author: DUGGAN, Justice. EVANS, Chief Justice,

text:
    MARATHON OIL COMPANY, R.K. McCord, C.G. Horner, T.W. Slicker, and M.G. Raiford, Appellants, v. Paul F. SALAZAR, Appellee.
    No. 01-82-0448-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 15, 1984.
    Rehearing Denied Dec. 20, 1984.

      Russell Serafín, Mills, Shirley, McMieken & Eckel, Galveston, for appellants.
    A. Lee McLain, McLain & Niehaus, Wayne H. Paris, McLain & Niehaus, Houston, for appellee.
    Before EVANS, C.J., and DUGGAN and BASS, JJ.
   OPINION

DUGGAN, Justice.

This is an appeal from a judgment based on jury answers to special issues in a suit for malicious prosecution, libel, and slander, awarding plaintiff-appellee, Paul F. Salazar, compensatory and punitive damages totaling $765,000.

Salazar, a seven-year employee of the appellant, Marathon Oil Company, sued Marathon and the four individual appellants, all of whom are Marathon “officers, employees or managing agents,” after he was charged with, arrested, and fired for the theft of a tool, a “Coffing 1½ ton Comealong,” owned by a Marathon subcontractor and found in appellee’s garage. Later investigation revealed that an employee of the sub-contractor had consented to loan the tool to Salazar. The criminal complaint against Salazar was dismissed by a justice of the peace on an assistant district attorney’s motion some two weeks after it was filed and prior to the hearing of a once-reset examining trial.

Appellants urge forty-two points of error, combined into five consolidated points, each attacking one of the court’s five special issues and the accompanying definitions and instructions.

By their answer to Special Issue No. 1, the jury found that appellant Marathon and each of the four individual appellants maliciously prosecuted Salazar for the crime of theft. In their first consolidated point of error, the appellants contend that the trial court erred in overruling their objections and tendered issues, instructions, and definitions to Special Issue No. 1 because the charge: (1) failed to submit ultimate and controlling issues of the malicious prosecution cause of action; (2) informed the jury of the effect of their answers; (3) constituted a direct comment on the weight of the evidence; (4) failed to submit proper and correct definitions as to the law; (5) eliminated the plaintiff’s burden to prove malicious prosecution by a preponderance of the evidence; and, (6) in effect, instructed the jury to return a verdict for the plaintiff.

Because the definition of “probable cause” submitted by the trial court was erroneous, we will address that sub-part of this point of error first.

The court’s definition of “probable cause” read as follows:

“Probable cause” requires a full and fair disclosure of all material facts, which include all facts known to complaintant(s) [sic] that would have affected the prosecuting authority’s decision to prosecute or not prosecute Paul Salazar and all facts later discovered that would have affected the prosecuting authority’s decision to continue or not continue the prosecution; they also include facts that the complaintant(s) [sic] arbitrarily refuses to seek or investigate, which a reasonable person would have sought or investigated. However, unless the complaintant [sic] discloses to the prosecuting authority all material facts known to him relating to the matter, “probable cause” does not exist. (Emphasis added).

Appellants urge that this definition of probable cause erroneously implies that a complainant has a legal duty not only to make a full and fair disclosure to the prosecuting authority before filing a criminal complaint, but also to continue to investigate and disclose facts discovered after the filing of a complaint. There is no such duty.

A party filing or causing the filing of a criminal complaint does so upon probable cause where, in good faith, he makes a full and fair disclosure of the facts and circumstances known to him at the time and the complaint is thereafter filed; however, unless he acts in good faith in disclosing to the prosecuting attorney all material facts known to him, probable cause does not exist. Earn v. Grocer Supply Co., Inc., 580 S.W.2d 17, 21 (Tex.Civ.App.-Houston [1st Dist.] 1979, no writ); Ada Oil Company v. Dillaberry, 440 S.W.2d 902, 910 (Tex.Civ.App.-Houston [14th Dist.] 1969, writ dism’d). Probable cause has been defined as a state of mind in that the facts are regarded from the point of view of the party prosecuting; the question is not what the actual facts were, but what he honestly and reasonably believed them to be. Green v. Meadows, 517 S.W.2d 799, 810 (Tex.Civ.App.-Houston [1st Dist.] 1974), rev’d on other grounds, 524 S.W.2d 509, appeal after remand, 527 S.W.2d 496 (Tex.Civ.App.-Houston [1st Dist.] 1975, writ ref’d n.r.e.).

A private citizen has no duty to inquire of the suspect whether he has some alibi or explanation before filing charges. Armendariz v. Bill Sears Supermarket No. 1, 562 S.W.2d 529, 531-32 (Tex.Civ.App.-El Paso 1978, writ ref’d n.r.e.); Montgomery Ward & Co., Inc. v. Kirkland, 225 S.W.2d 906, 909 (Tex.Civ.App.-San Antonio 1949, writ ref’d n.r.e.); Deaton v. Montgomery Ward & Co., 159 S.W.2d 969, 972 (Tex.Civ.App.—Beaumont 1942, writ ref’d w.o.m.). Further, once a person fairly discloses the facts in his possession to the prosecuting officer, he has no duty to make further investigation; it is the duty of the officer to investigate further if he thinks necessary. Carswell v. Southwestern Bell Telephone Co., 449 S.W.2d 805, 817 (Tex.Civ.App.—Houston [1st Dist.] 1969, no writ).

Appellants’ tendered definition of “probable cause” read:

“PROBABLE CAUSE”: The existence of such facts and circumstances as would excite the belief in another person of a reasonable mind acting on the facts or circumstances within his knowledge at the time that the Plaintiff was guilty of some form of the offense of theft, as hereafter defined. You are further instructed that the question of probable cause does not depend upon the guilt or innocence of the Plaintiff.

This requested but refused definition is correct, and is essentially identical to that approved by the Texas Supreme Court in Akin v. Dahl, 661 S.W.2d 917, 921 (Tex.1983).

Rule 277, Tex.R.Civ.P., authorizes the trial judge to submit such explanatory instructions as are “proper” to aid the jury in answering special issues without giving a general explanation of the law. However, the court must define legal and other technical terms, Johnson v. Whitehurst, 652 S.W.2d 441, 447 (Tex.App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.), and a charge which does not instruct correctly as to the law applicable to the facts is improper. Gulf Coast State Bank v. Emenhiser, 562 S.W.2d 449, 453 (Tex.1978).

The court’s instruction failed to inform the jury that probable cause depends upon what the appellants knew when they filed the complaint. Events prior to the institution of the proceedings must be examined, and only those events, to determine if the appellants had probable cause to act. Akin at 920.

There is no evidence in the record that the appellants knew, before filing the criminal complaint, that the appellee had permission to borrow the tool. The evidence showed that, at the time the complaint was filed, (1) the individual appellants knew that appellee had in his garage a piece of equipment that belonged to Marathon’s sub-contractor, and (2) the sub-contractor’s personnel had verified to the individual appellants, apparently erroneously, that there had been no loan of this equipment to ap-pellee. Only after the appellee had been arrested and released on bond did the subcontractor’s employee, Judd Hendricks, recall having spoken to the appellee about borrowing the equipment.

As worded, the court’s instruction failed to pinpoint the time when the probable cause question was to be answered. It erroneously allowed the jury to find a lack of probable cause based on events that occurred subsequent to the filing of charges and appellee’s arrest. Additionally, this instruction implied that the appellants had the duty to confront the appellee with their suspicions before filing the charge. This is a misstatement of the law, and such an omission does not establish the lack of probable cause. Armendariz, 562 S.W.2d at 531-32.

While appellants’ actions both before and after the filing of the criminal complaint may be considered by the trier of fact as evidence that the appellants acted with malice in prosecuting the appellee, and while malice may be inferred from the want of probable cause, Adams v. Thomas, 638 S.W.2d 933, 937 (Tex.App.—Houston [1st Dist.] 1982, writ ref’d n.r.e.), the want of probable cause can never be inferred from proof of malice. Parker v. Dallas Hunting & Fishing Club, 463 S.W.2d 496, 500 (Tex.Civ.App.—Dallas 1971, no writ); Biering v. First National Bank, 69 Tex. 599, 7 S.W. 90 (1888).

The court’s charge was a substantive misstatement of the definition of “probable cause,” and its submission constituted error which was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.Civ.P. 434; Gulf Coast State Bank v. Emenhiser, 562 S.W.2d at 453-54.

We have examined the complaints contained in the remaining sub-parts of appellants’ first consolidated point of error and find that they are without merit. Appellants’ first consolidated point of error is sustained as to that portion complaining of the erroneous definition of “probable cause.”

Appellants’ second consolidated point of error relates to the trial court’s charge on slander in Special Issue No. 2. However, any error in the submission of this issue was rendered moot by the jury’s finding against the appellee on this issue. Furthermore, the appellants have not complained on appeal that the submission of Special Issue No. 2 in any way affected the submission of the other issues in the court’s charge. Appellants’ consolidated point of error two is overruled.

Appellants’ third consolidated point of error asserts that the trial court erred in submitting the libel issue to the jury because (1) there was no evidence or insufficient evidence to support the submission; (2) the charge failed to include an instruction concerning “qualified privilege” or a definition of “publish/publication;” and, (3) the charge failed to include all of the necessary elements of a libel cause of action.

We first consider appellants’ claim of error in the court’s refusal to give an instruction defining “qualified privilege.”

As submitted to the jury Special Issue No. 3 read:

Do you find from a preponderance of the evidence that any Defendants have libeled the Plaintiff? Indicate (X) such Defendants, if any, below:
DEFINITION: “Libel” is defined as any statement or opinion expressed in writing that tends to injure the reputation of another and expose him to public contempt or ridicule; or tends to impeach his integrity, honesty, or reputation.

The jury answered “We do” as to appellant Marathon Oil Company and the individual appellants McCord and Horner, but “We do not” as to appellants Raiford and Slicker.

Plaintiff’s operative pleading, his Sixth Amended Original Petition, alleges libel as a consequence of the wrongful filing of the criminal complaint charging him with theft.

Appellants objected to the submission of Special Issue No. 3 without an accompanying definition of “qualified privilege,” and tendered a proposed instruction which read as follows:

“QUALIFIED PRIVILEGE”: You are instructed that when a communication is made in good faith on a subject matter in which the author of the communication has an interest or with reference to which he has a duty to perform, to another person having a corresponding interest or duty, that the communication, under such circumstances, is “qualifiedly privileged”. You are further instructed that any communications of alleged wrongful acts to an official authorized to protect the public from such acts is “qualifiedly privileged”. This means that such communications cannot be the basis of libel or slander or a claim for damages against a Defendant, unless said statements are false and made with malice. You are instructed that as long as the Defendants only made the facts of the arrest and termination available to other employees, then said communications were “qualifiedly privileged”. You are further instructed that the communications contained in the criminal complaint were “qualifiedly privileged”.
You are further instructed that when a publication is qualifiedly privileged the burden of proof is on the Plaintiff to show that said publications were false and made with malice. You are further instructed that there must be actual evidence of malice as that term is defined, and that malice cannot be inferred from the publication of the facts themselves, even if said facts are false.

The requested instruction correctly stated the applicable law of qualified privilege. A communication on a subject in which the author or the public has an interest, or with respect to which the author has a duty to perform to another owing a corresponding duty, may constitute a qualified or conditional privilege. British Overseas Airways Corp. v. Tours and Travel of Houston, Inc., 568 S.W.2d 888, 892-93 (Tex.Civ.App.-Houston [1st Dist.] 1978, writ ref d n.r.e.). In addition,

Accusations against an employee by his employer or another employee made to a person having a corresponding interest or duty in the matter to which the communication relates, are qualifiedly privileged.

Bergman v. Oshman’s Sporting Goods, Inc., 594 S.W.2d 814, 816 (Tex.Civ.App.—Tyler 1980, no writ).

Charging one falsely with the commission of any crime for which he may be punished by imprisonment is libel per se. Christy v. Stauffer Publications, Inc., 437 S.W.2d 814, 815 (Tex.1969). Such written or printed words are held to be so obviously hurtful to the person aggrieved by them that they require no proof of their injurious character to make them actionable. Rawlins v. McKee, 327 S.W.2d 633, 635 (Tex.Civ.App.-Texarkana 1959, writ ref’d n.r. e.). Plaintiff was charged with stealing an item worth $176.50, a Class A misdemeanor, which could have resulted in both fine and imprisonment. Tex.Penal Code Ann., Sections 31.03, 12.21 (Vernon 1974). Thus, the appellee had no duty to prove injury to his reputation, public contempt or ridicule, or the impugning of his integrity.

Malice is also presumed and need not be proved in actions where the words used are libelous per se. Goree v. Carnes, 625 S.W.2d 380, 385 (Tex.App.-San Antonio 1981, no writ) (citing Houston Belt & Terminal Railway Co. v. Wherry, 548 S.W.2d 743 (Tex.Civ.App.-Houston [1st Dist.] 1976, writ ref’d n.r.e., cert. denied 434 U.S. 962, 98 S.Ct. 497, 54 L.Ed.2d 447 (1977)).

On the other hand, the law presumes good faith and want of malice where the utterance is qualifiedly privileged. Goree at 385 (citing Jackson v. Cheatwood, 445 S.W.2d 513 (Tex.1969)). Qualified privilege is lost, however, if the defamatory statement is in any degree actuated by malice. Houston v. Grocers Supply Co., Inc., 625 S.W.2d 798, 801 (Tex.App.-Houston [14th Dist.] 1981, no writ). In short, if the plaintiff was defamed by a written complaint that was libelous per se, he was obliged to secure a jury finding of malice only if the subject communication was a qualifiedly privileged one.

Appellants pled in their operative pleading, their Fourth Amended Original Answer, that the filing of the criminal complaint was privileged, or in the alternative, qualifiedly privileged. The Texas Supreme Court decision of James v. Brown, 637 S.W.2d 914 (Tex.1982) would appear to be authority that appellants Slicker’s and Hor-ner’s filing of the criminal complaint against appellee in the justice of the peace court was absolutely privileged. The court there stated:

Communications in the due course of a judicial proceeding will not serve as the basis of a civil action for libel or slander regardless of the negligence or malice with which they are made. Reagan v. Guardian Life Insurance Co., 140 Tex. 105, 166 S.W.2d 909 (1942). This privilege extends to any statement made by the judge, jurors, counsel, parties or witnesses, and attaches to all aspects of the proceedings, including statements made in open court, pre-trial hearings, depositions, affidavits and any of the pleadings or other papers in the case.

Id. at 916. Accord Hott v. Yarborough, 112 Tex. 179, 245 S.W. 676 (1922); Meyer v. Viereck, 286 S.W. 894 (Tex.Civ.App.-Galveston 1926, writ dism’d).

However, appellants did not object, based on absolute privilege, to the submission of appellee’s libel cause of action. They rely instead on the authority of Zarate v. Cortinas, 558 S.W.2d 652 (Tex.Civ.App.—Corpus Christi 1977, no writ), for the proposition that they had a qualified or conditional privilege to file the criminal complaint. The Zarate court recognized that “[i]n Texas the rule has been established that communications uttered or published in the course of a judicial proceeding are absolutely privileged ...,” Id. at 655, but went on to state:

We are of the opinion that the better reasoned rule is to hold that the communication of alleged wrongful acts to an official authorized to protect the public from such acts is a qualified privilege.... The qualifying criterion for such a privilege is that the statements must be made in good faith and without malice. (Emphasis added).

553 S.W.2d at 655.

When a libel action is based on a conditionally or qualifiedly privileged publication, and such privilege is shown to exist, the plaintiff has the burden of showing that the privilege is lost by proving that the publication was made with malice or a want of good faith. Dun and Bradstreet, Inc. v. O’Neil, 456 S.W.2d 896, 898 (Tex.1970); Houston Belt & Terminal Ry. Co. v. Wherry, 548 S.W.2d at 754. Qualified privilege is lost if the communication is in any degree actuated by malice. Houston v. Grocers Supply Co., Inc., 625 S.W.2d 798 at 801.

Because the affirmative defense of privilege was asserted in appellants’ answer, and because the undisputed evidence showed that two of the appellants filed the criminal complaint in question before the justice of the peace, the appellants met their burden of pleading and proof of qualified privilege, Denton Publishing Co. v. Boyd, 460 S.W.2d 881, 884 (Tex.1970), and were entitled as a matter of law to have a jury determination on the issue unless, as appellee urges in his reply brief, the evidence showed conclusively that the appellants acted with malice.

Malice has been defined as ill will, bad or evil motive, or such gross indifference or reckless disregard of the rights of others as to amount to a willful or wanton act. Buck v. Savage, 323 S.W.2d 363, 373 (Tex.Civ.App.-Houston [1st Dist.] 1959, writ ref’d n.r.e.). Malice in a libel suit means publication with the knowledge that the communication was false or with reckless disregard for whether it was false. El Paso Times v. Trexler, 447 S.W.2d 403, 405 (Tex.1969).

The facts in this case do not conclusively establish malice in the filing of the theft charge. Proof of malice cannot be inferred from the falsity of the statement alone. Cheatwood v. Jackson, 460 S.W.2d 528, 530 (Tex.Civ.App.—Houston [14th Dist.] 1970, writ ref’d n.r.e.). Negligence, failure to investigate the truth or falsity of a statement before publication, and failure to act as a reasonably prudent man have been held insufficient to show malice. El Paso Times, 447 S.W.2d at 406. The evidence showed that at no time prior to the filing of the criminal complaint did any of the appellants know or believe that the appellee had permission to borrow the equipment in question. Appellants were entitled to submission of the tendered instruction on qualified privilege.

There is evidence that the appellants could not account for the presence of the comealong in plaintiff’s garage, and relied upon information from Marathon’s subcontractor’s employees that a comea-long had not been loaned at the jobsite. A jury might have inferred malice, however, from testimony by appellants that they intended to file charges first and then investigate further, from evidence of racial prejudice against plaintiff, from evidence of appellants’ post-arrest termination of plaintiff after Hendricks told them he had consented to loaning the tool, and from evidence of their persisting with the prosecution when they knew the whole story. Stearns v. McManis, 543 S.W.2d 659, 664 (Tex.Civ.App.-Houston [1st Dist.] 1976, writ dism’d). The issue was a proper one for jury determination upon proper instructions. The court’s rejection of appellants’ proposed instruction on qualified privilege denied them the right to have the jury decide whether it believed they acted with malice in filing the complaint. Such an error significantly reduced plaintiff’s burden of proof, and therefore requires reversal of the judgment on the libel case.

We have considered the factual insufficiency point contained in this consolidated point of error, and find it to be without merit. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Appellants’ third consolidated point of error is sustained as to that portion complaining of the omission of an instruction concerning “qualified privilege.”

Appellant’s fourth and fifth consolidated points of error complain of the trial court’s action in refusing their requested instructions and definitions, and in overruling their objections to Special Issues No. 4 and No. 5, the compensatory and punitive damages issues. We have examined each contention, and find each to be without merit. Consolidated points of error four and five are overruled.

The judgment is reversed and the cause is remanded to the trial court.

EVANS, C.J., dissenting.

EVANS, Chief Justice,

dissenting.

In my opinion the court’s definition of “probable cause” does not, under the particular circumstances of the case, require the reversal of the trial court’s judgment and a new trial.

The court’s charge on probable cause authorized the jury, in deciding whether the appellants had made a full and fair disclosure of all material facts, to consider all facts, either known to or later discovered by the appellants, that would have affected the prosecuting authority’s decision to prosecute or to continue to prosecute the charge against the appellee. This, according to the court’s charge, would include any facts that the appellants may arbitrarily have refused to seek out or investigate, if a reasonable person would have sought or investigated such facts.

I agree with the general statement of the law in the majority opinion that a complainant is not required, before reporting a suspected crime, to inquire of the suspected party whether he has some alibi or explanation. Neither do I question, as a general statement of the law, that if the complaining party makes a full, fair, and complete statement to the prosecuting authorities, he is under no duty to investigate the matter further. I also recognize that, in determining probable cause, the question is not what the actual facts were, but what the complaining party honestly and reasonably believed them to be.

I do, however, disagree with the conclusion reached in the majority opinion that these general statements of law control the disposition of the instant case. Here, the appellants took affirmative steps to assure the arrest and prosecution of the appellee, and their actions extended beyond the mere reporting of a suspected crime to the authorities. Therefore, in deciding whether probable cause existed in this ease, the jury was entitled to consider the actions of the appellants both “at the beginning and during the course of” the prosecution. See, e.g., Sullivan v. O’Brien, 85 S.W.2d 1106, 1114 (Tex.Civ.App.-San Antonio 1935, writ ref’d).

The appellants admitted that when they first learned that the appellee had a cornea-long tool in his garage, they had no knowledge of any theft of such equipment. Then, even after they had determined that the tool did not belong to their company, they initiated their own investigation to determine whether it had been stolen. There was testimony that the appellants already had decided to fire the appellee when they caused him to be arrested, even before his guilt had been established. They also testified that they intended to carry out a thorough investigation of the matter after the appellee was arrested.

After filing the complaint, the appellants took it upon themselves to call the police and to give them information in aid of their locating and arresting the appellee. They also caused a notation to be made on the complaint, instructing that they be notified as soon as the appellee was arrested. On the very morning after the appellee’s arrest, the appellants’ inquiries revealed to them that the comealong had probably not been stolen and that it had merely been loaned to the appellee. Nevertheless, the appellants fired the appellee and never withdrew their complaint.

Even after learning of the probable innocence of the appellee, as a result of their own affirmative investigative efforts, the appellants continued to press their effort to have the prosecution continue. The appellants appeared at the first hearing of the case, knowing that the tool had probably not been stolen, but they did not disclose such exculpatory information to the prosecuting officials. Neither did they object to the continuance and rescheduling of the hearing. Even after dismissal of all charges against the appellee, the appellants tried to persuade the person who had exonerated appellee to sign an affidavit about his part in the case; however, that person refused to sign the affidavit, because it presented an incomplete and distorted picture of what had occurred.

The appellee presented competent evidence to negate the existence of probable cause, and that proof created a fact issue for the jury’s determination. See Akin v. Dahl, 661 S.W.2d 917 (Tex.1983). In reaching its decision on that issue, the jury was entitled to consider all of the above-mentioned circumstances tending to show that the appellants had acted in bad faith, Earn v. Grocer Supply Co., 580 S.W.2d 17 (Tex.Civ.App.-Houston [1st Dist.] 1979, no writ), including the fact that the appellants chose to institute the criminal proceeding in the justice of the peace court, rather than with the police or the sheriff’s department, which had greater investigatory capability. The jury was also entitled to consider the undisputed evidence establishing the appellee’s good character and reputation. Jameson v. Zuehlke, 218 S.W.2d 326 (Tex.Civ.App.-Waco 1948, writ ref’d n.r.e.).

From all such circumstances, the jury could reasonably have found that the appellants actively involved themselves in the prosecution of the appellee, without the existence of probable cause, and for the sole purpose of establishing a basis for terminating the appellee’s employment. Under the pleadings and the evidence, the court’s charge properly authorized the jury to consider not only those circumstances existing at the time the complaint was filed, but also those relating to the appellants’ involvement in the continuation of the prosecution.

The appellants contend on appeal that the court’s charge erroneously imposed the duty upon them, after charges were filed, to continue the investigation in an effort to obtain exculpatory evidence. A reading of the objections made to the court’s charge during trial leaves doubt as to whether the trial court was adequately apprised that this constituted appellants’ objection to the charge. However, even assuming that the court’s definition is susceptible to that interpretation, and therefore erroneous, and that error was preserved by proper objection, no reversible error is presented, because the definition may be given a construction consistent with the law and the facts, and there is no showing that the jury was misled by the court’s language.

A trial judge is given considerable discretion in framing legal definitions for submission to the jury, Newspapers, Inc. v. Love, 367 S.W.2d 185, 203 (Tex.Civ.App.-Austin 1963), rev’d on other grounds, 380 S.W.2d 582 (Tex.1964), and if a charge is susceptible to more than one interpretation, it will be presumed that the court intended the correct interpretation. See Loving County v. Higginbotham, 115 S.W.2d 1110, 1114 (Tex.Civ.App.-Eastland 1938, writ dism’d); 3 R. McDonald, Texas Civil Practice in District and County Courts, sec. 12.37.1 (1983). The court’s definition of probable cause, considered in the light of the pleadings and the evidence, was subject to a lawful construction, and the appellants have not shown any reasonable likelihood that the jury was misled thereby. See Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191 (1949); compare, Earthman’s, Inc. v. Earthman, 526 S.W.2d 192, 205-06 (Tex.Civ.App.-Houston [1st Dist.] 1975, no writ).

I would overrule the appellants' first point of error, and because the trial court’s judgment may be supported on the finding of the jury to the first special issue, I would affirm the judgment.


source: Caselaw Access Project

author: BULLOCK, Justice.

license: Public Domain

text:
    Damon L. GUTHRIE, Appellant, v. REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Appellee.
    No. 01-84-276-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 21, 1984.
    Rehearing Denied Dec. 20, 1984.

      Russell G. Burwell, Simpson & Burwell, Texas City, for appellant.
    Wade Williams, Mills, Shirley, McMicken & Eckel, Galveston, for appellee.
    Before BULLOCK, BASS and DUGGAN, JJ.
   OPINION

BULLOCK, Justice.

Damon Guthrie appeals from a trial court judgment rendered on a jury verdict, awarding him nothing from the appellee for alleged violations of the Tex.Ins.Code Ann. art. 21.01 et seq. (Vernon 1981). We affirm.

In late 1977, the appellant’s employer, Seabrook Shipyards, became dissatisfied with its Blue Gross/Blue Shield group health insurance policy, and sought another insurance carrier. Seabrook came into contact with John Cronin, an independent insurance agent who solicited policies for several insurance companies, including the appellee. Seabrook’s business manager testified that she told Mr. Cronin that Sea-brook wanted an insurance policy identical to the Blue Cross/Blue Shield policy, especially regarding coverage for previously existing conditions. The appellant contended that the Blue Cross/Blue Shield policy did not limit such coverage. Mr. Cronin presented a proposal for insurance prepared by the appellee; this proposal was silent regarding pre-existing conditions limitations. Apparently relying on Mr. Cronin’s representations that the appellee would cover any previously existing conditions completely, Seabrook applied for insurance with the appellee. Seabrook never dealt directly with the appellee prior to this resultant dispute; all contacts regarding the policy were with Mr. Cronin.

The appellee prepared a policy consistent with the proposal, and Cronin presented it to Seabrook. Seabrook accepted this policy, which originally had a limitation of $1,000.00 for previously existing conditions. A letter that accompanied the policy, and that all parties agree became part of the policy, raised this limitation to $10,000.00 for those employees whom Seabrook had covered under Blue Cross/Blue Shield. There is no evidence in the record that Seabrook challenged this coverage.

The appellant’s wife incurred medical bills of approximately $21,000.00 before the date that the appellee’s policy became effective. The appellee paid $10,000.00 of these bills, and denied the remainder of the claim.

The appellant never sued Mr. Cronin or joined him in this action, alleging instead only that the appellee was liable for Cronin’s misrepresentations under the provisions of Tex.Ins.Code Ann. art. 21.21 (Vernon 1981) and Texas State Board of Insurance Regulation No. 18663. The jury found that Mr. Cronin had misrepresented the policy but that the appellee had not, and the trial court then rendered judgment for the appellee.

The appellant presents four points of error, comprising three general arguments:

That the trial court improperly refused to attribute Cronin’s misrepresentations to the appellee, as statutory and common law require, and improperly refused to submit a special issue regarding agency to the jury (Points of Error 1, 2);

That the evidence is factually insufficient to support the jury’s finding that the appel-lee made no misrepresentations to Sea-brook (Point of Error 3); and

That the trial court improperly found the insurance policy to be unambiguous (Point of Error 4).

The appellant offered testimony at trial that, he claims, established Cronin as either an employee of the appellee or an agent acting with actual or apparent authority to bind the appellee. The appellant contends that specific statutory and regulatory provisions required the trial court to attribute Cronin’s misrepresentations to the appellee. Alternatively, the appellant argues that the trial court should have submitted a special issue regarding agency to the jury.

The appellee claims that the Insurance Code specifically exempts it from any liability for Cronin’s misrepresentations, because this policy was a life insurance policy, or that the statutory provisions that the appellant relies on are not applicable in the instant case. The appellee also contends that the evidence failed to demonstrate a factual dispute upon which to justify or require the submission of the special issue.

In order to evaluate the parties’ claims properly, we first turn to the specific statutes and common law doctrines involved.

Tex.Ins.Code Ann. art. 21.04 (Vernon 1981) states:

Any person who shall solicit an application for insurance upon the life of another shall in any controversy between the assured and his beneficiary and the company issuing any policy upon such application be regarded as the agent of the company, and not the agent of the assured, but such agent shall not have the power to waive, change or alter any of the terms or conditions of the application or policy.

Other statutory and regulatory provisions are also pertinent to this dispute. Article 21.21, sec. 3 prohibits deceptive trade practices in the insurance industry. Article 21.-21, sec. 4(1) defines deceptive trade practices to include the misrepresentation of policy terms. Article 21.21, sec. 8 grants a private cause of action to an individual who is the victim of a deceptive trade practice. Finally, Texas State Board of Insurance Regulation No. 18663 also prohibits deceptive trade practices, including misrepresentations, in the solicitation of insurance policies.

[A] soliciting agent of an insurance company has no power or authority to make a contract on behalf of the company or to waive the terms of the policy.

International Security Life Insurance Co. v. Finch, 496 S.W.2d 544, 546 (Tex.1973). A soliciting agent, whose authority is limited to receiving and forwarding applications for insurance, cannot bind the insurer for his misrepresentations. Dugan v. General Accident Fire & Life Assurance Corp., 421 S.W.2d 717, 719 (Tex.Civ.App.-Houston [14th Dist.] 1967, writ ref d n.r.e.). It is clear, therefore, that the common law in this state does not permit a soliciting agent to bind the insurance carrier by his actions.

Absent actual authority, the insurance agent can bind the insurer only if the agent had apparent authority to act for the carrier.

The rights of the parties to a contract of insurance are to be determined primarily with a view to the agent’s apparent authority, unrestricted by the instructions of the principal which are not shown to have been known by or communicated to the insured [emphasis in the original].

Employers Casualty Co. v. Winslow, 356 S.W.2d 160, 167-168 (Tex.Civ.App.-El Paso 1962, writ ref’d n.r.e.).

In order for an insurance agent to have the necessary apparent authority, the carrier must confer that apparent authority by committing actions that, either intentionally or negligently, would induce a third person to believe the agent to have the authority he claims to have. Brackett v. Universal Life Insurance Co., 488 S.W.2d 584, 586 (Tex.Civ.App.-Beaumont 1972, no writ).

One determines apparent authority by looking to the acts of the principal, the appellee herein, to see if those acts would lead a reasonably prudent person using diligence and discretion to suppose that the agent had the authority he purported to exercise. Biggs v. United States Fire Insurance Co., 611 S.W.2d 624, 629 (Tex.1981). One should look only at the acts of the principal; representations made by the agent of his authority have no effect. Southwest Title Insurance Co. v. Northland Building Corp., 552 S.W.2d 425, 428 (Tex.1977). Also, the principal must either have affirmatively held the agent out as possessing the authority or must have knowingly and voluntarily permitted the agent to act in an unauthorized manner. Douglass v. Panama, Inc., 504 S.W.2d 776, 778-779 (Tex.1974).

Furthermore, although an insurance agent acts for the carrier in delivering the policy and in collecting the premium, he acts for the insured, the appellant in the instant case, in making the application for insurance and in processing the policy. Don Chapman Motor Sales Inc. v. National Savings and Insurance Co., 626 S.W.2d 592, 597 (Tex.App.-Austin 1981, writ ref’d n.r.e.).

Tex.Rule Civ.P. 277 provides in pertinent part:

In all jury cases the court may submit said cause upon special issues without request of either party, and, upon request of either party, shall submit the cause upon special issues controlling the disposition of the case that are raised by the written pleadings and the evidence in the case, except that, for good cause subject to review or on agreement of the parties, the court may submit the same on a general charge.

A special issue is unnecessary when the evidence conclusively establishes facts in question. T.A. Manning & Sons, Inc. v. Ken-Tex Oil Corp., 418 S.W.2d 324, 326 (Tex.Civ.App.-Austin 1967, writ ref’d n.r. e.); Employers Casualty Co. v. Winslow, 356 S.W.2d at 170.

With these concepts in mind, we now consider the parties’ arguments on this point of error.

We agree with the appellant that art. 21.04 of the Insurance Code does not apply here. The policy for which Seabrook negotiated was clearly a group health insurance policy with incidental life benefits; thus, art. 21.04 does not release the appel-lee from any liability for Cronin’s misrepresentations.

The evidence establishes, as a matter of law, that Cronin was merely a soliciting agent, and thus had no actual authority to bind the appellee. Although various individuals referred to Cronin as a “writer,” “broker,” and “independent agent,” the context of the record conclusively establishes that Cronin was merely an independent soliciting agent representing several insurance companies. Thus, the only statutory question is whether art. 21.21 allows us to attribute liability for Cronin’s misrepresentations of this policy to the appellee.

We held that art. 21.21 does not permit attribution of liability in this case. We note that art. 21.21 does apply to this dispute, because the jury found that Cronin misrepresented the policy to Seabrook, and that misrepresentation constituted a deceptive trade practice under this provision of the Insurance Code. Nothing in art. 21.21, however, expressly allows us to impute Cronin’s misconduct to the appellee insurance carrier. Art. 21.21 indicates to us that by itself it makes only Cronin liable for his misrepresentations.

The appellant suggests that judicial interpretation of art. 21.21 permits us to attribute liability to the appellee, relying on Royal Globe Insurance Co. v. Bar Consultants, Inc., 577 S.W.2d 688 (Tex.1979). We disagree with this argument. We conclude that under the authority of Royal Globe, art. 21.21 allows attribution to a carrier only for violations incurred by local recording agents, and not by soliciting agents. There are at least three reasons why we adopt this interpretation of Royal Globe.

First, it is clear from a careful reading of Royal Globe that the agent in that case was a local recording agent. The Texas Supreme Court went into detail over the broader extent of that type of agent’s authority before attributing liability to the insurance carrier for that local recording agent’s misrepresentations. In doing so, the Supreme Court noted that the local recording agent’s name was on the insurance agency, that the agent signed the policy for the insurance carrier, and that the carrier did not challenge his authority to do so. The Supreme Court made it clear that a local recording agent has considerably more power and authority in insurance transactions than a soliciting agent. Royal Globe Insurance Co. v. Bar Consultants, Inc., 577 S.W.2d at 692-693.

Second, the Supreme Court expressly noted the difference between a local recording agent and a soliciting agent, stating that a soliciting agent’s authority “is clearly much more limited than the authority of a local recording agent authorized to sign and execute insurance policies.” Royal Globe Insurance Co. v. Bar Consultants, Inc., 577 S.W.2d at 693. Nothing in the express language of Royal Globe authorizes us to attribute a soliciting agent’s misrepresentations to the insurance carrier, and we believe that, had the Supreme Court intended Royal Globe to apply art. 21.21 implicitly against all types of insurance agents, it would not have placed such emphasis on the difference between a local recording agent and a soliciting agent.

Finally, many other courts have applied this standard, imputing liability for the actions of a local recording agent but declining to impute that liability when a soliciting agent made those misrepresentations. See, e.g. American National Life Insurance Company of Texas v. Montgomery, 640 S.W.2d 346 (Tex.App.—Beaumont 1982, writ ref’d n.r.e.).

The appellant asserts in his brief that Tidelands Life Insurance Company v. Harris, 675 S.W.2d 224 (Tex.App.-Corpus Christi 1984) is dispositive in his favor of the instant case. We do not agree with the appellant that Tidelands imputes liability to the appellee under art. 21.21.

Although the slip opinion in Tidelands does not describe the relationship between the insurance agent and the insured with as much detail as the complete statement of facts in our case, our reading of Tidelands indicates that, in that case, the insurance agent was more than a mere independent soliciting agent, and apparently was an employee of the insurance company with considerable authority in the negotiation of insurance policies. The Corpus Christi Court of Appeals remarked in the first page of its opinion that the insurance agent in their case was “an agent for Tidelands Life Insurance Company,” and the trial court in Tidelands “found that at the time the policy was sold [the agent] was an agent of Tidelands with actual, apparent and implied authority to represent the terms of the policy.” Id. at 225.

Thus, in Tidelands, we have an affirmative determination by the trial court that the insurance agent was a direct representative of the insurance company, with all the authority necessary to transact business for the insurance company, and therefore able to bind the insurance company for his wrongful conduct. The jury in the instant case, having found that Cronin misrepresented the policy to the appellant but that the appellee had no involvement in that misrepresentation, implicitly found that Cronin was only an independent soliciting agent with no actual or apparent authority that would allow us to attribute liability for his misconduct to the appellee. The record supports such a determination, and contains nothing that leads us to conclude that Cronin had any authority to act directly for the appellee. We therefore hold that Cronin’s status as mere independent soliciting agent is not sufficient to create liability on the part of the appellee under Tex.Ins.Code Ann. arts. 21.02, 21.21 (Vernon 1981).

The common law is clear, indicated by the authorities discussed supra, that a soliciting agent is without actual authority to bind the insurance company by his actions. The evidence does not establish that Cronin had the apparent authority necessary to bind the appellee for his misrepresentations, for there is nothing in the record suggesting either that the appellee held Cronin out to Seabrook as having such authority, or that the appellee failed to exercise diligence in order to prevent Cronin from becoming “clothed with the indicia of authority.” Also, no evidence establishes the proposition that the appellee ratified any misrepresentations by Cronin; indeed, we note that Seabrook never dealt directly with the appellee until after the appellee denied the additional $11,000.00 in claims by the appellant. We therefore hold that there is under the common law no basis for binding the appellee by Cronin’s misrepresentations.

Since compelling evidence establishes Cronin’s status as an independent soliciting agent with no statutory, actual, or apparent authority to bind the appellee, and since no competent evidence exists in the record to rebut this status, we hold that the evidence conclusively established a disputed fact, and that a special issue on the question of agency was unnecessary.

We overrule the appellant’s first and second points of error.

The appellant next argues that the evidence shows that the appellee was active in misrepresenting this policy to Seabrook; thus, the appellant claims, the weight of the evidence does not support the jury’s answer to the special issue regarding misrepresentation by the appellee. The appel-lee argues that the only evidence in the record is of wrongful conduct by Cronin, that Cronin was at that stage of the transaction an agent for Seabrook and for the appellant, and that therefore the jury’s answer was correct. We agree with the ap-pellee.

In evaluating a factual sufficiency challenge, we should consider the weight of the record as a whole. In re Kings Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

The only evidence in the record that would contradict a finding that Cronin was an independent soliciting agent and not a de facto employee of the appellee is the testimony of Seabrook’s business manager, who testified at trial that she believed, when dealing with Cronin, that Cronin was acting directly for the appellee. The reason for her belief is not clear in the record, and this testimony alone is insufficient to disturb other uncontradicted testimony that Cronin was not an employee of Republic National Life Insurance Company.

The evidence supports only the proposition that there was no contact between either Seabrook or the appellant and the appellee until after the appellee denied $11,000.00 of the claims. The appellee did issue a different policy from the one that Seabrook had desired, but there is no evidence supporting the proposition that the appellee at any time dealt unfairly with any representatives of Seabrook or the appellant in issuing this policy. Additionally, Seabrook’s business manager testified that, when she received and read over the policy, she noticed the limitations on coverage for previously existing condition, but did not challenge them.

Therefore, we conclude that the weight of the record supports the jury’s finding that the appellee did not make any misrepresentations either to Seabrook or to the appellant, and we overrule the appellant’s third point of error.

The appellant argues that, because the policy limited coverage for previously existing conditions to $1,000.00, while the appended letter raised that limitation to $10,000.00 for specified employees, and because neither of these coverage limits comported with the $250,000.00 that the appellant claims that the Blue Cross/Blue Shield policy provided, the contract was ambiguous, and the trial court therefore should have submitted its interpretation to the jury-

[A] contract is found to be ambiguous if its meaning is uncertain and doubtful, or if it is subject to more than one reasonable meaning and such conflict may not be resolved by rules of interpretation.

Bellefonte Underwriters Insurance Co. v. Brown, 663 S.W.2d 562, 577 (Tex.App.—Houston [14th Dist.] 1983, no writ); See also O’Shea v. Coronado Transmission Co., 656 S.W.2d 557, 561 (Tex.App.-Corpus Christi 1983, no writ); Vermillion Construction Co. v. Fidelity and Deposit Company of Maryland, 526 S.W.2d 744, 748 (Tex.Civ.App.-Corpus Christi 1975, no writ); McCoy v. Dolph Construction Co., 203 S.W.2d 661, 662 (Tex.Civ.App.-Waco 1947, no writ).

This policy was not ambiguous. It expressly limited coverage for previously existing conditions to $1,000.00; standing alone, this would have been the sole limitation for coverage of such claims. The appended letter became part of this insurance policy, and the only question for us to determine is whether that letter created the possibility of multiple or inconsistent interpretations of this policy. We conclude that it did not; on the contrary, the letter unambiguously raised the coverage of previously existing conditions to $10,000.00 for those employees who had been covered under the old Blue Cross/Blue Shield policy.

The appellant’s only claim for the proposition that the policy was ambiguous is that these provisions did not comport with what Seabrook desired; the appellant argues that, because there was any limitation of previously existing conditions at all, the policy must therefore be ambiguous. We find this argument to be without merit and overrule the appellant’s fourth point of error.

We affirm the judgment of the trial court.


author: JACK SMITH, Justice.

text:
    A.J. MAXWELL, Appellant, v. Bennie Roy MASON, Guardian of the Person and Estate of Johnie Gaines, an Incompetent, Appellee.
    No. 01-84-0282-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 21, 1984.
    Rehearing Denied Dec. 20, 1984.

      Lloyd L. Oubre, San Antonio, for appellant.
    Michael J. Canon, Manee Michael Park, Davis, Durham & Canon, Huntsville, for appellee.
    Before JACK SMITH, WARREN and BULLOCK, JJ.
   OPINION

JACK SMITH, Justice.

The main issue in this appeal is the jurisdiction of the district court to set aside a deed executed by a ward. The deed had been executed prior to the creation of the guardianship. In a jury trial, the grantor, Johnie Gaines, was found to be incompetent when the deed was executed, and the court ordered the deed set aside.

In 1979, Johnie Gaines was the owner of a piece of real estate located in Burleson County. He conveyed that property to the Rev. A.J. Maxwell in May, 1979, and in June, 1979, granted Rev. Maxwell a power of attorney.

In October, 1981, Johnie Gaines was declared an incompetent, and Bennie Roy Mason was appointed as his guardian. Mason then filed suit in January, 1982, in the district court of Burleson County seeking to have the deed from Gaines to Maxwell set aside. He also requested that a constructive trust be placed upon the land, and that Maxwell be required to render an accounting for the proceeds he had received from the land.

In November, 1983, Maxwell filed a motion in the county court of Burleson County to set aside the guardianship of Johnie Gaines. When the contest to the guardianship was filed, the county court transferred the entire guardianship proceedings to the district court. The district court consolidated the guardianship proceedings with the action involving the conveyance of the land, but ordered a separate trial with respect to the conveyance of the land. A jury trial was held in the district court on all issues pertaining to the conveyance of the land, and the court, after considering the jury’s answers to the issues, entered judgment that the guardian recover the tract of land conveyed by Gaines to Maxwell.

In his first and third points of error, the appellant, Maxwell, contends that the suit to set aside the deed was “incident to the estate” and therefore properly should have been filed in the county court and not the district court. Thus, he alleges that the district court did not have jurisdiction to set aside the deed.

In Burleson County, the county court is a constitutionally created court, while the district court is a statutory court. The Texas Constitution in article Y, sections 8 and 16 (Vernon Supp.1984), defines the jurisdiction of the county and district courts with respect to probate matters. Section 16 states:

The County Court shall have the general jurisdiction of a Probate Court; they shall probate wills, appoint guardians of minors, idiots, lunatics, persons non compos mentis and common drunkards, grant letters testamentary and of administration, settle accounts of executors, transact all business appertaining to deceased persons, minors, idiots, lunatics, persons non compos mentis and common drunkards, including the settlement, partition and distribution of estates of deceased persons and to apprentice minors, as provided by law.

Section 8 states:

The District Court shall have appellate jurisdiction and general control in probate matters, over the County Court established in each county, for appointing guardians, granting letters testamentary and of administration, probating wills, for settling the accounts of executors, administrators, and guardians, and for the transaction of all business appertaining to estates; and original jurisdiction and general control over executors, administrators, guardians and minors under such regulations as may be prescribed by law. (emphasis added).

In addition to the foregoing, section 8 also gives the district court jurisdiction over suits to try title to land.

Pursuant to the authority extended to it by the constitution, the Texas Legislature has more specifically defined the powers of county and district courts in probate matters. Section 4 of the Texas Probate Code states as follows:

The county court shall have the general jurisdiction of a probate court. It shall probate wills, appoint guardians of minors and incompetents, grant letters testamentary and of administration and guardianship, settle accounts of personal representatives, and transact all business appertaining to estates subject to administration or guardianship, including the settlement, partition, and distribution of such estates. It may also appoint guardians for other persons where it is necessary that a guardian be appointed to receive funds from any governmental source or agency.

In section 5 of the Probate Code, the jurisdiction of the district and county courts, and also the statutory probate courts, is set forth. Since Burleson County has no statutory probate court, section 5(b) would apply in this case:

(b) In those counties where there is no statutory probate court, county court at law or other statutory court exercising the jurisdiction of a probate court, all applications, petitions and motions regarding probate, administrations, guardi-anships, and mental illness matters shall be filed and heard in the county court, except that in contested probate matters, the judge of the county court may on his own motion, or shall on the motion of any party to the proceeding transfer such proceeding to the district court, which may then hear such proceeding as if originally filed in such court. In contested matters transferred to the district court in those counties, the district court, concurrently with the county court, shall have the general jurisdiction of a probate court, and it shall probate wills, appoint guardians of minors, idiots, lunatics, persons non compos mentis, and common drunkards, grant letters testamentary and of administration, settle accounts of executors, transact all business appertaining to deceased persons, minors, idiots, lunatics, persons non compos mentis, and common drunkards, including the settlement, partition and distribution of estates of deceased persons and to apprentice minors, as provided by law. Upon resolution of all pending contested matters, the probate proceedings shall be transferred by the district court to the county court for further proceedings not inconsistent with the orders of the district court.

The appellant contends that since section 5A(a) of the Probate Code grants the county court the authority to hear “all actions for trial of title to land incident to an estate”, it is mandatory that all suits pertaining to an estate and involving trial to the title of land must be filed in the constitutional county court.

Section 5A(a) of the Probate Code states as follows:

(a) In proceedings in the constitutional county courts and statutory county courts at law, the phrases “appertaining to estates” and “incident to an estate” in this Code include the probate of wills, the issuance of letters testamentary and of administration, the determination of heir-ship, and also include, but are not limited to, all claims by or against an estate, all actions for trial of title to land incident to an estate and for the enforcement of liens thereon incident to an estate, all actions for trial of the right of property incident to an estate, and actions to construe wills, and generally all matters relating to the settlement, partition, and distribution of estates of wards and deceased persons. (Vernon 1980). (emphasis added)

Although section 5A(a) does not use the verbiage of “guardian” or “guardianship”, we are of the opinion that it was the intent of the legislature to include guardianships in that section, because in the last sentence of Section 5A(a) it refers to “estates of wards and deceased persons.” Guardianship matters have long been considered probate matters. Lesley v. Lesley, 664 S.W.2d 437 (Tex.App.-Fort Worth 1984, no writ). Notwithstanding this fact, all matters incident to an estate are not within the jurisdiction of a constitutional county court or a statutory probate court. Seay v. Hall, 28 Tex.Sup.Ct.J. 9, 677 S.W.2d 19 (1984). In Seay, the Texas Supreme Court held that a statutory probate court has no jurisdiction over survival and wrongful death actions.

In view of the fact that the constitution and the Probate Code have both given concurrent original jurisdiction to constitutional county courts and to district courts, we are of the opinion that either of these courts had jurisdiction over the subject matter involved in the present case. To adopt the appellant’s contention would require this court to reverse the judgment of the district court and to order this suit dismissed. The guardian could then file the same cause of action in the county court of Burleson County, and if a contest should be filed, the suit could then be transferred to the same district court which heard the instant proceeding. From the record before us it appears that the county court in Burleson County transfers all contested matters to the district court of that county. Thus, the new proceeding would be identical to that now before this court. We perceive no reason to require this result.

We further note that before a guardian may file a suit in a court other than that which created the guardianship, he must first obtain permission from the court which created the guardianship. See Tex.Prob.Code Ann. sec. 234(b) (Vernon 1980). Thus, in the instant case, we assume that the guardian sought and obtained permission from the county court before filing in the district court.

We hold that the provisions of section 5 of the Texas Probate Code gives the district court of Burleson County concurrent jurisdiction with the constitutional county court of Burleson County in probate matters involving title to land, and therefore, the district court had jurisdiction to hear the present case. The appellant’s first and third points of error are overruled.

In his points of error two and four the appellant asserts that the county court should not, on its own motion, have transferred the guardianship proceedings to the district court because there was no “contested probate matter.”

The record reflects that the County Court of Burleson County retained jurisdiction over the Mason guardianship until the appellant filed his contest to set aside the guardianship. At that time the guardianship was transferred to the District Court of Burleson County. Section 5(b) of the Probate Code authorizes such a transfer and we find no merit to the appellant’s contention.

As for his contention that the district court should not have consolidated the guardianship proceedings with the suit to set aside the deed, we observe that trial courts have discretion to consolidate all actions involving a common question of law or fact pending before the court. Tex.R.Civ.P. 174. See also Allison v. Arkansas Louisiana Gas Co., 624 S.W.2d 566 (Tex.1981).

We further note that even if the district court erred in consolidating the two causes of action, the trial court severed the two causes of action for trial purposes, and a separate trial was had on all matters pertaining to the instant action to set aside the conveyance. Under these circumstances we perceive no harm to the appellant, and he has alleged none. The appellant’s second and fourth points of error are overruled.

The judgment of the trial court is affirmed.


author: DUGGAN, Justice. DOYLE, Justice,

text:
    CITY OF WEBSTER, et al., Appellants, v. SIGNAD, INC., Appellee.
    No. 01-84-0354-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 21, 1984.
    Rehearing Denied Dec. 31, 1984.

      C. Charles Dippel, Sears & Bums, Houston, for appellants.
    Richard L. Rothfelder, William L. Van Fleet, Ryan & Shoss, Houston, for appel-lee.
    Before DOYLE, DUGGAN and LEVY, JJ.
   OPINION

DUGGAN, Justice.

This is an appeal from a summary judgment declaring a portion of a city sign ordinance unconstitutional. The ordinance in question was the basis of the city’s refusal to allow a sign company to repair six hurricane-damaged billboards.

Appellee, SignAd, Inc., owns a number of billboard signs within the jurisdiction of the appellant City of Webster, all of which were erected prior to the passage of the city’s sign ordinance and were permitted as non-conforming signs under the ordinance’s “grandfather” clause. When seven of ap-pellee’s signs were damaged by Hurricane Alicia on August 18, 1983, appellee voluntarily removed one which was severely damaged, and sought to repair the remaining six. Upon advice by city officials that a permit would be required, SignAd made its written request to appellant S.I. Velez, Webster’s City Engineer, for such permits as were necessary. The appellant city engineer replied by letter that, since the storm had blown down or destroyed “substantial parts” of the signs, their reconstruction was forbidden. He based his decision on sections H(2) and D(2) of section 10, chapter 3, of the Building Regulations of the Webster City Code of Ordinances (the “Sign Ordinance”). The last sentence of section H(2) reads as follows:

When any outdoor advertising sign, billboard, spectacular sign, business sign, or business directory sign which would be unlawful or non-conforming hereunder, but for the fact that such sign was lawfully in existence on the date of passage of this section, or any substantial farts thereof is blown down or destroyed or taken down or removed for any purpose other than routine maintenance operations or for changing the lettering, symbols, or other matter on such signs, it shall not be reerected, reconstructed, rebuilt, or relocated except in conformity with the provisions of this section. (Emphasis added).

Section D(2) forbids the construction or emplacement of new billboards within the city. The city engineer denied the permits, deemed the damaged billboards to be in an unsafe condition, and ordered their removal.

Appellee appealed this ruling to the Webster City Council, which upheld the city engineer’s decision. Appellee then filed suit in the district court seeking: (1) a declaratory judgment that it had complied with the sign ordinance, or that the quoted last sentence of section H(2) is unconstitutional; (2) a mandatory injunction requiring appellants to take any action necessary to allow appellee to repair and operate its signs; (3) a writ of mandamus to issue repair permits; (4) actual and punitive damages; and (5) attorney’s fees. Following appellants’ answer, both sides filed motions for summary judgment, and the court denied appellants’ motion and granted that of appellee, finding that:

(1) The terms “substantial parts thereof” contained in the last sentence of Section H(2) ... violates the due process provisions of the Texas and United States Constitutions because such terms are so vague that they fail to give fair and adequate notice of what is permitted or prohibited, and they necessitate the use of unbridled discretion of the Webster City Engineer in interpretation and application.
(2) Alternatively, Sections H(2) and D(2) of the Sign Ordinance, which were relied upon by Defendants in prohibiting the repair of the subject Signs, do not regulate the mere repair of signs and are therefore inapplicable to the facts in this case.

Pursuant to Tex.Rev.Civ.Stat.Ann. art. 2524-1 (Vernon 1965), the court decreed that the quoted last sentence of section H(2) was unconstitutional and void, granted appellee permission to repair immediately and renew operations of its damaged signs, and permanently enjoined the appellants from interfering in any way with appellee’s repair and operation of its six. signs in question. The court ordered severance of the summary judgment and retained jurisdiction over the damages of phase of the action.

In two points of error, the appellants City and City Engineer assert that the trial court erred in granting appellee’s motion for summary judgment and in denying appellants’ motion for summary judgment.

A statute or ordinance is violative of due process and fatally vague when persons regulated by it are exposed to some risk or detriment without fair warning of the nature of the proscribed conduct. Texas Liquor Control Board v. The Attic Club, Inc., 457 S.W.2d 41, 45 (Tex.1970). When persons of common intelligence are compelled to guess at a law’s meaning and applicability, due process is violated and the law is invalid. Texas Antiquities Committee v. Dallas County Community College District, 554 S.W.2d 924, 928 (Tex.1977) (holding the term “of historical interest” to be unconstitutionally vague).

We agree with the general principles and authorities appellant cites holding that regulatory statutes governing business activity are allowed greated leeway than is allowed criminal statutes in applying the “fair notice” test; that no more than “a reasonable degree of certainty can be demanded”; and that “statutes are not automatically invalidated as vague simply because difficulty is found in determining whether marginal offenses fall within their language.” Pennington v. Singleton, 606 S.W.2d 682, 689 (Tex.1980). We also agree that, as stated in Sproles v. Binford, 286 U.S. 374, 393, 52 S.Ct. 581, 587, 76 L.Ed. 1167 (1932):

The requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding.

However, the Webster ordinance sets out neither a definition of “substantial parts” of a sign nor an objective standard by which damage to “substantial parts thereof” can be measured.

Significantly, the appellant City does use objective standards in similar circumstances in two other parts of its building regulations. The term “substantial improvement” is defined in section E(17) of the appellant City’s Flood Damage Prevention Regulations as follows:

Substantial improvement means any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds fifty percent (50%) of the market value of the structure either before the improvement or repair has started or if the structure has been damaged and is being restored, before the damage occurred.

In section 101.4a of the Building Code, “[Rjepairs costing in excess of fifty percent (50%) of the then physical value of the building” are required to conform to code requirements for new buildings. By such use of specific cost percentages and reference to replacement and repair cost, the two sections give concrete meaning to the term “substantial.”

Although appellants urge that the recent federal decision in Sign Supplies of Texas, Inc. v. McConn, 517 F.Supp. 778 (S.D.Tex.1980), is persuasive in showing that the term “substantial parts” is not unconstitutionally vague, that opinion does not address the quoted term directly. The words “primary,” “primarily,” “not usually,” and “easily moved,” none of which were defined in the Houston ordinance being examined in that opinion, were held not unconstitutionally vague. However, appellants’ references to complaints made by the Sign Supplies plaintiff about the term “substantial parts” appear only in that litigant’s pleadings and brief, and not in the court’s opinion.

Sanders v. State Department of Public Welfare, 472 S.W.2d 179 (Tex.Civ.App.-Corpus Christi 1971, writ dism’d w.o.j.), dealt with a situation comparable to that before us when it examined the constitutionality of Department of Public Welfare regulations relating to eligibility for old age assistance. In determining that eligibility, an applicant’s financial status was to be measured in part by his savings and his outstanding debts. The regulations governing that determination provided:

Mere verbal allegations of an old, informal debt to relatives, however, cannot be considered as justifying a transfer [of assets] to such relatives.

Both the terms “old,” and “informal” were found to violate due process requirements. In examining the word “old,” the court stated:

It is probable that one officer of the State Welfare Department might believe that a one-year old debt was an old one. Another in the same position might use five years [as his standard], still another, ten.

Id. at 182. The court concluded that the terms of the regulation were “so vague, indefinite and uncertain that men of common intelligence must guess at their meaning.” Id. at 183.

We find that section H(2) of the Webster sign ordinance, in its reference to damage to “substantial parts” of a sign, suffers from a similar infirmity. The fact that the words “substantial parts” are terms of common speech does not make them per se explanatory or descriptive in a due process sense when they are examined in the context of an inquiry as to what are allowable and forbidden sign repairs. Parts of a sign may be simultaneously “substantial” and “insubstantial” depending on whether the test used is economic, physical, or functional. If an economic test is used, how expensive must a repair be to rise to the level of “substantial”? If a sign is valued at $30,000, is $1,000 in damage “substantial”? If a physical test is considered, is damage to one pole of a five-pole sign “substantial”? Should “substantial parts” of the sign include other than structural parts? Section 33(15) of the Ordinance defines a “sign structure” as “the support, uprights, bracing, and framework of any outdoor advertising sign”; sign panels, readily movable and changeable, are not defined as a part of the sign structure. Is damage to one or more sign panels therefore to be considered as damage to a “substantial” part of the sign? A sign with broken or inoperative lights is not functional during nighttime hours, although the cost of repairs is small in comparison with the sign’s total cost. Prom a functional perspective, the lights are “substantial parts” of the sign, while from a cost perspective they are not. The same ambiguity arises in numerous similar practical considerations. The potential for ambiguity is shown in the appellant city engineer’s testimony. He testified that he considered panels alone to be “substantial parts” of the sign, although they are not defined as part of the “sign structure.” He also stated that he gave no consideration to the dollar amounts of damage in determining the substantiality of damage. In the absence of additional guidelines, each successive city engineer must select his own standard for determining what is a “substantial part” of a sign. Operators of outdoor advertising signs receive no fair and adequate notice from section H(2) of the Ordinance as to what sign repairs are permitted or prohibited.

Because persons of common intelligence are left to guess at the meaning of that portion of the Ordinance, we hold the final sentence of section H(2) is invalid. Texas Antiquities, 554 S.W.2d at 928. Actions based on an invalid section of an ordinance are void and unenforceable. Newsom v. Starkey, 572 S.W.2d 29 (Tex.Civ.App.-Dallas 1978, no writ). The legal basis for the appellants’ action in prohibiting the repair of appellee’s signs was therefore unsound and appellee was entitled to summary judgment.

Appellants’ points of error are overruled. The judgment of the trial court is affirmed.

DOYLE, J., dissents.

DOYLE, Justice,

dissenting.

I find the trial court erred in granting summary judgment and must therefore respectfully dissent.

The trial court stated two bases for granting appellee’s motion for summary judgment. It first found the city ordinance unconstitutionally vague. The majority bases its opinion on its agreement with this finding.

It is well established that laws enacted by legislative bodies are presumed to be valid and that the burden of proof is on the party challenging their constitutionality. Robinson v. Hill, 507 S.W.2d 521 (Tex.1974); Smith v. Graddick, 471 S.W.2d 375 (Tex.1971). An allowance for some latitude in interpretation does not render a statute unconstitutionally vague. See Powers v. State, 543 S.W.2d 194 (Tex.Civ.App.-Waco 1976), aff'd, 556 S.W.2d 567 (Tex.1977) (civil commitment measured by the patient’s welfare and protection or the protection of others); D_ F_ v. State, 525 S.W.2d 933 (Tex.Civ.App.-Houston [1st Dist.] 1975, writ ref’d n.r.e.) (termination of parental rights determined by the best interest of the child); Houston Compressed Steel Corp. v. State, 456 S.W.2d 768 (Tex.Civ.App.-Houston [1st Dist.] 1970, no writ) (air pollution defined as presence in the atmosphere of contaminants in such concentration and of such duration as may tend to be injurious or adversely affect human health or welfare). Given the “untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government,” statutes regulating business activities satisfy due process requirements if their meaning is defined with a reasonable degree of certainty. Pennington v. Singleton, 606 S.W.2d 682, 689 (Tex.1980).

The majority finds the phrase “substantial parts” is impermissibly vague. I am of the opposite opinion. Both words are in common usage and are well understood. The word “substantial” is recognized and applied as a standard of measurement in our jurisprudence. See, e.g., Lewis v. Metropolitan Savings & Loan Ass’n, 550 S.W.2d 11 (Tex.1977) (substantial evidence); Warren v. Denison, 563 S.W.2d 299 (Tex.Civ.App.-Amarillo 1978, no writ) (substantial performance). Although the ordinance might have been clarified by further definition of the phrase “substantial parts,” this fact does not render the ordinance unconstitutionally vague. See Harper v. Lindsay, 616 F.2d 849 (5th Cir.1980).

Unlike the majority, I find Sign Supplies of Texas, Inc. v. McConn, 517 F.Supp. 778 (S.D.Tex.1980) persuasive authority for the proper disposition of this ease. Sign Supplies dealt with challenges to a Houston sign ordinance. Among other complaints, the plaintiffs contended the terms “primary,” “primarily,” “not usually,” and “not easily moved,” which were used in defining portable signs, were unconstitutionally vague. The court found that, in the context of the ordinance as a whole, these terms were not so vague as to fail to give notice of the ordinance’s legal requirements to a person of ordinary intelligence.

I reach the same conclusion in the instant case. I find that the phrase “substantial parts” does not vest the city engineer with unbridled discretion, but rather sets out a reasonable guideline for regulating the repair of billboard signs. I conclude that the district court erred in holding the applicable ordinance unconstitutional and in granting summary judgment on this basis.

The court’s second basis for granting summary judgment was that the ordinance which forbids the reconstruction of signs that suffered substantial destruction did not apply to the facts of the instant case.

The ordinance provides that a sign shall not be reerected, reconstructed, or rebuilt if substantial parts have been blown down or destroyed. I must disagree with the trial court’s view that the prohibition against reerection, reconstruction, and rebuilding does not forbid “repairs.” The breadth of the language used in the ordinance manifests an intent to forbid the refurbishment of signs which have suffered substantial damage. The name given that corrective activity is irrelevant. The court’s finding that the ordinance does not apply to the instant case is thus correct only if the summary judgment evidence established that the damage to the signs was insubstantial as a matter of law. In examining this issue, we must accept the appellant’s evidence as true and resolve all doubts regarding the existence of genuine fact issues in favor of the losing party. E.g., Le Blanc v. Maryland American General Insurance Co., 601 S.W.2d 750 (Tex.Civ.App.-Beaumont 1980, writ ref’d n.r.e.). The affidavit of the city engineer made the following assessment of the damage to appellee’s signs:

(a) 1503 FM 528 West of 1-45 (Bay Area Jewelers): Seventy-five (75%) percent ⅞ of the panels were blown down; two support poles snapped; one pole is leaning; all electrical is gone.
(b) 1014 West Nasa Road 1 at IH-45 (General Homes): Four poles are leaning; stringers damaged, fifty (50%) percent of the panels are blown down; all electrical needs replacement.
(c) West Nasa Road 1 East of IH-45 (InterFirst Bank): Of seven support poles, at least three poles are leaning; forty (40%) percent of the panels are blown down; some stringers are blown down; all electrical needs replacement.
(d) 20118 Gulf Freeway at Nasa Road 1 (U.S. Homes): A few poles are leaning; all panels are blown down; all electrical needs replacement.
(e) 20001 Gulf Freeway South of Bay Area Blvd. (InterFirst Bank): A few poles are leaning; sixty (60%) percent of the panels and some stringers are blown down.
(f) 20234 Gulf Freeway at Nasa Road 1 (General Homes): Fifty (50%) percent of the panels, the electrical and part of the walkway are blown down.
All of the parts blown down were substantial. Where poles are leaning, the ground support around the poles is such that removal and replacement of the poles is required in order to withstand wind loads upon the signs.

I find this evidence is sufficient to raise fact questions regarding whether substantial parts of appellee’s signs were destroyed. I therefore conclude that the court erred in granting summary judgment on the basis that the ordinance does not apply to the facts of this case.

Neither of the grounds relied upon by the trial court supports its grant of appel-lee’s motion for summary judgment. I would sustain appellant’s first point of error and remand the case to the trial court for determination of what I find to be the unresolved fact questions of whether appel-lee’s signs suffered substantial damage.


text:
    METROPOLITAN TRANSIT AUTHORITY, Appellant, v. Richard PLESSNER, et al., Appellees.
    No. 01-84-0415-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 21, 1984.

      Warren Taylor, Butler & Binion, Houston, for appellant.
    Samuel Miller, Richard Plessner, Thomas F. Schlotzhauer, Houston, for appellees.
    Before BULLOCK, DOYLE and BASS, JJ.
   OPINION

BULLOCK, Justice.

This is an appeal from the granting of the appellees’ motions for summary judgment.

Metropolitan Transit Authority, “MTA,” filed a declaratory judgment action against Richard Plessner, Thomas B. Schlotzhauer, Samuel J. Miller, and William L. Lane. MTA sought a determination of its right to the entire subrogation interest in settlement proceeds from third-party claims made by its employees after the employees had recovered workers’ compensation claims from MTA.

The facts are undisputed. MTA, a political subdivision of the State of Texas, is self-insured and provides workers’ compensation benefits to its employees pursuant to Tex.Rev.Civ.Stat.Ann. art. 8306 (Vernon Supp.1984). Therefore, it is an “insurance association” as that term is used in article 8307.

MTA paid workers’ compensation claims to employees Sylvester Johnson, David Gray, Limuel Sharp, and Thelma Hodge. Therefore, it was entitled to any subrogation interest in settlement proceeds from third-party claims that those employees may have received. Each employee hired an attorney through which each settled a third-party claim. Johnson was represented by Plessner, Gray by Miller, Sharp by Schlotzhauer, and Hodge by Lane. Each attorney withheld attorney’s fees from MTA’s subrogation interest, claiming that he was entitled to reasonable fees from MTA’s subrogated interests. MTA never hired any attorneys to represent it or protect its subrogation interest in the third-party claims.

MTA filed suit pursuant to the Uniform Declaratory Judgment Act, Tex.Rev.Civ. Stat.Ann. art. 2524-1 (Vernon 1965) for construction of Tex.Rev.Civ.Stat.Ann. art. 8307, sec. 6a (Vernon Supp.1984) and a declaration that the appellees were not entitled to attorneys’ fees under article 8307, section 6a.

Each appellee filed a general denial. In addition, Schlozhauer and Plessner filed cross-actions under the Uniform Declaratory Judgments Act for construction of article 8307, sec. 6a and a declaration that they were entitled to attorneys’ fees.

MTA filed a motion for summary judgment alleging that there was no question of fact involved and that it was entitled to judgment as a matter of law. Thereafter, Miller, Plessner, and Schlotzhauer filed motions for summary judgment asserting that there was no genuine issue of material fact necessary to recover attorneys’ fees under article 8307, section 6a; therefore, they should be granted a judgment for attorneys’ fees.

On May 8, 1984, the trial court ordered that the cause of action between MTA and Lane be severed from the original suit.

On May 11, the court denied MTA’s motion for summary judgment and granted appellees’ motions for summary judgment.

MTA appeals on two points of error. In its first point, MTA asserts that the trial court erred in granting appellees’ motions for summary judgment because appellees are not, as a matter of law, entitled to any portion of the subrogation interest. In point of error two, MTA alleges that the trial court erred in denying its motion for summary judgment, since the summary judgment evidence demonstrated as a matter of law that the appellees are not entitled to any portion of the subrogation interest. Both points will be discussed together.

Article 8307, sec. 6a provides that an injured employee may proceed against a third person to recover damages when the injury was caused under circumstances creating liability in some person other than the subscriber. It further provides:

However, when the claimant is represented by an attorney, and the association’s interest is not actively represented by an attorney, the association shall pay such fee to the claimant’s attorney not to exceed one-third (⅛) of said subrogation recovery or as may have been agreed upon between the claimant’s attorney and the association or in the absence of such agreement, the court shall allow a reasonable attorney’s fee to the claimant’s attorney for recovery of the association’s interest which in no case shall exceed thirty-three and one-third percent (33V3) payable out of the association’s part of the recovery.

The appellant argues that the statute describes only three situations in which a claimant’s attorney is entitled to fees from the insurance carrier: (1) when there is an agreement between the parties; (2) when the claimant has agreed in writing to allow his attorney to represent the carrier; (3) when a lawsuit has been filed and the association is not actively represented by an attorney. Although the appellant admits that this issue has never been directly addressed by the courts, it relies on the following cases to support its assumption that these three examples are the only situations in which a fee may be recovered and that sec. 6a is incapable of operating in the absence of a lawsuit: Hartford Insurance Co. v. Branton & Mendelsohn, Inc., 670 S.W.2d 699 (Tex.App.-San Antonio 1984, no writ); Union Carbide Corp. v. Burton, 618 S.W.2d 410 (Tex.App.-Houston [14th Dist.] 1981, writ ref’d n.r.e.); International Insurance Co. v. Burnett & Ahders, Associated, 601 S.W.2d 199 (Tex.Civ.App.— El Paso 1980, writ ref’d n.r.e.); Insurance Company of North America v. Stuebing, 594 S.W.2d 565 (Tex.Civ.App.-Fort Worth 1980, writ ref d n.r.e.); and Lee v. Westchester Fire Insurance Co., 534 S.W.2d 392 (Tex.Civ.App.-Amarillo 1976, no writ).

We do not interpret those cases as standing for the proposition suggested by the appellant. First, the cases never stated or held that the three situations, cited by the appellant, were the only ones in which a claimant’s attorney could recover a fee. Second, in each case cited by the appellant, the court’s awarding of attorney’s fees to the claimant’s attorney was not contingent upon whether the attorneys actually filed lawsuits. Each filing of a lawsuit was merely incidental to the recovery of the third-party claim. In each case, the issue was whether attorney’s fees should be paid to the claimant’s attorney. A major factor in the determination was the amount of work the claimant’s attorney had expended inpreparing for trial or settlement. Hartford Insurance, 670 S.W.2d at 704; Union Carbide Corp., 618 S.W.2d at 416; International Insurance Co., 601 S.W.2d at 202; Insurance Company of North America, 594 S.W.2d at 568.

In Lee, 534 S.W.2d 392, the issue was whether the carrier’s attorney had actively participated in trial; however, that issue was important only in determining whether the claimant’s attorney’s fees were recoverable out of the carrier’s subrogation re-coupment. Id. at 395.

The appellant argues that section 6a applies only to claims involving the actual filing of a lawsuit, since the language of the statute is relevant only to parties in court. Furthermore, it argues that section 6a applies only to claims involving lawsuits, as shown by the absence of a mechanism for determining a “reasonable fee” when no suit has been filed. In addition, it contends that the statute does not provide for compensation when no legal work is performed; because the appellees performed little or no “legal work,” e.g., attended depositions, or hearings, or instigated other discovery, they are not entitled to a recovery.

In any case involving statutory interpretation, the court must look to the intent of the legislature and must construe the statute so as to give effect to that intent. Knight v. International Harvester Credit Corp., 627 S.W.2d 382 (Tex.1982). The court’s interpretation must be fair, rational, reasonable, and with a view accompanying the legislative intent and purpose. McKinney v. City of Abilene, 250 S.W.2d 924 (Tex.Civ.App.-Eastland 1952, writ ref’d n.r.e.); see, e.g., Austin v. Collins, 200 S.W.2d 666 (Tex.Civ.App.-Fort Worth 1947, writ ref’d n.r.e.). A statute will not be construed so as to ascribe that the legislature has done an unjust or unreasonable thing. State Highway Department v. Gorham, 139 Tex. 361, 162 S.W.2d 934 (1942); Anderson v. Penix, 138 Tex. 596, 161 S.W.2d 455 (1942).

The legislature adopted section 6a by amendment effective September 1, 1973. Prior to the amendment, in situations where an injured employee was entitled to damages from a third party, and the employer hired its own attorney, the insurance association would hire its attorney to intervene in the third-party suit and then do little more than see if the employee recovered anything that could be subrogated by the association. Since the employee was entitled only to the excess of the amount belonging to the carrier, the result was often that the association received the benefits of the claimant’s attorney’s efforts in obtaining the claim without compensating the attorney for his efforts. In most cases, the attorney’s work was done on a contingent fee basis, and there was no provision of law requiring the association to pay anything to the attorney. Section 6a was enacted to supply a remedy for attorneys who actually performed the work. See Hartford Insurance, 670 S.W.2d at 701; Insurance Company of North America, 594 S.W.2d at 567. In the instant case, the association has not hired an attorney to protect its interest. The issue is whether a claimant’s attorney can withhold attorney’s fees from an association’s subrogation interest when that attorney has obtained a settlement from a third party without filing a lawsuit, and the association has not hired an attorney to represent its interest.

Because the intent of the legislature was to guarantee compensation to attorneys who actually performed the work, we hold that this intent was the same whether the client and the association each hired its own attorney, or the client hired an attorney and the association did not. We also hold that this intent was the same whether attorneys obtain a settlement with or without filing a lawsuit. An interpretation requiring that when attorneys obtain a third-party settlement, they may be compensated only if they file a lawsuit is unfair, unreasonable, and not within the legislature’s purpose in adopting amendment 6a.

The appellant’s interpretation would require that claimants’ attorneys immediately file a lawsuit whenever they receive a claim involving subrogation interests of an association. Otherwise, attorneys could spend numerous hours working on a claim for which they would not be compensated. Furthermore, the courts would become cluttered with an enormous amount of cases which could be settled outside of court without the filing of a lawsuit. Finally, attorneys are entitled to be compensated for work completed before filing a lawsuit as well as work completed after a lawsuit has been filed.

The appellant’s points of error are overruled.

The summary judgments are affirmed.


author: WARREN, Justice.

text:
    Peter T. LUFFRED, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0287-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 29, 1984.
    Ken McClean, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., Roe Morris, Robin Brown, Harris County Asst. Dist. Attys., Houston, for ap-pellee.
    Before COHEN, LEVY and WARREN, JJ.
   OPINION

WARREN, Justice.

This is an appeal from a conviction for the offense of aggravated robbery. A jury previously convicted appellant in this cause on January 15, 1980, but that conviction was reversed and remanded by the Fourteenth Court of Appeals on September 21, 1982. On March 13, 1984, appellant entered a plea of nolo contendere to the indictment and was found guilty a second time.

Appellant brings a single ground of error contending that the trial court erred in denying his motion to dismiss the indictment because he was not given a speedy trial. See Tex.Code Crim.P.Ann. art. 32A.02 (Vernon Supp.1984). Appellant bases his argument solely upon the handling of his case after its remand from the Court of Appeals. He contends that the state’s announcement of its readiness for trial was rebutted by evidence that his case had not been assigned to any member of the District Attorney’s office, that subpoenas had not been issued, and that witnesses had not been contacted during the 120-day period following the remand. See id. at sec. 2(b).

Appellant candidly directs our attention to his written waiver of a speedy trial filed in this cause on December 3, 1979, and to Paris v. State, 668 S.W.2d 411 (Tex.Crim.App.1984) and Rosebury v. State, 659 S.W.2d 655 (Tex.Crim.App.1983), cases dealing with the scope of such waivers. Paris held that a waiver of speedy trial filed in a case proceeding under a felony complaint carried over to the subsequent felony indictment for the same offense. Rosebury held that speedy trial waivers filed in prosecutions for delivery and possession of tetrahydrocannabinols and tetrahydrocannabinol other than marijuana reached a subsequent reindictment for possession of marijuana. The court reasoned that there was only one case against Rose-bury. A single offense was committed and a single offense was alleged. It concluded that the waiver reached the subsequent reindictment of the same offense. 659 S.W.2d at 657.

Appellant asserts that differences in the facts distinguish Paris and Rose-bury from the instant case. We disagree. These authorities establish that a defendant’s waiver of his right to a speedy trial goes to the prosecution of the offense then pending against him. The indictment, the first conviction, the remand, and the second conviction are all different facets of the same case against appellant. The waiver of appellant’s right to a speedy trial therefore reaches delays occurring after the remand of his initial conviction.

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


author: LEVY, Justice.

text:
    AETNA CASUALTY & SURETY COMPANY, Relator, v. Honorable Ed J. HARRIS, et al., Respondents.
    No. 01-84-0652-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 29, 1984.
    Suzanne Underwood, Edward J. Hennessy & Associates, Edward J. Hennessy & Associates, Houston, for relator.
    Leonard C. Kahn, Kahn & Maierson, P.C., Houston, for respondent.

      Before WARREN, COHEN and LEVY, JJ.
   OPINION

LEVY, Justice.

Relator seeks a writ of mandamus compelling the respondent trial judge, Hon. Ed J. Harris, to vacate and set aside his order of August 10, 1984, which reinstated the cause of action. Relator also seeks the writ of mandamus to compel Judge Harris to reinstate the order dated February 24, 1984, dismissing the cause for want of prosecution.

This action grows out of a lawsuit filed in 1981 by relator styled The Aetna Casualty & Surety Company v. Frank (Franklyn) Tarver, Cause No. 122,177, in the 10th District Court of Galveston County, in which relator appealed from a final ruling of the Industrial Accident Board. On February 24, 1984, the case was dismissed for want of prosecution. However, Tarver’s attorney did not receive actual notice of the dismissal until April 16,1984. Tarver timely filed a motion to reinstate, but before the court took action, he filed a motion to withdraw the motion to reinstate, and that motion was granted. Thereafter, on July 17, 1984, Tarver filed a second motion to reinstate. On August 10, 1984, this second motion to reinstate was granted. It is this last action that is the basis of the relator’s complaint.

Tex.R.Civ.P. 165a controls the trial court’s reinstatement of a case following dismissal for want of prosecution. Gilbert v. Huber, Hunt, Nichols, Inc., 672 S.W.2d 9 (Tex.App.-San Antonio), writ refd n.r.e., 671 S.W.2d 869 (Tex.1984) (per curiam). Rule 165a(2) provides that a motion to reinstate must be filed within 30 days after the order of dismissal is signed or within the period provided by rule 306a. See also Clark & Company v. Giles, 639 S.W.2d 449 (Tex.1982) (interpretation of similar timetable under rule 329b). Further, if a party adversely affected by an appealable order has not received notice of its signing within 20 days thereafter, then the period for filing begins on the date that the party received notice or acquired actual notice, whichever occurs first. Rule 306a(4). Finally, rule 165a further provides that in the event a motion for reinstatement is not decided by signed, written order within 75 days after the dismissal is signed, or within such other time allowed by rule 306a, the motion is overruled by operation of law.

Applying these rules to the facts of the case, the first motion to reinstate was timely filed on April 23,1984, but the court never ruled on this motion. Calculating the 75 days from April 16, 1984, when Tarver’s attorney received notice of the court’s dismissal, the motion was overruled by operation of law on June 30, 1984. Although the court had plenary power for 30 days thereafter to reinstate the case, the last possible day the court could have reinstated the case was July 30, 1984. Thus the trial court lacked jurisdiction on August 10, 1984, to grant the second motion to reinstate.

This court is required to issue a writ of mandamus to compel a trial judge to refrain from acting outside the court’s jurisdiction. E.g., Munson Engineering, Inc. v. Farris, 666 S.W.2d 355 (Tex.App.-Houston [14th Dist.] 1984, no writ). Accordingly, relator’s petition for writ of mandamus is conditionally granted to compel the trial judge to set aside his order of August 10, 1984, granting Tarver’s second motion to reinstate, and to reinstate his order of dismissal dated February 24, 1984. The writ of mandamus will issue only if Judge Harris does not comply with this order.