author: ELLIS, Justice.

text:
    E.M. KELLEY, et al., Appellants, v. ATLANTIC GULF STEVEDORES, INC., et al., Appellees.
    No. C14-83-576-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 8, 1984.
    Richard L. Reedy, Kain & Reedy, Gray H. Miller, Fulbright & Jaworski, Houston, for appellants.
    Henry P. Giessel, Alice Giessel, Talbert, Giessel, Stone, Barker & Lyman, Houston, for appellees.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

This is a damages suit. Appellant, E.M. Kelley, appeals from a judgment in his favor for $10,000 arising out of an automobile accident, in which appellant sued for personal injuries. After a jury trial, the judge entered a judgment for Texas Employers’ Insurance Association, the interve-nor, for that amount. We reverse and remand for a new trial.

Appellant raises nine points of error on appeal. In points of error one, two, and three appellant alleges that the court erred in refusing to grant him a new trial based upon the jury’s answers “none” to the issue of past physical and mental anguish, lost earnings in the past, and medical expenses in the past because the jury’s answers are contrary to the undisputed evidence of all three items. In appellant’s last six points of error, appellant argues that the court erred in refusing to grant appellant a new trial based upon the jury’s answers of “none” to the issue of lost past earnings, past physical pain and mental anguish, future physical pain and mental anguish, past medical expenses, past physical impairment, and future physical impairment because those answers are against the great weight and preponderance of the evidence as to be manifestly unjust.

On July 28, 1978, appellant was driving his pick-up truck on the lower port road at the Port of Houston when his truck collided with a vehicle driven by Louid Culbertson, a defendant at trial and an employee of appellee, Atlantic Gulf Stevedores, Inc. Culbertson hit appellant’s vehicle on the driver’s side. On impact, appellant struck his head on the driver’s door, and then against the sun visor and windshield. His stomach was thrown against the steering wheel. Although he was stunned and had a headache, appellant returned to work. Appellant began to feel worse after a short time and his supervisor allowed him to go home. Appellant did not return to work that day. Instead, he went to a medical clinic where he was seen by Dr. William Giessel.

At trial Dr. Giessel testified that in 1972 he referred appellant to Dr. Frank Barnes for back surgery. Between 1972 and 1978, appellant did not return to Dr. Giessel’s concerning his back. Dr. Giessel testified that he examined appellant on the day of the accident. Appellant complained to the doctor of tenderness and soreness involving the lumbar spine, left knee, left ribs, and skull. He also complained of a headache and pain in his neck. In his examination of appellant, Dr. Giessel found soreness in the lower part of his back, difficulty in bending, pain over his left ribs, and a sore head. The doctor prescribed physical therapy and pain medication. The doctor’s diagnosis was that “he was bruised all over.” He estimated healing time to be between four and six weeks. Though he remained under the care of Dr. Giessel, appellant’s condition worsened.

Appellant returned to Dr. Barnes, the doctor who operated on his back in 1972. Dr. Barnes testified that his initial diagnosis was neck and back strain. Under Dr. Barnes’ care, appellant’s condition still deteriorated. In early 1979 Dr. Barnes admitted appellant to the hospital in order to perform a myelogram. Based on the results of the myelogram and a physical examination, Dr. Barnes operated on appellant’s back. The doctor testified that he believed appellant’s accident caused a re-herniation of the previously injured disc, a rupture of another disc, and a breakdown of his spinal fusion, which was done in his 1972 back surgery. Appellant returned to work eighteen months after the second surgery, but he testified that he was not able to perform all of his duties. In September, 1981, Dr. Barnes hospitalized appellant again to do another myelogram and additional back surgery. After the third operation appellant was not able to return to work.

Dr. Thomas Only of the Milby Clinic testified. He confirmed appellant’s complaint of pain in the lower back and headaches. Only’s examination of appellant revealed no serious orthopedic problem. However, he testified that he could not disagree with Dr. Barnes’ opinion since Barnes was the operating surgeon.

At trial appellee called an orthopedic surgeon, Richard DeYoung, who had examined appellant on one occasion after the 1979 surgery but before the 1981 surgery. Dr. DeYoung disagreed with Dr. Barnes concerning a fracture to the fusion but did agree with Dr. Barnes’ conclusion that appellant herniated one disc and reherniated another disc as a result of the accident.

Appellant testified that since 1973 he has been a walking foreman with the Port of Houston Terminal, Inc. As a walking foreman, his duties included checking to see if all the needed forklifts and other gear are present and assigning jobs to the men under him. His job required him to bend, stoop, and climb.

Appellant stated that he spent three weeks in the hospital for back surgery in early 1979. He said he spent a year and a half at home on “quite a bit” of pain medication. He then went back to work for four or five months, he testified, but was not able to work the hours he once worked. Appellant said due to his deteriorating condition, he was hospitalized in September, 1981, for two to three weeks. The 1981 surgery, appellant stated, did not help his problems except for a short time. He testified that he has not been able to return to work since September, 1981. At the time of trial, appellant saw the doctor at least monthly and underwent occasional physical therapy. He testified that he does not do “much of anything” since he returned home from the 1981 operation. He said that a trip in his truck of approximately 150 miles is hard on him and that he can no longer do things around the house. His reason for not returning to work was the pain he suffers in just moving around the house. He said he can no longer ride horses and take trail rides, a hobby of his for many years. Appellant testified that he was hospitalized for therapy in October, 1982, because he was not able to straighten up from a stooping position and that in December, 1982, he was put in a pain clinic for nine days. His approximation of his past medical expenses was $30,000 to $40,-000.

When appellant took the witness stand for the second time he testified about his wages. According to his testimony, his earnings were as follows:

1976 $18,957.61
1977 $13,222.81
1978 $14,672
1979 $ 4,172
1980 $14,169
1981 $16,537
1982 $ 2,746.80

He also testified again to the discomfort he suffers as he is walking, a sensation he said he never experienced before the 1978 accident.

Three friends of appellant testified. Charles Coburn, who knew appellant for 20 years through work on the docks, testified that after the 1972 surgery appellant had no problems. Coburn testified that appellant was able to bend, stoop, and lift. He could not testify as to appellant’s condition after 1977 because he obtained another job and was not around appellant anymore. Robert Blanton, a friend of appellant’s for 22 years also through his work as a longshoreman, stated that after the accident appellant would work probably an hour or so since he could not stand for any length of time. Blanton also said that appellant had no problems prior to the accident. James Wilkins, a friend of 20 years and a neighbor for 15 years, testified that before 1978 appellant’s ability to get around and do things was “as good as mine or yours.” He said appellant now can only stand 45 minutes at a time.

Appellant’s wife also testified. She stated that appellant cannot do things around the house. She said after 1978 appellant worked on and off and since September, 1981, he has not worked at all.

To establish the amount of lost wages appellant took the deposition of Randolph Thomson, a business agent of ILA Local 1330, appellant’s local union. Thomson testified that appellant worked 24 years on the docks, but had not worked since September, 1981. He said appellant’s job involved much walking and frequent climbing, bending, stooping, and lifting. Thomson testified that if appellant worked at the time of the deposition he would make $15.75 per hour with a 9¾⅛ hour day.

The jury found appellee Louid Culbertson negligent with respect to lookout. Appellant was found to be negligent in his application of brakes. The jury determined that both appellee Culbertson and appellant Kelley were each 50% negligent.

Special Issue No. 8 read:

Find from a preponderance of the evidence what sum of money, if any, if paid now in cash, would fairly and reasonably compensate E.M. Kelley for his injuries, if any, resulting from the occurrence in question.
You are to consider each element of damage separately, so as not to include damages for one element of any other element. Do not include any amount for any condition existing before the occurrence in question, except to the extent, if any, that you find from a preponderance of the evidence that such other condition, if any, was aggravated by the injuries, if any, which resulted from the occurrence in question.
Answer separately in dollars and cents, if any, with respect to each of the following elements...

The following damages were found by the jury:

a. Loss of earnings in the past. Answer: None
b. Loss of earning capacity, in reasonable probability, he will sustain in the future.
Answer: $20,000
c. Physical pain and mental anguish in the past.
Answer: None
d. Physical pain and mental anguish that, in reasonable probability, he will suffer in the future.
Answer: None
e. Physical impairment in the past. Answer: None
f. Physical impairment that, in reasonable probability, he will suffer in the future.
Answer: None
g. Medical expenses in the past. Answer: None
h. Medical expenses that, in reasonable probability, he will incur in the future. Answer: None

We will deal with all nine points of error at once. The problem before this court is not inadequate damages. Rather, the problem revolves around the fact that the jury awarded damages for loss of future earnings and no damages for any other category of damages submitted to the jury in the court’s charge.

“A court is under the duty to reconcile conflicting jury findings if at all possible.” Signal Oil & Gas Co. v. Universal Oil Products, 572 S.W.2d 320 (Tex.1978). We find in this case that it is not possible to reconcile the jury findings.

Many other courts of appeals have been faced with the same awkward jury answers and have reversed and remanded the cases. In Morgan v. Mustard, 480 S.W.2d 416 (Tex.Civ.App. —El Paso 1972, no writ), the plaintiff was given no award for physical pain and mental anguish, even though a doctor testified that she suffered spinal injuries, that he prescribed medication and a neck collar, and that muscle spasms were evident. The jury awarded the plaintiff medical expenses. The court found the award of medical expenses and denial of compensation for physical pain and mental anguish was against the great weight and preponderance of the evidence as to be manifestly unjust. In the case at bar, we have uneontradicted testimony as to appellant’s disc injuries, as well as to a prescription for pain medication and physical therapy. In Blair v. Buksnys, 521 S.W.2d 652 (Tex.Civ.App.—San Antonio 1975, no writ), the plaintiff had had a prior back operation. Medical evidence showed that the accident resulted in a soft tissue injury, causing a reoccurrence of his back pain. The court found that the jury believed that the plaintiff would have future medical problems as a proximate result of a 1972 accident. The court reversed the trial court’s judgment since it concluded that in the situation where medical expenses had been awarded, the jury’s failure to award damages for physical pain and mental suffering is so against the great weight and preponderance of the evidence as to be manifestly unjust.

In our case the jury by their answer to Special Issue No. 8(B) found that there would be lost future wages, in the amount of $20,000, due to injuries resulting from the automobile accident. By answering this special issue in this way, the jury has stated that there was some injury as a result of the accident.

The jury found that appellant suffered injury as a result of the accident since they found that appellant suffered a loss of future wages. Therefore, we find that it is against the great weight and preponderance of the evidence presented in this case to answer “none” to the issue concerning lost past wages. We further find the jury’s answer awarding $20,000 for lost future wages to be in conflict with the answer “none” to lost past wages. It is indeed strange that a jury could find lost wages resulting from injuries caused by the accident from trial time into the future but not from the time of the accident to the time of trial. We also find it is against the great weight and preponderance of the evidence that the jury did not award any damages for pain and suffering and medical expenses in the face of undisputed testimony. We have no choice but to reverse and remand for a new trial.


source: Caselaw Access Project

author: JUNELL, Justice.

license: Public Domain

text:
    Louis JASSO, Individually, and d/b/a Jasso Auto Sales, Appellant, v. Juan DURON, Appellee.
    No. C14-83-597-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 8, 1984.

      Paul R. Lawrence, Houston, for appellant.
    Paul F. Ferguson, Jr., Perdue, Turner & Berry, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

JUNELL, Justice.

This is a Deceptive Trade Practices Act case involving the purchase of a used truck by Juan Duron (plaintiff/appellee) from Louis Jasso, individually and d/b/a Jasso Auto Sales (defendant/appellant). Trial was to the court. Judgment was for the plaintiff.

In four points of error appellant contends the trial court erred (1) in awarding damages under the DTPA for mental anguish, humiliation, embarrassment and imprisonment; (2) in finding that the truck was a stolen vehicle at the time of sale to Duron, there being no evidence to support this finding; (3) in awarding Duron four times the amount of actual damages in excess of $1,000, although plaintiffs petition only sought three times said amount; and (4) in awarding Duron any more than the actual damages in excess of $1,000, plaintiff having failed to plead that defendant’s conduct was committed knowingly under Section 17.50(b)(1) of the DTPA. We modify the amount of the judgment and, as modified, we affirm.

In his first point of error appellant contends the trial court erred in awarding damages for mental anguish, humiliation, embarrassment, and imprisonment. All of these are elements of mental anguish. Damages may be awarded for mental anguish in a DTPA case when there is evidence and a fact finding that the conduct of the defendant was committed knowingly. Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115 (Tex.1984). There was such evidence and fact finding in this case. Appellant’s first point of error is overruled.

■ In the second point appellant contends the trial court erred in finding the vehicle appellant sold to appellee was stolen at the time of the sale because there was no evidence to support this finding. Appellee filed a request for admissions under TEX. R.CIV.P. 169, including the following:

5. That the vehicle sold to the plaintiff was a stolen vehicle;
7. That the defendant, either individually or by and through his agents, servants or representatives, did not tell the plaintiff that the vehicle was stolen;
8. That, at the time the vehicle was sold to the plaintiff, the defendant knew the vehicle in question was a stolen one.

Appellant never answered the Request for Admissions. The trial court properly deemed admitted each of the matters of which an admission was requested. This is some evidence to support the fact finding complained of in the second point of error; therefore, it is overruled.

Appellant’s third point of error is that the trial court erred in calculating the amount of the judgment in that such calculation was not pled by appellee. Under this point the substance of appellant’s contention is that the trial court awarded actual damages in excess of $1,000 plus three times such actual damages, but in his petition appellee only sued for a total of three times such actual damages. In paragraph Y of his first amended original petition appellee alleged he was seeking to recover his actual damages, enumerating certain specific items of damages. Then in paragraph VI appellee alleged that under Section 17.50 of the Consumer Protection Act (DTPA) he was entitled as a matter of law to obtain from defendant three times the amount of his actual damages described in paragraph V. Then in the prayer of said petition appellee prayed that he have judgment “for the full amount of his damages .... ” By this pleading appellee did not expressly seek to recover four times the actual damages in excess of $1,000. However, the pleading was sufficient to support a judgment for the full amount of damages recoverable under the DTPA; therefore, we will decide whether Section 17.50(b)(1) authorizes an award of a total amount of four times the actual damages in excess of $1,000. Section 17.50(b)(1) provides as follows:

(b) In a suit filed under this section, each consumer who prevails may obtain:
(1) the amount of actual damages found by the trier of fact. In addition the court shall award two times that portion of the actual damages that does not exceed $1,000. If the trier of fact finds that the conduct of the defendant was committed knowingly, the trier of fact may award not more than three times the amount of actual damages in excess of $1,000; ... [Emphasis added]

It seems significant to us that the second sentence of the above statute begins with the words “in addition” but the last sentence does not. If the legislature had intended the last sentence to authorize three times the actual damages in excess of $1,000 in addition to such actual damages, the last sentence would have begun with the words “in addition” just as the second sentence did. Also the use of the words “may award not more than three times” in the last sentence seems to us to completely negate any intention to authorize an award of four times the amount of such excess actual damages under any circumstances.

In our opinion there is no ambiguity or uncertainty about the meaning of the statute. However, assuming there is some ambiguity or uncertainty, we have examined the legislative history of the 1979 amendments to the DTPA.

From the history of the DTPA and the many amendments thereof, we are convinced that the 1979 amendment, adding Subsection (b)(1) and eliminating the automatic trebling of all of the damages, was intended to relieve the harsh effects of automatic trebling of all damages in excess of the first $1,000, and not to increase the harshness of the statute by providing for quadrupling, rather than trebling, of such damages. We have studied records of committee hearings in both the Texas Senate and House of Representatives and floor debate in both houses of the legislature. This legislative history convinces us beyond any doubt that with respect to damages in excess of the first $1,000.00, the legislature did not intend by the above-quoted Section 17.50(b)(1) to provide for quadruple the amount of such damages.

We hold that under Section 17.-50(b)(1) the maximum amount that can be awarded is three times the actual damages in excess of $1,000.00, not four times such amount. The trial court erred in awarding four times such amount, and appellant’s third point of error is sustained. For a good discussion of this matter see the very well written article entitled “Of White Knights and Black Knights: An Analysis of the 1979 Amendments to the Deceptive Trade Practices Act,” appearing in 33 Southwestern Law Journal 941, at 982-986.

We recognize that our decision on this point is in conflict with a recent decision of the Corpus Christi Court of Appeals in Jim Walter Homes, Inc. v. Jose B. Valencia, 679 S.W.2d 29 (Tex.App.—Corpus Christi, 1984, writ granted). In that case the Corpus Christi Court of Appeals expressly held that under the 1979 amendment of Section 17.50(b)(1) a total of four times the actual damages in excess of $1,000 may be awarded by the trier of fact if there is a fact finding that the conduct of the defendant was committed knowingly. In its opinion that court made the following statement:

While this question may appear to be one of first impression, we think it is one that is best resolved in light of the plain meaning of the statute and the apparent legislative intent in amending § 17.-50(b)(1).

We agree with that statement but respectfully disagree with that court’s conclusion concerning the plain meaning of the statute and the apparent legislative intent in amending § 17.50(b)(1). In our opinion the statute plainly means that four times the amount of actual damages in excess of $1,000 may not be awarded, and that the total amount of the award shall not exceed three times such amount. Furthermore, we have studied transcripts and/or tapes of committee hearings, as well as of floor debates, in both the Texas Senate and House of Representatives; and there is not one word in any of this legislative history indicating any legislative intent to provide for quadruple damages. In fact, it is clear to us from this legislative history that such was not the legislative intent.

In the fourth point of error appellant contends the trial court erred in trebling the actual damages in excess of $1,000 because appellee did not plead that appellant’s conduct was committed knowingly. Appellee’s petition did not allege specifically that appellant’s conduct was committed knowingly, but it did allege specifically that pursuant to Section 17.50 of the DTPA he was entitled to three times his actual damages. We hold that this pleading, absent a special exception, was sufficient; and we overrule point of error number four.

The trial court found actual damages of $7,330.00. The court rendered judgment for $28,320.00, composed of the following:

(1) The first $1,000.00 of actual damages plus two times the first $1,000.00 of actual damages $ 3,000.00
(2) $6,330.00 of actual damages plus three times such actual damages in excess of the 1st $1,000 25,320.00
Total Damages $28,320.00
(3) Atty’s Pees through trial court 4,500.00
Total Award through trial court $32,820.00

We modify the judgment of the trial court by reducing the amount awarded under item (2) above to $18,990, thus limiting the amount to “not more than three times the amount of actual damages in excess of $1,000.00,” as mandated by Section 17.-50(b)(1). The trial court judgment also provided that appellee Duron should recover additional attorney’s fees of $3,750 if the case was appealed to the court of appeals and an additional attorney’s fee of $2,250 if the case is appealed from the court of appeals to the supreme court. We affirm the trial court’s judgment with respect to additional attorney’s fees. This results in a judgment in this court in favor of appellee Duron in the total amount of $30,240.00.

The judgment of the trial court is modified as detailed above and, as modified, is affirmed.


author: BRADY, Justice.

text:
    Ralph MUTCHLER, et al., Appellants, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, et al., Appellees.
    No. 14154.
    Court of Appeals of Texas, Austin.
    Nov. 14, 1984.
    Rehearing Denied Dec. 12, 1984.

      Bob Gorsky, Robert T. Baskett, Burle-son, Pate & Gibson, Dallas, for appellants.
    Jim Mattox, Atty. Gen., Philip Durst, Asst. Atty. Gen., Austin, for appellees.
    Before SHANNON, KEITH  and BRADY, JJ.

       Keith, Justice (Retired), Ninth Court of Appeals, sitting by assignment. See Art. 1812, as amended.

   BRADY, Justice.

This appeal arises from a class action by commissioned officers of the Texas Department of Public Safety requesting the court to declare statutory provisions that commissioned DPS officers should receive supplemental pay to be mandatory. The trial court held that it did not have jurisdiction over the Department of Public Safety, hereinafter DPS, because that agency was protected from suit by sovereign immunity. Further, the trial court rendered judgment declaring that appellee, Colonel James Adams, the Director of DPS, was not in violation of the statute in failing to pay such supplemental benefits to these officers.

Since 1974, the Texas Department of Public Safety has campaigned hard for overtime or supplemental pay for its officers. Budget requests submitted to the Legislature during the past five sessions all have included such supplemental pay. Colonel Wilson Speir, the former head of DPS, in the 1976-1977 biennium included a “priority request” for appropriation to pay “at least 10% compensation above base salary for law enforcement personnel for unscheduled overtime.” In 1977, the Legislature passed H.B. 151, now codified as Tex. Civ.Stat.Ann. art. 4413(17a) (Supp.1984), and in 1983, amended the act so that it now provides as follows:

(a) This section applies to an officer commissioned by the Department of Public Safety who is not employed in a position the director of the department has declared to be administrative, executive, or professional.
(b) If, during a calendar week, the total of the hours worked by a commissioned officer and the hours of leave taken for which the officer is entitled to compensation, including approved sick leave, vacation, holidays, holiday compensatory time, emergency leave, administrative leave, and jury duty, is more than 40 hours, the excess is overtime. For each calendar month, the overtime for each week ending during that month shall be totaled. If the total overtime for the month exceeds eight hours, the officer may receive, in addition to his regular monthly salary, a supplement according to the following applicable formula:
(1) a commissioned officer who accumulates more than eight hours but less than 16 hours of overtime in a given calendar month may receive five percent of the officer’s regular monthly salary;
(2) a commissioned officer who accumulates 16 or more hours but less than 32 hours of overtime in a given calendar month may receive 10 percent of the officer’s regular monthly salary; and
(3) a commissioned officer who accumulates 32 or more hours of overtime in a given calendar month may receive 15 percent of the officer’s regular monthly salary.
(c) The formula prescribed by Subsection
(b) of this section is the exclusive method of computing state compensation for overtime entitlements.
(d) A commissioned officer may receive a supplement paid by the federal government and earned while working on a project funded by the federal government, and that supplement may not be considered in determining a commissioned officer’s entitlement to the supplement described in Subsection (b) of this section.
(e) This section applies only to the computation of overtime entitlements and does not apply to the method of compensating a commissioned officer for working on regularly scheduled state holidays.
(f) If the funds appropriated to the department to provide supplemental pay are insufficient to pay all earned overtime entitlements, the director of the department may provide for compensatory time to be taken during the biennium in which the entitlements are earned.

The fiscal note which accompanied this legislation contained the statement that an annual appropriation of over four million dollars would be required to implement and fund art. 4413(17a). The Legislature has never seen fit to fund this law. The pre-amendment or original art. 4413(17a) provided that certain DPS officers “shall receive ... a supplement not to exceed ten percent (10%) of his regular salary.” It was this provision that was the basis of appellants’ argument that these provisions of art. 4413(17a) were mandatory and required payment of supplemental benefits, citing our holding in Ramirez v. State, 550 S.W.2d 121, 124 (Tex.Civ.App.1977, no writ). There we held that while the word “shall,” when used in a statute may be and frequently is directory, the word is generally construed to be mandatory, citing as authority Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943 (Tex.1956). Thus, appellants argue that the statute is mandatory and Colonel Adams has a “duty” to take budget surpluses from other areas and transfer these monies for supplemental pay for his officers.

Appellees respond that Texas law requires that two “independent prerequisites be met” before state funds may be expended: (1) there must be not only the statutory authorization creating the program, but (2) there must be also a specific legislative appropriation. The Texas Legislature did pass the necessary statutory authorization in art. 4413(17a). However, the Legislature failed to fund the program. Appellees state that taking any surpluses from other areas and transferring these funds for supplemental pay would circumvent the Legislature’s refusal to make these specific appropriations. Appellees conclude by stating that the Legislature did not appropriate any funds for such a purpose, and without such specific appropriation by the Legislature, such supplemental pay cannot be paid by virtue of Tex. Const. Ann. art. 8, Sec. 6, which reads:

No money shall be drawn from the Treasury but in pursuance of specific appropriations made by law;

Appellees cite, in support of this proposition, the cases of Pickle v. Finley, 91 Tex. 484, 44 S.W. 480 (1898) and Texas Department of Public Safety v. Morris, 426 S.W.2d 290 (Tex.Civ.App.1968), rev’d on other grounds, 436 S.W.2d 124 (Tex.1968), wherein it was held that although costs were properly taxed against the Texas Department of Public Safety, payment could only be made from funds specifically appropriated for such purpose by the Legislature.

The trial court’s finding that it had no jurisdiction over the Department of Public Safety was not brought before this Court for review. Therefore, we are precluded from addressing this point. Further, as was pointed out by appellants, Department of Public Safety director, Colonel James B. Adams, was instrumental in helping to secure the passage of legislation for supplemental pay for his officers. Every biennium since 1974, the DPS has made a “priority request” for funding of overtime or supplemental pay. Each session the Legislature declined to appropriate such funds. The Coordinator of the Legislative Budget Board testified at trial that any payments for supplemental or overtime pay must come from a specific “line item” appropriation. To transfer unrelated surplus funds to pay for a program that the Legislature has consistently refused to fund, which Colonel Adams has correctly refused to do, would thwart the intent of the Legislature and violate the spirit, as well as the letter, of the Texas Constitution.

While the members of this Court are not unsympathetic to the cause advocated so persuasively by the appellants, the time honored principle of separation of powers prohibits us from doing what the Legislature has refused to do. Therefore, we must affirm the judgment of the trial court which declared that appellee was not violating the provisions of art. 4413(17a) by refusing to transfer surplus funds to pay for supplemental pay benefits.

The judgment of the trial court is affirmed.


author: SHANNON, Justice.

text:
    UNIVERSITY INTERSCHOLASTIC LEAGUE, Appellant, v. Jim MARONEY on Behalf of Todd MARONEY, Appellee.
    No. 14341.
    Court of Appeals of Texas, Austin.
    Nov. 14, 1984.
    Rehearing Denied Dec. 12, 1984.
    Margaret A. Cooper, Lucius D. Bunton, Jr., Bunton, Nolan, Ode & Cooper, Austin, for appellant.
    Malcolm Robinson, Hooper, Robinson & Moeller, Austin, for appellee.
    SHANNON, SMITH and BRADY, JJ.
   SHANNON, Justice.

The University Interscholastic League seeks to dissolve an order of temporary injunction signed by a district court of Travis County prohibiting the League and its agents from enforcing its order declaring Todd Maroney ineligible to play football for Westlake High School during the 1984 season. Jim Maroney and his son, Todd, have filed a motion to dismiss the appeal for want of jurisdiction, claiming that the League failed to file security for costs and, instead, filed only a notice of appeal. This Court has concluded that the League is not “excused by law” from filing security for costs, and, accordingly, this Court will dismiss the appeal.

The League is a “voluntary-member association of Texas public schools” formed for the purpose of organizing and directing extracurricular competition between member public schools in Texas. Constitution and Contest Rules of the University Interscholastic League, 1983-84. There is no statute creating the League or empowering the University of Texas at Austin to create the League.

Todd Maroney is a student at Westlake High School and during the 1983 season he played football for Westlake. He and his father applied to the proper League officer for a waiver of its “five-year” rule so that he could play football during the 1984 season. After the League had entered its final order denying the waiver application, the Maroneys filed suit in the district court of Travis County seeking to set aside the order of denial. The Maroneys sought, and obtained, ancillary relief by way of a temporary injunction prohibiting the League and its officers from enforcing its order declaring Todd Maroney ineligible for participation in League activities for 1984.

By their motion to dismiss, the Maroneys point out that the League gave notice of appeal to this Court as provided in Tex.R. Civ.P. 356(c) instead of executing an appeal bond or making a cash deposit as provided in Tex.R.Civ.P. 354. The Maroneys insist that under the Rules of Civil Procedure and statutes the League is not excused from filing an appeal bond or making a cash deposit. As authority, the Maroneys rely upon University Interscholastic League v. Payne, 635 S.W.2d 754 (Tex.App.1982, writ dism’d); Marshall v. Brown, 635 S.W.2d 578 (Tex.App.1982, writ ref’d n.r.e.); and University Interscholastic League v. Hardin-Jefferson Indep. School Dist., 648 S.W.2d 770 (Tex.App.1983, no writ). The courts in those cases held that the League did not occupy the status as a governmental entity excusing it by law from executing an appeal bond or depositing a cash deposit in lieu of a bond.

The League resists the motion to dismiss by arguing that it is exempt from providing security because it is indeed part of the Division of Continuing Education of the University of Texas. The same argument was made, and expressly rejected, by the Amarillo Court in Payne, supra:

The U.I.L. argues that it is exempt because it is part of the Division of Continuing Education of the University of Texas at Austin, Assuming, arguendo, that such status would permit the U.I.L. to perfect its appeal by notice of appeal only under Rule 356, the record before us does not establish that status. There is evidence indicating that unspecified administrative and support services are provided by the University of Texas at Austin, and the members of the State Executive Committee are, under the U.I.L. Constitution, appointed by the president of that university. However, it is undisputed in the record that the U.I.L. is a self-governing, independent entity, established by its members for the purpose of regulating interscholastic competition. It is, in the words of its executive director, “organized annually [by its members] and has a shifting membership from year to year.” Its rules are “written by the public schools, for the public schools, to be enforced by the public schools.”

At oral argument, Counsel for the League insisted that Payne, Marshall, and Hardin-Jefferson were wrongly decided in that the League, in fact, has existed as a part of the University of Texas for at least seventy-five years. Counsel asserted that the League is as much a part of the University of Texas at Austin as is, for example, the Department of English or Physics.

The League suggests that its historic status as a part of the University of Texas has now been conclusively recognized by the legislature. As authority for this proposition, the League relies upon one phrase in one section contained in H.B. 72, passed in 1984 by the Second called Session of the 68th Legislature. “The University Interscholastic League, which is a part of The University of Texas at Austin, must submit its rules and procedures to the State Board of Education for approval. The board may approve, disapprove, or modify any of the rules.” [Emphasis added] 1984 Tex.Sess.Law Serv., ch. 28, § 2 at 402, Tex. Education Code § 21.921(b).

The League characterizes § 21.921(b) as “conclusive” recognition “that the U.I.L. is a part of a state agency created by the Constitution itself.” The League views § 21.921(b) as rendering “the ruling of the court in Payne obsolete and definitely cloak[s] the U.I.L. in a state agency status.” This Court does not agree.

House Bill 72 is the vehicle for the massive revision of laws relating to the public school system undertaken by the 68th Legislature. The title to H.B. 72 provides “An act relating to the public school system, including administration, finance, personnel, students, programs, teacher education and retirement, and elements of the offense of thwarting compulsory school attendance.” This Court has been shown nothing to indicate that the Legislature in H.B. 72 intended to deal with the functioning of the University of Texas at Austin. In fact, examination of the title to H.B. 72’ discloses that the creation or recognition of the League as a part of the University of Texas at Austin certainly was not of such moment that it was expressed there as a subject of the legislation. Contrary to the League’s argument of “conclusive recognition,” it is more reasonable to conclude that the legislature’s use of the phrase “which is a part of the University of Texas at Austin” was simply to identify or make certain the particular organization which had the duty to submit its rules and procedures to the State Board of Education for approval.

Upon the League’s motion, this Court set this cause for early submission and oral argument. The League now makes the near fatuous argument that because this Court granted its motion to accelerate the submission and oral argument we “impliedly recognized the U.I.L.'s status as a state agency.” Texas R.Civ.P. 410 provides that certain appeals shall have precedence of all others. Among those favored classes of appeals are those in which the State is a party, those taken from interlocutory orders, and those as the Court may choose to advance.

Our order granting the motion simply set the cause for early submission and oral argument and does not purport to pass upon any contentions asserted by the League. Rather, this Court in granting the League’s motion, was exercising authority permitted by any one of several provisions of Rule 410.

The motion is granted and the appeal is dismissed for want of jurisdiction.

      . The pertinent parts of the Texas Rules of Civil Procedure provide as follows:
      Rule 354:
      (a) Unless excused by law, the appellant shall execute a bond payable to the appellee in the sum of $1000 unless the court fixes a different amount upon its own motion or motion of either party or any interested officer of the court....
      (b) In lieu of a bond, appellant may make a deposit with the clerk pursuant to Rule 14c in the amount of $1000, less such sums as have been paid by appellant on the costs, and in that event the clerk shall file among the papers his certificate showing that the deposit has been made and a copy same in the transcript, and this shall have the force and effect of an appeal bond.
      ******
      Rule 356:
      (c) When a bond for costs on appeal is not required by law, the appellant shall in lieu of a bond file a written notice of appeal with the clerk or judge which shall be filed within the time otherwise required for filing the bond.

      . The applicable statutes are as follows:
      Tex.Rev.Civ.Stat.Ann. art. 2072 (1964):
      No security for costs shall be required of the State of any incorporated city or town in any action, suit or proceeding....

      Tex.Rev.Civ.Stat.Ann. art. 2276 (1971):
      Neither the State of Texas, nor any county in the State of Texas, nor the Railroad Commission of Texas, nor the head of any department of the State of Texas, prosecuting or defending in any action in their official capacity, shall be required to give bond on any appeal or writ of error taken by it, or either of them, in any civil case.

      Tex.Rev.Civ.Stat.Ann. art. 279a (1973):
      Neither the State of Texas, nor any county, nor any state department, nor the head of any state department, ... shall be required to give any bond incident to any suit filed by any such agency, official, and/or entity for costs of court or for any appeal or writ of error taken out by it or either of them...


author: TIJERINA, Justice. CANTU, Justice,

text:
    Charles Henry ROBINSON, Appellant, v. The STATE of Texas, Appellee.
    No. 04-83-00561-CR.
    Court of Appeals of Texas, San Antonio.
    Nov. 14, 1984.
    Rehearing Denied Dec. 6, 1984.

      Edward J. Mihalko, San Antonio, for appellant.
    Sam Millsap, Jr., Dist. Atty., Patrick L. Moran, Mario Bordini, Charles Estee, Asst. Criminal Dist. Attys., San Antonio, for ap-pellee.
    Before CANTU, REEVES and TIJERI-NA, JJ.
   OPINION

TIJERINA, Justice.

This is an appeal from a conviction for attempted murder. The jury found appellant guilty as charged and assessed punishment at eight years’ confinement plus a fine of $800.00.

Appellant stabbed the complainant while engaged in a knife fight. He claims he was acting in self-defense and that the complainant was the instigator. The sufficiency of the evidence is not challenged. Appellant first complains that the trial court erred in admitting, over objection, his oral statement made while he was under arrest, for impeachment, without a proper predicate. His specific complaint alleges that an oral statement made by the accused as a result of custodial interrogation is admissible for impeachment purposes only when the statement complies with the six requirements of TEX.CODE CRIM.PROC. ANN. art. 38.22, § 3 (Vernon 1979). Under § 5 of article 38.22, supra, a voluntary statement, whether or not the result of custodial interrogation, that has a bearing upon the credibility of the accused as a witness is admissible in evidence for impeachment purposes. Prior case law held that the specific requirements of § 3(a) controlled over the general provisions of § 5 and thus, the admissibility of an oral statement for impeachment purposes was subject to strict compliance with the specific six requirements of § 3(a). Debes v. State, 662 S.W.2d 1, 2 (Tex.Crim.App.1983) (en banc); Alfaro v. State, 638 S.W.2d 891, 900 (Tex.Crim.App.1982). But article 38.22, supra, was amended effective September 1, 1981, and the applicability of § 3(a) for impeachment purposes was deleted. The provisions of § 5 were not disturbed. See Clark v. State, 668 S.W.2d 479, 480 (Tex.App.—Texarkana 1984, no pet.). In this case the oral statement had a direct bearing upon the credibility of appellant as a witness and was used for impeachment purposes. Ground of error one is overruled.

On the second and third grounds of error appellant asserts reversible error in that he was not allowed to cross-examine the complainant concerning his arrest record, aggressiveness and penchant for fighting for impeachment purposes. Under TEX.CODE CRIM.PROC.ANN. art. 38.29 a witness may be impeached by proof of a final conviction of a felony or misdemeanor involving moral turpitude. Such offenses must not be so remote in time as not to be relevant to present credibility of witnesses. Taylor v. State, 612 S.W.2d 566, 572 (Tex.Crim.App.1981). Complainant in this case testified he had never been convicted of a felony and when appellant sought to question him about prior arrests, the court sustained the State’s objection. Evidence of pending charges is admissible for the limited purpose of showing bias, prejudice, interest or motive of the State’s witness. Randle v. State, 565 S.W.2d 927, 931 (Tex.Crim.App.1978). But in this case appellant never advised the court that his cross-examination concerning prior arrests of the witness was for the purpose of showing bias, prejudice, interest or motive. See Moreno v. State, 587 S.W.2d 405, 411 (Tex.Crim.App.1979). The witness denied the existence of any pending charges which the State agreed to dismiss in exchange for his testimony. Appellant did not perfect a bill of exceptions. The second and third grounds of error are overruled.

In the last assertion of error appellant contends that the court erroneously permitted the State, over objection, to impeach him with a remote prior conviction. Appellant testified raising the self-defense issue and the court, over objection, allowed the State to impeach his testimony by cross-examination as to a prior conviction for statutory rape. The record indicates that appellant’s prior conviction occurred in 1973; he was released from confinement in 1976 and trial on the case at bar was held in October 1983. The witness generally places his credibility in issue and his credibility may be impeached by proof that the witness has been previously convicted of a felony or misdemeanor involving moral turpitude; however, such offense must not be so remote in time so as not to be relevant to the present credibility of the witness. Taylor, supra. The issue of remoteness is determined by the time between the date of release from confinement and the date of the witness’ testimony. Miller v. State, 549 S.W.2d 402, 403 (Tex.Crim.App.1977). The question of whether a conviction of less than ten years is too remote is a matter within the discretion of the trial court. Davis v. State, 545 S.W.2d 147, 150 (Tex.Crim.App.1976). Appellant, having chosen to testify, placed his credibility as a witness was in issue. The trial court did not abuse its discretion in allowing the State to inquire as to his prior conviction for felony. Ground of error four is overruled.

The judgment is affirmed.

REEVES, J., concurs in result without opinion.

CANTU, Justice,

dissenting.

The majority opinion incorrectly characterizes the statement used by the State prosecutor as an oral statement. There is nothing in the record to support the contention that the statement was oral. To the contrary, the prosecutor mesmerized the trial court into permitting impeachment with the statement by assurances that he was using a written prior inconsistent statement. The State still argues that impeachment was proper because the statement was written and satisfied the requirements of TEX.CODE CRIM.PROC.ANN. art. 38.22, § 2.

In truth, the statement is an unsigned statement apparently taken from appellant and which he refused to sign. It cannot, therefore, assume the status of a statutorily admissible statement.

Furthermore, no attempt was ever made by the State to show that appellant ever related the contents of this particular instrument to anyone. Cf Hugley v. State, 505 S.W.2d 914 (Tex.Crim.App.1974).

The majority’s attempt to make the use of the statement admissible for impeachment under article 38.22, § 5 must be based upon the unsupported assumption that the statement was voluntarily given.

The burden was upon the State to show its voluntary nature and it failed to even show it was given. See Whiddon v. State, 492 S.W.2d 566 (Tex.Crim.App.1973); Hugley v. State, supra. Section 5 of article 38.22 can give the State little consolation. I would hold that the court reversibly erred in permitting the State to use an unsigned written statement for impeachment purposes. Young v. State, 136 Tex.Cr.R. 149, 124 S.W.2d 144 (1939). I dissent.

      . Article 38.22, § 1.
      In this article, a written statement of an accused means a statement signed by the accused or a statement made by the accused in his own handwriting or, if the accused is unable to write a statement bearing his mark, when the mark has been witnessed by a person other than peace officer.

      . The harm from the use of the statement before the jury becomes obvious when it is noted that the prosecutor accused appellant of perjury as he resisted the State’s use of the statement.


author: TIJERINA, Justice.

text:
    Genaro CANO, Appellant, v. The STATE of Texas, Appellee.
    No. 04-84-00057-CR.
    Court of Appeals of Texas, San Antonio.
    Nov. 14, 1984.
    David R. Weiner, San Antonio, for appellant.
    Sam Millsap, Jr., Dist. Atty., Robert Reaves, Kirk B. Sherman, Margaret M. Embry, Asst. Criminal Dist. Attys., San Antonio, for appellee.

      Before ESQUIVEL, TIJERINA and DIAL, JJ.
   OPINION

TIJERINA, Justice.

This is an appeal from a conviction for aggravated assault with a deadly weapon. TEX.PENAL CODE § 22.02(a)(4). The jury found appellant guilty as charged and assessed his punishment at five (5) years’ confinement plus a $5,000.00 fine. The amended motion for new trial was overruled.

Appellant does not challenge the sufficiency of the evidence. His first ground of error complains of ineffective assistance of counsel on constitutional grounds. Texas courts determine this claim under the “reasonably effective assistance standard.” Ex parte Duffy, 607 S.W.2d 507, 516 (Tex.Crim.App.1980). Counsel’s performance is evaluated from the totality of the representation. Archie v. State, 615 S.W.2d 762, 765 (Tex.Crim. App.1981). Each case must be assessed on its own particular facts. Ex parte Gallegos, 511 S.W.2d 510, 511 (Tex.Crim.App.1974). “We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.” MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir.1960), modified on other grounds, per curiam, 289 F.2d 928 (5th Cir.), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). The right to assistance of counsel is guaranteed by the Sixth Amendment to the United States Constitution, made mandatory on the States by the Fourteenth Amendment. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). The United States Supreme Court addressed the ineffective assistance of counsel question in Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984) and now requires an appellant to show that “there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Appellant’s specific complaint is that defense counsel failed to object to testimony about extraneous offenses given at the punishment phase of the trial. De La Garza testified that on a prior occasion appellant pointed a gun at his two workers and then fired in his direction, striking behind the seat of his truck. He stated that appellant had been charged with assault with a deadly weapon but the case was dismissed because the district attorney did not bring the matter to trial within the 90-day period. Appellant’s counsel did not object to any of this testimony, but on cross-examination he was able to establish that there was a continuing controversy between the witness and appellant. There was a pending lawsuit whereby appellant accused this witness of trespass. Some other complaints filed against appellant were filed by the witness’ workers. He further brought out through this witness that appellant had no prior convictions.

The witness Julio Hernandez testified that appellant took shots at his chickens and turkeys and poisoned his ducks and dogs. Appellant’s counsel did not object to this testimony. On cross-examination defense counsel established that all of the witness’ complaints on cruelty to animals were dismissed. The witness admitted having problems and being accused by appellant of stealing a pool-table, arson and dealing in narcotics. Thus, we cannot conclusively say that counsel’s failure to object was not trial strategy. The jury at the punishment phase was told that it could within its discretion recommend probation. But this jury was the same jury that found appellant guilty and heard the State’s witnesses Adair, Gonzalez, and Hernandez testify to the assault with a loaded shotgun. Adair saw appellant strike Gonzalez with the barrel of the shotgun and then threaten to kill the complaining witness. The question as to whether the admission of extraneous offenses constitutes reversible error is an ad hoc determination in each case. Ruiz v. State, 579 S.W.2d 206 (Tex.Crim.App.1979). A judgment will not be reversed for the erroneous admission of evidence that did not injure the defendant; the question is whether there is a reasonable probability that the evidence complained of might have contributed to the conviction. Esquivel v. State, 595 S.W.2d 516, 529 (Tex.Crim.App.1980). In this case there was more than sufficient evidence to establish appellant’s guilt, without the extraneous offenses, and the error, if any, was harmless. See Prior v. State, 647 S.W.2d 956, 959 (Tex.Crim.App.1983). The range of punishment for this offense is from two years to ten years incarceration; however, the jury in this case only assessed a five-year confinement term. Having viewed the totality of the representation and the evidence, we are of the opinion that appellant has not shown that, but for counsel’s errors, the trial result would have been different. Ground of error one is overruled.

Secondly, appellant contends that the jury charge is fundamentally defective because the court failed to place on the State the burden of proving the absence of self-defense in the paragraph applying the law on aggravated assault to the facts. The court’s charge in the application paragraph required the jury to find the essential elements of the offense charged, i.e., aggravated assault with a deadly weapon, beyond a reasonable doubt before they could convict. Eckert v. State, 623 S.W.2d 359, 362 (Tex.Crim.App.1981). Appellant, citing Cobarrubio v. State, 675 S.W.2d 749 (Tex.Crim.App.1983) and Jenkins v. State, No. 64,000, (Tex.Crim.App. Feb. 16, 1983) (not yet reported), argues that the court’s failure to place the burden on the State of disproving self-defense, in the paragraph applying the law to the facts, constituted fundamental error. In Cobarrubio, supra, the Court held that the failure to place the burden on the prosecution, of proving the absence of sudden passion, in the paragraph applying the law of murder to the facts, was fundamental error.

The first noted distinction is that in Cobarrubio, supra, there were specific objections to the paragraphs applying the law of murder and voluntary manslaughter to the facts of the case. In this case the record clearly shows that appellant did not object to the court’s charge or to the alleged error in the paragraph applying the law to the facts, and did not request a special charge. Where the defendant fails to object to the trial court’s charge or make any special request to the charge, any alleged error in the charge is waived. See Manry v. State, 621 S.W.2d 619, 623 (Tex.Crim.App.1981); Romo v. State, 568 S.W.2d 298, 303 (Tex.Crim.App.1978); TEX. CODE CRIM.PROC.ANN. art. 36.14 (Vernon Supp.1984). Where there has been no objection to the charge, the entire charge will be reviewed to determine whether the error was fundamental. Robinson v. State, 596 S.W.2d 130, 132-33 (Tex.Crim. App.1980). In Cumbie v. State, 578 S.W.2d 732, 733-35 (Tex.Crim.App.1979) the Court found that fundamental error existed when the charge (1) authorizes a conviction on a theory not alleged in the indictment; (2) substitutes a theory of the offense different from that alleged in the indictment; (3) authorizes a conviction on a theory alleged in the indictment and on other theories not alleged in the indictment; or (4) authorizes a conviction for non-criminal conduct. To be fundamental error the charge must injure the right of a defendant so that he does not receive a fair and impartial trial. Grady v. State, 634 S.W.2d 316, 318 (Tex.Crim.App.1982); see TEX. CODE CRIM.PROC.ANN. art. 36.19 (Vernon 1981). Thus, we find that the trial court adequately stated the elements of the offense, applied them to the facts as alleged in the indictment, and instructed the jury under what circumstances to convict, or under what circumstances to acquit. There is nothing in this record to show that appellant was deprived of a fair and impartial trial or to sustain a finding of fundamental error. Appellant, having failed to object to the charge or request a special charge, waived his claim of error as alleged.

In the case at bar, appellant testified in his own defense. He never stated that he at any time was in apprehension or fear of imminent death or great bodily harm. See TEX.PENAL CODE ANN. § 9.31 (Vernon 1974). Nevertheless, the trial court gave the jury a charge which contained an unrestricted and broad application of the law of self-defense in separate and distinct paragraphs. Smith v. State, 411 S.W.2d 548, 552 (Tex.Crim.App.1967). Self-defense is a defensive issue which in this case was submitted to the jury as a fact question. The jury’s rejection of appellant’s testimony on the self-defense issue is not erroneous as a matter of law. Rios v. State, 510 S.W.2d 326, 327 (Tex.Crim.App.1974). In view of the complete charge on the law of self-defense indicated in this record, the charge on the presumption of innocence and the State’s burden of proof, we conclude that the trial court was not required to charge the jury, in the paragraph applying the law to the facts, that the State had the burden to disprove the claim of self-defense. The mandate of Cobarrubio v. State, supra, is not applicable to this case. Ground of error two is overruled.

The judgment of the trial court is affirmed.


author: WARREN, Justice.

text:
    Jeffrey Alan MENO, Appellant, v. The STATE of Texas, Appellee.
    No. 01-83-0796-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 15, 1984.

      Larry Urquhart, Brenham, for appellant.
    Charles J. Sebesta, Jr., Washington County Dist. Atty., Caldwell, for appellee.
    Before WARREN, JACK SMITH and BULLOCK, JJ.
   OPINION

WARREN, Justice.

A jury found appellant guilty of aggravated robbery and assessed punishment at 10 years confinement.

In two grounds of error appellant contends: (1) that the trial court erred in admitting hearsay evidence of a manufacturer’s warning that the pistol could cause serious injury or death; and, (2) that the evidence failed to establish that the weapon used in the commission of the offense was a “deadly weapon” under section 1.07(a)(ll) of the Texas Penal Code.

At approximately 1:00 p.m. on May 12, 1983, the phone lines at the Farmers State Bank in Chappel Hill, Texas, went dead. A few minutes later, the appellant entered the bank with a Crosman carbon dioxide (CO 2) pistol tucked in his pants, a satchel in one hand, and a demand note in the other. The appellant approached a bank teller and handed her the note. The teller read a note stating that the appellant was carrying a “357 Magnum” and ordering the teller to “fill [the satchel] with 100’s, 50’s, and 20’s”. The appellant exhibited the weapon to the teller and accompanied her into the bank vault where they put over $37,000 in the satchel.

The central issue at trial was not whether appellant robbed the bank, but whether the weapon he used was, in fact, a “deadly weapon”, as alleged in the indictment.

In support of its contention that the carbon dioxide pellet revolver was a deadly weapon, the state offered the testimony of Washington County Sheriff Elwood Goldberg and F.B.I. agent William Holloman. Both testified that the pistol was capable of causing serious injury or death, and that the pistol was manifestly designed to cause death or serious bodily injury. When Sheriff Goldberg was asked initially whether the pistol was manifestly designed to cause death or serious bodily injury, however, he replied that it was not.

Michael Buddell, a local firearms dealer called by the appellant, testified that the revolver was not manifestly designed to cause death or serious bodily injury. He did admit, however, that under certain limited conditions the revolver could inflict serious bodily injury or death.

Over objection, the state introduced a written manufacturer’s warning, allegedly furnished to customers when a new Cros-man CO 2 pellet revolver was sold. The warning was as follows:

CAUTION: not a toy. Adult supervision required. Misuse or careless use may cause serious injury or death. May be dangerous up to 400 yards.

In his first ground of error appellant claims that the court erred in admitting the written manufacturer’s warning into evidence over his objection that it was hearsay.

The written warning was hearsay and therefore inadmissible. See Jackson v. State, 518 S.W.2d 371 (Tex.Crim.App.1975). The state admits that the document was hearsay, but contends that its admission was harmless error because the facts contained in the warning were sufficiently proved by other and competent evidence. That rule is stated by the Court of Criminal Appeals in Huff v. State, 560 S.W.2d 652 (Tex.Crim.App.1978). Other rules, however, have been promulgated by that court pertinent to our review of inadmissible evidence. A judgment will not be reversed for error in the admission of evidence that did not injure the defendant. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. Myre v. State, 545 S.W.2d 820 (Tex.Crim.App.1977); Cunningham v. State, 500 S.W.2d 820 (Tex.Crim.App.1973). In Vanderbilt v. State, 620 S.W.2d 709 (Tex.Crim.App.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 75 L.Ed.2d 169 (1982), the court refined the rule, adopting the holdings of Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). The court in Vanderbilt held:

The duty of this court is to determine from the record the probable impact upon the minds of an average jury. Unless we find a reasonable probability that the improperly admitted evidence contributed to appellant’s conviction, reversal is not required. If we conclude that ‘the minds of an average jury’ would not have found the State’s case significantly less persuasive had the testimony now at issue been excluded, we need not reverse.

Vanderbilt, 629 S.W.2d at 724, quoting Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972).

We have found no case such as ours, where there was a direct conflict between witnesses for the state and the defendant on a point in issue, and where inadmissible evidence was thereafter introduced by the state on the issue in question.

Here, the witnesses for the state and the one witness for the defendant were qualified as firearm experts, although none seem especially qualified in the area of CO 2 pistols. The material used by the state to bolster the testimony of its witnesses, however, was not merely another opinion. It emanated from the source most likely to have first-hand knowledge of the gun’s capabilities and potential: the manufacturer.

We can not say that the warning from the gun’s maker was merely cumulative of the state’s experts. On the other hand, we can not say that the jury would not have found the revolver to be a deadly weapon without the benefit of the hearsay evidence. , But where, as here, the evidénce was in direct conflict, any doubt in the minds of the jurors would, in all likelihood, have been resolved by the inadmissible hearsay evidence. Thus there is a reasonable probability that the admission of the hearsay contributed to the appellant’s conviction since the state’s case would have been significantly less persuasive had the hearsay been excluded.

We sustain appellant’s first ground of error.

Appellant’s remaining ground of error urges that without the hearsay evidence, the remaining evidence is insufficient to support a finding that the CO 2 was a deadly weapon.

The testimony of Goldberg and Hollo-man, if believed by the jury, was sufficient to support a finding that the CO 2 pistol was a deadly weapon and that it was manifestly designed to inflict serious bodily injury or death. See Corte v. State, 630 S.W.2d 690 (Tex.App.—Houston [1st Dist.] 1982, pet. ref’d).

Appellant’s second ground of error is overruled.

Reversed and remanded for a new trial.


text:
    James Raymond PROTZ, Appellant, v. The STATE of Texas, Appellee.
    No. C14-82-00746-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 15, 1984.

      William D. Tipton, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before JUNELL, and SEARS, JJ., and T. GILBERT SHARPE, J. (Retired).
   OPINION

JUNELL, Justice.

A jury convicted appellant of unauthorized use of a motor vehicle and sentenced him to 16 years imprisonment and a $10,-000 fine. We reverse and remand with instructions to enter a judgment of acquittal because the evidence was insufficient to corroborate an accomplice’s testimony that appellant operated a stolen van.

Roy Collin Brown, the accomplice witness, testified that he and appellant were at Windsor Plaza in Houston, Texas, the night of April 8, 1982. He said that appellant broke into a van using a butter knife or pocket knife, pulled out the ignition switch with a dent puller, started the van with a screwdriver and drove off. Brown followed in a pickup truck. Brown further testified that on April 9, 1982, appellant picked up Brown in the van. They drove around town and ended up at an apartment complex on 34th Street and Highway 290. Appellant went into apartment 411 and Brown got out of the van to remove the ladder on the rear door of the van to alter its appearance. Brown saw police enter the complex and got into the van on the driver’s side. The police arrested Brown and questioned him. Brown told the police that it was appellant who had stolen the van and that appellant could be found in apartment 411. In exchange for this information the police promised Brown that no charges would be filed against him.

Brown’s testimony clearly would be sufficient to support a finding of guilt but for the Texas rule that a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed. Tex. Code Crim.Proe. Ann. art. 38.14 (Vernon 1979).

To test the sufficiency of the evidence corroborating an accomplice, the appellate court should eliminate from consideration the evidence of the accomplice witness and then examine the evidence of the non-accomplice witnesses to ascertain if it tends to connect the defendant with the commission of the offense. Granger v. State, 683 S.W.2d 387 (Tex.Crim.App., 1984). The corroboration evidence need only make the accomplice’s testimony more likely than not to be true. James v. State, 538 S.W.2d 414, 416 (Tex.Crim.App.1976). Ordinarily the accomplice need not be supported as to every element of the offense. Warren v. State, 514 S.W.2d 458, 463 (Tex.Crim.App.1974). Two exceptions to this rule arise. Evidence is insufficient in a capital murder case if it only corroborates the offense of murder and does not corroborate the defendant’s involvement in the aggravated element that distinguishes murder from capital murder. Granger v. State, 605 S.W.2d 602, 605 (Tex.Crim.App.1980) (en banc). In receiving and concealing stolen property cases the evidence required includes corroboration of defendant’s knowledge that the property is stolen. Warren v. State, 514 S.W.2d 458, 463 (Tex.Crim.App.1974); Hall v. State, 373 S.W.2d 252, 253 (Tex.Crim.App.1963).

Here the offense alleged is unauthorized use of a vehicle. (Appellant was originally indicted for both auto theft and unauthorized use, but the theft paragraph of the indictment was set aside by the trial court upon motion by appellant.) A conviction for unauthorized use cannot stand unless the state proves that the defendant actually operated the vehicle. Jackson v. State, 645 S.W.2d 303 (Tex.Crim.App.1983); Anthony v. State, 628 S.W.2d 151 (Tex.App.—Houston [14th Dist.] 1982, no pet.).

We hold that the state must present testimony corroborating the accomplice’s testimony that appellant operated the van in this case because without operation no offense of unauthorized use has occurred.

The record reveals the following corroborating testimony. Miguel Flores, the owner of the van, testified that he had parked it in Windsor Plaza the night.of April 8, 1982, to visit a bar. When he came out, he could not find the van. After checking to see that the van had not been towed away for illegal parking, he reported the theft to police. The next afternoon a friend, Gilbert Hernandez, drove Flores around town to look for the van. They spotted the vehicle being driven on the Katy Freeway and pulled alongside. Flores saw two people in the van. At trial Flores could not positively identify appellant as the driver. He could only state that the appellant appeared similar to the person he saw driving the van. Flores and Hernandez followed the van to an apartment complex at 34th Street and Highway 290 and called the police. They remained at the complex until Brown and appellant were arrested. As Flores stood at the door of apartment 411, he saw in a satchel an equalizer that had been removed from the van.

Gilbert Hernandez’s testimony concerning the events of April 9 essentially tracked that of Flores. The testimony of the arresting officers added only that defendant was found hiding in a closet in apartment 411.

None of the corroborating testimony makes it more likely than not that appellant and not Brown drove the stolen van. In fact the evidence is stronger that Brown was the driver. Flores testified that the driver had long hair and a beard and that Brown had a beard and hair longer than appellant’s. One police officer testified that appellant did not have a beard at the time of arrest. Another officer said that appellant had a goatee and a stubble, but not a beard. A booking photograph of appellant taken April 11, 1982, shows that he did not have a beard. Appellant’s first ground of error is sustained.

Appellant’s second and third grounds of error need not be discussed. We reverse and remand to the trial court and order that a judgment of acquittal be entered.


author: REYNOLDS, Chief Justice.

text:
    PLAINVIEW INDEPENDENT SCHOOL DISTRICT and the State of Texas and Hale County, Appellants, v. EDMONSON WHEAT GROWERS, INC., Appellee.
    No. 07-83-0057-CV.
    Court of Appeals of Texas, Amarillo.
    Nov. 21, 1984.
    Rehearing Denied Dec. 12, 1984.

      Rudd F. Owen, Day, Owen, Lyle, Voss & Owen, Plainview, for appellants.
    John Thomas Boyd, Jr., Morehead, Sharp & Tisdel, Plainview, for appellee.
    Before REYNOLDS, C.J., and DODSON and COUNTISS, JJ.
   REYNOLDS, Chief Justice.

Plainview Independent School District, the State of Texas and Hale County appeal from a take-nothing summary judgment denying them recovery from Edmonson Wheat Growers, Inc., a cooperative marketing association, of ad valorem taxes they assessed on grain in the association’s elevators. For the reason that the summary judgment proof conclusively established the nontaxable nature of the grain, and the taxing authorities raised no material fact issue with respect thereto, we affirm.

For tax purposes, in the years 1977 and 1978 the association rendered to the School District, and in 1978 it rendered to the State and to Hale County, the grain in its elevators. The school district levied taxes on the grain for the year 1977, all of the taxing authorities levied taxes on the grain for the years 1978 through 1981 and, upon the association’s nonpayment, the School District instituted this action, in which the State and Hale County intervened, to recover the amounts of taxes claimed to be delinquent. The association affirmatively interposed the defenses of nonownership of the grain and its exemption from taxation. All parties moved for summary judgment; the court denied the taxing authorities’ motions, granted the association's motion, and rendered judgment that the taxing authorities take nothing.

The contentions expressed by the taxing authorities in the first three of their four points of error are that the summary judgment evidence conclusively establishes that the association owned the grain against which the delinquent taxes were assessed, and that the evidence does not conclusively establish the association’s defense to or an exemption from the grain’s taxation. In response, the association maintains that it does not own the grain, which is nontaxable by virtue of article 8, section 19, of the Texas Constitution and section 11.16 of the Texas Tax Code Annotated (Vernon 1982), which exempt farm products “in the hands of the producer” from taxation.

The taxing authorities correctly state that when they introduced copies of the delinquent tax records, certified by the proper taxing authorities to be true and correct with the amounts stated thereon to be unpaid, they established a prima facie case as to every material fact necessary to their respective causes of action. Davis v. City of Austin, 632 S.W.2d 331, 333 (Tex.1982). At that point, the association, to avoid the tax liability, assumed the burden of conclusively proving every element of its affirmative defense, Alamo Barge Lines, Inc. v. City of Houston, 453 S.W.2d 132, 134 (Tex.1970); Plantation Foods, Inc. v. City of Dallas, 437 S.W.2d 396, 398 (Tex.Civ.App.—Dallas 1969, writ ref’d n.r.e.), to be entitled to summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979).

The summary judgment evidence establishes without dispute that the association is a nonprofit cooperative association incorporated under the Cooperative Marketing Act, Tex.Rev.Civ.Stat.Ann. art. 5737 et seq. (Vernon 1958), and as thereafter amended, which Act has been reenacted as the Cooperative Marketing Associations Act. Tex. Agric.Code Ann. § 52.001 et seq. (Vernon 1982 & Supp.1984). The purpose of the association as set forth in its articles of incorporation is “to engage in any activity in connection with the marketing or selling of agricultural products of its members .... ” The bylaws provide that the patrons of the association, by dealing with the association, acknowledge that the terms and provisions of the articles of incorporation and the bylaws shall constitute a contract between the association and the patron, as if the patron had signed a separate instrument containing said terms and conditions. Other than the articles of incorporation and bylaws, there are no written agreements between the association and its members. The articles of incorporation meet the requirements of the Agriculture Code’s section 52.034 for the organizational structure of the association, and the bylaws contain the suggested provisions set forth in the following section 52.052.

Don Ketchum, the manager and assistant secretary-treasurer of the association, explained that when a farmer brings his product to the association he has three options: he may 1) receive a warehouse receipt; 2) leave the product in open storage and receive a weight ticket; or 3) deliver the grain for marketing and receive an advance in money, which is the current market price less the amount anticipated for expenses. If the farmer receives a warehouse receipt or a weight ticket, he retains complete control over the grain and may store it until he decides to sell it, at which time he is charged both a storage fee and an “in and out charge.” If the farmer delivers the grain for marketing and receives an advance, he loses control over the grain, but he is charged a storage fee until the association sells the grain at the time and price it determines.

The grain for which the farmer receives an advance is recorded in the association’s books as “cash grain” and grain which is otherwise stored is recorded as “warehouse receipt grain.” However, all of the grain is comingled, and the commodities held by the association are insured under a casualty insurance policy with the association listed as the insured. The farmers who have sold their grain through the association are entitled, at the close of the fiscal year, to receive their proportionate share of the net savings from the grain merchandising from the association. Likewise, if there is a loss the farmer is liable for the loss and the association may cancel or extinguish any preferred stock and/or book credits of the farmer, set up an account receivable to recoup the loss, or diminish dividends and distributions from net income in the ensuing five years.

The taxing authorities take the position that the cash grain is grain which is sold by the farmers to the association and, therefore, it is not in the hands of the producer-member, but is owned by the association and subject to ad valorem taxes. The position that the grain was sold is validated, the taxing authorities argue, by the holding in Texas Farm Bureau Cotton Ass’n v. Stovall, 113 Tex. 273, 253 S.W. 1101 (1923), that a marketing agreement entered into by a cotton producer and a cotton growers cooperative association was a contract for sale and purchase of the producer’s cotton and not an agency contract. Id. 253 S.W. at 1107.

In Stovall, the marketing association sought specific performance of the marketing agreement to compel the cotton producer to deliver his cotton to the association. The question before the court was whether, and the court’s definitive holding was that, “the express language of the [marketing] agreement declaring the instrument a contract of sale and purchase ... [is] such a contract in so far [sic ] as the parties here are concerned.” Id.

The question resurfaced a year later in Texas Certified Cottonseed Breeders’ Ass’n v. Aldridge, 122 Tex. 464, 61 S.W.2d 79 (1933), when the court had to determine, in an association’s suit to recover an excessive advance made to a producer member for cottonseed delivered pursuant to a marketing agreement similar to the one in Stovall, whether the agreement was a contract of absolute sale or a contract of agency. Texas Certified Cottonseed Breeders’ Ass’n v. Aldridge, supra. Explaining that by the contract, the title to the commodities is placed in the association to enable it to carry out its purposes — ie., to be an agent of its members to handle their products, to have the authority to borrow money on the products and to pledge same as security for any obligations, to distribute the money so borrowed equitably among the producers in proportion to the amount they delivered to the association, and to enter bona fide transactions with complete title — the court found that the clear intention of the contracting parties was to create a true cooperative marketing association, which would be destroyed if it were held that the delivery of the seed to the association was an absolute sale. Consequently, the marketing agreement, albeit clothed in the language of a sale, was not a contract of absolute sale, but constituted the association the agent of its members with broad powers to handle and sell their commodities. Id. at 82-83.

Following the rationale of Aldridge, the attorney general has held that farm products delivered to a cooperative association, incorporated under the Cooperative Marketing Act, pursuant to a contract for sale and delivery are still farm products in the hands of the producer and nontaxable. Op. Tex.Att’y Gen. No. 0-5484 (1943). Accord, Op.Tex.Att’y Gen. Nos. M-632 (1970), V-511 (1948), and 0-5091 (1943). The attorney general stated in opinion No. 0-5484 that the purpose of Article 8, section 19, of the Texas Constitution was to prevent the imposition of a tax on farm products when such tax would bear directly upon the producer, and that this purpose would be defeated if taxes were levied on the goods held by the association because the producers would ultimately bear the burden of taxation.

Although the attorney general’s opinions are not binding on the courts, they, being rendered in accordance with constitutional authority, have a highly persuasive value. Vick v. Pioneer Oil Co., Western Division, 569 S.W.2d 631, 633-34 (Tex.Civ.App.—Amarillo 1978, no writ). We agree with the attorney general’s reasoned conclusion that farm products delivered by a producer-member to and held for sale by an association incorporated under the Cooperative Marketing [Associations] Act, though delivered pursuant to the usual marketing agreement for sale and delivery, remain farm products in the hands of the producer and are exempt from taxation. The conclusion has particular application to the undisputed facts in the cause before us since the summary judgment evidence proves compliance with the Cooperative Marketing Associations Act and there is a complete absence of any agreement for, or of any evidence of intent to effect, an absolute sale of the producer members’ grain to the cooperative marketing association.

It follows that, on this record, the taxing authorities failed to sustain their burden of proof, the association sustained its burden of proof, and the trial court properly adjudged the grain to be nontaxable. See Alamo Barge Lines, Inc. v. City of Houston, supra, at 134. Points of error one through three are overruled.

The taxing authorities contend in their last point that the association is es-topped to assert nonownership, or the related tax exemption, of the grain because it rendered the grain for tax purposes in 1977 and 1978. In interposing the doctrine of estoppel, the taxing authorities rely on the principle, enunciated in Pfeiffer v. City of San Antonio, 195 S.W. 932, 933 (Tex.Civ.App.— San Antonio 1917, writ ref’d), that absent an allegation of non est factum, fraud or mistake, a taxpayer who renders property as his own is bound by his rendition. In response, the association invokes the holding in Childress County v. Schultz, 199 S.W.2d 860, 862 (Tex.Civ.App.—Amarillo 1946, no writ), that the doctrine of estoppel does not apply to a taxpayer who renders as his own property that does not belong to him.

It is unnecessary to opt for the application of either of the seemingly contradictory pronouncements baldly declared in Pfeiffer and Shultz, for, as this cause was developed, estoppel was not evidenced. Having alleged the estoppel, the taxing authorities assumed the burden of proving the essential elements of it, one element of which is that the taxing authorities acted on the association’s renditions to their prejudice. Concord Oil Co. v. Alco Oil and Gas Corp., 387 S.W.2d 635, 639 (Tex.1965). The renditions could not change the exempt status of the grain, Childress County v. Shultz, supra, and obviously, the taxing authorities could not have acted on the renditions to their detriment since the grain was exempt from taxation by them. The fourth point is overruled.

The summary judgment rendered by the trial court is affirmed.


author: MURPHY, Justice.

text:
    TEXAS CITY REFINING, INC., and the Travelers Insurance Companies, Appellants, v. UNIVERSAL OIL PRODUCTS CO., Appellee.
    No. C14-83-816-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 29, 1984.

      John T. Valentine, Houston, for appellants.
    Lee L. Kaplan, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

MURPHY, Justice.

This is an appeal from a summary judgment granted to appellee, Universal Oil Products (UOP), based on the affirmative defense of release.

Appellant, Texas City Refining, Inc. (TCR), brought suit against appellee for damages resulting from an explosion of a Fluid Catalytic Cracking Unit (FCC unit). Appellant, Travelers Insurance Companies, joined, asserting its right of subrogation against appellee for monies paid to TCR as a result of the explosion. The FCC unit was purchased from appellee, who designed and installed the unit at Texas City Refining, Inc., pursuant to four (4) separate agreements: (1) UOP Fluid Catalytic Cracking Process License Agreement (License Agreement) (2) Engineering & Construction Agreement (3) Supplemental Agreement and (4) Guarantee Agreement. The License Agreement gave appellant, TCR, the right to use a process utilized by the FCC unit to crack certain compounds and obtain valuable chemicals. The right to use the process was subject to trade secret protection. Also, all four agreements contained a valid choice-of-law clause; thus, Illinois law governs the construction of those four agreements.

After the FCC unit began operation, several disputes arose concerning operations. As a result of these problems, negotiations were instituted which culminated in the execution of a Letter Agreement containing a mutual release in paragraph seven. The release paragraph states:

UOP and TCR hereby fully and completely release and discharge each other from any and all obligations, claims or causes of action, whether alleged or not, which have arisen or may arise out of or in connection with the design, construction, installation, performance and operation of the FCC Unit, or the Engineering and Construction Agreement or the Guarantee Agreement both dated May 1, 1972, between TCR and UOP and for all further claims which have arisen or may arise in connection therewith. (Emphasis added)

In addition the letter agreement contained paragraph eight stating:

It is understood and agreed that the FCC unit shall continue to be operated under, and subject to, the terms and conditions of the UOP Fluid Catalytic Cracking Process License Agreement ... between TCR and UOP.

Appellants contend in their first point of error the trial court erred in granting summary judgment due to the fact that UOP had not discharged its duties under the license agreement. Appellants argue the release was not complete since the Letter Agreement contains obligations of appellee that remain binding and, thus, granting of summary judgment was error.

The obligations that appellee had under the license agreement were to design the unit, furnish advisory services for construction of the unit and furnish operating engineers for start-up. However, the unit had been designed, constructed and started up before the Letter Agreement was executed. The only remaining obligations under the license agreement were appellant TCR’s obligations to pay for and protect appellee’s proprietary secrets. There is no conflict between the two paragraphs and no duties remain for appellee to discharge under the license agreement. Appellants’ first point of error is overruled.

In their second point of error, appellants contend the trial court erred in granting summary judgment because the Letter Agreement is ambiguous concerning the release of all future liabilities. Appellants argue that the initial paragraph of the Letter Agreement only addresses the resolution of all outstanding matters and problems, while the release paragraph refers to all liabilities, whether past, present or future. Thus, appellants contend, the limited scope of the first paragraph is not consistent with the “total release” language found in paragraph seven. We disagree.

We do not need to reach the decision as to whether Texas or Illinois law should be applied in construing the Letter Agreement because the result is the same under both. It is not disputed that the Letter Agreement is construed as a contract. As such, the question of whether the agreement is ambiguous is a question of law to be determined by the court. R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517 (Tex.1980); Touhy v. Twentieth Century-Fox Film Corporation, 69 Ill.App.3d 508, 26 Ill.Dec. 32, 387 N.E.2d 862 (1979). A writing is ambiguous only when there is a genuine uncertainty as to which one of two or more meanings is the proper one. Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951); Epstein v. Yoder, 72 Ill.App.3d 966, 29 Ill.Dec. 169, 391 N.E.2d 432 (1979).

The primary concern of this court is to ascertain and give effect to the intentions of the parties as set forth in the instrument. To achieve this, the rule is to examine and consider the entire instrument so that none of the provisions are rendered meaningless. R & P Enterprises, 596 S.W.2d at 518-19; Estate of Savage v. Golub, 73 Ill.App.3d 656, 29 Ill.Dec. 706, 709, 392 N.E.2d 263, 266 (1979). When the provisions of a contract are attacked on the grounds they contradict one another, they should be harmonized, if possible, to reflect the intentions of the parties. Ogden v. Dickinson State Bank, 662 S.W.2d 330 (Tex.1983); Epstein v. Yoder, 29 Ill.Dec. at 175, 391 N.E.2d at 438. The court will not strike down any provision of a contract, unless there is an irreconcilable conflict. Ogden, 662 S.W.2d at 332.

A review of the two paragraphs that appellants contend are contradictory reveals instead that both paragraphs can be read in harmony with one another, resulting in one definite interpretation. It is clear that the parties entered into the agreement in order to resolve outstanding problems and as part of the agreement to resolve their disputes they agreed to a complete mutual release, which encompassed present and future claims. We are convinced that the Letter Agreement taken as a whole is an unambiguous instrument, and therefore point of error two is overruled.

In their third point of error, appellants contend that the trial court erred in granting summary judgment because ap-pellee failed to provide summary judgment proof that it had satisfied all conditions precedent under the Letter Agreement. No conditions precedent are apparent in the Letter Agreement and both Texas and Illinois courts are hesitant to construe any paragraph or obligation as a condition precedent; rather the presumption is towards a covenant. Schwarz-Jordan, Inc. v. Delisle Construction Co., 569 S.W.2d 878 (Tex.1978); F.E. Holmes & Son Construction Co., Inc. v. Gualdoni Electric Service, Inc., 105 Ill.App.3d 1135, 61 Ill.Dec. 883, 435 N.E.2d 724 (1982). As stated in the very case that appellants rely on: “If a contract contains no conditions precedent, then, of course, a rule 54 allegation is unnecessary.” Texas International Airlines v. Wits Air Freight, 608 S.W.2d 828 (Tex.Civ.App.—Dallas 1980, no writ). Thus, appellee did not have to plead performance of conditions precedent and point of error three is overruled.

In order for this court to uphold a summary judgment, the moving party must demonstrate that as a matter of law there are no genuine issues of fact. Wesson v. Jefferson Savings & Loan Association, 641 S.W.2d 903 (Tex.1982). A review of the record convinces us that no genuine issue of material fact exists as to any point raised by appellant. Appellee is entitled to judgment as a matter of law, therefore the judgment of the trial court is affirmed.


author: STEPHENSON, Justice. LEIBSON, Justice,

text:
    CONTINENTAL AIR FILTER COMPANY and Employers Mutual Liability Insurance Company of Wisconsin, Movants, v. James S. BLAIR and Workers’ Compensation Board, Respondents.
    Supreme Court of Kentucky.
    Dec. 6, 1984.
    William P. Swain, Larry L. Johnson, William M. Newman, Jr., Boehl, Stopher, Graves & Deindoerfer, Louisville, for mov-ants.
    W. Ken Nevitt, Louisville, for James S. Blair.
    J. Scott Getsinger, Workers’ Compensation Bd., Frankfort, for Workers’ Compensation Bd.
   STEPHENSON, Justice.

The Workers’ Compensation Board reopened its award to James Blair and increased his percentage of disability from 50 percent to 100 percent. This procedure was based on a change in economic conditions. The trial court affirmed, and the Court of Appeals affirmed the theory of the reopening. We granted discretionary review and reverse.

James Blair was involved in a work-related industrial accident in which he lost all his fingers except for one index finger and both thumbs. Blair was awarded 50-per-cent disability. Continental had created a new job for Blair which did not require him to use his hands. He was later transferred to another job on the night shift and then to a third job when the night shift was abolished. Blair worked on the last job one day and quit, stating he could not perform the work. There is a dispute as to the reason for Blair quitting, dislike of the foreman or intent to take early retirement.

Blair filed a motion with the Workers’ Compensation Board to reopen his claim under KRS 342.125. The change of conditions asserted by Blair was not a change of physical condition, but a change in his economic condition. No medical testimony was offered, and there is no claim of any change in physical condition. The trial court affirmed the Board, and the Court of Appeals affirmed holding that a change in economic condition is sufficient to fulfill the reopening requirements of KRS 342.-125.

KRS 342.125(1), concerning this proposition, provides in part:

“Upon its own motion or upon the application of any party interested and a showing of change of condition, mistake or fraud or newly discovered evidence, the board may at any time review an award or order_” [Emphasis added.]

The difficulty with the decision of the Court of Appeals is that it attempts to finesse a long-standing holding of this court that “change of conditions” in the Act means change in physical condition.

This interpretation of change in condition is exemplified in Osborne v. Johnson, Ky., 432 S.W.2d 800, 804 (1968), where we said:

“Since the determination of post-injury earning capacity is to be based on normal economic conditions, it follows that a mere fluctuation in economic conditions will not be considered a ‘change in conditions’ within the meaning of the reopening statute, KRS 342.125. As we interpret the statute, the change of conditions contemplated is a change of the workman’s physical condition.”

All the cases that have relied on Osborne have referred to “change of conditions” as “functional disability,” i.e. physical condition.

The Court of Appeals cited Osborne and Central City v. Anderson, Ky., 521 S.W.2d 246 (1975), and expressed the opinion these two cases must be restricted to their facts, thereby distinguishing the two cases from the situation presented here.

We are of the opinion the fact situation here falls directly within the rule in Osborne and that the Court of Appeals’ decision is erroneous in holding otherwise.

We have not attempted to list the opinions of this court following the rule in Osborne. It is sufficient to state again that a change in economic conditions is not a ground for reopening an award under KRS 342.125(1). A reopening must be based on a change in physical condition. We recognize that the language of the statute is susceptible to a different interpretation. However, our interpretation in Osborne and other cases is too well settled to change in the absence of action by the General Assembly.

The decision of the Court of Appeals is reversed with directions that the judgment of the trial court be reversed.

STEPHENS, C.J., and GANT, STEPHENSON, VANCE and WINTERSHEIMER, JJ., concur.

LEIBSON and AKER, JJ., dissent and file a separate dissenting opinion.

LEIBSON, Justice,

dissenting.

Respectfully I dissent. KRS 342.125 allows for reopening based upon “a showing of change of conditions,” not restricted to physical condition. Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968), should be interpreted to mean only that the “change of conditions” contemplated by the statute is normally a change in “physical condition,” not to mean exclusively a change in physical condition.

The majority opinion holds that the general statement of the law in Osborne v. Johnson admits of no exception. The statutory language is not exclusive. There should be exceptions where the facts warrant it. This is such a case.

Here, in 1978 the employer avoided a 100% occupational disability award by creating a new job for the disabled worker. The 1978 Opinion and Award states:

“[W]e would have to find this man 100% occupationally disabled if he were not working, of course this can be re-opened upon a change of condition pursuant to KRS 342.125.”

The appellant argued that the employee should have appealed the award if dissatisfied with 50%. But that was only a part of the Board’s “Findings.” The other part was that the case “can be reopened upon a change of condition.” This language, when referenced to the type of injury (traumatic amputation of the employee’s fingers) could only mean a change in working conditions and not a subsequent change in physical condition. The change in physical condition was sudden and complete at the time of injury. In the particular circumstances of this case it would be as reasonable, if not more reasonable, to assume that the employer accepted all of the Board’s 1978 findings (or would have appealed), as to assume the employee should have appealed.

The new job that was created has now been eliminated. The employee testified that the last position to which he was finally shifted is not suitable to his condition of disability. The majority opinion focuses on the employer’s testimony regarding statements by the employee suggesting that he was retiring, rather than leaving because of his disability. But the employee testified that he had neither the physical nor mental capabilities to perform this new job. This evidence supports the award.

The Board kept faith with its previous opinion. It found the employee had undergone a “change of conditions” entitling him to an increased award for total occupational disability, limiting its decision to the facts of this case. Had the Board found otherwise, it would encourage employers to place a seriously injured employee in a light duty position, and then effect his termination after the occupational disability award becomes final. The majority opinion in this case may provide such encouragement.

The evidence at the time of the 1978 award supported a finding that this employee was 100% disabled. It was only the fact that he had a special job created for him that kept him from getting this award. KRS 342.620(11) defines “disability” as meaning “a decrease of wage earning capacity due to injury or loss of ability to compete to obtain the kind of work the employee is customarily able to do ....” Although the key word is “capacity” and continued employment at an equal or greater earnings need not be critical to the issue, as a practical matter it is difficult for the Board to avoid taking into consideration continued employment at equal or greater pay in making an award. Had the Board awarded 100% initially in this case, it would have appeared grossly unfair.

The Board has found that there has been a change in occupational condition, not just economic condition. The record sufficiently supports the finding of the Board. I would affirm.

AKER, J., joins in this dissent.