did not prohibit commercial bingo at 108 Town East Shopping Center, the lodge was automatically entitled to relief. This is not the law.

The rule is well established that courts of equity will not ordinarily enjoin the enforcement of a penal ordinance even though it is void. But, when the ordinance is void and its enforcement constitutes an invasion of the complainant’s vested property right, its enforcement will be enjoined. City of Kermit v. Spruill, 328 S.W.2d 219, 221 (Tex.Civ.App.—El Paso 1959, writ ref’d n.r.e.). The burden is on the lodge to establish facts which entitle it to an injunction. Roberts v. Gossett, 88 S.W.2d 507, 509 (Tex.Civ.App.—Amarillo 1935, no writ). Thus, the lodge must prove either that the ordinance is invalid and its enforcement invades a vested property right or that the ordinance as applied to its property was arbitrary and unreasonable. City of Fort Worth, 388 S.W.2d at 402. These matters have yet to be developed. Consequently, we hold that the trial court erred in granting the lodge’s application for injunctive relief.

We deny the city’s request that we reverse and render judgment granting it in-junctive relief because the record does not establish that the city is entitled to an injunction as a matter of law. However, since the case must be reversed on the city’s third and fourth points of error, we conclude that the entire case should be remanded for a new trial because additional matters of fact must be ascertained and the matter to be decreed is uncertain. TEX.R.CIV.P. 434. Accordingly, we reverse and in the interest of justice remand the entire case for a new trial. Carnes v. Meador, 533 S.W.2d 365, 372 (Tex.Civ.App.—Dallas 1975, writ ref’d n.r.e.). Further, because we hold that the lodge is not entitled to any relief under this record, the injunction against the city enjoining it from interfering with the lodge’s operation and from criminal prosecution against the lodge is hereby dissolved.

Reversed and remanded for new trial. Costs to appellees.

CARVER, J., dissenting.

CARVER, Justice,

dissenting.

I respectfully dissent and would affirm the trial court’s judgment denying the City the injunction it sought, because the City failed to persuade the trier-of-fact either that bingo was a property use inconsistent with the zoning of the Lodge’s property or that bingo, by its nature, required a special use permit.

The witnesses offered by the City conceded that the zoning ordinance, when written, did not attempt to zone for bingo, whether specifically or as a part of any “special use” provision. Nevertheless, the City sought to persuade the trial court that the terms of the zoning ordinance were broad enough to make bingo an excluded use, or, at least, that bingo requires a “special use” permit. Initially the City points out that its zoning ordinance forbids any use of property if such use is not specifically allowed by the terms of the ordinance. Consequently, since bingo was not named in the zoning ordinance as a permitted use, ipse dixit, such use was prohibited. I would hold that every property owner has the right to use his property as he sees fit unless the City can show that some particular use is so contrary to the health, safety, morals, or general welfare of the community, as to warrant the denial of that particular use. City of Bellaire v. Lamkin, 159 Tex. 141, 317 S.W.2d 48, 47 (1958). I would further hold that no zoning ordinance may turn the law around and merely give the property owner the use, or uses, of his property the City grants while denying all other uses whether or not such other and prohibited uses have or bear a reasonable and substantial relationship to the health, safety, morals, or general welfare of the community. I would reject the City’s first argument that bingo was prohibited because the zoning ordinance did not specifically permit such a use.

The City next argues that even if bingo was a permitted use, (since nowhere prohibited), bingo was still by its nature a use that required a special permit under the zoning ordinance. The City asserts that bingo is an “indoor recreation” as defined in Sec. 43.011 of the City’s zoning ordinance. Sec. 43.011 provides:

43.011 INDOOR AND OUTDOOR COMMERCIAL RECREATION: Any type of commercial recreation or amusement, including but not limited to baseball fields, swimming pools, skating rinks, golf driving ranges, drive-in theaters, miniature golf, carnivals and similar open-air facilities and all indoor facilities provided such establishments shall be a distance of at least one hundred (100) feet from any residential district and that any lighting used to illuminate any commercial recreation shall be so arranged as not to deflect onto any adjacent residential district and all coin-operated music and skill or pleasure machine shall not be exhibited within three hundred (300) feet of a church, school, or hospital....

The majority opinion holds that this section is construed to mean that “indoor commercial recreation means ‘any type of commercial recreation or amusement ... (in) all indoor facilities.’ ” I disagree. Indoor recreation alone bears no reasonable or substantial relationship to the health, safety, morals, or general welfare of the community. If, as with outdoor recreation, noise, congregations of people, parking of cars, night illuminations, and similar intrusions on the neighbors were generated, then the ordinance might bear that “reasonable and substantial relationship” warranting regulation. In this case, the City’s own witnesses testified that there was no observable effect — lights, people, cars, traffic, parking, noise, etc. — occasioned by bingo being played in the Lodge. These same witnesses were unable to factually distinguish the “indoor recreation” offered by the theatre (next door to the Lodge) without a special use permit and the “indoor recreation” of the Lodge playing bingo which, the City urged, required a special use permit. Upon this testimony, I would hold that the City failed to show that bingo-playing in a Lodge located in a commercial area (including a theatre) without generating any noise, lights, traffic hazards, or personal safety hazards, bore any reasonable or substantial relationship to the health, safety, morals, or general welfare of the community so as to justify zoning of special use regulation. I would reject the City’s second argument.

In the absence of any specific use violation, or in the absence of any violation of the special use regulation under the facts, the City failed to make its case for injunction and the trial court properly entered judgment denying the City relief.

I further respectfully dissent to the majority holding that the trial court erred in granting the relief requested in the Lodge’s cross-action. The trial court enjoined the City from attempting to enforce the purported zoning or “special use” regulation, so that there would be no interference with the playing of bingo at the Lodge.

By the testimony of its own witnesses, the City proved the Lodge’s case in that no violation of zoning was shown and no special use permit could be reasonably required. While equity will not ordinarily enjoin the enforcement of a zoning ordinance, including its penal provisions, State v. Logue, 376 S.W.2d 567, 569 (Tex.1964); Kemp Hotel Operating Co. v. City of Wichita Falls, 141 Tex. 90, 170 S.W.2d 217, 219 (1943), there is a recognized exception when the zoning ordinance or its interpretation by the City is unconstitutional or otherwise void. Logue, 376 S.W.2d at 569; City of Austin v. Austin Cemetery Assn., 87 Tex. 330, 28 S.W. 528, 530 (1894). Here, the City sought to take the right of the property owner to play bingo, a lawful act, upon and within an area zoned for uses indistinguishable from bingo. Further, the City sought to exact from the owner the burden and fee for an “indoor recreation” special use permit when bingo did not produce the attributes of noise, lights, traffic, or danger which justified the “special use” regulation by its own terms. I would hold that the Lodge made out its right to equity’s relief from the testimony — nay, confessions — out of the mouths of the City’s own witnesses. Our record is silent as to any lawful justification, in the sense of the preservation of the health, morals, safety Or public welfare of the community, for the City’s effort to impose any restriction upon the Lodge’s conduct of bingo on its premises. The trial court so found; the evidence supports the trial court finding; and this Court is not authorized to substitute its findings for those of the trial court. Consequently, this Court should, and I would, affirm the judgment of the trial court in denying the City relief and granting the Lodge relief.


source: Caselaw Access Project

author: BURGESS, Justice.

license: Public Domain

text:
    James JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 09-83-139 CR.
    Court of Appeals of Texas, Beaumont.
    Dec. 19, 1984.

      Stephen Walley, Silsbee, for appellant.
    John R. DeWitt, Asst. Crim. Dist. Atty., Beaumont, for appellee.
   OPINION

BURGESS, Justice.

Appellant was convicted by a jury of delivery of a controlled substance. The jury assessed punishment at five years in the Texas Department of Corrections. Appellant perfected appeal to this Court alleging fourteen grounds of error.

The first six grounds of error take issue with the trial court’s disposition of the appellant’s “motion to suppress identification”. The trial court dealt with the motion in the following manner:

“[THE COURT]: The next motion is a motion for an identification hearing based on a lineup, either a photo or a person lineup.
“Did the State’s witnesses attend a lineup?
“[STATE’S ATTORNEY]: Your Honor, to my knowledge none of the State’s witnesses for the case-in-chief attended any type of lineup with a photo spread or a live lineup.
“THE COURT: That motion will be denied.”

The trial court certainly did not follow the procedure suggested in Martinez v. State, 437 S.W.2d 842, 848 (Tex.Crim.App.1969). See also Franklin v. State, 606 S.W.2d 818 (Tex.Crim.App.1978); Jordan v. State, 495 S.W.2d 949 (Tex.Crim.App.1973); and Daniels v. State, 464 S.W.2d 368 (Tex.Crim.App.1971). Therefore, there was no “hearing” as such. Two different courts of appeals have addressed the issue of denial of a hearing outside the presence of the jury. Gates v. State, 643 S.W.2d 183 (Tex.App.—Tyler 1982, no writ), and Garcia v. State, 649 S.W.2d 70 (Tex.App.—Corpus Christi 1982, no writ). Garcia, supra, held that the language in Martinez, supra, constitutes a suggested practice and was not mandatory. This opinion was rendered in light of Watkins v. Sowders, 449 U.S. 341, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981), which held that while a judicial determination of the admissibility of identification evidence outside the presence of the jury is advisable, the Constitution does not require a per se rule compelling such a procedure.

The record contains no evidence whatsoever of a lineup. Appellant did not attempt to show by cross-examination that the witnesses’ in-court identifications were tainted by any prior identification. Appellant made no bill of exceptions or offer of proof under TEX. CODE CRIM.PROC.ANN. art. 40.09, sec. 6(d)(1) (Vernon Supp.1984). See Gates supra. Appellant made no objection to the in-court identification of the appellant by the witnesses. Appellant’s grounds of error numbers one through six are overruled.

Appellant’s seventh ground of error alleges the trial court erred in allowing the State to ask their chemist if a “street name” of Pentazocine is “synthetic morphine”. Before a conviction will be reversed the question propounded must obviously be harmful. Sensabaugh v. State, 426 S.W.2d 224 (Tex.Crim.App.1968). In deciding this question, each case must be considered on its own and the entire record with the surrounding circumstances and their possible relationship to other testimony must be looked at in order to determine the probability or possibility of injury. Wood v. State, 511 S.W.2d 37 (Tex.Crim.App.1974). Having done this, we find no reversible error and overrule ground of error number seven.

In ground of error number eight, the appellant asserts the trial court erred in restricting the appellant’s counsel’s cross-examination of a witness in two instances. Even if the questions were relevant and the answers thus admissible, we cannot conclude, in light of the entire record, that the trial court’s exclusion constitutes reversible error. Parrish v. State, 614 S.W.2d 161 (Tex.Crim.App.1981). Ground of error number eight is overruled.

Appellant’s grounds of error nine and ten complain of the trial judge’s refusal to submit requested instructions regarding an “extraneous alibi” and an “extraneous offense”. It is proper to refuse to give special requested charges which are vague and misleading and do not directly state the law. Gill v. State, 670 S.W.2d 758, 761 (Tex.App.—Corpus Christi 1984, no writ). See also Stewart v. State, 438 S.W.2d 560 (Tex.Crim.App.1969). The trial court gave proper instructions. Grounds of error nine and ten are overruled.

Appellant’s next ground of error is as follows: “The trial judge erred in not suppressing certain comments of the district attorney of [sic] the trial judge’s own motion.”

Appellant, apparently recognizing that there is much authority requiring an objection in order to preserve error, asks this Court to impose a duty upon the trial judge to “suppress certain comments of the district attorney” absent a proper objection. This we decline to do. See Sanchez v. State, 589 S.W.2d 422 (Tex.Crim.App.1979). Appellant’s ground of error eleven is overruled.

Appellant’s twelfth ground of error apparently questions the sufficiency of the evidence regarding the name alleged in the indictment and the proof of the appellant’s association with the name “James Jones”. After reviewing the complete record and in consideration of the standard for review enumerated in Banks v. State, 510 S.W.2d 592 (Tex.Crim.App.1974), and restated in Combs v. State, 643 S.W.2d 709 (Tex.Crim. App.1982), we find the evidence sufficient to sustain the verdict. Ground of error number twelve is overruled.

Ground of error thirteen claims cumulative error. This ground does not comply with TEX.CODE CRIM.PROC.ANN. art. 40.09, sec. 9 (Vernon Supp.1984), and will not be reviewed. Love v. State, 533 S.W.2d 6 (Tex.Crim.App.1976).

Appellant’s final ground of error concerns the overruling of appellant’s objection to the State’s attorney’s question relating to the means of introducing “sets” into the human body. Appellant’s trial objection was to relevancy. We find the question to be relevant in terms of enabling the jury to understand the nature and circumstances of the offense. Relevant evidence, admissible during the punishment hearing, is not limited to evidence of appellant’s prior criminal record, character and reputation. Basaldua v. State, 481 S.W.2d 851 (Tex.Crim.App.1972). Ground of error number fourteen is overruled.

The judgment of the trial court is affirmed.

Affirmed.

      . Appellant did reurge his request for a hearing outside the presence of the jury, which was overruled.

      . "Sets” is the street name for the mixture of Tripellanimine and Pentazocine.


author: DIES, Chief Justice.

text:
    William Green SHANE, Appellant, v. The STATE of Texas, Appellee.
    No. 09 84 041 CR.
    Court of Appeals of Texas, Beaumont.
    Dec. 19, 1984.

      David Bonham, Nederland, for appellant.
    Fred Marsh, Asst. Dist. Atty., Denton, for appellee.
   OPINION

DIES, Chief Justice.

Appellant was convicted by a jury for indecency with a child, and the jury assessed his punishment at ten years confinement in the Texas Department of Corrections. Appeal has been perfected to this Court on one ground of error, viz:

“The Court erred in submitting the case to the Jury in that there was no evidence or insufficient evidence to support each element of the offense.”

TEX.PENAL CODE ANN sec. 21.11 (Vernon Supp.1984) provides in part:

“(a) A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he:
“(1) engages in sexual contact with the child; or
“(2) exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of any person.”

Appellant and his wife lived in a mobile home which had two bedrooms, one at each end. Appellant and his wife had kept complainant’s two daughters many, many times, partly because of the separation of complainant and her husband. In December of 1982, it was alleged that one of complainant’s daughters was spending the night at appellant’s home, sleeping with his younger daughter.

The victim gave the following testimony:

“I was in the bed with [appellant’s daughter] and he [appellant] came in the room and he pulled down the covers and he raised up my nightgown and stuck his hand in my panties.”

The State had the burden to prove the requisite culpable mental state, to-wit: “with intent to arouse or gratify the sexual desire of any person.” Polk v. State, 547 S.W.2d 605 (Tex.Crim.App.1977); Victory v. State, 547 S.W.2d 1 (Tex.Crim.App.1976). However, this can be inferred from the defendant’s conduct, his remarks and all the surrounding circumstances. Bowles v. State, 550 S.W.2d 84 (Tex.Crim.App.1977).

The child also gave the following testimony:

“Q. Let me ask you this in that regard. When this occurred out there that night, and you were in the bedroom there laying [sic] in the bed, did the Defendant say anything to you that night?
“A. Yes, sir. He threatened to kill me and my family.
“Q. Okay. And what did he say to you? Why did he say he was gonna kill you or your family?
“A. If I told anything.
* * * * * *
“Q. So the defendant ... told you that night that if you told 'anybody that he would hurt you, is that correct?
“A. Yes, sir.
* ⅜ * * * ⅜
“Q. Did he make any threats against your father if you told your father?
“A. Yes, sir.
“Q. Did he threaten your mother?
“A. Yes, sir.
* * * # * *
“Q. Are you afraid today?
“A. Yes, sir.”

This testimony, which the jury obviously believed, shows that appellant knew what he was doing was wrong and punishable. The testimony is a circumstance inferring he did what he did with intent to arouse or gratify his sexual, desire. This ground of error is overruled.

The judgment of the trial court is affirmed.

Affirmed.


text:
    Russell Kenton COLEMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 09-84-072 CR.
    Court of Appeals of Texas, Beaumont.
    Dec. 19, 1984.
    Rodney Conerly, Port Arthur, for appellant.
    John R. DeWitt, Asst. Criminal Dist. Atty., Beaumont, for appellee.
   OPINION

DIES, Chief Justice.

In a bench trial appellant was convicted of terroristic threat and sentenced to sixty days in jail. Appeal has been perfected to this Court!

Appellant’s first ground of error urges the evidence to be insufficient to sustain a conviction. The court suppressed, on motion by appellant, all actions and statements by appellant at the time of and subsequent to his arrest. This, says appellant, leaves no or insufficient evidence to support the conviction.

The Central Dispatcher in Neder-land on the night of December 5, 1983, received a call of a disturbance in Port Neches. She dispatched the Port Neehes Police to the address. Officers Cole and Adams arrived at about the same time; Sergeant Reynold, a little later. Cole and Adams testified on arriving that they heard appellant scream, “Get the fuck out of here son of a bitches. I got something for you.” At that, they heard a shotgun being pumped. After discussion with the officers, one of them gained access to the house. It was only after this that appellant was placed under arrest. So his screaming and loading the shotgun were done before arrest and not in violation of the court’s order to suppress. This ground of error is overruled.

Appellant’s second ground of error assigns error for the failure of the trial court to dismiss for failure to afford a speedy trial. Under the number 109,960, appellant was charged with reckless conduct on December 7, 1983. Under this charge, appellant signed a waiver of his rights to a speedy trial. That case was dismissed on March 20, 1984. On the same day, under number 111,896, the case on review (terror-istic threat) was filed. The judge stated in the record “that in cause number 111,896 there appears to be a docket entry of March 27, 1984 ... where the Assistant District Attorney ... announced the State was ready for trial.” The court took judicial notice of both files and that “the Defendant as well as his attorney waived all rights under the Speedy Trial Act in the old cause, 109,960. It is also my understanding that the state of the law is today that the time for speedy trial will not begin to run until the date of the dismissal and then the date of either the Defendant waiving that right [which did not occur in the terroristic threat case] under the new case or the State announcing ready for trial [which the State did shortly after the ter-roristic threat case was filed].”

In Cole v. State, 650 S.W.2d 818, 820 (Tex.Crim.App.1983), an en banc court addressed this situation:

“The state maintains that the appellant failed to demonstrate that the dismissal of Cause No. 76,260 and the commencement of Cause No. 85,791 was initiated to circumvent the Speedy Trial Act. However, careful reading of the Act leads us to conclude the motives for changing the Cause Numbers is immaterial to determine compliance. The Act addresses and anticipates situations where an indictment/information is dismissed and another is substituted to replace it, both arising from the same transaction, [the situation in the case at bar]
“ ‘Sec. 4. In computing the time by which the State must be ready for trial, the following periods shall be excluded:
* * * * * #
“ ‘(7) if the charge is dismissed upon motion of the state or the charge is disposed of by a final judgment and the defendant is later charged with the same offense or another offense arising out of the same transaction, the period of delay from the date of dismissal or the date of the final judgment to the date the time limitation would commence running on the subsequent charge had there been no previous charge.’
“It is reasonable to infer that by excluding the time between dismissal and the bringing of the new charge the time which elapsed under the first charging instrument is to be included in computation, and we so hold. See Durrough v. State, 620 S.W.2d 134 (Tex.Cr.App.1981) at page 139.”

Durrough v. State, supra, at 139, which the Court refers to with approval, reads thusly:

“This exclusion is designed to prevent abuse of the time limits by the State, and it should be construed to provide that the defendant is entitled to add (to the time on the subsequent charge) the time which expired while the previous charge was pending.”

The question we ponder is, What is the time elapsed under the first charging instrument? Durrough v. State, supra, at 140, gives us some indication of the Court of Criminal Appeals’ attitude:

“In the circumstances of this case we hold that the periods of delay resulting from continuances in the previous cause granted at the request of the defendant were excluded properly from the computation of time in the subsequent cause. The trial court acted correctly in ‘transferring’ the waivers." (emphasis supplied, footnote omitted)

In the case at bar, the trial judge at the commencement of the trial stated that defendant was first arrested on December 5, 1983. The reckless conduct charge was filed December 7, 1983 (No. 109,960). On December 12, 1983, defendant waived all rights to a speedy trial. The judge pronounced, “I want the record to reflect that I am going to take judicial notice of everything in both files ...” (and the court specifically included the waiver). The reckless conduct charge was dismissed March 20, 1984, and the case we now review, terroristic threat, was filed the same day. Seven days later, on March 27, 1984, the State announced ready for trial. So computing as we perceive the time as directed by our Court of Criminal Appeals, seven days elapsed under the first charge which, added to seven days under the second charge, is fourteen days. This, of course, is less than the sixty days set forth in the Act. This ground of error is overruled.

The judgment of the trial court is affirmed.

        . TEX.PENAL CODE ANN. sec. 22.07 (Vernon Supp.1984):
      "(a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to:
      (1) cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies;
      (2) place any person in fear of imminent serious bodily injury; or
      (3) prevent or interrupt the occupation or use of a building; room; place of assembly; place to which the public has access; place of employment or occupation; aircraft, automobile, or other form of conveyance; or other public place; or
      (4) cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service.”

      . It was a 12 gauge shotgun found in the bedroom with three shells in it.

      . It seems the dispatcher understood from the call (from appellant's sister-in-law) that appellant’s wife and four children were being possibly held as hostages. They were not actually in the house at this time. At any rate, the officers wanted to gain entrance to see if they were in the house or in trouble.

      . TEXCODE CRIM.PROC.ANN. art. 32A.02, sec. 3 (Vernon Pamph.Supp.1984).
      The offense of terroristic threat is a Class B misdemeanor [TEX.PENAL CODE ANN. sec. 22-07 (Vernon Supp.1984) ], punishable at confinement in jail for a term not to exceed 180 days. [TEX.PENAL CODE ANN. sec. 12.22(2) (Vernon 1974) ] Therefore, under the Speedy Trial Act [TEXCODE CRIM.PROC.ANN. art. 32A.02, sec. 1(3) (Vernon Pamph.Supp.1984) ], "A court shall grant a motion to set aside an indictment, information, or complaint if the state is not ready for trial within: ... 60 days of the commencement of a criminal action if the defendant is accused of a misdemeanor punishable by a sentence of imprisonment for 180 days or less or punishable by a fine only.”


author: STOREY, Justice.

text:
    ALLTEX CONSTRUCTION, INC., d/b/a Willow Point Apartments, Appellant, v. Riyad ALAREKSOUSSI, Appellee.
    No. 05-83-01378-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 31, 1984.
    Rehearing Denied Feb. 1, 1985.

      Kenneth R. Stein, Matthews, Allen, Carlton & Stein, Dallas, for appellafat.
    Brian K. Bates, Samuel M. Tidwell & Assoc., Dallas, for appellee.
    Before STOREY, VANCE and ALLEN, JJ.
   STOREY, Justice.

The issues presented in this landlord-tenant case are (1) /vhether there is sufficient evidence to support a jury finding of bad faith in withholding a security deposit and (2) whether attorney’s fees awarded were reasonable and supported by the evidence. We hold that the record supports the jury’s findings of bad faith and that the attorney’s fees, as reduced by the trial court’s order of remittitur, are reasonable and supported by the evidence. Accordingly, we affirm the judgment.

Riyad Alareksoussi, the tenant, filed suit against Alltex Construction, Inc., the landlord, when Alltex withheld Alareksoussi’s $150.00 security deposit and billed him an additional $72.00 for alleged damage to the carpet and for general cleaning. Suit was brought under Act of June 14, 1973, ch. 433, 1973 Tex.Gen.Laws 1182 (Tex.Rev.Civ. Stat.Ann. art. 5236e, codified at TEX. PROP.CODE ANN. §§ 92.101-.109 (Vernon 1984)).

We note at the outset that Alltex furnished a written description and itemization of its claimed deductions within 30 days after Alareksoussi’s removal from the premises, as required by statute. See TEX.PROP.CODE ANN. §§ 92.103(a), 92.-104(c) (Vernon 1984). Consequently, no presumption of bad faith on the part of Alltex in withholding the security deposit exists. See TEX.PROP.CODE ANN. § 92.-109(d) (Vernon 1984). The question presented, therefore, is whether the jury finding of bad faith on the part of Alltex finds support in the evidence. Alltex contends that there is no evidence or, alternatively, insufficient evidence to support the finding. We will first consider the sufficiency contention And, in so doing, weigh all the evidence in the case and set aside the verdict only if it is so against the weight and preponderance of the evidence as to be manifestly unjust. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). 7

The test for “bad faith” under section 92.109 has been held to be whether the landlord acted in “dishonest disregard of the rights of the tenant” — it is said to imply an “intention to deprive the tenant of the refund lawfully due.” Wilson v. O’Connor, 555 S.W.2d 776, 780 (Tex.Civ.App.—Dallas 1977, writ dism’d). Following Wilson, we hold that more is required to prove bad faith than the mere inability of the landlord to sustain his burden of proving that his deductions were reasonable. Here, the jury found that the $40.00 for cleaning and $177.00 for replacing carpet were not reasonable deductions. Additionally, the jury found that those charges were made in bad faith. This latter finding subjected Alltex to penal sums under the statute of $100.00, treble damages and attorney fees.

The testimony before the jury was conflicting. Regarding the condition of the carpet, Alareksoussi testified that it was stained and spotted when he moved in. The stains and spots were noted on a check-in inventory sheet which was introduced at trial. Alareksoussi testified that he asked the manager to have it cleaned several times but that this was never done. He also testified that as a full-time architecture student he spent most of his time at school; that he never threw wild parties; that he did not keep any pets; and that his only visitors were his friend, Janet Jones, and his father.

Janet Jones testified that the carpet appeared dirty, stained, and had a lingering musty smell when Alareksoussi first moved in. She also testified that he had a lot of furniture which covered most of the living room floor. They both testified that they vacuumed the carpet when Alarek-soussi moved out and that it looked the same as when he moved in.

Donna Reading, an assistant manager at the apartments, testified for Alltex. She testified that the carpet was not new when Alareksoussi moved in and agreed that it had the stains to which Alareksoussi and Jones testified. Nevertheless, Reading testified that when Alareksoussi moved in the carpet was “in excellent shape,” but when he moved out the entire living-dining room area was matted, dark, stained, and unre-deemable through cleaning. She testified that in a six-month period, the term of the lease, this condition could only have resulted from abuse beyond normal wear and tear, that the carpet was then only two years old, and that most of the apartments’ carpets have lasted four years. However, she did not know or have any speculation as to how the carpet attained its condition; she had never been in Alareksoussi’s apartment during his tenancy and the management had never received complaints about Alareksoussi. She denied knowledge that Alareksoussi ever requested that his carpet be cleaned.

Reading further testified that she charged Alareksoussi $177.00 because that was approximately half the cost of replacing the carpet. She stated that she charged only behalf because there were stains on the carpet before he moved in. She stated that the $177.00 figure was based on “calls to several carpet replacement people” resulting in an average price for new carpet. She testified that new carpet was later purchased for the apartment.

Regarding the cleaning charges, Alarek-soussi and Jones testified that they thoroughly cleaned the apartment and, specifically, that each had cleaned the kitchen and bathroom. Reading testified that four hours of cleaning at ten dollars per hour were done to correct problems beyond ordinary wear and tear. They “recleaned everything,” specifically, the shower tile, the outside of the cabinets, the refrigerator, and the stove.

Also before he left, Alareksoussi requested the management to give him a joint inspection on three separate occasions, but he was put off each time. Later, he received a letter from Alltex informing him of total charges against his deposit of $222.00: $5.00 for a light bulb, $40.00 for “4 hrs. cleaning 10.00 hr.,” and $177.00 for “carpet very soiled and stained.”

This evidence is clearly sufficient to support the jury’s finding that the charges made by Alltex were not reasonable. This is true if for no other reason than the jury was the sole judge of the credibility of the witnesses. However, conflicting evidence on the condition of the apartment alone would hardly be sufficient to prove bad faith on the part of Alltex at the time the charges were demanded. We conclude, nevertheless, that this evidence coupled with certain uncontroverted testimony before the jury is sufficient to support the finding of bad faith.

The uncontroverted evidence shows that: (1) the carpet was not new and was spotted and stained before Alareksoussi. moved in; (2) Alltex knew of the carpet’s condition because their own records show the carpet was damaged before Alareksoussi moved in; (3) Alltex charged an arbitrary amount for alleged damages to the carpet; (4) the charge for the carpet was not based on actual cost; (5) the itemized list of deductions was vague and ambiguous; and (6) despite his repeated requests, Alltex did not give Alareksoussi a joint inspection of the apartment when he checked out.

From these facts combined with the fact that Alltex failed to prove the charges were reasonable, the jury could have found that Alltex acted in dishonest disregard of Alareksoussi’s rights and, therefore, had the intent to deprive him of the refund Alltex knew or had reason to know was lawfully due. We cannot say that the evidence in support of the jury finding is so weak or that the contrary evidence is so overwhelming that the finding should be set aside. Accordingly, the judgment is also affirmed with respect to the “no evidence” complaint.

Next, appellant complains that the trial court erred in awarding Alareksoussi attorney’s fees of $3000.00 because that amount is excessive, unreasonable, and not supported by sufficient evidence. Alareksous-si complains that the trial court’s order of a $1000.00 remittitur was an abuse of discretion.

Alareksoussi’s attorney testified that the time expended on this case through post trial motions would amount to about $4000.00, that his rate was reasonable, and that the time spent on the casé was reasonable and necessary. The jury found $4000.00 to be a reasonable attorney’s fee. We hold that the evidence presented was sufficient to support the jury finding. The trial court found this amount to be excessive and ordered a re-mittitur of $1000.00. We are not persuaded that $3000.00 for attorney’s fees is excessive, nor do we find that the order of remittitur was manifestly unjust. “We are reluctant to substitute our notion of exces-siveness for both that of the jury and of the trial court.” Accent Builders Co. v. Southwest Concrete Systems, Inc., No. 82-1478 (Tex.App.—Dallas, Aug. 28, 1984, writ requested) (not yet reported). Accordingly, we affirm the award of attorney’s fees.

Affirmed.


author: ELLIS, Chief Justice, Retired.

text:
    Charles G. FLOYD, Jr., Appellant, v. PARK CITIES PEOPLE, INC., & Phil Stephens, Appellees.
    No. 05-84-00012-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 8, 1985.
    Rehearing Denied Feb. 11, 1985.

      Bruce W. Bowman, Rebecca L. Burt, Yial, Hamilton, Koch, Tubb & Knox, Dallas, for appellant.
    C. Taylor Ashworth, Bird, Reneker & Ashworth, Dallas, for appellee.
    Before GUITTARD and ELLIS C. JJ., and GUILLOT, J.

       The Honorable James A. Ellis, Chief Justice, Seventh Supreme Judicial District, Retired, sitting by assignment.

   ELLIS, Chief Justice, Retired.

Charles G. Floyd, Jr., plaintiff below, appeals a summary judgment rendered against him in favor of the defendants, Park Cities People, Inc. and Phil Stephens. The principal question presented is whether there is sufficient summary judgment proof to establish as a matter of law that there is no genuine issue of fact as to whether Park Cities People and Stephens invaded Floyd’s privacy. We hold that there is sufficient proof, and therefore, we affirm.

Floyd sued Park Cities People, a Park Cities’ newspaper, and Stephens, its managing editor, after they published a photograph of Floyd’s front yard, in which he is visible standing on his front porch. Floyd alleged that the photograph was published without his consent and that this publication gave unreasonable publicity to his private life, was an unreasonable intrusion into his privacy, and unreasonably placed him in a false light before the public. The summary judgment proof offered by Park Cities People and Stephens is that Floyd’s front yard had become the subject of a controversy which was publicly debated before the Highland Park Town Council and that in reporting on the debate Stephens photographed the yard and Floyd, who was standing on his front porch in full view of the public.

In order to sustain an action for invasion of privacy of the type alleged here, a plaintiff must show an intentional intrusion upon his solitude, seclusion, or private affairs that would be highly offensive to a reasonable person; or that false statements of facts were publicized about him. Gill v. Snow, 644 S.W.2d 222, 224 (Tex.App.—Fort Worth 1982, no writ). Park Cities People and Stephens have brought sufficient summary judgment proof that the information they published was already part of the public record and was a true and accurate account of a matter of public interest. In order to uphold a summary judgment, the moving party must establish that, as a matter of law, there is no genuine issue of fact as to one or more of the essential elements of the plaintiffs cause of action. Farley v. Prudential Insurance Company, 480 S.W.2d 176, 178 (Tex.1972). Park Cities People and Stephens have established that there is no genuine issue of fact as to any of the elements of Floyd’s cause of action. Therefore, we hold that summary judgment was properly rendered.

We have considered Floyd’s other two grounds and find no merit in them. His contention that he was improperly denied the right to amend his pleadings is not well taken because the summary judgment is based on affidavits attached to the motion rather than the insufficiency of his petition. His complaint of the trial court’s consideration of letters from counsel is not well taken because the letters are only discussions of the law. Consequently, these points, also, are overruled.

Affirmed.


author: PER CURIAM.

text:
    PRESTON TOWER CONDOMINIUM ASSOCIATION, Appellant, v. S.B. REALTY, INC., Walter F. Schroeder, Gary D. Baumgart and Jay Kleinneiur, III, and Wife Marjorie, Appellees.
    No. 05-83-01243-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 9, 1985.

      P. Michael Jung, Randal Mathis, Stras-burger & Price, Dallas, for appellant.
    Ira E. Tobolowsky, Carol M. Shosid, Dallas, for S.B. Realty, Inc., Walter F. Schroeder and Gary D. Baumgart.
    Joe Chumlea, Dallas, for Jay Kleinneiur, III and wife Marjorie.
    Before GUITTARD, C.J., and STEPHENS and STEWART, JJ.

      . This opinion was prepared and approved by Justice Stewart prior to the expiration of her term of office on December 31, 1984.

   PER CURIAM.

Appellant, Preston Tower Condominium Association, appeals a summary judgment granted to appellees, S.B. Realty, Gary D. Baumgart, Walter F. Sehroeder, and Mr. and Mrs. Jay Kleinneiur, III. Preston Tower first contends that the trial court erred in granting the appellees’ motion for summary judgment based on the unconstitutionality of an age restriction clause and second that the trial court erred in overruling Preston Tower’s motion for summary judgment because it is not barred from enforcing the restriction by waiver, estop-pel, or laches. Point of error number one is sustained and point of error number two is overruled. We reverse the judgment of the trial court and remand the cause for trial on the merits.

On April 15, 1981, appellees Mr. & Mrs. Jay Kleinneiur, III, parents of a daughter younger than sixteen years of age, leased a unit in the Preston Tower Condominiums owned by appellees S.B. Realty, Walter Sehroeder, and Gary Baumgart. Section 7(a), article XI of Preston Tower’s bylaws prohibited the permanent residency of any person under age sixteen in any unit in the complex. Section 7(a) also provided certain exceptions to the age restriction and defined the term “permanent resident.” The lease form provided that the unit to be leased would be utilized as a single family residence “by persons over the age of sixteen”; however, the phrase “persons over the age of sixteen” was struck from the Kleinneiurs’ lease.

.When Preston Tower learned of the lease, the Kleinneiurs were notified by a carbon copy of a letter addressed to Sehroeder at S.B. Realty that persons under age sixteen were not permitted to live at Preston Tower Condominiums and that the lease signed April 15, 1981, with the age restriction excised was unacceptable. On June 3, 1981, on behalf of the Kleinne-iurs, S.B. Realty requested a special exception to the age restriction. The board of directors of Preston Tower denied this request. Preston Tower again informed S.B. Realty and the Kleinneiurs that it intended to enforce the restriction and that legal action would be taken if the Kleinneiurs did not comply with the age restriction.

The Kleinneiurs failed to comply with the restriction, and Preston Tower filed suit on January 12, 1982, seeking a permanent injunction enjoining the Kleinneiurs from violating the age restriction contained in its bylaws. The Kleinneiurs filed their motion for summary judgment on December 7, 1982, alleging that (1) the enforcement of the age restriction contained in Preston Tower’s bylaws would be in violation of their federal constitutional rights under the fourteenth amendment, and (2) the bylaw at issue was ambiguous and unenforceable. Preston Tower filed its response and its own motion for summary judgment on January 4, 1983. S.B. Realty, Sehroeder, and Baumgart filed their first amended motion for summary judgment on January 5, 1983. The trial court overruled Preston Tower’s motion for summary judgment, granted the appellees’ motions on the ground of the unconstitutionality of the age restriction, but denied the motions in all other respects.

By its first point of error, Preston Tower •contends that the trial court erred in granting the appellees’ (hereinafter referred to collectively as the Kleinneiurs) motions for summary judgment because of the unconstitutionality of the age restriction contained in section 7(a), article XI of Preston Tower’s bylaws. We agree.

Neither Preston Tower nor the Kleinne-iurs have cited Texas authority to support their contentions on the issue of age restrictions in condominium association bylaws, and we have found none on point. As there is very little Texas law on this subject, we turn to our sister states for guidance in this matter.

The Kleinneiurs do not dispute the general constitutionality of condominium association bylaws which place, restrictions on occupancy by children. Nor do they dispute that age restrictions can be used to accomplish the lawful purpose of providing appropriate housing for differing age groups. The Kleinneiurs contend, however, that, because of the exceptions in it, the instant age restriction does not prevent children from permanently living at Preston Tower Condominiums; it only prevents children from moving into the condominiums or from continuing to reside there if they are born within the first seven months of their parents’ ownership or occupancy. In other words, it is the Kleinneiurs’ contention that because there are express exceptions to an otherwise valid restriction, the restriction is inherently unreasonable and bears no relationship to any legitimate objective and, further, that it could only be applied in a discriminatory and arbitrary fashion.

Courts which have examined the constitutionality of age restrictions have held that such a provision is not unconstitutional unless it is unreasonable or unless it is arbitrarily applied. White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1979); Riley v. Stoves, 22 Ariz.App. 223, 526 P.2d 747 (1974). In White Egret the Florida Supreme Court wrote:

The law is now clear that a restriction on individual rights on the basis of age need not pass the “strict scrutiny” test, and therefore age is not a suspect classification. See Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). We do recognize, however, that these age restrictions cannot be used to unreasonably or arbitrarily restrict certain classes of individuals from obtaining desirable housing. Whenever an age restriction is attacked on due process or equal protection grounds, we find the test is: (1) whether the restriction under the particular circumstances of the case is reasonable, and (2) whether it is discriminatory, arbitrary, or oppressive in its application.

379 So.2d at 351.

The Kleinneiurs agree that this is the standard to be used. However, they argue that as applied to them, the age restriction at issue is discriminatory, arbitrary, oppressive, and bears no rational relation to a lawful objective. The Kleinneiurs also cite White Egret as authority for their position because in that case the court held that although the bylaw prohibiting residency of children under the age of twelve was per se lawful, it was being applied in a discriminatory fashion through selective enforcement, based on the evidence that six children under twelve resided there.

Preston Tower argues that the subject bylaw was promulgated with two goals in mind. The first of these goals was to create a child-free environment, and the second goal was to avoid unusually great hardship in cases where application of the general rule would produce that result. Preston Tower contends that, because the exceptions contained in the age restriction are calculated to specifically avoid oppressive results, the constitutional test set out in White Egret has been met.

The first portion of section 7(a), article XI of Preston Tower’s bylaws prohibits occupancy by persons under age sixteen. The Kleinneiurs do not contest this section of the restriction; and as stated above, age restrictions in condominium documents are not unconstitutional per se. Age limitations or restrictions are reasonable means to accomplish the lawful purpose of providing appropriate facilities for the differing housing needs and desires of varying age groups. White Egret, 379 So.2d at 351. Thus, we hold that this portion of the bylaw is valid.

However, the bylaw at issue also provides for two express exceptions to the “no children” policy. The first exception applies to “persons under the age of sixteen ... who were residents of the Project at the time the Declaration [was] filed.” Preston Tower asserts that the obvious purpose of this “grandfather” clause was to avoid forcing the existing owners with children to move away when the condominium association was created. Although S.B. Realty, Schroeder and Baumgart do not specifically address this exception, the Kleinneiurs concede its validity.

The second exception concerns “children born of Owners who at the time of such birth had been Owners or residents of the Project in excess of seven ... months.” These children were permitted to continue their residency in the project. This exception applies only to children born after the first seven months of their parent’s ownership or occupancy. Preston Tower urges that the purpose of this exception is the avoidance of the hardship of a forced sale or move to existing owners or residents as opposed to nonresident parents and those who know they are parents-to-be who have the option of purchasing or living elsewhere.

The Kleinneiurs, however, question limiting the exception to children of owners and keying the seven-month period to the inception of ownership or residency. This section of the bylaws gives a tenant who gives birth to a child more than seven months after moving into the unit the option of becoming an owner, by purchasing the unit, or moving elsewhere. In addition, those owners who do not reside at Preston Tower condominiums but who purchased their units seven months or more before a child is born, provided that they do not already have a child under sixteen years of age, may continue to reside elsewhere and at any time may move into their Preston Tower unit.

The Kleinneiurs contend that these exceptions are arbitrary and unreasonable and that they defeat the allegedly legitimate goal to create a child-free environment. We disagree. We conclude that both the distinction between tenants and owners and the requirement of ownership or residence in excess of seven months are reasonable means of achieving the legitimate goals of maintaining a virtually child free environment without undue hardship to present owners and residents. See Flowers v. John Burnham and Co., 21 Cal.App.3d 700, 98 Cal.Rptr. 644 (1971).

The restriction defines the term “permanent resident” as “any person who resides in the Project more than one hundred ... days out of any year.” The record reflects that the purpose of this provision is to provide a means to differentiate between residents and visitors. Preston Tower argues that the 100-day period was not randomly chosen, but was designed to encompass the most common visitations situations. This is a rational means of making that distinction.

The final provision allows the board of directors to “make special exceptions to this restriction for exceptional circumstances upon written application of an Owner.” The alleged purpose of this provision is to give the directors some discretion to make exceptions to avoid injustice. Also, the bylaws contain a check on what might be unbridled discretion on the part of the board of directors. The requirement that any special exception “must be set forth in writing with reason given for the granting thereof” forces the board of directors to publicly articulate the rationale for granting an exception and ensures that reasonable criteria be used. We also point out that, although there is a provision for special exceptions, no special exception has ever been granted. We conclude that this portion of the bylaw is a reasonable means to achieve the goal of avoiding undue hardship and, thus, does not constitute an unreasonable restraint. Seagate Condominium Association, Inc. v. Duffy, 330 So.2d 484, 486 (Fla.Dist.Ct.App.1976).

Condominium rules generally fall into one of two categories: those set out in the declaration of condominium, and those promulgated by the board of directors. Hidden Harbour Estates v. Basso, 393 So.2d 637, 639 (Fla.Dist.Ct.App.1981). A rule set.out in the declaration, as was the present rule, is clothed with a strong presumption of validity arising from the fact that each owner purchases the unit knowing and accepting the restrictions imposed. Id. Florida law makes full disclosure of the declaration of condominium mandatory. FLA.STAT. 718.503(2)(a) (1983). This type of restriction is similar to a covenant running with the land and will not be invalidated without a showing that the restriction is arbitrary in its application, against public policy, or abrogates some fundamental constitutional right. Hidden Harbour Estates, 393 So.2d at 640. As a result, it is possible for a use restriction in a condominium declaration to have a certain degree of unreasonableness and still withstand attack in the courts. Id.

The Florida cases are based on the rationale that the provisions of a declaration are entitled to a strong presumption of validity because the purchaser knows of and accepts the restrictions imposed. Although Texas has no statute comparable to FLA.STAT. § 718.503(2)(a) (1983), the Kleinneiurs were nevertheless put on notice by the clause in their lease stating that each lessee was obligated to comply with “all terms, conditions, agreements, covenants and provisions of the Condominium Declaration, its Bylaws and its Rules and Regulations.” Flack v. First National Bank of Dalhart, 148 Tex. 495, 226 S.W.2d 628, 632 (1950). Therefore, they had a duty to inquire about the provisions of the Preston Tower declaration. The clause was not deleted or modified; thus, the Kleinneiurs contracted to be bound by the provisions of the declaration. Royal Indemnity Company v. Marshall, 388 S.W.2d 176, 181 (Tex.1965). We conclude that under these facts the predicate of notice and acceptance of the restrictions imposed by a declaration has been satisfied. Therefore, it is proper to apply a strong presumption of validity to the provisions of the Preston Tower declaration against the Kleinneiurs.

For the foregoing reasons, we hold that the age restriction contained in appellant’s bylaws is reasonable and therefore satisfies the first prong of the White Egret test for constitutionality.

Under the second prong of this test, we must determine whether, under the circumstances of the instant case, Preston Tower’s enforcement of the age restriction against the Kleinneiurs was selective or arbitrary. The Kleinneiurs contend that other children live in the complex, but Preston Tower argues that only one child lives there, and that this child meets an exception to the age restriction. However, the deposition testimony of both Robert Cochran, president and member of the board of directors of Preston Tower Condominiums, and Christine Matagrano, manager of Preston Tower Condominiums, does not support this position. Although both assumed an exception had been met, neither Cochran nor Matagrano actually knew whether this child qualified for an exception.

While it could be inferred from the record that parents with children younger than sixteen years of age lived in the complex, there were also inferences that some of .the children seen around the complex were visiting grandparents or a divorced parent. These inferences, however, were not fully developed or refuted by either the Kleinneiurs or Preston Tower. In addition, Cochran admitted that other children did in fact live in the complex. This admission was tempered, however, by Cochran’s belief that these children met an exception. Although there appear to have been no formal procedures used to determine if the age restriction was being enforced, the' record reflects that employees were instructed that children were not permitted as permanent residents, all reports that children were residing in the complex were investigated, and owners were advised that Preston Tower intended to enforce the age restriction. Nevertheless, no attempt was ever made to survey the residents to see if there were any violations, and it appears that the enforcement procedures consisted of Preston Tower trying to keep informed and asking owners to make all leases available to it for review. Preston Tower, however, had no legal right to review leases and not all of the owners presented their leases for review. In light of the conflicting and inconclusive evidence, we hold that there are questions of fact to be resolved in determining whether the enforcement of the bylaw against the Kleinneiurs would be selective or arbitrary.

In its second point of error Preston Tower contends that the trial court erred in overruling its motion for summary judgment because the doctrines of waiver, es-toppel, or laches would not bar it from enforcing its age restriction. The Kleinne-iurs respond to this contention by asserting that there are disputed facts concerning those defenses.

The Kleinneiurs argue first that Preston Tower waived the age restriction. Waiver has been frequently defined as an intentional relinquishment of a known right or as intentional conduct inconsistent with such right. Massachusetts Bonding & Insurance Co. v. Orkin Exterminating Co., 416 S.W.2d 396, 401 (Tex.1967). Waiver implies a choice or an election to dispense with something of value or to forego some advantage that might have been demanded. The Kleinneiurs claim that Preston Tower assured them prior to their leasing the unit that its board of directors would not enforce the age restriction. The Kleinneiurs also allege that, with knowledge that their minor daughter was moving into the complex, Preston Tower assisted, participated, and otherwise assented to their move-in as well as failed to prevent the move-in and refurbishment of their unit.

Second, the Kleinneiurs’ contend that Preston Tower is estopped from enforcing the age restriction because it knew the Kleinneiurs and their daughter intended to move into the complex but did nothing to stop them and because other non-exempt children reside at Preston Tower Condominiums.

The Kleinneiurs’ third affirmative defense to Preston Tower’s enforcement of the age restriction is laches. Laches, similar to estoppel, rests on the theory that because of the staleness of the demand, the defendant would be unconscionably prejudiced if the claim were not cut off. Continental Insurance Co. v. Stewart & Stevenson Services, Inc., 306 S.W.2d 415, 423 (Tex.Civ.App.—Houston 1957, writ ref’d n.r.e.). Two of the essential elements of laches are unreasonable delay by one having legal or equitable rights in asserting them and a good faith change of position by another to his detriment because of the delay. City of Fort Worth v. Johnson, 388 S.W.2d 400, 403 (Tex.1964). To support their contention that the defense of laches bars enforcement of the age restriction, the Kleinneiurs urge that there are disputed fact issues regarding the time Preston Tower first learned of the Kleinneiurs’ intention to move into the complex and the time Preston Tower learned the Kleinne-iurs had actually moved into the complex.

In a summary judgment case, when the plaintiff is the movant, the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises a fact issue concerning the essential elements of a cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of those elements. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970). See also TEX.R.CIV.P. 166-A. The burden of proof is on the movant and all doubts as to the existence of a genuine issue of material fact are resolved against him. All conflicts in the evidence are disregarded and the evidence which tends to support the position of the party opposing the motion is accepted as true. Farley v. Prudential Insurance Co., 480 S.W.2d 176, 178 (Tex.1972); Goodwin v. Texas General Indemnity Co., 657 S.W.2d 156, 159-60 (Tex.App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.).

After applying these standards to the summary judgment proof involved here we conclude that there are genuine issues of material fact concerning all three of the Kleinneiurs’ affirmative defenses. Therefore, Preston Tower has failed to establish that it is entitled to judgment as a matter of law on the issues expressly set out in the Kleinneiurs’ response. Rule 166-A.

Consequently, we overrule point of error number two. We reverse and remand this cause for trial on the merits.

Costs assessed one-third against appellant and two-thirds against appellees.