author: CHADICK, Justice.

text:
    CURRY AUTO LEASING, INC., Appellant, v. J. William BYRD, John N. Johnson, and Robert M. Bryson, individually and d/b/a Physicians Accounting Services, Inc., Appellees.
    No. 05-83-01387-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 18, 1984.

      Martin Barenblat, Barenblat & Wolovits, Dallas, for appellant.
    Forrest R. Carlton, Smith, Miller & Carlton, Dallas, for appellees.
    Before GUITTARD, C.J., and CARVER and CHADICK, JJ.

      . The Honorable T.C. CHADICK, Associate Justice, Supreme Court of Texas, Retired, sitting by assignment.

   CHADICK, Justice.

This is a breach of contract case. The plaintiff, a Texas corporation, undertook to recover damages from defendants, a Texas corporation and its president, vice-president, secretary, and treasurer, each of whom was a director of the corporation. The only question is the liability of the individual defendants on a contract made by the corporation before its corporate privileges were forfeited because of failure to pay franchise taxes. The trial court denied recovery, and we affirm.

Plaintiff, Curry Auto Leasing, Inc., as lessor, and defendant, Physicians Accounting Services, Inc., as lessee, entered into a motor vehicle lease agreement on December 1, 1980, in Dallas County, Texas. The lease stipulated a term of forty-eight months and a monthly rental of $500.57. Possession of the rental automobile, a 1981 Lincoln, was delivered to Physicians Accounting Services. On September 15,1982, the corporate privileges of Physicians Accounting Services were forfeited by the Comptroller of Public Accounts of the State of Texas, pursuant to TEX.TAX CODE ANN. §§ 171.251-171.255 (Vernon 1982), and were not revived at any pertinent time.

No evidence was introduced at the trial; instead the parties filed a stipulation of facts of the case in the trial court containing a provision that the court might draw reasonable inferences and conclusions from the facts stipulated. A jury was waived and the case was decided by the judge. At Curry Auto’s request the judge made and filed findings of fact and conclusions of law.

Physicians Accounting Services failed to pay the monthly rental due for May 1982 and thereafter. Curry Auto terminated the lease and thereafter repossessed the rented vehicle on September 10, 1982. The lease contained, among its several provisions, the following:

At the election of lessee, the lease term covering any vehicle leased hereunder may be terminated by lessee at any time prior to the expiration of said lease term, by giving lessor thirty (30) days written notice of termination.
All vehicles with respect to which the lease term thereof and this agreement has terminated shall be sold, at wholesale, by Lessor to the highest bidder. If such vehicle is sold for an amount in excess of the undepreciated balance of Curry Auto Leasing’s cost of such vehicle, if any, such excess shall be deemed to be and is hereinafter referred to as “profit”. If such vehicle is sold for an amount which is less than the undepreci-ated balance of Curry Auto Leasing’s cost of such vehicle, the deficiency shall be deemed to be and is hereinafter referred to as “loss”. Promptly after the sale of said vehicle Lessor shall deliver to Lessee an accounting and information statement showing the amount of profit or loss.
Final settlement between the parties hereto with respect to each vehicle sold, pursuant to the terms and provisions of this agreement, shall be made within fifteen (15) days after delivery of the accounting and information statement.
If the sale of such vehicle resulted in a profit as defined herein, eighty (80%) per cent of such profit shall be paid to Lessee by Lessor and twenty (20%) per cent of such profit shall be retained by Lessor.
If the sale of such vehicle resulted in a loss, as defined herein, Lessee shall pay to Lessor the full amount of such loss.

In October 1982 Curry Auto sold the repossessed Lincoln automobile in accordance with the contract and suffered a loss under its terms of $6,499.82. After repossession of the Lincoln, Curry Auto paid $27.00 storage fees, and in September 1982 Curry Auto charged Physicians Accounting Services’ account with $10.00 late payment fee that became due when rental for September was not paid on September 1st. These items were all ascertained, paid, or charged after Curry Auto exercised its option to terminate the rental contract and after Physicians Accounting Services’ corporate privileges had been forfeited. No provision of the contract allowed the corporate officers to suspend Curry Auto’s option to act under the quoted provision. The trial court awarded Curry Auto judgment against Physicians Accounting Services for the sum of these items along with interest, attorney’s fees, and cost, but entered a take nothing judgment in favor of the corporate officers.

Curry Auto’s single point of error presents for review its contention that the loss on disposition of the rented vehicle, the late payment fee, and storage fee are as a matter of law debts of Physicians Accounting Services that were created or incurred after its corporate privileges were forfeited on September 15, 1982. Section 171.255, in the part particularly relevant to the issues here, provides that each director or officer of a corporation which has had its corporate privilege forfeited is “liable for each debt of the corporation that is created or incurred” after the date of the act or omission causing the forfeiture and before corporate privileges are revived.

The problem to be resolved is whether, under the facts and circumstances shown by the record, the several items set out above were debts created or incurred after Physician Accounting Services’ corporate privileges were terminated. Provisions of import similar to those of section 171.255 in a predecessor statute were construed in Schwab v. Schlumberger Well Surveying Corp., 145 Tex. 379, 198 S.W.2d 79 (1946). In Schwab the corporate officers had renewed and extended a promissory note after forfeiture of its corporate privileges. The court stated:

Such statutes, though held to be remedial in some instances, are also penal in nature, and it is generally held that they must be strictly construed and cannot be extended beyond the clear import of their language.
It will be noted that the statute involved fixes liability upon the directors and officers of a corporation only for debts “created or incurred” after the forfeiture of the corporation’s right to do business. The word “create” means “To bring into existence something which did not exist.” 10 Words and Phrases, Perm.Ed., p. 331, Roth v. State, 158 Ind. 242, 63 N.E. 460, 469. The word “incur” is defined in Ashe v. Youngst, 68 Tex. 123, 125, 3 S.W. 454, 455, as “ ‘Brought on,’ ‘occasioned,’ or ‘caused.’ ” In view of these definitions no debt was “created” or “incurred” by the renewal of the note because the obligation theretofore existed. It thus seems obvious that the liability imposed under the statute is only for debts contracted after the forfeiture of the right to do business, and has no application to the renewal of obligations arising prior thereto. Providence Steam-Engine Co. v. Hubbard, 101 U.S. 188, 11 OTTO 188, 25 L.Ed. 786; 13 Am.Jur. 1008, Sec. 1071.

145 Tex. at 382, 198 S.W.2d at 81.

Strictly construed and limited by the facts of this case, the statute does not impose liability on the officers of Physicians Accounting Services if the obligations, circumstances, conduct, or transactions that create, or incur the debt in question pre-existed the forfeiture.

When parties enter into a contract the law presumes they intend the consequences of its performance. James Stewart & Co. v. Law, 149 Tex. 392, 233 S.W.2d 558 (1950). It follows that performance or implementation of the contractual provisions relate back to and are authorized at the time of execution of the contract. No argument is made that a sum of money is due Curry Auto under a new, different, separate, or independent agreement between the parties made after September 15, 1982. The stipulated facts and the court’s findings of fact clearly show that the debt plaintiff sought to recover from defendant corporate officers was authorized by the rental agreement and, therefore, was brought into existence, caused by, resulted from, or arose out of the performance or implementation of the provisions of the rental contract at the time Curry Auto opted to terminate the contract on or before September 10, 1982. The items in question, as debts of the corporation, relate back to Physicians Accounting Services’ promise to pay made in the rental contract' executed December 1, 1980. No debt for which the corporate officers are liable is shown to have been “created or incurred” after the forfeiture.

Curry Auto is not understood to urge that the reduction of its damages to judgment converted the sum thereof into new indebtedness created or incurred after forfeiture. Nevertheless, it is worthwhile to note that the principles of strict construction enunciated in Schwab would prohibit this construction. Under this prohibited construction, officers and directors would become liable for any judgment rendered after forfeiture, regardless of when the debt on which the judgment is based was created or incurred.

Appellant’s point of error is overruled, and the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: REEVES, Justice.

license: Public Domain

text:
    Jesse FLORES, Appellant, v. Michael RIZIK, Appellee.
    No. 04-83-00270-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 19, 1984.

      Wallace Henderson, San Antonio, for appellant.
    William R. Lozano, San Antonio, for ap-pellee.
    BUTTS, REEVES and TIJERINA, JJ.
   OPINION

REEVES, Justice.

Lessee of a restaurant, Jesse Flores, appeals from a bench trial wherein judgment was awarded Michael Rizik, lessor, $9,000.00 for arrearage of rent and damages to the leasehold.

Flores asserts four points of error. In points of error one and two, he questions the legal and factual sufficiency of the evidence to support liability for the amount of the judgment. In point of error number three, Flores asserts that the trial court erred in finding damages for removal of trade fixtures as there was no evidence as to the amount of damages done to the building from such removal. In point of error number four, Flores contends that the trial court erred in finding damages for Rizik as there was no evidence as to any costs of replacement of missing personalty, costs of repair to realty, nor diminution in value of realty caused by Flores.

In passing on the legal sufficiency or “no evidence” points of error, we consider only the evidence and the inferences tending to support the findings and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

In passing on the factual sufficiency of the evidence, we examine all the evidence, both pro and eon, and reverse and remand for a new trial if we conclude that the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

In 1970, Flores and Rizik entered into a one-year written lease of a building to be used as a restaurant. The agreement included lease of various cooking equipment. The parties agree that at the commencement of the lease the building and equipment were in excellent condition. The lease expired and the tenancy became one of month-to-month.

In 1981, Flores was behind in his rent payments. After Rizik commenced a forcible entry and detainer action against him, Flores moved from the premises. Flores testified he vacated the premises on October 31, 1981, not because of the forcible entry and detainer action, but because the restaurant was in a state of disrepair, Rizik would not make needed repairs, and Flores was afraid the health department would close the facility. Upon departure, testified Flores, he swept the floors and locked the doors. However, he did not turn the keys over to Rizik. Rizik testified that Flores did not give any notification of vacating the premises but when Rizik inspected the restaurant sometime in November, he found it vacant. Rizik testified that, at that time, the doors to the restaurant were unlocked and “it was a filthy pig sty.” Pictures introduced into evidence confirm this description as does the testimony of George Cadena, Rizik’s property manager, and witness Glenn Porter, who supervised repairs at the restaurant.

This evidence shows the following damages to the establishment: several broken windows, a kitchen sink torn from a wall, a basin and commode removed from a bathroom, fluorescent lights pulled out and hanging by wires, wires hanging where light fixtures were removed, acoustical ceiling tiles missing, a Vent-a-Hood broken and unusable, a hole in the roof where the flue of a barbecue pit (purchased and installed by Flores) had been placed, damage to a wall near the pit, coils of a walk-in cooler and freezer pulled out, damage to cooling units on the roof, and a neon sign stripped of lettering and mechanisms. The premises were littered with empty beer cans and other trash. Several walls were covered with layers of grease.

A number of items of personalty were missing from the restaurant: pots and pans, stainless steel cooking utensils, a meat slicer, a flour mixer, a meat grinder, a cash register, a tamale machine, a tortilla machine and a deep fryer. The stove was still in the restaurant but was broken. Riz-ik testified that he had paid $15,000 for the items in 1968. He further testified that the replacement value of the items when Flores moved out, deducting for wear and tear over the years of use, was $2,500.

Flores asserts that all of the above items “wore out.” He testified that during his occupancy, the cash register wore out and he “threw it” in the back room of the establishment. Likewise, he “junked” the grinder because it did not operate. As to the tamale machine, Flores said, “Those things will not last forever.” Flores maintains he reported on two occasions to Rizik that certain items were not functioning and Rizik responded, “Well, you fix it, you maintain it. The rent is cheap enough.” Rizik testified that many of the items were stainless steel and would not wear out and that several of the machines were hand operated and could be repaired to keep them in working order.

Flores is correct in his contention that Rizik did not prove market value or the nonexistence of a market value for the personalty at the time of the termination of the lease. The general rule for measuring damages to personalty is the difference in market value immediately before and after injury or loss. Only if the items do not have a market value is replacement value the proper measure. Smith v. Dye, 294 S.W.2d 452, 465 (Tex.Civ.App.—Galveston 1956, no writ). Rizik’s testimony is insufficient to support an award of damages for the missing personalty. Recovery of damages based on a different measure is not allowed absent proof that the usual standard of reduced market value is inappropriate. Moran Corp. v. Murray, 381 S.W.2d 324, 328 (Tex.Civ.App.—Texarkana 1964, no writ).

As there are no findings of fact or conclusions of law to peruse, we do not know if the judgment included any award for the missing personalty. The judgment will be affirmed if it can be sustained by evidence of other damages. Seaman v. Seaman, 425 S.W.2d 339, 341 (Tex.1968).

Rizik testified that the difference in the value of the building at the time it was delivered to Flores and at the time it was returned to Rizik, taking into consideration reasonable wear and tear, was $8,000 to $12,000; Rizik pled the amount of damage as $7,500. Contrary to Flores’ contention, Rizik, as owner, was qualified to testify as to the market value of his property. Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984).

Flores objected to diminution in value as a measure of damages. We disagree. A proper measure in this case is the difference between the condition of the premises when leased and their condition at the expiration of the lease, ordinary wear and tear excepted. Ordinarily, damages are to be measured by the injuries sustained by the complaining party. Nielson v. Okies, 503 S.W.2d 614, 616 (Tex.Civ.App.—El Paso 1973, no writ); Harrell v. F.H. Vahlsing, Inc., 248 S.W.2d 762, 771 (Tex. Civ.App.—San Antonio 1952, writ ref’d n.r. e.). When a tenant fails to discharge the obligation to return the property in good condition, the landlord may recover, as the measure of damages, the reasonable cost of repairs to place the property in the obligated condition. Dunlap v. Mars Plumbing Supply Co., 504 S.W.2d 917 (Tex.Civ. App.—San Antonio 1973, no writ); Siegler v. Robinson, 600 S.W.2d 382 (Tex.Civ.App.—Houston [1st Dist.] 1980, writ ref’d n.r. e.). However, there is a tendency to award cost of repairs where the injury caused by the waste is easily repairable or the damage suffered is small and the cost of restoration readily ascertainable. Nielson, supra, at 616. The evidence establishes that such is not the nature of the damages sustained by the leasehold in this cause.

Rizik testified that cost of repairs to the building exceeded $18,000 but Rizik did not plead cost of repairs as damages. Under that measure, calculations as to the portion of the plumbing, electrical, painting, and other expenses attributable to acts of Flores would have been necessary. See, e.g., Manges v. Willoughby, 505 S.W.2d 379, 384-86 (Tex.Civ.App.—San Antonio 1974, writ ref’d n.r.e.). Under the dimunition in value measure of damages, whether or not the landlord has even made repairs of injuries suffered is not of consequence in arriving at the amount of those injuries. Nielson, supra, at 616. Further, if the judgment is fully supported by implied findings of market value of the premises, any error in the admission of costs of repair is harmless. TEX.R.CIV.P. 434.

Flores makes the additional argument that as Rizik did not invoke the adverse witness rule when he called Flores as a witness, Rizik is bound by his testimony and can only recover for the specific items of damage that he, Flores, admitted. However, it was not necessary for Rizik to identify Flores as an adverse witness under TEX.R.CIV.P. 182. Thompson v. Uzzell, 541 S.W.2d 499, 502 (Tex.Civ.App.—Tyler 1976, no writ); Pioneer Finance & Thrift Corp. v. Adams, 426 S.W.2d 317, 321 (Tex.Civ.App.—Eastland 1968, writ ref’d n.r.e.).

Flores argues that most of the damages may have been inflicted by vandals after he vacated the premises and there is no proof he damaged the building. He testified that one of his biggest problems at the restaurant was with vandals and burglaries.

It is a basic proposition of the law of landlord and tenant that it is the duty of the tenant to exercise due care in the use of the leased premises and not to cause any material or permanent injury. This obligation is implied whether written into a lease contract or not. Gulf Oil Corp. v. Horton, 143 S.W.2d 132 (Tex.Civ.App — Amarillo 1940, no writ).

Flores testified he continued the restaurant operation up until October 29, 1981, and when he left, the walk-in cooler and freezer, the air-conditioners, and the Vent-a-Hood were operative. However, at trial, he was shown a photograph of the damaged Vent-a-Hood and admitted it was in the depicted condition when he left. He testified that he took only the removable plastic bearing the name of his restaurant from the neon sign and left the rest of the sign in place.

A tenant vacating premises has a duty to notify the landlord of his departure. Until notification effecting a termination of the tenancy, the building remains in the legal possession of the tenant and the responsibility for damages to the leasehold accompanies the legal possession. Whitworth Estate v. Mangels of Texas, Inc., 363 S.W.2d 851 (Tex.Civ.App.—Waco 1962, no writ). In this cause, Flores did not notify Rizik of his departure and he did not return the keys to the property to Rizik or his agents. He testified as to vandalism in the neighborhood. Thus he was aware of the risks to the building but took no steps to avoid liability.

As earlier related, Flores testified he did not vacate the premises because of the forcible entry and detainer action against him but because the property was in a state of disrepair. Yet, Flores testified to only two occasions on which he called Rizik as to repairs needed to certain kitchen equipment. There was no testimony of reporting to Rizik damages to ceiling tiles which Flores admits were missing at the time he vacated. Flores testified that he removed the sink and commode from a bathroom near the kitchen because of plumbing problems and put the fixtures behind the building. Yet, Rizik was not notified. Likewise, the wall by the barbecue pit was damaged. Rizik contends that this damage was caused by the removal of the barbecue pit which the parties agreed was located near the damaged wall, was of great weight and removed by Flores in sections. Flores testified that three or four years prior to his departure, a car driven by an unknown individual had hit the wall from the outside. Once again, Rizik was not notified and the police were not called.

There is evidence, then, that needed repairs were not reported to Rizik. Yet, Flores complains that the premises were in disrepair. In the absence of findings of fact, we do not know what, if any, portion of Flores’ testimony was given credence by the trial court.

The trial court may have attributed the wall damage to Flores, believing the damages occurred when the barbecue pit was removed, or believing Flores’s version involving the car mishap but holding him responsible since the accident went unreported. The court may have concluded that damages not admitted by Flores resulted from his use instead of being the work of unknown and unproven vandals; or it may have held Flores responsible, vandals notwithstanding, under the duty a vacating tenant owes to a landlord. In the absence of findings of fact and conclusions of law, we do not know what damages, in what amount, and under what rationale, Flores was held responsible.

The trial court, as trier of fact, found damage to the leasehold of $6,700, assuming $1,300 of the judgment was attributable to rent arrearage admitted by Flores. The amount relating to damage to the leasehold was based on diminution in market value of the property. There is evidence to support the implied finding that the leasehold was damaged in this amount. We therefore affirm the judgment.


text:
    Walter D. VINES, Appellant, v. Marguerite A. VINES, Appellee.
    No. 04-83-00330-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 19, 1984.

      Mark S. Levin, San Antonio, for appellant.
    Marguerite A. Vines, pro se.
    Before CANTU, REEVES and TIJERI-NA, JJ.
   OPINION

REEVES, Justice.

This appeal is concerned with the division of the military retirement benefits between the spouses in a divorce suit.

Appellant, Walter D. Vines, entered the United States Military Service via the Air Force in 1950 and continued in the service until 1970, at which time he retired. The parties married in 1952 and continued in that relationship until their divorce, April 25, 1983. The trial court awarded thirty percent (30%) of appellant’s military retirement to appellee.

It is appellant’s contention that, since his pension vested at the time of his retirement in 1970, the military retirement benefits have been held to be separate property. McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). Therefore, he argues the benefits are not subject to division by the trial court. The United States Congress enacted the Uniformed Services Former Spouses Protection Act (USFSPA), codified in 10 U.S.C.A. § 1408, which was signed into law by the president to become effective February 1, 1983. Section (c)(1) 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.

It is quite apparent that the author and bestower of the pension, the United States Government, intended to leave to the state courts the option to divide the pension and award a portion to the non-service spouse regardless of its denomination as separate or community property.

As the Texas Supreme Court noted in Cameron v. Cameron, 641 S.W.2d 210, 212 (Tex.1982), “the purpose of the act was to reverse the effect of the McCarty decision.” This purpose is achieved only if section (c)(1) of USFSPA is interpreted as being permissive so as to allow courts to fully apply the law of the jurisdiction without regard to McCarty.

Disposable retired pay is not static but dynamic and subject to change. Congress can alter the general scheme (i.e., increase taxes, section (a)(4)(C) of USFSPA) or actions of the member may change the amount of disposable retired pay (i.e., waiver of retirement benefits to receive V.A. disability benefits, section (a)(4)(B)).

The judgment of the trial court is affirmed.


author: REEVES, Justice. CANTU, Justice,

text:
    In the Matter of A.N., a Child, Appellant, v. The STATE of Texas, Appellee.
    No. 04-83-00351-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 19, 1984.

      Richard Terrell, Alice, for appellant. Kenneth Oden, Jr., Perkins, Oden, War-burton, McNeill & Adami, Alice, for appel-lee.
    Before CANTU, REEVES and TIJERI-NA, JJ.
   OPINION

REEVES, Justice.

This is an appeal from an order of the juvenile court of Jim Wells County, Texas, finding that appellant engaged in delinquent conduct and placing him on probation.

The petition for adjudication of delinquent conduct on the part of appellant alleged a violation of TEX.PENAL CODE ANN. art. 30.02 (Vernon 1974), to wit, without consent of the owner A.N. entered a habitation with intent to commit theft. The court found the State had failed to prove all of the elements necessary to establish burglary of a habitation, but did find that the appellant committed a criminal trespass of a habitation. Appellant was placed on probation.

Appellant raises four points of error. The first point of error complains of the finding of the court that appellant engaged in delinquent conduct by commission of a lesser included offense when that allegation was not set forth in the petition for adjudication. Appellant’s second point of error contends that the petition for adjudication of delinquent conduct does not state with particularity the location of the habitation the appellant was accused of entering and the third and fourth points of error challenge the legal and factual sufficiency of the evidence.

The Texas Family Code requires that at the inception of the hearing the judge explain to the child the allegations made against him and the nature and possible consequences of the proceedings. TEX. FAM.CODE ANN. § 54.03(b)(1), (2) (Vernon 1975). We are unable to find in the record any explanation by the judge or anyone else, at the commencement of the proceeding or at any time during the proceeding, an explanation that appellant might be found to have engaged in delinquent conduct by committing a criminal trespass. We cannot attribute to this youth a knowledge of the criminal law that a criminal trespass is a lesser included offense of burglary of a habitation. A.E.M. v. State, 552 S.W.2d 952 (Tex.Civ.App.—San Antonio 1977, no writ). Also see W.J. M.A. v. State, 602 S.W.2d 397 (Tex.Civ.App. —Beaumont 1980, no writ). Appellant’s point of error number one is affirmed.

Appellant challenges the legal and factual sufficiency of the evidence that appellant engaged in delinquent conduct in that there was no evidence or insufficient evidence that the entry into the house was forbidden or that it was established that the house entered was a place of habitation. We find no merit in these contentions. See Hargett v. State, 534 S.W.2d 909 (Tex.Crim.App. 1976) and Day v. State, 532 S.W.2d 302 (Tex.Crim.App.1975).

Lastly, appellant complains of deficiency in the original petition for adjudication of delinquent conduct in that the address of the habitation was not specifically set out in the pleading. Proceedings under Title 3 of the Texas Family Code are civil in nature to which the Texas Rules of Civil Procedure have application. TEX.FAM. CODE ANN. § 51.17 (Vernon 1975). If, on retrial of this cause, appellant specially excepts to the petition, the State should be required to allege in more particularity the location of the habitation.

This cause is reversed and remanded for trial pursuant to the instructions of this court.

CANTU, Justice,

dissenting.

I do not agree that the majority’s reliance upon W.J.M.A. v. State, 602 S.W.2d 397 (Tex.Civ.App.—Beaumont 1980, no writ) and A.E.M. v. State, 552 S.W.2d 952 (Tex.Civ.App.—San Antonio 1977, no writ) justifies a reversal of the instant ease upon a contention not raised on appeal.

Appellant’s pertinent contention advances the argument, plain and simple, that the juvenile court was without authority to enter a finding that the child had engaged in delinquent conduct by proof that he had committed a lesser included offense of that charged in the petition absent ah allegation that the lesser included offense was also committed.

The complaint before this Court is in, the appellant’s own words, "... the trial court had no authority to enter a judgment that was not based upon the pleadings and the judgment entered by the trial court is therefore void.” Appellant’s brief p. 8. Nowhere is there complaint that the juvenile court failed to comply with the requirements of TEX.FAM.CODE ANN. § 54.-03(b)(1), (2) (Vernon 1975). This is clearly so because the record affirmatively discloses just such compliance as is required. While it may be true that the juvenile court did not advise appellant that a possibility existed that he might be adjudicated a delinquent upon proof that he committed a lesser included offense of burglary of a habitation, still such is not the complaint before us. A.E.M. v. State, does not support the contention appellant brings to this court but is in fact contrary to it. It does support the majority’s position insofar as the record in that case disclosed a total failure to comply with the requisites of TEX.FAM.CODE ANN. § 54.03(b). But the record in the instant case does not reflect total noncompliance.

Then Justice Cadena’s elaboration of the trial court’s failure to comply in A.E.M. v. State, supra, in my opinion, unnecessarily enlarged upon the duties devolving upon a juvenile court under Section 54.03(b) when he alluded to the court’s failure to inform the juvenile of the possibility of an adjudication upon the showing of lesser offenses included within the charge. In my opinion that observation was unnecessary to the disposition and constitutes dictum.

Criminal trespass can be a lesser included offense of burglary of a habitation. Roberson v. State, 549 S.W.2d 749 (Tex.Crim.App.1977) (overruled on other grounds, Cole v. State, 578 S.W.2d 127 [Tex.Crim.App.1979]); Day v. State, 532 S.W.2d 302 (Tex.Crim.App.1975).

Although a petition must set forth the ground relied upon by the State and the proof must conform to the allegation, Cantu v. State, 207 S.W.2d 901 (Tex.Civ.App.—San Antonio 1948, no writ) a petition setting forth allegations which contain the elements of the lesser offense as well as the elements of the greater offense charged necessarily will support an adjudication if the proof conforms to either the charged offense or to the elements constituting the lesser included offense. Cf. Day v. State, supra.

Appellant’s sole authority is In Re A.F.D., 628 S.W.2d 87 (Tex.App. — Beaumont 1981, no writ) which he cites for the proposition that a judgment not based on the pleadings is void. Such is not the rule announced in that case. The correct rule is that a judgment not based on any pleadings is void. The instant judgment is supported by pleadings containing all the elements comprising the offense found to have been violated.

I dissent to the disposition made upon a contention not raised and being convinced that the contention actually raised is without merit would overrule the point of error. I concur otherwise in the majority’s disposition of appellant’s remaining points of error although I find it unnecessary to comment on the validity of appellant’s claim of deficiency in the petition. In view of the discovery procedures available to a civil litigant I question the merit of such a claim of lack of notice, particularly when exceptions are lodged against the petition at the last minute.

I would affirm the judgment of the juvenile court.

      . The judgment found in the transcript also finds that the appellant violated TEX.PENAL CODE ANN. art. 30.02 (Vernon 1974) "in that he did then and there intentionally and knowingly, without the effective consent of Thelma Gerre-ro, the owner thereof, enter a habitation with the intent to commit theft." We assume the judge inadvertently failed to delete this from the judgment that had been prepared prior to the court’s decision.

      . The constitutional notice requirement in an accusatory pleading is the same in a criminal proceeding as in a juvenile proceeding. In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Since the argument that appellant raises would not have merit as a criminal contention, I doubt the validity of the same argument in a juvenile context. See Santana v. State, 658 S.W.2d 612 (Tex.Crim.App.1983).


author: BUTTS, Justice.

text:
    AMERICAN JET, INC. and Paul T. Bryant, Appellants, v. Anthony M. LEYENDECKER, Appellee.
    No. 04-84-00050-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 19, 1984.

      R. William Wood, Denton, Shirley A. Hale, Mann, Freed, Trevino & Hale, Laredo, for appellants.
    Mard D. Willett, Laredo, for appellee.
    Before BUTTS, TIJERINA and DIAL, JJ.
   OPINION

BUTTS, Justice.

Defendant appeals from a judgment notwithstanding the verdict in which the trial court set aside certain special issues. We affirm in part, reverse and render in part.

Plaintiff Anthony Leyendecker sued defendants Paul Bryant and American Jet, Inc. for damages to plaintiffs airplane. Plaintiff desired to sell a 1965 Beech King Air Ninety twin-engine turboprop plane to prospective purchaser, defendant Bryant. On September 3, 1979, Bryant in Fort Worth contacted George Ryan, a pilot who had flown the subject plane and who would show the plane to Bryant for Leyendecker. He asked to inspect the airplane prior to a possible commitment to purchase. Arriving in Laredo in his own plane about 4:10 p.m., Bryant taxied his plane next to the turboprop parked on the line. Ryan was waiting at the center in a building, and the two did not meet until after the crash. The plane was unlocked; its log books were on the steps. Bryant did not wait for Ryan but commenced his own thirty-minute pre-flight inspection. He then took fifteen minutes to start up the plane. With his co-pilot, Jean P. Michenon, next to him, Bryant got permission from the air traffic controllers to take off. The plane crashed about a mile north of the airport when its left engine lost power. Bryant, executing an emergency landing and exit together with his co-pilot, was not injured, but the blades of both propellers were bent rearward; both engines, the bottom of the wings, fuselage and the leading edge of the wings were substantially damaged. A report of the National Transportation Safety Board revealed no gas in the wing tanks and a

negligible two gallons in the auxiliary nacelle tanks.

In his petition plaintiff alleged that defendant was negligent when he: failed to verify that the aircraft was very low in fuel at the time that they decided to fly the aircraft; failed to adequately fuel or make arrangements to adequately fuel the aircraft prior to their takeoff in said aircraft; failed to visually and otherwise check both main, and both auxiliary fuel tanks prior to their takeoff in said aircraft; failed to cheek the fuel gauges for both main, and both auxiliary, fuel tanks prior to their takeoff in said aircraft; failed to conduct an adequate preflight preparation and/or planning prior to their takeoff in said aircraft; mismanaged the fuel supply both prior to their takeoff in said aircraft and during the flight of said aircraft; and failed to follow reasonable preflight procedures for making a proper determination of the amount of fuel in the aircraft prior to takeoff in said aircraft.

Defendant answered, denying plaintiffs allegations and asserted that plaintiff committed these negligent acts:

1. Plaintiff was negligent by virtue of his agents, servants or employees in that
■ they left the airplane in a position to be picked up and test-ridden without the sufficient gasoline in the tanks.
2. Further, they were negligent in leaving the airplane in a position to be picked up and test-ridden with the fuel gauge indicators not being in working order.

By its answers to special issues, the jury found the proximate causes of the crash were: (1) Bryant’s failure to verify that the aircraft was low in fuel; (2) Bryant’s failure to fuel the aircraft; (3) Bryant’s failure to visually check main and auxiliary tanks; and (4) Bryant’s failure to make a preflight inspection.

On the other hand, the jury found that plaintiff’s leaving the aircraft without sufficient fuel and with defective fuel gauges, while negligent, were not the proximate causes of the occurrence. Nevertheless, the jury did find plaintiff to be 40% negligent and defendant to be 60% negligent. It also found the pre-crash market value of the plane to be $150,000, the after-crash market value to be $15,000 and lost rental value to be $20,000.

Granting the plaintiff’s motion for judgment, the trial court in its judgment n.o.v. disregarded the jury finding as to comparative negligence as well as the jury finding as to the pre-and post-crash values of the airplane. Finding defendant to be liable, the trial court awarded plaintiff $283,000 in damages.

Defendant brings eight points of error: that the definition on sole proximate cause should not have been submitted to the jury; that the after-crash market value was not supported by any evidence at trial; that the issue should not have been submitted; that the trial court should not have disregarded the jury finding of the market value of $150,000 and substituted its finding of $283,000; that there was no evidence indicating Bryant acted within the scope of his employment for American Jet, Inc.; and finally, that no rental value should be allowed to show loss of use of a chattel that was totally destroyed. Although defendant did not object to this special issue concerning rental value at the trial, we will consider it in the general context of the proper measure of damages.

In reviewing the ruling of the trial court granting motion for judgment notwithstanding the verdict, this court must determine whether there is evidence to support the jury findings. See Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEX.L.REV. 361, 362 (1960). In deciding a “no evidence” point, we must view the evidence in the light most favorable to the jury findings, considering only the evidence and inferences which support them, and rejecting the evidence and inferences contrary to the findings. Williams v. Bennett, 610 S.W.2d 144, 145 (Tex.1980); Freeman v. Texas Compensation Insurance Co., 603 S.W.2d 186, 191 (Tex.1980). Judgment may be entered notwithstanding the verdict as authorized by TEX.R.CIV.P. 301 when a directed verdict would have been proper; and further, special issue jury findings may be disregarded which are immaterial or have no support in the evidence. Eubanks v. Winn, 420 S.W.2d 698, 701 (Tex.1967).

SOLE PROXIMATE CAUSE

The trial court submitted the following instruction:

“PROXIMATE CAUSE” means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred; and in order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event, but there can only be one sole proximate cause. If an act or omission of any person was the sole proximate cause of an occurrence, then no act or omission of any other person could have been a proximate cause. [Emphasis ours.]

Prior to submission, defendant properly objected to the allusion to sole proximate cause within the definition, thereby preserving error for appellate review. Yellow Cab & Baggage Co. v. Green, 154 Tex. 330, 277 S.W.2d 92, 93 (1955); TEX.R.CIV.P. 274. Defendant argues that such inclusion was improper, sole proximate cause not being raised in the pleadings or the evidence. Further, the result of giving this definition so confused the jury that it tainted its answers to other special issues.

Sole proximate cause is an inferential rebuttal issue and can no longer be submitted as a special issue. Scott v. Atchison, Topeka & Santa Fe Railway Co., 572 S.W.2d 273, 279 fn. 7 (Tex.1978); TEX. R.CIV.P. 277. Inferential rebuttal issues, including sole proximate cause, are defined as denial issues. Id.

Sole proximate cause pertains to neither the conduct of the plaintiff nor that of the defendant but to a third party, whose conduct would be solely causative of the occurrence at issue. Herrera v. Balmorhea Feeders, Inc., 539 S.W.2d 84, 86-87 (Tex.1976).

In the present case there is no evidence showing the event resulted from some cause other than the negligence of one or both of the parties. Also, Ryan was the agent of the plaintiff and not a “third party.” See Querner v. DeSpain, 339 S.W.2d 723 (Tex.Civ.App.—San Antonio 1960, writ ref’d n.r.e.). We, therefore, find that the court’s allusion to sole proximate cause at the end of the proximate cause explanatory instruction was improperly made since it was not in the pleadings or evidence. There was no “third party” in the case. Rule 277 provides that the trial court should issue only those instructions “as shall be proper to enable the jury to render a verdict.” TEX.R.CIY.P. 277. Compare Transport Insurance Co. v. Liggins, 625 S.W.2d 780, 783 (Tex.Civ.App.—Fort Worth 1981, writ ref’d n.r.e.). We hold the trial court’s allusion to sole proximate cause in the instruction and definition of proximate cause was erroneous.

The next question is whether such a definition “... was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case ...,” thereby requiring a reversal. TEX.R. CIV.P. 434.

In answer to the special issue on comparative negligence, the jury found defendant to be 60% negligent and plaintiff to be 40% negligent. Defendant argues this answer is in conflict with former special issues which found that though plaintiff acted negligently, his acts were not proximate causes of the occurrence, asserting the jury believed they must choose either acts of plaintiff or those of defendant as the sole proximate cause of the crash. We do not agree and hold that the trial court correctly disregarded the percentage answer.

We hold under the facts of this case, the portion of the proximate cause instruction referring to sole proximate cause constitutes harmless error. To obtain reversal the defendant must show the error amounted to such a denial of his rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Dennis v. Hulse, 362 S.W.2d 308, 309 (Tex.1962). We have determined this to be harmless error by reviewing the entire record. Gomez Leon v. State, 426 S.W.2d 562, 565 (Tex. 1968); TEX.R.CIV.P. 434.

Here the jury answered the controlling issues, and no point of error is addressed to the issues of proximate cause or to the sufficiency of the evidence supporting the findings, and there is no reason to believe the jury would have answered the issues differently without the reference to sole proximate cause. The defendants have not shown, as required, that the complained-of instruction was reasonably calculated to cause and probably did cause the rendition of an improper judgment in this case. In that regard points of error one is sustained and two is overruled.

The jury found plaintiff’s acts, although negligent, were not a proximate cause of the occurrence. The words contributory negligence and negligence used in TEX.REV.CIV.STAT.ANN. art. 2212a (Vernon Supp.1984), the comparative negligence statute, have been interpreted to mean such contributory negligence and such negligence as was a proximate cause of the occurrence in question. Howard v. Bachman, 524 S.W.2d 414, 416 (Tex.Civ. App.—Eastland 1975, no writ). Where there is an asserted conflict between the finding that the negligence was not a proximate cause of the occurrence and the finding of damages, there is no fatal conflict. Lewis v. Yaggi, 584 S.W.2d 487, 498 (Tex. Civ.App.—Tyler 1979, writ ref d n.r.e.). It is said that the damages question becomes immaterial when no liability is found. Howard v. Bachman, supra, at 417. The specific finding on liability will control the general finding of damages. Id. Garza v. Waco Scaffold & Shoring Co., 576 S.W.2d 442, 446 (Tex.Civ.App.—El Paso 1978, writ ref’d n.r.e.); see Pate v. Yeager, 552 S.W.2d 513, 517 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n.r.e.). When applied to a comparative negligence situation, the principle dictates that issues establishing or negating liability control over the issue which apportions, rather than establishes, negligence. Williams v. Finley, 567 S.W.2d 611, 612 (Tex.Civ.App.—Amarillo 1978, writ ref’d n.r.e.). In the present case the trial court correctly disregarded and set aside the comparative negligence finding.

SCOPE OF EMPLOYMENT

In point of error seven, defendant also argues that the record does not indicate that Paul Bryant acted within the scope of his employment for defendant American Jet, Inc.; therefore, American Jet cannot also be held liable. In a hearing with counsel outside the presence of the jury the trial court ruled that a special issue as to the liability of American Jet was unnecessary because an issue finding Bryant liable would be the same as an issue holding American Jet liable.

Paul Bryant testified that he owned 100% of American Jet and that the purpose of his trip to Laredo was to acquire a jet for his business that he could lease out to other parties with an option to purchase. A special issue should not be submitted when it is conclusively established or it can be answered as a matter of legal deduction from undisputed facts. Great American Mortgage Investors v. Louisville Title Insurance Co., 597 S.W.2d 425, 432 (Tex.Civ.App.—Fort Worth 1980, writ ref’d n.r.e.); 2 R. McDONALD, TEXAS CIVIL PRACTICE, § 12.08-C (rev. 1983). We find no separate issue was necessary on the liability of American Jet, Inc. and overrule point of error seven.

DAMAGES

In the remaining points of error, defendant addresses the judgment n.o.v. concerning damages. The jury, in special issues twenty-three, twenty-four and twenty-five found that the airplane was worth $150,000 immediately prior to the crash, $15,000 immediately after the crash, and that plaintiff lost $20,000 in rental values as a result of the crash.

The trial court in its judgment n.o.v. ordered that plaintiff recover $283,-000 from defendant. Bud Ridgeley testified he sold the plane to plaintiff in 1979, for $263,000, shortly before the crash. He stated this was a competitive price and the fair market value of the plane and included taxes and transfer costs. He also testified the plane could be rented at that time for at least $3,000 a month. The jury findings which were set aside were that the pre-crash value was $150,000, and the after-crash value was $15,000. An examination of the record reveals these two figures are not supported in the evidence. There were several pictures admitted into evidence showing the plane before and after the crash. There were schematic drawings. However, the evidence does not indicate their admission was for the purpose of proving market value. While it is the prerogative of the jury to set damages, they may not arbitrarily fix an amount not supported by any evidence. Thomas v. Oil & Gas Building, Inc., 582 S.W.2d 873, 881 (Tex.Civ.App.—Corpus Christi 1979, writ ref'd n.r.e.). While there was some evidence to show the market value was $263,-000, and this was not refuted, there was none to support the two jury findings of market value. Therefore, we hold that the tnal court correctly set aside those two findings. Rule 301.

The general rule for measuring damages to personal property is the difference in the market value immediately before and immediately after the injury to such property at the place where the damage was occasioned. Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127, 128 (1950). But when a chattel is totally destroyed, it is conceivable that the personal property destroyed might not have a market value. Id. Thus where an airplane has been totally destroyed, the proper measure of damages could properly be the market value of the plane at the time of its destruction. This was shown in the present case by Ridgeley’s testimony of the price paid in Laredo by the owner for the plane. It was not shown that the plane was readily replaceable or repairable. Further, the defendant did not present any proof of the salvage value of the plane, if any. We agree there is no evidence in the record to support the jury’s answer that the after-crash value of the plane was $15,-000. Plaintiff chose to recover the market value of the plane at the time of its destruction and did not elect to recover the difference between the values before and after the crash. The finding of the after-crash value, if it could have been proved, or salvage value, would have benefited the defendant. It can be seen that the trial court treated the measure of damages of the totally destroyed plane as that market value at the time of its total destruction. We agree this was proper under the facts of this case.

However, we do not agree that the $20,000 found as “loss of use” damages was recoverable since the plane was totally destroyed.

Unrefuted testimony established that the airplane was a total loss. The reason for not allowing for loss of use when the chattel is totally destroyed is because such damages are included as a part of the award for total loss. Riddell v. Mays, 533 S.W.2d 910, 911 (Tex.Civ.App.—Waco 1976, writ ref’d n.r.e.). We sustain points of error three, five, and eight, and we overrule four and six. We reverse and render the judgment in part as to loss of use damages ($20,000). We reform the judgment as to damages for the destruction of the plane to the yalue shown: $263,-000. Rule 434.

The judgment of the trial court is affirmed and reformed in part and reversed and rendered in part. Costs of appeal are taxed one-half against appellants and one-half against appellee.

      . SPECIAL ISSUE NUMBER 22
      What percentage of the negligence that caused the occurrence do you find from a preponder-anee of the evidence to be attributable to each of the persons found by you to have been negligent? The percentage of negligence attributable to a person is not necessarily measured by the number of acts or omissions found.
      In answering this question, you should consider only the negligence of the Plaintiff, Anthony M. Leyendecker and the Defendant, Paul Bryant, which you have found to be a proximate cause of the occurrence in question, therefore, the percentages should add up to 100%.
      PAUL T. BRYANT 60%
      ANTHONY M. LEYENDECKER 40%
      “MARKET VALUE" means the amount which would be paid in cash by a willing buyer who desires to buy, but is not required to buy, to a willing seller who desires to sell, but is under no necessity of selling.
      The market values inquired about in the following issues should be determined without considering the negligence of Anthony M. Ley-endecker, if any.
      SPECIAL ISSUE NUMBER 23
      Find from a preponderance of the evidence the market value in Webb County, Texas, of the aircraft owned by Anthony M. Leyendecker immediately before the occurrence in question.
      Answer in dollars and cents, if any.
      Answer: $150,000.00
      SPECIAL ISSUE NUMBER 24
      Find from a preponderance of the evidence the market value in Webb County, Texas, of such aircraft immediately after the occurrence in question.
      Answer in dollars and cents, if any.
      Answer: $15,000.00


text:
    Guillermo CARDENAS, Principal, Ray Alfaro d/b/a Alfaro Bail Bonds, Surety, Appellants, v. The STATE of Texas, Appellee.
    No. 04-82-00562-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 19, 1984.

      William Porter, Porter, Madalinski, Mayo, Salyer & Sims, San Antonio, for appellants.
    . Barry P. Hitchings, San Antonio, for ap-pellee.
    Before BUTTS, CANTU and DIAL, JJ.
   OPINION

BUTTS, Justice.

This is an appeal from an order of the County Court, refusing to grant appellant-surety’s bill of review wherein he sought relief from forfeiture of a bond because the sheriff’s office misstated the defendant’s name as “Guillermo” instead of “Geronimo” in the bond instruments. See TEX. CODE CRIM.PROC.ANN. art. 22.14 (Vernon 1966). Also encompassed in the bill of review was a request for remittitur of money paid on forfeiture of the bond by the surety. The final judgment reflects an amendment of the defendant’s name. The court, however, denied remittitur. Only the denial of remittitur is questioned on this appeal.

The surety claims he is entitled to remittitur of at least 95 percent of the sum of $1,600.00, the amount he paid as the result of forfeiture. The claim is founded on TEX.REV.CIV.STAT.ANN. art. 2372p-3 § 13(b) (Vernon Supp.1984). The State argues the trial court no longer had jurisdiction of the bond forfeiture and the statute, supra, cannot be applied retroactively. The trial court expressly based its decision on the two bars to relief.

The relevant dates are:

April 10, 1979: Principal Cardenas failed to appear in court.
October 27, 1980: Judgment Nisi entered.
March 12, 1981: Hearing to enter final judgment of forfeiture.
March 23, 1981: Final judgment.
August 31, 1981: Section 13(b) of art. 2372p-3, supra, became effective.
December 22, 1981: Principal rearrested.
February 18, 1982: Surety filed “Motion for bill of review or in the alternative, entry of judgment nunc pro tunc.”

In the motion for bill of review there appears a paragraph requesting remittitur of at least 95 percent pursuant to section 13(b). Only the attorney for the surety verified the motion; there was no affidavit of the surety. No complaint as to form was made at trial, and it is first raised on appeal. While we do not approve the form employed, we deem that complaint has been waived.

Section 13(b) provides:

After a forfeiture, if the defendant is incarcerated within two years of a judgment nisi, the bondsman shall be entitled to a remittitur of at least 95 percent if he presents a sworn affidavit stating that the defendant was returned to custody, in part, as a result of money spent or information furnished by the bondsman. The remittitur shall be credited against an unpaid judgment of forfeiture or if the judgment has been paid, the treasurer shall refund at least 95 percent.

Section 12(a), the law governing this situation before the amendment, provided:

In each instance where a principal has been rearrested and returned to the county wherein his bond was made within 120 days after the date of the final judgment on the bond forfeiture and no appeal has been taken and provided that the principal was rearrested as a result of money spent or information furnished by the surety, the surety thereon may file a motion of remittance in the court commanding the appearance of the principal and the court shall order at least 50 percent of the amount paid on the judgment remitted. The payment shall be made by the county treasurer.

Acts 1973, 63rd Leg., p. 1525, Ch. 550. When there is a final judgment following judgment nisi in a bond forfeiture case, TEX.REV.CIV.STAT.ANN. art. 2372p-3 § 13(b) [before that, § 12(a)] is the only provision which may be relied upon to reduce a surety’s liability. Williams v. State, 670 S.W.2d 717, 722 (Tex.App.—San Antonio 1984, pet. granted). The principal must be incarcerated within two years of the judgment nisi and the other statutory requirements must be met. Id.

The trial court in the present case ruled that section 13(b), which gives the bondsman the right to move for remittitur within two years after judgment nisi, does not apply in this case because its provisions are not retroactive. Texas Constitution, art. I, § 16 provides that no bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made. In prohibiting retroactive laws, the Texas Constitution seeks to safeguard rights not guaranteed by other constitutional provisions such as the impairment of the obligation of contracts. Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, 252-253 (1887). A statute is retroactive, in the constitutional sense, which takes away or impairs vested rights acquired under existing laws, or creates new obligations, imposes new duties, or adopts a new disability in respect to transactions or consideration already past. It is one which affects acts or rights accruing before it came into force. Turbeville v. Gowdy, 272 S.W. 559, 561 (Tex.Civ.App.—Fort Worth 1925, no writ). Unless vested rights are destroyed or impaired, the law is not invalid even though retroactive in operation. Paschal v. Perez, 7 Tex. 348 (1851). Commercial Insurance Co. of Newark, N.J. v. Lane, 480 S.W.2d 781, 783 (Tex.Civ.App.—Dallas 1972, writ ref’d n.r.e.).

It is obvious that the guaranty of the Constitution is directed against the impairment of the obligation of contracts rather than the contract itself, that is, what the party to a contract is required by duty and by law to perform. Any law which releases a part of this obligation, any act which to any extent or degree amounts to a material change or modifies it, must impair it. See, e.g. Norton v. Kleberg County, 149 Tex. 261, 231 S.W.2d 716, 718 (1950); Kelly v. Republic Building & Loan Association, 34 S.W.2d 924, 928 (Tex.Civ.App. — Dallas 1930, no writ). The obligation includes the relevant law in force at the time the contract is made. Langever v. Miller, 124 Tex. 80, 76 S.W.2d 1025, 1027 (1934).

Constitutional prohibition against retroactive laws applies only to those laws destroying or impairing vested rights. McGinley v. McGinley, 295 S.W.2d 913, 916 (Tex.Civ.App.—Galveston 1956, no writ). The vested rights must have been acquired under existing laws, which in the present case were those rights acquired by the State under the laws at the time it entered into the contract with the surety, and which still existed at the time of the final judgment of forfeiture. The applicable remittitur law was section 12(a) of article 2372p-3 before it was superseded by section 13(b). We hold the vested rights of the State in its contract with the surety in this case would be impaired if section 13(b) were applied retroactively, and we decline to apply the provisions retroactively. The trial court correctly ruled the statute cannot be applied retroactively.

Since the surety's only vehicle for possible remittitur in this case was section 12(a), supra, it would have been necessary that he meet the requirements of that law. The principal in this case was not rearrested within 120 days of final judgment, thereby precluding a timely motion for remitti-tur as authorized by section 12(a). The legislature has alleviated the harshness of that rule by enacting section 13(b), supra, extending the time for motion for remitti-tur to two years after judgment nisi.

Because we have ruled the present law, section 13(b), cannot be applied retroactively, there is no need for this court to address the further contentions of the State in overruling the surety’s sole ground of error: that the trial court erred in refusing to refund at least 95 percent of the sum paid by the surety for bond forfeiture.

The judgment is affirmed.


author: RALEIGH BROWN, Justice.

text:
    Charles Weldon BEASLEY, Appellant, v. STATE of Texas, Appellee.
    No. 11-83-268-CR.
    Court of Appeals of Texas, Eastland.
    Dec. 20, 1984.
    Rehearing Denied Jan. 10, 1985.

      Robert J. Glasgow, Stephenville, for appellant.
    Jimmy A. Ashby, Dist. Atty., Palo Pinto, for appellee.
   RALEIGH BROWN, Justice.

Charles Weldon Beasley, reserving his right to appeal, pled guilty to possession of marihuana and was sentenced to ten years confinement in the Texas Department of Corrections.

Upon affidavit of Texas Department of Public Safety Officer Kenneth Perry, a search warrant was issued whereby Palo Pinto County law enforcement officers searched certain lands in Palo Pinto County. Growing marihuana plants were discovered. Beasley was arrested for possession of such marihuana. At a pre-trial suppression hearing, Beasley challenged the validity of the search warrant. The trial court denied appellant’s motion to suppress the evidence. Reserving his right to appeal, Beasley entered his plea of guilty and was sentenced by the trial court. We affirm.

Appellant initially challenges the validity of the search warrant and the admission into evidence of the marihuana that was seized during the execution of the search warrant and photographs taken of the growing marihuana. The growing marihuana was found in a wooded area closely resembling that discussed in Hurwitz v. State, 673 S.W.2d 347 (Tex.App.—Austin 1984, no pet’n) in which, the court found the wooded area to be an “open field.” In the instant case, evidence established that the land in question was located in a rural area. A mobile home, a barn and a shed were located on the land. The marihuana field was about 100 yards from those structures.

An open field may be any unoccupied or underdeveloped area of land outside the curtilage of a dwelling. Hurwitz at 349. Curtilage is the area of land immediately adjacent to the dwelling to which intimate activities of the home life extend. The court in Hurwitz said, “The ‘open fields’ doctrine is based upon the premise that the Fourth Amendment accords ‘special protection ... to the people in their persons, houses, papers, and effects,’ [and] is not extended to open fields,” citing Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924). We find the land in the instant case where the marihuana was growing to be an “open field.”

The “open field doctrine” allows a law enforcement officer to enter and search an area of land without a warrant. Oliver v. United States, — U.S. —, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); Goehring v. State, 627 S.W.2d 159 (Tex.Cr.App. 1982). Since the land in question was an open field, no search warrant was necessary for the law enforcement officers to enter the land and seize the marihuana. We hold that the seizure of the marihuana was, therefore, legal and there is no necessity to pass on the issue of the validity of the search warrant as relating to probable cause or the property description. The pictures taken of the growing marihuana plants were, accordingly, properly admitted into evidence. Therefore, these grounds of error are overruled.

Appellant next urges that the trial court erred in admitting evidence secured from appellant’s barn, mobile home and general premises that constituted mere evidence of the crime. Appellant also asserts that there was no probable cause to search the mobile home, the barn and the shed, all located on the land in question. Upon appellant’s guilty plea, the State had the burden of introducing sufficient evidence into the record showing appellant’s guilt. This is all that is required to enter a finding of guilty based on a guilty plea. Polk v. State, 547 S.W.2d 605 (Tex.Cr.App. 1977); Edwards v. State, 463 S.W.2d 733 (Tex.Cr.App.1971); James v. State, 643 S.W.2d 439 (Tex.App.—Tyler 1982, pet’n ref’d). In the instant case, the State put into evidence photographs of the marihuana found growing in the “open field.” The State also linked appellant to the growing of the marihuana. We find this to be sufficient to sustain appellant’s guilt based on his plea. Therefore, any error that may have occurred in admitting evidence seized from the mobile home, the barn or the shed was harmless. Ward v. State, 657 S.W.2d 133 (Tex.Cr.App.1983); Christian v. State, 592 S.W.2d 625 (Tex.Cr.App.1980). These grounds are overruled.

Appellant next urges that the police had no probable cause to arrest him and that any evidence obtained as a result of the arrest should have been excluded by the trial court. On orders of Sheriff Turpin, Deputy Tucker caused the initial detention of appellant which led to his arrest. Turpin testified to specific articulable facts which gave him adequate cause to have appellant detained. Upon being stopped, Tucker asked appellant if he lived around the area. Appellant replied that he did not live around there but that was his pasture, pointing to the land being searched. Appellant’s remark “but that is my pasture” was a non-responsive answer to the question asked by Tucker, negating the necessity of Miranda warnings. The incriminating portion of appellant’s response was a non-responsive res gestae statement at the time of the arrest and was therefore admissible. DeHart v. State, 468 S.W.2d 435 (Tex.Cr.App.1971). Any evidence seized from appellant’s person or truck was properly seized as a result of the search incident to arrest. Lara v. State, 469 S.W.2d 177 (Tex.Cr.App.1971). Therefore, these grounds of error are overruled.

Appellant next urges that the trial court erred in admitting into evidence the weight slip that reflected the amount of marihuana confiscated. He asserts that it was hearsay, and, thus, constituted “no evidence.” We disagree. Appellant made no objection at trial to the admission of the weight slip. Absent a hearsay objection made timely at trial, we hold that the exhibit was properly admitted and did constitute “some evidence.” Lalande v. State, 676 S.W.2d 115 (Tex.Cr.App.1984). This ground is overruled.

Appellant further urges that the trial court erred in admitting an exhibit that reflected the calculations made by the chemist relating to the amount of marihuana confiscated. No objection was levied at trial. Therefore, the evidence was properly admitted and constituted “some evidence.” Lalande, supra. This ground is overruled.

Appellant further urges that the trial court erred in convicting him because of insufficiency of the evidence to prove possession by appellant and the amount possessed. The appellant, in a res gestae, non-responsive statement said that the pasture being searched was his. He made further comments concerning “his” livestock on the land. The weight ticket reflecting the total amount of marihuana confiscated was admitted into evidence without objection. Also, the appellant pleaded guilty to the offense. Appellant argues that this is a circumstantial evidence case. For a conviction to withstand appellate review in a circumstantial evidence case, the standard is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. State, 672 S.W.2d 801 (Tex.Cr.App. 1984); Wilson v. State, 654 S.W.2d 465 (Tex.Cr.App.1983). Under this standard, we find the evidence to be sufficient to sustain the guilty verdict. These grounds of error are overruled.

All grounds of error have been considered and overruled. The judgment of the trial court is affirmed.

ON REHEARING

In his motion for rehearing, appellant notes that petition for review has been granted by the Court of Criminal Appeals in Hurwitz v. State, 673 S.W.2d 347 (Tex.App.—Austin 1984, pet’n granted) and, therefore, should not be cited by this Court in support of the application of the “open fields doctrine.” We disagree. The Court of Criminal Appeals granted limited review concerning grounds other than those for which this Court has cited the Hurwitz case.

Appellant also contends that Article 1, Section 9 of the Texas Constitution affords “open fields” a greater protection than the United States Constitution.

The Fourth Amendment to the United States Constitution states, in part, that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Article 1, section 9 of the Texas Constitution provides, in part, that “no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.”

We hold that the language in Article 1, Section 9 of the Texas Constitution is substantially similar to, and not more restrictive than, the language of the Fourth Amendment of the United States Constitution. Therefore, the Texas Constitution does not prohibit the application of the “open field doctrine” as described in Oliver v. United States, — U.S.-, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) and Goehring v. State, 627 S.W.2d 159 (Tex.Cr.App.1982).

The motion for rehearing is overruled.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: TIJERINA, Justice.

text:
    Jean ODOM, Appellant, v. Benny ODOM, Appellee.
    No. 04-83-00425-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 31, 1984.

      Gary A. Beahm, San Antonio, for appellant.
    Shirley Ehrlich, San Antonio, for appel-lee.
    Before ESQUIVEL, TIJERINA and DIAL, JJ.
   OPINION

TIJERINA, Justice.

This is an appeal from an order partitioning the military retirement benefits of ap-pellee Benny Odom. In 1967, appellant Jean Odom and appellee were granted a divorce; however, no written judgment was prepared. In 1978, appellant sought and obtained a judgment which purported to set aside the 1967 oral rendition. The 1978 judgment, which was taken in default, awarded appellant that portion of the retirement benefits to which she would be entitled had the marriage continued until 1978. In 1982, appellant brought suit to partition appellee’s retirement benefits pursuant to the 1978 judgment; appellee then filed a bill of review. The two causes of action were consolidated on the motion of the parties. After a trial before the court, judgment was entered partitioning appel-lee’s retirement benefits in accordance with the court’s findings that the parties were divorced in 1967 and that the 1978 judgment was void.

On appeal appellant complains that ap-pellee’s bill of review was improperly granted, that the court erred in not treating the 1967 rendition as an interlocutory proceeding, and that the court failed to rule on appellant’s allegation that appellee had violated his fiduciary duty.

In her first point of error, appellant asserts that the trial court erroneously granted appellee’s bill of review. It is true that appellee did not establish the elements for a bill of review; however, we believe it was not necessary. A judgment which discloses its invalidity on the face of the record is a nullity and may be disregarded. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 827 (1961); Ramsey v. Morris, 578 S.W.2d 809, 812 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ dism’d). The record here clearly reflects that a divorce was granted to the parties in 1967. A written judgment signed by the trial judge is not a prerequisite to finality; entry of the trial judgment is only a ministerial act. Dunn v. Dunn, 439 S.W.2d 830, 832-33 (Tex. 1969). Therefore, there was no marriage for the court to dissolve in 1978. The 1978 judgment is a nullity and was properly disregarded by the trial court. Point of error number one is overruled.

In her second point of error, appellant urges that the trial court erred in not treating the 1967 rendition as an interlocutory order because it failed to dispose of the property of the parties. An attempt by the trial court to sever for separate trial the property division from the divorce itself will make the decree interlocutory until the property is divided. Vautrain v. Vautrain, 646 S.W.2d 309, 315-16 (Tex.App.—Fort Worth 1983, writ dism’d); Underhill v. Underhill, 614 S.W.2d 178, 181 (Tex.Civ. App.—Houston [14th Dist.] 1981, writ ref'd n.r.e.). This is because the issue of divorce is not severable from the issue of property division; the property rights of the parties are part of the very divorce itself. Angerstein v. Angerstein, 389 S.W.2d 519, 520-21 (Tex.Civ.App.—Corpus Christi 1965, no writ). However, it is well settled in Texas that when a divorce decree merely fails to provide for division of the property, the former spouses become tenants in common with a right of partition. Busby v. Busby, 457 S.W.2d 551, 554 (Tex.1970); Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102, 104 (1943); Jacobs v. Cude, 641 S.W.2d 258, 259 (Tex.App.—Houston [14th Dist.] 1982, no writ); Stitcher v. Stitcher, 617 S.W.2d 285, 288 (Tex.Civ.App.—Tyler 1981, no writ). There is nothing in the record before us to indicate that division of the community property was severed from the divorce. Therefore, the 1967 rendition was not interlocutory; it divorced the parties and made them tenants in common of any community property. Thus, the trial court correctly used 1967 as the date of divorce in calculating the community interest in appellee’s retirement benefits. Appellant’s second point of error is overruled.

In her third point of error appellant complains that the trial court did not rule on her allegation that appellee violated his fiduciary relationship. Appellant failed to request findings of fact or conclusions of law. When no findings of fact and conclusions of law are filed, the trial court implies all necessary fact-findings in support of its judgment. Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 276 (Tex.1979); Buchanan v. Byrd, 519 S.W.2d 841, 842 (Tex.1975); Rosestone Properties, Inc. v. Schliemann, 662 S.W.2d 49, 51 (Tex.App.—San Antonio 1983, writ ref’d n.r.e.). Accordingly, appellant’s final point of error is overruled.

The judgment of the trial court is affirmed.


author: CANTU, Justice. CADENA, Chief Justice, DIAL, Justice,

text:
    Clinton MANGES, et al., Relator, v. The Honorable Ben MARTINEZ, Respondent.
    No. 04-84-00526-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 31, 1984.

      Robert L. Rothenberg, Maloney & Malo-ney, San Antonio, for relator.
    Norman J. Riedmueller, Houston, James S.Robertson, Jr., Dallas, Stanley J. Krist, Krist & Scott, Houston, Amado Abascal, III, Eagle Pass, for respondent.
    Before CADENA, C.J., and CANTU and DIAL, JJ.
   On Relator’s Petition for Writ of Mandamus

CANTU, Justice.

Clinton Manges, relator, seeks the issuance of a writ of mandamus to compel the Honorable Ben Martinez, 293rd Judicial District Court Judge of Maverick County, to comply with the provisions of TEX.R. CIV.P. 18a(d) requiring that he forward to the presiding judge of the administrative district an order of referral, the motion, and all opposing and concurring statements. On the day trial on the merits was to start, in Cause No. 7566 styled Osborne Oil Company, Aztec Petroleum Corp., AIO Joint Venture, Aztec 80-A, Ltd., and Aztec-Chittim Joint Venture, Plaintiffs v. Man-Gas Transmission Company, Clinton Manges, and Clinton Manges Oil & Refining Co., Defendants, then pending before the court, relator filed a motion entitled “Motion to Disqualify Alternatively to Recuse the Honorable Ben Martinez.” In the motion, relator requested that Judge Martinez “voluntarily” recuse himself due to his pecuniary relationship with one of the attorneys for the plaintiff. Relator urged TEX.R.CIV.P. 18a and TEXAS SUPREME COURT, CODE OF JUDICIAL CONDUCT, Canon 2 (1974) and Canon 3 (1976) as support for his request. We hold relator failed to invoke the provisions of TEX.R.CIV.P. 18a and, therefore, we deny the petition for writ of mandamus.

The sole basis for mandatory disqualification of a trial judge is found in TEX.CONST. art. V, § 11. River Road Neighborhood Association v. South Texas Sports, Inc., 673 S.W.2d 952, 953 (Tex.App.—San Antonio 1984, no writ). The constitutional grounds for disqualification are that the trial judge has an interest in the case; the trial judge is connected to either of the parties in the case by affinity or consanguinity, as proscribed by law; or the trial judge was counsel in the case. TEX. CONST, art. V, § 11. Relator states none of these constitutional grounds in his motion. He alleges that a prior personal and financial relationship existed between the trial judge and the attorney for plaintiff and that they held a common financial interest, including mutual political fundrais-ing and “other common pecuniary interests.” For purposes of mandatory disqualification under the Constitution, “interest” has been defined as a direct pecuniary or personal interest in the outcome of the case before the judge. Cameron v. Greenhill, 582 S.W.2d 775, 776 (Tex.1979); River Road Neighborhood Association v. South Texas Sports, Inc., supra. Relator, having failed to allege constitutional grounds for recusal or disqualification has failed to invoke the provisions of rule 18a requiring a hearing before the presiding judge of the administrative judicial district.

Relator filed with this court, during presentation of oral argument, a supplemental application for writ of mandamus with an amended motion to disqualify or recuse Judge Martinez in which an attempt is made to correct the infirmities described above. The motion includes the affidavit of relator Clinton Manges. Neither the motion nor the affidavit were on file in the trial court at the time Judge Martinez denied the original motion and are therefore not properly before this court for review. Sabine Offshore Service, Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979).

Further, relator’s motion does not speak in terms of legal or constitutional disqualification (i.e. mandatory disqualification) but requests only a voluntary disqualification. TEX.R.CIV.P. 18a(c) provides that on receiving a motion for disqualification or recusal, the trial judge:

... shall either recuse himself or request the presiding judge of the administrative judicial district to assign a judge to hear such motion.

This is a mandatory provision. McLeod v. Harris, 582 S.W.2d 772, 775 (Tex.1979). However, mandatory grounds for disqualification must first be urged. Rule 18a(c) is not invoked unless and until the movant demands mandatory disqualification supported by appropriate grounds. Relator merely requested by way of intimidation a “voluntary” recusal by Judge Martinez upon pain of embarrassment and, therefore, failed to set Rule 18a(c) in motion.

The petition for writ of mandamus is denied.

CADENA, Chief Justice,

concurring.

I agree that the application for writ of mandamus should be denied.

Since relator’s motion states no grounds for mandatory disqualification, referral to the administrative judge for assignment to another judge would be useless. Absent allegations setting out constitutional grounds for disqualification, no judge could enter an order prohibiting the challenged from hearing the case.

DIAL, Justice,

concurring.

As Rule 18a is presently written it does not require that constitutional grounds be set out in the motion. I would urge the Supreme Court to change the rule so that it would so read with the additional proviso that the motion need not be referred to the administrative judge unless constitutional grounds are alleged. This would avoid the useless function of referring a motion that was without merit ab initio.

I would deny the petition for failure to comply with the ten day requirement of Rule 18a(a). There is no provision in this rule similar to that in TEX.R.CIV.P. 18b(a) allowing for late filing for good cause shown. Admittedly the motion was filed on the day of trial.

There needs to be a safeguard so that this rule would not be abused as an alternative to a motion for continuance. I would further encourage the Supreme Court to add by amendment permission for late filing for good cause shown. This should be coupled with proviso that good cause would be determined by the judge to whom the motion was referred. The succeeding judge should have authority to rule on the motion instanter based on opposing and concurring statements without further notice to the parties. This would protect the non-moving party’s right to a speedy trial.

      . Mandamus is sought pursuant to our authority under TEX.REV.CIV.STAT.ANN. art. 1824 (Vernon Supp.1984).

      . We do not decide whether the ten-day rule of TEX.R.CIV.P. 18a(a) disposes of this case.

      . Relator has failed to include evidence that his motion for recusal was presented to the trial court. He has tendered a copy of the motion which contains no signature of the judge denying it, no file mark from the district clerk, and no certification by the district clerk. However, both parties admit the motion was presented to the trial court and that the court overruled it.

      . Relator states in his motion:
      Because of the prior relationship of the Honorable Ben Martinez and [attorney for the plaintiff], and because of their common financial interest, including fund-raising for each other’s political campaigns and other common pecuniary interests, Judge Martinez should voluntarily recuse himself in the instant case.
      Relator also alleges that the public confidence in the integrity and impartiality of the judiciary "might reasonably be shaken." Attorney for relator reiterated her concern to this court that relator reiterated his concern to this court that Martinez and, therefore, did not set out at length his reasons for requesting disqualification.


author: HALL, Justice.

text:
    TEXAS A & M UNIVERSITY SYSTEM, Appellant, v. UNIVERSITY BOOK STORE, INC., et al., Appellees.
    No. 10-84-088-CV.
    Court of Appeals of Texas, Waco.
    Dec. 31, 1984.
    Rehearing Denied Jan. 24, 1985.

      Roger C. Clapp, Richards, Harris & Med-lock, Dallas, Genevieve Graffeo Stubbs, College Station, Charles Black, Austin, for appellant.
    Quinnan H. Hodges, Houston, for appel-lees.
   HALL, Justice.

Texas A & M University is an institution of higher education under the management and control of the Board of Regents of appellant The Texas A & M University System. V.T.C.A., Education Code § 86.02 and § 85.11. Appellant brought this appeal from an order of the trial court cancel-ling certificates of registration of five service marks issued by the Secretary of State to Texas A & M University. We reverse the judgment ordering cancellation, and we order the suit dismissed under the doctrine of sovereign immunity.

“Service mark” is defined in V.T.C.A., Bus. & C. § 16.01(a)(4) to mean “a word, name, symbol, device, slogan or any combination thereof which, whether registered or not, has been adopted and used by a person to identify his services and distinguish them from the services of others, and includes the titles, designations, character names, and distinctive features of broadcast or other advertising.” Section 16.02(b) of the Code provides that “A mark is considered to be used in this state in connection with services when (1) it is used or displayed in this state in connection with selling or advertising the services; and (2) the services are rendered in this State.” Section 16.08(a) provides that such mark in actual use in connection with the applicant’s services, which distinguishes his services from those of others, is registrable with the Secretary of State unless it falls within certain exceptions designated in the statute.

In 1980, with approval of appellant’s Board of Regents, Texas A & M University determined to register with the Secretary of State as the University’s service marks certain “emblems,” “symbols,” “designs,” and “logos,” as they are variously denominated by the parties throughout the trial, and then, after registration, to enter into a licensing program with manufacturers of consumer goods who place the marks on their products. The licensing agreements would require payment of royalties by the manufacturers to the University for use of the marks. Royalty revenues would be used as financial support for student affairs and activities not funded by the State.

In May and June, 1981, the University applied for and was granted certificates of registration by the Secretary of State of the following seven service marks being used by the University, as set forth in its application, in connection with its services as an “Institution of Higher Education”:

Registration No. 38633 for “TEXAS AGGIES.”
Registration No. 38634 for a large “T” with an “A” to the left and an “M” to the right (“aTm”).
Registration No. 38635 for the four letters “TAMU” in sequence above the words “Texas A & M University.”
Registration No. 38636 for the seal of Texas A & M University, a circle including the name Texas A & M University and the year 1876 with the letter T superimposed by a five pointed star surrounded by a wreath.
Registration No. 38720 for the words “Gig ‘Em Aggies” imposed upon a hand with closed fingers and an upturned thumb.
Registration No. 38721 for the Texas A & M University “ring crest,” an oval with the words “Texas A & M University, 1876” around the edge with a spread eagle and shield at the center, used with or without class year or aTm symbol below the shield.
Registration No. 38722, for design only, for the drawing of a tough looking army sergeant in campaign hat referred to as “Old Sarge.”

The University applied for and received registration of these service marks under the Secretary of State’s services class 41, “Education and Entertainment,” authorized under Code § 16.09(c)(8).

Immediately after registration, the University began its licensing program with manufacturers, exacting royalties for use of the marks. The products upon which the manufacturers place the marks are infinite in variety and include clothing, caps, tote bags, stationery, bric-a-brac, personal care items, etc.

Appellees are University Book Store, Inc., Loupot’s Book Store, Texas Aggie Book Store, Rothers Book Store, and M & M Designs, Inc. With the exception of M & M Designs, appellees operate retail book stores near the University’s campus in College Station. A great amount of the store sales of these parties involve products bearing the marks in question. M & M Designs, located in the City of Huntsville, is a manufacturer of decals and transfers and ceramic products bearing the marks.

Code § 16.16(a)(4)(B) provides that the Secretary of State shall cancel “a registration concerning which a district or appellate court has rendered a final judgment, which has become unappealable, cancelling the registration or finding that the registrant ... is not the owner of the mark.” Appel-lees filed this suit in August, 1981, seeking a declaration or finding by the trial court that appellant is not the owner of the service marks in questions (erroneously denominated “trademarks” in appellees’ petition), an order cancelling the registrations, and an injunction permanently enjoining the University from licensing and collecting royalties for the use of the marks. Appel-lees expressly pleaded that they were not seeking money damages.

Appellant’s answer included a motion to dismiss under the doctrine of sovereign immunity on the ground that appellant is an agent of the State and that this suit was brought by appellees without legislative consent or statutory authorization.

The case was tried to the court without a jury in October, 1983. At trial, appellees abandoned their suit for cancellation of the registration of the service marks involving the University seal and the design of the ring crest, but they continued in their petition for cancellation of the registrations involving the other marks. On March 7, 1984, judgment was signed by the trial court cancelling Registration Nos. 38720 (“Gig ‘Em Aggies”), 38722 (“Old Sarge”), 38633 (“TEXAS AGGIES”), 38634 (“aTm”) and 38635 (“TAMU”). This judgment was based upon the trial court’s finding that appellant “is not the owner of the described marks” because it has not used the marks, and the conclusion that “the certificates of registration should be cancelled pursuant to Art. 16.16(a)(4)(B), Tex.Bus. & C.Code.” No injunctive relief was granted.

Appellant predicates this appeal on two grounds of error asserting (1) the trial court erred in failing to dismiss this suit on appellant’s plea of sovereign immunity, and (2) the trial court’s finding that appellant does not own the service marks because of lack of use is not supported by any evidence.

Although this suit was filed against appellant, it is a suit against the State of Texas, since appellant is an agent of the State. Walsh v. University of Texas, 169 S.W.2d 993 (Tex.Civ.App.—El Paso 1942, writ ref’d). Under the rule of sovereign immunity, a suit brought to control State actions or to subject the State to liability is not maintainable without legislative consent or statutory authorization. Director, Etc. v. Printing Industries Ass’n, 600 S.W.2d 264, 265 (Tex.1980). This suit was filed by appellees without such legislative consent or statutory authorization to sue the State. Prior to the trial on the merits appellant moved for dismissal on the ground of sovereign immunity, citing appel-lees’ lack of consent from the State to bring the suit. This motion was denied by the trial court by written order signed October 9, 1982. Appellant re-urged this motion at the beginning of the trial and it was again denied by the court, orally. Although this interlocutory ruling was not expressly carried forward into the final judgment, we presume for purposes of this appeal that the trial court intended to, and did, rule on this issue against appellant in the final judgment. North East Independent School District v. Aldridge, 400 S.W.2d 893, 897-98 (Tex.1966).

It is also the rule that an entity or person whose rights have been violated by the unlawful action of a state official, may bring suit to remedy the violation or prevent its occurrence, and such suit is not a suit against the State requiring legislative or statutory authorization. Director, Etc. v. Printing Industries Ass’n, supra. Section 16.25(a) of the Code provides that a person who believes that he is or will be damaged by a registration under this chapter may sue to cancel the registration in a district court having venue. Appellees alleged in their petition that they had been and will be damaged by the University’s registration of the marks in question and the resulting licensing program, and the trial court found this fact in appellees’ favor. Since this finding has not been challenged by appellant as being without support in the evidence, we must presume it is correct. Crain v. Hill County, 613 S.W.2d 367, 369 (Tex.Civ.App.—Waco 1981, writ ref’d n.r.e.). Arguing against appellant’s claim of sovereign immunity, appellees assert that the University’s registrations of the marks in question as its service marks are unlawful acts because the University is not the owner of the marks; and that rather than a suit seeking to control State actions, “this is a suit to remedy an invalid wrong against appellees and other citizens whose rights have been violated by unlawful or invalid actions of business persons employed by Texas A & M University,” not requiring legislative or statutory authorization. We disagree with appellees’ contentions that the University is not the owner of the service marks and that the registrations are unlawful or invalid acts.

The basic facts in the record are not disputed. Appellant obtained admissions of facts from appellees pursuant to Rule 169, Vernon’s Tex.R.Civ.Proc., that: the University has used the marks which are the subject matter of this action in connection with higher educational services; that the University has the exclusive right to offer higher educational services using the marks which are the subject of this action; that the public associates the marks which are the subject of this action with the University; that consumers purchase goods bearing the marks which are the subject of this action in order to identify with the University; and that the University, “after adopting the service marks which are the subject of this action,” has never ceased use of the marks for any period of time. These admissions were buttressed by testimony at trial from appellees’ representatives to the effect that the University has used the marks; that the public associates the marks with the University; and that without this identification with the University the marks would have no value. Moreover, the certificates of registrations, the University’s applications for the registrations with attached exhibits showing the University’s use of the marks, all in evidence without objection, show use of the marks by the University for many years prior to the registrations on athletic uniforms, the football stadium, yell books, information brochures, University bulletins, magazines, stationery, and other campus literature. These exhibits show that the University’s use of the mark “TEXAS AG-GIES” began in 1920; that the use of the mark “Gig ‘Em Aggies” began in 1931; that the use of the mark “Old Sarge” began in 1939; and that the use of the marks “aTm” and “TAMU” began in 1965. The evidence shows that during this same time of use by the University, others, including manufacturers and retailers like appellees as well as individual students and graduates and their relatives and other friends of the University, have used these marks on various goods and products without objection from the University or appellant. Ap-pellees argue that this coincident use of the marks by the University and the public broadly without objection from the University denies the University and appellant any claim of ownership of the marks. However, there is no evidence rebutting the University’s use of the marks in connection with its higher educational services, and there is no evidence that any other person or entity has used the marks in connection with higher educational services.

Section 16.15(c) of the Code provides that a certificate of registration issued by the Secretary of State “is admissible in evidence as prima facie proof of (1) the validity of the registration; (2) the registrant’s ownership of the mark; and (3) the registrant’s exclusive right to use the mark in commerce in this State in connection with the goods or services specified in the certificate, subject to any conditions and limitations stated in the certificate.” Under the provisions of this statute the service mark registrations in evidence in our case carried rebuttable presumptions of the validity of the registrations, of the University’s ownership of the service marks, and of the University’s exclusive right to use the mark in connection with higher education services. There is no rebutting evidence in the record. But even if this statutory presumption is disregarded, the evidence conclusively established these facts in the University’s favor notwithstanding it was ap-pellees’ burden in order to succeed to adduce proof disputing the University’s ownership and right of use of the service marks.

Appellees also rely upon § 16.08(a)(5)(A) of the Code which provides that a mark otherwise entitled to registration is not registrable if it is “merely descriptive” of the applicant’s services. We hold the marks in question are not descriptive of appellant’s higher educational services. On their faces, they are not. Rather than describing the University’s services, the marks in question identify and distinguish the source of those services. See Application of Marriott Corp., 517 F.2d 1364 (Cust. & Pat.App.1975); Application of Quik-Print Copy Shops, Inc., 616 F.2d 523 (Cust. & Pat.App.1980).

The University’s licensing program is administered by its Director of Business Services, a department responsible for the noneducational “auxiliary” services at the University. The University had licensed 253 manufacturers at the time of trial. It does not license retailers, and it does not license manufacturers of educational materials. The licensing agreement used by the University refers to the marks as “trademarks and trade names.” It purports to grant a nonexclusive license to the licensee to use the mark or marks licensed. The University represents in the agreement “that it is the owner of the trademarks and trade names and has the legal right to grant licenses therefor.” The license is granted upon the payment of a royalty fee by the manufacturer to the University, normally 6% of the total net selling price of the products manufactured. The agreement reserves to the University the full ownership of the marks; the right of access to the licensee's books to verify sales and royalty computations; and the right to maintain “such reasonable quality, servicing, and manufacturing standards as may be prescribed by licensor.” The University has not sought to license any appellee, and it has not threatened an appellee with any form of action in connection with its service marks or the licensing program. However, the University will not handle in its campus bookstore any merchandise bearing the marks that do not come from a licensed manufacturer.

Findings of fact and conclusions of law filed by appellees with the trial court to support the court’s final judgment, which were adopted by the court, evidence that appellees abandoned their action for injunc-tive relief and sought the only relief granted them by the court, cancellation of the service mark registrations. In any event, independent issues of the validity of the licensing agreements and whether their use by the University should be enjoined are not before us, since appellees assert no complaint on appeal concerning the trial court’s apparent denial of their plea for injunction.

We agree with appellant and hold that there is no evidence supporting the trial court’s finding that the University is not the owner of the registered service marks because it has not used the marks. Ordinarily, this ruling would require that we sustain appellant’s second point of error and reverse the judgment and render judgment that appellees take nothing. However, it is our view and holding that appel-lees’ suit to cancel the registrations is an attempt to control valid and proper state action that is not maintainable without the State’s consent. Accordingly, we sustain appellant’s first point of error and order the suit dismissed.

The judgment is reversed. This case is remanded to the trial court with instructions to dismiss the suit for want of jurisdiction.

      . All further Code references are to V.T.C.A., Bus &C.