author: BRADY, Justice.

text:
    Jack F. TRAHAN, Appellant, v. Emma J. TRAHAN, Appellee.
    No. 14145.
    Court of Appeals of Texas, Austin.
    Oct. 24, 1984.
    Rehearing Denied Dec. 19, 1984.

      Samuel D. McDaniel, Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for appellant.
    Philip C. Friday, Jr., Austin, for appellee.
    Before PHILLIPS, C.J., and POWERS and BRADY, JJ.
   BRADY, Justice.

This is a partition suit in which Jack F. Trahan appeals from the district court’s judgment awarding his former spouse, Emma J. Trahan, 38.96% of his Air Force non-disability retirement benefits. By cross-point, appellee claims the trial court erred in awarding to her these retirement benefits only from June 25, 1981 rather than from April 30,1965, the date appellant retired.

PROCEDURAL HISTORY

-I-

The Trahans were married on September 4, 1943 and were divorced on January 22, 1963. During this time appellant was a member of the Air Force. (It is stipulated that the Trahans were married 187 months of the 240 months appellant was in the Air Force.) The divorce decree, however, did not award appellee any share of appellant’s retirement benefits. Appellant retired from the Air Force on April 30, 1965 and began receiving retirement benefits at that time. The Trahans remarried on October 28, 1970 but were divorced on May 7, 1971. Again, the second divorce decree did not award appellee any interest in appellant’s retirement benefits. Both divorce decrees were silent on this matter.

Appellee brought a suit for partition of appellant’s retirement benefits and a judgment in her favor was entered on January 19,1979 awarding her 38.96% of appellant’s retirement benefits paid to him since April 30, 1965 and a like percentage of all future non-disability retirement benefits. This judgment was affirmed by the Court of Civil Appeals. See Trahan v. Trahan, 609 5.W.2d 820 (Tex.Civ.App.1980). Writ of error was granted by the Supreme Court of Texas and during the pendency of that appeal the United States Supreme Court announced its decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). The Court held in McCarty that non-disability retirement pay may not be divided pursuant to state community property laws. The Supreme Court of Texas, citing McCarty and the Supremacy Clause of the United States Constitution, reversed and rendered judgment that Emma J. Trahan take nothing. See Trahan v. Trahan, 626 S.W.2d 485 (Tex.1981).

-II-

This present suit was filed by Emma Trahan on February 10,1988 again seeking to partition appellant’s retirement benefits in light of the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C.A. § 1408 (West 1983). The district court ordered a partition of appellant's retirement benefits from June 25, 1981, awarding ap-pellee 38.96% of said benefits.

Appellant brings five points of error, the thrust of these points being that the decision of the Supreme Court of Texas in Trahan v. Trahan, 626 S.W.2d 485 (Tex. 1981) is res judicata as to appellee’s present cause filed on- February 10, 1983, irrespective of the Uniformed Services Former Spouses Protection Act, 10 U.S.C.A. § 1408 (West 1983). Appellant also claims the court order constitutes an illegal garnishment of his wages.

McCARTY

The United States Supreme Court held in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) that non-disability retirement pay may not be divided upon divorce pursuant to state community property laws. Richard McCarty served in the Army for twenty years and during all but two of these years he was married to Patricia McCarty. A California superior court awarded Patricia approximately 45% of her husband’s retirement pay. That judgment was affirmed by the California Court of Appeals and writ of certiorari was granted by the United States Supreme Court to decide the question of whether or not “the federal scheme of military retirement benefits preempts all state community property laws with respect thereto, and that ... [state] courts are accordingly precluded by the Supremacy Clause from dividing such benefits ....” McCarty, supra at 219 n. 12, 101 S.Ct. at 2734 n. 12. The Supreme Court, citing Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), held that “the application of community property principles to military retired pay threatens grave harm to ‘clear and substantial’ federal interests.” McCarty, supra 453 U.S. at 232, 101 S.Ct. at 2741. Questions were then raised such as whether or not McCarty would be applied retroactively and whether courts in community property states would now be able to effect a just distribution of the marital estate upon divorce. See, e.g., Raggio & Raggio, McCarty v. McCarty: The Moving Target of Federal Pre-Emption Threatening All Non-Employee Spouses, 13 St. Mary’s L.J. 505 (1982); Note, McCarty v. McCarty: The Battle Over Military Nondisability Retirement Benefits, 34 Baylor L.Rev. 335 (1982); Note, Military Retirement Pay Not Subject To Division As Community Property Upon Divorce: McCarty v. McCarty, 19 Hous.L.Rev. 591 (1982).

UNIFORMED SERVICES FORMER SPOUSES’ PROTECTION ACT

In response to the Supreme Court’s decision in McCarty v. McCarty, Congress passed the Uniformed Services Former Spouses’ Protection Act (the Act), codified at 10 U.S.C.A. § 1408 (West 1983). The section of that act relevant to this appeal provides:

Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.

Id. at (c)(1). “The purpose of [this] act [is] to reverse the effect of the McCarty decision.” Cameron v. Cameron, 641 S.W.2d 210, 212 (Tex.1982). See also Newton & Trail, Uninformed [sic] Services Former Spouses’ Protection Act — A Legislative Answer To The McCarty Problem, 46 Tex. B.J. 291, 294-96 (1983).

It is clear that Congress had two goals in mind by passing the Act: reverse the ef-feet of the McCarty decision and provide direct enforcement powers to former spouses seeking payment of retirement benefits previously awarded to them. A reading of the legislative history of the Act shows that Congress intended that the Act nullify the effect of McCarty; that is, state courts were to apply state substantive law as if McCarty had never existed. The direct enforcement powers, however, were to be applied prospectively from February 1, 1983, the effective date of the Act. The following language from Senate Report No. 502 is helpful in this regard:

The provisions of S. 1814 reversing the effect of the McCarty decision are retroactive to June 26,19.81, the date on which the U.S. Supreme Court issued that decision. That is, the committee intends the legislation to restore the law to what it was when the courts were permitted to apply State divorce laws to military retired pay. Former spouses divorced in the interim period between the McCarty decision and the effective date of this law will have the opportunity to return to court to have their decrees modified in light of this legislation. However, nothing in the bill would mandate payments out of retired pay which had been disbursed during the period between the date of the McCarty decision and the effective date of this legislation. The mechanism for direct payment of court orders for alimony, child support and property distribution would apply only to payments of retired pay for periods beginning on or after the effective date of this legislation.

S.Rep. No. 502, 97th Cong., 2d Sess. 5, reprinted in 1982 U.S.Code Cong. & Ad. News 1596, 1599-1600.

This report also provides a seetion-by-section analysis of 10 U.S.C.A. § 1408 (West 1983). The analysis of subsection (c) is as follows:

Subsection (c) of section 1408 sets forth several conditions and limitations applicable to court orders served and payments made pursuant to section 1408. Paragraph (1) of subsection (c) provides that, subject to the other limitations of section 1408, a court, as defined by paragraph (1) of subsection 1408(a), may treat the disposable retired or retainer pay payable to a member for pay periods beginning on or after June 26, 1981, either as solely the property of the member or as the property of the member and the member’s spouse, depending on the law applicable to the court in question. The purpose of this provision is to place the courts in the same position that they were in on June 26, 1981, the date of the McCarty decision, with respect to treatment of non-disability military retired or retainer pay. The provision is intended to remove the federal pre-emption found to exist by the United States Supreme Court and permit State and other courts of competent jurisdiction to apply pertinent State or other laws in determining whether military retired or retainer pay should be divisable. Nothing in this provision requires any division; it leaves that issue up to the courts applying community property, equitable distribution or other principles of marital property determination and distribution. This power is returned to the courts retroactive to June 26, 1981. This retroactive application will at least afford individuals who were divorced (or had decrees modified) during the interim period between June 26, 1981 and the effective date of this legislation the opportunity to return to the courts to take advantage of this provision.

Id. at 16, 1982 U.S.Code Cong. & Ad.News 1611 (emphasis added).

Appellant cites us to the House Conference Report which addresses, inter alia, the retroactivity of the Act and its application to divorce decrees finalized prior to the McCarty decision.

In additions [sic], the conferees intend this provision to preclude recognition of changes to court orders finalized before the McCarty decision if those changes are effected after the McCarty decision and as a direct result of the enactment of the new title X of this conference report. In other words, the courts should not favorably consider applications based on the enactment of this title to reopen cases finalized before the McCarty decision wherein military retired pay was not divided.

H.Conf.Rep. 749, 97th Cong., 2d Sess. 168, reprinted in 1982 U.S.Code Cong. & Ad. News 1569, 1573. Appellant claims this language indicates that Congress did not intend for former spouses to reopen cases to effect some kind of division of retirement benefits pursuant to the Act. Appellant is misapplying this language to his case as his case was not finalized before the McCarty decision, thereby taking it out of the category of cases contemplated by the House in its conference report. The Supreme Court of Texas stated: “No final adjudication regarding Jack Trahan’s military retirement benefits, therefore, has or will be made until this Court renders its opinion.” Trahan v. Trahan, 626 S.W.2d 485, 488 (Tex.1981). This opinion was handed down five months after the United States Supreme Court announced its decision in McCarty. Finally, although the House and Senate reports speak to divorce decrees rather than partition suits, the Act should be applied in the present case because there would be no cause of action to partition appellant’s retirement benefits but for the divorce.

TEXAS LAW

Military retirement benefits as early as 1960 were considered community property subject to division upon divorce by Texas courts. Kirkham v. Kirkham, 335 S.W.2d 393 (Tex.Civ.App.1960, no writ); Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977); Clearley v. Clearley, 544 S.W.2d 661 (Tex.1976). The Supreme Court of Texas has also held that McCarty is to apply only prospectively; that is, any judgment dividing military retirement pay which became final prior to the date McCarty was announced (June 26, 1981) would stand. Segrest v. Segrest, 649 S.W.2d 610 (Tex.1983). It is equally clear that any judgment of divorce or partition entered after February 1, 1983, the effective date of the Act, awarding a spouse an interest in retirement benefits would also stand. The problem in this case involves a former spouse who had the misfortune of having a final judgment entered after June 26, 1981, the date McCarty was handed down, and before February 1, 1983, the effective date of the Act. This “gap problem” was addressed by the California Court of Appeals in In Re Marriage of Hopkins, 142 Cal.App.3d 350, 191 Cal.Rptr. 70 (1983).

Not to apply the Act retroactive to June 25,1981, would yield far more problems than would any mechanical application of a calendar-determining set of laws. To allow cases decided, but not yet final, either before or during the relatively short interval of McCarty to be subject to the McCarty rule would carve out of the many persons entitled to military pensions a fortunate or unfortunate few who had substantial rights determined by the vagaries of the calendar. It would create a gap of some 20 months in which their future entitlements were or were not to be determined in a manner different from the 40 years before or the indefinite future after. Most importantly, it would allow the happenstance of the calendar to thwart the meaning of Congress when the Congress did quickly and affirmatively act to clearly and fully make these pension rights subject to the state’s control. Indeed, not to apply the Act retroactively would be to thwart the very title of the Act, the “Uniformed Services Former Spouses’ Protection Act.”

Id. 191 Cal.Rptr. at 77.

We also find the following excerpt from Smith v. Smith, 458 A.2d 711 (Del.Fam.Ct.1983) persuasive:

It appears rather clear that Congress, in passing the Act, intended to obliterate the adverse effect of McCarty upon the divorced spouse of military personnel by making it retroactive to the date of that decision. The Committee Report which accompanied the bill (copy attached) states at p. 1:
The primary purpose of the bill is to remove the effect of the United States Supreme Court decision in McCarty v. McCarty, 458 [453] U.S. 210 [101 S.Ct. 2728, 69 L.Ed.2d 589] (1981). The bill would accomplish their objective by permitting Federal, State, and certain other courts, consistent with the appropriate laws, to once again consider military retired pay when fixing the property rights between the parties to a divorce, dissolution, annulment or legal separation.”

And Congress clearly felt that spouses aggrieved as a result of McCarty should have a chance to rectify the situation when the Report stated at p. 5:

“Former spouses divorced in the interim period between the McCarty decision and the effective date of this law will have the opportunity to return to court to have their decrees modified in light of this legislation.” (Emphasis added)
When Report used the words “divorced in the interim period”, I think it clear that the author had in mind a property decree which formed a part of the divorce decree itself and did not intend to turn away a spouse whose divorce occurred prior to McCarty but whose property decree came afterward. In short, I believe the Report intended to refer to the date of the decree disposing of property and not necessarily the divorce decree only. The statute itself does not refer to a “divorce” decree but only to “court order” which is defined by the Act itself in § 1408(a)(2) to include a “final decree of divorce, dissolution, annulment or legal separation issued by a court, or a court ordered, ratified or approved property settlement incident to such a decree ...” (Emphasis added)
Obviously, even though Congress clearly seemed to leave the door open for modification of post-McCarty property decree, Congress cannot compel state courts to afford that opportunity .... Indeed they rather clearly stated that courts should have the freedom to undo any harm created by the McCarty precedent by removing it retroactively. The Act is really a legislative reversal or vacation of McCarty ....
Should the Court, therefore, in view of the Act and the congressional intent referred to above reopen the case to consider an amendment to the Order of November 30,1981 to include the Husband’s military pension as specific property subject to division? It is my considered judgment that it would be inequitable not to reopen.

Id. at 713-14.

The doctrine of res judicata should not apply in this case. Applying the doctrine of res judicata would subvert the intent of Congress and the plain meaning of the Act which is to restore state law to what it was prior to the McCarty decision. “The judgment in [the prior] case was res adjudicata only of the issue then presented of the facts as they then appeared and of the legislation then existing.” State v. Powell, 63 Tex.Civ.App. 405, 134 S.W. 746, 748 (1910, writ ref’d), quoting Utter v. Franklin, 172 U.S. 416, 19 S.Ct. 183, 43 L.Ed. 498 (1899) (emphasis added). See also United States v. Sioux Nation of Indians, 448 U.S. 371, 100 S.Ct. 2716, 65 L.Ed.2d 844 (1980). Given the subsequent legislation passed by Congress since McCarty was handed down, we hold that res judicata does not bar appellee from bringing this action and, accordingly, overrule appellant’s points of error.

Appellant also claims that the trial court’s judgment is an unconstitutional garnishment of his wages. We do not agree. “Garnishment is a statutory proceeding whereby the property, money, or credits of one person in the possession of, or owing by another are applied to the payment of the debt of a debtor by means of proper statutory process issued against the debtor and the garnishee.” Beggs v. Fite, 130 Tex. 46, 106 S.W.2d 1039, 1042 (1937). The judgment in the present case involves no third party. It merely directs appellant to pay a certain percentage of his retirement benefits to appellee.

We will overrule appellee’s cross-point of error seeking division of appellant’s retirement benefits from April 30, 1965. The judgment of the trial court awarding appel-lee 38.96% of appellant’s military retirement benefits from June 25, 1981, is affirmed.


source: Caselaw Access Project

author: GUITTARD, Chief Justice.

license: Public Domain

text:
    Norris Lee NASH, Appellant, v. The STATE of Texas, Appellee.
    No. 05-83-00468-CR.
    Court of Appeals of Texas, Dallas.
    Oct. 25, 1984.
    Melvyn Carson Bruder, Bruder & Cooper, Dallas, for appellant.
    Henry Wade, Dist. Atty., Constance M. Maher, Asst. Dist. Atty., Dallas, for appel-lee.
    Before GUITTARD, C.J., and STEPHENS and STEWART, JJ.
   GUITTARD, Chief Justice.

Appellant was convicted of unlawfully possessing cocaine. The cocaine was contained in a small vial found on appellant when he was jailed for an unrelated offense. On appeal he complains of the trial court’s failure to suppress the report of a laboratory analysis of the contents of the vial. We hold that this evidence was not obtained as a result of an unlawful seizure. Consequently, we affirm.

The following facts are stipulated:

On May 20, 1982, at approximately 2:30 a.m., the defendant, Norris Lee Nash, was arrested in the 7600 block of North Central Expressway, Dallas County, Texas, for the offense of driving while intoxicated by Dallas police officers. The officers searched the defendant’s person but found nothing of consequence. The defendant was then transported in a police car to the Dallas City jail. Upon arrival at the jail, the defendant’s personal property was taken from him by jail personnel for safekeeping during the defendant’s incarceration. The defendant was then taken to a cell where he was to be kept pending his release or transfer to the Dallas County jail. Preparatory to placing the defendant in a cell, Dallas police public service officer A.W. Jenkins conducted a search of the defendant and found underneath his clothing in his crotch a small, opaque, brown, glass vial, which was closed. A visual examination of the vial indicated it contained a powdery substance. The vial was seized by officer Jenkins, who opened it to examine its contents. After determining the contents to be white . powder, Jenkins caused the vial to be transported to the Southwestern Institute of Forensic Science where the vial was again opened, and its contents were removed and scientifically analyzed. Such analysis revealed that the powder contained cocaine.

No warrant was issued for appellant’s arrest, for the search of his person, or for the seizure of his property. Appellant admits, however, that his arrest was proper and that seizure of the vial was permitted as a part of an inventory search at the time he was booked into the jail. He even concedes that the officer was justified in opening the vial and making a visual inspection of its contents. He contends, however, that the analysis of the contents by a laboratory was an unreasonable search or seizure forbidden by article I, section 9, of the Texas Constitution and the Fourth Amendment of the Constitution of the United States. He insists, therefore, that in the absence of a lawful warrant or facts establishing probable cause, the court erred in overruling his motion to suppress.

We reject this contention on the ground that the constitutional prohibition of unreasonable searches and seizures does not apply to authorized police inventory procedures. Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983). Lafayette holds that neither a warrant nor probable cause is required for a valid inventory search when a person is initially placed in jail. Examining all the items removed from the arrestee’s person and listing them is justified as a reasonable administrative procedure to protect the police against false claims and to protect the arrestee against theft of property in police custody. These interests, according to Lafayette, outweigh the arrestee’s privacy interest in the contents of the property removed. Consequently, the court will not second guess the police as to whether less intrusive methods might have been adequate. Appellant does not suggest that we interpret the Texas constitutional prohibition more restrictively than the corresponding provision of the Fourth Amendment.

Appellant argues that in Lafayette no question was raised about making an analysis of contents after the container itself was seized. There the police removed the contents of the arrestee’s shoulder bag and found amphetamine pills inside a cigarette case package. No issue was raised as to how the pills were identified as controlled substances. We do not read Lafayette so narrowly as to permit a visual inspection of the contents of a container removed from a prisoner, but not a more detailed examination when required to identify the contents. In the light of that opinion, we conclude that for the purpose of an administrative inventory the police are not required to make such fine distinctions. What they lawfully seize for protection of the interests of the public and of the prisoner, they may identify by whatever means necessary. This conclusion is supported by United States v. Jacobsen, — U.S. -, 104 S.Ct. 1652, 1662, 80 L.Ed.2d 85 (1984), which holds that when law enforcement officers are lawfully in possession of a substance, a chemical test that merely discloses whether that substance is cocaine does not compromise any legitimate interest in privacy. Consequently, we conclude that no unreasonable search or seizure is shown.

This conclusion is not contrary to Howard v. State, 599 S.W.2d 597, 604-05 (Tex.Crim.App.1980) (en banc), on which appellant principally relies. There an officer stopped the defendant for a traffic offense and then seized a bottle of pills in the vehicle. These pills were found on analysis to contain a controlled substance. The court held that the seizure could not be justified under the “plain view” doctrine because the officer had no reason, to suspect that the bottle contained a controlled substance before he seized it. That case did not involve an inventory search, nor did the defendant concede, as here, that the officer was justified in taking possession of the container in question.

Affirmed.


author: AKIN, Justice.

text:
    Daniel K. HENNESSY and Max Hatfield, Relators, v. Honorable John McClellan MARSHALL, Respondent.
    No. 05-84-01067-CV.
    Court of Appeals of Texas, Dallas.
    Oct. 29, 1984.

      M. David Bryant, Jr., Dallas, for relators.
    Ric L. Floyd, Smith, Underwood, Carmi-chal & Floyd, Dallas, for respondent.
    Before AKIN, ALLEN and GUILLOT, JJ.
   AKIN, Justice.

Relators seek a writ of mandamus requiring respondent, the Honorable John Marshall, Judge of the 14th Judicial District Court of Dallas County, to vacate an order rendered October 1, 1984, which ordered relators to appear and give their deposition and which denied relators’ motion to quash the subpoenas. This order was predicated on an earlier ex parte order, dated September 17,1984, in which the trial court recognized an English judgment under TEX.REV.CIV.STAT.ANN. art. 2328b-6 (Vernon Supp.1984), known as the Uniform Foreign Country Money-Judgment Recognition Act (“the Recognition Act”), and TEX.REV.CIV.STAT.ANN. art. 2328b-5 (Vernon Supp.1984), known as the Uniform Enforcement of Foreign Judgments Act (“the Enforcement Act”).

The question presented is whether the English judgment can be recognized under the Recognition Act and enforced under the Enforcement Act absent a plenary suit and hearing. We hold that (1) it cannot be so recognized and enforced, (2) because the English judgment was not entitled to recognition or enforcement, the trial court’s order of September 17, 1984, is void and (3) because the trial judge’s order of September 17, 1984, is void, the trial court abused its discretion by his order of October 1, 1984, ordering relators deposed and denying relators’ motion to quash. Accordingly, we grant leave to file the application for writ of mandamus and conditionally grant the writ.

Procedural Background

The discovery order of October 1, 1984, resulted from attempts to enforce a default judgment rendered by an English court. Relators were not parties to that judgment but have been subpoenaed to appear and give their depositions in aid of post-judgment discovery. The underlying English judgment, a default judgment granted to Zealcastle Limited Trading as London Park Tower Casino against Abdul Wahab Gala-dari a/k/a Abdul Wahab Bin Ebrahim Ga-ladari, was filed with the District Clerk of Dallas County. Notice of the filing was mailed to Galadari by both the district clerk and Zealcastle’s attorney. Several days after the filing, on September 17, 1984, the trial judge signed an order pursuant to the Recognition Act and the Enforcement Act. The trial court found that these two Acts had been satisfied and that the English judgment was valid and enforceable in the same manner as a judgment of the State of Texas, just as though the English judgment was that of a sister state. The trial court subsequently signed an order on October 1 directing relators to provide post-judgment discovery, which order precipitated the filing of the application for leave to file writ of mandamus in this court.

Do the Relators Have Standing?

We must initially decide whether re-lators have standing to file the application for writ of mandamus because they were not parties to the underlying English judgment or the trial court order domesticating it. As explained below, we hold that the trial court’s order recognizing and enforcing the foreign country judgment is void and the subsequent order compelling rela-tors to appear for deposition is an abuse of discretion. Because no viable alternative exists for relators to obtain relief from this void order, we hold that the relators have standing to file their application and we hereby grant leave to file the application for writ of mandamus.

Was the Trial Court’s September 17, 198k, Order Void?

The Enforcement Act provides for enforcement of a “foreign judgment” by filing an authenticated copy of it with the clerk of any court of competent jurisdiction in the state. By complying with this Act, a judgment creditor may use the same procedures for enforcing or satisfying the foreign judgment as are available for enforcement or satisfaction of a judgment of a Texas court. TEX.REV.CIV.STAT.ANN. art. 2B28b-5, § 2 (Vernon Supp.1984). A “foreign judgment” is defined as “a judgment, decree, or order of a court of the United States or of any other court that is entitled to full faith and credit in this state.” TEX.REV.CIV.STAT.ANN. art. 2328b-5, § 1 (Vernon Supp.1984).

Relators contend that the underlying English judgment in this case is not a “foreign judgment,” as defined above, and that it can be recognized and enforced only after a plenary hearing. On the other hand, respondent argues that section 4 of the Recognition Act mandates that the English judgment be given “full faith and credit,” just as that afforded a sister-state judgment, by merely filing that judgment. We agree with relators that the English judgment can be recognized and enforced only after plenary hearing.

Our holding is mandated by the language of section 4 of the Recognition Act which provides:

RECOGNITION AND ENFORCEMENT
Except as provided in Section 5 of this Act, a foreign country judgment meeting the requirements of Section 3 is conclusive between the parties to the extent that it grants or denies recovery of a sum of money. The foreign country judgment is enforceable in the same manner as the judgment of a sister state that is entitled to full faith and credit. [Emphasis added]

As we read this language, the first sentence of this section concerns recognition of a foreign country judgment and makes the foreign country judgment “conclusive between the parties to the extent that it grants or denies recovery of a sum of money.” The last sentence pertains, however, to enforcement of the foreign country judgment after that judgment has been recognized. Thus, the question of enforcement is not material until the foreign country judgment has first been recognized.

Under the express language of section 4, we must first look to section 5 of the Recognition Act to determine whether a foreign country judgment may be recognized under section 4. Section 5, entitled “grounds for nonrecognition,” provides:

Sec. 5. (a) A foreign country judgment is not conclusive if:
(1) the judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law;
(2) the foreign country court did not have personal jurisdiction over the defendant; or
(3)the foreign country court did not have jurisdiction over the subject matter.
(b) A foreign country judgment need not be recognized if:
(1) the defendant in the proceedings in the foreign country court did not receive notice of the proceedings in sufficient time to enable him to defend;
(2) the judgment was obtained by fraud;
(3) the cause of action on which the judgment is based is repugnant to the public policy of this state;
(4) the judgment conflicts with another final and conclusive judgment;
(5) the proceeding in the foreign country court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court;
(6) in the ease of jurisdiction based only on personal service, the foreign country court was a seriously inconvenient forum for the trial of the action; or
(7) it is established that the foreign country in which the judgment was rendered does not recognize judgments rendered in this state that, but for the fact that they are rendered in Texas, conform to the definition of “foreign country judgment” in section 2(2) of this Act. [EMPHASIS ADDED]

Obviously, these criteria for nonrecognition can be established only in a plenary hearing by the judgment holder against the judgment debtor. Absent such a plenary hearing, the defendant has not had an opportunity to present the matters set forth in section 5, some of which are in the nature of affirmative defenses and some of which the party seeking recognition of the foreign country judgment must affirmatively establish.

Section 5(b) of the Recognition Act also states that a “foreign country judgment need not be recognized” if certain conditions exist. These conditions appear to be affirmative defenses which must be asserted by the judgment debtor. It follows that, if the judgment debtor must bear these burdens, he must be afforded both notice and an opportunity to be heard in accord with due process requirements.

Our construction of section 4 is additionally supported by the language of section 6 of the Recognition Act which states that a foreign country judgment shall not be refused recognition if certain criteria pertaining to personal jurisdiction over the person of the defendant have been met. That section provides:

Sec. 6. (a) The foreign country judgment shall not be refused recognition for lack of personal jurisdiction if:
(1) the defendant was served personally in the foreign country;
(2) the defendant voluntarily appeared in the proceedings, other that for the purpose of protecting property seized or threatened with seizure in the proceedings or of contesting the jurisdiction of the court over him;
(3) the defendant prior to the commencement of the proceedings had agreed to submit to the jurisdiction of the foreign country court with respect to the subject matter involved;
(4) the defendant was domiciled in the foreign country when the proceedings were instituted, or, being a body corporate had its principal place of business, was incorporated, or had otherwise acquired corporate status, in the foreign country;
(5) the defendant had a business office in the foreign country and the proceedings in the foreign country court involved a cause of action arising out of business done by the defendant through that office in the foreign country; or
(6) the defendant operated a motor vehicle or airplane in the foreign country and the proceedings involved a cause of action arising out of such operation.
(b) The courts of this state may recognize other bases of jurisdiction.

Likewise, these matters cannot be determined absent a plenary hearing on the question of recognition.

Moreover, the plenary hearing which appears to be mandated by sections 5(a), 5(b), and 6 of the Recognition Act must, by the language of section 4, occur before the judgment is entitled to enforcement under section 4. The term “conclusive,” as used in section 5, is the same “conclusiveness” referred to in section 4. The judgment is conclusive only if the criteria outlined in section 5(a) have not been established by the judgment creditor. It follows then that if the criteria in section 5(a) with respect to the “conclusive” nature of the foreign country judgment are not met, then the judgment is not entitled to enforcement under section 4 and the foreign country judgment is of no effect in this state. Because section 4 is expressly conditioned upon the items set forth in section 5, the drafters of the Uniform Act and the Texas legislature intended that a plenary hearing be had before the foreign country judgment is recognized and before enforcement of the foreign country judgment commences. Thus, recognition of the foreign country judgment under the provisions of section 4 must await a plenary hearing to determine the matters set forth in section 5.

Furthermore, section 7 of the Enforcement Act, which is virtually identical to section 9 of the Recognition Act, directs that the Act “be construed to achieve its general purpose to make the law of those states which enact it uniform.” TEX.REV. CIV.STAT.ANN. art. 2328b-5, § 7 (Vernon Supp.1984). Although the Recognition Act has not been previously construed in Texas, other state courts have construed it. In adherence to section 7 of the Enforcement Act, and section 9 of the Recognition Act, we agree with those sister-state decisions which have considered the question before us and have held that a judgment of a foreign country cannot be registered under the Uniform Enforcement of Foreign Judgments Act by the mere filing of the foreign country judgment. See Dayan v. McDonald’s Corporation, 78 Ill.App.8d 194, 33 Ill.Dec. 768, 772, 397 N.E.2d 101, 105 (1979); Zalduendo v. Zalduendo, 45 Ill.App.3d 849, 4 Ill.Dec. 450, 453, 360 N.E.2d 386, 389 (1977); Hager v. Hager, 1 Ill.App.3d 1047, 274 N.E.2d 157, 160 (Ill.App.1971); Biel v. Boehm, 94 Misc.2d 946, 406 N.Y.S.2d 231, 233 (N.Y.Sup.Ct.1978). In accordance with these decisions, as well as our reading of the Act, we hold that a plenary suit must be filed and a plenary hearing held in a Texas court before a foreign country judgment is entitled to recognition and enforcement.

It is undisputed that in the present case no plenary suit was filed and no plenary hearing held on the issue of whether the English judgment was conclusive, and therefore entitled to recognition and enforcement. As a consequence, the trial court’s order of September 17, 1984, which purported to recognize the judgment as a Texas judgment, was void and of no effect. Likewise, all subsequent orders from the trial court based on the September 17, 1984, order were also void, including the October 1, 1984, order.

Should the Writ Issue?

This court has jurisdiction under TEX.REV.CIV.STAT.ANN. art. 1824 (Vernon Supp.1984) to “issue all writs of Mandamus agreeable to the principles of law regulating such writs, against any Judge of a District or County Court.” The writ is available only in situations in which the law clearly forbade the trial court’s action or clearly compelled trial court action. W. W. Rodgers and Sons Produce Co. v. Johnson, 673 S.W.2d 291, 293 (Tex.App.—Dallas 1984, no writ). In the present case, our holding that the trial court’s order of September 17, 1984, was void also compels the conclusion that the law clearly forbade the trial Judge’s order of October 1, 1984.

On this basis, we conditionally grant the writ of mandamus. We anticipate that, in accordance with our opinion, Judge Marshall will withdraw the order of October 1, 1984, which compels relators to give their depositions, and all subsequent orders based on the October 1, 1984, order, as well as the September 17, 1984, order, and that Judge Marshall will enter an order quashing the subpoenas directed to the re-lators. If Judge Marshall fails to perform any of the above actions within 3 days of the date of this opinion, the writ will issue.

      . Although we are aware that relators could obtain relief from the void order by refusing to comply with that order, they would be subject to incarceration for contempt and then would have to seek relief through habeas corpus in the supreme court. We do not consider this to be a tenable alternative to granting the relief sought in this court.

      . Although these cases support our holding, we do not necessarily agree with all of the various rationales supporting these decisions.


author: WHITHAM, Justice. SPARLING, Justice,

text:
    Bobby Joe HART, Appellant, v. The STATE of Texas, Appellee.
    No. 05-83-01331-CR.
    Court of Appeals of Texas, Dallas.
    Oct. 30, 1984.
    John H. Hagler, Dallas, for appellant.
    Henry Wade, Dist. Atty., Ruth E. Pla-genhoef, Asst. Dist. Atty., Dallas, for ap-pellee.
    Before AKIN, SPARLING and WHIT-HAM, JJ.
   WHITHAM, Justice.

Appellant, Bobby Joe Hart, appeals a conviction for forgery. We find no merit in appellant’s two grounds of error. Accordingly, we affirm.

In his first ground of error, appellant contends that the evidence is insufficient to show that he knew that the check was a forgery and that he intended to defraud another. Appellant attempted to cash a check at a check cashing center. The check was drawn on the account of a third party and made payable to appellant. While appellant waited, the cashier telephoned the third party. During the course of this telephone call, the third party telephoned the police and directed them to the check cashing center. While the cashier prolonged her call to the third party in order to keep appellant on the premises until the police arrived, appellant inquired of the cashier as to the reason for the delay in cashing the check. The cashier explained that she was trying to verify the check and that she had been put on hold. Subsequently, and while she was still on the telephone with the third party, the cashier observed appellant walk out the door. The check was not cashed and appellant left the check in the possession of the cashier when he left the check cashing center. Appellant was apprehended by the police in front of the check cashing center.

Appellant argues that the State failed to discharge its burden in proving scienter. We disagree. Under TEX.PENAL CODE ANN. § 32.21(b) (Vernon 1974) a person commits the offense of forgery if he “forges a writing with intent to defraud or harm another.” Thus, the State must present evidence, circumstantial or otherwise, to show the appellant’s knowledge that the instrument was forged or to show that appellant possessed the intent to defraud or harm. Crittenden v. State, 671 S.W.2d 527, 528 (Tex.Crim.App.1984) (en banc). Such knowledge may be inferred from an attempt to flee. 671 S.W.2d at 528. We conclude that appellant’s leaving the check cashing center without cash or check was an attempt to flee and that his attempt to flee was sufficient evidence to prove appellant’s knowledge that the instrument was forged and to prove that appellant possessed the intent to defraud or harm. Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends that the jury charge constituted an abstract instruction on the law. The charge read in part:

intentionally or knowingly with intent to defraud or harm another, pass to Cheryl Moore a forged writing, knowing such writing to be forged, and such writing had been so made that it purported to be the act of another who did not authorize the act, and said writing was a check of the tenor set out in the indictment (emphasis added).

Appellant argues that nowhere in the charge is the tenor of the check set out and that, therefore, the abstract charge constituted fundamental error. We disagree. The check which was the subject of the offense was attached to the indictment. The only check introduced into evidence was the check attached to the indictment. We conclude, therefore, that the trial court did not err in failing to set out in full the tenor of the check in the charge in a case in which the check was set out in the indictment in haec verba and that check was the only check admitted into evidence. Howell v. State, 627 S.W.2d 836, 837 (Tex.App.—Fort Worth 1982, pet. ref’d). Appellant’s second ground of error is overruled.

Affirmed.

SPARLING, Justice,

dissenting.

I believe that there is insufficient evidence of fraudulent intent. Accordingly, I dissent.

Both the cashier and arresting officer testified that appellant walked — not ran— from the location of the cashier’s booth. That fact, coupled with the fact that appellant left his check with the cashier, is the only evidence of flight, which, in turn, is the only evidence of fraudulent intent.

I can find no authority — cited by majority or otherwise — that affirms on such sketchy evidence of intent. For example, this court in Williams v. State, 646 S.W.2d 630 (Tex.App.—Dallas 1983, no pet.), held that there was insufficient evidence of knowledge that the instrument was forged, yet in my judgment, the facts proving knowledge in Williams are much stronger than the facts here. Although I disagree with the extreme holding of Williams, see Williams, 646 S.W.2d at 632, I must adhere to prevailing authority. Therefore, I would reverse the judgment of the trial court and reform to show an acquittal. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).


author: SPARLING, Justice. WHITHAM, Justice,

text:
    Ex parte Kenneth Wayne STACEY.
    No. 05-84-00369-CR.
    Court of Appeals of Texas, Dallas.
    Oct. 31, 1984.

      Bruce Anton, Dallas, for appellant.
    Henry Wade, Dist. Atty., Tom Streeter, Asst. Dist. Atty., Dallas, for appellee.
   SPARLING, Justice.

We grant the State’s motion for rehearing in this cause. The panel opinion dated May 31, 1984, is withdrawn and replaced with this opinion by the court sitting en banc.

Appellant Stacey appeals a judgment denying his application for writ of habeas corpus and remanding him to the custody of the sheriff for extradition to Alabama. Appellant contends, inter alia, that since the judge did not enter a referral order, the habeas corpus hearing improperly was held before a magistrate, and that the evidence is insufficient to sustain a judgment of extradition. A preliminary issue is whether there is a presumption that the trial judge heard evidence pertaining to extradition. If so, the issue of the propriety of the magistrate’s hearing is rendered moot. We hold that such a presumption exists and that the evidence is sufficient. Accordingly, we affirm.

Although the record contains a transcription of a “writ of habeas corpus” hearing held before a magistrate, the judgment, signed by Judge Ron Chapman, states in pertinent part:

On this, the 14th day of March, A.D., 1984, came on to be heard the application for the Writ of Habeas Corpus against Kenneth Wayne Stacey, and ... 7 proceeded to hear said application and after having examined the Writ ... and all papers and documents attached thereto, and having heard the testimony offered on both sides, I am of the opinion that the said Kenneth Wayne Stacey is legally held in custody_ (Emphasis added.)

We are bound by the record made in the trial court, Evans v. State, 622 S.W.2d 866, 868 (Tex.Crim.App.1981), and, absent a showing to the contrary, we presume that the recitations in the judgment are correct. Thompson v. State, 641 S.W.2d 920, 921 (Tex.Crim.App.1982); Miller v. Hood, 536 S.W.2d 278, 285 (Tex.Civ.App.1976, writ ref’d n.r.e.); Dorfman v. Dorfman, 457 S.W.Sd 417, 421 (Tex.Civ.App.—Texarkana 1970, no writ). As the Court of Criminal Appeals stressed in Kelley v. State, 676 S.W.2d 104 (Tex.Crim.App.1984), every presumption is to be indulged in favor of regularity of the proceedings and documents in the trial court. See Schneider v. State, 594 S.W.2d 415, 418 (Tex.Crim.App.1980); McCloud v. State, 527 S.W.2d 885, 887 (Tex.Crim.App.1975); Green v. State, 510 S.W.2d 919, 921 (Tex.Crim.App.1974); Martinez v. State, 504 S.W.2d 897, 899 (Tex.Crim.App.1974); Scates v. State, 161 Tex.Cr.R. 114, 274 S.W.2d 833, 834 (1955). The burden is on appellant to overcome the presumption that the judgment is correct. Tennison v. State, 168 Tex.Cr.R. 354, 327 S.W.2d 575, 576 (1959); Ex parte Clark, 164 Tex.Cr.R. 385, 299 S.W.2d 128, 129 (1957); Travelers Insurance Co. v. Brown, 402 S.W.2d 500, 504 (Tex.1966); Jones v. State, 644 S.W.2d 546, 549 (Tex.App.—Dallas 1982) (en banc), pet. refd, 646 S.W.2d 449 (Tex.Crim.App.1983); Taylor v. American Emery Wheel Works, 480 S.W.2d 26, 30 (Tex.Civ.App.—Corpus Christi 1972, no writ); Holliday v. Holliday, 453 S.W.2d 512, 514 (Tex.Civ.App.—Corpus Christi 1970, no writ).

Thus, we cannot address appellant’s arguments that the magistrate lacked jurisdiction to hear the writ and that there was no order of referral because the judgment unequivocally states that the judge heard the evidence, and, absent evidence in rebuttal, we cannot infer otherwise. When a judgment recites that evidence was introduced, we must presume sufficient evidence was introduced to support the judgment. Roye v. Silver Dollar Financing, Inc., 432 S.W.2d 123, 125 (Tex.Civ.App.—Fort Worth 1968, no writ). Absent direct proof to the contrary, recitations in a judgment are presumed true and control the rest of the record. Allen v. Bolton, 416 S.W.2d 906, 911 (Tex.Civ.App.—Corpus Christi 1967, no writ). See also Escobar v. State, 587 S.W.2d 714, 716 (Tex.Crim.App.1979); Gutierrez v. State, 456 S.W.2d 84, 85 (Tex.Crim.App.1970); Smith v. State, 455 S.W.2d 748, 756 (Tex.Crim.App.1970); Murchison v. Caruth Building Service, 369 S.W.2d 380, 384 (Tex.Civ.App.—Dallas 1963, writ ref’d n.r.e.).

The dissent’s position is that proof that the magistrate did conduct a hearing is “direct proof” that the trial judge did not. We fail to see the logic of that argument. Stated differently, it is not that we are sure that there were two extradition hearings in this cause—we just cannot be sure that there were not. In sum, the presumption was not rebutted.

The dissent then implies that the “district court judge used the wrong judgment form.” Yet there is not one smidgen of proof that this was a form judgment or that the information contained in the judgment is untrue. It is fundamental that a reviewing court cannot presume a state of evidence exists which supports a ground of error; the record must reveal the error, if any. Townsend v. Collard, 575 S.W.2d 422, 424 (Tex.Civ.App.—Fort Worth 1978, no writ).

If, arguendo, the judgment is in error, there were measures available to correct the error. Appellant could require that the record “speak the truth,” TEX. CODE CRIM.PROC.ANN. art. 40.09(7) (Vernon Supp.1984), Jones v. State, 644 S.W.2d 546, 548; or challenge the judgment by bill of exception, TEX.CODE CRIM. PROC.ANN. art. 36.20 (Vernon 1981); or by motion in arrest of judgment, TEX. CODE CRIM.PROC.ANN., ch. 41 (Vernon Supp.1984 and Vernon 1979); or by a request for a judgment nunc pro tunc. TEX.CODE CRIM.PROC.ANN. art. 42.06 (Vernon 1979); Perkins v. State, 505 S.W.2d 563 (Tex.Crim.App.1974). Consequently, we accept the record as we find it.

Finally, appellant complains that the evidence is insufficient because the record does not contain “a complaint, affidavit, information or indictment.” We disagree. TEX.CODE CRIM.PROC.ANN. art. 51.13 § 3 (Vernon 1979) lists certain documents, which include the charging instrument or affidavit and warrant, to be sent by the requesting state before the Governor’s Warrant may issue. The Governor’s Warrant alone, if regular on its face, becomes prima facie evidence authorizing extradition. Ex Parte Trisler, 605 S.W.2d 619, 620 (Tex.Crim.App.1980); Ex Parte Elliott, 542 S.W.2d 863, 864 (Tex.Crim.App.1976); Ex Parte Rosenthal, 515 S.W.2d 114, 116 (Tex.Crim.App.1974). This record contains a Governor’s Warrant that is regular on its face, and no defensive theory has been placed in issue. See Trisler, 605 S.W.2d at 620; Ex Parte Moore, 318 S.W.2d 667 (Tex.Crim.App.1958).

Consequently, we presume Judge Chapman heard the evidence and that the evidence was sufficient. Accordingly, we affirm.

Affirmed.

AKIN, STOREY, SHUMPERT, ROWE, GUILLOT and STEWART, JJ., join in the majority.

GUITTARD, C.J., concurs in the result of the majority.

WHITHAM, CARVER, STEPHENS, VANCE and ALLEN, JJ., dissenting.

WHITHAM, Justice,

dissenting.

I respectfully dissent. I understand the rule to be that absent a showing to the contrary in the record, we will presume the regularity of the proceedings. Schneider v. State, 594 S.W.2d 415, 418 (Tex.Crim.App.1980). In my view, there is a showing to the contrary in the record in the present case. Therefore, appellant has met his burden to overcome the presumption that the judgment is correct. Consequently, I cannot presume, as does the majority, that the district court judge conducted a hearing on the application for writ of habeas corpus from beginning to end. To my mind, the majority ignores the record. Accordingly, I would sustain appellant’s first ground of error in which appellant contends that the writ of habeas corpus was heard improperly by the magistrate since no referral to the magistrate was made.

The record contains only one court reporter’s transcript of the proceedings below. That transcript begins with these words:

BE IT REMEMBERED, TO-WIT: That on the 14th day of March, A.D., 1984, the above styled and numbered cause came on for hearing before HONORABLE CHARLES McCLURE, Magistrate, Sitting for HONORABLE RON CHAPMAN, Judge of the Criminal District Court of Dallas County, Texas, and that the following is a true and accurate transcript of the proceedings had:

The court reporter’s transcript ends with this certificate of the Honorable Ron Chapman, Judge of the Criminal District Court of Dallas County, Texas:

The above and foregoing transcript as certified by the Acting Official Court Reporter, having been presented to me, has been examined and is approved as a true and correct copy of the proceedings as represented in the above entitled and numbered cause.
/s/ Ron Chapman Judge
The only entry on the docket sheet reads:
DATE OF ORDER
3/14/84 Petition for Writ of Habeas Corpus denied. Barry Sorrells, attorney for Defendant, gave notice of appeal in open court. Appeal bail set at $1,500.00
/s/ Charles McClure Magistrate

Thus, the docket sheet suggests that the district court judge never conducted a hearing in this matter, never heard the application, and never heard testimony. Furthermore, the district court judge’s own certificate establishes that this proceeding was held before a magistrate. Since the transcript of proceedings and docket sheet show that the March 14,1984, hearing was held before a magistrate, not the district court judge, the presumption that the district court judge heard the application and testimony stands rebutted.

By its blind acceptance of the recitals in the judgment, the majority would have us believe that two hearings were held in this proceeding, both being held on March 14, 1984; the first hearing being before the magistrate and the second before the district court judge. In my view, the district court judge used the wrong judgment form in a case heard by a magistrate. I am unwilling to ignore reality and treat that form as sacrosanct as does the majority. In this connection, I note the comments of the Court of Criminal Appeals in Kelley v. State, 676 S.W.2d 104, 108 n. 5 (Tex.Crim.App.1984), pertaining to the use of inappropriate judgment forms in cases heard by a magistrate:

The form motions, orders, and judgment which were used in this case have created confusion. We caution the bench and bar if they are to continue to use these forms, as economy will probably dictate, that they pay attention to what is included therein. We also note that Art. 1918c, Sec. 7, clearly requires that the magistrate transmit all the papers relating to the case to the district judge for action. To avoid confusion in the future, it would be advisable for Dallas County to develop a clear mechanism for doing so and for noting the recommendations and findings of the magistrate along with the referring court’s specific adoption or revision of same.

That language suggests to me that the Court of Criminal Appeals recognizes that the district court judge is signing his name to the wrong form in adopting recommendations and findings of a magistrate. Re-gretably, the majority looks at form over reality.

Moreover, I understand one of the purposes of TEX.REV.CIV.STAT.ANN. art. 1918c (Vernon Supp.1984) was to reduce the need to create additional district courts in Dallas County and thus ease the taxpayers’ burden. I am disappointed to learn from the majority that no savings result— indeed the taxpayers’ burden increases— because the magistrate’s work is being duplicated by the district court judge.

I turn now to consider the record in the present case following the State’s motion for rehearing. At the time of the original panel decision, the record in the present case established that the hearing on the writ was conducted by a magistrate, not the district judge. Article 1918c, section 4(c) provides that “[t]o refer a case to a magistrate, the judge shall issue an order of referral specifying the duties of the magistrate.” At the time of the original panel decision, the record contained no such order of referral. Consequently, the panel decision held that the magistrate had no power to act and reversed and remanded. Following its motion for rehearing, the State moved the court to allow the record be supplemented to contain an order of referral which had come to the State’s attention described by the State as “an omnibus order covering a broad range of cases thereafter to be filed, a range of cases including this extradition.” Appellant’s counsel responded that he had “no objection to supplementation of the record.” We granted the State’s motion. Therefore, on motion for rehearing the record contains an instrument asserted by the State to be an “order of referral” as required by article 1918(c), section 4(c). Consequently, we must examine the tendered order in order to determine if it meets the requirements of article 1918c, section 4(c). Thus, the question remains, as it was before the original panel, does the record contain an order of referral to a magistrate as required by article 1918c. In my view, the record does not.

Comparison of the tendered order with the order of referral before this court and the Court of Criminal Appeals in Kelley v. State, 669 S.W.2d 329 (Tex.App.-Dallas 1983), rev’d, 676 S.W.2d 104 (Tex.Crim.App.1984), confirms that we have before us in the present case the same order of referral before both courts in Kelley. See Appendix “A” to my concurring opinion in Kelley, 669 S.W.2d at 334 for the full text of the order of referral in that case effective October 1, 1981. Appendix “A” to this dissent is the tendered order in the present case effective October 1,1981. In studying the Court of Criminal Appeals’ opinion in Kelley, I do not read where in the opinion the court directly or by implication addressed this “omnibus order covering a broad range of cases.” Although the majority of the Court of Criminal Appeals in Kelley, does not address the issue, the dissenting opinion of Judge Teague does. I agree with the rationale of Judge Teague’s dissent in Kelley. Accordingly, I would hold in the present case, as would Judge Teague in Kelley, “that the ‘Order of Referral’ did not bestow ‘jurisdiction’ upon a magistrate pursuant to art. 1918c.” I would reach this holding by my reading of article 1918c, section 4(c). I repeat the applicable language of that statute: “[T]o refer a case to a magistrate, the judge shall issue an order of referral specifying the duties of the magistrate.” To my mind, the tendered order does not meet the statute’s requirements for four reasons.

First, the tendered order is a general order of referral effective October 1, 1981. The application for writ of habeas corpus in the present case was not filed until February 8, 1984. Therefore, the order can have no application to a “case” not then in existence. To my mind, the statute requires that the district court judge have before him an existing “case” in which, upon due judicial consideration, he makes an actual, separate and specific determination to refer to a magistrate and evidences that determination by an appropriate order filed in that particular proceeding.

Second, the tendered order was not part of the record in the present case on March 14, 1984. Rather, the tendered order appeared only in the minutes of the district court as a general order. The supplemental transcript contains a district clerk’s certificate to the tendered order which tells us as much:

CLERK’S CERTIFICATE
THE STATE OF TEXAS
COUNTY OF DALLAS
I, BILL LONG, CLERK OF THE DISTRICT COURTS WITHIN AND FOR THE STATE AND COUNTY AFORESAID, DO HEREBY CERTIFY THAT THE ABOVE AND FOREGOING IS A TRUE AND CORRECT COPY OF Order of Referral (Vol U5, Page 99) AS THE SAME APPEARS ON FILE IN MY OFFICE IN CAUSE NO. _ ENTITLED THE STATE OF TEXAS VS.
GIVEN UNDER MY HAND AND SEAL OF OFFICE IN DALLAS COUNTY, TEXAS, THIS 25th DAY OF June, 1984
BILL LONG
DISTRICT CLERK
DALLAS COUNTY, TEXAS
BY (s) Shannon Taylor DEPUTY

This was the same district clerk’s certificate attached to the form of order of referral presented to this court in the State’s motion to supplement the record. Note the blank spaces left in that part of the district clerk’s certificate reading “as the same appears on file in my office in cause no. _ entitled the State of Texas vs. _” Those blank spaces tell me that the tendered order was not filed in the proceedings below on or before March 14, 1984. Indeed, the tendered order in the supplemental transcript confirms as much. The tendered order in the supplemental transcript bears no file mark or any other notation by the district clerk to establish that the tendered order was ever filed in the proceedings below. The supplemental transcript, however, does contain on its last page the following additional district clerk’s certificate:

CLERK’S CERTIFICATION
THE STATE OF TEXAS
COUNTY OF DALLAS
I, BILL LONG, CLERK of the District Courts within and for the State and County aforesaid, do hereby certify that the Supplemental record on appeal to the Court of Appeals for the Fifth Supreme Judicial District of Texas, Dallas, Texas, in Cause No. X-84-48-H styled: KENNETH WAYNE STACEY, Appellant, VS. THE STATE OF TEXAS, as shown in Volume 1 Pages 1-10 inclusive, to which this certification is attached thereto and made a part thereof, contains a true and correct transcript of all the matters and proceedings had and done in said cause.
GIVEN UNDER MY HAND AND SEAL OF OFFICE IN DALLAS COUNTY, TEXAS, THIS 27th DAY OF September, 1984.
BILL LONG
CLERK OF THE
DISTRICT COURTS
DALLAS COUNTY, TEXAS
By: (s) Roxcine Roberts Deputy

This latter certificate tells me that after this court granted leave to supplement the record, an effort is being made to present the tendered order as a part of the record in the trial court on or before March 14, 1984. To my mind, the first of the above quoted certificates of the district clerk negates this effort and correctly reflects the correct record in the trial court, i.e., there was no order of referral made and filed in the present case on or before March 14, 1984. Moreover, that the tendered order was not in the record on or before March 14,1984, is confirmed by the district clerk’s certificate to the original transcript filed in this court:

CLERK’S CERTIFICATION
THE STATE OF TEXAS
COUNTY OF DALLAS
I, BILL LONG, CLERK of the District Courts within and for the State and County aforesaid, do hereby certify that the record on the APPLICATION FOR WRIT OF HABEAS CORPUS to the Court of Criminal Appeals of Texas, Austin, Texas, in Writ No. X-84-48-H styled: EX PARTE: KENNETH WAYNE STACEY, Applicant, VS. THE STATE OF TEXAS, as shown in Volume 1, Pages 1-9 inclusive, to which this certification is attached thereto and made a part thereof, contains a true and correct transcript of all the matters and proceedings had and done in said cause.
GIVEN UNDER MY HAND AND SEAL OF OFFICE IN DALLAS COUNTY, TEXAS THIS 5th DAY OF April, 1984.
BILL LONG
CLERK OF THE
DISTRICT COURTS
DALLAS COUNTY, TEXAS
By: (s) Roxcine Roberts Deputy

It is undisputed that the tendered order was not included in the original transcript certified to contain “a true and correct transcript of all the matters and proceedings had and done in said cause.” Furthermore, the district clerk’s certificate to the original transcript filed in this court reflects that the trial court’s record was shown in volume one, pages one through nine. I note that upon supplementation of the record in this court the trial court’s record is shown in volume one, pages one through ten. Thus, the record in the trial court has been enlarged since the original panel decision in this court. The conclusion is inescapable. There was no order of referral in the record in the present case on March 14, 1984, — the date the matter was heard by the “Honorable Charles McClure, Magistrate.” Therefore, the record establishes on its face that the present case was never properly referred to a magistrate. I cannot agree that an order recorded in volume 145, page 99 of the district court’s minutes meets the requirements of article 1918c, section 4(c).

Third, there has been no referral in the present case to an- identifable person as “magistrate.” Article 1918c, section 4(a) provides that “[t]he judge of a court having a magistrate appointed as provided by this Act may refer to the magistrate any criminal case for proceedings involving: _” (emphasis added). In my view, the statute requires that the referral of each criminal case be to a named individual magistrate. To the contrary, the tendered order directs “that all cases which have been indicted, or have had such indictment duly waived by the defendant, and assigned to this Court are hereby referred to the Magistrate’s Court of Dallas County, Texas pursuant to article 1918c for the following proceedings: _” (emphasis added). There is, however, no such thing as “the Magistrate’s Court of Dallas County, Texas.” As stated by the Court of Criminal Appeals in Kelley, at 107:

The Court of Appeals found that, contrary to the appellant’s claim, Art. 1918c did not create “courts” with independent jurisdiction, but simply authorized a procedure whereby magistrates, acting as surrogates and not judges, are appointed to assist the district court judges in certain limited matters. We agree with the Court of Appeals on this issue.

Moreover, the amendment to TEX.CODE CRIM.PROC.ANN. art. 4.01 (Vernon Supp. 1984), effective August 29, 1983, cannot be said to create “the Magistrate’s Court of Dallas County, Texas.” The amended article 4.01 now provides:

The following courts have jurisdiction in criminal actions:
1. The Court of Criminal Appeals;
2. Courts of appeals;
3. The district courts;
4. The criminal district courts;
5. The magistrates appointed by the judges of the district courts of Dallas County that give preference to criminal cases and the judges of the criminal district courts of Dallas County as set out in Chapter 678, Acts of the 67th Legislature, Regular Session, 1981 (Article 1918c, Vernon’s Texas Civil Statutes);
6. The county courts;
7. All county courts at law with criminal jurisdiction;
8. County criminal courts;
9. Justice courts; and
10. Municipal courts, (emphasis added).

In my view, article 4.01 would be unconstitutional if interpreted to create “the Magistrate’s Court of Dallas County, Texas.” I reach this conclusion in light of the provisions of TEX. CONST, art. V, § 1 providing:

The judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law.
The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto, (emphasis added).

Thus, it is for the legislature to establish courts; not “the judges of the district courts of Dallas County that give preference to criminal cases and the judges of the criminal district courts of Dallas County.” Therefore, I cannot agree that the Constitution of Texas permits district court judges to create a “Magistrate’s Court” and appoint the judges of that court. Consequently, the non-existing “Magistrate’s Court of Dallas County, Texas” had no power to act in the present case. It follows, and I would so hold, that the present case was never referred to a magistrate by the district court judge because the tendered order does not refer the case to a named individual person as magistrate and because the Magistrate’s Court of Dallas County, Texas, does not exist.

Fourth, the present case is an application for habeas corpus in an extradition proceeding. Note the “cases” referred to the Magistrate’s Court in the tendered order, to wit: “all cases which have been indicted, or have had such indictment duly waived by the defendant, and assigned to this court.” These are the only “cases” referred to the Magistrate’s Court. I read the tendered order to refer to “cases” arising out of offenses committed in Dallas County, Texas; not to offenses committed in a sister state. The present case does not arise out of an offense committed in Dallas County, Texas, for which an accused is subject to indictment by a Dallas County grand jury to be “assigned to this court,” that is, the Criminal District Court of Dallas County. I cannot find in the tendered order any reference to the Magistrate’s Court of hearings on writs of habeas corpus in extradition proceedings. Therefore, the tendered order does not cover or include the present case.

In conclusion, I cannot accept the fantasy hearing held before the district court judge conceived by the majority and erroneously based upon a presumption that stands rebutted. That presumed hearing did not take place. The record tells us it did not. The State’s efforts to attempt to place the tendered order into the record in the proceeding below and then in the supplemental record before this court tells us that it did not. The record in the present case establishes that the hearing on the writ was conducted by a person referred to as a “magistrate” and not the district court judge. The record contains no proper order of referral to a magistrate in the present case. Consequently, the person referred to as a “magistrate” in the record had no power to act in the present case. The presumption rebutted, the record reflects that no hearing on the writ was conducted by the district court judge. Consequently, the application for the writ of habeas corpus was improperly denied. Accordingly, for the reasons stated, I would sustain appellant’s first ground of error and reverse and remand.

ALLEN, CARVER, STEPHENS and VANCE, JJ., join in the dissenting opinion.

APPENDIX A

IN RE:

REFERRAL TO MAGISTRATE’S COURT

In the Criminal Court # 1

Dallas County, Texas

ORDER OF REFERRAL

IT IS HEREBY ORDERED that all cases which have been indicted, or have had such indictment duly waived by the defendant, and assigned to this Court are hereby referred to the Magistrate’s Court of Dallas County, Texas pursuant to Art. 1918c V.A.C.S., for the following proceedings:

(1)negotiated pleas of guilty before the Court, and the Magistrate shall exercise all of the powers enumerated in Art. 1918c V.A.C.S. as may be deemed necessary and proper by such Magistrate, and in addition, the Court deems that it is necessary and proper for the efficient performance of the duties herein required that such Magistrate be, and is hereby, authorized to:

(a) render a judgment in such plea;
(b) sentence the defendant;
(c) provide for such conditions of probation, including restitution, as may be deemed appropriate by the Magistrate, if applicable;
(d) approve such waivers or documents as might be appropriate; and
(e) sign on behalf of the Court and cause to be delivered to defendant the Condition of Probation, if applicable.

(2) Agreed probation revocations, and the Magistrate shall exercise all of the powers enumerated in 1918c V.A.C.S. as may be deemed necessary and proper by such Magistrate, and in addition, the Court deems that it is necessary and proper for the efficient performance of the duties herein required that such Magistrate be, and is hereby, authorized to:

(a) make a finding as to whether such probation is revoked;
(b) authorize bonds if such hearing is continued;
(c) change the conditions of probation;
(d) reduce the sentence of the defendant pursuant to an agreement;
(e) sentence the defendant;
(f) approve such waivers or documents as might be appropriate; and
(g) sign on behalf of the Court the Order Revoking Probation.

(3) Such other hearings and matters as may be determined by the Court and not prohibited by law, including, but not limited to, hearings on bond forfeitures.

(4) The Court may, under this general order of referral, execute, by original or facsimile signature, additional Orders of Referral to said Magistrate’s Court as to specific causes and directing that said Magistrate’s Court report only on specific issues, do particular acts, or receive and report on evidence only.

(5) Each Magistrate is hereby empowered, in my place and stead, to take acknowledgments and file said documents as are required to be filed by the District Clerk of Dallas County, Texas, as may be necessary to accomplish the purposes here-inabove set forth.

Notwithstanding the foregoing, the Court shall maintain control and authority over all causes covered by this Order unless and until the same is delivered to the Magistrate’s Court for action by said Magistrate’s Court.

IT IS FURTHER ORDERED that this Order shall be and hereby is effective October 1, 1981.

s/ Ron Chapman JUDGE

      . This court, sitting en banc, granted the State’s motion to supplement the record with an Order of Referral. This order, signed by the trial judge and entered in the court’s minutes, purports to act as a blanket referral order required by TEX.REV.CIV.STAT.ANN. art. 1918c § 4(c) (Vernon Supp.1984). Because of our holding regarding the verity of the judgment, we decline to consider the validity of the "referral."

      . Inexplicably, the dissent has quoted long passages relating to the magistrate's hearing, which demonstrates only that a hearing occurred—a fact conceded by this majority.

      . Appellant mistakenly cites TEX.CODE CRIM. PROC. art. 51.13 § 23(3) (Vernon 1979), to support this ground of error. Section 23 prescribes the documents to be forwarded when Texas is the demanding state.

      . Constitutional questions aside, referral to a magistrate would not be impermissible under article 1918c, section 4(b), which provides that “[i]n no event may a judge refer to a magistrate a criminal case permitting the magistrate to preside over a trial on the merits, either with or without a jury.” An application for writ of habeas corpus in an extradition proceeding does not constitute a trial on the merits. Ex parte Scarbrough, 604 S.W.2d 170, 172-73 (Tex.Crim.App.1980).


author: PER CURIAM.

text:
    Charles Raymond WHITEMAN, Jr., Appellant, v. Betty Ann WHITEMAN, Appellee.
    No. 05-84-00065-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 2, 1984.
    J. Michael Coman, Pasadena, for appellant.
    Paul R. Leake, Mesquite, for appellee.
    Before GUITTARD, C.J., and WHIT-HAM and TUNES, JJ.

      . The Honorable Bert H. Tunks, Chief Justice, Fourteenth Court of Appeals, Houston, retired. sitting by assignment.

   PER CURIAM.

Betty Ann Whiteman petitioned for and was granted a decree of divorce from Charles Raymond Whiteman, Jr. by a default judgment. He appeals, contending: (1) that Betty’s original petition was filed before Betty established the requisite 90-day residency in Dallas County; and (2) that the amended petition by which Betty established residency was not on file the requisite 60 days prior to the entry of the divorce decree. We agree that error is shown by Charles Whiteman’s second point. Consequently, we reverse and remand this cause to the trial court.

Until June 9, 1983, Betty Ann Whiteman resided in Harris County. She then moved to Dallas County. On July 19 she filed her original petition for divorce in a district court of Dallas County. On September 9, after she had resided in the county for 92 days and had, therefore, complied with the residency requirements of TEX.FAM. CODE ANN. § 3.21 (Vernon 1975), Betty filed an amended petition. On October 17, 1983, the trial court signed a decree of divorce. Charles Whiteman argues that he should have been granted a new trial if this decree was granted based on Betty’s original petition because she had not been a resident of Dallas County for 90 days when she filed it. He then contends that he should have been granted a new trial if the decree was based on Betty’s amended petition because it was not on file for 60 days prior to the entry of the decree as required by section 3.60 of the Family Code.

Because Betty filed her original petition in a district court of Dallas County prior to having resided in Dallas County for ninety days, in contravention of TEX. FAM.CODE ANN. § 3.21 (Vernon 1975), we must determine whether this was error. We find it is not. Betty cured this defect by filing an amended petition after she had resided in Dallas County for ninety days. This satisfied the requirement in section 3.21. Beavers v. Beavers, 545 S.W.2d 29, 30 (Tex.Civ.App.— Waco 1976, no writ). Further, this filing of the amended petition was the filing of a new suit. Coleman v. Coleman, 20 S.W.2d 813, 815 (Tex.Civ.App.—Eastland 1929, no writ). Consequently, we overrule this ground of error.

However, Whiteman’s contention that the judgment was signed in contravention of TEX.FAM.CODE ANN. § 3.60 (Vernon 1975) is correct, as the face of the record shows. Betty filed her amended petition for divorce on September 9. The trial court granted Betty a divorce on October 17, after only 38 days had elapsed. Section 3.60 states:

§ 3.60. Waiting Period
A divorce shall not be granted until at least 60 days have elapsed since the day the suit was filed. However, a decree entered in violation of this section is not subject to collateral attack.

Where, as here, a petitioner has not met the residency requirement in section 3.21 when the original petition is filed, and subsequently the petitioner files an amended petition after meeting the requirement, the filing of the amended petition constitutes the filing of a new suit. Coleman, 20 S.W.2d at 814 (Tex.Civ.App.—Eastland 1929, no writ); Hunt v. Hunt, 196 S.W. 967, 968 (Tex.Civ.App.—Eastland 1917, no writ). (Both cases were decided under the preceding statute, TEX.REV.CIV.STAT. ANN. art. 4632, repealed by Acts 1969, 61st Leg., p. 2707, ch. 888, § 6, eff. Jan. 1, 1970; however, the Code provision encompasses the same mandatory language as article 4632.)

This is a default judgment; therefore, in the absence of a statement of facts no presumption can be entertained that the trial court had before it evidence that would support the judgment. Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312, 315 (Tex.Civ.App.—Dallas 1975, writ ref’d). Thus, the judgment must stand or fall on the pleadings, and TEX.R. CIV.P. 90 states that defects, omissions, and faults in pleadings, either of form or substance, are waived unless complained of in the lower court, except where a default judgment has been rendered. Cf. Griswold v. Carlson, 151 Tex. 246, 249 S.W.2d 58, 60 (1952). Consequently, because the amended petition on its face shows that it was not on file the requisite statutory period, the default judgment must be set aside. Therefore, we sustain Charles Whiteman’s second ground of error, and set aside the default judgment and remand this cause to the trial court for a new trial.

Reversed and remanded.


author: WHITHAM, Justice.

text:
    PLANO INDEPENDENT SCHOOL DISTRICT, et al., Appellant, v. Robert G. OAKE, Appellee.
    No. 05-83-01388-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 2, 1984.
    Rehearing Denied Dec. 6, 1984.

      John Stooksberry, Boyd, Veigel, Gay & McCall, McKinney, Henry D. Akin, Dallas, for appellant.
    Robert G. Oake, Jr., Dallas, for appellee.
    Before AKIN, SPARLING, and WHIT-HAM, JJ.
   WHITHAM, Justice.

This suit between a plaintiff-property owner, the appellee, Robert G. Oake and the defendant-appellant taxing authorities, Plano Independent School District, Collin County, Charles W. Binford, Jr., acting tax collector for Plano Independent School District and Don Caldwell, chief of the Collin County Central Appraisal District, arises from the undisputed fact that the boundary line between Dallas County and Collin County running through Oake’s property cannot be presently located. The trial court granted summary judgment in favor of Oake permanently enjoining the taxing authorities from assessing or collecting taxes on Oake’s property until the county boundary between Dallas County and Collin County is established by law. The taxing authorities appeal. We notice sua sponte that the Plano Independent School District, Charles W. Binford, Jr., acting tax collector for Plano Independent School District, and Don Caldwell, chief of the Collin County Central Appraisal District, failed to file appeal bonds. Consequently, we dismiss the appeals of the Plano Independent School District, Charles W. Binford, Jr., acting tax collector for Plano Independent School District, and Don Caldwell, chief of the Collin County Central Appraisal District, for want of jurisdiction. We conclude that Collin County was not required to file an appeal bond. We conclude that the trial court erred in granting summary judgment in favor of Oake, and against Collin County. Accordingly, we reverse and remand Oake’s action against Collin County.

Our examination of the record reflects that Plano Independent School District and Charles W. Binford, Jr., acting tax collector for Plano Independent School District, failed to file the cost bond, i.e., appeal bond required by Tex.R.Civ.P. 354 (Vernon Supp.1983). A court must notice, even sua sponte, the matter of its own jurisdiction, for jurisdiction is fundamental in nature and may not be ignored. Marshall v. Brown, 635 S.W.2d 578, 580 (Tex.App.—Amarillo 1982, writ ref’d n.r.e.). Hence because the independent school district, and its tax collector, failed to perfect their appeal by providing the security required by law, this court has no jurisdiction over the merits of the appeal. Marshall, 635 S.W.2d at 581. Independent school districts are required to post appeal bonds, Wilson v. Thompson, 162 Tex. 390, 348 S.W.2d 17, 18-19 (1961) (on certified question); Marshall, 635 S.W.2d at 581, except in delinquent tax suits, Brady Independent School District v. Davenport, 663 S.W.2d 637, 638-39 (Tex.App.—Austin 1983, no writ). A taxpayer-initiated suit to enjoin the collection of taxes is not a delinquent tax suit. See Fort Bend Independent School District v. Weiss, 570 S.W.2d 241, 243 (Tex.Civ.App.—Houston [1st Dist.] 1978, no writ). We conclude, therefore, that we have no jurisdiction of the appeal of the Plano Independent School District and Charles W. Binford, Jr., acting tax collector for Plano Independent School District. Consequently, we must dismiss the appeal of the Plano Independent School District and Charles W. Binford, Jr., acting tax collector for Plano Independent School District, for want of jurisdiction. Marshall, 635 S.W.2d at 581; Wilson, 348 S.W.2d at 246 (in accordance with answer to certified question).

Our examination of the record also reflects that Don Caldwell, chief of the Collin County Appraisal District, and Collin County, failed to file the cost bond, i.e., appeal bond required by rule 354. An appeal bond, however, was not required of Collin County. TEX.REV.CIV.STAT.ANN. art. 279a (Vernon 1973) & TEX.REV.CIV. STAT.ANN. art. 2276 (Vernon 1971). The Collin County Central Appraisal District, however, is not Collin County. The Collin County Central Appraisal District is made a political subdivision of the State by the statute creating appraisal districts. TEX. PROP. TAX CODE ANN. § 6.01(c) (Vernon 1982 & Vernon Supp.1984) provides “[a]n appraisal district is a political subdivision of the state.” We find no exemption for an appraisal district created under the property tax code from the requirement to file an appeal bond in the present case. We are cognizant of section 42.28 of the property tax code providing:

A party may appeal the final judgment of the district court as provided by law for appeal of civil suits generally, except that an appeal bond is not required of the chief appraiser, the county, the State Property Tax Board, or the commissioners court.

That exemption from an appeal bond, however, pertains to appeals from adverse judgments in proceedings initiated as a petition for review with the district court under section 42.21(a) of the property tax code which reads:

A party who appeals as provided by this chapter must file a petition for review with the district court within 45 days after the party received notice that a final order has been entered from which an appeal may be had; failure to timely file a petition bars any appeal under this section.

Those dissatisfied parties entitled to appeal by petition for review to the district court are as identified in sections 42.01, 42.02, 42.03, 42.031 of the property tax code. The present case is not such an appeal and did not originate as a petition for review under property tax code section 42.21(a). We hold, therefore, that section 42.28 of the property tax code affords no exemption to Don Caldwell, chief of the Collin County Central Appraisal District, from the requirement to file an appeal bond in the present case. Consequently, we conclude that we must treat appraisal districts as we do their sister political subdivisions; independent school districts. We conclude further, therefore, that we have no jurisdiction of the appeal of Don Caldwell, chief of the Collin County Central Appraisal District. Accordingly, we must dismiss the appeal of Don Caldwell, chief of the Collin County Central Appraisal District, for want of jurisdiction.

Collin County properly filed the written notice of appeal mandated by TEX.R. CIV.P. 356(c) when a bond for costs on appeal is not required by law. Therefore, we reach the merits of the appeal of the remaining appellant, Collin County. It is undisputed that Oake's property is situated in both Dallas County and Collin County. The unknown factor is the location of the boundary line between the two counties. Oake’s undisputed summary judgment proof by affidavit of the surveyor for Dallas County established that “[d]ue to the absence of ground markers, it is presently impossible to determine the exact location of the Dallas County-Collin County boundary line. With extensive additional surveying, however, it would be possible to locate this boundary line.” In its brief, Collin County tells us that “[t]he location of the county boundary line between Dallas County and Collin County which runs through [Oake’s] property is not definitely fixed due to the absence of ground markers.” In its judgment, the trial court determined “that the boundary line between Dallas County and Collin County is presently indefinite.” Oake contends that his undisputed showing that the boundary line is presently indefinite is sufficient to support permanent injunction enjoining Collin County from assessing or collecting taxes on his property until the county boundary between Dallas County and Collin County is established by law. To the contrary, Collin County asserts that to be entitled to an injunction enjoining the assessment and collection of the taxes it was incumbent upon Oake to establish that the property sought to be taxed does not lie within the boundaries of Collin County. In short, Collin County argues that it is Oake’s burden as plaintiff-movant to locate the boundary line.

From 1969 to 1980, Oake paid all taxes in full on his property when due to Dallas County and the Richardson Independent School District. During this time period Collin County did not attempt to assess or collect taxes on Oake’s property. Oake’s payment of taxes to Dallas County and to the Richardson Independent School District was pursuant to an agreement between the tax assessors of Dallas County and Collin County. Apparently, that agreement ceased to be operative for the year 1981 and subsequent years. For the year 1981 and subsequent years, Collin County asserts the right to assess and collect taxes on that portion of Oake’s property which it has determined to be situated in Collin County. The record is not clear as to the process used by Collin County to determine what portion of Oake’s property is allegedly situated in Collin County.

Oake advances two challenges to the right of Collin County to assess and collect these taxes. First, Oake relies upon his reading of TEX.REV.CIV.STAT.ANN. art. 7154, 1879 Gen. Laws, Local & Spec. 8, 153, repealed by Acts of June 13, 1979, ch. 841, § 6(a)(1), 1979 Tex.Gen. & Special Laws 2329. Although repealed effective January 1, 1982, Oake argues that we should judicially extend repealed article 7154 for years subsequent to 1981. Enacted in 1879 and never judicially construed, article 7154 read as follows: “Lands lying on county boundaries, which have not been accurately and legally surveyed, determined or fixed, shall not be assessed or taxed in more than one county.” Oake finds support for his challenge in his reading of article 7154. Oake tells us in his brief that “Article 7154 ... states that lands lying on an indefinite county boundary line shall not be assessed or taxed in more than one county.” We fail to find that language in the statute. Furthermore, we read article 7154 differently. We interpret the statute to limit assessment and collection of taxes to but one county in those situations in which county boundaries had not yet been “accurately and legally surveyed, determined or fixed.” We do not interpret the statute to apply to the situation in the present case in which Oake’s own summary judgment proof established an original survey but only missing ground markers. We quote more fully from the affidavit of the surveyor for Dallas County in support of Oake’s motion for summary judgment:

I am the Surveyor in and for Dallas County, Texas and have held this position since 1944. I have studied maps of the location of the boundary between Dallas and Collin County and am familiar with the land located on said boundary area. Due to the absence of ground markers, it is presently impossible to determine the exact location of the Dallas County-Collin County boundary line. With extensive additional surveying, however, it would be possible to locate this boundary line.

This tells us that the boundary was once located and appears on maps and that missing ground markers are the present problem in relocating the boundary. Thus, article 7154 can have no application where the boundary has once been determined or fixed. Consequently, we conclude that article 7154 does not support Oake's challenge to the right of Collin County to assess and collect taxes on a portion of his property. Therefore, we need not reach Oake’s novel argument that we may judicially extend a statute repealed by the legislature. For the same reason, we need not reach Collin County’s contention that article 7154 is unconstitutional under TEX. CONST, art. VIII, § 11, providing that “[a]ll property, whether owned by persons or corporations shall be assessed for taxation, and the taxes paid in the county where situated.” Thus we find no merit in Oake’s first challenge to the right to assess and collect the taxes.

Next, we turn to Oake’s second challenge to the right to assess and collect the taxes. Oake insists that should his reliance upon article 7154 fail, the trial court’s judgment must still be affirmed because it is Collin County’s burden to prove that his land is within its taxing jurisdiction. We disagree. There is a presumption that the taxing authority did not assess any land not located within its district. Crocker v. Santo Consolidated Independent School District, 116 S.W.2d 750, 756 (Tex.Civ.App.—Eastland 1938, writ dism’d). In an action to restrain the collection of taxes, the burden is on plaintiff to show that the taxes are not due and owing by him. McMahan v. Morgan, 151 S.W. 1123 (Tex.Civ.App.—Dallas 1912, no writ). In the absence of evidence to the contrary, the presumption is that the assessment was properly made; and if the assessment was open to inquiry, the burden of proving its incorrectness was on the plaintiff. Nolan v. San Antonio Ranch Co., 81 Tex. 315, 16 S.W. 1064, 1065 (1891). Plaintiff had the burden of locating the true boundary line on the ground by competent evidence. Brown v. Eubank, 378 S.W.2d 707, 711 (Tex.Civ.App.—Tyler 1964, writ ref’d n.r.e.). Movant for summary judgment has the burden of establishing his entitlement to summary judgment by conclusively proving all essential elements of his cause of action or a defense as a matter of law. State v. American Legion Post No. 58, 611 S.W.2d 720, 723 (Tex.Civ.App.—El Paso 1981, no writ). It follows, and we so hold, that Oake had the burden of locating the true boundary line between Dallas County and Collin County which runs through his property and that Oake failed to meet that burden. It further follows, and we so hold, that the presumption that Collin County did not assess any property that was not situated in Collin County stands unrebutted. Thus, we find no merit in Oake’s second challenge to the right to assess and collect the taxes.

Accordingly, we conclude that the trial court erred in granting summary judgment in favor of Oake and against Collin County because Oake failed to present any summary judgment evidence to discharge his burden to establish that the property sought to be assessed and taxed does not lie within the boundaries of Collin County. Collin County’s first point of error is sustained. In light of our holding, we do not reach Collin County’s remaining five points of error, nor do we reach Oake’s cross-points complaining of the trial court’s refusal to award him attorney’s fees under the Uniform Declaratory Judgments Act, TEX.REV.CIV.STAT.ANN. art. 2524-1, § 10 (Vernon Supp.1984). Moreover, as to this or any other actions in which Collin County seeks to recover taxes from Oake, we express no opinion on the question whether proof that the boundary line between Dallas County and Collin County running through Oake’s property cannot be located would be sufficient to rebut the presumption that Collin County did not assess any property that was not situated in Collin County, thus shifting the burden to Collin County to establish the boundary line between Dallas County and Collin County running through Oake’s property. That question is not before us in the present case.

The appeals of the Plano Independent School District, Charles W. Binford, Jr., acting tax collector for the Plano Independent School District, and Don Caldwell, Chief of the Collin County Central Appraisal District, are dismissed for want of jurisdiction. We reverse the trial court’s judgment against Collin County and we vacate and set aside the trial court’s permanent injunction enjoining Collin County from assessing or collecting taxes on Oake’s property until the county boundary between Dallas County and Collin County is established by law. We remand Oake’s action against Collin County to the trial court. All costs in this court are taxed against Oake.

      . TEX. PROP. TAX CODE ANN.