author: POWERS, Justice.

text:
    MASSACHUSETTS INDEMNITY AND LIFE INSURANCE COMPANY, Appellant, v. TEXAS STATE BOARD OF INSURANCE, and Tom Bond, Commissioner of Insurance, Appellees.
    No. 14,153.
    Court of Appeals of Texas, Austin.
    Jan. 16, 1985.

      John L. Freeman, Michael Caolo & Associates, Dallas, for appellant.
    C. Dean Davis, Davis & Davis, Austin, for Texas Ass’n of Life Underwriters.
    Jim Mattox, Atty. Gen., Bradley Seals, Asst. Atty. Gen., Austin, for The State of Tex., Texas State Bd. of Ins., Tom Bond, Com’r of Ins.
    Before PHILLIPS, C.J., and POWERS and GAMMAGE, JJ.
   POWERS, Justice.

Massachusetts Indemnity and Life Insurance Company (MILICO) appeals from a trial court judgment holding constitutional section 10 of The Texas Agents Qualification and License Law for Agents of Legal Reserve Life Insurance Companies, Tex. Ins.Code Ann. art. 21.07-1 (1981 & Supp. 1984). MILICO contends section 10 is unconstitutional on the several grounds which we shall discuss below. Believing these contentions to be without merit, we will affirm the judgment of the trial court.

THE STATUTES CHALLENGED BY MILICO ON CONSTITUTIONAL GROUNDS — PRESUMPTIONS

The statutory provisions challenged by MILICO are included in article 21.07-1, supra, a statute that provides generally for the training, licensing, duties, and other regulation of “legal reserve life insurance agents,” a discrete class of insurance agents. (Other classes of insurance agents are governed in a similar way by another statute, Tex.Ins.Code Ann., supra, art. 21.-07.)

Section 10, the specific part of the statute attacked by MILICO on constitutional grounds, deals with the subject of temporary life insurance agents’ licenses, issuable by the “Life Insurance Commissioner” (the Commissioner of Insurance) when he is satisfied with the honesty and trustworthiness of the applicant for such a license. The license, effective for a period of 90 days, is issuable on certain conditions specified in section 10. Among these conditions are three of which MILICO complains.

1. The first requires that an agent’s application for the temporary license be accompanied by a certificate, executed by the insurer whom the agent will represent, to the effect that the agent “has been appointed or is being considered for appointment by such insurer as its full-time agent_” (§ 10(b)(1)).

2. The second provides that an “insurer may make no more than two hundred and fifty temporary licensee appointments during a calendar year_” (§ 10(e)).

3. The third provides that an agent holding only a temporary license “may not engage in any insurance solicitation, sale, or other agency transaction that results in or is intended to result in the replacement of any existing individual life insurance policy form or annuity contract that is in force....” (§ 10(b)(4)).

MILICO contends that each of these three statutory provisions violates the due-process and equal-protection guarantees of the State and federal constitutions. Tex. Const. Ann. art. I, §§ 3, 19 (1984); U.S. Const, amend. XIV, § 1.

We presume of course that the legislature intended its enactment to be in conformance with any constitutional requirements and construed accordingly. Therefore, every reasonable intendment and presumption will be made in favor of the constitutionality of the enactment; and if there could exist a state of facts justifying legislative classifications or restrictions, the reviewing court will assume its existence. Smith v. Decker, 158 Tex. 416, 312 S.W.2d 632 (1958); County of Cameron v. Wilson, 160 Tex. 25, 326 S.W.2d 162 (1959); Reed v. City of Waco, 223 S.W.2d 247 (Tex.Civ.App.1949, writ ref’d). The burden of persuasion rests upon the one asserting the unconstitutionality of the enactment to point out precisely how a constitutional principle has been violated. Duncan v. Gabler, 147 Tex. 229, 215 S.W.2d 155 (1948); Jefco, Inc. v. Lewis, 520 S.W.2d 915 (Tex.Civ.App.1975, writ ref’d n.r.e.). Aside from these presumptions of constitutionality, the legislature, in its enactment of a statute regulating a business activity, is presumed to be familiar with the manner in which the business was conducted at the time. Western Co. v. Sheppard, 181 S.W.2d 850 (Tex.Civ.App.1944, writ ref’d). It is under these presumptions that we must view and evaluate MILICO’s contentions of unconstitutionality.

DUE PROCESS AND EQUAL PROTECTION

Equal Protection

We believe it beyond dispute that the legislature has the power to license and regulate insurance agents “for the protection of the public in respect to the purchase and sale of insurance policies.” Great National Life Insurance Co. v. Chapa, 377 S.W.2d 632, 635 (Tex.1964). See generally 16 Appleman, Insurance Law and Practice §§ 8631-8636 (1981).

The three statutory provisions challenged by MILICO obviously distinguish quite significantly between different classes of persons engaged in the insurance business. It is not argued in the present case that any fundamental interest or suspect class is involved. Therefore, in testing such economic regulation against the equal-protection clause of the 14th Amendment, the applicable standard is whether the statutory classification and different treatment bear a “rational relationship” to a legitimate state interest which the statute is designed to further. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). The ultimate scope of this standard is quite narrow:

The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted. Thus, we will not overturn such a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.

Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 942, 59 L.Ed.2d 171 (1979) (emphasis added). The rational-relationship standard serves also as the measure by which to judge an invocation of the corollary provision of the Texas Constitution found in the Texas Bill of Rights, Tex. Const. Ann. art. I, § 3 (1984). Lubbock Poster Co. v. City of Lubbock, 569 S.W.2d 935, 944 (Tex.Civ.App.1978, writ ref’d n.r.e.).

1. Limited Number of Temporary Licenses. MILICO contends the statutory classifications distinguish arbitrarily and capriciously between those insurers appointing more than 250 temporary licenses each calendar year and those appointing less than that number. It is obviously true that in one sense the legislative choice of 250 was “arbitrary," for it may reasonably be argued that 251 or 249 would have furthered with equal effectiveness any State regulatory interest. But the test to be applied to the statutory figure does not address whether it is an ideal or correct number, but whether 250 “is so unrelated to the achievement of any combination of legitimate purposes that we may only conclude that the” legislature was irrational in selecting that number. Vance, supra. We obviously may not so conclude in the present case.

Leaving for a moment the action of the legislature in selecting the number 250, we turn first to the question of whether the legislature could act at all to limit the number of insurance agents an insurer may certify for temporary licenses. On what legitimate ground could the legislature base a decision that the number of temporary licensees should be limited?

The original act, which provided for the temporary licensing of agents, did not set a limit on the number of such temporary licenses. But the emergency clause of that original enactment is instructive of the State purposes designed to be served in regulating legal reserve life insurance agents generally, including that aspect dealing with temporary licenses. The Legislature found an emergency in:

[t]he fact that under existing law life insurance agents for legal reserve life insurance companies authorized to do business in Texas are not required to establish their qualifications and competence in the field of life insurance as a condition to obtaining license to sell life insurance in Texas; the further fact that it is in the public interest that the purchasers of legal reserve life insurance in Texas have assurance that the life insurance agents are competent, qualified and trustworthy; and the further fact that the existing statutes of Texas are wholly inadequate to accomplish the foregoing purposes....

1955 Tex.Gen.Laws, ch. 213, § 18, at 629.

These purposes being patently legitimate, are they rationally served by limiting the number of temporary licensees and is the number 250 so unrelated to them as to be irrational? The 1955 enactment did not limit in any respect the number of temporary licenses although it did contain the two other provisions of which MILICO complains. Section 10, as presently constituted, is rather plainly intended to allow training by the insurer of its new agents, subject to the public being protected during the course of such training. For example, temporary licenses are not renewable and may not be issued to the same individual more than once in a specified period of time; the insurer must certify that the temporary licensees have at least an expectation of full-time employment on expiration of the temporary license and their training period; the temporary licensees may not solicit or sell a policy in replacement of existing individual life insurance policies; and so forth. That the temporary licensing scheme is a training device is shown in subsection (b)(6) where it is provided that the Commissioner may cancel or suspend an insurer’s right to engage such temporary licensees if the insurer has “abused” the right, as indicated by such things as a failure of a number of the temporary licensees of a given company to pass the examination required for regular appointment, the percentages being specified in subsection (d) of section 10.

In limiting the number of temporary licensees to 250 in any calendar year, the legislature presumably intended to balance the public interest mentioned above against what it presumably knew: that some insurers subject to the statute engage more temporary licensees than others. See New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); Reed v. City of Waco, supra. Limiting the number to 250 would presumably permit better supervision and control of temporary licensees by the insurers who use and train them, and hence better training and better management of their contacts with the insurance-buying public until such time as the Commissioner shall by examination “determine [their] competence with respect to insurance and annuity contracts and [their] familiarity with the pertinent provisions of the laws of this State_” Tex.Ins.Code Ann. art. 21.07-1, § 5(a) (Supp.1984).

It may be true, as MILICO contends, that the legislature did not first “demonstrate” how limiting the temporary licensees to 250 for any one insurer, in any calendar year, would advance a legitimate State purpose; and it might even be true that “studies” show 250 is an unwise choice. Moreover, the number 250 is admittedly not itself “supported by any legislative findings of fact.” But, we are aware of no requirement that the legislature support its enactment by such “findings of facts.” And, “[t]he considerations upon which such classifications shall be based are primarily within the discretion of the Legislature,” and the judicial branch may interfere only when “it is made clearly to appear that there is no reasonable basis for the attempted classification.” Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d 896, 900-01 (1937).

It has not, in the present case, been made to appear that the 250 dividing line has no reasonable basis and it is presumptively constitutional and reasonable as a statutory enactment. MILICO may show that 500 was a more reasonable number in the circumstances, but that does not suggest that 250 is unreasonable. “We do no sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems_” Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). And a litigant “may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken.” Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981). Indeed, the very evidence cited in MILICO’s brief in this Court indicates that the legislature perceived abuses in the employment of temporarily licensed agents, and we suppose it could reasonably select the number 250 merely to ascertain whether that would not reduce the abuses by assuring better supervision by insurers. “The lines must be drawn somewhere, and the authorities above cited hold that the determination of where to draw them is for the Legislature and not for the courts.” Hurt v. Cooper, supra, at 903.

Nevertheless, MILICO claims that the number 250 (as well as most of the objectionable parts of the statute — even, we presume, those that were contained in the original 1955 enactment) resulted from intense lobbying of the legislature by MILI-CO’s commercial competitor — the Texas Association of Life Underwriters (TALU) which employs no temporarily licensed agents. We think it manifest that almost all legislation is procured through the efforts of some interested persons. We do not see how that affects the issue of whether the resulting statute was within the constitutional limits permitted the legislature in making statutory law. We are not certain therefore what legal proposition MILICO intends by its assertion but it resurrects the words used by Justice Murphy in a similar case: "It is said that the ‘insurance lobby’ obtained this statute ... But a judiciary must judge by results, not by the varied factors which may have determined legislators’ votes.” Daniel v. Family Security L. Ins. Co., 336 U.S. 220, 69 S.Ct. 550, 93 L.Ed. 632 (1949).

Appellant’s reliance on Ground Water Conservation Dist. No. 2 v. Hawley, 304 S.W.2d 764 (Tex.Civ.App.1957, writ ref’d n.r.e.) is misplaced. There, the court found no rational basis for legislation which effectively excepted from property taxes tracts of land of a size more than 639 acres. See also Prudential Health Care Plan v. Com’r of Ins., 626 S.W.2d 822 (Tex.App.1981, writ ref’d n.r.e.) (no rational basis for imposing the entire administrative cost of regulation on corporate, as opposed to non-corporate, health maintenance organizations when they were, for all other regulatory purposes, treated exactly the same).

2. Selling or Soliciting Replacement Policies by Temporary Licensees. MILICO next attacks, on a theory that it was denied equal protection of the laws, that part of the statute which forbids temporarily licensed agents to sell or solicit insurance policies in replacement of existing policies held by a prospective purchaser. We find a rational basis for this section as well, under the authorities mentioned above. The legislature presumably intended to minimize potential harm to the holders of life insurance policies that might be occasioned by ill-considered advice given by agents not yet sufficiently trained and knowledgeable to analyze and compare accurately an existing policy in reference to any suggested replacement. Cf. Houston-American Life Insurance Co. v. Tate, 358 S.W.2d 645, 657 (Tex.1962) (purpose of another statute providing for licensing of casualty-insurance agents “was to afford to the citizens of Texas ... the protection which comes from having independent agents counsel and help them in their insurance affairs”). Appellant rejoins by a contention that the same end could be achieved by forbidding all inexperienced insurance salesmen from such sales or solicitations. This is, of course, contrary to the fundamental proposition that the Commissioner, under the legislative scheme, determines trustworthiness and competence after examination, as stated in § 5 of the statute. And, it is well-settled that, in economic legislation, it matters not that the statute is significantly underinclusive or overinclusive. Vance v. Bradley, supra, at 108, 109, 99 S.Ct. at 57-58. Perfect congruence is not required between the law’s justification for class legislation and the class enjoined from enjoying a licensed privilege. We may not overturn the statute “unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only con-elude that the legislature’s actions were irrational.” Vanee v. Bradley, supra. In summary, the Legislature acted well within its power when it attempted to further and adjust the competing goals of proper training and public protection. Vance v. Bradley, supra; Daniel v. Family Security L. Ins. Co., supra.

Appellant’s reliance on Ex parte Dreibelbis, 133 Tex.Cr.R. 83, 109 S.W.2d 476 (1937) is unjustified because the court there dealt with a taxing ordinance for which no rational basis could be supposed.

3. Classifications Based on Full and Part-Time Agents as Temporary Licensees. MILICO’s last equal-protection contention sets forth two basic arguments. The first is that the provision which allows insurers to obtain the temporary licenses for its agents only when they have been appointed for full-time service or are being considered for full-time service discriminates invidiously between full and part-time agents. We do not believe that MILI-CO, even though it is an employer of part-time agents, has standing to raise this issue jus tertii. Erie R. Co. v. Williams, 233 U.S. 685, 34 S.Ct. 761, 58 L.Ed. 1155 (1914). Cf. Herbring v. Lee, 280 U.S. 111, 50 S.Ct. 49, 74 L.Ed. 217 (1929) (A state statute imposing a $500 fee for each additional agent beyond a prescribed number employed by a foreign insurance company does not deny equal protection of the laws to one seeking appointment as such agent, for it does not impose a restriction upon him but rather a fee imposed only upon the foreign insurer as a condition precedent to its right to appoint the additional agent— “[i]t is plainly no interference whatever with the right of the individual to carry on the business of an insurance agent, or class legislation in this respect”). This is not a case in which the third parties on whose behalf appellant is arguing are unable to assert their own rights; nor is the constitutional right asserted — freedom from economic discrimination — of sufficient weight to permit standing to raise the argument. Cf. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (vendor permitted to assert jus tertii the interests of vendees who were the targets of gender-based legislation); see also Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599, 646 (1962).

MILICO’s second argument is to the effect that the distinction between full and part-time work distinguishes invidiously between employers, that is, between those who employ part-time agents and those who do not, to the detriment of the former. We find the distinction fully justified by the factors we have enumerated at length above which pertain to assuring the competence and training of agents while simultaneously protecting the public from the ill effects of their lack of training and competence. We need not belabor them further. The validity of a regulation specifying what persons may act as insurance agents for companies authorized to do business in the State is not to be judged by abstracting a particular item covered by that regulation and evaluating it in isolation. Osborn v. Ozlin, 310 U.S. 53, 60 S.Ct. 758, 84 L.Ed. 1074 (1940). Moreover, even if the regulation affects only a few it does not thereby deny equal protection for that reason alone. Daniel v. Family Security L. Ins. Co., supra (statute that prohibited undertakers from acting as agents for life insurance companies is not, as applied to a single company in a case where parties to insurance contracts contemplate use of the proceeds to pay for funeral expenses, violative of either the due-process or equal-protection guarantees of the Constitution of the United States).

SUBSTANTIVE DUE PROCESS

MILICO also attacks the aforementioned statutory provisions on the ground of substantive due process. The due-process clause of the federal constitution, in this respect, places the same restrictions on the exercise of state legislative power as the similar clause in the Texas Constitution. Tex. Const. Ann. art. I, § 19 (1984); Mellinger v. City of Houston, 68 Tex. 36, 37, 3 S.W. 249 (Tex.1887); Lively v. Missouri, K. & T. Ry. Co. of Texas, 102 Tex. 545, 120 S.W. 852 (1909). At a constitutional minimum, then, our duty under both the state and federal constitutions is to test the statute to see whether the means are rationally related to a legitimate end. For the reasons already stated in support of the classifications made by the statute, we find that the statute rationally furthers legitimate state purposes by allowing for the training of agents under conditions which protect the insurance-buying public. Moreover, our review of Texas cases inclines us against giving broader scope to § 19 than the federal constitution affords in cases of this kind. See, e.g., Thompson v. Calvert, 489 S.W.2d 95, 99 (Tex.1972) (quoting from Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1933)).

DUE PROCESS — VAGUENESS

Before addressing appellant’s vagueness contentions, we note a few of the guidelines established by state and federal courts for measuring vagueness, bearing in mind the fundamental presumption of constitutionality accorded all legislation. Prudential Health Care Plan, supra. The standards for measuring vagueness are less stringently applied to non-criminal regulations, particularly economic legislation. Ely v. State, 582 S.W.2d 416 (Tex.Cr.App.1979); Record Head Corp. v. Sachen, 682 F.2d 672 (7th Cir.1982). Moreover, a statute is not unconstitutionally vague simply because it could have been drafted with greater precision. Harper v. Lindsay, 616 F.2d 849 (5th Cir.1980).

The general standard for gauging vagueness was laid down by the United States Supreme Court in Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951), and has reappeared in various forms in subsequent decisions. Thus, for example, courts have sought to determine whether the language of the statute conveys sufficiently definite warning, Jordan, supra; whether men of common intelligence must necessarily guess at its meaning, Keyishian v. Board of Regents of New York, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) (emphasis supplied), Sanders v. State Department of Public Welfare, 472 S.W.2d 179 (Tex.Civ.App.1971, writ dism’d); whether a person of ordinary intelligence runs a substantial risk of miscalculation in seeking to comply with the statute, Texas Liquor Control Board v. Attic Club, Inc., 457 S.W.2d 41 (Tex.1970) (emphasis supplied); and whether an ordinary person could sufficiently understand and comply with the statute, CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973).

Courts have experienced difficulty applying these general standards, since practically all legislation is ambiguous at its periphery. Persons of ordinary intelligence must necessarily guess at a statute’s meaning with respect to marginal situations. Thus more recent opinions have refined the general standard. Some courts have searched the questioned statute for an “ascertainable core meaning,” and others have held that a statute is unconstitutionally vague on its face only when it cannot validly be applied in any context. Basiardanes v. City of Galveston, 682 F.2d 1203 (5th Cir.1982); Brache v. County of Westchester, 658 F.2d 47 (2nd Cir.1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1643, 71 L.Ed.2d 874 (1982). See also DiLeo v. Greenfield, 541 F.2d 949 (2nd Cir.1976). It is apparent that the above guidelines, whether general or refined, differ somewhat in scope. With this in mind, we turn to appellant’s two contentions relative to vagueness.

1. “Replacement” Policies. Section 10 of the statute contains a provision which forbids temporarily licensed agents to engage “in any insurance solicitation ... that results in ... the replacement of any existing life insurance form...” MILICO contends the word “replacement,” as used in the section, is unconstitutionally vague. It argues that an agent has no way of verifying that the customer does not already have existing life insurance coverage and that “there is a substantial risk of miscalculation by those subject to the regulation....” MILICO, then, claims the statute is vague but argues that it is harsh because an unsuspecting agent might be misled by the owner of an existing life insurance policy who conceals the fact, secretly intending to cancel the existing policy if he purchases a substitute from the temporary licensee, or who merely forgets to mention the existing policy and decides later to cancel it after purchasing another from the temporary agent. An act of the legislature will not be declared unconstitutional merely on the grounds that it is harsh, unwise, or impolitic. Texas State Board of Public Accountancy v. Fulcher, 515 S.W.2d 950 (Tex.Civ.App.1974, writ ref d n.r.e.). MILICO does not, by its argument of harshness, show that the word “replacement” is vague, nor do we find it to be so on our own appraisal. It plainly means, in context, that temporary licensees may not solicit the sale of a life insurance policy as a substitute for an existing life insurance policy, a prohibition patently founded upon the temporary licensees’ likely incompetence in the matter of comparison. The statutory expression complained of by MILICO is as definite a declaration by the legislature as could be expected and is, no doubt, clearly understood as to its essential import by one affected thereby. A person reading it in good faith cannot misunderstand what the expression means.

2. Full-Time Employment. The statute requires that an insurer certify to the Commissioner of Insurance that each applicant for a temporary license has been appointed a “full-time” agent or is being considered for “full-time” appointment. We believe that an ordinary person seeking to conform his behavior to this requirement can be confident that certifying as “full-time” an agent who works or will work solely for the insurer 40 hours a week complies with the statute. He may also fairly suppose that certifying as “full-time” an agent who works only four hours a week violates the statute. The existence of the valid application alone is enough to uphold the statute under some of the cited cases. Basiardanes v. City of Galveston, supra. Moreover, we believe that a person of ordinary intelligence, reading the statute in good faith, need not of necessity guess as to its meaning, at least in so far as there exist obvious and reasonable interpretations by which he can be guided. The phrase obviously contemplates a normal or standard work period in business generally. Indeed, as in the matters of “replacement” mentioned above, MILICO’s argument does not appear to be so much that the statute is incomprehensible as that the rather obvious interpretations are onerous to it as an employer of temporary licensees on a part-time basis.

We overrule the points of error pertaining to the allegations of vagueness.

MOTION TO STRIKE INTERVENTION

MILICO claims by his seventh point of error that the trial judge abused his discretion when he denied appellant’s motion to strike a plea in intervention filed by appellee Texas Association of Life Underwriters (TALU). Tex.R.Civ.P.Ann. 60 (1979 & Supp.1984); Roberson v. Roberson, 420 S.W.2d 495 (Tex.Civ.App.1967, writ ref’d n.r.e.). Even were we to agree that the trial judge committed error, we do not think it was such as to call for reversal of the judgment. See Tex.R.Civ.P.Ann. 434 (1967 & Supp.1984). MILICO argues that TALU’s intervention “complicated the case ... by raising issues that were not material....” The trial judge ruled that the evidence introduced by TALU was material, and even if we think the intervention improper, we agree with his rulings on materiality. In any case, we do not think the judge’s action unduly complicated the proceedings or constituted an abuse of discretion.

ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

In its final point, MILICO complains of the trial court’s failure to file additional findings of fact and conclusions of law. The trial judge filed his initial conclusions of law pursuant to appellant’s timely request. MILICO claims that, because of the failure to file additional findings of fact and conclusions of law, he “is precluded from making a complete presentation of his case.” Beyond this rather bare assertion, however, MILICO does not argue precisely how his presentation on appeal has been prejudiced. The transcript contains MILICO’s suggested findings of fact. We have read them. We hold that the trial judge made findings on all the controlling issues — though some of these findings are labeled conclusions — and directly or indirectly disposed of all MILI-CO’s suggested findings. Wentz v. Hancock, 236 S.W.2d 175 (Tex.Civ.App.1951, writ ref 'd).

The judgment is affirmed.

PHILLIPS, C.J., not participating.

      . MILICO sued the State in a statutory cause of action for declaratory judgment, as authorized by the Uniform Declaratory Judgments Act, Tex. Rev.Civ.Stat.Ann. art. 2524-1 (Supp.1984).

      . All the powers and responsibilities of the "Life Insurance Commissioner” are presently vested in the State Board of Insurance and administered by the Commissioner of Insurance. See Tex.Ins.Code Ann. art. 1.02(c) (1981).

      . "The Constitution does not make it a condition of preventive legislation that it should work a perfect cure. It is enough if the questioned act has a manifest tendency to cure or at least make the evil less." Liggett Co. v. Baldridge, 278 U.S. 105, 115, 49 S.Ct. 57, 60, 73 L.Ed. 204 (1928) (Holmes, J., dissenting).

      . We do not fail to appreciate the economic burden placed upon MILICO by the provisions of § 10 and our consideration of them. The power of the legislature to enact class legislation always poses a possibility that the legislature will abuse that power. It may even be that class legislation is justified on grounds that are in fact illusory, or that the appearance of legitimate economic ends is really a cloak for a legislative body’s irrational prejudice toward the disadvantaged class. However, we are bound by precedent as we understand it — precedent that has flowed partly from the historical results which follow judicial attempts at making economic policy by striking down statutes "because they may be unwise, improvident, or out of harmony with a particular school of thought." Williamson v. Lee Optical Co., 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955). "That era long ago passed into history." Dandridge v. Williams, 397 U.S. 471, 484-85, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). Nor do we have the capacity to ascertain the subjective motivation with which the legislature acted. "[W]e cannot undertake a search for motive in testing constitutionality.” Daniel v. Family Security L. Ins. Co., supra. Rather, any remedy lies in such cases in the political process and a responsive legislature.


source: Caselaw Access Project

author: GAMMAGE, Justice.

license: Public Domain

text:
    H.C. BYLER, Appellant, v. Gerardo Sandoval GARCIA, Appellee.
    No. 14082.
    Court of Appeals of Texas, Austin.
    Jan. 16, 1985.
    Rehearing Denied Feb. 13, 1985.

      John C. Augustine, Fitzgerald, Meissner, Augustine & Alexander, Austin, for appellant.
    Philip C. Friday, Jr., Austin, for appellee.
    Before SHANNON, C.J., and EARL W. SMITH and GAMMAGE, JJ.
   ON MOTION FOR REHEARING

GAMMAGE, Justice.

This Court’s opinion and judgment filed on December 19, 1984, are withdrawn; the following opinion and judgment of even date are filed in their place.

Appellant, H.C. Byler, appeals from the judgment of the trial court awarding appel-lee, Gerardo Sandoval Garcia, $3778.06 in actual and exemplary damages, (including trebled damages of $625 for retention of security deposit), in addition to $3555 for attorney’s fees in a cause of action for wrongful eviction.

We will modify the judgment of the trial court and, as modified, affirm it.

Gerardo Sandoval Garcia, a citizen of Guatemala, entered into a short-term lease with H.C. Byler on or about November 3, 1981, for the rental of apartment number 304 at 3104 Duval, Austin. Garcia gave Byler a check for $370. The payment consisted of $195 for rent, $100 for deposit, and $75 as consideration for a special agreement between the parties allowing Garcia to have a short-term, 45-day lease, rather than the standard six-month lease.

Thereafter, Garcia approached Byler in an effort to extend the short-term lease. Byler informed Garcia that the apartment had already been relet. Subsequently, Garcia and Byler entered into another lease for apartment number 101. Garcia’s personal effects were transferred to his new apartment by members of Byler’s staff on December 15, 1981.

After the commencement of the second lease, Garcia informed Byler that he would be going to Guatemala during his Christmas vacation and furnished Byler a check for the January rent which was subsequently deposited by Byler. Garcia had not received any notification of alleged lease violations up to that time concerning either lease.

Garcia departed for Guatemala around the 18th of December and returned on January 27th to discover apartment 101 had been relet and his belongings removed. Unable to reach Byler, Garcia stayed in a motel that night. The following day, Garcia met with Byler and demanded both his apartment and the return of his personal effects. Byler refused to restore apartment 101 to Garcia and, instead, proffered another apartment in the neighboring Maui Kai complex, which Byler did not own. At this time, Byler purported to pay the deposit and the February rent for the Maui Kai apartment. Garcia’s belongings, which had been placed in garbage bags, were delivered to the apartment in Maui Kai.

On February 1, 1982, Garcia received a series of written notices from Byler demanding $210 for the February rental on the Maui Kai apartment, payment for various violations under his first lease, and Garcia’s return of the keys to apartment 101. According to Byler, Garcia violated his first lease agreement by the following: an unauthorized overnight guest of the opposite sex in the apartment on two separate occasions, a late rental payment, failure to clean the first apartment, and failure to timely vacate the first apartment. Garcia had already delivered the keys to the occupants of apartment 101, when his belongings were taken out of storage and transferred to the apartment at Maui Kai.

Thereafter, Byler filed a forcible entry and detainer suit in the justice court to evict Garcia from the Maui Kai apartment. The justice court ultimately dismissed this suit and ordered a take nothing judgment against Byler’s claim for damages. Garcia then nonsuited his cross-action for damages in the justice court and filed suit for wrongful eviction in the county court at law. The court entered judgment for Garcia and awarded actual and exemplary damages, in addition to attorney’s fees.

Byler complains by points of error one, two and three that the trial court erred in its denial of his motion for new trial, the award of exemplary damages, and the award of attorney’s fees, arguing there was insufficient evidence to support a finding that Byler’s conduct was willful and reckless under either 1973 Tex.Gen.Laws, ch. 441, art. 5236c, § 2, art. 5236d, §§ 5, 6, 7, at 1226, or a common law theory of wrongful eviction.

According to Byler, his action in reletting apartment 101 during Garcia’s absence was prompted by a belief that the apartment was abandoned and, therefore, such an act could not constitute willful conduct.

The word “willful,” when used in a penal statute, means without reasonable ground to believe the act lawful.” This definition does not require knowledge that the act was unlawful. Causey v. Catlett, 605 S.W.2d 719 (Tex.Civ.App.1980, no writ). Art. 5236 provides, in pertinent part:

Art. 5236c
... Willful Exclusion by Landlord Sec. 2. It shall be unlawful for a landlord or his agent to willfully exclude a tenant from the tenant’s premises in any manner except by judicial process. Willful exclusion shall mean preventing the tenant from entering into the premises with intent to deprive the tenant of such entry. Provided, however, a landlord or his agent shall not be prevented from removing the contents of the premises when the tenant has abandoned the premises....
Art. 5236d
Sec. 5. It shall be unlawful for any landlord or his agent to seize any property exempt under Section 2 above, under any circumstances. It shall be unlawful for a landlord or his agent to seize any property not exempt under Section 2 above, unless pursuant to the terms of a written rental agreement between the landlord and the tenant.
Sec. 6. Nothing herein shall prevent a landlord or his agent from removing the contents of the premises when the tenant has abandoned the premises.
Sec. 7. Upon willful violation of this Article by the landlord or his agent, the tenant may recover one month’s rent, plus actual damages, plus reasonable attorney’s fees, less any delinquent rentals or other sums for which the tenant is liable.

Our review of the record discloses statements by Byler which, without more, are sufficient to support a finding that his conduct was willful. The record, however, does contain more. Interlaced with Byler’s claim that he believed the apartment to be abandoned were statements by Byler’s agent and his attorney that there was apparently someone using the apartment during Garcia’s supposed absence. These statements clearly negate the assertion of abandonment.

Byler further asserts that his actions in obtaining an apartment for Garcia and his payment of the February rent and deposit for the Maui Kai Apartment evidenced his good will. However, the record also shows that Byler delivered a rent due notice to Garcia for $210 of the February rent and then filed a forcible entry and detainer suit against Garcia for his failure to pay this sum in addition to amounts claimed for various lease violations that Byler asserted Garcia had committed.

All of the above support a finding that Byler acted without a reasonable basis for believing the act was lawful. Points of error one, two and three are overruled.

Byler contends by his fourth point of error that the trial court erred in awarding actual damages and attorney’s fees pursuant to the applicable statutory provisions and exemplary damages under common law. He asserts that a tenant must elect to pursue either the statutory or the common law cause of action and thereby recover only under one or the other. Article 5236c provided, however, that

Nothing in this Article shall serve to affect or diminish any of the rights of the landlord or tenant under contract, statute, or common law which are consistent with the provisions hereof.

Under Texas law, in a situation where common law and a statute both provide remedies, the statutory remedy is cumulative of the common law remedy unless the statute expressly or impliedly negatives or denies the right to the common law remedy. Gulf, C. & S.F. Ry. Co. v. Woods, 262 S.W. 229 (Tex.Civ.App.1924, no writ). Here, the statute expressly provides that common law remedies consistent with it are not affected. The trial court did not err in awarding damages under both statutory and common law.

Byler further argues that the award of exemplary damages under common law and attorney’s fees under the statute amounted to a double recovery for Garcia because attorney’s fees are an element of exemplary damages. While it is true that attorney’s fees may be included in exemplary damages. Allison v. Simmons, 306 S.W.2d 206 (Tex.Civ.App.1957, writ ref’d n.r.e.), they are not a necessary element in the computation of exemplary damages. The trial court, in this instance, held in its findings of fact and conclusions of law that the exemplary damages were computed by multiplying the actual damages by five. It did not include attorney’s fees in its consideration of exemplary damages, hut awarded attorney’s fees under the statute. Consequently, there was no double recovery of attorney’s fees. The fourth point of error is overruled.

In his fifth point of error, Byler contends the trial court erred in awarding damages and attorney’s fees under Article 5236e because there was insufficient evidence that Byler’s retention of Garcia’s security deposit was done in bad faith. Under Article 5236e, if the landlord in bad faith does not return the tenant’s security deposit within thirty days after the tenant surrenders the premises, the landlord will be liable for $100, plus treble that portion of the deposit wrongfully withheld and reasonable attorney’s fees to recover the deposit. The burden of proof is on the landlord to show his retention of the security deposit was reasonable, and the landlord must also carry the burden of proof to rebut the presumption of bad faith that arises when the deposit is not returned within thirty days.

According to Byler, Garcia committed several violations under the first lease, entitling Byler to retain the security deposit. The security deposit for the first apartment had been transferred, however, as a security deposit under the second lease agreement. Under these facts, Byler had the right to bring a cause of action for the violations alleged, but had relinquished his right to retain the security deposit in satisfaction of the damages when he released it for use as a security deposit under the second lease agreement. Byler claimed no damages or charges under the second lease. Indeed, Garcia resided in the apartment under the second lease for only three days before departing for Guatemala. Byler’s action in retaining the deposit for more than thirty days without rebutting the presumption of bad faith entitled Garcia to the damages prescribed in the statute for wrongful detention of the security deposit. Byler’s fifth point of error is overruled.

In Byler’s sixth and seventh points of error, he contends that the trial court erred when it found the amount of the security deposit to be $175, rather than the $100 provided in the lease agreement. He argues the additional $75 was consideration for the granting of a short-term lease. Garcia concedes these points and we will sustain them and reform the trial court’s judgment accordingly.

Byler complains in his eighth point of error that the trial court erred in awarding attorney’s fees pursuant to Tex.Rev. Civ.Stat.Ann. art. 2226 (Supp.1984), which provides for attorney’s fees in certain instances, including a claim on an oral or written contract. The court’s findings of fact and conclusions of law reflect that the trial court did not base its judgment on a contract theory, and therefore, the court could not have awarded attorney’s fees under article 2226. The judgment does reveal, however, that the trial court also awarded attorney’s fees on the basis of article 5236c, d, and e for wrongful eviction. These statutory provisions, standing alone, are sufficient to uphold the award of attorney’s fees. Any error attributable to including article 2226 under the award of attorney’s fees was harmless. Tex.R.Civ. P.Ann. 434 (1984). Point of error eight is overruled.

Byler complains in point of error nine that the trial court erred in its award of damages in that the calculation included exemplary damages for breach of contract for which there is no basis in law. As previously mentioned, the findings of fact and conclusions of law show that the trial court did not award any damages for a breach of the lease agreement, but grounded its award of damages on wrongful eviction. Byler’s ninth point of error is without merit and is overruled.

Finally, Byler’s tenth and eleventh points of error concern the trial court’s failure to offset Byler’s claim for damages in the amount of $210 for the February rent and various charges for the breach of the first lease agreement. In the trial court’s findings of fact and conclusions of law, it found Byler was not entitled to offset any of the claimed damages. The trial court’s fact findings must be upheld on appeal if the record contains more than a scintilla of evidence to support them. We must review the evidence in its most favorable light, considering only evidence and inferences which support the findings and rejecting evidence and inferences contrary to the findings. Stedman v. Georgetown S. & L. Ass’n, 595 S.W.2d 486 (Tex.1980).

Regarding the claim for $210 of the February rent, the record reflects that Garcia had entered into a separate lease with the owner of Maui Kai for the apartment he was occupying and that Garcia had in fact paid a February rental to that landlord. The record also shows that the trial court had sufficient evidence to deny recovery on the other charges alleged by Byler. Consequently, the tenth and eleventh points of error are overruled.

Accordingly, the judgment is reduced by $225 (the trebled $75.00 conceded by Garcia to be consideration for Byler’s grant of a short-term lease), and modified to provide that Garcia recover from Byler, as actual and exemplary damages, the sum of $3553.06, instead of $3778.06. As so modified, and in all other respects, including the award of attorney’s fees, as provided therein, the judgment of the trial court is affirmed.


author: BOYD, Justice.

text:
    In re The STATE of Texas for the Best Interest and Protection of Zella MAYBERRY.
    No. 07-84-0277-CV.
    Court of Appeals of Texas, Amarillo.
    Jan. 16, 1985.

      Richard Keffler, Amarillo, for appellant.
    William Baumann, County Atty., Chris Kloeris, Asst. County Atty., Amarillo, for appellee.
    Before REYNOLDS, C.J., and DODSON and BOYD, JJ.
   BOYD, Justice.

Appellant Zella Mayberry appeals from the order of the trial court committing her to the Vernon State Hospital for a period not to exceed ninety days for temporary in-patient mental health services. In one point of error she contends that insufficient evidence was produced at the hearing to support the court’s finding that her temporary hospitalization was necessary. We agree that the order of temporary hospitalization is not supported by that quantum of evidence required by due process. Therefore, we reverse the action of the trial court and order appellant’s discharge.

• This proceeding was begun by the filing of an application for emergency apprehension and detention alleging, in general terms, certain behavioral aberrations exhibited by appellant which assertedly evidenced her mental illness and posed substantial risk of serious harm to herself or others. Based upon the examining physician’s written report, which characterized her mental condition as a chronic and recurrent state of paranoid schizophrenia, appellant was placed in protective custody.

Thereafter, an application for court-ordered temporary mental health services was filed. See Tex.Rev.Civ.Stat.Ann. art. 5547-32 (Vernon Supp.1984). Pursuant thereto, appellant was examined by two physicians, Dr. M. Jones and Dr. J. Johnson, who prepared certificates containing their respective conclusions, in pre-printed language tracking the statutorily-required findings, that she was mentally ill and likely to cause serious harm to herself or others, and if not treated would continue to suffer mental problems. See Article 5547-33(a)(7). The diagnosis of her condition was recited in both certificates as “Schizo Affective Disorder.” However, in neither certificate were expressed any facts leading to or supporting the diagnosis or to the pre-printed conclusions respecting the consequences of nontreatment.

By written instrument, appellant waived cross-examination of the physician-witnesses at the hearing on the application, wherein the judge was trier of fact. The only evidence adduced at the hearing was the certificates of the examining physicians. These certificates were the sole basis for the court’s order of temporary hospitalization. Parenthetically, we note that the court’s order contained a finding that the application and physicians’ certificates were “true and correct and [were] supported by clear and convincing evidence.”

Article 5547-50 provides, as relevant here, that

(b) Upon the hearing, the judge or the jury, if one has been requested, shall determine that the person requires court-ordered mental health services only if it finds, on the basis of clear and convincing evidence, that:
(1) the person is mentally ill; and
(2) as a result of that mental illness the person:
(i) is likely to cause serious harm to himself; or
(ii) is likely to cause serious harm to others; or
(iii) will, if not treated, continue to suffer severe and abnormal mental, emotional, or physical distress and will continue to experience deterioration of his ability to function independently and is unable to make a rational and informed decision as to whether or not to submit to treatment.
(c) The clear and convincing evidence must include expert testimony and, unless waived, evidence of either a recent overt act or a continuing pattern of behavior in either case tending to confirm the likelihood of serious harm to the person or others or the person’s distress and deterioration of ability to function.

The evidence considered by the trier of fact in determining the necessity of temporary hospitalization must include, as a bare minimum, the sworn Certificates of Medical Examination for Mental Illness by two physicians. Articles 5547-46(c) and 50(c). Those physicians’ certificates, in turn, must include, inter alia

the opinion of the examining physician and the detailed basis for that opinion that:
(A) the person examined is mentally ill; and
(B) as a result of that illness the person:
(i) is likely to cause serious harm to himself;
(ii) is likely to cause serious harm to others; or
(iii) will, if not treated, continue to suffer severe and abnormal mental, emotional, or physical distress and will continue to experience deterioration of his ability to function independently and is unable to make a rational and informed decision as to whether or not to submit to treatment.

Article 5547-33(a)(7).

The temporary committment of a proposed patient must rest, in toto or in conjunction with testimony of lay witnesses, on competent medical or psychiatric testimony, Tex. Const, art. I, § 15-a, which, if cross-examination is waived, may be in the form of the physicians’ certificates, art. 5547-47(a); but the evidence, however constituted, that hospitalization is required must be clear, unequivocal, and convincing. Moss v. State, 539 S.W.2d 936, 943 (Tex.Civ.App.—Dallas 1976, no writ); Article 5547-50.

The Dallas Court of Civil Appeals, in Moss v. State, a case closely analogous to the instant case, construed the governing provisions of the Texas Mental Health Code. That court held that in light of constitutional requirements of due process, the medical conclusions furnishing the basis for the fact-finder’s determination that temporary hospitalization is necessary, must be attended by the presentment of specific objective factual data supporting the medical opinion. Id. at 950. The Court reasoned this is necessary because

we are not convinced that a psychiatrist, physician, or any other expert is sufficiently qualified by training or experience in the prediction of human behavior that his bare opinion of ‘potential danger’ is sufficient to justify the court in depriving a person of his liberty.

Id. at 951.

It is undisputed that the only evidence upon which appellant was involuntarily hospitalized was the certificates of Drs. Jones and Johnson. Those instruments contained their bare conclusions that appellant suffered from a “schizo affective disorder” and their derivative opinion that unless treated, appellant was likely to cause serious harm to herself or others. The State candidly concedes that the certificates do not contain any descriptive factual observations of the doctors that would form a detailed basis for the conclusions and opinions of the doctors. However, notwithstanding the apparent noncompliance of the certificates with the requirement of article 5547-33, the State argues the evidence is sufficient to support the court’s order. The State’s argument in asserting that position is two-pronged.

The State contends initially that by waiving the right of cross-examination of witnesses and agreeing to the receipt into evidence of the physicians’ certificates, appellant cannot challenge the sufficiency of the certificates. Second, as we understand its argument, appellant’s waiver of cross-examination effectively translates into a waiver of her opposition to hospitalization. In such a “non-controverted” hearing, the State reasons, the requirement of article 5547-33 as to the “detailed basis” for the physicians’ opinions does not apply, and the order of temporary hospitalization may be founded solely upon the physicians’ unsupported certificates. As support for this position, the State cites the case of Dial v. State, 658 S.W.2d 823 (Tex.App.—Austin 1983, no writ). We do not agree with the State’s position.

Respecting its initial contention, the State apparently relies on article 5547-47(a), which provides:

At the hearing on an Application for Court-Ordered Temporary Mental Health Services, the person and his attorney may waive in writing the right to cross-examine witnesses. If such a waiver is made and filed with the court, the court may admit into evidence the Certificates of Medical Examination for Mental Illness and make its findings on the basis of the certificates. If so admitted, the certificates shall constitute competent medical or psychiatric testimony and the court may make its findings on the basis of these certificates.

That the certificates may, by reason of waiver of cross-examination, constitute competent evidence, however, does not mean that they alone are clear and convincing evidence ipso jure, in abrogation of the requirement of article 5547-33 that the certificate of the examining physician shall state “the detailed basis” for his opinion that the proposed patient is mentally ill and requires treatment.

Indeed, the Court in Moss v. State, 539 S.W.2d at 949, illustrated the weakness of the State’s position with the observation that, “[I]f the conclusion of a psychiatrist were sufficient for a civil commitment, no necessity would exist for a court, with or without a jury, to make a judicial determination of the facts necessary for involuntary hospitalization.” We regard the Court’s reasoning in Moss v. State as sound and applicable to this case.

The State, in the second prong of its argument, asserts that the State’s eviden-tiary burden in these proceedings varies according to whether the hospitalization is opposed or unopposed. In support of this position, the State says that the nonwaiver of cross-examination of witnesses equates to an opposition to the hospitalization, which imposes upon the State the burden of showing the factual particulars underlying the doctors’ medical conclusion?. In contrast, it contends, where the proposed patient waives cross-examination of witnesses pursuant to article 5547-47, the application is unopposed and factual recitals supporting the doctors’ conclusions in the admitted certificates need not be presented, since the proposed patient effectively agreed to hospitalization. We do not believe Dial v. State supports this position.

In Dial, rather than holding, as the State argues, that the medical conclusions of the physicians recorded in their certificate alone will sustain the court’s hospitalization order, the court instead simply clarified the Moss opinion to refute any interpretation of that opinion as requiring that, irrespective of other evidence adduced, the physicians’ certificates must themselves provide the factual basis for their conclusions. The Court’s actual holding was that where the proposed patient does not waive cross-examination of witnesses and the physicians’ certificates fail to disclose the factual data leading to their conclusion that the subject of the proceeding requires hospitalization, such supporting factual observations can be supplied by testimony at the hearing. Implicit in that holding is that where cross-examination is waived and the determination is made solely on the basis of the examining physicians’ certificates, the certificates must themselves contain sufficient objective factual observations to enable the trier of fact to draw its own conclusion respecting the need for the proposed patient’s temporary hospitalization. Dial v. State, 658 S.W.2d at 827. To accept the interpretation advanced by the State would do violence to fundamental notions of due process. See Moss v. State, 539 S.W.2d at 950 (quoting Humphrey v. Cady, 405 U.S. 504, 509, S.Ct. 1048, 1052, 31 L.Ed.2d 394, 402-3 (1972)).

Neither are we persuaded by the State’s argument that Fielder v. State, 673 S.W.2d 387 (Tex.App.—Houston [1st Dist.] 1984, no writ) obliquely sanctions the sufficiency of the physicians’ certificates in this case. In Fielder the court found that in the certificates there in question, the “physicians further stated the detailed basis for their opinion,” and specifically stated, “[W]e hold that the certificates of medical examination state facts sufficient to comply with the requirements of art. 5547-33, and that the trial judge did not err in relying on these certificates” when he signed the hospitalization order there in question.

We hold that certificates, such as those here in question, which merely contain a physician’s conclusions and opinions without statement of a reasonably detailed factual basis for such conclusions and opinions are not sufficient to sustain a court’s determination that temporary hospitalization is necessary. Lodge v. State, 597 S.W.2d 773, 778-9 (Tex.Civ.App.—San Antonio 1980), affirmed, 608 S.W.2d 910 (Tex.1980); Munoz v. State, 569 S.W.2d 642, 644 (Tex.Civ.App.-Corpus Christi 1978, no writ); State for Interest and Protection of Ellenwood, 567 S.W.2d 251, 254 (Tex.Civ.App.—Amarillo 1978, no writ); Moss v. State, 539 S.W.2d at 951.

The evidence in this case being insufficient to sustain the order of the court, the order for temporary hospitalization is reversed and appellant ordered discharged. This judgment is without prejudice to the right of the State to institute further proceedings if necessary.

       All future references to articles are to the Texas Mental Health Code, Tex.Rev.Civ.Stat.Ann. (Vernon Supp.1984).


author: WHITHAM, Justice.

text:
    CITY OF PLANO FIREFIGHTERS’ AND POLICE OFFICERS’ CIVIL SERVICE COMMISSION and the City of Plano, Appellants, v. Cynthia MAXAM, Appellee.
    No. 05-84-00420-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 16, 1985.
    Rehearing Denied Feb. 13, 1985.

      Ernest E. Figari, Jr., A. Erin Dwyer, Johnson & Swanson, Dallas, for appellants.
    Joseph R. Gilbreath, Gilbreath & Zaney, Austin, for appellee.
    Before STEPHENS, WHITHAM and GUILLOT, JJ.
   WHITHAM, Justice.

This appeal arises under the Firemen’s and Policemen’s Civil Service Law, TEX. REV.CIV.STAT.ANN. art. 1269m (Vernon 1963 & Vernon Supp.1984). Appellee, Cynthia Maxam, was indefinitely suspended by the chief of police of appellant, City of Plano, Texas. The appellant, the City of Plano Firefighters’ and Police Officers’ Civil Service Commission, concluded that no appeal to it had been properly perfected by Maxam and took no further action. Maxam sought and obtained a writ of mandamus from the district court ordering Maxam’s reinstatement as a Plano police officer with back pay and benefits. The trial court also awarded Maxam attorney’s fees. We conclude that Maxam was not entitled to the writ of mandamus. Accordingly, we reverse and render and vacate and set aside the writ of mandamus.

The parties stipulated the facts. Maxam is a resident of Collin County, Texas. The City of Plano Firefighters’ and Police Officers’ Civil Service Commission is the duly constituted Civil Service Commission for the city established pursuant to article 1269m. The city is an incorporated municipality located in Collin County, Texas. On July 7, 1982, Maxam was employed as a police officer with the Plano Police Department. On or before July 7, 1982, Maxam had completed her probationary employment as a police officer and had become a full-fledged civil service employee entitled to civil service protection under section 12 of article 1269m. On July 7, 1982, the police chief of the Plano police department indefinitely suspended Maxam from the police department as a result of alleged acts or conduct by Maxam in violation of section 16 of the rules and regulations duly adopted by the commission. A written order of suspension, which advised Maxam of her rights of appeal under article 1269m, was personally served on Maxam by the police chief. Within one hundred and twenty (120) hours after Maxam was suspended, the police chief, pursuant to section 16 of article 1269m, filed a written statement with the commission which specifically pointed out (1) the civil service rules alleged to have been violated by Maxam and (2) the alleged acts of Maxam, all occurring within the preceding six months, which constituted violations of the civil service rules. Immediately thereafter, a copy of such written statement was personally delivered by the police chief to Maxam. On July 12, 1982, Maxam’s attorney sent the Commission the following letter dated July 9, 1982.

This is to advise you that I represent Cynthia Maxam in her recent indefinite suspension from the City of Plano Police Department effective July 7, 1982. Officer Maxam was indefinitely suspended by order of the Chief of Police, James McCarley, based upon the conclusion that Officer Maxam is in violation of two rules and regulations. The alleged violations of the rules and regulations occurred on or about April 5, 1982, in Plano, Texas.
Specifically, the order of suspension cites that Officer Maxam is in violation of the Rules and Regulations of the Commission, II, Section 16 Subsections 8 and 15; and Rules and Regulations of the Police Department, Rule No. 215. Basically, Officer Maxam has been indefinitely suspended for conduct prejudicial to good order, violation of rules and regulations of the Police Department, and conduct unbecoming an officer.
Please accept this letter as notification to your office that Officer Maxam wishes to appeal this indefinite suspension and request a trial board hearing before the Civil Service Commission pertaining to the allegations made against her.
Please notify my office at the address listed above of the date and time and place of the hearing once this has been arranged.

The letter was delivered to and received by the commission within ten days of the order of indefinite suspension. No other written letter, correspondence, or notification was sent to the commission by Maxam or her attorney within such ten day period. On July 22,1982, the attorney representing the city, sent a letter to the commission requesting it to dismiss any purported appeal by Maxam of her suspension. On July 28,1982, the commission held a public hearing to consider the request made by the city’s attorney. After hearing argument from attorneys representing both Maxam and the city and after reviewing the July 9, 1982, letter, the commission concluded that the letter did not meet the requirements of section 17 of article 1269m and that no appeal had been properly perfected by Maxam. Within ten days of the decision by the commission, Maxam filed the present action seeking the relief requested in her plaintiff’s original petition and petition for writ of mandamus.

The controversy centers on that part of article 1269m, section seventeen, which reads:

In order for a Fireman or Policeman to appeal to the Commission from any action for which an appeal or review is provided under the terms of this Act, it shall only be necessary for him to file within ten (10) days with the Commission an appeal setting forth the basis of his appeal. The appeal shall include a statement denying the truth of the charge as made, a statement taking exception to the legal sufficiency of such charges, a statement alleging that the recommended action does not fit the offense or alleged offense, or any combination of the statements, and in addition, a request for a hearing by the Commission.

The issue is whether Maxam’s letter notifying the commission that she “wishes to appeal this indefinite suspension and request a trial board hearing” meets the requirements of section seventeen that “[t]he appeal shall include” at least one of the specified statements. The required statements are (1) denying the truth of the charge as made, (2) taking exception to the legal sufficiency of such charges and (3) alleging that the recommended action does not fit the offense or alleged offense. We conclude that Maxam’s letter fails to meet the requirements of section seventeen. We reach this conclusion because the letter does not contain any one of the three required statements. To the contrary, Max-am’s letter does no more than advise the commission that she “wishes to appeal.” We hold, therefore, that “wishing to appeal” is not substantial compliance with the requirements of article 1269m, section seventeen. See Wade v. City of Garland, 671 S.W.2d 657 No. 83-00424 (Tex.App.—Dallas 1984, no writ), in which we held a police officer’s letter stating “[t]his will service [sic] as filing an appeal of action statement of denial of the charges brought against me by [the police chief]” constituted substantial compliance with article 1269m, section seventeen. It follows, and we so hold, that Maxam failed to meet the requirements of article 1269m, section seventeen, necessary in order to appeal to the commission.

Next, we consider the trial court’s remedy of mandamus. The legislature enacted article 1269m to prescribe the procedure to be followed upon the suspension of a policeman. Bicksel v. Carver, 159 Tex. 393, 321 S.W.2d 284, 285 (1959). The full performance of all conditions established by the civil service laws is an essential prerequisite to the jurisdiction of the removing body over the subject matter of the removal of an officer. City of Sherman v. Arnold, 148 Tex. 516, 226 S.W.2d 620, 622 (1950) (construction of article 1269m). By failing to include at least one of the three statements required by article 1269m, section seventeen, in the letter of June 9,1982, we conclude that Maxam failed to perform a condition established by article 1269m. We hold, therefore, that the Commission had no jurisdiction over Maxam’s indefinite suspension. When the controlling questions concern the scope of the statutory power of the administrative agency and the meaning of statutory provisions, then the questions are judicial rather than administrative. Carver, 321 S.W.2d at 287. Therefore, in a situation presenting those questions arising under article 1269m, mandamus is a proper remedy. 321 S.W.2d at 287. The trial court in the present case granted the writ of mandamus. Thus, we must decide whether the trial court erred in doing so.

In their seventh point of error, the city and the commission contend that there is no evidence supporting the trial court’s judgment. The city and the commission argue that “there is no evidence to support the judgment of reinstatement, with its built-in presupposition that the order of suspension was unjustified.” In deciding a “no evidence” point, the appellate court must consider only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary. If a “no evidence” point is sustained and the proper procedural steps have been taken, the finding under attack may be disregarded entirely and judgment rendered for the appellant unless the interests of justice require another trial. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

The trial court in the present case found in its judgment that:

[T]he [city and the commission] have a legal duty to comply with Article 1269m relating to appeals of indefinite suspensions of police officers employed by municipalities; that [Maxam’s] Notice of Appeal was timely made and complied with Article 1269m.

Thus, the trial court grounded the issuance of the writ of mandamus upon a determination that the commission had jurisdiction of Maxam’s appeal and that the commission had refused to act under the statute. In light of our holding that the commission had no jurisdiction over Maxam’s indefinite suspension, we conclude that there is no evidence of probative value to support the trial court’s findings. Consequently, we must sustain the seventh point of error. Accordingly, we conclude that the trial court erred in granting the writ of mandamus.

We reverse the judgment of the trial court and we render judgment that Maxam take nothing against the city and the commission. We vacate and set aside the trial court’s writ of mandamus commanding the city and the commission immediately to reinstate Maxam and make payment of full back pay and benefits. All costs in the trial court and in this court are taxed against Maxam.


author: BRADY, Justice.

text:
    STEVE D. THOMPSON TRUCKING, INC., Appellant, v. The STATE of Texas, et al., Appellees.
    No. 14330.
    Court of Appeals of Texas, Austin.
    Jan. 23, 1985.
    Rehearing Denied Feb. 18, 1985.
    Winkle & Wells, Dallas, Phyllis B. Schunck, Wood, Lucksinger & Epstein, Austin, for appellant.
    Jim Mattox, Atty. Gen., Douglas B. Fraser, Asst. Atty. Gen., Mert Starnes, Robinson, Felts, Starnes, Angenend & Mashburn, Austin, for appellees.
    Before SHANNON, C.J., and EARL W. SMITH and BRADY, JJ.
   BRADY, Justice.

This is a suit by the State and several regulated motor carriers for declaratory and injunctive relief. The trial court found that appellant was operating as a motor carrier without having first obtained a certificate or permit from the Railroad Commission and without otherwise having complied with the regulatory requirements of the Texas Motor Carrier Act, Tex.Rev.Civ. Stat.Ann. art. 911b (1964). Appellant was permanently enjoined by the trial court from engaging in certain activities which the court held to constitute “motor carriage” as that term is defined by art. 911b. The sole question in this appeal is whether Thompson Trucking is a “motor carrier” subject to regulation by the Railroad Commission of Texas. We will reverse the judgment of the trial court and order the injunction be dissolved.

Thompson Trucking maintains truck terminals in Dallas and Houston. Within those cities, the firm employs trucks to transport freight between its terminals and the terminals of the Southern Pacific Railroad, located within the two cities. The freight is then transported between Houston and Dallas by the Southern Pacific Railroad over its rail lines, not by motor trucks. Appellant’s trucks do not travel between those cities. The trial court concluded that since the appellant utilized public streets and highways within Dallas and Houston, they were a “motor carrier.” Motor carrier is defined by § 1(g) of art. 911b as follows:

The term “motor carrier” means any person, firm, corporation, company, copart-nership, association or joint stock association and their lessees, receivers, or trustees appointed by any court whatsoever owning, controlling, managing, operating, or causing to be operated any motor-propelled vehicle used in transporting property for compensation or hire over any public highway in this state, where in the course of such transportation a highway between two or more incorporated cities, towns or villages is traversed.

The trial court determined that the holding in State v. Acel Delivery Service, Inc., 388 S.W.2d 930 (Tex.1965) was controlling. Following this decision by the Texas Supreme Court, the Legislature at its next session amended § 1(g) to abrogate the Railroad Commission’s jurisdiction over motor vehicle traffic between contiguous cities. Thus, one who transports property between two or more contiguous cities is not a motor carrier under the amended statute. The trial court’s conclusion that “all intercity traffic was covered by the Act” under Acel, apparently including traffic between contiguous cities, is contrary to the express provisions of the amended article.

The 1965 amendment to § 1(g) authorized the Railroad Commission to prescribe “commercial zones” adjacent to, and commercially a part of, any specified incorporated municipality. Within these zones, operations as a motor carrier may be performed without a certificate or permit. The State and the regulated carriers contend that the 1965 amendment does not exempt services performed by Thompson Trucking. They argue that these services represent transportation between, and not strictly local service wholly within, the Dallas and Houston zone. Appellant cites several opinions of the Attorney General to support its argument.

Although opinions of the Attorney General of Texas are not binding, they may be helpful to the courts in the interpretation of statutory language in situations such as this. Jones v. Williams, 45 S.W.2d 130 (Tex.1931). In Tex.Att’y Gen.Op.No. M-1248 (1972), an unnamed certified motor carrier was transporting property between two cities where it had terminals and between which it was authorized to operate. This intercity transportation was regulated service between two or more non-contiguous cities which were not a part of any one commercial zone. The carrier recognized that the line-haul portion of its service was subject to regulation. However, the carrier desired to use smaller delivery trucks to pick up and deliver the freight throughout the commercial zones of the two cities without registering the smaller trucks. The Railroad Commission sought the opinion of the Attorney General who held that equipment operated entirely within the zone is not subject to regulation, “even though this equipment is employed in conjunction with the delivery of shipments which originated in the commercial zone but were destined to a point beyond the commercial zone as well as shipments moving in the opposite direction.”

Thompson Trucking’s pick-up and delivery service is performed by trucks operating exclusively within a commercial zone. Thompson Trucking is performing a local pick-up and delivery service for rail shipment at both ends of the line-haul, wholly within a commercial zone. None of appellant’s trucks move freight on the highway system between the Dallas and Houston commercial zones. To adopt the argument of the State that the appellant is subject to regulation “when it hits the first public streets that go between two incorporated cities” would be to place an unrealistic and overly broad interpretation on the statute. The State says:

In Dallas and Houston this basically occurs at the end of every shipper’s driveway.

Admitted into evidence by the trial court was the Railroad Commission order on another permit application dated December 5, 1983. That order states that most railroad freight involving prior or subsequent movements by truck involves motor vehicle movements within commercial zones, and that the motor vehicle portions of the movement are not subject to Railroad Commission jurisdiction. We see no real difference between that type of operation and appellant’s operations.

The State argues that Thompson Trucking violated the Commission’s tariffs by failing to charge the over-the-road line-haul motor carrier rate between Dallas and Houston. However, Thompson Trucking does not make the line-haul. That service is furnished by the Southern Pacific Railroad. Use of rail service is not subject to regulation by the Railroad Commission. The statute regulates motor carriers’ use of the public highways for private gain. The law was designed to protect the public by limiting traffic on the public highways. Section 22b of the Motor Carrier Act is a declaration of legislative policy:

The business of operating as a motor carrier of property for hire along the highways of this State is declared to be a business affected with the public interest. The rapid increase of motor carrier traffic, and the fact that under existing law many motor trucks are not effectively regulated, have increased the dangers and hazards on public highways and make it imperative that more stringent regulation should be employed, to the end that the highways may be rendered safer for the use of the general public; that the wear of such highways may be reduced; that discrimination in rates charged may be eliminated; that congestion of traffic on the highways may be minimized; that the use of the highways for the transportation of property for hire may be restricted to the extent required by the necessity of the general public, and that the various transportation agencies of the State may be adjusted and correlated so that public highways may serve the best interest of the general public.

When this Act was challenged as an unconstitutional infringement on the rights of persons to contract for transportation of property for hire, the United States Supreme Court upheld it as resting on the policy of highway conservation. Stephenson v. Binford, 287 U.S. 251, 53 S.Ct. 181, 77 L.Ed. 288 (1935). The Supreme Court held that requiring truckers to charge high rates was rationally related to the highway conservation purposes stated by the Texas Legislature because “this provision, by precluding the contract carriers from rendering service at rates under those charged by the railroad carriers, has a definite tendency to relieve the highways by diverting traffic from them to the railroads.”

Judgment of the trial court is reversed, and the injunction against appellant is dissolved.


author: EARL W. SMITH, Justice.

text:
    Tiburcio SOTO, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 3-82-197-CR(T).
    Court of Appeals of Texas, Austin.
    Jan. 23, 1985.

      Stephen M. Orr, Orr & Davis, Austin, for appellant.
    Ronald Earle, Dist. Atty., Ralph Graham, Asst. Dist. Atty., Austin, for appellee.
    Before SHANNON, C.J., EARL W. SMITH and BRADY, JJ.
   EARL W. SMITH, Justice.

On original submission to this Court, appellant’s judgment of conviction for delivery of heroin was reversed. Soto v. State, 649 S.W.2d 801 (Tex.App.1983). The Court of Criminal Appeals reversed the judgment of this Court in an opinion on the State’s petition for discretionary review. Soto v. State, 681 S.W.2d 602 (Tex.Cr.App.1984). That court remanded the cause to this Court “for such further proceedings as are appropriate.”

The sole ground of error contained in the brief filed by appellant’s counsel on appeal has been finally disposed of by the opinion of the Court of Criminal Appeals. Although appellant has filed a pro se brief raising additional grounds of error, there is no right to hybrid representation. Rudd v. State, 616 S.W.2d 623 (Tex.Cr.App.1981); Landers v. State, 550 S.W.2d 272 (Tex.Cr.App.1977). The pro se brief filed in this appeal, therefore, presents nothing for review. An examination of the contentions asserted therein reveals no error that should be considered in the interest of justice.

The judgment of conviction is affirmed.


author: PER CURIAM.

text:
    Roger Lee DICKERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 3-84-051-CR(T).
    Court of Appeals of Texas, Austin.
    Jan. 23, 1985.
    Rehearing Denied Feb. 13, 1985.

      E. Brice Cunningham, Dallas, for appellant.
    Henry Wade, Crim. Dist. Atty., Dallas, for appellee.
    Before SHANNON, C.J., and EARL W. SMITH and BRADY, JJ.
   ORDER

PER CURIAM.

This is an appeal from a judgment of conviction for aggravated rape of a child. Tex.Pen.Code § 21.03(a)(5) [1981 Tex.Gen. Laws, ch. 202, § 1, at 471, repealed by 1983 adoption of Tex.Pen.Code Ann. § 22.011 (Supp.1984) ]. After a jury trial resulting in a verdict of guilty, the court assessed punishment at incarceration for sixty years.

The appellant’s brief was filed in this Court on October 29, 1984. The State’s brief was therefore due to be filed, under the provisions of Tex.Code Cr.P.Ann. art. 40.09(10) (Supp.1984), no later than November 28, 1984. On December 27, 1984, it having been noted that no State’s brief had been tendered for filing, the Clerk of this Court notified counsel for the State of that fact and advised that the brief was to be submitted on or before January 11, 1985. The body of that letter is reproduced in the footnote below. No State’s brief has yet been tendered for filing, and no motion for extension of time has been presented.

Article 40.09(10) provides, in relevant part, as follows: “Within 30 days after appellant files his brief with the clerk of the appellate court, the state shall file with the clerk of the appellate court the original and three copies of its brief ...” (emphasis added). Further, Tex.Code Cr.P.Ann. art. 2.01 (Supp.1984) provides in part: “Each district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom ...” (emphasis added). See also Tex.Code Cr.P. Ann. art. 2.02 (Supp.1984); State Bar of Texas, Rules and Code of Professional Responsibility DR 6-101, EC 7-1 [appended to Tex.Rev.Civ.Stat.Ann. art. 320a-l (1973)].

Under the provisions of Tex.Cr. App.R. 205, as amended, effective February 1, 1982, it is clear that a party may obtain oral argument only by filing a brief. In the absence of a brief and, consequently, oral argument, it can hardly be said that the State has been represented by its district attorney in accordance with the statutory requirements. Unlike the Court of Criminal Appeals, which has a Prosecuting Attorney to represent the State before it, this Court must rely solely upon the appropriate district and county attorneys to fulfill that responsibility. In the absence of that representation, the efficiency of this Court is reduced, for the State’s position becomes a matter of conjecture, and judicial time is expended in legal research which should have been supplied by the State. In an even more fundamental way, the State s inaction impairs what should be a true adversary system. It is patently obvious from the statutory provisions quoted above that the legislature did not intend to allow convictions to go undefended on appeal, or to burden the time and impartiality of appellate courts by prosecutorial inertia. See Tex.Code Cr.P.Ann. art. 1.03 (1977).

If, in fact, counsel for the State experiences difficulty in meeting the timetable for briefing provided by art. 40.09(10), or by the subsequent direction of a letter from the Court, it is incumbent upon the State’s counsel to communicate that difficulty to the Court. It is not, however, permissible to remain silent and ignore the requirements of the statutory provisions and the Court’s written instructions.

Accordingly, as authorized by Tex.Cr. App.R. 202(c), it is hereby ordered that the Honorable Henry Wade, District Attorney of Dallas County, file a competent, responsive brief in this cause on or before February 8, 1985.

      . "... [0]ur records reflect that the appellant's brief was filed in this Court on October 29, 1984, not accompanied by a request for oral argument. The State’s brief was therefore due November 28, 1984. Tex.Code Cr.P.Ann. art. 40.09(10) (Supp.1984). We have not received the brief or any request for extension of time from your office.
      "We assume that this is due to inadvertent oversight. Please submit the State’s brief in this cause on or before January 11, 1985. See Tex. Code Cr.P.Ann. art. 2.02 (Supp.1984); Tex.Cr. App.R. 202(c). Upon receipt of the State’s brief, this cause will be submitted in due order upon briefs.”


author: SUMMERS, Chief Justice.

text:
    Justine B. MERCER, Appellant, v. Don ROSS, d/b/a Crossroads Travel Agency, Appellee.
    No. 12-82-0158-CV.
    Court of Appeals of Texas, Tyler.
    Jan. 31, 1985.
    Rehearing Denied Feb. 21, 1985.

      Joe R. Green, Mobley, Green, Harrison & Sparks, Longview, for appellant.
    Robin Dale Sage, Longview, for appellee.
   SUMMERS, Chief Justice.

This is an appeal from a judgment which reversed a Texas Employment Commission (TEC) award of unemployment compensation benefits to Justine B. Mercer (Mercer), appellant/defendant.

Don Ross d/b/a Crossroads Travel Agency (Crossroads), appellee/plaintiff, brought suit against appellant Mercer and TEC seeking a judgment setting aside a decision of TEC awarding unemployment benefits to Mercer. Crossroads alleged that Mercer is not entitled to receive unemployment compensation because her termination was compelled by her own misconduct; that she committed gross errors in the scheduling and making of reservations for travel customers and conducted her duties with professional discourtesy to customers of Crossroads. Mercer urges that the decision of TEC is supported by substantial evidence.

After a hearing without a jury, the trial court found that TEC’s decision was not supported by substantial evidence and remanded the cause to TEC for its entry of an order providing that Mercer is disqualified for benefits beginning April 22, 1981, pursuant to art. 5221b-3(b), and that there be no chargeback to Crossroads’ account as a result of this claim, with costs taxed against Mercer.

An agreed statement of facts was filed in the trial court, and an authentic copy of the findings and decision of TEC with appeal Tribunal Decision attached was also admitted into evidence.

The agreed statement of facts is as follows:

Prior to filing her initial claim for benefits on April 22, 1981, the claimant last worked for this employer as a travel consultant from March 24, 1980 until April 19, 1981. She earned $630 per month. She worked from 8:30 a.m. to 5:30 p.m., Monday through Friday. The claimant in this case was hired for her position with this employer without any prior travel consultant experience. During the course of her employment, the claimant made numerous errors and oversights. The claimant booked airline tickets incorrectly; prepared tickets with incorrect names; booked tickets to incorrect destinations; transposed addresses on reservation cards and would sometimes give out airline schedules before their effective dates. The employer lost one large commercial account because of dissatisfaction with the services performed by the claimant. At least three customers told the employer that they did not want to deal with the claimant at all. Toward the end of her employment, the claimant began keeping a list of her errors in order to try to better herself. The claimant never performed this job in a satisfactory manner. The claimant was discharged for unsatisfactory job performance.

The provisions of the Administrative Procedure and Texas Register Act (APTRA), art. 6252-13a § 19, governed judicial review of decisions of the Texas Employment Commission from its effective date to August 27, 1979. Effective on that date subsection (f) was added to Section 21 of the Act. Subsection (f), now subsection (g), provides that Sections 12-20 (both inclusive) of the Act no longer apply to TEC hearings to determine whether a claimant is entitled to unemployment compensation. Texas Employment Commission v. Bell Helicopter International, Inc., 627 S.W.2d 524, 526 (Tex.App.—Fort Worth 1982, writ ref’d n.r.e.).

Art. 5221b-3 provides in pertinent part: An individual shall be disqualified for benefits:
(b) If the Commission finds he has been discharged for misconduct connected with his last work. The disqualification continues until the claimant has returned to employment and either worked for six weeks or earned wages equal to six times his weekly benefit amount. (Emphasis added.)

Article 5221b-17(q) defines misconduct as follows:

‘Misconduct’ means mismanagement of a position of employment by action or inaction, neglect that placed in jeopardy the lives or property of others, intentional wrongdoing or malfeasance, intentional violation of a law, or violation of a policy or rule adopted to ensure orderly work and the safety of employees, but does not include an act of misconduct that is in response to an unconscionable act of an employer or superior. (Emphasis added.)

Subsection (q) was added as an amendment to art. 5521b-17 by Acts 1981, 67th Leg. p. 17, ch. 12, § 2, effective March 20, 1981; prior to that date the Texas Unemployment Compensation Act contained no definition of “misconduct.”

The central issue in this case is whether Mercer’s conduct, as shown by the stipulated facts, constitutes “misconduct” under art. 5221b-17(q) and was a cause of discharge. The TEC decision and the agreed statement of facts recite that the claimant was discharged for “unsatisfactory job performance.” Underlying this conclusion are the undisputed facts that the claimant prepared tickets with incorrect names and booked tickets to incorrect destinations.

In three points of error, Mercer contends that the TEC did not apply an improper legal standard in determining misconduct, that the decision of the TEC was supported by substantial evidence, and that the trial court applied the wrong definition to property of others (by including customers of Crossroads). We disagree with these contentions and overrule the points.

We agree with the trial court that the TEC applied an improper legal standard in determining misconduct by requiring the showing of some degree of intent or willfulness or such a degree of carelessness as to evidence a disregard as to consequences. City of Dallas v. Texas Employment Commission, 626 S.W.2d 549, 551 (Tex.Civ.App.—Texarkana 1981, no writ), cited by both parties, did not involve a construction of the statutory definition of misconduct (art. 5221b-17[q]) and is therefore distinguishable from the instant case. The case at bar appears to be a case of first impression in Texas.

By characterizing Mercer’s conduct as “mismanagement” and applying an improper standard, the TEC failed to apply and determine whether Mercer’s conduct (including the preparation of tickets with incorrect names and booking of tickets to incorrect destinations) amounted to misconduct as “neglect that places in jeopardy the ... property of others,” within the meaning of Sec. 19(q), art. 5221b-17.

Airline tickets and reservations are valuable property to the travelling public; and we agree with the trial court that the term “others” includes customers of Crossroads, that the preparation of tickets with incorrect names and booking of tickets to incorrect destinations constitute neglect that places in jeopardy the property of others. To the extent that the TEC decision holds otherwise, it is not supported by substantial evidence.

We also hold that the acts of Mercer in preparing and booking of tickets with incorrect names and to incorrect destinations are not attributable to simple inability, lack of proficiency, and inexperience but to neglect that places in jeopardy the property of others. To the extent the TEC decision holds otherwise, it is not supported by substantial evidence.

The judicial review in the trial court was a trial de novo pursuant to art. 5221b-4(i). The trial court set aside the TEC decision by its judgment finding the decision was not supported by substantial evidence.

We reform the judgment by striking the order of remand to TEC. Texas Employment Commission v. Bell Helicopter International, Inc., supra at 527.

As reformed, the judgment of the trial court is affirmed.

      . This and all other statutory references are to Texas Revised Civil Statutes Annotated unless otherwise noted.

        . See 1984 Cumulative Annual Pocket Part.


author: SCHULTE, Justice.

text:
    Agustin MELENDEZ, Jr., Appellant, v. JOHN R. SCHATZMAN, INC., Appellee.
    No. 08-84-00296-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 6, 1985.
    Rehearing Denied March 6, 1985.
    Stewart McKeehan, Rick Browning, P.C., Odessa, for appellant.
    Robert A. Skipworth, Tony R. Conde, Jr., Ainsa, Skipworth, Zavaleta & Butterworth, El Paso, for appellee.
    Before WARD, OSBORN and SCHULTE, JJ.
   OPINION

SCHULTE, Justice.

This is a writ of error attack on a default judgment. This case centers around alleged breaches of a construction contract. Appeal is by writ of error brought by Melendez, individually, and not as president of M & A Builders, Inc. M & A Builders, Inc. has not appealed. Judgment was taken by Appellee against both M & A Builders, Inc. and Melendez, individually, when neither appeared for trial'. Melendez, individually, filed no answer. We reverse as to Agustín Melendez, individually, only, and remand.

M & A Builders, Inc. sued John R. Schatzman, Inc. and Agustín Melendez signed the original petition of M & A Builders, Inc. as president. John R. Schatzman, Inc. in turn countersued and joined Agustín Melendez, individually, as a counter-defendant under a disregarding of the corporate entity theory. The judgment recites that all parties were duly notified and trial was held February 6, 1984. Only John R. Schatzman, Inc. appeared and the trial court heard evidence without a jury.

In Melendez’s first point he complains that the trial court erred in rendering a default judgment because it does not appear affirmatively on the face of the record that Appellant was served with process in strict compliance with the rules regarding service of process. While ordinarily presumptions are made in support of a judgment, no such presumptions are made in a direct attack upon a default judgment. When review is by writ of error, the error must appear on the face of the record. McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965).

Our examination of the face of the record reveals numerous departures from strict compliance with Rules 105, 106 and 107, Tex.R.Civ.P., but we need not treat them all in order to determine that this first point must be sustained and the cause remanded. Rule 103, Tex.R.Civ.P., provides in part that service by certified mail may be made by the clerk of the court in which the case is pending. Rules 105, 106 and 107 outline how this is to be accomplished. This was attempted in the case before us; however, it does not appear that the officer receiving delivery of the process for service endorsed thereon the day and hour of receipt, nor was the return completed showing the execution by certified mail, all as required by Rule 105, supra. The return of the citation is blank both front and back and has not been executed. Nor does it appear that the return had appended to it the return receipt with the addressee’s signature. The receipt purports to be contained elsewhere in the transcript, but we cannot presume it is part of the citation. Furthermore, the clerk did not affix a file mark on the citation showing when it was returned and filed in that office. Rule 107, Tex.R.Civ.P., expressly provides in part:

No default judgment shall be granted ... until the citation with proof of service ... shall have been on file with the clerk of the court ten days, exclusive of the day of filing and the day of judgment.

Without this information, the trial court is unable to determine whether the matter is ripe for hearing. We cannot accept Appel-lee’s contention that a notation in the clerk’s fee docket cures omission on the face of the citation. The first point of error is sustained and we need not address the other points.

Agustín Melendez, individually, having now appeared to attack the judgment, is presumed to have entered his appearance to the term of the court at which the mandate shall be filed. The judgment of the court below, only as to Agustín Melendez (or Agustín Melendez, Jr., as he now prefers to call himself), Appellant, in his individual capacity, is reversed and the cause remanded to the trial court for a trial on the merits as to Appellant.