author: ONION, Presiding Judge. CLINTON, Judge. TEAGUE, Judge,

text:
    Avan KING, Appellant, v. The STATE of Texas, Appellee.
    No. 860-83.
    Court of Criminal Appeals of Texas, En Banc.
    April 10, 1985.

      George A. Preston, M.P. Duncan, III, Denton, for appellant.
    Jerry Cobb, Dist. Atty. & Fred Marsh, Asst. Dist. Atty., Denton, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted of delivery of a controlled substance, to-wit: cocaine. See Article 4476-15, § 1.02(8), V.A.C.S. The punishment was assessed by the jury, upon appellant’s plea of guilty, at six (6) years’ imprisonment.

The indictment alleged in pertinent part that appellant King on or about January 17, 1980, “did then and there knowingly and intentionally deliver to James D. Hum-phreys a controlled substance, to wit: cocaine. ...”

Appellant filed a motion to quash the indictment alleging it failed to set forth the offense in plain and intelligible words in violation of Article 21.02, V.A.C.C.P., and without sufficient certainty to be able to plead any judgment in bar of further prosecution for the same offense in violation of Article 21.04, V.A.C.C.P. Said motion alleged the indictment failed to define “delivery” as actual or constructive transfer or as an offer to sell and did not give sufficient notice. The motion was denied on May 12, 1980. The next day the appellant entered a plea of guilty to the indictment before a jury. There was no plea bargain. Humphreys, an undercover agent of the Texas Department of Public Safety, testified that on January 17, 1980, he went to appellant’s home in Lewisville. Appellant invited him in and sold him cocaine for $100.00. The cocaine was in the kitchen on a mirror and appellant hand delivered the cocaine to Humphreys. A chain of custody was established, and the chemist testified the substance was cocaine. Appellant testified and made a judicial confession. The record reflects on direct examination:

“Q All right, now, Mr. King, on the 17th day of January, 1980, did you deliver to Mr. Humphreys the cocaine that I think Mr. Valdez (chemist) brought in?
“A Yes, sir.
<<* * *
“Q Do you have any quarrel with the testimony that the State presented through Mr. Humphreys as to the fact that you did sell him this cocaine?
“A No, sir.”

Thereafter the jury returned the verdict assessing punishment. Judgment and sentence were entered. No notice of appeal was given.

An appellate record reached the Court of Criminal Appeals on December 22, 1980. On February 3, 1982, the attempted appeal was dismissed for want of jurisdiction. The Court did not find any notice of appeal, oral or written, in the record as required by Article 44.08, V.A.C.C.P. See King v. State, 629 S.W.2d 956, a per curiam panel opinion. On May 4, 1982, the mandate of the Court of Criminal Appeals was issued. The felony conviction became final.

Subsequently the appellant requested permission of the Ft. Worth Court of Appeals to give belated notice of appeal, see Article 44.08(e), V.A.C.C.P., as amended in 1981, the Courts of Appeals having acquired criminal jurisdiction effective September 1, 1981. Article V, § 6, Tex. Const., as amended in 1981.

The Ft. Worth Court of Appeals granted permission to give belated notice of appeal on June 2, 1982. See King v. State, 634 S.W.2d 794 (Tex.App.—Ft. Worth 1982). Thereafter notice of appeal was given on June 14, 1982.

On appeal appellant raised the same contentions advanced before the Court of Criminal Appeals. He urged, inter alia, that the trial court erred in overruling his motion to quash the indictment in that the indictment failed to give him notice of the charge against him as contemplated by Article I, § 10, Tex. Const., and the Sixth Amendment, United States Constitution, and did not allege the offense with such specificity as to serve as an adequate bar to future prosecution for the same offense in the event of conviction.

The Court of Appeals reversed appellant’s conviction and dismissed the indictment, holding the trial court erred in overruling the motion to quash the indictment. King v. State, 656 S.W.2d 617 (Tex.App.—Ft. Worth 1983).

In so holding, the Court of Appeals had to wrestle with the question of whether appellant retained his right to appeal the ruling on the motion to quash in view of . his guilty plea absent a valid plea bargain. The court was confronted with the so-called Helms rule and the 1979 amendment to Article 44.02, V.A.C.C.P. In Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.1972), it was held that where a plea of guilty is voluntarily and understandably made, all non-jurisdictional defects including claimed deprivation of federal due process are waived. See also Fierro v. State, 437 S.W.2d 833, 834 (Tex.Cr.App.1969); Soto v. State, 456 S.W.2d 389 (Tex.Cr.App.1970); Salinas v. State, 478 S.W.2d 538 (Tex.Cr.App.1972); Cantu v. State, 546 S.W.2d 621 (Tex.Cr.App.1977); Prochaska v. State, 587 S.W.2d 726, 728 (Tex.Cr.App.1979).

In 1979 the Legislature amended Article 44.02, supra. The broad right of a defendant in a criminal case was retained, but narrowed in those cases where the defendant entered a guilty plea before the trial court and his punishment was assessed within the terms of a plea bargain agreement. In such cases the defendant has no right of appeal without the permission of the trial court except as to rulings on pretrial motions raised prior to trial.

The Court of Appeals believed Helms to be overbroad and that it had been modified by recent decisions and not applicable to allegedly defective indictments, and that while Article 44.02 placed some limitations on the right to appeal with respect to plea bargaining situations, the limitations were not meant to be applicable where no plea bargain occurred. The court found the appeal was properly before it. The Court of Appeals then found that while the indictment was sufficient to confer jurisdiction upon the trial court, it was deficient as to notice in view of the motion to quash. The court found the trial court erred in overruling the motion to quash citing Ferguson v. State, 622 S.W.2d 846 (Tex.Cr.App.1980).

We granted the State’s petition for discretionary review to determine the correctness of the decision of the Court of Appeals.

We commence by turning to the 1977 amendment to Article 44.02, the legislative history of which has been previously discussed. Ex parte Morgan, 688 S.W.2d 504 (Tex.Cr.App.1985) (Dissenting Opinion).

Article 44.02 as originally enacted in 1965 was left intact. Thus most of the former procedures were left undisturbed. A defendant convicted upon his plea of not guilty before the court or jury still retains the right to appeal at his option. By his not guilty plea a defendant still preserves the right of appellate review of the rulings on his pre-trial motions if convicted.

A defendant who enters a plea of guilty or nolo contendere without a plea bargain either before the court or a jury still retains the right of appeal at his option. The former appellate procedure regarding such pleas (where there is no plea bargain) is not changed by the 1977 amendment to Article 44.02. Decker v. State, 570 S.W.2d 948 (Tex.Cr.App.1978); Cleveland v. State, 588 S.W.2d 942 (Tex.Cr.App.1979); Morgan v. State, 608 S.W.2d 639, 641 (Tex.Cr.App.1980). See also Mitchell v. State, 648 S.W.2d 776 (Tex.App.—San Antonio 1983).

In Prochaska v. State, 587 S.W.2d 726, 729 (Tex.Cr.App.1979), this Court, speaking through Judge Clinton, wrote:

“Yet, whatever the reasoning, the Legislature conditioned a departure from the Helms rule in two restrictive respects: one, that there be a negotiated recommendation as to punishment and, two, that the punishment actually assessed by the trial court not exceed the recommendation. In these circumstances permission of the trial court to appeal is not required ‘on those matters which have been raised by written motion prior to trial.’ Given this limited abrogation of the Helms rule by the Legislature, we must reluctantly conclude that the rule remains viable in a case where a plea bargain has not been reached.” (Emphasis supplied.)

In Cleveland v. State, supra, this Court stated at p. 944:

“Appellant therefore contends that the court’s ruling on the motion to suppress in the instant case should be considered on appeal as Article 44.02, as amended 1977, indicates the legislative intent to ‘reverse’ the line of cases represented by Helms v. State, supra. We do not agree. By its very language, Article 44.02, supra, does not limit appeals in cases, such as the instant one, where the defendant pleads guilty before the court without a plea bargain and recommendation as to punishment. We conclude that the Helms line of cases still applies to appeals such as the instant case. The trial court’s ruling on the motion to suppress is not before this court for review.” (Emphasis supplied.)

In Kass v. State, 642 S.W.2d 463 (Tex.Cr.App.1981), this Court stated:

“Since the record fails to reflect that the plea in the instant case was a negotiated plea bargain, appellant’s plea of guilty waived her right to complain of the court’s actions in overruling the motion to quash....”

Unless a defendant can bring himself within the amendment to Article 44.02, the 1977 provisions thereof do not apply. See Morgan v. State, supra; Prochaska v. State, supra. Thus, should the record reflect either no plea bargaining agreement or a plea to a jury, it follows that the defendant is not within the amendments to Article 44.02. See, e.g., Ex parte Sterling, 595 S.W.2d 536 (Tex.Cr.App.1980); Decker v. State, supra; Prochaska v. State, supra; Cleveland v. State, supra; Wheeler v. State, 628 S.W.2d 800 (Tex.Cr.App.1982).

The Court of Appeals has misconstrued Article 44.02 and the legislative intent. There is a distinction between the cases where there is a plea bargain and cases where there is no plea bargain. Further, the Court of Appeals is in error in concluding that the Helms rule applies to rulings on some pre-trial motions and not others depending on the nature of the motion.

Still further, the Court of Appeals has overlooked the fact that in the instant case there was a plea of guilty before a jury which is another reason the 1977 amendments to Article 44.02 are not here applicable. The Helms rule applies to this guilty plea before a jury where there was no plea bargain. The plea being voluntarily and understandably made waived all non-jurisdictional defects. Appellant thus waived any right to appeal the ruling on the motion to quash the indictment. See Kass v. State, supra.

Nothing in Ex parte Morgan, 688 S.W.2d 504 (Tex.Cr.App.1985), calls for a different result.

The judgment of the Court of Appeals is reversed, and the cause remanded for consideration of appellant’s other grounds of error.

CLINTON, Judge.

In Dees v. State, 676 S.W.2d 403 (Tex.Cr.App.1984) I traced the rule in Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.1972) to its source in the jurisprudence of the Fifth Circuit. My purpose was to identify it as a federal rule most often applied to review of state convictions in federal habeas cases, and to argue that it should not control the effect of guilty pleas in felony cases in state courts. Dees, supra, at 406-407. However, now that the majority persists in the notion that the Helms rule is alive and well in the criminal law jurisprudence of this State, I would point out that when it first undertook to import that federal rule into our local law, the Court left a significant part of the rule behind.

White v. Beto, 367 F.2d 557 (CA5 1966) is the oldest case cited by the Fifth Circuit Court of Appeals in Bee v. Beto, 384 F.2d 925 (CA5 1967), although it is certainly not the first in time. See precursors cited and alluded to in Dees, supra, at 406. White v. Beto, supra, makes a complete statement of the rule, viz:

“The guilty plea under the circumstances is conclusive as to defendant’s guilt, admits all the facts charged and waives all non-jurisdictional defects in the prior proceedings.”

White, at 558. The importer left behind the underscored words.

More recently in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), the Supreme Court of the United States reviewed its prior germane decisions and, after restating what a federal habeas proceeding is all about, concluded:

“We thus reaffirm the principle recognized in the Brady triology: a guilty plea represents a break in the chain of events which preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the depriva tion of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set for in McMann.” Id., at U.S. 267, 93 S.Ct. at 1608.

The reason this federal waiver rule is applicable only to “prior proceedings” advancing a guilty plea is simply that an accused cannot waive a defect in proceedings that have not yet occurred. That is to say, one may not intentionally relinquish or abandon a violation of due process that is still unknown because it has not happened. For example, in our jurisdiction a guilty plea before the trial court does not waive the requirement that sufficient evidence be presented by the prosecution to show guilt. Thornton v. State, 601 S.W.2d 340, 343 ff (Tex.Cr.App.1980) (Opinion on Rehearing). Nor would a plea of guilty before a jury waive the requirement that the court properly charge the jury on issues of punishment in the case. See Gordon v. State, 633 S.W.2d 872, 877-878 (Tex.Cr.App.1982).

Therefore, I merely join the judgment of the Court.

TEAGUE, Judge,

dissenting.

After having carefully read what the majority states on pages 2 and 3 of its majority opinion, and also taking into consideration what the record of appeal reflects, but further finding that this Court does not simply grant the State’s Petition for Discretionary Review in order for this Court to enter a simple order to be published, to the effect that the Fort Worth Court of Appeals did not have jurisdiction to entertain appellant’s motion to give late notice of appeal, which it granted, see King v. State, 634 S.W.2d 794 (Tex.App.1982), and thus should not have written on his case, I must not only register my dissent, but must exclaim, “Color me not only amazed, but do it in chartreuse.”

it is now written in stone that this Court will always jealously guard its jurisdiction, and, but as reflected by this Court’s past decisions, any court interfering or attempting to interfere with this Court’s jurisdiction, or altering, modifying, or changing, or attempting to alter, modify, or change this Court’s judgments, to put it quite bluntly, will obtain the wrath of this Court. When any court interferes with this Court’s jurisdiction or its judgments, this Court will act much like how a folklore demon might act. For example, see Curry v. Davis, (No. 69,-252, July 25, 1984, Unreported Per Curiam Opinion); Vance v. Hatten, 508 S.W.2d 625, 628 (Tex.Cr.App.1974); Wilson v. Briggs, 171 Tex.Cr.App. 479, 351 S.W.2d 892, 894 (1961).

As the majority opinion clearly and correctly points out, appellant originally attempted to appeal his conviction to this Court. This Court, however, ordered the attempted appeal dismissed because the record of appeal did not contain any notice of appeal, either oral or written. On May 4, 1982, long after September 1, 1981, the mandate of this Court issued. For legal purposes, the appellant’s conviction became a final conviction. Thereafter, except for ministerial matters, neither the trial court nor any appellate court had the power or authority to take any action other than in obedience to the mandate of this Court. See Vance v. Hatten, supra, at 628, and Wilson v. Briggs, supra, at 894.

Furthermore, the law of this State expressly provides that “After final conviction in any felony case, the [application for post-conviction] writ must be made returnable to the Court of Criminal Appeals of Texas at Austin, Texas.” Art. 11.07, V.A. C.C.P. The law further, but expressly, provides that the procedure outlined in Art. 11.07, supra, is the exclusive felony post-conviction remedy in the courts of this State, and governs all final felony convictions. Ex parte Brown, 662 S.W.2d 3 (Tex.Cr.App.1983). Thus, once a felony conviction has become final, only this Court has jurisdiction to consider post-conviction matters that might pertain to the conviction, and only this Court has jurisdiction to grant post-conviction relief. Ex parte Ybarra, 629 S.W.2d 943 (Tex.Cr.App.1982).

In this instance, the Fort Worth Court of Appeals was clearly in error in entertaining and acting upon appellant’s motion to give late notice of appeal — because only this Court had jurisdiction to act upon that motion, which concerned a final felony conviction. Of course, the motion should have been processed pursuant to Art. 11.07, supra.

Art. 44.08(e), Y.A.C.C.P., which gives authority to a court of appeals to grant late notice of appeal, did not give any court of appeals jurisdiction to act on matters over which this Court has exclusive jurisdiction. It is only when a court of appeals has exclusive jurisdiction over the case in the first place that it may then act pursuant to Art. 44.08(e), supra. In this instance, the court of appeals never had jurisdiction over appellant’s appeal; this Court is the only court that ever had jurisdiction over that appeal. Thus, the court of appeals was without judicial authority or power to invoke the provisions of Art. 44.08(e), supra.

To the failure of a majority of this Court to simply grant the State’s petition and then enter an order directing the court of appeals to withdraw the opinions that it has handed down in this cause, by published order, and dismiss this cause from its docket, I dissent with all of the vigor at my command.

      . A plea of guilty to a felony charge before the jury admits the existence of all necessary elements to establish guilt, and in such cases, the introduction of testimony by the State is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed. Darden v. State, 430 S.W.2d 494, 495 (Tex.Cr.App.1968); Renesto v. State, 452 S.W.2d 498 (Tex.Cr.App.1970); Brinson v. State, 570 S.W.2d 937 (Tex.Cr.App.1978).

      . It is observed that on appeal the appellant urged the court erred in overruling his motion to quash on the basis of the federal and state constitutions rather than the state statutory provisions set forth in his motion to quash.

      . The “Helms Rule” was first recognized in Hoskins v. State, 425 S.W.2d 825, 829-830 (Tex.Cr.App.1968), as originating in Bee v. Beto, 384 F.2d 925 (5th Cir.1967).

      . Article 44.02, supra, provides:
      "A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial. This article in no way affects appeals pursuant to Article 44.17 of this chapter.” (Acts 1977, 65th Leg., p. 940, ch. 351, § 1, eff. August 29, 1977.)

      . It has been held that the Helms rule applies to guilty pleas before the jury as well as before the court. Pruitt v. State, 476 S.W.2d 693 (Tex.Cr.App.1972); Carpenter v. State, 477 S.W.2d 22 (Tex.Cr.App.1972).

      . All emphasis is mine unless otherwise indicated.

      . “The focus of federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity." Id., at U.S. 266.

      . The Brady trilogy is comprised of Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). However, even the federal habeas rule is not absolute; neither the trilogy nor Tollett v. Henderson, supra, "stand for the proposition that counseled guilty pleas inevitably ‘waive” all antecedent constitutional violations,” Menna v. New York, 423 U.S. 61, 63 n. 2, 96 S.Ct. 241, 242, n. 2, 46 L.Ed.2d 195 (1975). Accord: Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). Therefore, if this Court is to follow it at all, we should not apply the rule "inevitably.”


source: Caselaw Access Project

author: TEAGUE, Judge,

license: Public Domain

text:
    Ex parte Gary Michael PFEFFER.
    No. 104-85.
    Court of Criminal Appeals of Texas, En Banc.
    April 10, 1985.
    Charles L. Rittenberry, Amarillo, for appellant.
    Bill Baumann, County Atty., Amarillo, Robert Huttash, State’s Atty., Austin, for the State.
   TEAGUE, Judge,

dissenting.

I respectfully dissent to this Court denying appellant’s motion for rehearing because I believe that the issue that is presented in this cause greatly concerns many citizens of this State, as to whether they might serve as jurors where it is shown that they have previously been convicted of the Class C misdemeanor offense of theft.

I also dissent because I believe it was the intention of the Legislature, when it enacted V.T.C.A., Penal Code, Section 12.03(c), to no longer automatically disqualify from jury service a person who has in the past been convicted of the Class C misdemeanor offense of theft.

The Amarillo Court of Appeals, in a published opinion, see Pfeffer v. State, 683 S.W.2d 64 (Tex.App.—Amarillo 1984), relying upon this Court’s decision of Frame v. State, 615 S.W.2d 766 (Tex.Cr.App.1981), and the Code Construction Act, for authority, held that a person who had previously been convicted of the Class C misdemeanor offense of theft was automatically disqualified from serving as a juror.

Today’s majority decision to deny .appellant’s motion for rehearing will put the implicit seal of approval on the above anachronism in our law.

Frame v. State, supra, cited by the court of appeals, is not in point because it did not discuss what effect, if any, V.T.C.A., Penal Code, Sec. 12.03(c), which provides that “Conviction of a Class C misdemeanor does not impose any legal disability or disadvantage,” had upon Art. 35.16(a)(2), V.A.C. C.P., which provides that a challenge for cause may be made by either the State or the defense on the ground that the venire-person “has been convicted of theft.” Under Art. 35.16(a)(2), supra, a venireperson is absolutely disqualified from serving as a juror if he “has been convicted of theft.” Thus, whether the person was convicted of theft of a candy bar or theft of a million dollars he may not thereafter ever serve as a juror in this state.

As to whether the court of appeals was correct in its application of the Code Construction Act, I believe that is the real gut issue that is before this Court. In light of what was the apparent intention of the Legislature when it enacted Section 12.-03(c), supra, I believe that the decision of the court of appeals is wrong.

Because I believe that the issue before us is of sufficient importance to the citizens of this State, I vote to grant the appellant’s motion for rehearing. To the failure of the majority to grant the motion, I respectfully dissent.


author: PER CURIAM.

text:
    Robert DELGADO, Appellant, v. The STATE of Texas, Appellee.
    No. 961-84.
    Court of Criminal Appeals of Texas.
    April 17, 1985.
   ORDER

PER CURIAM.

In an unpublished opinion, the Texarkana Court of Appeals affirmed the conviction of Robert Delgado, appellant. See Delgado v. State, (Tex.App.—Texarkana, 1984, No. 06-83-043-CR, May 1, 1984). Before this Court for review is a document that was filed by appellant’s counsel which purports to be a petition for discretionary review. However, we find and hold that this document was not prepared in conformity with Tex.Cr.App.R. 304(d).

It is therefore Ordered by this Court that within fifteen (15) days of the date of this Order counsel for appellant shall file with the Clerk of this Court one (1) original of a petition for discretionary review, which is to be prepared in conformity with Tex.Cr. App.R. 304(d), and nine (9) legible copies of the original. Counsel shall serve, by certified mail, return receipt requested, one (1) copy of the petition for discretionary review on the attorney of record for the respondent and one (1) copy of the petition for discretionary review on the State Prosecuting Attorney.

Failure of counsel to comply with this Order will cause this Court to summarily refuse the above document that has been filed on behalf of appellant.


author: EVANS, Chief Justice.

text:
    James MABE, Appellant, v. The CITY OF GALVESTON, et al., Appellees.
    No. 01-84-0515-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 10, 1985.
    Rehearing Denied March 7, 1985.

      Anthony Griffin, Galveston, for appellant.
    Ervin A. Apffel, Otto D. Hewitt, III, W. Daniel Vaughn, McLoed, Alexander, Powel & Apffel, Robert V. Shattuck, Galveston, for appellees.
    Before EVANS, C.J., and JACK SMITH and DUGGAN, JJ.
   OPINION

EVANS, Chief Justice.

The appellant, James Mabe, appeals from a temporary injunction entered in favor of appellees, The City of Galveston and Park Board of Trustees, prohibiting him from distributing pamphlets that list the names and phone numbers of certain members of the City Council and Park Board. The City and Park Board petitioned for injunctive relief, claiming that Mabe’s publication of his pamphlet invaded the privacy of the individual members of the Council and Park Board. Mabe answered, challenging the standing of the City Council and Park Board to sue on behalf of the individual members, and also asserting first amendment rights. The trial court denied Mabe’s motion to dismiss on the issue of standing, and issued an injunction prohibiting Mabe from directly or indirectly publishing in writing any list of the names of members of the City Council or Park Board, coupled with their home telephone numbers. We reverse and render, directing that the temporary injunction be dissolved.

In his one point of error, Mabe challenges the constitutionality of the trial court’s action, arguing that the injunction is void because it operates as a prior restraint of the exercise of his first amendment right to freedom of speech. In a post-submission brief, Mabe attempts to reiterate the challenge he asserted in the trial court, i.e., that the named plaintiffs lack standing to sue. However, since that issue was not raised in this court prior to submission of the appeal, it is deemed waived. Tex.R.Civ.P. 418(d); Texas Industrial Traffic League v. Railroad Commission, 633 S.W.2d 821 (Tex.1982) (per cu-riam).

Mabe owns a gift shop on Seawall Boulevard, the beachfront in Galveston. He is a Galveston native and has been in business on the island for seven years. Because of comments made by his customers and other visitors, he became concerned that there were no public restroom facilities on the Seawall. On a number of occasions, he appeared before the Galveston City Council and the Park Board and made his complaints known to those governmental bodies. Mabe finally reached the conclusion that the City Council and Park Board officials lacked concern about the matter, and in midsummer 1984, he printed and distributed 2000 pamphlets, which read:

THE BUSINESS OPERATORS ON SEAWALL BOULEVARD APOLOGIZE FOR NO PUBLIC RESTROOM FACILITIES ON OUR BEACHFRONT.

The Persons To Contact Are:

Council Members: Park Board Members:
Lou Muller Mrs. Marilyn Schwartz
(409) 744-7444 (409) 744-3531
John L. Sullivan Mr. Meyer Reiswerg
(409) 744-5632 (409) 762-7540
Mayor: Mr. Roby Burkett
(409) 744-3686
Jan Coggeshall Mr. Tom Wiseheart
(409) 744-5918 (409) 762-8434

Shortly after these pamphlets were distributed, the named members of City Council and Park Board of Trustees began receiving phone calls at home from persons who complained about the lack of restroom facilities. Some of the calls were received during the day, some in the evening, and three or four calls were received in the very late evening or early morning hours. The phone numbers of each person listed on the pamphlet could be found in the Galveston telephone directory, and some were also listed in documents published by the Park Board.

Any system of prior restraints bears a heavy presumption against its constitutional validity. Bantam Books Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1968); e.g., Iranian Muslim Organization v. City of San Antonio, 615 S.W.2d 202 (Tex.1981). Although in exceptional cases prior restraints may be constitutionally permissible, see, e.g., Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931), prior restraint against distribution of pamphlets is particularly suspect. Lovell v. City of Griffin, 303 U.S. 444, 451, 58 S.Ct. 666, 668, 82 L.Ed. 949 (1938).

In 1973, the Supreme Court of Texas followed the practice of most other American jurisdictions and recognized a legally enforceable right of privacy. Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973). However, this right of privacy has never been considered unlimited. In certain circumstances, an individual’s right of privacy must yield to other, overriding constitutional mandates. See, e.g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 494-95, 95 S.Ct. 1029, 1045-46, 43 L.Ed.2d 328 (1975); Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). This is particularly true where an individual is a public official, and the distributed information is critical of the conduct of public business or bears on some matter of public concern. In such an instance, the interest in privacy is outweighed by the larger, fundamental interest in free discussion and the dissemination of truth. See Garrison v. Louisiana, 379 U.S. 64, 73, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Thus, courts are extremely reluctant to allow a prior restraint on free speech merely to protect a perceived threat to a public official’s limited right of privacy. See Garrison, 379 U.S. at 73-79, 85 S.Ct. at 215-18.

In the case at bar, the pamphlets merely published the names and telephone numbers of certain public officials. These same telephone numbers were listed in the telephone directory and in other public documents. The pamphlets had a direct relationship to the public interest, i.e., the lack of public restroom facilities on the Seawall. Thus, Mabe had the constitutional right to publish the pamphlets, regardless of whether the particular public officials were, in fact, empowered to take corrective action with respect to his complaint. See Gregory v. City of Chicago, 394 U.S. 111, 115, 89 S.Ct. 946, 948, 22 L.Ed.2d 134 (1969) (Black and Douglas, J.J., concurring). The evidence does not suggest that Mabe’s actions were taken solely to harrass the public officials, nor was there evidence that the officials could not have taken measures, such as having their phone numbers unlisted, to protect themselves against unwanted telephone calls. We conclude that the trial court’s injunctive order constituted an unwarranted prior restraint on the exercise of Mabe’s first amendment right of freedom of speech, and we accordingly sustain his point of error.

The trial court’s temporary injunctive order is reversed, and the injunction is ordered dissolved.


author: ELLIS, Justice.

text:
    GENERAL SPECIALTIES, INC. and Vaughn Boykin, Appellant, v. CHARTER NATIONAL BANK—HOUSTON, Appellee.
    No. A14-84-525CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 24, 1985.

      Dan Hennigan, Houston, for appellant.
    Robert G. Devlin, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

This is an appeal from a summary judgment based on seven (7) promissory notes. We reverse and remand for trial because we find the motion for summary judgment and the affidavits filed in support of the summary judgment motion do not contain enough information to establish that there is no genuine issue of fact.

Appellants, General Specialties, Inc. and Vaughn Boykin, raise one point of error on appeal. In their point of error, they allege that the trial court erred in granting appel-lee’s motion for summary judgment. They allege error for two reasons. Appellants argue that summary judgment was improper because there were fact issues as to the amount of indebtedness and reasonableness of attorney’s fees.

The record shows that the following notes were executed:

Note No-Date Amount
3234341-083 June 8, 1983 $ 15,264.40
3234341-085 June 8, 1983 32,802.00
3234341-094 June 8, 1983 21,538.31
3234341-104 June 8, 1983 75,000.00
3234341-105 June 8, 1983 38,402.30
Revolving Credit Note June 8, 1983 500,000.00
3234341-108 June 14, 1983 20,000.00

Appellee, Charter National Bank — Houston, sued on the notes. It filed a motion for summary judgment on February 2, 1984. The motion asks for $286,854.09, but does not explain this amount. Additionally, it asked for $9,191.95 as interest, costs of court, and $29,604.60 for attorney’s fees. The affidavit in support of the motion by appellee’s attorney, states that $29,604.60 is 10% of the amount owing and is a reasonable and customary fee. The affidavit did not explain the approximately $286,-854.09 asked for in the summary judgment. In another affidavit in support of the summary judgment, appellee’s vice-president states that the notes were obtained when appellee paid cash in the amount stated as principal in the notes to appellant, that the notes have matured, that appellant defaulted in his payments on the notes, and that appellant owes $296,046.04, after every payment had been applied. Again, the amount was not explained.

In appellant’s response to the motion for summary judgment, they claimed that issues concerning the amount of the indebtedness and the reasonableness of attorney’s fees existed. Appellant Vaughn Boy-kin submitted an affidavit in support of the answer claiming that he did not owe $83,-747.09 of the amount sued for by appellee. In a second affidavit Boykin stated that General Specialties, Inc., has never borrowed in excess of $203,107.00 from appellant, and it did not owe $83,747.09 of the amount sued for by appellee. Appellant’s attorney also submitted an affidavit stating that $29,604.60 was not a reasonable attorney’s fee. Appellant’s attorney alleged that anything in excess of $1,200.00 would be unreasonable in this case.

The trial court granted the summary judgment on June 13, 1984. The court ordered that appellee recover from appellant $286,854.09 as principal amount due, $9,191.95 as interest on the principal, $29,-604.60 as attorney’s fees, all court costs, and interest at the legal rate from the date of the judgment to the time it is paid.

The trial court erred in granting the summary judgment because fact issues did exist as to the amount of appellant’s indebtedness to appellee and as to the reasonableness of attorney’s fees. A party moving for summary judgment must establish as a matter of law that there are no genuine issues of material fact as to any of the essential elements of his cause of action or defense. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Prestegord v. Glenn, 441 S.W.2d 185, 187 (Tex.1969). In reviewing a summary judgment record appellate courts must apply the following rules:

1. The movant for summary judgment ... has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. (citations omitted).
2. In deciding whether or not there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant ... will be taken as true, (citations omitted).
3. Every reasonable inference must be indulged in favor of the non-movants and any doubts resolved in their favor, (citations omitted).

Wilcox v. St. Mary’s University of San Antonio, 531 S.W.2d 589, 593 (Tex.1975).

An affidavit containing a statement of balance due can in some instances be specific and sufficient on its face to establish a fact which could be proven at trial so that summary judgment based partly upon the affidavit is proper. Ecurie Cerveza Racing Team, Inc. v. Texas Commerce Bank-Southeast, 633 S.W.2d 574, 575 (Tex.App.—Houston [14th Dist.] 1982, no writ); Sparks v. Cameron Employees Credit Union, 678 S.W.2d 600, 602 (Tex.App.—Houston [14th Dist.] 1984, no writ). However, in the affidavit attached to the motion for summary judgment, appellees requests that $286,854.09 be awarded on the seven (7) promissory notes. Appellee does not break down the above sum to show how much interest and principal is owed. The lump sum figure is an ambiguity that is not resolved by turning to the summary judgment proof before us. When an ambiguity exists in the movant’s summary judgment proof, a material fact issue as to the measure of damages arises and precludes summary judgment. Meineke Discount Muffler Shops, Inc. v. Coldwell Banker Property Management Co., 635 S.W.2d 135 (Tex.App.—Houston [1st Dist.] 1982, writ ref’d n.r.e.); Dallas Eight, Ltd. v. Aaron Rents, Inc., 560 S.W.2d 778 (Tex.Civ.App.—Tyler 1977, no writ).

We find a material fact issue also existed as to the reasonableness of the attorney’s fees. Appellee’s attorney stated in his affidavit that $29,604.60 was a reasonable attorney’s fee in this case since he claims that it is 10% of the amount owing. There is no rational basis for the percentage he uses. In appellant’s affidavit, he stated that:

It is not a reasonable attorney fee to charge $29,604.60 where the work involves only the matters done by the attorney for Plaintiff... A reasonable charge for a case of this type is $100.00 per hour. It would be unreasonable for an attorney to charge in excess of $1,200.00 in this case.

This statement directly controverts the statement in appellee’s affidavit regarding the reasonableness of the attorney’s fees. Therefore, appellant’s response to the motion for summary judgment did raise a fact issue. See Gifford v. Old Republic Insurance Co., 613 S.W.2d 43 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ). Summary judgment was not the proper disposition of this case. Accordingly, we sustain appellant’s only point of error.

We reverse and remand for trial.


author: DODSON, Justice.

text:
    In the Matter of R.G., A Child.
    No. 07-84-0090-CV.
    Court of Appeals of Texas, Amarillo.
    Feb. 5, 1985.

      Jonathan D. Bow, Lubbock, for appellant.
    Jim Bob Darnell, Dist. Atty., Steven M. Sucsy, Asst. Dist. Atty., Lubbock, for ap-pellee.
    Before REYNOLDS, C.J., and DODSON and BOYD, JJ.
   DODSON, Justice.

R_G_, a fifteen-year-old boy, appeals from an order committing him to the care, custody and control of the Texas Youth Commission rendered by the trial court on 23 February 1984, claiming that the court was without authority to render the order of commitment since his probationary term had expired, by operation of law, on 10 February 1984. We conclude that when a petition to modify disposition is filed within the probationary term for an alleged violation of the terms and conditions of probation which occurred within the probationary period, and the court proceeds to orderly disposition of that petition within a reasonable time with full regard for the procedural and substantive rights of the child, the court has authority to modify the prior disposition order notwithstanding the termination date specified by the prior order. We affirm.

The record shows that on 10 February 1983, the appellant was adjudicated a delinquent child and was placed on official probation in Lubbock County, Texas, for a period of one year. On 26 January 1984, the State filed an application to modify disposition, alleging that the appellant had violated the terms and conditions of his probation by committing the felony offenses of aggravated assault and retaliation on 12 January 1984. On 10 February 1984, the appellant and his attorney executed a waiver of detention hearing. On that same day, the court placed the appellant in the custody of the Juvenile Court at the detention facility previously approved by the Juvenile Board of Lubbock County for a period not to exceed ten days. On 17 February 1984, the court rendered an order continuing appellant’s detention for a period not to exceed ten days.

On 22 February 1984, the appellant filed his motion to dismiss the State’s application to modify disposition, claiming that his probationary term expired on 10 February 1984, by operation of law, and that the court was without authority to modify the prior disposition order rendered on 10 February 1983, placing him on probation for a period of one year from that date. The court overruled the appellant's motion and after a hearing on 23 February 1984, determined that the appellant had violated the terms and conditions of his probation and committed him to the Texas Youth Commission.

By his sole point of error, the appellant claims the trial court erred by overruling his motion to dismiss the State’s motion to modify on the ground that the court was without authority to modify the prior order placing him on probation since his probationary term had expired by operation of law. The appellant readily acknowledges that his position presents a question of first instance in the appellate courts of this state. To support his position, he relies on section 54.05(a)(2) of the Texas Family Code Ann. (Vernon Pamp.1985), and argues for a literal and strict interpretation of that section. The State counters that we should formulate a rule similar to the rule applied in the revocation of persons on adult probation as stated in Bobo v. State, 479 S.W.2d 947 (Tex.Crim.App.1972).

At the prior disposition hearing on 10 February 1983, the court, acting under section 54.04(d)(1), had authority to place the appellant on probation on such reasonable and lawful terms as the court determined “for a period not to exceed one year, subject to extensions not to exceed one year each.” In that regard, and as pertinent here, section 54.05 provides:

(a) Any disposition, except a commitment to the Texas Youth Commission, may be modified by the juvenile court as provided in this section until:
(1) the child reaches his 18th birthday; or
(2) the child is earlier discharged by the court or operation of law.
(b) All dispositions automatically terminate when the child reaches his 18th birthday.
* * * * * *
(d) A hearing to modify disposition shall be held on the petition of the child and his parent, guardian, guardian ad litem, or attorney, or on the petition of the state, a probation officer, or the court itself. Reasonable notice of a hearing to modify disposition shall be given to all parties. When the petition to modify is filed under Section 51.-03(a)(2) of this code, the court must hold an adjudication hearing and make an affirmative finding prior to considering any written reports under Subsection (e) of this section.
******
(f) A disposition based on a finding that the child engaged in delinquent conduct may be modified so as to commit the child to the Texas Youth Council if the court after a hearing to modify disposition finds beyond a reasonable doubt that the child violated a reasonable and lawful order of the court.
******
(h) A hearing shall be held prior to commitment to the Texas Youth Commission as a modified disposition. In other disposition modifications, the child and his parent, guardian, guardian ad litem, or attorney may waive hearing in accordance with Section 51.09 of this code. [Emphasis added.]

The appellant claims that the phrase, “by operation of law,” should be strictly interpreted by this Court. Thus, he argues that his probationary period terminated on 10 February 1984, by operation of law, that he was automatically discharged from probation, and that the trial court was without authority to modify the prior disposition order. We disagree.

When the State filed an application to modify disposition within the probationary period for an alleged violation which occurred within that period, elaborate procedural safeguards such as notice of the charges, notice of hearings, appointment of counsel, if necessary, and other similar acts must be accomplished before the court can make a final determination on the petition to modify disposition. Pragmatically, those matters cannot be accomplished in a matter of a few hours or a few days.

The appellant’s strict interpretation of section 54.05(a)(2) would, in legal effect, actually reduce the probationary period and the court’s control and authority over the probationer for the full probationary term. Obviously, the Legislature did not intend that result by enacting the phrase, “by operation of law.” Consequently, we conclude that when a petition to modify disposition is filed within the probationary term for an alleged violation of the terms and conditions of probation which occurred within the probationary period, and the court proceeds to orderly disposition of that petition within a reasonable time with full regard for the procedural and substantive rights of the child, the court has authority to modify the prior disposition order even though the modification occurs after the termination date specified by the prior order.

In this instance, the record shows compliance with the procedural safeguards required to antedate a determination of the modification application, and appellant does not suggest that afterwards the court failed to act within a reasonable time. Consequently, the appellant’s point of error is overruled.

The trial court’s judgment is affirmed.

      . All future references to sections are to Texas Family Code Ann. (Vernon 1975 & Pamp. 1985).

      . When reviewing the revocation proceedings of a person placed on adult probation, the court in Bobo determined that where the violation occurred and a warrant was issued within the probationary period and the hearing is not, thereafter, unduly delayed, probation may be revoked after the period has expired. See also Ex parte Fennell, 284 S.W.2d 727 (Tex.Crim.App.1955).

      . It is undisputed that the appellant was born on 21 November 1968, and that he had not reached his 18th birthday when the judgment in question was rendered on 23 February 1984.


text:
    FRUEHAUF CORPORATION and Texas Hauling Contractors, Inc., Appellants, v. Guadalupe ORTEGA, Appellee.
    No. 13-83-110-CV.
    Court of Appeals of Texas, Corpus Christi.
    Feb. 14, 1985.
    See also 652 S.W.2d 566.

      B. Buck Pettitt, Jones, Lewis & Pettitt, McAllen, Kenneth D. Kuykendall, Royston, Rayzor, Vickery & Williams, Houston, for appellants.
    Joseph Prestía Pena, McDonald, Prestía & Ibanez, Edinburg, Russell McMains, Edwards & Perry, Corpus Christi, Paul Q. O’Leary, O’Leary, Sanchez & Benton, Brownsville, for appellee.
   OPINION

PER CURIAM.

Appellee brought this personal injury action because of electrical burns he received in the course of his employment. Several parties were named as defendants at trial, but only Texas Hauling Contractors, Inc. (Texas Hauling) and Fruehauf Corporation (Fruehauf) appealed from the recovery granted to appellee in the final judgment.

Appellee was an employee of Virgil T. Walker Construction Co., Inc. (Walker Construction), which had been hired by Heldt Brothers Trucking Corporation (Heldt Trucking) to improve a driveway. Walker Construction then hired Texas Hauling to haul fill material for the driveway. Texas Hauling sent a truck with a dump-trailer to the dump site. The trailer was manufactured by Fruehauf. The truck was owned by Mr. Reyes Nino and driven by Mr. Jose Mendoza. When Mendoza arrived at the site, the dumping was directed by appellee. When the dump-trailer was raised, it apparently moved too close to overhead power lines and became charged with electricity. After the trailer was empty, appellee approached the truck, came into contact with the metal portion of the truck and suffered severe electrical burns.

Appellee sued Texas Hauling, Fruehauf, Mendoza and Magic Valley Electric Cooperative, Inc. (Electric Company); other actions brought Heldt Trucking and its individual owners into the suit. The Electric Company and Heldt Trucking and its individual owners settled with appellee and were ultimately dismissed from the action. The negligence of Heldt Trucking was submitted to the jury, but not that of the Electric Company. The jury assessed responsibility for appellee’s injuries as follows:

PARTY % NEGLIGENT
Mendoza 11
Texas Hauling 15
Fruehauf 53
Heldt Trucking 18
Appellee 3

Appellee was awarded $925,000 in total damages, of which $608,585.20 was assessed jointly and severally against Mendoza, Texas Hauling and Fruehauf. Appellant does not challenge the determination of the percentage of negligence. Fruehauf settled with appellee after submission of the appeal, so only the points of error brought by Texas Hauling will be considered.

In answers to the first two special issues submitted, the jury found, respectively, that certain delineated negligent conduct of Mendoza was a proximate cause of appel-lee’s injuries and that Mendoza was an employee of appellant Texas Hauling. In its first seven points of error, appellant challenges Special Issue Three. It was submitted to the jury in the following form:

SPECIAL ISSUE NO. THREE
Do you find from a preponderance of the evidence that the Defendant, TEXAS HAULING CONTRACTORS, committed any negligent act or omission which was a proximate cause of the occurrence in question?
In determining whether the Defendant, TEXAS HAULING CONTRACTORS, was negligent, you will consider only the following acts or omissions, if any;
A. failing to warn GUADALUPE ORTEGA of the overhead wires;
B. failing to warn workers of the overhead wires;
C. failing to notify Magic Valley Electric Cooperative of their work in the area of overhead wires as per Vernon’s Ann. Civ.St. Article 1436-C;
D. In dumping, or causing to be dumped, caliche from the truck trailer in question when it was possible for some part of such trailer to be brought within 6 feet of the high voltage overhead line during such dumping;
E. In operating or moving, or causing the operation or moving of, the truck-trailer, or any part thereof, within six (6) feet of the overhead high voltage lines;
F. In operating, or causing to be operated, equipment any part of which was capable of vertical motion on which there was not posted and maintained a warning sign legible at 12 feet placed within the equipment readily visible to its operators when at the controls of such equipment and on the outside of such equipment in such number and location as to be readily visible to persons engaged in the work being performed and when an insulated cage-type guard or protective device had not been installed about the part of such equipment capable of vertical movement;
G. In operating, or causing to be operated, equipment capable of vertical movement within 10 feet of the high voltage overhead line.
ANSWER “YES” OR “NO.”
ANSWER YES

In its first point of error, appellant contends that the jury should have been allowed to answer Special Issue Three only if it previously found that Mendoza was not an employee of appellant. Appellant cites the general rule that appellant and appellee cannot be joint tortfeasors when they are in an employer-employee relationship. The judgment found Mendoza and appellant jointly and severally liable without indicating the application of re-spondeat superior. Compare Marange v. Marshall, 402 S.W.2d 236 (Tex.Civ.App.— Corpus Christi 1966, writ ref'd n.r.e.). Appellant does concede that “the trial court correctly disregarded the jury’s answer to Special Issue No. 2, ... because a judgment against Jose Mendoza was in effect a judgment against Nino Reyes”; however, appellant argues that the mere erroneous unconditional submission of Special Issue Three “allowed the jury to consider the acts or omissions of Mendoza in Special Issue No. 1 in determining the negligence of Texas Hauling in Special Issue No. 3.” Special Issue One was submitted in the following form:

“SPECIAL ISSUE NO. ONE
Do you find from a preponderance of the evidence that the Defendant, JOSE MENDOZA, committed any negligent act or omission which was a proximate cause of the occurrence in question?
In determining whether the Defendant, JOSE MENDOZA, was negligent, you will consider only the following acts or omissions, if any:
(a) Failing to keep a proper lookout for overhead wires;
(b) Failing to warn Plaintiff that he was parked under the electrical wires;
(c) Proceeding to raise the trailer bed when he knew or should have known the danger of contact with overhead wires;
(d) Failing to place a warning sign on the truck and trailer regarding the possibility of overhead wires and its consequences;
(e) In dumping, or causing to be dumped, caliche from the truck-trailer in question when it was possible for some part of such trailer to be brought within 6 feet of the high voltage overhead line during such dumping;
(f) In operating or moving, or causing the operation or moving of, the truck-trailer, or any part thereof, within six (6) feet of the overhead high voltage lines.
(g) In operating, or causing to be operated, equipment any part of which was capable of vertical motion on which there was not posted and maintained a warning sign legible at 12 feet placed within the equipment readily visible to its operators when at the controls of such equipment and on the outside of such equipment in such number and location as to be readily visible to persons engaged in the work being performed and when an insulated cage-type guard or protective device had not been installed about the part of such equipment capable of vertical movement.
(h) In operating, or causing to be operated, equipment capable of vertical movement within 10 feet of the high voltage overhead line.
ANSWER: “YES” OR “NO.”
ANSWER: YES

Appellant argues that the similarities between Special Issues One and Three improperly focused attention on Mendoza’s conduct instead of on appellant’s negligence. Appellant has cited no case authority which supports its asserted narrow reading of Special Issues One and Three, and we disagree with its construction.

There is no doubt that the jury was instructed to consider Mendoza’s conduct in Issue One and appellant’s conduct in Issue Three. The conduct set out included acts and omissions that could have been engaged in at either the office or the construction site, or both. Mendoza and appellant could properly have been found to have engaged in the same negligent conduct or in separate acts or omissions listed. The jury assigned different percentages of negligence to each party. Overlapping special issues do not necessarily produce reversible error. Under the facts of this case, including appellant’s failure to object to the form of Special Issue Three, we find that this case belongs, at least by analogy, in the same class of rules that holds that it is immaterial that there are defects in some submitted special issues when the answers to other special issues will sustain the judgment. City of Lubbock v. Onley, 498 S.W.2d 429 (Tex.Civ.App.—Amarillo 1973) writ ref’d n.r.e., Per Curiam 506 S.W.2d 208 (Tex.1973); Hawes v. Central Texas Production Credit Association, 492 S.W.2d 714 (Tex.Civ.App—Austin 1973) aff'd 503 S.W.2d 234 (Tex.1973).

Finally, even if Special Issue Three should have been conditioned on a jury finding that Mendoz°a was not an employee of appellant, we do not think that the error, in light of the record as a whole, caused a rendition of an improper judgment. As previously stated, appellant itself stated that the trial court properly disregarded the jury answer to Special Issue Two. Appellant’s first point of error is overruled.

In its second point of error, appellant contends that paragraphs D, E, F, and G of Special Issue Three should not have been submitted “because there was a wide variance between the pleadings, proof, and limiting instructions in violation of ... Scott v. Atchison, Topeka & Santa Fe Railway Co., 572 S.W.2d 273 (Tex.1978).” Appellant refers us to the language from the Scott decision, which says that “when one or more pleaded acts or omissions are unsupported by evidence and the record contains evidence of other possible negligent acts or omissions which were not pled, failure to limit the broad ultimate fact issue to acts or omissions which were raised by both pleadings and proof violates Rule 277 and is error.” However, appellant’s trial objection was that “the general charge in the manner of which it is submitted is a direct violation of [Sboii] because Issues Number One, Three and subsequent issues clearly demonstrated there is a great variance between the pleadings and the proof in this case, and I suggest a general objection to the issues in general.” Although we do not approve of the form of the charge, appellant did not object to this method of submission. Appellant’s objection was not specific enough to preserve the error here assigned.

“Variance between pleadings and proof has rarely been the source of harmful error. To be reversible, the variance must be substantial, misleading, constitute surprise and be a prejudicial departure from the pleadings. [Citations omitted], ... [A] broad submission of an issue will [not] be reversed simply because one or more acts which contributed to the injury was not particularly pleaded or proved.” Brown v. American Transfer and Storage Company, 601 S.W.2d 931 (Tex.1980); Siebenlist v. Harville, 596 S.W.2d 113 (Tex.1980). Thus, the objections to the charge must be distinct and specific; if there is a variance between the pleadings and proof, the distinct and specific variance or other defect must be stated in the objection, or it is waived under TEX.R.CIV.P. 274. The purpose of this requirement is to allow the trial court an opportunity to then and there redraft the charge if necessary or consider an amendment under Rule 66. Brown at 938. See Burk Royalty Company v. Walls, 616 S.W.2d 911 (Tex.1981); Hersh v. Hendley, 626 S.W.2d 151 (Tex.App.—Fort Worth 1981, no writ). Appellant’s objection was simply too general to apprise the trial court of any alleged error.

We pause to note that the pleadings in this case present a stark contrast to those in the Scott case; more recent Supreme Court cases have noted that the plaintiff in Scott “Failed to produce any evidence on pleaded acts; he produced an abundance of evidence on six or seven un-pleaded acts. [Thus, a] case could hardly be conceived in which a variance could be wider than that found in Scott.” See Brown, at 937; Siebenlist, at 114. We hold that, in the case before us, the pleadings did not present such a wide variance so as to constitute reversible error. The pleadings afforded the appellant sufficient notice and opportunity to prepare an adequate defense. Murray v. O & A Express, Inc., 630 S.W.2d 633 (Tex.1982). Appellant’s second point of error is overruled.

In its third point of error, appellant notes that, at trial, appellee introduced deposition testimony of Mendoza without designating him an adverse witness under TEX.R.CIV.P. 182. The deposition testimony tended to show that Mendoza had warned appellee about the overhead wires; appellant argues that the trial court later refused to allow appellee to state that he was never warned about the wires, ruling that appellee was bound by the testimony of Mendoza, and appellee could not impeach it. Appellant therefore contends that paragraphs A and B of Special Issue Three should not have been submitted because they were not supported by the evidence.

We first note that previous testimony in the record contradicted Mendoza’s testimony that appellee was warned about the overhead lines. Appellee testified before Mendoza and stated that he never spoke to Mendoza before the accident. Appellee repeatedly testified on both direct and cross-examination that he had not seen the power lines and that no one had warned him that the lines were low and that dumping might present problems. Even assuming appellant is correct in contending that appellee could not impeach Mendoza, that ruling will not relate back to contradictory testimony already in evidence. This issue belongs within the rule that it is the exclusive province of the jury to judge the credibility of the witnesses and to determine the weight to be given their testimony. Tenngasco Gas Gathering Company v. Fischer, 653 S.W.2d 469 (Tex.App.—Corpus Christi 1983, no writ). See Salazar v. Hill, 551 S.W.2d 518 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n.r.e.). Finally, the determination of whether Mendoza’s testimony bound appellee is logically irrelevant to the issue of whether appellant negligently failed to warn appellee or workers of the overhead wires. Appellant’s third point of error is overruled.

In its fourth, fifth and sixth points of error, appellant contends that the trial court erred by (a) incorporating TEX.REV. CIV.STAT.ANN. art. 1436c (Vernon 1980) in the charge and (b) submitting paragraphs C through G in Special Issue Three, because there was no evidence that the power line carried sufficient voltage to justify the application of Article 1436c. Similarly, in its sixth point of error, appellant contends that neither article 1436c nor paragraphs C through G of Special Issue Three should have been submitted to the jury because (1) there was no evidence that appellant desired to perform work near the power line and (2) article 1436c did not establish any duty of appellant. Neither of these specific objections were made at trial; we therefore apply the rule that a statute which sets up standard precautions may provide relevant facts “having proper bearing upon the conduct of a reasonable man under the circumstances, which the jury should be permitted to consider.” See Kraus v. Alamo National Bank of San Antonio, 586 S.W.2d 202 (Tex.Civ.App.—Waco 1979) aff’d 616 S.W.2d 908 (Tex.1981).

Appellant’s trial objection to the submission of article 1436c was that no probative evidence showed that the voltage exceeded 600 volts, presumably the minimum power required for the statutory safety provisions to become effective. Although the propriety of the submission of the statute is not entirely dependent on this issue, we hold that the record as a whole supports a positive inference that the power line carried over 600 volts. For instance, Mr. Cecil Hickman testified by deposition that he was chief of safety programs for an architectural engineering firm and that he was “led to believe” that the power line carried about 7,200 volts. In the absence of an objection or further questioning about the origin of his “belief,” we hold that this testimony has some probative value. Appellant’s fourth, fifth and sixth points of error are overruled.

In its seventh point of error, appellant contends that paragraphs C through G should not have been submitted because there was no evidence that appellant knew or should have known that Mendoza was operating the truck and trailer in the vicinity of the power lines. Once again, this objection was not presented at trial. We will not hold that appellant may avoid taking reasonable safety precautions by hiring an independent contractor and thereafter absolving itself of all responsibility. Appellant is a hauling company employing elevating dump-trailers, and we certainly cannot say as a matter of law the trial evidence established that appellant had no reason to know that its operations might occur in the vicinity of overhead power lines. Appellant’s seventh point of error is overruled.

In its eighth, ninth and tenth points of error, appellant contends that the trial court erred by submitting Special Issues Twelve through Eighteen, which sought to determine appellant’s liability for contribution in the event that the jury found Fruehauf liable on a products liability theory. The jury’s answers to the special issues established generally that the dump trailer was unreasonably dangerous; that appellant knew of the danger and failed to use reasonable care to warn of the defective condition; and that the failure to warn was a proximate cause of the accident. Appellant concedes, however, that the jury’s answers to these special issues were ignored and that no liability for a defective product was assessed against it. The action complained of is immaterial and therefore harmless. Kraus v. Spencer, 620 S.W.2d 640 (Tex.Civ.App.—Dallas 1981, writ ref’d n.r.e.). Harmless error will not support the reversal of a judgment. King Optical v. Automatic Data Processing of Dallas, Inc., 542 S.W.2d 213 (Tex.Civ.App.—Waco 1976, writ ref’d n.r.e.). Appellant’s eighth, ninth and tenth points of error are overruled.

We also overrule appellant’s eleventh point of error in which it complained of the trial court’s action in denying indemnity from Fruehauf if appellant was found liable in Special Issues Twelve through Eighteen; since Fruehauf was not found liable under these issues, the trial court did not err by not ordering indemnification.

In its twelfth point of error, appellant contends that, under TEX.REV.CIV.STAT. ANN. art. 2212a, it was entitled to a $28,-200 credit in the judgment because Walker Construction settled with appellee. In its thirteenth point of error, appellant contends that the trial court erred by allowing settling defendant Heldt Trucking a credit in the judgment, which increased the amount of the judgment against Texas Hauling in accordance with article 2212a.

Appellee originally settled with the Electric Company for $150,000, plus an assignment of its cause of action against Walker Construction and Heldt Trucking. Before trial, appellee settled the Electric Company’s cause of action against Walker Construction for $15,000, plus a waiver of a remaining compensating lien of $13,200 — a total of $28,200. Appellant argues that it is entitled to a credit in the judgment for this amount under article 2212a. However, Walker Construction was appellee’s employer, and appellant is not entitled to a credit for such a settlement. Varela v. American Petrofina Company of Texas, 658 S.W.2d 561 (Tex.1983). Appellant’s twelfth point of error is overruled.

The jury awarded appellee $925,-000. The trial court then subtracted the dollar amount of appellee’s negligence and the Electric Company’s settlement before computing the liability of Heldt Trucking, which was also subtracted from the amount to be owed by appellant, Mendoza and Fruehauf. Appellant contends that, because Heldt Trucking settled, its percentage of liability should have been computed before the amount of the Electric Company’s settlement was subtracted. We find no support for this argument. The plain language of article 2212a § 2(d) allows each remaining defendant a reduction in liability. Appellant’s thirteenth point of error is overruled.

Appellant also filed an “amended brief” in which it asserts seven “reply” points and five “amended” points of error. The arguments raised in that brief present overlapping contentions or different shades of previously presented points of error which have been previously resolved.

All points of error have been considered and are overruled. The judgment of the trial court is AFFIRMED.

BENAVIDES, SEERDEN aid DORSEY, JJ., not participating.


author: MURPHY, Justice.

text:
    Donald J. STAFFORD, et al., Appellants, v. Horace JACKSON, Jr., Appellee.
    No. B14-84-523CV.
    Court of Appeals of Texas, Houston (14 Dist.).
    Feb. 21, 1985.

      Randall C. Grasso, Robertson, Miller & Taylor, Dallas, for appellants.
    Paul J. Batista, Caldwell, for appellee.
    Before PAUL PRESSLER, MURPHY and DRAUGHN, JJ.
   OPINION

MURPHY, Justice.

This is an appeal in an adverse possession case. Appellee, Horace Jackson, Jr., brought suit in trespass to try title claiming that he had gained title to a tract of land in Burleson County by adverse possession. TEX.REV.CIV.STAT.ANN. art. 5510 (Vernon 1958). Appellants, Donald J. Stafford, Charles Cunningham, and the heirs of Tina Bedford appeal from the judgment of the trial court awarding title to Appellee. We affirm.

The tract of land in question was originally one of six contiguous fifty-six acre tracts in Burleson County owned by Missouri Munson Jackson. In 1912, he conveyed the disputed tract of land to Tina Bedford. Appellee, Horace Jackson, Jr., is the grandson of Missouri Munson Jackson and the nephew of Tina Bedford. In 1919 or 1920, Tina Bedford and her family left Burleson County and moved to Moody, Texas. Neither Bedford nor any of her heirs returned to the property until 1982 when Carl R. Bedford, Bedford’s great grandson, asserted an interest in the property.

Appellee holds record title to three of the six fifty-six acre tracts formerly owned by Missouri Munson Jackson. In 1929, the most eastern of the six tracts of land was sold. The tract of land in dispute in this case is west of the tract sold in 1929 and is to the immediate east of two of Appellee’s tracts.

In 1929, Appellee and his father built a fence along the eastern boundary of the disputed tract. That fence combined with preexisting fences served to create a common fence around two of Appellee’s tracts and the contiguous Bedford tract. Appel-lee’s father died in 1951. Since that time Appellee was in exclusive possession of the land.

The Bedford tract was heavily wooded. During the time Appellee was in possession, he allowed cattle to graze on the land, relocated a road, built and repaired fences, cut trees for fence posts and firewood, hunted, cleared some trees and brush, and built a gate to keep the public off the tract. However, Appellee did not clear a substantial portion of the tract, even though it was suitable for cultivation. Beyond cutting trees for firewood and fence posts, Appel-lee did not timber the land. Appellee had leased his deeded property for oil and gas exploration but did not do the same with the Bedford tract. Neither Appellee nor his father ever paid taxes on the Bedford tract. The repairs to the fences which surrounded Appellee’s two deeded tracts and the Bedford tract were done in part by Appellee’s neighbors.

During 1976, there was extensive oil and gas leasing activity in the area. The Bed-ford tract was the only property in the nearby area which was not under lease at that time. Appellee was contacted by land-men about leasing the Bedford tract. One of those landmen was Richard Bowers. Bowers testified that Appellee never said that he owned the property. Appellant, Donald J. Stafford, was another landman who met with Appellee. Stafford testified that Appellee said that he did not own the Bedford tract. Appellee testified that what he told Stafford was that he did not have a deed to the property. Eventually, the land-men located the heirs of Tina Bedford, the last recorded deed holder. Carl Bedford soon thereafter met with Appellee. Bed-ford testified that Appellee did not tell him that Appellee was claiming title to the property by adverse possession. Most of the heirs of Tina Bedford executed oil and gas leases over the tract in dispute here. Stafford acquired a one-third interest in the tract from one of the heirs. Stafford then conveyed one-half of that interest to Appellant, Charles Cunningham.

Appellee brought a trespass to try title suit to establish limitation title to the property. After a non-jury trial, the trial court found that title was established by limitation based on adverse possession. Appellants appeal from the judgment awarding title and possession of the tract to Appel-lee.

In points of error one and two, Appellants challenge the legal and factual sufficiency of the evidence to support the metes and bounds description of the property used in the judgment. The parties agree that in a trespass to try title action based upon a claim of adverse possession, the plaintiff must prove each element of his case by clear and convincing evidence, and, where plaintiff sues for a specific tract of land, this burden includes proving the location of the tract on the ground. See Thompson v. Texas Commerce Bank National Association, 586 S.W.2d 138 (Tex. Civ.App.—Houston [1st Dist.] 1979, writ ref'd n.r.e.).

The metes and bounds description of the tract contained in the judgment is the same as the description in Plaintiff’s Original Petition and the Affidavit of Adverse Possession. The Original Petition was admitted into evidence as Defendants’ Exhibit No. 15. The Affidavit is in the record as Defendants’ Exhibit No. 16. Appellants argue the description contained in those documents may not be relied upon to provide the legal description of the tract because: (1) pleadings are not evidence; (2) the documents were only used for impeachment; and (3) the property descriptions are hearsay.

During the cross-examination of Appel-lee, the Original Petition was used to impeach him on the issue of whether he was “cultivating” the Bedford tract. The Original Petition and Affidavit of Adverse Possession were not introduced into evidence at that time. After Appellee rested and closed his case, Appellants made a motion for judgment, which was overruled by the trial court. The two documents, Defendants’ Exhibits Nos. 15 and 16, came into evidence at the close of Defendants’ case when they were included in a general offering of Defendants’ Exhibits Nos. 1 through 21. When offered into evidence, no limitation was made that Exhibits Nos. 15 and 16 were offered for impeachment purposes only.

We agree with Appellants that a party may not introduce into evidence his own abandoned pleadings for the purpose of proving his own case. REO Motor Car Co. of Texas v. Barnes, 9 S.W.2d 374, 377 (Tex.Civ.App.—Texarkana 1928, no writ). However, the Original Petition and Affidavit of Adverse Possession were introduced into evidence by Appellants, not by Appel-lee and Appellants did not limit the purpose for which these exhibits were admitted. While these exhibits were not in evidence at the time the trial judge denied Appellants’ Motion for Judgment, Appellants have not complained of the failure to grant the motion in a separate point of error.

Appellants also argue that the property description contained in exhibits 15 and 16 is insufficient because they are hearsay. Inadmissible hearsay evidence admitted without objection is no longer to be denied probative value merely because it is hearsay. TEX.R.EVID. 802. In addition, Appellants may not now complain of hearsay contained in exhibits which they introduced into evidence.

Because Exhibits Nos. 15 and 16 contain the same property description as the description in the judgment, there is sufficient evidence in the record to establish the location of the boundaries of the tract on the ground. Points of error one and two are overruled.

Point of error five claims the trial court erred in entering judgment for limitation title because Appellee’s “use of the land was only casual grazing of incidentally enclosed land, which does not constitute an adverse or hostile use as a matter of law.”

An adverse claimant who relies upon grazing only as evidence of his adverse use and enjoyment must show as part of his case that the land in dispute was designedly enclosed. McDonnold v. Weinacht, 465 S.W.2d 136, 142 (Tex.1971); Jamail v. Gene Naumann Real Estate, 680 S.W.2d 621, 626 (Tex.App.—Austin 1984, writ ref. n.r.e.). Appellee has shown both that the land was used for more than grazing only and the land was designedly enclosed. In addition to using the land for grazing, there was also evidence that part of the land was cleared for a new road, Appellee hunted on the land, brush and trees were cleared from the land, and he cut trees for fence posts and firewood. Appellee’s use of the land exceeded mere grazing. Even if Appellee relied upon grazing only, the evidence is that Appellee and his father built part of the fence, the entire fence has been repaired, and Appel-lee has done part of these repairs or has contributed to the cost of fence repairs. Appellee’s actions in building and maintaining the fence show that the land was not incidentally enclosed. We cannot agree that Appellee’s use of the land was only casual grazing of incidentally enclosed land, which does not constitute an adverse or hostile use as a matter of law. Point of error five is overruled.

In point of error six, Appellants claim the finding that Appellee had asserted a claim of right to the land which was manifested by declarations and by open and visible acts is against the great weight and preponderance of the evidence. Appellants argue Appellee made no such declarations and his actions were insufficient to raise a presumption of notice to the record owners.

Appellee had the burden of showing the elements of adverse possession, including “a claim of right.” Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781, 787 (1954). There is no evidence in the record that Appellee gave actual notice of his claim to the heirs of Tina Bedford. Appellee testified that he was claiming the tract as his own. Since there was no actual notice or declarations to the owners, Appel-lee’s adverse possession must be based on open and visible acts which are so clear and unambiguous that knowledge on the part of the record title owner must be presumed. Jamail, 680 S.W.2d at 626.

The original building of the fence on the eastern boundary was open and visible. The subsequent repair of the fence and building of a gate on the property are some evidence that Appellee was claiming the land as his own. Appellee also allowed his cattle to graze on the property. Trees were cut from the property and used by Appellee as firewood and fence posts. Clearing part of the land for a new road was an open and visible act. A neighbor testified that Appellee claimed to own the land. Appellee could have done other things which would have provided more evidence that he was claiming the land. However, we are unable to say that the trial court’s finding that Appellee has asserted a claim of right to the tract is against the great weight and preponderance of the evidence. Point of error six is overruled.

Points of error three and four assert there was no evidence or insufficient evidence that Appellee’s father was asserting an adverse claim to the land or that he passed such a claim or possession of the land to Appellee. Appellants argue that the trial court erred in finding any facts relating to the possession or use of the land by Appellee’s father.

The trial court made findings that Appellee’s use of the land was sufficient to gain title to the land. Appellants have not been successful in establishing that the findings as to Appellee’s use were not supported by sufficient evidence. Since Appel-lee’s use was sufficient to establish title, any error in the findings on Appellee’s father’s use would be harmless. TEX.R. CIV.P. 434. Points of error three and four are overruled.

The judgment is affirmed.


author: BROOKSHIRE, Justice.

text:
    Nicholas V. LAMPSON, et al., Appellants, v. CITY OF BEAUMONT, Appellee.
    No. 09-84-324-CV.
    Court of Appeals of Texas, Beaumont.
    Feb. 21, 1985.

      Tanner T. Hunt, Jr., Lavon Jones, Beaumont, Michael Baker, Thad Heartfield, Beaumont, for appellants.
    Lane Nichols, City Atty., Beaumont, Kenneth Wall, Houston, for appellee.
   OPINION

BROOKSHIRE, Justice.

This appeal involves the construction of the “Texas Tax Increment Financing Act of 1981”, TEX.REV. CIV.STAT.ANN. Art. 1066e (Vernon Pamph.Supp.1985) (hereinafter the Act of 1981). Appellee filed a petition for a declaratory judgment against several taxing agencies. Appellee sought a judicial determination as to whether the “tax increment base” for the reinvestment zone was to be figured on the “total appraised value of all taxable real property” for the year of 1982 or for the year of 1983. The original petition was brought pursuant to Texas Uniform Declaratory Judgments Act, TEX.REV. CIV.STAT.ANN. Art. 2524-1 (Vernon 1965) showing that Beaumont is a home rule city. The trial court declared that the 1982 values were to be used as the “tax increment base”. We agree.

Appellants have perfected an appeal to this court on the sole point that the Act of 1981 itself required that the values for 1983 be employed rather than the values of 1982. Appellants and Appellee agree that there is no issue of fact and that this appeal involves only the construction of the Act of 1981.

Sec. 2(8) of the Act of 1981 declares, in part:

“ ‘Tax increment base’ means the total appraised value of all taxable real property in a reinvestment zone for the year in which the zone was designated a reinvestment zone as provided by this Act....” (Emphasis added)

Appellants argue that the phrase “as provided by this Act”, in Sec. 2(8), refers to and is modified by Sec. 3(a) which provides in part:

“The incorporated city or town must adopt an ordinance in order to designate an area a reinvestment zone for tax increment financing.”

We disagree with Appellants’ contention. We hold that the phrase “as provided by this Act” refers to the method or means, not the time or year, of designation of a zone.

The provisions of the Act of 1981 must be construed in a harmonious and consistent manner. Sec. 4(e) provides:

“Prior to adoption of an ordinance providing for a reinvestment zone for tax increment financing a city or town must hold a public hearing on the adoption of the zone and its benefits to the city or town and to property in the zone. At the hearing interested parties may speak for or against the creation, the boundaries of the reinvestment zone, and the concept of tax increment financing. Notice of the hearing must be published in a newspaper having general circulation in the city or town not later than seven days before the date of the hearing.” (Emphasis added)

Sec. 4(g)(3) reads:

The ordinance must:

“provide that the zone takes effect on January 1 of the year following the year in which the zone is approved by adoption of the ordinance and provide a date for termination of the zone.... ” (Emphasis added)

Sec. 8(a), in pertinent part, provides:

“These plans must be as consistent as possible with the preliminary plans developed for the zone prior to the creation of the board.” (Emphasis added)

On December 7, 1982, Appellee adopted an ordinance to designate a “tax increment base” consistent with the Act of 1981. Resulting tax increment fund money was to be raised from the designated tax increment base and disbursed to defray the cost of certain public improvements planned for construction in Reinvestment Zone Number One of the City of Beaumont. Since the tax increment base was designated in 1982 pursuant to Sec. 2(8), the 1982 values are the correct ones encompassing “the total appraised value of all taxable real property in a reinvestment zone for the year in which the zone was designated ...”

Appellee argues that the legislative history of the Act of 1981 supports its contention. Appellee points out that the 1977 Act defined “tax increment base” as “the aggregate market value of all taxable property within a redevelopment district on the date such district was designated by the governing body.” The 1977 Act was to be effective only if and when a constitutional amendment was adopted but that constitutional amendment was defeated by the voters of this State.

Appellee argues that the 1979 Act changed the definition of tax increment base to read “the total assessed value of the property located within the tax incremental district on the date the district is created.” (Emphasis added) The 1979 Act further provided that the district was to be created on January 1 of the year following the year in which the ordinance became effective. The Act of 1981 uses vastly different language, lucidly demonstrating, we think, a change in the intention of the legislature.

Hence, under the 1979 Act, the tax increment base would be predicated upon the 1983 appraised values. However, the legislature, realizing the delays because of prior constitutional problems, drastically changed the wording and the language. The legislature decided to use the year of the designation of the zone to establish the year of the tax increment base — being 1982 in the instant case. Under the constitutional Act of 1981 (under which the home rule City of Beaumont zone was adopted), the Texas Solons command that the tax increment base means the “total appraised value of all taxable real property in a reinvestment zone for the year in which the zone was designated a reinvestment zone....” Sec. 2(8). “Designated”, as mandated in the Act of 1981 and “on the date the district is created”, as provided for in the unconstitutional 1979 Act, we find, have vastly different meanings.

Construing the statute as a whole and in a manner harmonizing its various provisions, we find it glaringly clear that the legislature mandated that the ordinance designating a reinvestment zone would necessarily be adopted in a year prior to the zone taking “effect on January 1 of the year following the year in which the zone is approved by adoption of the ordinance _” Sec. 2(8) and Sec. 4(g)(3) must be read and construed sequentially. We sanguinely hold that Appellants’ reliance on the single phrase “as provided by this Act” is not sound. Appellants’ contentions, we find, are vitiated by Sec. 4(g)(3) of the Act of 1981 itself. For these reasons we affirm the judgment of the court below.

Considering the original 1981 Act, it must be noted that the Act could not have taken effect except upon passage of a proposed constitutional amendment in November, 1981. Sec. 2(a) of the 1981 Act stated: “A reinvestment zone designated pursuant to this act may not incur tax increments before January 1, 1982." (Emphasis added) This indicates the legislature realized some zones could be designated between November 1981 and January 1982, but the solons did not want 1981 to be the tax increment base year.

Additionally, Sec. 10 of the original 1981 Act directs cities to commence collecting taxes with the first levy after the zone takes effect. This, forcefully, is an ac-knowledgement of a difference between the year of designation and the year a zone takes effect.

The legislature, in the 1983 amendments, addressed most of the questions raised by Appellants. Prior to August 29, 1983, the reinvestment zone could be designated and created by ordinance, the major requirement being a public hearing. The 1983 amendments required a city to give various notices, presentations and financial information to the other taxing entities prior to the designation and creation of the zone. In our case the zone was designated after several taxing entities had adopted fiscal year budgets based on projected property evaluations for 1983. Unfortunately, the Appellants here did not have the benefit of the 1983 amendments to o allow for better financial planning. For these reasons we affirm the judgment of the court below.

WE AFFIRM.