text:
    Emilio C. GONZALEZ, Appellant, v. GAINAN’S CHEVROLET CITY, INC., and General Motors Acceptance Corporation, Appellee.
    No. 13-83-107-CV.
    Court of Appeals of Texas, Corpus Christi.
    Aug. 31, 1984.
    Rehearing Denied Nov. 1, 1984.

      Thomas M. Schumacher, Kimbel L. Brown, Corpus Christi, for appellant.
    William J. Chriss, Andrew J. Lehrman, Kleberg, Dyer, Redford & Weil, Sorrell, Anderson & Sorrell, Corpus Christi, for appellee.
    Before NYE, C.J., and YOUNG and BIS-SETT, JJ.
   OPINION

YOUNG, Justice.

This is an appeal from a judgment granted against appellant Emilio C. Gonzalez, in favor of appellees, Gainan’s Chevrolet City, Inc. and General Motors Acceptance Corporation. Appellant sued both appellees for violations of the Texas Consumer Credit Code, Article 5069-7.01, et seq., TEX.REV. CIV.STAT.ANN. (Vernon Supp.1984), arising out of a retail installment contract that he signed in connection with the purchase of a motor vehicle. The trial court found no violations of the credit code. We affirm.

Appellant contracted with Gainan’s Chevrolet City, Inc. on July 1, 1976, for the purchase of a used 1976 Chevrolet station wagon. Appellant executed a retail installment contract with Gainan’s whereby he was scheduled to make 24 monthly installment payments beginning on August 16, 1976. The contract was a 1976 GMAC form contract; it was subsequently assigned to GMAC by Gainan’s. In connection with the purchase of the pick-up truck, appellant also executed a document entitled Customer’s Statement, which is also a GMAC form, and which is claimed by ap-pellees to be part of the retail installment contract. Appellant finished paying the monthly payments without any default. Appellees never attempted to repossess the vehicle or to accelerate the monthly installment payments. The suit was not brought for actual damages for breach of warranty or dissatisfaction with the vehicle. This suit was for statutory penalties for technical violations of the Texas Consumer Credit Code.

This is a companion case to Juan L. Garcia v. Gainan’s Chevrolet City, Inc., et al, our no. 13-83-127-CV, with identical issues involved in both cases. The reasonings and holdings are the same in disposing of both appeals.

Appellant’s first point of error is that the trial court erred by not holding that the retail installment contract by its provision, whereby appellant agreed not to assert claims or defenses arising out of the sale, violated TEX.REV.CIV.STAT.ANN. art. 5069-7.07(6) (Vernon Supp.1984). Article 5069-7.07(6) states that no retail installment contract shall provide that the buyer agrees not to assert against the seller or holder of any claim or defense arising out of the sale. The offensive clause is section 7(c) of the additional terms on the reverse side of the contract which provides that: “It is mutually understood and agreed that, except where the seller is also the manufacturer of said property, buyer will not assert against any subsequent holder as assignee of this contract any claim or defense which the buyer may have against the manufacturer or a seller other than the seller of said property obtained pursuant hereto.”

The Texas Consumer Credit Code is to be liberally construed. Knight v. International Harvester Credit Corp., 627 S.W.2d 382 (Tex.1982). Contracting parties are presumed to have intended to obey the law unless the contrary clearly appears from the contract; and courts must presume the parties intended an interpretation of the terms that is legal and complies with the Code. Furthermore, courts in reviewing the contract as a whole, are obligated to adopt a rule of construction which comports with legality and compliance. Haley v. Pagan Lewis Motors, Inc., 647 S.W.2d 319 (Tex.App.—Corpus Christi 1982, writ ref’d n.r.e.), Grant v. Friendly Chrysler-Plymouth, Inc., 612 S.W.2d 667 (Tex.Civ. App.—Corpus Christi 1981, writ ref'd n.r.e.).

In reviewing the face of the contract in line with Haley, there is a notice in bold capital letters just above the buyer’s signature that states: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.

The trial court’s conclusion, that the retail installment contract does not contain a provision in which appellant agreed not to assert against the assignee of the contract claims or defenses arising out of the sale, will be upheld for the following reasons:

1) it is uncertain whether the language in section 7(c) on the reverse side of the contract actually is a waiver of claims and defenses arising out of the sale;
2) the notice on the face of the contract in bold face type near buyer’s signature is more conspicuous, Ford Motor Credit Co. v. Gamez, 617 S.W.2d 720 (Tex.Civ.App.—Eastland 1980, writ ref’d n.r.e.), than the language in 7(c) which is not in large capitals on the reverse side of the contract, Smith v. Chapman, 614 F.2d 968 (5th Cir.1980), which would give the notice priority if there were any conflict in the terms, Portland Tradewinds Ford v. Lugo, 613 S.W.2d 26 (Tex.Civ.App.—Corpus Christi 1981, no writ); and 3) our rule of construction appearing in Haley favors a holding that comports with legality.

Therefore, we hold that the contract did not violate article 5069-7.07(6) and the trial court’s holding will not be overturned. See Flores v. Charlie Thomas Courtesy Ford, Inc., 669 S.W.2d 165 (Tex.App.—Corpus Christi 1984, no writ). Appellant’s first point of error is overruled.

Appellant’s second point of error is that the trial court erred by not finding that the contract violated TEX.REV.CIV.STAT. ANN. art. 5069-7.07(3) (Vernon Supp.1984) by authorizing unlawful entry of appellant’s premises to repossess the motor vehicle.

Article 5069-7.07(3) at the time the contract was signed provided that retail installment contracts may not:

(3) Authorize the seller or holder or other person acting on his behalf to enter upon the buyer’s premises unlawfully or to commit any breach of the peace in the repossession of a motor vehicle;

Article 5069.7.07(3) may be properly construed in light of the context of Section 9.503 of the TEX.BUS & COM.CODE (TEX UCC) (Vernon Supp.1984), effective on January 1, 1974. It provided in pertinent part:

Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action.

The part of the contract objected to is the latter half of the first paragraph of section 6 of the additional terms on the back side of the contract:

Further in any such event, seller or any sheriff or other officer of the law may take immediate possession of said property without demand, including any equipment or accessories thereto; and for this purpose seller may enter upon the premises where said property may be and remove same. Seller may take possession of any other property in the here-inbefore described motor vehicle at time of repossession, wherever such other property may be therein, and hold same for buyer at buyer’s risk without liability on the part of seller. Such repossession shall not affect seller’s right, hereby confirmed, to retain all payments made prior thereto by the buyer hereunder.

Three Fort Worth Court of Appeals’ cases have held that language authorizing repossession with free “right-of-entry” language does not mean that seller is given a contractual right to break the law by allowing trespass. That Court read such language as a limitation; that is, recognizing that public policy favors peaceful, non-trespass repossessions, would allow seller to repossess property only where he found free right of entry. Charlie Hillard, Inc. v. Heath, 624 S.W.2d 758 (Tex.App.—Fort Worth 1981, no writ); Dub Shaw Ford, Inc. v. Jackson, 622 S.W.2d 664 (Tex.App.—Fort Worth 1981,, no writ); and Woolard v. Texas Motors, Inc., 616 S.W.2d 706 (Tex.Civ.App.—Fort Worth 1981, no writ).

In the case before us, however, the words “free right of entry” are not found. There is a line of cases that suggest that words that connote or imply peaceable entry and repossession, albeit without notice or legal action, would also not be a violation of the Consumer Credit Code. Ormsby v. Parker Square Bank, 610 S.W.2d 246 (Tex.Civ.App.—Fort Worth 1980, no writ), and Martens v. General Motors Acceptance Corp., 584 S.W.2d 941 (Tex.Civ.App.—Dallas 1979, no writ). Where a contract does not expand the right of repossession, and it does not authorize a breach of the peace, it does not violate art. 5069-7.07(3). Redmac Leases, Inc. v. Lessner, 616 S.W.2d 627 (Tex.Civ.App.—Eastland 1980, writ ref’d n.r.e.). A contract may contain a provision that “seller may enter upon the premises where said property may be and remove same,” since it does not waive any rights of the buyers. Martens, at 944.

In the case at bar, the language of the additional terms of the installment contract did not permit the seller or his assign-ee to break the law if they determined that repossession of the vehicle was warranted because of buyer’s failure to make payments. Therefore, appellant’s second point of error is overruled.

Appellant’s third point of error is that the trial court erred in not holding that a provision which allowed appellees to accelerate the monthly installments not in compliance with the statute violated TEX.REV. CIV.STAT.ANN. art. 5069-7.07(1) (Vernon Supp.1984). The trial court made no findings of fact on this issue.

Article 5069-7.07(1) states that no retail installment contract shall provide that the seller or holder may accelerate the maturity of any part or all of the amount owing thereunder unless (a) the buyer is in default on the performance of any of his obligations or (b) the seller or holder in good faith believes that the prospect of payment or performance is impaired.

Appellant is complaining that one condition that would result in buyer’s default and, therefore, the acceleration of payments under section 6 of the additional terms on the reverse side of the contract, is when the “required physical damage insurance (whether procured by the seller or by the buyer) is cancelled by the insurer prior to expiration thereof.”

The rule on contract provisions is that they will be upheld, when they substantially follow the wording of a statute.

The language of the clause providing for other means of acceleration tracks the statutory language of Article 5069-7.-07(l)(b). The failure to maintain adequate insurance coverage either on the automobile or the life of the buyer would, as the statute dictates, amount to an impairment of the prospect of payment or performance of the contract.

Grant v. Friendly Chrysler-Plymouth, Inc., at 668.

In Haley v. Pagan Lewis Motors, Inc., at 320, this Court repeated the rule from Grant that contracting parties are presumed to have intended to obey the law unless the contrary clearly appears from the contract. This Court has held that the question of whether one of the events on which buyer would be considered in default might violate the Consumer Credit Code for purposes of accelerating the maturity can only be decided on a case-by-case basis. Lundquist Buick-Opel, Inc. v. Wikoff, 659 S.W.2d 466 (Tex.App.—Corpus Christi 1983, no writ).

Appellant argues that he has no power over whether the insurance may be cancelled for certain occurrences that may be beyond his control. The language, at first, might appear somewhat unconscionable as appellant complains; but the court must also look at the language of the statute. This Court is obligated to adopt a construction of the terms as long as it comports with legality. Haley, at 320, and Grant, at 669. In Grant, the language of another contract was compared to the language of the statute. In noting that the failure to maintain adequate insurance coverage on the automobile would amount to an impairment of the prospect of either payment or performance of the contract, this Court did not call attention to whose fault it would be that the insurance was not maintained, rather the emphasis was on the impairment of the prospect for payment, which is a statutory basis for acceleration of payments. Appellant may have a cause of action against the insurer for any unwarranted cancellation of coverage. The contract does not violate Article 5069-7.-07(1) because the statute does not prohibit the acceleration of payments by a seller when a buyer is in default in the performance of his obligations, or when the prospect for payment is impaired. Appellant’s third point of error is overruled.

Appellant’s fourth point of error is that the trial court erred by not ruling that the retail installment contract failed to clearly and conspicuously state that the physical damage insurance was required under the contract, in violation of TEX. REV.CIV.STAT.ANN. art. 5069-7.06(3) (Vernon Supp.1984). That section provides, in part, that:

(3) When insurance is required in connection with such a contract or agreement made under this Chapter, the seller or holder shall furnish the borrower a statement which shall clearly and conspicuously state that insurance is required in connection with the contract, and that the buyer shall have the option of furnishing the required insurance either through existing policies of insurance owned or controlled by him or of procuring and furnishing equivalent insurance coverages through any insurance company authorized to transact business in Texas_ Such statement or statements may be made in conjunction with or as part of the retail installment contract required by Article 7.02 or may be made in a separate written statement or statements. (Emphasis added.)

This Court addressed what is meant by “clear and conspicuous” in Portland Tradewinds Ford, at 29.

Inspection of the Retail Installment Contract does not reveal that the references to required physical damage insurance are clear and conspicuous. In the contract, the two references on the front side do not clearly and conspicuously show that physical damage insurance was required. At item 4A, the cost of the insurance is shown as 0 — .” that this insurance is required. The blanks in the box, under item 13 that is cross-referenced to item 4A, are not filled in at all, which would normally result in it not being read. Chapman, at 978. On the back side of the contract, items 3(a), 3(b) and 3(c) of the additional terms are not definite whether the physical damage insurance is being required and certainly are not in a clear and conspicuous means of print that would distinguish it from the excessive amount of verbiage on the back side.

The appellees are permitted to show under the language in the latter part of article 5069-7.06(3) TEX.REV.CIV.STAT.ANN. (Vernon Supp.1984), that a second form was provided to and executed by appellant which contained the requisite language that physical damage insurance was required under the contract. Carbajal v. Ford Motor Credit Co., 658 S.W.2d 281, 285 (Tex.App.—Corpus Christi 1983, writ dism’d). In the case before us, the customer’s statement has a section about one-third from the top of the form that provides in capital letters and slightly bolder print than the rest of the paragraph:

MINIMUM PHYSICAL DAMAGE INSURANCE IS REQUIRED FOR THE FULL TERM OF THE INSTALMENT [sic] CONTRACT.

As noted in Carbajal, the second document (the Customer’s Statement), having been provided and executed by appellant with language apprising appellant of the requirement to furnish physical damage insurance, overcomes any confusion which may have been created by the retail installment contract. Therefore, the two documents, taken together, did clearly and conspicuously comply with the statute. The findings of the trial court, that the retail installment contract substantially complies with disclosures required by Art. 5069-7.-06(3), and that appellees furnished plaintiff with a written statement at the time of the sale that minimum physical damage insurance was required for the full term of the contract as evidenced by the customer’s statement form, will be upheld. The conclusion of law that the retail installment contract clearly and conspicuously disclosed to the buyer that physical damage insurance was required in connection with the contract will not be overturned. Appellant’s fourth point of error is overruled.

The judgment of the trial court is AFFIRMED.

NYE, C.J., concurring.

BISSETT, J., not participating.

NYE, Chief Justice, concurring.

I concur in the result.


source: Caselaw Access Project

author: NYE, Chief Justice. SEERDEN, Justice, GONZALEZ, Justice,

license: Public Domain

text:
    In the Matter of the Marriage of R.W.M., Jr., Appellant, v. J.C.M., and in the Interest of L.M.M. and R.W.M., III, Children, Appellee.
    No. 13-83-462-CV.
    Court of Appeals of Texas, Corpus Christi.
    Oct. 4, 1984.
    Rehearing Denied Nov. 1, 1984.
    Dan R. Price, Lea & Price, Austin, for appellant.

      G. Rudolph Garza, Jr., Canales & Garza, Corpus Christi, for appellee.
    Before NYE, C.J., and GONZALEZ and SEERDEN, JJ.
   OPINION

NYE, Chief Justice.

This is an appeal from a trial court judgment denying a change in the designation of managing conservator of two children. The case involves a procedural question.

R.W.M. (appellant, the husband) and J.C.M. (appellee, the wife) were married in 1970. Two children were born during the marriage: a girl who was six years old and a boy who was four years old at the time of the modification hearing. Appellee wife was appointed managing conservator, pursuant to the decree of divorce entered in 1980. Both parties have now remarried. Appellee did not file a brief in this case.

On September 14,1982, the husband filed his first amended motion to modify custody. He asserted in his motion that there were changes in circumstances since their divorce of such a material nature that it would be injurious to the children to have them remain with the appellee wife, and a change in custody would be an improvement for the children. The appellant presented testimony for three days to the trial court. After the husband rested his case, and before appellee presented any evidence .or rested, the trial court granted appellee’s motion for judgment. Appellant asserts in his sole point of error that the trial court erred in granting judgment for appellee at the close of his case. He argues that the evidence that he presented raised fact issues which would, in fact and law, support a modification of the conser-vatorship. Appellant contends that the granting of judgment after he rested would only have been proper if no issues of fact had been raised by the evidence. We agree and reverse the case for another trial.

It would only be proper for the trial court to grant appellee’s motion for judgment at the close of appellant’s case if an instructed verdict would have been proper if the case was tried before a jury. Kennedy v. Kennedy, 619 S.W.2d 409 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ). It is error to grant an instructed verdict or motion for judgment where the evidence and reasonable inferences raise a fact issue. Kirkwood v. Kirkwood, 663 S.W.2d 34 (Tex.App.—El Paso 1983, no writ); see Guthrie v. Ray, 556 S.W.2d 589 (Tex.Civ.App.—Dallas 1977, no writ); Allen v. Nesmith, 525 S.W.2d 943 (Tex.Civ.App.—Houston [1st Dist.] writ ref’d n.r.e., per curiam, 531 S.W.2d 330 (Tex.1975). An instructed verdict is proper only when no material fact issues have been raised. Kennedy v. Kennedy, 619 S.W.2d at 410.

In this case, the trial judge specifically stated that he chose to deny the modification, not because he found there was no evidence of a material change, but because the evidence was insufficient. The judgment recites that the plaintiff has failed to meet his burden of proving by a preponderance of the evidence that all three of the standards for modification under TEX. FAM.CODE ANN. § 14.08(c)(1) have been satisfied.

First, we must determine whether there was any evidence which raised a disputed issue of fact as to each of the elements appellant was required to prove to support modification. These elements are:

1. there was a change in the circumstances of the child or parent so material and substantial that
2. retention of the present managing conservator would be injurious to the welfare of the child; and
3. the appointment of a new managing conservator would be a positive improvement for the child.

TEX.FAM.CODE ANN. § 14.08(c)(1) (amended September 1, 1983); Jones v. Cable, 626 S.W.2d 734 (Tex.1981).

In Leonard v. Leonard, 218 S.W.2d 296, 801 (Tex.Civ.App.—San Antonio 1949, no writ), the Court, in discussing material change in circumstances, said:

“Material change of conditions which will require a modification of a decree as to the custody of a child is ordinarily such as (1) Marriage of one of the parties. (2) Poisoning of the mind of the child by one of the parties. (3) One of the parties becoming an improper person for the custody. (4) Change in the home surroundings. (5) One of the parties becoming mean to the child, or some other similar material change of conditions.” (Citations omitted.)

Since Leonard, the Texas courts have expanded the list to include many additional aspects of a child’s physical, mental, and moral well-being to be considered: moral and religious training, see T.A.B. v. W.L.B., 598 S.W.2d 936 (Tex.Civ.App.—El Paso 1980) writ ref’d n.r.e. Per Curiam, 606 S.W.2d 695 (Tex.1980); cert. denied, 454 U.S. 828, 102 S.Ct. 122, 70 L.Ed.2d 104 (1981); remarriage of a parent, together with other factors affecting the welfare of the child, see Dohrmann v. Chandler, 435 S.W.2d 232 (Tex.Civ.App.—Corpus Christi 1968, no writ); and emotional health of the child, see L.P.W. v. S.O., 669 S.W.2d 182 (Tex.App.—Fort Worth 1984, no writ); Jeffers v. Wallace, 615 S.W.2d 252 (Tex.Civ.App.—Dallas 1981, no writ).

The threshold inquiry is whether circumstances of the child have so materially and substantially changed since the divorce decree as to cause injury to the children. In re Y, 516 S.W.2d 199 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n.r.e.). A change in circumstances must be found first before the court examines the other two elements that would support modification, i.e., that the retention of the present managing conservator would be injurious to the child and that the appointment of a new managing conservator would be a positive improvement for the child. D.W.D. v. R.D.P., 571 S.W.2d 224 (Tex.Civ.App.—Fort Worth 1978, writ ref’d n.r.e.).

To determine if there is any evidence of all of these elements, we consider all of the evidence in its most favorable light in support of the appellant’s position, disregarding all of the contrary evidence and inferences. Henderson v. Travelers Insurance Co., 544 S.W.2d 649 (Tex.1976); Guy v. Stubberfield, 666 S.W.2d 176 (Tex.App.—Dallas 1983, no writ); Cameron County Good Government League v. Ramon, 619 S.W.2d 224 (Tex.Civ.App.—Beaumont 1981, writ ref’d n.r.e.).

The appellant husband argues that there is evidence which shows that the children did not have a stable and secure environment under appellee’s custody. The evidence at trial favorable to the appellant showed that, after the divorce, appellee moved the children from Corpus Christi to Houston in November 1981. She and the children first lived with her brother when they first moved to Houston. One month later, she and the children moved into her boyfriend’s mobile home. Appellee wife testified that four months later she and the children moved back into her brother’s home. She admitted that one of the reasons she left her boyfriend’s home was because of the pending litigation.

Next, appellant contends that the appel-lee wife neglected the children’s needs. Evidence was introduced by appellant at trial that showed that, since the divorce, the children had never been taken to a dentist and that they had visited the doctor only twice in 1982. Appellee wife testified that the younger child had a medical condition in which his thighs have grown inward. She testified that, during her separation from appellant, she took the child to a doctor once. She testified that she believed his legs were getting better but has not checked with a doctor since the initial visit during their separation. Both children have seen a counselor since the divorce. The appellee wife testified that the counsel- or told her that her older child had no self-image. According to the appellant and appellee, both children are afraid of meeting strangers. There was testimony that they are withdrawn and are afraid of being left alone. Appellee testified that the younger child was developing disciplinary problems at school. There was also testimony elicited from the appellee to the effect that the children had no formal religious training. Appellee said she had not taken the children to church since she moved to Houston. The appellant, prior to filing his motion to modify custody, took the younger child to see a doctor because he had bruises on his right hip. A Dr. Erikson testified at trial that he asked the child how he had received the bruises, to which he responded that appellee’s current husband “did it with his belt.” He testified that the bruises were in a peculiar position to have been received from ordinary play or romping around. The doctor surmised that the child was to a minor extent physically harmed and that he appeared to have some psychological repercussions from the incident. Appellant also testified that his daughter has a problem of writing backwards, which he believed should be investigated medically. He testified that, beginning in January 1982, he began having problems visiting the children and was not able to see the children for eight weeks at one period of time.

There was testimony that appellee’s boyfriend was not actually living with appellee immediately preceding the hearing, but was a frequent visitor and sometimes an overnight visitor in appellee’s home. There was also evidence that they slept in the same bedroom when the children were in the home. Apparently, during the course of the modification trial which lasted several days, appellee married the boyfriend. Knowledge of this marriage was not before the court as evidence when he made his ruling, but was commented upon by appel-lee’s attorney.

We conclude, after considering all of the evidence presented by appellant in the three-day trial, that such evidence raised a fact issue as to whether there was a change of circumstances since the divorce of such a material and substantial nature that the retention of the appellee as managing conservator would be injurious to the children.

Next, we consider all of the evidence to determine whether a fact issue is raised by the evidence regarding whether a change in the managing conservator would be a positive improvement for the children. Testimony of appellant and his wife was that they would have the children visit a doctor and a dentist regularly. There was testimony that the appellant had begun religious training of the children. Appellant’s wife testified that she got along with the children very well. Appellant testified that he has opened his own veterinary practice and is doing very well financially. The appellant’s home is in a rural setting. Examining the entire record, we find that there was ample evidence that would raise an issue of fact on whether a change of custody would be a positive improvement for the children.

In a non-jury trial, the trial judge occupies a dual role. He decides the law and weighs the evidence and determines the facts. An argument may be raised that a trial judge may decide the facts based only on plaintiff’s evidence if he is not convinced that plaintiff has proved his case by a preponderance of the evidence when plaintiff rests his case. There are problems inherent in this procedure. In the course of a trial, a party, because of trial tactics, may not wish to call a defense witness as its own, but may rely on the other party calling the witness and gain valuable testimony through the time-honored method for testing a witness’ credibility by cross-examination. For an example, in the case at bar, plaintiff’s attorney wanted the testimony of appellee’s husband. He was prohibited from calling him except as a hostile witness under the rules of evidence because he was not a party to the lawsuit.

Our system is an adversary system. This is so even when a case is tried to the court and not to a jury. A judge should have the benefit of all of the evidence before ruling. This is especially true when the plaintiff has established a prima facie case, as was done here. While judicial expediency might favor a judge deciding a case if he is not convinced the plaintiff has proven his case by a preponderance of evidence, trial procedure and, above all, judicial fairness, favors a judge deciding the case based upon all of the evidence which both parties wish to present. The intermediate appellate courts have historically interpreted TEX.R.CIV.P., 262 to allow a trial judge in a non-jury case to grant judgment at the close of plaintiff’s case only if no material issue of fact has been raised. Rule 262, as it is written and has been properly interpreted, is the best result for our judicial system.

Because the trial court is vested with a broad degree of discretion in matters of determining custody, we express no opinion on how these fact issues should be resolved upon retrial of all the evidence. This is especially true since the appellee has not presented any evidence in opposition to the evidence presented by the appellant. The trial judge was not at liberty to grant judgment for the appellee when the evidence presented raised issues of fact that would support modification on the part of the petitioner. See Guy v. Stubberfield; Kirkwood v. Kirkwood; and Guthrie v. Ray.

Appellant’s point of error is sustained, and the judgment of the trial court is reversed and the cause is remanded for another trial.

SEERDEN, J., concurs.

GONZALEZ, J., dissents.

SEERDEN, Justice,

concurring.

It appears that the rule stated in the above opinion is inconsistent with the modern trend and with the general purpose of the Texas Rules of Civil Procedure as reflected in Rule 1:

“The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of rights of litigants under established principles of substantive law. To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable, these rules shall be given a liberal construction.”

While it is understandable that in cases where the jury is the arbiter of the facts, the court, in considering whether to direct a verdict in favor of a defendant, should view the evidence in the light most favorable to the plaintiff and should indulge every reasonable inference in plaintiff’s favor so as to allow the jury the widest discretion in resolving disputed issues, this is not necessarily true in a non-jury trial.

In a non-jury case, the judge occupies a dual role. He not only decides the law, but is the final arbiter of the facts. As stated by Justice Gonzalez in McDaniel v. Carruth, 687 S.W.2d 498 (Tex.App.—Corpus Christi 1982, no writ) at p. 504, “the judge occupied a dual position; he was the magistrate required to lay down the guiding principle of law and he was also the tribunal compelled to determine what the facts were. As such, the court occupied the same relation to the facts in the case as a jury would have if the case had been tried before a jury....” When the trial judge in a non-jury trial, after plaintiff has rested his case, has not been persuaded that plaintiff has met the burden of proving to him by a preponderance of what the judge believes to be credible evidence that plaintiff should prevail, why should the trial be prolonged? Plaintiff has had a full opportunity to be heard. Efficiency and proper administration militate in favor of the trial judge announcing his decision when plaintiff rests if the judge has not been persuaded.

Chief Justice Guittard stated as much in Guthrie v. Ray, 556 S.W.2d 589 (Tex.Civ.App.—Dallas 1977, no writ), when he said at p. 591:

“Perhaps a trial judge should have the power, when all of the plaintiff’s evidence has been presented, to find the facts against the plaintiff without hearing evidence from the defendant. Conceivably he may do so if the record is clear that his decision is made on that basis....”

Nevertheless, the rule stated in Chief Justice Nye’s opinion is the traditional common law rule. The only guideline set forth in the Texas Rules of Civil Procedure is Rule 262, which provides that the rules in jury trials shall govern non-jury trials in so far as applicable.

The present Federal Rule 41(b) provides that a defendant in a non-jury case may move for dismissal at the close of plaintiff's evidence on the ground that the plaintiff has shown no right to relief in law or in fact. The trial court may then weigh the facts and give judgment for defendant or it may wait and give judgment after the close of all the evidence. The trial court may render judgment for defendant at the close of plaintiffs evidence even though plaintiff has established a prima facie case. Ellis v. Carter, 328 F.2d 573 (9th Cir.1964); See, C. Wright & A. Miller, Federal Practice and Procedure § 2371 (1971); Annot., 55 A.L. R.3d 272 (1974).

Federal Rule 41(b) has been amended twice. Originally, it made no distinction between jury and non-jury cases. In 1948, a sentence was added providing that the court could determine the facts in a motion to dismiss in a non-jury case. In 1963, it was further amended so that such a motion to dismiss is now available only in non-jury cases. See, C. Wright & A. Miller, Federal Practice and Procedure § 2371 (1971).

The Texas case cited in Chief Justice Nye’s opinion makes no reference to any rule, nor does it give any satisfactory explanation as to why the rule announced therein should exist. TEX.R.CIV.P. 262 was adopted unchanged from former TEX. REV.CIV.STAT. art. 2176 (Repealed 1939). Nevertheless, the rule announced in Chief Justice Nye’s opinion is the traditional common law rule. See, Annot. 55 A.L.R.3d 272. While it appears that the vast majority of state jurisdictions have adopted some version of Federal Rule 41(b) and while it appears that the Federal Rule is more consistent with the purpose set out in TEX.R. CIV.P. 1, Texas still follows the common law rule. Therefore, I agree that the case should be reversed and remanded for a new trial, but I question the propriety of the rule requiring this result.

GONZALEZ, Justice,

dissenting.

I respectfully dissent. In a non-jury trial, when plaintiff rests his case, the trial judge has power to rule on the merits of the case. I would affirm the judgment of the trial court.

This was a bitterly contested change of custody case combined with competing motions for contempt of court. The ex-husband, appellant, initiated this action by filing a petition for change of custody in which he petitioned the trial court to replace his ex-wife, appellee, as managing conservator of the children. In his petition, he alleged that it would be injurious to the welfare of the children to leave them in the custody of their mother because of material changes in circumstances. The alleged changes were that the appellee had allegedly allowed her boyfriend to discipline the children in a “vicious and uncontrolled manner,” that she and her boyfriend screamed at the children, and that she displayed poor parenting skills regarding the personal hygiene of the children. It was further alleged that the children were in danger because the boyfriend was a reckless driver.

After three days of testimony, appellant rested his case regarding his change of custody motion. Appellee filed a written motion for judgment; and, after brief argument of counsel, the trial court said:

THE COURT: ... Mr. Garza, [appellee’s attorney] I am going to grant your motion. I don’t think there is anything that you could present that would convince me otherwise, unless your client got up and retracted everything she said in her testimony, and I don’t think she’s going to do that. I’d make the same decision at the end of the presentation of evidence. We might as well save everybody some time and do it now. I’m going to grant the motion made by Mr. Garza and deny the Motion to Modify. One of the other things I thought about a lot this weekend was what about the contempt? I’m not sure it’s going to do any good to impose anything on anybody. I think everybody admitted they violated the orders. I think they did it at a time when they were having a bitter controversy between the two of them, and that was the reason for it and there is nothing I can do to impose punishment on anybody that is going to change that attitude because it wasn’t directed at or it was addressed at the other party.
MR. PRICE [appellant’s attorney]: Your Honor, I’m sorry.
THE COURT: Go ahead.
MR. PRICE: Are you holding then that there is no evidence?
THE COURT: No, sir.
MR. PRICE: You’re holding there is insufficient evidence?
THE COURT: I think it’s insufficient, that at this point I would make — no matter what Mr. Garza said, no matter what Mr. Garza presented, unless it’s some wild-haired thing that has happened, I would do the same thing at the end of the hearing.
MR. PRICE: You mean if Mr. Tolbert [appellee’s boyfriend] were to get up and admit that he abused the children—
THE COURT: Now that would be different.
MR. PRICE: That’s what we’re talking about. Let me have a chance at that guy. I have been after him all week.
THE COURT: I don’t think there is anything that could be presented that I haven’t heard twice again that would change my opinion of the evidence. I think that the Motion to Modify should be denied.
MR. GARZA: Is that the ruling of the Court, your Honor?
THE COURT: Yes, sir.

As the record shows, the trial judge found the facts against the appellant without hearing evidence from appellee. If appellant wanted the trial court to hear Tolbert’s testimony, he should not have waited to see if appellee was going to call him as a witness, but should have called him himself. There is no showing that appellant had subpoenaed Tolbert nor that he requested a continuance in order to secure his testimony.

In McDaniel v. Carruth, 637 S.W.2d 498 (Tex.App.—Corpus Christi 1982, no writ), we stated:

If, at the time appellants had rested their case, they had failed to prove all the elements of their cause of action, the appellee upon motion, would have been entitled to a judgment and thereby relieved of the burden of putting on “his side” of the case. This is so because, since the case was tried by the court without a jury, the judge occupied a dual position; he was the magistrate required to lay down the guiding principle of law and he was also the tribunal compelled to determine what the facts were. As such the court occupied the same relation to the facts in this case as a jury would have if the case had been tried before a jury. The judge was the trier of the facts and it was his duty to decide the issues of fact on the evidence and the court was not bound to adopt a party’s contention as to the weight of the evidence. It was the court’s right and duty to weight [sic] the evidence, and draw inferences and reasonable deductions therefrom. Further, it was the court’s duty to determine the credibility of the witnesses and the weight to be given their testimony in exactly the same manner that a jury would have done. The court had the power to believe or disbelieve all or part of a witness’ testimony.

637 S.W.2d at 504.

Chief Justice Guittard and my colleague Justice Seerden (in his concurring opinion) concede that this is or should be the rule.

“Perhaps a trial judge should have power, when all of the plaintiff’s evidence has been presented, to find the facts against the plaintiff without hearing evidence from the defendant. Conceivably he may do so if the record is clear that his decision was made on that basis.”

Guthrie v. Ray, 556 S.W.2d 589, 591 (Tex.Civ.App.—Dallas 1977, no writ).

Appellant cites the cases of Guy v. Stubberfield, 666 S.W.2d 176 (Tex.App.—Dallas 1983, no writ), Kirkwood v. Kirkwood, 663 S.W.2d 34 (Tex.App.—El Paso 1983, no writ), and Guthrie v. Ray, 556 S.W.2d 589 (Tex.Civ.App.—Dallas 1977, no writ) for the proposition that it was error for the trial court to grant appellee’s motion for judgment at the close of appellant’s case. Chief Justice Nye agrees, adding the case of Kennedy v. Kennedy, 619 S.W.2d 409 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ).

When one examines these cases, one finds that the genesis for “the rule” is the Court of Civil Appeals’ opinion on the motion for rehearing in Lorino v. Crawford Packing Co., 169 S.W.2d 235, 240 (Tex.Civ.App.—Galveston), aff'd, 142 Tex. 51, 175 S.W.2d 410 (1943). Today Chief Justice Nye and Justice Seerden join the ranks of those intermediate appellate courts which have blindly followed the court of civil appeal’s opinion in Lorino. Our sister courts have seized on the Lorino language for no apparent reason but that the case was affirmed by the Supreme Court.

Before adopting such “precedent,” I would point out that in Lorino it was only the judgment that was affirmed, and not the opinion on motion for rehearing of the Galveston Court of Civil Appeals where this particular “rule” was discussed. The Supreme Court did not address this issue when it affirmed Lorino on other grounds.

In our case, the trial court granted appel-lee’s motion for judgment, and indicated that, after weighing the evidence, he was not convinced that appellant had met his burden in proving that there existed material and substantial changes in circumstances which would warrant a change of custody. After this case was tried, the trial judge who presided over this ease was defeated. Therefore, in my opinion, it is wrong to reverse the case and force the present trial judge to hear the case de novo when there has already been a merit determination by another judge that the changes in circumstances did not warrant modification of conservatorship. This impermissi-bly gives appellant “another bite at the apple” on identical facts. This is more so when the case is remanded to the same trial judge who originally heard the motion to modify. Under those circumstances, the trial judge who has already made up his mind once is instructed to do so again, but not until he or she hears the defendant’s side of the story. This is such a waste of judicial resources and an unnecessary expense to the parties. This is neither reasonable nor logical and is not, nor should it be the law.

Even assuming for the sake of argument that the trial court did not have power to rule on the merits of plaintiff’s motion after he rested his case, and that the defendant had a burden of coming forward with her evidence even though the trial judge had already made a decision on the merits, the case should not be reversed because of TEX.R.CIV.P. 434. Furthermore, there has been no showing that the trial court abused its discretion. For all of these reasons, I would affirm the judgment of the trial court.

      . Act of June 19, 1975, Ch. 476, § 29 Tex. Sess.Law Serv. 1265 (Vernon), amended by Act of June 17, 1983, Ch. 424, § 9 Tex.Sess.Law Serv. 2365 (Vernon).

      . The judgment recites that the plaintiff has failed to meet his burden of proving by a preponderance of the evidence that all three standards for modification under TEX.FAM.CODE ANN. § 14.08(c)(1) have been satisfied.

      . "Provided, first, that no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court...."


author: NYE, Chief Justice.

text:
    Jeannette SIMKINS & Ivan Simkins, Appellants, v. OUTDOOR RESORTS SOUTH PADRE ISLAND, Appellee.
    No. 13-84-076-CV.
    Court of Appeals of Texas, Corpus Christi.
    Oct. 4, 1984.
    Rehearing Denied Nov. 1, 1984.
    Lee Arnett, Brownsville, for appellants.
    Roger W. Hughes, Jim Denison, Harlin-gen, for appellee.
    Before NYE, C.J., and GONZALEZ and SEERDEN, JJ.
   OPINION

NYE, Chief Justice.

This is an appeal from the granting of a take nothing judgment. Appellants (trial plaintiffs) brought a personal injury suit against appellee as a joint venture for negligence in the ownership or operation of premises. Appellee filed a general denial and a motion for summary judgment. The trial court found that there exists no genuine issue of any material fact and held that appellee was entitled to a summary judgment as a matter of law. We reverse.

In three interrelated points of error, appellants attack the trial court’s granting of a summary judgment because: 1) appellee failed to establish as a matter of law that it was a new joint venture and not responsible for appellant Jeannette Simkins’ damages; and 2) appellants’ act of referring to appellee as Outdoor Resorts South Padre Island instead of Outdoor Resorts/South Padre was a misnomer and waived by ap-pellee’s failure to file a plea in abatement.

In reviewing the granting of a summary judgment, we examine the record to see whether the evidence establishes as a matter of law the movant’s right to judgment on the grounds set forth in its motion. Spellings v. Lawyers Title Insurance Corporation, 644 S.W.2d 804 (Tex.App.—Corpus Christi 1982, writ ref'd n.r.e.); Farley v. Prudential Insurance Company, 480 S.W.2d 176 (Tex.1972).

Appellee’s contention that service was not properly obtained upon appellee is without merit. Appellee filed an answer, a first supplemental answer, a motion for summary judgment, and various other documents. Appellee did not file a plea in abatement. We hold that any error occasioned by appellants’ service of process on appellee was cured by appellee’s general appearance before the trial court. H.L. McRae Company v. Hooker Construction Company, 579 S.W.2d 62 (Tex.Civ.App.—Austin 1979, no writ); Holland Page, Inc. v. Capitol Truck and Trailer Co., Inc., 518 S.W.2d 441 (Tex.Civ.App.—Beaumont 1975, writ ref’d n.r.e.).

Appellee asserts that it cannot be liable in suit brought against Outdoor Resorts South Padre Island since its name is Outdoor Resorts/South Padre. The record shows that both appellee’s answer and first supplemental answer at trial were filed by appellee as Outdoor Resorts South Padre Island. Appellee, through its own actions, was estopped from complaining of any alleged misnomer by appellants in their pleadings. Haley v. Young, 541 S.W.2d 217 (Tex.Civ.App.—Houston 1976, no writ); see Huber v. Buder, 434 S.W.2d 177 (Tex.Civ.App.—Ft. Worth 1968, writ ref’d n.r.e.).

The remaining contention presented by appellee to the trial court, to support the granting of a summary judgment, is that appellee cannot be held liable for the injuries sustained by appellant Jeannette Sim-kins because it did not exist as an entity at the time of the accident. We examine this contention, viewing the evidence in a light favorable to the nonmovant.

Appellant Jeannette Simkins, by deposition, testified that she and her husband signed a contract to purchase a lot on February 1, 1978. The contract named Ivan J. Simkins and/or Jeannette Simkins as purchasers and Outdoor Resorts/South Padre Island, Inc., as owner. Under the terms of the contract, owner agreed to sell to purchaser:

Lot No. 208 in that certain Condominium to be nown as Outdoor Resorts at South Padre Island, as shown by a plat of said Condominium which has been recorded in the Condominium Records in the Office of the County Court Clerk in and for Cameron County, Texas in Volume 6, Pages 645-700, together with an undivided interest in and to as well as the right of use, the common use elements of said Condominium.

The contract also provided that:

(6) The lot which is the subject matter of this contract is restricted to use as a parking place for recreational vehicle units, and as indicated aforesaid, entitles the Purchaser to membership in a condominium association, thereby participating in the ownership of certain common use properties, including, but not limited to, swimming pools, bath houses, tennis courts, shuffleboard courts and other recreational facilities, all as described in the Declaration of Condominium. The Owner shall also own a proportionate undivided interest in certain common elements, including a water distribution system, sewerage collection system, electrical distribution system and streets and pathways within the condominium property. The actual cost of operation of the condominium association, such as garbage collection, payment of utilities and insurance and general maintenance are included in the expenses for which right of assessment or granted to the condominium association against each lot owner.

According to Jeannette Simkins, on November 19, 1978, she and her husband were walking around within the development when the ground gave way beneath her, causing her to fall and injure herself. At the time of the fall, she was walking in the vicinity of Lots 161 and 162 of the development.

Attached to appellee’s motion for summary judgment was an affidavit of Joe G. Sanders which states: 1) that he is the president of Fiesta Harbor, Inc.; 2) that Fiesta Harbor, Inc. and Outdoor Resorts of Texas, Inc. entered into a joint venture on October 22, 1980, by written agreement; and 3) the name of the joint venture is “Outdoor Resorts/South Padre.”

Also attached to this motion was an affidavit of Randall Henderson which states: 1) he is the president of “Outdoor Resorts of Texas, Inc.”; and 2) on October 22,1980, by written agreement, Outdoor Resorts of Texas, Inc. and Fiesta Harbor, Inc. entered into a joint venture by the name of “Outdoor Resorts/South Padre.”

Attached to appellants’ reply motion for summary judgment was a deposition of Howard Lombard. Lombard testified that: 1) he was employed by Outdoor Resorts/South Padre; 2) on November 19, 1978, Outdoor Resorts of Texas, Inc. and Tierra Libre, Inc. were joint ventures in Outdoor Resorts/South Padre; and 3) Fiesta Harbor, Inc. purchased Tierra Libre’s interest in the joint venture.

There is little room for doubt that Outdoor Resorts of Texas, Inc., as joint venturer in Outdoor Resorts/South Padre at the time of the accident, was subject to a negligence cause of action by appellants. See Woolard v. Mobil Pipe Line Co., 479 F.2d 557 (5th Cir.1973), Rehearing denied 480 F.2d 925, cert. denied, Mobil Oil Corp. v. Woolard, 414 U.S. 1025, 94 S.Ct. 450, 38 L.Ed.2d 316 (1973). To allow Outdoor Resorts to escape potential liability through a simple restructuring of its business would frustrate the very principles of tort law. Fiesta Harbor, Inc., however, came into the joint venture known as Outdoor Re sorts/South Padre subsequent to the date of the accident. In examining Fiesta Harbor’s potential liability, we are guided by the fact that the rights, duties and liabilities of joint adventurers are generally governed by the rules applicable to partnerships. Hackney v. Johnson, 601 S.W.2d 523 (Tex.Civ.App.—El Paso 1980, writ ref’d n.r.e.); Weatherford v. Lee, 364 S.W.2d 730 (Tex.Civ.App.—San Antonio 1963, writ ref’d n.r.e.); see Tex-Co Grain Company v. Happy Wheat Growers, Inc., 542 S.W.2d 934 (Tex.Civ.App.—Amarillo 1976, no writ). Parties admitted as partners into existing partnerships are bound by all partnership obligations then outstanding, the same as though they had been partners when such obligations were initially incurred, except that their liabilities as to unpaid obligations existing at the time of their admission could only be satisfied out of partnership property. Miller v. Doughty, 520 S.W.2d 586 (Tex.Civ.App.—Corpus Christi 1975, no writ); Penrod Drilling Co. v. Silvertooth, 144 S.W.2d 335 (Tex.Civ.App.—Galveston 1940, writ dism’d judgment cor.).

Appellee has not established as a matter of law that it is not potentially liable to appellants in their cause of action. Appellants’ first three points of error are sustained.

By cross-point, appellee contends that the trial court erred in overruling its objection that the use of the term “purchase” in Howard Lombard’s deposition amounted to a legal conclusion and was therefore inadmissible. Even if the statement by Lombard was excluded, appellee has failed to establish, as a matter of law, appellant’s lack a continuing cause of action against it originating on the date of the accident. Appellee’s cross-point of error is overruled.

The judgment of the trial court is REVERSED and the cause REMANDED for a trial on the merits.


author: UTTER, Justice.

text:
    D. Wayne COLLINS, et al., Appellants, v. CITY OF EL CAMPO, Texas, et al., Appellees.
    No. 13-83-528-CV.
    Court of Appeals of Texas, Corpus Christi.
    Oct. 25, 1984.
    Rehearing Denied Nov. 20, 1984.

      Dayle Bebee, Renea Hicks, Advocacy, Inc., Austin, for appellants.
    Tom Robins, Victoria, Wilson M. Rutherford and Richard B. Collins, El Campo, for appellees.
    Before UTTER, YOUNG and KENNEDY, JJ.
   OPINION

UTTER, Justice.

Three sets of plaintiffs (The City of El Campo (City), Subdivision Plaintiffs and Non-Subdivision Plaintiffs) brought suit against appellants to permanently enjoin the use of the Collins’ property as a residence for four unrelated, mentally retarded men and their supervising houseparents. The City and the Non-Subdivision Plaintiffs, who own four homes in a neighboring subdivision and within close proximity to the Collins’ property, claimed that the use of the residence as a “group home” violated the City’s zoning ordinance. The Subdivision Plaintiffs, who own eight homes in the same subdivision, claimed that the use of the residence as a “group home” violated the subdivision’s restrictive covenant as well as the City’s zoning ordinance. In addition to seeking a permanent injunction, the Subdivision Plaintiffs also sought special damages and attorney’s fees for their enforcement of the restrictive covenant.

After a non-jury trial, the trial court found that the use of the Collins’ property was in violation of both the zoning ordinance and the restrictive covenant and granted the plaintiffs’ request for permanent injunction. The trial court further awarded special damages and attorney’s fees to the Subdivision Plaintiffs. We reverse the judgment of the trial court.

The Collinses are the owners of residential property located in the Weslayan Terrace Subdivision in El Campo, Texas. On August 15, 1982, the Collinses, as lessors, leased their property to the Advisory Board of the El Campo Area Adult Center for the Developmentally Disabled, Inc., for the purpose of establishing a group home for not more than four mentally retarded adults, plus one supervising couple. In September, 1982, the four unrelated, mentally retarded men, along with their two supervising houseparents, moved into the house on the Collins’ property. The same four men, plus their two houseparents, have been living in the home since September, 1982. Even though the four men are free to move out of the home at their discretion, they have chosen not to do so. The evidence indicates that the living arrangement is a permanent and not a temporary one.

The establishment of the home was intended to provide a “home-like” atmosphere within the community for the “the deinstitutionalization” or “normalization” of the four mentally retarded men. The purpose of the home was to use daily living experiences to help the mentally retarded residents learn to live within a normal home-living situation. The evidence shows that the four men and their houseparents reside together in the home and function as a “single housekeeping unit”. The houseparents have one bedroom, and two men share each of the other two bedrooms. The household chores, including dusting, sweeping, making their beds, washing clothes, making menus, grocery shopping and preparing meals, are shared among everyone in the home. The household members plan their activities together.

The Collins’ house is a single-story brick structure with a large front yard and a fenced-in back yard. It is undisputed that the home structure was designed for use as a “single-family dwelling”. Architecturally speaking, the home structure is similar to other “single-family dwelling” structures in the same neighborhood.

At the time of the alleged violation of the City’s zoning ordinance, the home was situated within an area zoned by the City as an “R-l” Single-Family Residence District. Section 6 of the City of El Campo Zoning Ordinance, in pertinent part, provided:

Part II. DISTRICT USE AND AREA REGULATIONS
Section 6. “R-l” Single-Family Residence District
6-1. The regulations set forth in this section or set forth elsewhere in this ordinance when referred to in this section, are the regulations in the “R-1” Single-Family Reidence (sic) District.
Use regulations: A building or premise shall be used only for the following purposes:
A. One Family Dwelling.

Section 2-15 of the zoning ordinance defined a “single-family dwelling” as follows:

2-15. Dwelling, Single-Family: A building designed for or occupied exclusively by one (1) family. (Emphasis added.)

In their first point of error, appellants contend that the zoning ordinance should be interpreted to where the “One Family Dwelling” use regulation of Section 6-1 can be satisfied through one of two alternative ways: the dwelling must be (a) “designed for ... one (1) family” or (b) “occupied ... by one (1) family”, pursuant to the definition of the term “single-family dwelling,” as set forth in Section 2-15 of the zoning ordinance.

In construing a municipal ordinance, the primary duty of a court is to carry out the intentions of the municipal legislative body. Bolton v. Sparks, 362 S.W.2d 946 (Tex.1962). The same rules apply to the construction of municipal ordinances as apply to the construction of statutes. Mills v. Brown, 159 Tex. 110, 316 S.W.2d 720 (1958). In construing a statute or ordinance, a court must look to the wording of the entire statute or ordinance, not to just one word or phrase therein, in order to determine the underlying intent. Citizens’ Bank of Bryan v. First State Bank, Hearne, 580 S.W.2d 344 (Tex.1979); Ex Parte Roloff, 510 S.W.2d 913 (Tex.1974); Jackson County Hospital District v. Jackson County Citizens for Continued Hospital Care, 669 S.W.2d 147 (Tex.App.—Corpus Christi 1984, no writ).

If the language of the statute or ordinance is susceptible of two constructions, as in the instant case, then the construction of the statute or ordinance which will carry out the manifest purpose of the statute or ordinance should be followed. Citizens’ Bank of Bryan v. First State Bank, Hearne, 580 S.W.2d 344 (Tex.1979).

It is clear that the Collins’ home meets the definition of a “One Family Dwelling” or “single-family dwelling,” as defined in Section 2-15 of the zoning ordinance; however, in accordance with the manifest purpose and the clear intention of the El Campo municipal legislative body behind the enactment of the zoning ordinance, it is not the structure upon but the use of the property within a “R-l” Single-Family Residence District which is restricted. Such manifest purpose and intention are clearly evident from the language of Section 6-1 itself, which, in pertinent part, mandates the following:

Use regulations: A building or premises shall be used only for the following purpose:
A. One Family Dwelling.

(Emphasis added.)

Therefore, the fact that the Collins’ house was “designed for ... one (1) family” does not satisfy the use restrictions of the zoning ordinance, absent the property’s actual use as a “One Family Dwelling” or “single-family dwelling.” Appellants’ first point of error is overruled.

In their second point of error, appellants contend that the use of their property complied with the restrictions of the zoning ordinance because the house was occupied by one “family,” as defined in the zoning ordinance. Section 2-18 of the zoning ordinance defined “family” as follows:

2-18. Family: One or more persons occupying a dwelling and living as a single housekeeping unit and doing their own cooking on the premises, as distinguished from a group occupying a boarding, lodging house, or hotel, as herein defined.

There is no requirement in Section 2-18 that the parties occupying a dwelling and living as a “single housekeeping unit” be related by blood or marriage.

While the home may be properly called a “group home,” we hold that it is clear that the home does not qualify as a boarding house, lodging house or hotel, as defined in the zoning ordinance, and which are prohibited in a “R-l” Single-Family Residence District.

The evidence presented at trial clearly demonstrated that the four unrelated men, who are mentally retarded, plus their two supervising houseparents, constitute a “family,” as defined in Section 2-18 of the zoning ordinance. See Mongony v. Bevilacqua, 432 A.2d 661 (R.I.1981); Oliver v. Zoning Commission, 31 Conn.Sup. 197, 326 A.2d 841 (1974); Saunders v. Clark County Zoning Department, 66 Ohio St.2d 259, 421 N.E.2d 152 (1981); Costley v. Caromin House, Inc., 313 N.W.2d 21 (Minn.1981); Linn County v. City of Hiawatha, 311 N.W.2d 95 (Iowa 1981); Missionaries of Our Lady of La Salette v. Village of Whitefish Bay, 267 Wis. 609, 66 N.W.2d 627 (1954); Douglas County Resources, Inc. v. Daniel, 247 Ga. 785, 280 S.E.2d 734 (1981); Carroll v. City of Miami Beach, 198 So.2d 643 (Fla.Dist.Ct.App.1967). Appellants’ second point of error is sustained.

At the time of the alleged violations, a restrictive covenant was imposed upon the lots, including the Collins’ property, in Weslayan Terrance Subdivision. The restrictive covenant, in pertinent part, provided:

USE OF LAND
1.Said lot shall be used for residential purposes only, and nothing shall be done thereon which may be or become an annoyance or nuisance to the neighborhood and no part of said premises shall be used for the commercial treatment of tuberculosis or- any other contagious or infectious disease ...
ARCHITECTURAL RESTRICTIONS
1. No more than one family dwelling shall be erected on one lot as per plat of said addition.
2. All necessary or desired garage, servants quarters, laundries, storage buildings and another outbuildings may be constructed subject to the other provisions of these general restrictions.
3. On all residential building lots, no structures shall be erected thereon other than one single family dwelling not to exceed two stories in height and a private garage for not more than four cars, servant or guest quarters, storage room and laundry room; provided, however, that no garage, servant quarters, storage and laundry rooms, shall be erected on any one family residential building lot simultaneously with or subsequent to the building a single family dwelling thereon in keeping with these restrictions. (Emphasis added.)

In their third point of error, appellants contend that the restrictive covenant should be construed to require that the property be “used for residential purposes only,” without qualification. Appellants note that the restrictive covenant is divided into two basic parts, as evidenced by the headings “USES OF LAND” and “ARCHITECTURAL RESTRICTIONS.” Appellants further note that the term “single family” appears only within the part of the restrictive covenant entitled “ARCHITECTURAL RESTRICTIONS” and suggest that, each time the term “single family” appears therein, it is used as an adjective describing a structure and not a use of a structure. Consequently, appellants argue that the only restricted use, which is imposed on the property through the “USES OF LAND” part of the restrictive covenant, is that the property be “used for residential purposes only,” without qualification.

A restrictive covenant must be construed strictly. If there is any ambiguity in the terms of the restrictions or substantial doubt of the meaning of such terms, such ambiguity or substantial doubt, as a general rule, should he resolved in favor of the freer use of the property and against the restrictions. Davis v. Huey, 620 S.W.2d 561 (Tex.1981); Southampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516 (1958); Travis Heights Improvement Association v. Small, 662 S.W.2d 406 (Tex.App.—Austin 1983, no writ). However, the general rule stated above should not be applied in such a way as to defeat the clear intent and the plain and unambiguous purpose expressed in the restriction. Shaver v. Hunter, 626 S.W.2d 574 (Tex.App.—Amarillo 1981, writ ref’d. n.r.e.); See Davis v. Huey, 620 S.W.2d 561 (Tex.1981); Stephenson v. Perlitz, 532 S.W.2d 954 (Tex.1976).

Appellees argue that the same issue was presented in Shaver v. Hunter, 626 S.W.2d 574 (Tex.App.—Amarillo 1981, writ ref’d. n.r.e.), wherein the Amarillo Court of Appeals stated:

The covenant in question provides that all lots shall be used for residential purposes only and states that a “residence shall be construed to be a single family dwelling.”

Shaver v. Hunter, 626 S.W.2d at p. 576-577.

However, the Amarillo Court of Appeals in Shaver v. Hunter did not quote in its opinion the pertinent provisions of the subject restrictive covenant. The only statement regarding the contents of the restrictive covenant, which was before the Amarillo Court, was that the provisions of the restrictive covenant were “identical in effect” to the restrictive covenant in Davis v. Hinton, 374 S.W.2d 723 (Tex.Civ.App.—Tyler 1964, wit ref'd. n.r.e.). In Davis v. Hinton, the subject restrictive covenant was quoted, as follows:

“1. All lots in the Tract shall be known and described as residential lots. No structure shall be erected, altered, placed or permitted to remain on any residential building plot other than the 1 detached single-family dwelling not to exceed two stories in height and a private garage for not more than two cars and other necessary outbuildings incidental to single-family use”;
“3. No obnoxious or offensive trade or activity shall be carried on upon any lot nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.”

Davis v. Hinton, 274 S.W.2d at pp. 724-725.

In analyzing the opinions in both Shaver v. Hunter and Davis v. Hinton, it is clear that both the Amarillo Court and the Tyler Court based their opinions on the failure of the parties to use the property as “single-family” residences as set forth in the restrictive covenants. Both Courts emphasized the fact that it was not the form or character of the structure but the actual use of the structure which determined whether there was a violation of the subject restrictive covenants.

Unlike the restrictive covenants in Davis v. Hinton and Shaver v. Hunter, the only references to the term “single-family dwelling” in the restrictive covenant in the instant case appears in the part of the restrictive covenant entitled “ARCHITECTURAL RESTRICTIONS,” the provisions of which obviously were intended to prescribe the form or character of any structure to be built upon the property. The only restriction imposed on the use of the property appears in the part of the restrictive covenant “USES OF LAND,” which provides that the subject property shall be “used for residential purposes only.” It is undisputed that the home structure in question was designed for use as a “single-family dwelling,” and, architecturally speaking, the home structure is similar to other “single-family dwelling” structures in the same neighborhood. Since the evidence shows that the home is “used for residential purposes only” by the four men and their supervising parents, there is no violation of the pertinent provisions of the restrictive covenant. Appellants’ third point of error is sustained.

In their fourth point of error, appellants contend that the trial court erroneously failed to conclude that the people occupying the property constituted a “single family”; therefore, if the restrictive covenant in question required that the property be used as a “single-family dwelling,” the use of the property would have been permissible under the restrictive covenant. In light of our disposition of appellants’ third point of error wherein we hold that the subject property must be “used for residential purposes only,” we need not consider appellants’ fourth point of error.

In their fifth through seventh points of error, the appellants assert that (1) the restrictive covenant in question is unreasonable and against public policy thereby making it unenforceable, (2) the zoning ordinance is void for vagueness under the state and federal constitutions and (8) the zoning ordinance and the restrictive covenant are invalid under the due process clauses of the state and federal constitutions.

Since we have held that appellants were not in violation of the zoning ordinance and the restrictive covenant, there exists no necessity for us to address the issue of the enforceability of the restrictive covenant or the issue of the constitutionality of either the zoning ordinance or the restrictive covenant. A court will not pass on the constitutionality of a statute if the particular case before it may be decided without doing so. San Antonio General Driver’s, Helpers Local No. 657 v. Thornton, 156 Tex. 641, 299 S.W.2d 911 (1957). A court will not consider a constitutional issue if the matter can be resolved on another basis. Horton v. Horton, 625 S.W.2d 78 (Tex.App.—Ft. Worth 1981, writ ref’d. n.r.e.); Texas State Board of Public Accountancy v. Fulcher, 515 S.W.2d 950 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d. n.r.e.). Therefore, we decline to consider appellants’ contentions regarding the enforceability of the restrictive covenant and the constitutionality of the zoning ordinance and the restrictive covenant.

In their eighth point of error, appellants assert that the trial court erred in awarding attorney’s fees to the Subdivision Plaintiffs because the statute, which authorizes such an award, is unconstitutional as being violative of federal equal protection and state equal protection and due process guarantees. In their ninth point of error, appellants assert that the trial court erred in awarding monetary damages to the Subdivision Plaintiffs, who allegedly failed to “plead and seek” such damages.

However, by having sustained appellants’ second and third points of error, we have concluded that the trial court’s findings that the use of appellants’ property violated both the zoning ordinance and the restrictive covenant were improper bases for the permanent injunction granted by the trial court in its judgment; therefore, the trial court erred in awarding attorney’s fees and monetary damages, as well as in granting the permanent injunction. We need not consider appellants’ eighth and ninth points of error.

We REVERSE the judgment of the trial court and order that the permanent injunction be dissolved.

YOUNG, J., not participating.

      . 2-8. Boarding House: A building other than a hotel where, for compensation and by arrangement, meals or lodging and meals are provided by three (3) or more persons, but does not exceed twenty (20) persons.
      2-26. Hotel: A building in which lodging or boarding and lodging are provided and offered to the public for compensation and in which ingress and egress to and from all rooms is made through an inside lobby or office supervised by a person in charge at all hours. As such, it is open to the public in contradistinction to a boarding house, a lodging house, or an apartment which are here and separately defined.
      2-30. Lodging House: A building other than a hotel where lodging for three (3) or more persons is provided for compensation pursuant to a previous arrangement and not to anyone who may apply.


author: SEERDEN, Justice.

text:
    A.K.P., Appellant, v. J.A.P., Appellee.
    No. 13-83-398-CV.
    Court of Appeals of Texas, Corpus Christi.
    Nov. 20, 1984.

      Rita Beth Whatley, McAllen, for appellant.
    Louis C. Brown, Mission, for appellee.
    Before NYE, C.J., and SEERDEN and KENNEDY, JJ.
   OPINION

SEERDEN, Justice.

This appeal is brought from an order modifying appellee’s visitation rights with his daughter, who was born on October 12, 1975. The Decree of Divorce was signed on August 13, 1981, and appellee’s posses-sory rights in connection with his daughter were set out as follows:

“... Said possessory conservator shall have the possession of said child ... at reasonable times and under reasonable circumstances and conditions on the second (2nd) and fourth (4th) weekends of each month, from Saturday morning at 8:00 A.M. until 6:00 P.M., and at such other times as the parties may agree upon. The possessory conservator is to pick up said child at the managing conservator’s home at the time specified or agreed upon and return said child to the managing conservator’s home at no later than 6:00 P.M.”

On October 8, 1982, appellee sought to gain expanded access to his daughter by filing a motion to modify the possessory arrangement, alleging that the circumstances of the children (sic) or a person affected by the order to be modified had materially and substantially changed since the entry of the original order. Appellant denied that the circumstances of the child or a person affected by the order had materially or substantially changed, denied that the requested modification was in the best interest of the child, and alleged that a modification of the Decree of Divorce would be injurious to the child because, among other things, appellee and his spouse suffered from an incurable disease from which the child might be infected.

At the hearing on appellee’s motion, the trial court properly found that the visitation rights included in the Decree of Divorce (and previously set forth in this opinion) were ambiguous. In addition, although the decree also provided for visitation rights “at such other time as the parties may agree upon,” counsel for appellant conceded that appellant would not consent to the “other times” once she discovered that appellee and his present wife had herpes. The trial court was thus authorized to find also that the visitation provisions of the original decree were unworkable. After the hearing, the trial court granted appellee vastly expanded access to the child.

In her first point of error, appellant contends that appellee failed to prove that the circumstances of the child or any other person affected by the decree to be modified have materially changed since the original order. Before the 1983 amendments, and thus at all times pertinent to this case, Section 14.08(c)(2) of the Texas Family Code provided that the court could modify an order or portion of a decree that ... “sets the terms and conditions for access to or possession of a child ... if the circumstances of the child or a person affected by the order or portion of the decree to be modified have materially and substantially changed since the entry of the order or decree....” However, appellee failed to formally adduce evidence that he and appellant were unable to agree on any “other such times.” The precise issue before us is whether, considering the equitable nature of proceedings involving children, appel-lee’s failure to formally adduce evidence of material change mandates a reversal of the trial court’s action. We think not.

We note first that this case involves a modification of visitation rights rather than a change of custody; the prerequisite proof of change of circumstances is much more relaxed in visitation cases. Thus, if the prior order is unworkable and inappropriate under existing circumstances, including the behavior of the parties, no further change need be shown to justify a new visitation order. Boney v. Boney, 458 S.W.2d 907 (Tex.1970); Hanna v. Turner, 556 S.W.2d 866 (Tex.Civ.App.—Corpus Christi 1977, no writ). This rule has now been codified and incorporated in the TEX. FAM.CODE ANN. § 14.08(c)(3)(A) and (B) (Vernon Supp.1984).

At the beginning of the hearing on the motion, the judge admonished the parties to conduct the proceedings on the “meat of the thing and ... then we can put our arguments together and I can better rule on what I am supposed to rule on.... ” Counsel for appellant expressed the hope that “we do not have to argue all day.” The conduct and statements of both counsel for appellant and counsel for appellee made it clear that the reason the parties were in the courthouse was because appel-lee and his present wife had become infected with herpes 2 virus and appellant wanted the child exposed to the virus as little as possible.

Thus, when considered in its entirety, the record affirmatively reflects that since the original Decree of Divorce, appel-lee had contracted herpes 2, after which appellant determined that appellee should see the child as infrequently as possible. It is axiomatic that in cases involving possession of and access to children, the best interest of the child shall always be the primary consideration. TEX.FAM.CODE ANN. § 14.07(a) (Vernon 1975). Technical rules and practice are of little importance when the welfare of a child and the relationship of child and its parent are at stake. Leithold v. Plass, 413 S.W.2d 698 (Tex.1967); In re Marriage of D, 511 S.W.2d 606 (Tex.Civ.App.1974, no writ); Wood v. Wood, 510 S.W.2d 399 (Tex.Civ.App.1974, no writ). Although no formal stipulations as to certain facts were made to the trial court, the court could properly consider the material unchallenged statements and representations made by the attorneys for the parties. Attorneys are officers of the court. They are members of an ancient and honorable profession who are allowed to participate in the trial of cases not only to advance the personal interest of their respective clients, but also because it is presumed that they can be of assistance to the court in bringing about justice between the parties. Texas Employers’ Insurance Association v. Cloud, 120 S.W.2d 903 (Tex.Civ.App.1938, writ dism’d). Considering the record in its entirety, as well as the pleadings, we find that the evidence is sufficient to show a change in circumstances. Appellant’s first point of error is overruled.

In her second and third points of error, appellant contends not only that ap-pellee failed to prove that the modification was in the best interest of the child, but that the evidence, in fact, shows that the modification was not in the best interest of the child. However, the trier of facts is in a better position than the Court of Appeals to determine the extent and duration of visitation and access privileges that will be in the best interest of the child since he faces the parties and their witnesses, observes their demeanor, and has the opportunity to evaluate the claims made by the parties, all of which are difficult to accurately weigh and determine by a mere reading of the statement of facts. Little v. Little, 590 S.W.2d 620 (Tex.Civ.App.1979, no writ). While we realize that the situation presented in this case may well raise emotional and conflicting opinions, we hold that the trial court acted within its discretionary authority and we overrule appellant’s second and third points of error.

In her fourth and fifth points of error, appellant contends that the trial court used an improper criteria and denied appellant due process by basing its decision on its prior belief. We have reviewed the record and believe that our previous discussion demonstrates that the trial court was well aware of the basis of the dispute between the parties and made his decision based upon a proper use of his discretion. The fourth and fifth points of error are overruled.

In a supplemental brief under her fifth point of error, and in her sixth and seventh points of error, appellant also contends that the trial court erred by considering issues not alleged in appellee’s pleadings. Appellant specifically challenges the trial court’s finding of fact and conclusion of law that the visitation rights as set out in the original Decree of Divorce were “ambiguous.” Appellant contends that “ambiguity” was not pleaded, was not supported by any offered evidence, and was not a proper condition for modification. Similarly, in her eighth point of error, appellant contends that the trial court “abused its discretion in modifying an order under the pretext of clarification thereof.” The trial court filed a conclusion of law in which it found that the “Court has the continuing jurisdiction ... to clarify its prior decree and to modify it in respect to visitation rights of the possessory conservator.”

We hold that the trial court properly found, in both its findings of fact and conclusions of law, that the visitation rights were unworkable as set out in the original Decree of Divorce, and that the enlarged visitation time would be in the best interest of the child. This court will sustain a judgment if it is correct on any theory of the law applicable to the record. Southard v. Southard, 567 S.W.2d 570 (Tex.Civ.App.—Tyler 1978, no writ). Again, we hold the modification in visitation privileges ordered by the trial court was within its discretionary authority.

All of appellant’s points of error are overruled and the judgment of the trial court is affirmed.


author: HALL, Justice.

text:
    Cheryl Ann HOLDRIDGE, Appellant, v. The STATE of Texas, Appellee.
    No. 10-84-001-CR.
    Court of Appeals of Texas, Waco.
    Dec. 13, 1984.

      Gerald E. Bourque, Bellaire, for appellant.
    Jeffrey K. Brown, County Atty., Bryan, for appellee.
   HALL, Justice.

Appellant Cheryl Ann Holdridge was charged by complaint and information with committing the offense of prostitution by offering to engage in sexual intercourse for a fee. V.T.C.A., Penal Code § 43.-02(a)(1). The offense was enhanced to a Class A misdemeanor with allegations of a prior conviction for prostitution. Penal Code § 43.02(c). The punishment for a Class A misdemeanor is a fine not to exceed $2,000.00, or confinement in jail not to exceed one year, or both the fine and confinement. Penal Code § 12.21. Pleading not guilty, appellant was found guilty by a jury, and the court assessed her punishment at a fine of $500.00 and confinement in jail for a term of sixty days.

Appellant seeks reversal on two grounds of error asserting (1) the record affirmatively disproves the State’s allegation of venue, and (2) the trial court erroneously denied appellant’s pretrial motion for discharge under the Speedy Trial Act. We overrule these contentions, and we affirm the judgment.

The complaint and information alleged that appellant committed the offense in question “in the County of Brazos, State of Texas.” The only evidence on venue was the testimony of the State’s complaining witness that the offense was committed at “the Mini-Movie Hot Tub located on Highway 6 south of Brazos County ... outside the limits of College Station.”

Appellant raises the issue of venue on appeal for the first time. Vernon’s Ann. C.C.P. art. 44.24(a) provides, “The courts of appeals and the Court of Criminal Appeals shall presume that the venue was proved in the court below ... unless such [matter was] made an issue in the court below, or it otherwise affirmatively appears to the contrary from the record.” We construe the phrase “or it otherwise affirmatively appears to the contrary from the record” to mean affirmative and conclusive proof in the record that the venue of prosecution was improperly laid.

C.C.P. art. 13.04 provides, “An offense committed on the boundaries of two or more counties, or within 400 yards thereof, may be prosecuted and punished in any one of such counties”; and C.C.P. art. 21.06 provides, “When the offense may be prosecuted in either of two or more counties, the indictment may allege the offense to have been committed in the county where the same is prosecuted, or in any county or place where the offense was actually committed.” Thus, under articles 13.04 and 21.06, it was not error for the charging instruments in our case to aver that the offense occurred in Brazos County if in fact it occurred south of Brazos County but within 400 yards of the boundary of Brazos County. Rushing v. State, 546 S.W.2d 610, 611 (Tex.Cr.App.1977).

The evidence affirmatively shows that the offense was not committed in Brazos County as alleged in the complaint and information. However, the evidence does not affirmatively show that the offense was not committed within 400 yards of the boundary of Brazos County. If the record had not contained affirmative evidence that the offense was not committed within Brazos County, appellant could not have raised the issue of venue on appeal because it was not raised in the trial court, and we would have presumed that venue was proved in the court below in accordance with the provisions of art. 44.24(a), supra. Since the record does not affirmatively show that the offense was not committed within 400 yards of the boundary of Brazos County, and such location would have permitted prosecution in Brazos County under the provisions of art. 13.04, supra, and venue was not raised in the trial court, appellant may not raise the issue of such proof on appeal and we must presume such venue proof was made in the trial court. Appellant’s first ground of error is overruled.

Appellant was entitled to have the complaint and information set aside, and to be discharged from further prosecution, if the State was not ready for trial within ninety days from the date of her arrest on April 11, 1983. Vernon’s Ann.C.C.P. art. 32A.02, Sec. 1(2), Sec. 2(a) and art. 28.061. At the pretrial hearing on appellant’s motion for discharge under the Act, held on July 22, 1983, the prosecutor declared that the State was ready for trial at a prior trial setting on June 10,1983, but that the State was not ready for trial at the time of the pretrial hearing on July 22nd. The case was continued to July 28, 1983, at which time it was tried. The State’s declaration of readiness on June 10th was not rebutted by appellant. Accordingly, this declaration carried a presumption of readiness until the time the State declared it was not ready on July 22nd. Barfield v. State, 586 S.W.2d 538, 542 (Tex.Cr.App.1979); Canada v. State, 660 S.W.2d 528, 529 (Tex.Cr.App.1983). At the hearing on July 22nd, the State also conceded it was not ready for trial on July 18th. Thus, the only times to be deducted from the State’s ninety days for readiness were the sixty days from April 11th to June 10th, and the ten days from July 18th until July 28th, when the trial was held. This seventy days from the ninety days allowed shows the State was ready for trial well within the time limitation required by the Speedy Trial Act. Appellant’s second ground of error is overruled.

The judgment is affirmed.


text:
    Frank GONZALES, Appellant, v. The STATE of Texas, Appellee.
    No. 10-84-046-CR.
    Court of Appeals of Texas, Waco.
    Dec. 13, 1984.

      James W. Locke, Law Office of M. Charles Gandy, P.C., Bryan, for appellant.
    Bill R. Turner, Dist. Atty., Bryan, for appellee.
   HALL, Justice.

Appellant Frank Gonzales was adjudged guilty of the offense of possessing a shotgun with a barrel length of less than eighteen inches, proscribed as a felony of the second degree in V.T.C.A., Penal Code § 46.06(a) and (e), following appellant’s waiver of jury trial and plea of guilty to an indictment charging the offense. Punishment was assessed by the court at confinement in the Texas Department of Corrections for a term of eight years.

In his single ground for reversal appellant assigns error to the trial court’s pretrial order, after hearing, denying appellant’s motion to set aside the indictment for failure of the State to provide a speedy trial. We overrule this contention, and we affirm the judgment.

Appellant was arrested for the offense in question on September 23, 1983, and placed in the Brazos County Jail. At that time appellant was on parole from the Texas Department of Corrections stemming from a prior felony conviction in March, 1981. On November 17, 1983, appellant and his attorney signed a waiver of indictment for the offense, which was filed with the clerk that day; and on the same day the State’s attorney executed and filed with the clerk a felony information charging the offense. The felony information, like the indictment to which appellant later pleaded, set forth at its top that the charge was “possession of prohibited weapon,” and alleged in its particulars that appellant did “intentionally and knowingly possess a prohibited weapon, to-wit: a short-barrel firearm, namely a shotgun with a barrel length of less than eighteen (18) inches.” After identifying the case by style and number and the District Court of filing, the waiver of indictment signed by appellant and his attorney set forth the following above their signatures:

“Now comes Frank Gonzales, defendant herein, accused of the non-capital felony offense of Possession of a Prohibited Weapon, and represented by his attorney and having been advised by his attorney and by the Court of the nature of the charge against him and of his right not to be tried in this case except on the indictment of a Grand Jury, hereby in open court and in writing voluntarily and knowingly waives his right to be prosecuted by a Grand Jury indictment and announces his election and consent to be charged by information.”

Following the signatures of appellant and his attorney on the waiver of indictment form, provision was made for an order signed by the trial court approving the waiver and approving prosecution by information, but this provision was left unexe-cuted.

The waiver of indictment and the felony information were executed and filed by the parties as a part of a plea bargain agreement. On November 23, 1983, the court notified the parties that the plea agreement would be accepted and that the case was set for trial on December 14, 1983. Meanwhile, however, appellant’s parole was revoked, and he was transferred from jail to the Texas Department of Corrections by the Sheriff on December 2, 1983. This transfer was made without notice to or the knowledge of defense counsel or the prosecutor. After learning of this transfer, the prosecutor obtained a bench warrant on December 14, 1983, for appellant’s return to Brazos County. Appellant was returned to the Brazos County Jail on January 6, 1984, and the case was reset for trial on January 10th. The State filed with the clerk a formal announcement of ready for trial on January 10th and again on January 20th. However, after appellant expressed his unwillingness to abide by the former plea agreement, the State sought and obtained an indictment from the grand jury on January 26th, charging the offense in question against appellant. This indictment contained a paragraph for enhancement of punishment.

Appellant filed a pro se motion to set aside the indictment, on the ground of denial of a speedy trial, on January 30, 1984; and another such motion, on the same ground, was filed by appellant’s trial counsel on February 8th. These motions were heard by the court on February 9th. At this hearing, the prosecutor stated that the State was prepared and ready to go to trial on November 17, 1983, and that the State had been ready at all times since. Following the hearing, appellant’s speedy trial motions were denied by the court.

Appellant’s plea of guilty to the indictment resulting in the judgment of conviction now before us was heard by the court without a jury on February 13, 1984. At this hearing, the State waived the punishment enhancement paragraph in the indictment. In connection with his plea, appellant expressly reserved his right to appeal the court’s rulings on his speedy trial motions, but this reservation is no longer necessary to provide review. Martin v. State, 652 S.W.2d 777, 779 (Tex.Cr.App.1983).

Appellant was entitled to have the indictment set aside under the Speedy Trial Act, and to be discharged from further prosecution for the offense charged in the indictment, if the State was not ready for trial within 120 days from the date of his arrest on September 23, 1983. Vernon’s Ann.C.G.P. art. 32A.02, Sec. 1(1), Sec. 2(a), and art. 28.061. However, it is settled that a declaration by the State in response to the defendant’s speedy trial motion that the State is then ready for trial and was ready at the time required by the Act is a prima facie showing of conformity to the Act, although this showing can be rebutted by evidence demonstrating that the State was not ready for trial during the Act’s time limit. Barfield v. State, 586 S.W.2d 538, 542 (Tex.Cr.App.1979). In our case, at the hearing on appellant’s speedy trial motions, the State declared its readiness for trial at all times since November 17, 1983; and it filed formal announcements of readiness with the clerk on January 10, 1984, and again on January 20th. Excepting the period between December 2, 1983 (when appellant was transferred to the penitentiary) and January 10, 1984 (when the State was again ready for trial), these declarations, not rebutted by appellant, establish that the State was ready for trial within the time limitation required by the Act both before and after appellant’s transfer to the penitentiary on his parole revocation and his return to the Brazos County jail on the bench warrant. Canada v. State, 660 S.W.2d 528, 529 (Tex.Cr.App.1983).

The existence of a charging instrument is a part of the State’s preparedness for trial, and evidence that the State did not have such an instrument within the time limitation required by the Act effectively rebuts the State’s declaration of readiness. Ward v. State, 659 S.W.2d 643, 647 (Tex.Cr.App.1983). In our case, appellant’s sole argument in support of his ground of error is that the felony information filed by the State on November 17, 1983, was wholly ineffective and void, and thus that the State did not have a charging instrument until the indictment was returned after the time limitation required by the Act, because appellant’s waiver of indictment was never approved by the trial court. Vernon’s Ann.C.C.P. art. 1.141 provides as follows:

“A person represented by legal counsel may in open court or by written instrument voluntarily waive the right to be accused by indictment of any offense other than a capital felony. On waiver as provided in this article, the accused shall be charged by information.” (Emphasis added).

In King v. State, 473 S.W.2d 43, 52 (Tex.Cr.App.1971) the Court of Criminal Appeals held that if an accused has not effectively waived his right to an indictment in full accordance with the statute the felony information is void, and that an indictment is still mandatory in absence of a valid waiver. The court held that for the waiver to be effective “it must be intelligently, voluntarily and knowingly given by the accused while represented by counsel.” The court recognized the clear provision of the statute that such waiver can be made “in open court or by written instrument,” although the court recommended, to avoid post-conviction problems, that it would be the better practice to have the written waiver executed in open court by the accused and his counsel after the accused has been advised of his rights by the court. Appellant has cited no authority and we have found none in support of the contention that a written waiver of indictment under art. 1.141 signed by the defendant and his counsel is not valid and cannot lend verity to the felony information based upon it unless the waiver is also signed by the court. Such written approval by the court is not required by the statute, and we hold it is not necessary. The written waiver before us states that appellant is represented by counsel, understands his rights, and waives prosecution by indictment. Appellant and his attorney signed the waiver. We hold it sufficient under the statute. Moreover, even if appellant had been placed on trial on the felony information (which is valid on its face) without an effective waiver of indictment, and had the defect been discovered, a mistrial would have been granted, and time would again begin to run, for purposes of the Speedy Trial Act, on the date of the mistrial. Art. 32A.02, Sec. 2(b). If the felony information had been found to be defective within the time limit of the Act because of an invalid waiver of indictment and had been dismissed on motion of the State, then any delay between the dismissal and the refile of a valid charging instrument would have been subject to exclusion under the Act. Art. 32A.02, Sec. 4(7); Ward v. State, 659 S.W.2d 643, 647 (Tex.Cr.App.1983).

Appellant’s ground of error is overruled. The judgment is affirmed.