author: LEWIS, Judge.

text:
    EXCHANGE MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. COMMERCE UNION BANK OF SUMNER COUNTY, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Dec. 12, 1984.
    Application for Permission to Appeal Denied by Supreme Court March 4, 1985.
    Gary S. Rubenstein, Schulman, LeRoy & Bennett, P.C., Nashville, for plaintiff-appel-lee.
    Arthur E. McClellan, McClellan, Powers & Ehmling, P.C., Gallatin, for defendant-appellant.
   OPINION

LEWIS, Judge.

This is an appeal by the defendant, Commerce Union Bank of Sumner County (Bank), from the decision of the Chancellor denying the Bank’s motion for summary judgment and sustaining plaintiff, Exchange Mutual Insurance Company’s, motion for summary judgment.

This controversy arose when the Bank dishonored two drafts drawn on and presented pursuant to a letter of credit issued by the Bank in favor of the plaintiff beneficiary, Exchange Mutual Insurance Company.

The Bank contends that its dishonor of the drafts was justified because of plaintiff’s failure to fulfill certain conditions precedent to payment in accordance with the letter. It argues that the granting of plaintiff’s motion was inappropriate due to the faet that there are many factual issues in dispute which should have been considered by the Court. Plaintiff argues that the Bank’s failure to state any reason for dishonoring the drafts violated the Bank’s duty owed to the beneficiary under Tenn. Code Ann. § 47-5-112 and the terms of the letter itself. Plaintiff asserts that this breach of duty alone is at issue here and that any factual disputes regarding the underlying case are irrelevant to this appeal.

The facts out of which this controversy arose are as follows:

On August 23, 1977, defendant Bank issued an irrevocable letter of credit authorized by its customer, J & B Construction Company, in favor of the plaintiff, Exchange Mutual Insurance Company. The said letter of credit states the following:

IRREVOCABLE LETTER OF CREDIT NO. 106
Gentlemen:
We hereby establish our Irrevocable Letter of Credit in your favor and authorize you to draw on us, up to an aggregate amount of $100,000.00 (one hundred thousand dollars) available by your drafts at sight accompanied by your written certification that you, as Surety, have executed or have procured the execution of bonds or undertakings at the request of J & B Construction Co., and that you have incurred liability, or that a situation exists under which, in the sole judgment of the Surety, claim may be made for loss, cost or expense, and that monies represented by your drafts are required in the discretion of the Surety for its protection and for the protection of its co-sureties and re-insurers, if any, under said bonds or undertakings or under agreements of indemnity executed by J & B Construction Co.
We engage with you that all drafts drawn under and in compliance with the terms of this credit will be duly honored by us as specified if presented at this office on or before August 23, 1978, or any extended date, it being a condition of this Irrevocable letter of Credit that it shall be automatically extended for additional periods of one year from the present of each future expiration date unless thirty days prior to such date we shall notify you in writing by registered mail at the above address, attention of “Surety Department”, that we elect not to renew this letter of credit for such additional period. Upon receipt by you of such notice, you may draw on us hereunder by means of your draft on us at sight for the full amount of this letter of credit, accompanied by your written certification that you have not been released from liability and that the proceeds of you[r] draft will be applied by you to satisfy any loss, cost, or claim or expense which may be incurred by you, or your co-sureties, or re-insurers, if any, as a result of having executed or having procured the execution of bonds or undertakings as aforesaid, or under agreements of indemnity as aforesaid.
Your acceptance of this Credit will constitute your agreement to repay to us any funds paid by us to you hereunder and not used by you in satisfaction of or reimbursement of any loss, cost, claim or expense of any nature whatsoever incurred by you, (including unpaid premiums), on any such bonds or undertakings or agreements of indemnity as aforesaid. Except so far as otherwise expressly stated, this Credit is subject to the Uniform Customs and Practices for Commercial Documentary Credits fixed by the International Chamber of Commerce applicable at the date of this letter.

In accordance with its terms, the letter was automatically renewed on each anniversary prior to 1982. On July 23, 1982, however, one month before the expiration date, defendant Bank sent a letter informing plaintiff that it had decided not to renew the letter for any additional period.

On July 22nd, one day before the Bank’s letter was written, plaintiff sent a draft to the Bank in the amount of $76,718.20, accompanied by a copy of the irrevocable letter of credit. On August 2, 1982, the Bank, through its attorney, responded to plaintiff’s July 22nd draft notifying plaintiff of its dishonor of the draft on account of plaintiff’s failure to comply with certain conditions precedent set forth in the letter of credit.

Thereafter, on August 11, 1982, plaintiff presented a second draft in the amount of $23,281.80, making the total of the two drafts presented to the Bank $100,000.00. The letter made direct reference to the first draft and stated that with the tendering of the second draft, plaintiff had drawn the entire $100,000.00 available pursuant to the letter of credit. The letter also made reference to portions of the letter of credit in an attempt to comply with the conditions and requirements therein.

On August 31, 1982, eight days after the expiration of the letter of credit, the Bank notified plaintiff that the terms and conditions of the contract had not been met and that the Bank refused to pay either of the drafts presented. No further explanation was given.

The Bank contends that it was justified in refusing to honor the drafts because the conditions precedent set forth in the letter of credit were never met. It cites authority for the position that a bank must honor drafts on a letter of credit only if the drafts are accompanied by documents in proper form called for in the letter. It argues that there are many factual issues in dispute and, therefore, the granting of a motion for summary judgment in plaintiffs favor was inappropriate.

The Chancellor based his decision on the Bank’s failure to give any reason or explanation for dishonoring the drafts, not on any consideration of underlying facts, which we recognize may be in dispute. This dishonor, coming as it did after the expiration of a letter of credit, did not allow plaintiff an opportunity to remedy the defect claimed. There is no factual dispute regarding the Bank’s failure to inform the plaintiff of the nature of the problem in a timely fashion, and it is this fact alone which is an issue in this appeal. Thus, the Bank’s argument that the Chancellor was in error in granting plaintiff’s motion is without merit.

Plaintiff contends that the Bank, by failing to provide an adequate explanation for its actions, has thereby waived its right to rely upon the alleged defects and is therefore estopped from claiming the right to dishonor payment. Plaintiff argues that the Bank had a “duty” to provide the beneficiary with an opportunity to cure the defect. This claim is based in part on Tenn. Code Ann. § 47-5-112(2) which states: “Upon dishonor the bank may unless otherwise instructed fulfill its duty to return the draft or demand and the documents by holding them at the disposal of the presenter and sending him an advice to that effect.” A review of the record reveals that the Bank never returned the draft or the documents to plaintiff and did not “provide the advice to the effect [of dishonor]” until after the expiration date.

Plaintiff’s claim as to the Bank’s duty is also based on Article 8 of the Uniform Customs and Practices for Commercial Documentary Credits, which both parties agree was incorporated by reference into the letter of credit. The pertinent sections of Article 8 are as follows:

c. If, upon receipt of the documents, the issuing bank considers that they appear on their face not to be in accordance with the terms and conditions of the credit, that bank must determine, on the basis of the documents alone, whether to claim that payment, acceptance, or negotiation was not effected in accordance with the terms and conditions of the credit.
d. The issuing bank shall have a reasonable time to examine the documents and to determine as above whether to make such a claim.
e. If such claim is to be made, notice to that effect, stating the reasons therefor, must, without delay, be given by cable or other expeditious means to the bank from which the documents have been received (the remitting bank) and such notice must state that the documents are being held at the disposal of such bank or are being returned thereto.
f. If the issuing bank fails to hold the documents at the disposal of the remitting bank, or fails to return the documents to such bank, the issuing bank shall be precluded from claiming that the relative payment, acceptance or negotiation was not effected in accordance with the terms and conditions of the credit.

The Bank claims that its letters of August 2nd and August 31st, stating simply that the drafts “failed to comply with the conditions set forth,” provided all the information necessary for compliance both with the statute and the Uniform Rules. We disagree.

As the Chancellor recognized, plaintiffs attorney made an attempt to address the defects and comply with the conditions of the letter of credit in the letter accompanying the second draft dated August 11,1982. The letter states in part as follows:

Wherefore, reference is now made to the second paragraph of that irrevocable letter of credit that states “Upon receipt by you of such notice, (your notice dated July 23, 1982 that you will not renew the letter of credit) you may draw on us hereunder by means of your draft on us at site for the full amount of this letter of credit accompanied by your written certification that you have not been released from liability and that the proceeds of your draft will be applied by you to satisfy any loss, cost or claim or expense which may be incurred by you or your co-sureties or re-insured, if any, as a result of having executed or having procured the execution of bonds or undertakings as aforesaid or under agreements of indemnity as aforesaid.” Therefore, this letter is to certify to you that Exchange Mutual Insurance Company has not been released from liability and that the proceeds of this draft will be applied by my client to satisfy any loss, cost or claim or expense which may be incurred by Exchange Mutual Insurance Company.
This letter is also to certify to you that not only will this draft be used pursuant to paragraph 2 of the irrevocable letter of credit but also that any funds not used by Exchange Mutual in satisfaction of or reimbursement of any loss, cost, claim or expense will be repaid to Commerce Union Bank of Sumner County, Tennessee. Therefore, with the tendering of the draft herein enclosed, Exchange Mutual Insurance Company has drawn on the entire $100,000.00 that is available pursuant to the irrevocable letter of credit No. 106. Let me repeat that once Exchange Mutual Insurance Company has been released from liability that it will return any surplus funds to you, but by the terms of your irrevocable letter of credit, we must draw on the balance remaining in the amount of $23,281.80. If you have any questions with regard to this matter, please do not hesitate to contact myself or Mr. W. Wayne LeRoy of this firm.

It is most significant to note here that the Bank’s dishonor and response to this second draft and letter, dated August 31st, came some eight days after the expiration of the letter of credit on August 23rd. This response can hardly be considered “without delay ... by cable or other expeditious means.”

We have found no Tennessee case which has dealt with the issue of the extent of a bank’s duty to the beneficiary to spell out the deficiencies in a draft pursuant to a letter of credit. Other jurisdictions, however, which have dealt with the issue have held banks to a high standard.

In Schweibish v. Pontchartrain State Bank, 389 So.2d 731 (La.App.1980), in a fact situation similar to the one here, plaintiff beneficiary filed suit against defendant bank to recover under an irrevocable letter of credit. The bank, in cancelling credit, alleged that the plaintiff beneficiary failed to comply with terms of the letter of credit by not furnishing certain evidence called for by the terms. However, the bank in that case failed to inform the beneficiary of its decision to dishonor and failed to return the documents in time for him to address the problem. The court held that since the bank had deprived the beneficiary of an opportunity to present acceptable documentation, it was estopped from claiming dishonor on grounds that the documents presented were not in strict compliance with the terms. Id. at 739.

In Crocker Commercial Services, Inc. v. Countryside Bank, 538 F.Supp. 1360 (N.D.Ill.1981), the bank refused payment under a letter of credit claiming that the beneficiary had not complied with the terms. The bank also failed to identify the claimed deficiencies, and the beneficiary was not able to cure. The court held that by standing by silently and letting the letter of credit expire without full identification of the deficiencies, the bank effectively robbed the beneficiary of an opportunity to cure. The court viewed the conduct as creating “either a waiver or an estoppel” to bar the bank’s purported defenses. Id. at 1363. See also American Employers Insurance Co. v. Pioneer Bank & Trust Co., 538 F.Supp. 1354 (N.D.Ill.1981).

We hold that the Bank here was also under an obligation to provide the beneficiary with a prompt and complete explanation of why it refused to honor the drafts drawn on the letter of credit. To hold otherwise would serve to undermine an important purpose behind the Uniform Customs and Practices for Commercial Documentary Credits incorporated here by reference to simplify and facilitate the fairness of such credit arrangements.

The judgment of the Chancellor is in all things affirmed with costs assessed against the Bank and the cause remanded to the Chancery Court for the collection of costs and any further necessary proceedings.

CANTRELL and KOCH, JJ., concur.

      . Plaintiff styled its motion as a "MOTION FOR JUDGMENT ON THE PLEADINGS.” However, in support of the motion, it relied not only on the pleadings, but also exhibits and affidavits. When matters outside the pleadings are presented to, and not excluded by, the court, then the motion for judgment on the pleadings pursuant to Tenn.R.C.P. 12.03 "shall be treated as one for summary judgment and disposed of as provided in Rule 56.”

      . Dear Sir:
      Please be advised that Exchange Mutual Insurance Company’s draft dated June 22, 1982, will not be honored by Commerce Union Bank of Sumner County for failure to comply with the conditions set forth in the letter. We will hold the draft until such time as the terms of the letter are complied with.

      . Dear Mr. Rubenstein:
      Please be advised that Mr. Scott has given me your letter of August 11, 1982, for response. I have exemined the July 22nd letter of Wayne LeRoy, as well as your letter, and it is my conclusion that you failed to comply with the terms of the Irrevocable Letter of Credit No. 106. Therefore, please be advised that for that reason, as well as others too numerous to list here, Commerce Union Bank will not pay either of the drafts previously presented in as much as they fail to conform with the requirements of the letter.


source: Caselaw Access Project

license: Public Domain

text:
    JACKSON HOUSING AUTHORITY, Plaintiff-Appellee, v. AUTO-OWNERS INSURANCE COMPANY, et al., Defendant-Appellant.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Dec. 18, 1984.
    Application for Permission to Appeal Denied by Supreme Court March 4, 1985.

      J. Arthur Crews, II, Jackson, for plaintiff-appellee.
    Jerry D. Kizer, Jr., Jackson, for defendant-appellant, Auto-Owners Insurance Co.
    Harold W. McLeary, Jr., Humboldt, and Harold F. Johnson, Jackson, for defendant-appellee, Travelers Insurance Co.
    Avon N. Williams, Jr. and Russell T. Perkins, Nashville, for defendant-appellee, Ralph Wilson.
    Sidney W. Spragins, Jackson, for defendant-appellee, Aetna Insurance Co.
   NEARN, Presiding Judge, Western Section.

This is an appeal from a declaratory judgment action filed by Jackson Housing Authority (JHA), seeking a determination of the rights and liabilities of JHA and others for injuries sustained by Ralph Wilson while he was working as a painter at facilities owned by JHA. Wilson was a CETA participant in a program administered by Chickasaw Area Development Commission (CADC). CADC paid workers’ compensation premiums for Wilson to Aet-na Insurance Company, and also issued Wilson’s pay checks. Under the CETA program CADC assigned Wilson to JHA for on the job training, and JHA was responsible for Wilson’s training and supervision. JHA paid him no wages and did not include Wilson in its workers’ compensation coverage, with its carrier, Travelers’ Insurance Company.

After Wilson was injured, he collected workers’ compensation benefits from Aet-na, CADC’s workers’ compensation insurance carrier. He also filed suit against JHA’s carrier, Travelers, seeking workers’ compensation benefits. In addition, Wilson filed a common law tort action against JHA, alleging that he was injured as a result of JHA’s and its employees’ negligence and that he was not an employee of JHA. At this point, Auto-Owners Insurance Company, JHA’s liability insuror, notified JHA that it was defending the tort action under a reservation of rights. As a basis for such position, Auto-Owners claimed that JHA did not notify it of the claim “as soon as practicable,” as required by the policy. Auto-Owners had been notified by Aetna of the accident some three months after it occurred.

JHA then filed the declaratory judgment action from which this appeal arose, seeking a declaration of the rights and obligations of Wilson, JHA, CADC, Aetna, Travelers and Auto-Owners under these circumstances.

The Chancellor found that Wilson was the employee of CADC within the meaning of the Tennessee workers’ compensation laws, that Wilson was not an employee of JHA for workers’ compensation purposes, and that JHA gave notice to Auto-Owners “as soon as practicable” pursuant to the terms of JHA’s liability policy with Auto-Owners. The Chancellor, therefore, ordered Auto-Owners to defend JHA in the tort action filed by Wilson and to pay any judgment against JHA in that lawsuit within the limits of the policy.

Auto-Owners has appealed, stating as the issues on appeal:

I. Whether Ralph Wilson, a CETA participant, was an employee of Jackson Housing Authority, a CETA user, for Tennessee workers’ compensation purposes within the exclusionary provisions of Auto-Owners’ liability policy with Jackson Housing Authority.
II. Whether Jackson Housing Authority gave notice to its liability insurer “as soon as practicable” after the accident involving Ralph Wilson as required by the Auto-Owners liability policy with Jackson Housing Authority.

Auto-Owners takes the position on appeal that the Chancellor erred in finding that Wilson was an employee of CADC. Auto-Owners argues that Wilson was an employee of JHA. It also argues that JHA did not give notice to Auto-Owners “as soon as practicable.” JHA and Aetna, CADC’s workers’ compensation carrier, agree with Auto-Owners that Wilson was an employee of JHA. However, JHA disagrees with Auto-Owners on the issue of notice, asserting that JHA did give notice under the policy. Wilson, the injured worker, and Travelers, JHA’s workers’ compensation carrier, disagree with Auto-Owners on the issue of employment. They contend that the Chancellor correctly found that CADC was Wilson’s employer. Wilson joins JHA, however, in asserting that JHA gave notice to Auto-Owners. Travelers and Aetna take no position on the notice issue.

As to this Court’s position in the matter, in part we agree with all the various positions taken and in part we disagree with all of them. We will now attempt to explain that seemingly incongruous position.

Insofar as we are able to tell, the determinative issue presented by this appeal is one of first impression in this State. That issue is who is to be considered a CETA worker’s employer under the provisions of the Worker’s Compensation Act of this State (T.C.A. § 50-6-101 et seq.).

The acronym, CETA, stands for Comprehensive Employment Training Act, the style of a federal act which created a federally funded program for the economically disadvantaged. A purpose of the act is to provide an opportunity for the economically disadvantaged who have little or no work experience to learn work and job skills in order that they may become more attractive applicants in the job market. The program is administered by local agencies. CADC is the agency for the Jackson area. CADC has the responsibility of training those who qualify for the program. This responsibility is met by CADC by locating businesses which are willing to afford the CETA workers on the job training. Simply put, the program works in this matter: CADC sends a CETA worker to a participating business that puts the workers to work in order to obtain job training. The business trains the worker and incidental to that process, receives the fruits of the worker’s labor at no expense as CADC pays the worker his wages and pays to its insurer the insurance premiums for workers’ compensation coverage. The participating business pays no wages to the CETA worker and in this case did not carry or list the CETA worker as one covered under its compensation coverage.

In this case Wilson was assigned to JHA by CADC. JHA kept the time sheets on Wilson and based on those sheets, CADC paid him his wages. CADC monitored Wilson’s progress. JHA could, however, terminate Wilson’s services, but was first required to confer with a CADC supervisor in an effort to resolve the problem before doing so. JHA furnished all supplies and tools to Wilson to perform the same work as done by “regular” employees. The times for lunch breaks and rest breaks for Wilson were set by JHA.

As noted at the outset, the Chancellor concluded from the facts, which are actually undisputed, that Wilson was the employee of CADC. The practical effect of that holding is to permit Wilson to recover worker’s compensation payments from CADC’s carrier, Aetna, and to maintain a common law tort action against JHA which, if successful in judgment, will be paid by JHA liability carrier, Auto-Owners.

The determinative issue in this case has been addressed by other jurisdictions. The minority hold, under somewhat similar facts but not necessarily similar statutory law, that the CETA agency is the employer and the business participant is not. See Daytona Beach Community College v. Minson (Fla.Ct.App.1981) 400 So.2d 775.

The majority view, under similar facts but not necessarily similar statutory law, is that the business is the employer and not the CETA agency. See Keller v. Old Ly. Township, 286 Pa.Super. 339, (1980) 428 A.2d 1358.

These divergent results have been reached usually based on a particular Court’s perception of the applicability of the ordinary rules governing such matters, such as the right of control, which party pays wages or workers compensation premiums, etc. However, these foreign decisions are not binding on this Court.

We agree with the statement found in Aetna’s brief that the relationships created by the CETA program simply do not fit the traditional mold. We have, first, turned our attention to our state law as embodied in our code for a determination of the issue, which it appears, none of the briefs have attempted to do. T.C.A. § 50-6-102 (1983) defines an “employee” as “every person — in the service of an employer as defined in subdivision (a)3, under any contract of hire or apprenticeship written or implied.” (emphasis added). Subsection (a)3 defines an “employer” as any person or entity “using the services of not less than (5) persons for pay ...” Other jurisdictions may hold what they will, as is their prerogative, but under the above quoted provisions of our law, the conclusion is inescapable to us that Wilson must be considered an employee of JHA.

The undeniable purpose of the CETA program is to establish a federally funded apprenticeship training for the economically disadvantaged. A dictionary definition of an apprentice provides that it is:

one who is bound by ... or legal agreement to serve another person for a certain time with a view to learning an art or trade in consideration of instruction therein....

Webster’s Third New International Dictionary (1971). Such training may be designated as “on the job” or otherwise, but it is none the less an apprenticeship training. JHA was a willing participant in the CETA program administered by CADC. It was bound to know the program’s purpose. It agreed to take on Wilson and to train him. It had an express contract with CADC to do so and an implied contract at the least with Wilson to do so. There is no dispute that JHA employs more than five persons for pay, so it qualifies as an employer under T.C.A. § 50-6-102(a)(3). This was an arrangement for mutual benefit and both JHA and Wilson profited thereby. Wilson received training to enable him to better compete in the job market and JHA received the benefit of his labor. It was a mutual exchange of one for the other. Accordingly, we hold that Wilson was an employee of JHA. However, such holding does not mean that he is not also an employee of CADC.

This state recognizes that an employee may be employed by two separate entities at the same time. See T.C.A. § 50-6-211; Riverside Mill Company v. Parsons (1940) 176 Tenn. 381, 141 S.W.2d 895. We have already shown that, under T.C.A. § 50-6-102, JHA qualifies as an employer, and insofar as that employer is concerned, Wilson, as an apprentice, qualifies as its employee. CADC has never contended that it was not an employer of Wilson. CADC paid Wilson his wages and made necessary federal and state deductions therefrom. CADC had even the authority to control whether or not Wilson was to go to JHA for training. In fact, whether Wilson liked it or not, CADC could terminate Wilson’s relationship with JHA. Admittedly, the relationship between CADC and Wilson was not that of employer-employee ordinarily contemplated in a free enterprise system. We know of no enterprise established for profit that pays its employee a salary while being trained by others, so that the employee can be trained to go to work for other than the employer paying the salary. However, it certainly is not unusual for an employer to send an employee elsewhere to learn a skill and pay that employee at the same time. The reason is that the employer hopes to have better trained employees who can better accomplish the work that they will be expected to do for that employer upon completion of the training. The principal difference in the CADC arrangement with Wilson and the ordinary employer’s arrangement under similar circumstances is one of motivation. CADC does not have the ordinary motivation of profit and self interest. We are of the opinion that a difference in employer motivation will not alter the employer-employee relationship created by these circumstances.

Ralph Wilson applied for work with CADC pursuant to the CETA program. CADC certified Wilson as eligible, assigned him to work at JHA, approved his work schedule, the number of breaks, and lunch periods he was entitled to, withheld payroll deductions and wrote Wilson’s pay cheeks. CADC, further, was authorized to and did monitor Wilson’s job progress and training and, if unsatisfied with JHA’s supervision and training, could remove him from JHA and transfer him to another worksite. Finally, CADC had the authority to determine whether to terminate Wilson from the CETA program. Accordingly, we hold that Wilson was also the employee of CADC.

Since this is a matter of declaratory judgment seeking an adjudication of the rights of the various parties and is to be reviewed by us de novo pursuant to Rule 13(d) T.R. A.P., we must make such decree as we believe the case requires in the event we are in disagreement with the Court below. See Taylor v. Amalgamated Meat Cutters (1981 Tenn.App.W.S.) 619 S.W.2d 120, 121.

Our holding now presents the problem of a construction of T.C.A. § 50-6-211, covering the payment of claims by two or more joint employers. As pointed out earlier, because of the CETA program, which, of course, was not within the contemplation of the legislature when T.C.A. § 50-6-211 was drafted, the situation now presented does not fit neatly into any legislative mold. The stated code section applies when the employee is “paid jointly” by the employers. In matters such as presented by this case we hold that CADC pays the employee in dollars and the CETA user pays the employee with training and experience. Accordingly, the employee is “paid jointly.” Interpretation of the verbiage “such employers shall contribute to payment of such compensation in a proportion of their several wage liability to such employee” is a matter we need not now address as the ultimate phrase of T.C.A. § 50-6-211 provides “however, nothing in this section shall prevent any agreement between the different employers between themselves as to the distribution of the ultimate burden of such compensation.” The proof in this case shows that it was always the understanding between CADC and JHA that CADC would have the ultimate burden of such compensation.

There yet remains the issue of the propriety of the notice of JHA to Auto-Owners. The issue is not rendered moot because of our holding regarding joint employment as Wilson’s common law tort action against JHA is yet pending. The duty to defend the insured and the obligation of the insurer to pay valid claims under the terms of the policy are not the same thing. The insurer has the duty to defend against even those claims that are without merit. See Dempster Bros., Inc. v. United States Fidelity & Guaranty Co. (1964 E.S.) 54 Tenn.App. 65, 388 S.W.2d 153. Accordingly, if the notice to Auto-Owners was proper, it has the duty to defend JHA against the pending claim of Wilson to its termination. We hold that the notice given by JHA was made “as soon as practicable” as required by the policy. In TransAmerica v. Parrott (1975 Tenn.App.W.S.) 531 S.W.2d 306, this Court held

that in situations such as this, the insured is obligated to notify the insurer “as soon as practicable” from the time the insured knew or should have known that the event for which coverage is sought might reasonably be expected to produce a claim against the insurer. 513 S.W.2d at 314.

Because this is a matter of first impression no one, including all counsel involved, was sure whether the facts of this case would give rise to a common law claim by Wilson against JHA. We find that under the circumstances JHA did give notice to Auto-Owners as soon as it could reasonably believe a claim would be made against it. We concur in the Chancellor’s ruling on the question of notice.

The result is that the Chancellor is affirmed in his holding that Wilson was an employee of CADC, but we hold such employment was not exclusive and further hold that Wilson was also and at the same time the apprentice employee of JHA. We also affirm the Chancellor’s ruling that JHA’s notice to Auto-Owners was properly made under the terms of the policy.

Costs of this appeal are assessed equally between JHA, Aetna and Auto-Owners.

Done at Jackson in the two hundred and ninth year of our Independence and in the one hundred and eighty-ninth year of our Statehood.

CRAWFORD and HIGHERS, JJ., concur.


author: DWYER, Judge.

text:
    STATE of Tennessee, Appellant, v. Larry Mason LEACH, Appellee.
    Court of Criminal Appeals of Tennessee, at Jackson.
    Dec. 5, 1984.
    Permission to Appeal Denied by Supreme Court March 4, 1985.

      W.J. Michael Cody, Atty. Gen. & Reporter, Raymond S. Leathers, Asst. Atty. Gen., Nashville, Paul G. Summers, Dist. Atty. Gen., Somerville, for appellant.
    Michael Whitaker, Covington, for appel-lee.
   OPINION

DWYER, Judge.

The State appeals the dismissal of an aggravated rape indictment returned by the Tipton County Grand Jury against appellant. See T.C.A. § 39-2-603.

The issue of the State: The trial court erred in dismissing the indictment. After a hearing, the trial court dismissed the indictment, holding that to try appellant on this charge would be double jeopardy. We are not in accord with the trial court and reverse his ruling with reinstatement of the indictment.

It suffices to state that the indictment came about from an alleged aggravated rape in Tipton County of a young girl appellant had abducted from Shelby County. The sordid details of the appellant’s acts inflicted on the victim in Shelby County may be found in State v. Larry Mason Leach, Shelby County No. 164 (Tenn.Cr.App., Jackson, 1984), 684 S.W.2d 655.

When appellant fell asleep after allegedly raping her in Tipton County, the young girl obtained his pistol and shot him. He is a paraplegic as a result.

Appellant was convicted in Shelby County for aggravated rape, T.C.A. § 39-2-603, aggravated kidnapping, T.C.A. § 39-2-301, and a felony-firearm violation, T.C.A. § 39-6-1716, receiving two forty-year sentences for each of the first two offenses and three years on the firearm conviction, all sentences to be served consecutively. These convictions flowed from his abducting the young girl, raping and sexually abusing her in Shelby County on October 20, 1982. The Tipton indictment came about from alleged sexual abuse and rape of the victim later that day in Tipton County.

Appellant argues that since the facts of the Tipton County rape were introduced in the Shelby County trial, a trial and conviction in Tipton on the same facts would be constitutionally barred. He contends that evidence of the rape in Tipton County was permissibly used to enhance the kidnapping charge in the Shelby trial. But he urges that under Tenn.R.Crim.P. 18(b), with the kidnapping offense occurring in both counties, the evidence of the Tipton rape could be presented at trial in either county, but not in both. We disagree with appellant on his contentions.

Simply put, the introduction in the Shelby County trial of evidence of the rape in Tipton County did not place appellant in jeopardy of a conviction for that offense in his Shelby County trial. While it may be said this incident was an aggravating factor for the kidnapping conviction, that fact does not prohibit or bar his trial for the rape in Tipton County.

If appellant raped the victim in Shelby County and then raped her again in Tipton County, he committed separate rapes. See Lillard v. State, 528 S.W.2d 207, 210-11 (Tenn.Cr.App.1975). Accordingly, we reject his theory that this was one continuing episode or one transaction with resulting overtones of double jeopardy. The issue of the State is sustained. The judgment of the trial court is reversed with remand for trial on the rape indictment in Tipton County.

O’BRIEN and SCOTT, JJ., concur.


author: HILL, Chief Justice.

text:
    TEXAS PUBLIC BUILDING AUTHORITY, Relator, v. Jim MATTOX, Attorney General, Respondent.
    No. C-3793.
    Supreme Court of Texas.
    March 20, 1985.

      Reynolds, Allen & Cook, Joe H. Reynolds, M. Paul Martin and John W. Fainter, Jr., Houston, for relator.
    Jim Mattox, Atty. Gen., Susan Lee Voss and Bruce Youngblood, Asst. Attys. Gen., Austin, for respondent.
   HILL, Chief Justice.

In this original proceeding the Texas Public Building Authority seeks a writ of mandamus directing the Honorable Jim Mattox, Attorney General of the State of Texas, to approve the issuance of $10,500,-000 in revenue bonds. The bonds are designated as Texas Public Building Authority Revenue Bonds (Texas Youth Council, Texas Rehabilitation Commission State Office Building Project), Series 1984. The Authority submitted the bonds to the Attorney General who refused to approve them, stating his opinion that the proposed issuance is in direct conflict with the provisions of Article III, Sections 49 and 49a of the Texas Constitution. We hold that neither the bond issuance nor the Act authorizing the issuance contravenes the Texas Constitution. We conditionally grant the requested relief.

There is no dispute as to the relevant facts concerning the matter before us. In the dozen years from 1972 to 1984, the office space requirements of state agencies quartered in Travis County more than tripled. The accompanying rental obligations necessary to meet this growing need for space more than quadrupled during the same time frame. In this context, the Legislature enacted the original version of the Texas Public Building Authority Act in 1983. See Texas Public Building Authority Act, Ch. 700, 1983 Tex.Gen.Laws 4360, repealed by Act of July 12, 1984, Ch. 5, § 34, 1984 Tex.Gen.Laws, 2nd Called Session 10, 20.

Shortly after passage of the Act in the Regular Session of the 68th Legislature, the Attorney General expressed several reservations concerning the propriety of the issuance of bonds under that act. In response, the Governor included in his call for the Second Called Session of the 68th Legislature an amendment to the original act. The Authority, as it presently exists, was created by an act of the Legislature during this special session in the summer months of 1984. See TEX.REV.CIV.STAT. ANN. art. 601d (Vernon Supp.1985) (the Act).

The Authority is empowered to provide for the financing, acquisition, construction, repair, and renovation of buildings used by state agencies. TEX.REV.CIV.STAT. ANN. art. 601d, § 2 (Vernon Supp.1985). The Act provides for a Board of Directors composed of three members, each of whom is appointed by the Governor and confirmed by the Senate, to serve as the Authority’s governing body. Section 9 of the Act authorizes the Board to issue and sell bonds to finance the acquisition, construction or improvement of buildings used by state agencies. Section 10 requires the Legislature to authorize each specific project for which the bonds are to be issued and the maximum amount of bonded indebtedness that may be incurred by the Authority through the issuance and sale of bonds for a specific project.

Section 12 of the Act addresses the manner of repayment of bonds. Subsection 12(a) permits the Board to provide for the payment of the principal of and interest on the bonds by (1) pledging all or any part of the designated rents, issues and profits from leasing a building to the state through the State Purchasing and General Services Commission (the Commission) or occupying or using state agency, or (2) obtaining funds from any other source lawfully available to the Authority. Section 26 of the Act provides for the payment of rents and fees to the Authority by the Commission from the State Lease Fund. Subsection 12(d) provides as follows:

All lease contracts entered into under this Act shall be subject to the appropriation by the legislature of funds necessary to cover the provisions of the lease, except that if at any time the state fails or refuses to pay the rental provided’ in such a lease contract or fails or refuses to renew an existing lease contract at a rental provided to be paid, the board may lease or sublease the property covered by the lease contract to any person or entity on terms that the board determines.
Section 13 of the Act expressly provides

that:

(a) Bonds issued under this Act are not debts of the state or any agency, political corporation, or political subdivision of the state and are not a pledge of the faith and credit of any of them. The bonds are payable solely from revenue as provided by this Act.
(b) The bonds must contain on their face a statement to the effect that:
(1) neither the state nor an agency, political corporation, or political subdivision of the state is obligated to pay the principal of or interest on the bonds except as provided by this Act; and
(2) neither the faith and credit nor the taxing power of the state or any agency, political corporation, or political subdivision of the state is pledged to the payment of the principal of or interest on the bonds.

[Emphasis added.]

Faced with the need to provide buildings and office space in which to house state agencies, the Legislature expressly approved two high priority projects in section 24 of the Act — the purchase and renovation of the Texas Employment Commission property and the project involved in this ease — construction related to the Texas Youth Commission, Texas Rehabilitation Commission state office building. Pursuant to this section, the Board adopted a resolution authorizing the issuance of bonds to finance the construction of the Texas Youth Commission, Texas Rehabilitation Commission state office building. In its resolution, the Board approved (1) a Lease Agreement between the Authority and the Commission to provide the revenues necessary to pay the bonds, (2) a Trust Indenture with Allied Bank of Texas, as Trustee, providing the details of the bond issuance, and (3) a Bond Purchase Agreement submitted to the Authority by a group of underwriters.

The Lease Agreement provides in section 7.1 that it shall remain in effect until the bonds have been fully paid. Section 5.10 recognizes that payments under the Lease Agreement shall be made from the State Lease Fund and that $7,000,000 has already been appropriated by the Legislature for that purpose. Section 7.2 deals with the termination of the Lease Agreement and provides that the Authority may exclude the Commission from possession of the project and lease the project to another party in the event the Commission is unable to perform its duties under the Lease Agreement. Finally, the Authority, in section 5.6, expressly acknowledges that the Commission’s obligation to make payments under the Lease Agreement is subject to, and dependent upon, appropriations by the Legislature of funds necessary to make such payments.

The Trust Indenture, in several important instances, reiterates many of the key provisions of the Act and the Lease Agreement. For example, section 2.05 states that the bonds “are not and shall never in any event become general obligations of the Authority but are special and limited obligations payable solely and only from the Pledged Revenues .... ” This section also provides that the State of Texas does not pledge either its faith and credit or its taxing power to the payment of the bonds.

Section 4.01 provides, in pertinent part, as follows:

No recourse shall be had for any claim based on this Indenture or the Bonds, including but not limited to the payment of the principal of, or premium, or interest on, the Bonds, against any director, member, officer, agent, or employee, past, present, or future, of the State of Texas, any political subdivision or other entity created thereby, or the Authority or the Commission, as such, either directly or through the Authority or the Commission, under any constitutional provision, statute, or rule of law, or by the enforcement of any assessment or penalty or by any legal or equitable proceeding, or otherwise, all such liability and claims being hereby expressly waived and released by the Trustee and the Bondholders as a condition of, and as consideration for, the execution of this Indenture and the issuance of the Bonds.

In the event of default, section 6.03 of the Indenture provides that the Trustee may, among other things, enforce the rights of the bondholders and the Authority or bring suit upon the agreement or the bonds, but any judgment it obtains against the Authority will be enforceable only against the specific assigned payments, funds, and accounts in the custody of the Trustee. Additionally, no deficiency judgment may be obtained against any assets of, or the general credit of, the Authority, the Commission or the State of Texas.

The bonds themselves prominently provide the following notice to bond purchasers:

THE OWNER HEREOF SPECIFICALLY UNDERSTANDS by acceptance of this Bond that the Bonds are not debts of the State of Texas or any agency, political corporation, or political subdivision thereof and are not a pledge of the faith and credit of any of them, but are payable solely from the Pledged Revenues. Neither the State of Texas nor an agency, political corporation, or political subdivision of the State is obligated to pay the principal of, premium, if any, or the interest on the Bonds except as provided in the Act and neither the faith and credit nor the taxing power of the State or any agency, political corporation, or political subdivision of the State is pledged to the payment of the principal of, premium, if any, or interest on the Bonds.

[Emphasis added.]

Pursuant to section 16 of the Act, the Authority submitted the bonds to the Attorney General for examination and he refused to approve their issuance citing Article III, Sections 49 and 49a of the Texas Constitution. The Attorney General has not questioned the sufficiency or adequacy of the procedural steps followed by the Authority with regard to the issuance of the bonds. In his brief filed with this court, the Attorney General has urged the additional contentions that the bond issuance contravenes Article I, Section 17, Article III, Section 44, and Article VIII, Section 6 of the Texas Constitution. The Attorney General has pointed to no specific item in the various referenced documents which provide him grounds for disapproving the bonds aside from these constitutional questions.

We begin our analysis of the issues presented in this case by presuming, as we must, the constitutionality of an act of the Legislature. See Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983). The burden is upon the party attacking the constitutionality of an act of the Legislature. Robinson v. Hill, 507 S.W.2d 521, 524 (Tex.1974). The courts of this state will hold an act unconstitutional only if a specific provision inhibits the legislation, or such is clearly implied. Shepherd v. San Jacinto Junior College District, 363 S.W.2d 742, 743 (Tex.1962).

We first consider the Attorney General’s argument that issuance of the bonds will violate Article III, Section 49 of the Texas Constitution. That section provides as follows:

No debt shall be created by or on behalf of the State, except to supply casual defi-eieneies of revenue, repel invasion, suppress insurrection, defend the State in war, or pay existing debt; and the debt created to supply deficiencies in the revenue, shall never exceed in the aggregate at any one time two hundred thousand dollars.

In Texas National Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627 (1939), this court considered a statutory arrangement substantially the same as that which exists in the present case. We decided there that the plan did not violate article III, section 49. In that case, the Armory Board’s governing authority proposed to issue revenue bonds to finance the construction of armory buildings. The bonds were to be payable “solely from the rents, issues and profits” derived from the leasing of the armories to the State of Texas through one of its agents, the Adjutant General.

The statute considered in Armory Board and the Act in this case have substantially similar provisions regarding the power to issue bonds to finance the construction of buildings and the method of repayment of the bonds. We held in Armory Board, as we had in Brazos River Conservation and Reclamation District v. McCraw, 126 Tex. 506, 91 S.W.2d 665, 672-73 (1936), that:

[T]he bonds provided for by the Act under consideration would create no debt against the State of Texas; nor is the credit of the State pledged for the payment of such bonds, or interest thereon, or any part thereof. Such bonds would be payable solely from the rents, issues, and profits to be derived from the operation or leasing of the armory buildings; unless the Legislature, in the exercise of its power and discretion, should see fit, when making its biennium appropriations, to include therein a sufficient sum of money to pay such bonds, or any part thereof.

126 S.W.2d at 635.

We regard Armory Board as controlling authority in the instant case. No debt of the state is created by the Act’s provisions. Section 13 thereof expressly provides that the bonds are not debts of the state or any agency, political corporation, or political subdivision of the state and are not a pledge of the faith and credit of any of them. Both the Trust Indenture and the Bonds themselves contain virtually identical disclaimers. While such provisions are not conclusive in and of themselves, they do indicate that the Legislature's intent in authorizing their issuance was to avoid conflict with article III, section 49. Given the clear intent of the Legislature in passing the Act and this court’s previous approval of a virtually identical arrangement in Armory Board, we conclude that the Authority’s proposed bond issuance is not in violation of article III, section 49. See also City of Aransas Pass v. Keeling, 112 Tex. 339, 247 S.W. 818 (1923).

We next consider whether the Act and the bond issuance violate article III, section 49a. That section provides that no appropriation bill can become law unless and until either the Comptroller of Public Accounts certifies that there will be sufficient anticipated revenues to meet the appropriation or the Legislature passes the bill by a four-fifths majority of each house. Because all future appropriations for the payment of rental by the Commission in accordance with the lease agreement will be subject to the procedures outlined in article III, section 49a, neither the Act nor the Lease Agreement constitutes a violation of this constitutional provision. In the absence of sufficient appropriations to pay future rentals, the Authority has the right under the Lease Agreement to terminate the lease. There are, at present, some seven million dollars in the State Lease Fund to pay rental fees as they become due. The Attorney General cites us to no authority supporting his assertions that the Act or Lease Agreement violates article III, section 49a, and we are satisfied that this appropriation and future appropriations to the State Lease Fund have and will satisfy the procedural requirements of article III, section 49a.

The Attorney General, in connection with both his article III, section 49, and article VIII, section 6 arguments, attempts to distinguish this case from Armory Board on the ground that the lease involved there was a two-year renewable lease which coincided with the biennium appropriation while the lease in the present case will run until the bonds are fully paid. However, section 12(d) of the Act specifically provides that any lease contract entered into under the Act is subject to appropriation by the Legislature. The Lease Agreement contains an express provision confirming the requirements of Section 12(d). The Armory Board lease and the lease in the present case thus achieve the same result—the lessee’s obligation is conditioned upon the Legislature’s appropriation of the funds necessary to make rental payments.

We have twice rejected arguments based on article VIII, section 6 in similar circumstances. This provision forbids appropriations of money for a term longer than two years. In City of Big Spring v. Board of Control, 404 S.W.2d 810 (Tex.1966), this court reviewed a contract whereby the city agreed to provide water to a local state hospital at a fixed rate per gallon as long as the state hospital remained at its current site. The city brought an action to declare the contract void, in part, on the ground that the State Board of Control lacked the authority to execute the contract in the face of article VIII, section 6. Relying on the case of Charles Scribner’s Sons v. Marrs, 114 Tex. 11, 262 S.W. 722, 725 (1924), this court held a contract which does not bind the state to purchase a fixed quantity of goods or services each year, but rather which binds the state only to purchase those quantities which within its sole discretion it determines it needs, does not violate the article VIII, section 6 prohibition on appropriations of money for a term longer than two years. 404 S.W.2d at 814-15. We believe these two cases are dispositive of the arguments raised by the Attorney General under article VIII, section 6.

The Attorney General argues that any appropriation by the Legislature to make rental payments to the Authority pursuant to the lease agreement must necessarily violate the article III, section 44 prohibition against the making of grants of money out of the State Treasury to an individual on a claim when the same shall not have been provided for by pre-existing law. The execution of the Lease Agreement between the Authority and the Commission under the precise terms contained therein is expressly authorized by Section 12 of the Act. The manner of repayment of the bonds and the manner in which the rents and fees to be paid by the Commission are to be calculated are likewise expressly authorized by the Act. We believe that when expressly authorized by a pre-ex-isting statute, an appropriation of funds in furtherance of an authorized project does not violate article III, section 44.

The purpose of the article III, section 44 proscription is the prevention of “raids” upon the State Treasury by private individuals or entities. We consider inapposite authorities such as Austin National Bank v. Sheppard, 123 Tex. 272, 71 S.W.2d 242 (1934), because here, the Legislature itself has created the Authority and authorized the execution of contracts between it and state agencies, which contracts do not otherwise violate the state constitution. Appropriations made in furtherance of those contracts are fully “provided for by pre-ex-isting law.” Thus, appropriations made in the future by the Legislature in fulfillment of the Commission’s obligations under the Lease Agreement with the Authority are not proscribed by article III, section 44.

Finally, we find no merit in the Attorney General’s arguments that: (1) in the event of default on the bonds, the project to be constructed would become subject to foreclosure of a lien thereon or enforcement of a security interest therein; and (2) by creating an arrangement whereby, private dominion over governmental facilities is possible, the Act and Lease Agreement constitute an irrevocable or uncontrollable grant of special privileges or immunities, in violation of Article I, Section 17 of the Texas Constitution. Neither the bonds nor the Trust Indenture provide bondholders or the trustee with a lien on the project. Default on the bonds cannot result in a foreclosure on the project itself.

We conclude that the Authority’s prayer for the writ of mandamus to approve the bonds is proper. We are confident that the Attorney General will abide by our decision. A writ of mandamus will issue only if he does not do so.


author: CLINTON, Judge. McCORMICK, Judge,

text:
    Freddy Samford CHRISTIAN, Appellant, v. The STATE of Texas, Appellee.
    No. 436-84.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 13, 1985.

      Robert E. Richardson, Jr., Sherman, (Court appointed), for appellant.
    Stephen Davidchik, County Atty. and David Wilson, Asst. County Atty., Sherman, Robert Huttash, State’s Atty. and Cathleen R. Riedel, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

On appeal to the Dallas Court of Appeals appellant contended, inter alia, that the evidence was insufficient to sustain his conviction for unlawfully carrying a weapon under V.T.C.A. Penal Code, § 46.02, for which he was given 30 days in jail, probated, and fined $250. In an unpublished opinion the court of appeals reversed and remanded on another ground of error not relevant here, recognized its obligation nevertheless to review the sufficiency ground, see Swabado v. State, 597 S.W.2d 361 (Tex.Cr.App.1980), but concluded without setting forth the facts of the case that the evidence was sufficient. We granted review to examine the sufficiency question.

The facts of the case are quite simple. The State presented only one witness, the arresting officer, Terry Dunn of the Sherman Police Department. He related that at approximately 10:04 a.m. on January 11, 1983 he answered a dispatch on a suspicious vehicle call. Pursuing the call he found appellant behind the wheel of a white Ford automobile “parked on some grass” off the street on the 600 block of West Center Street in Sherman. Dunn testified that the car was “running” but not moving when he arrived at the scene. Dunn approached the automobile and obtained appellant’s driver’s license for identification. A routine warrant check revealed an outstanding traffic warrant. Appellant was arrested and placdd in the patrol car. Proceeding to inventory the vehicle, Dunn found a pair of nun-chucks protruding two to three inches from beneath the driver’s side of the front seat, with the connecting chain visible. Dunn testified that nun-chucks are a “swinging type of a club,” capable of causing injury that would be “serious if not fatal in some cases.”

Appellant directs our attention to the following testimony elicited from Officer Dunn on cross examination:

“Q: Now, tell the jury everything, all the evidence that you have; take a free shot; that leads you to believe that those nun-chucks, state’s exhibit number one, belonged to Freddy Christian [appellant]?
A: I don’t know that they do belong to him.
Q: You weren’t able to find any witnesses that can tell us that he bought them?
A: It’s not my place to find the witnesses, sir.
Q: You did not find any witnesses that could tell us that he made them?
A: No.
Q: And we know for a fact that the car that Mr. Christian was sitting in did not belong to Mr. Christian?
A: Correct.
Q: It belonged to Mr. Gentry; did it not?
A: Yes.
Q: That is the gentleman that came in on the crutches, the bearded gentleman? There is nothing wrong with beards, you understand; that was sworn in as a witness this morning with you?[]
A: Yes.
Q: And I presume that in going forward with your investigation, did you at least discount that the nun-chucks belonged to Mr. Géntry?
A: No, I did not, no.
* # ⅜ * * ⅜
Q: .... Again, I put it to you, on what basis did you arrest Freddy Sanford Christian for possession of this deadly weapon, the nun-chucks?
A: Because they were on or about his person.
Q: Anything else?
A: They are an illegal weapon.
Q: Anything else?
A: No.”

Appellant would have us analyze the sufficiency of the evidence under rules we have adopted for determining the sufficiency of evidence in cases of possession of a controlled substance, and contends that this case is “squarely controlled” by Bush v. State, 631 S.W.2d 760, 761 (Tex.Cr.App.1982). In cases too numerous to cite this Court has held that to establish unlawful possession of a controlled substance the State must show (1) that the accused exercised care, control and management over the contraband and (2) that the accused knew the matter possessed was contraband. Furthermore, whether the State’s theory is sole or joint possession, the evidence must affirmatively link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband’s existence and that he exercised control over it. Sinor v. State, 612 S.W.2d 591 (Tex.Cr.App.1981) and cases cited therein. We understand appellant to argue that because the evidence in this case demonstrated that someone else owned the car he was found in, additional facts and circumstances had to be proved which would indicate his knowledge of and control over the nun-chucks.

We decline, however, to equate uncritically the element of “carrying on or about [the] person” contained in § 46.02, supra, with the element of unlawful “possession” prescribed in the possessory offenses listed in the Controlled Substances Act, V.T.C.A., Article 4476-15, and other possessory offenses found in the penal code.

V.A.C.S., Article 5429b-2, § 2.01 provides that “[wjords and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.” The Legislature has given a technical meaning to the term “possession:” “actual care, custody, control, or management.” Y.A.P.C., § 1.07(a)(28). For possession to be considered voluntary (ergo culpable) conduct, the possessor must knowingly obtain or receive the thing possessed or be aware of his control of the thing for a sufficient time for him to terminate his control. Id., § 6.01(a) and (b). Furthermore, the possessor must possess intentionally or knowingly with respect to the nature of his conduct. Id., § 6.03(a) and (b).

By contrast, the phrase “carry on or about [the] person” has acquired no technical or particular meaning legislatively or otherwise. Webster’s New Collegiate Dictionary (1979) defines “carry” to mean, in those aspects most appropriate to our analysis: “1: to move while supporting (as a package): TRANSPORT... 8a: to wear or have on one’s person b: to bear upon or within <is [carrying an unborn child. > ...” Were we to apply the latter definition literally in construing § 46.02, then the word “carrying” would simply be redundant of its modifier “on or about [the] person.” In order to give effect to the entire phrase it is necessary to construe “carry” to denote an element of asportation.

As noted in the Practice Commentary following § 46.02, supra:

“Under prior [Article 483] the courts never defined ‘carrying’ and consequently its application is not certain. The cases indicate that carrying includes some sort of transport and that possession alone is not carrying..

That an element of conveyance or asportation is implicit in the act of “carrying” is demonstrated by the language of Article 483 of the old penal code, which punished the act of carrying a prohibited weapon “on or about [the accused’s] person, saddle or in his saddlebags, or in his portfolio or purse....” Though the Legislature omitted the more specific receptacles enumerated in the old provision when it enacted § 46.02, this may be attributed to this Court’s recognition that “on or about [the] person” extends to cover at least the interi- or of an automobile, see Courtney v. State, 424 S.W.2d 440 (Tex.Cr.App.1968), which is of course the chief mode of personal transportation in present day Texas.

Thus, while cases such as Bush v. State, supra, may be instructive in evaluating the sufficiency of the evidence in a prosecution under § 46.02, supra, they certainly cannot be said to “control” the issue of whether the evidence proved beyond a reasonable doubt that the accused was “carrying on or about his person” one of the weapons prohibited by the statute.

It is clear from Officer Dunn’s testimony that the nun-chucks found directly underneath and protruding from under the driver’s seat where appellant had been sitting, were “on or about his person.” Furthermore there is evidence sufficient to show appellant knew the nun-chucks were there, since, as they protruded two to three inches, with the connecting chain portion exposed, the nature and existence of the nun-chucks were open to plain view. The question remains whether or not there are sufficient facts and circumstances in the record to establish that appellant had been or was in the act of carrying, i.e., personally transporting the nun-chucks.

This Court recently recognized that the ultimate “standard for review” in a circumstantial evidence case is no different than the standard for direct evidence viz: whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In so doing we also confirmed the utility of the “exclusion of outstanding reasonable hypotheses” mode of analysis for applying this standard in circumstantial evidence cases. “Stated in the converse, if the evidence supports an inference other than the guilt of the appellant, a finding of guilt beyond a reasonable doubt is not a rational finding.” Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Cr.App.1983) (Opinion on State’s Motion for Rehearing).

We think that the jury could reasonably infer appellant was unlawfully “carrying” the nun-chucks from the fact that he was found alone behind the wheel of an automobile which, though parked, was running. Moreover, we perceive no other reasonable inference that could be drawn from such circumstances, regardless of the ownership of the automobile or the weapon.

Under the facts and circumstances of this case, the evidence was sufficient to support the determination of the jury.

The judgment of the court of appeals is affirmed.

TEAGUE, J., dissents.

McCORMICK, Judge,

concurring.

I concur with the opinion of the majority of the Court with the exception of the dicta included therein regarding “asportation”. Under the law of this State, “asportation” is not a required element of the offense of unlawfully carrying a weapon and momentary possession is not a statutory defense to prosecution under V.T.C.A., Penal Code, Section 46.02.

The current penal code provides that “[a] person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club.” Section 46.02, supra. Article 483 of the old penal code, the precursor section, punished “[a]ny person who shall carry on or about his person, saddle.. .saddlebags,. . .portfolio or purse any pistol, dirk, dagger, etc_” Other than adding culpable mental states to the current version in 1974, the Legislature has continuously retained this offense, substantially unchanged, since 1879. A particular form of possession — on or about the person — is prohibited. “Carrying”, as such, has always been of consequence in that there are long recognized case law defenses to unlawful “carrying,” now codified by the Legislature, to include members of the armed forces and national guard on official duty; peace officers, prison guards, and security guards on duty or going to and from; travelers; a person on his own premises or premises under his control; and individuals engaged in lawful hunting, fishing, or other sporting activity. See, Y.T.C.A., Penal Code, Section 46.03, the practice commentary, and cases cited therein.

The plain language of the statute, however, has never required asportation, as asserted by the majority. It requires not that a weapon “be carried,” but that a weapon be “carried on or about the person” to come with the ambit of its posses-sory prohibition. Section 46.02, supra. This distinction between the word and the phrase is cruciak Moreover, a close reading of many early cases indicates that unexcepted or indefensible possession on or about the person, not asportation, is the determining factor of conviction. See, e.g. Pyka v. State, 80 Tex.Cr.R. 644, 192 S.W. 1066 (1917); Schuh v. State, 58 Tex.Cr.R. 165, 124 S.W. 908, 909 (1910); Sanderson v. State, 23 Tex.App. 520, 5 S.W. 138 (1887); see also, Linvel v. State, 629 S.W.2d 94, 96 (Tex.App. — Dallas, 1981), and cases cited therein; Trimble v. State, 132 Tex.Cr.R. 236, 104 S.W.2d 31, 34 (1937) (“when the condition that sanctions the carrying of a deadly weapon ceases, the right ceases”).

Our recent cases make it crystal clear that absent a defense a weapon possessed on or about the person is synonymous with a weapon carried on or about the person. In Tijerina v. State, 578 S.W.2d 415, 416 (Tex.Cr.App.1979), we upheld against a challenge to the sufficiency of the evidence a conviction for unlawfully carrying a weapon where the defendant was found lying asleep in a parked car with a gun in his pocket. Likewise, in Hazel v. State, 534 S.W.2d 698, 700 (Tex.Cr.App.1976), the conviction was upheld where a gun was found on the floor of a parked car in which the defendant was sitting. Neither of these cases contain any suggestion that the weapons were moved.

Therefore, I concur in the opinion of the Court.

CAMPBELL, J., joins in this concurring opinion.

      . Though apparently sworn in, Mr. Gentry was not called upon to testify by either the State or by appellant.

      . See 21 Tex.D.2d, Drugs and Narcotics § 107.

      . In response the State directs our attention to a case in which, using the same analysis suggested by appellant here, the en banc Court nevertheless sustained a conviction for unlawful carrying of a weapon on facts similar to those of this case. See Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976). It was not held in Hazel that such an analysis was necessarily appropriate in the context of a prosecution for unlawfully carrying a weapon. Rather, Presiding Judge Onion’s opinion demonstrated that, even indulging the defendant’s contention that a "possession” analysis was controlling, the evidence was sufficient to sustain his conviction.
      For reasons developed post, we decline to adhere strictly to such an analysis to measure the sufficiency of evidence in a prosecution under 46.02.

      . Subsection (a) reads:
      “(a) A person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club.”

      . See V.A.P.C., §§ 46.05 and 47.06.

      . This is what has commonly been called the second element required to be proved in possession of controlled substance cases, viz: that the accused knew the matter possessed was indeed contraband. See n. 2, ante.

      . See Walker v. State, 149 Tex.Cr.R. 438, 195 S.W.2d 363 (1946); Henson v. State, 134 Tex. Cr.R. 472, 116 S.W.2d 393 (1938); Bogus v. State, 83 Tex.Cr.R. 356, 203 S.W. 597 (1918); Guy v. State, 74 Tex.Cr.R. 620, 170 S.W. 303 (1914). (All emphasis is supplied by the writer of this opinion unless otherwise indicated.)

      . Had the Legislature chosen to apply the precisely defined term "possession” to § 46.02 in enacting the 1974 penal code, it could have enacted the version proposed in the Texas Penal Code, A Proposed Revision, State Bar Committee on Revision of the Penal Code, Final Draft (October 1970), which read:
      “Unlawful Possession of Weapon (a) An individual or corporation commits an offense if:
      (1) he possesses what he knows to be a firearm, a knife with a blade length exceeding five and one-half inches, or a club...”
      The Committee Comment following this proposed revision notes:
      "Subsection (a)(1) alters Penal Code art. 483 in three respects... Second, the offense is defined in terms of ‘possession’ rather than ‘carrying.’ This change, although not a significant expansion of present law, will alter the outcome of such cases ás Walker v. State, 196 S.W.2d 363 [149 Tex.Cr.R. 438, 195 S.W.2d 363] (Tex.Crim.App.1946) (holding no unlawful carrying when defendant obtained pistol from his wife while in a bar, brandished it, but did not leave the club with it).”
      Failing to enact this proposal, the Legislature seems to have evinced an intention to retain the asportation element present in the Walker case.

      .I.e., within such distance of appellant that he could get his hands on it without materially changing his position. See Courtney v. State, supra; Wagner v. State, 80 Tex.Cr.R. 66, 188 S.W. 1001 (Tex.Cr.App.1916). In the definitional section of its charge to the jury the trial court defined "about” substantially as those cases do.