author: BUTTS, Justice. CADENA, Chief Justice,

text:
    Harold H. HITT, Superintendent, Dr. William R. Elizondo, President of the Board of Trustees, Oscar Cisneros, Board Trustee, Victor Rodriguez, Superintendent-Elect, the San Antonio Independent School District, its Agents, Employees, Servants and Attorneys, Appellants, v. Frances MABRY, Plaintiff and the San Antonio Teachers Council, Intervenors, Appellees.
    No. 04-82-00397-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 26, 1985.
    See also, Tex.App, 643 S.W.2d 765.

      Roy R. Barrera, Sr., Nicholas & Barrera, Inc., San Antonio, for appellants.
    Phil Hardberger, San Antonio, for appel-lees.
    Before CADENA, C.J., and BUTTS and REEVES, JJ.
   OPINION

BUTTS, Justice.

Defendants appeal from a permanent injunction enjoining them from (1) conducting informal meetings or telephone conferences to discuss public business or public policy with regard to the San Antonio Independent School District in violation of the Texas Open Meetings Act, Texas Rev.Civ. Stat.Ann. art. 6252-17 (Vernon Supp.1985), and (2) using San Antonio Independent School District funds to disseminate political information not involving school district matters. Plaintiff Frances Mabry, a trustee of the San Antonio Independent School District, applied for a permanent injunction with a temporary restraining order and injunction. The San Antonio Teachers’ Counsel intervened as party plaintiff, requesting a permanent injunction. We modify the permanent injunction and, as modified, we affirm.

The event precipitating Mabry’s application for permanent injunction with temporary restraining order was her discovery that defendants intended to mail out a letter to all parents residing in the San Antonio Independent School District, advising recipients of their voting rights and stating the message was a service of the school district’s Board of Trustees. It was signed by the secretary of the board, Cisneros, and the president, Elizondo.

Mabry testified she believed the letter was improper because Cisneros would receive publicity for his candidacy for a judgeship and additionally, there had been no discussion of the letter in an open meeting of the board.

A temporary restraining order had been issued to prevent the distribution of the letter; however, it was dissolved before the permanent injunction trial. The distribution of the letter followed.

In his affidavit, Elizondo, president of the Board of Trustees of SAISD, acknowledged the letter at issue represented a loss of $2,000 were the district to be prohibited from issuing it. At trial, Elizondo confirmed the letter was drafted after he conducted an informal telephone poll of the Board and also admitted that any expenditures in excess of $1,000 mandate board approval. Hitt, the superintendent, testified he agreed to send out the letter only at the request of Elizondo.

A portion of the Policies, Rules and Regulations of SAISD, entitled TRANSACTING DISTRICT BUSINESS was admitted into evidence. One section of those rules provides:

1. Official Action
The Board can transact business that is binding on the District only when it is in official session, has a quorum present, and minutes are kept. Action based on decisions made by the Board, even though there is a dissenting minority of the Board, shall be binding on the whole Board and such dissenting minority made a matter of public record.

In addition to the letter, the record indicates that other matters were considered and acted upon outside mandated official sessions: (1) the hiring of Neff Limón for security reasons at a cost of $15,000, and nonrenewal of Rodriguez’s employment contract; (2) the remodeling of central administration offices at a cost of $100,000; (3) the rebuilding of Edison High School subsequent to a fire, SAISD paying $10,-000, the bulk of the cost covered by insurance, and; (4) Achievements Awards Day at Alamo Stadium at a cost of $15,000. While employment of Limón and nonrenewal of the contract of the contract of Rodriguez may be exempted by the provisions of the OMA, § 2(j) and § 2(g), pursuant to the school district’s regulations, specifically the provisions of the SAISD TRANSACTING DISTRICT BUSINESS, supra, plaintiffs could properly require public meetings on these issues. See Shackelford v. City of Abilene, 585 S.W.2d 665, 667 (Tex.1979). Defendants bring seven points of error. The first two challenge generally the validity of the injunction. In point of error three, defendants challenge section one of the injunction, infra. In points of error four through seven, defendants challenge section two of the injunction, infra. Because the language of the injunction is central to the arguments, we set out pertinent parts:

PERMANENT INJUNCTION
$ % * # $ *
It is the finding of the Court that the Defendants committed various and repeated violations of the Texas Open Meetings Act [Tex.Rev.Civ.Stat.Ann. art. 6552-17 (Supp.1982) ]. Specifically, the Defendants, individually and collectively, have held meetings and/or engaged in deliberations to discuss public business or public policy and to arrive at a decision on public business or public policy with respect to the SAN ANTONIO INDEPENDENT SCHOOL DISTRICT without compliance with Sections 2(a) and 3A of the Act; that is, such meetings and/or deliberations were held without proper notice having been given, nor were they open to the public, nor did it involve matters requiring closed or executive meetings or sessions. The Court further finds that even if such matters required closed or executive meetings or sessions, said meetings and/or deliberations were not in compliance with Sections 2(a) and 3A of the Act as no proper notice was given nor did the Presiding Officer at an open meeting or session publicly announce that a closed or executive meeting or session would be held. The Court further finds that DR. WILLIAM R. ELIZONDO, President of the Board of Trustees of the SAN ANTONIO INDEPENDENT SCHOOL DISTRICT, has on various and repeated occasions engaged in deliberations with other Member of the Board of Trustees to discuss public business or public policy and to arrive at a decision on public business with regard to the SAN ANTONIO INDEPENDENT SCHOOL DISTRICT by way of telephone conferences in violation of Sections 2(a) and 3A of the Act.
The Court specifically finds that the Defendants have violated the Texas Open Meetings Act in the past and there is a threat that they will do so in the future.
It is, therefore, ORDERED, ADJUDGED and DECREED that a Permanent Writ of Injunction be issued restraining and enjoining the Defendants, DR. WILLIAM R. ELIZONDO, President of the Board of Trustees; OSCAR CISNEROS, Secretary of the Board of Trustees; all other Members of the Board of Trustees; HAROLD H. HITT, Superintendent, VICTOR RODRIGUEZ, Superintendent-Elect; any other future Member of the Board of Trustees; their agents, employees, servants and representative of the Defendants from:
(1) Conducting any meetings or engaging in deliberations to discuss public business or public policy or in arriving at a decision on public business or public policy with regard to the SAN ANTONIO INDEPENDENT SCHOOL DISTRICT by way of telephone conferences, or by private or informal meetings.
(2) Using SAN ANTONIO INDEPENDENT SCHOOL DISTRICT funds to disseminate political information, not involving school district matters.
* * * * * *

The first question raised is whether the injunction should apply not only to the Board of Trustees but also to its staff. Defendants argue that the OMA applies only to governmental bodies but not to staff. The words of the injunction clearly enjoin the Board and its staff, the staff being enjoined only when it becomes an integral part of the governmental body. Under the OMA, a governmental body is definitionally the board of trustees of every school district. § 1(c). Section 2(a) of the OMA mandates that a governmental body shall convene in open meetings, except as otherwise provided by the Act or the Constitution. If the meeting is composed only of staff, there is no open meeting requirement. See Op.Tex.Att’y Gen. H-772 (1976). However, when a meeting involves members of both the Board and the staff, an open meeting may be required. We do not agree with defendants that no reason exists to require the meeting to be open when staff is present. It is to be remembered also TEX.R.CIV.P. 683 provides that an injunction is binding “upon the parties to the action, their officers, agents, servants, employees, and attorneys ...” Mindful of this rule, we hold that an injunction invoking the OMA requirements properly encompassed both the Board of Trustees and its staff under the facts of this case. Point of error one is overruled.

Defendants next complain that more parties are enjoined than prayed for in the application for injunction. In its application plaintiff Mabry prays that only William Elizondo and Oscar Cisneros be enjoined from engaging in telephone surveys to conduct the official business of the Board. However, intervenor’s petition contains allegations which include those other individuals not mentioned in plaintiff's application. But it does not include future members of the Board. In the permanent injunction itself, “any other future members of the Board” are also enjoined.

Persons seeking the extraordinary remedy of injunction must be specific in pleading the relief sought, and the courts are without authority to grant relief beyond that so specified. San Augustine Independent School District v. Woods, 521 S.W.2d 130, 132 (Tex.Civ.App.—Tyler 1975, no writ). On the other hand, an injunction should be broad enough to prevent a repetition of the evil sought to be corrected. San Antonio Bar Association v. Guardian Abstract & Title Co., 156 Tex. 7, 291 S.W.2d 697, 702 (1956). It is noteworthy that section three of the OMA specifically provides for the remedy of injunction to prevent violations or threatened violations of the Act. Since the Board of Trustees, by nature, is always in flux, it would be impracticable to issue a permanent injunction enjoining only present members of the Board. In fact, there have been recent changes. See 31 TEX.JUR.2d Injunctions § 11 (1962). An injunction being an equitable remedy, we have weighed the respective conveniences and hardships of the parties and balanced the equities. We accordingly determine the injunction will continue. Further, we determine that the parties named in the judgment shall continue to be enjoined. Id. at § 4. See Lower Nueces River Water Supply District v. Live Oak County, 312 S.W.2d 696, 701 (Tex.Civ.App.—San Antonio 1958, writ ref’d n.r.e.).

Although defendants also complain in point of error two that the prayer does not articulate the relief as granted, the petitions of Mabry and the Teachers’ Council both address alleged violations of the OMA. As announced in the judgment, the trial court and the parties treated the trial as one based upon several violations of the OMA in addition to the specific violations contained in the prayer. The general tenor of the trial was that all the matters set forth in the judgment were before the court. At no time did defendants complain by special exception or by objection that the scope should be limited or that the matters could not be heard. Any defect in the pleadings or any objection to limit the scope of the injunction was waived because it was not brought to the attention of the trial court before the rendition of the judgment. J.D. Abrams, Inc. v. Sebastian, 570 S.W.2d 81, 84 (Tex.Civ.App.—El Paso 1978, writ ref’d n.r.e.); TEX.R.CIV.P. 90; 67. Point of error two is overruled.

In point of error three, defendants challenge the scope of the acts enjoined in section one of the injunction. We agree with defendants and find that barring all members of the Board as well as employees of the SAISD from the use of telephone conferences to discuss public business is too broad. A decree of injunction must not be so broad as to enjoin a defendant from activities which are a lawful and proper exercise of his rights. Villalobos v. Holguin, 146 Tex. 474, 208 S.W.2d 871, 875 (1948). We doubt the existence of any legal authority, nor has any been cited, that would authorize the enjoining of school administrators, for example, from discussing public business on the telephone or at an informal meeting. San Antonio Independent School District v. Woods, 521 S.W.2d 130, 133 (Tex.Civ.App.—Tyler 1975, no writ). We, therefore, limit and modify the acts to be enjoined in section one of the permanent injunction to the following:

Arriving at a decision involving public business or public policy affecting SAISD by way of private informal meetings or conferences, including telphone polls of the members of the Board, and in conjunction therewith;
(1) Failing to give proper notice of the meetings of SAISD Board, as required in § 3A(e)
(2) Failing to open to the public every regular, special or called meeting of the Board of Trustees as required in § 2(a)
(3) Failing to announce at an open meeting of the SAISD Board the topic(s) to be discussed at a closed or executive session, as required in § 2(a).

In point of error four, defendants argue that “[T]he trial court erred in entering section two of the injunction because there is no legal or factual basis upon which to grant such relief.” See § 2, supra. We construe this as a contention that there is no evidence or insufficient evidence to support section two.

The standards of review are well known. In deciding a no evidence point, which is a question of law, we may consider only that evidence and the reasonable inferences therefrom which, When viewed in its most favorable light, support the court finding, and we must reject all evidence or reasonable inferences to the contrary. Glover v. Texas General Indemnity Co., 619 S.W.2d 400, 401 (Tex.1981). After deciding a no evidence point, the court then considers the insufficient evidence point by examining all of the evidence. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). When the judgment to be reviewed is an injunction, the evidence must show that the activity complained of is one which would merit a grant of relief in the form of an injunction and, further, that there has been a settled course of conduct by the defendant, continuing to the time of trial. Texas Pet Foods, Inc. v. State, 529 S.W.2d 820, 827 (Tex.Civ.App.—Waco 1974, writ ref’d n.r.e.). If there is proof of these requisites, the trial court may assume the complained of activity will continue, absent proof to the contrary. Scott v. Williams, 607 S.W.2d 267, 271-72 (Tex.Civ.App.—Texarkana 1980, writ ref’d n.r.e.).

In our review, we find the only evidence presented at trial upon which to base an injunction prohibiting SAISD’s dissemination of political information not involving school district matters at school district expense is the above noted letter signed by the president and secretary. But the trial court dissolved the temporary restraining order, and the letter was mailed out to the parents before the injunction trial. The evidence at trial concerned a matter which was a fait accompli. While this court does not condone the action, it is plain that an injunction cannot issue to prohibit what has already been accomplished. There is nothing upon which a permanent injunction may issue when there is nothing upon which it may operate. Carter v. White, 260 S.W. 276, 277 (Tex.Civ.App.—San Antonio 1924, no writ). Since the record does not reflect any evidence that other acts of disseminating political information not involving school district matters at school district expense have occurred or will likely occur in the future, we find there is no basis for this order of injunctive relief. See Combined American Insurance Co. v. City of Hillsboro, 421 S.W.2d 488 (Tex.Civ.App.—Waco 1967, writ ref d n.r.e.). A permanent injunction based upon mere speculation that one act which has occurred in the past may possibly occur in the future would not be proper. The record is devoid of evidence to support the injunctive relief order in section two of the permanent injunction. Point of error four is sustained. We accordingly set aside section two of the injunction, thereby obviating the necessity to address points of error five through seven.

Having modified section one and set aside section two of the injunction, we affirm the judgment as modified.

CADENA, Chief Justice,

dissenting.

The injunction is too broad, even as modified by the majority opinion, and goes beyond the relief prayed for by plaintiffs.

Insofar as the Open Meetings Act is concerned, the petition alleges that two defendants, Elizondo, President of the Board of Trustees, Cisneros, Secretary of the Board, and Board members Ward and Lopez “have engaged in a continuous and repetitive pattern of illegal informal telephone polls ... to conduct” School District Business. The petition further alleges that such informal telephone polls “discuss public issues and result in meetings that had not been properly noticed with date, time, place and subject matter,” and that the continued use of such polls is a “conspiracy to circumvent the provisions of the Act by meeting in numbers less than a quorum for the purpose of secret deliberations.”

In the prayer plaintiff sought to permanently enjoin Elizondo and Cisneros and “their agents, employees, servants or attorneys from using telephone surveys or polls to conduct any business ...” of the School District. This is the only prayer for injunc-tive relief which can be said to have even a remote connection with the provisions of the Open Meetings Act.

The majority opinion correctly points out that one seeking injunctive relief must be specific in pleading the relief sought, and that a trial court has no authority to grant relief beyond that so specified. It is true, of course, that injunctions, to give effective relief should be broad enough to prevent a repetition of the evil sought to be corrected.

Even the most liberal interpretation of the pleadings reveals that the specific relief sought was an injunction preventing Eli-zondo and Cisneros, as well as their agents, employees, servants or attorneys “from using telephone surveys or polls to conduct school district business.”

The injunction, as modified by this court, does not expressly grant the only relief sought, since it does not mention telephone polls or surveys. It can be conceded that the injunction which this court would issue, by requiring the giving of proper notices, requiring that all meetings be open to the public and requiring the announcement at an open meeting of the topics to be discussed in executive session, effectively prevents the use of informal telephone surveys or polls. But it is clear that the issuance of such an injunction goes far beyond the prayer for injunctive relief in that it is not restricted to the use of telephone surveys and polls.

There is another difficulty with the injunction as modified. Plaintiffs alleged that the use of telephone polls was a conspiracy to circumvent the provisions of the Open Meeting Act, but it is not a violation of § 2, which requires that every meeting of a government body shall, with some exceptions not here relevant, be open to the public. According to § 1(a), the word “meeting” means “and deliberation between a quorum of members of a governmental body at which any public business or public policy over which the governmental body has supervision or control is discussed or considered, or at which any formal action is taken.” As applicable to this case, the “governmental body” which is required to meet publicly is the Board of Trustees, and the requirement that meetings of that body be public applies only when a quorum is present, since in the absence of a quorum there is no “meeting.” Notice of deliberations is required only where the deliberation involves a quorum. Plaintiffs’ pleadings do not allege that “meeting” as defined in § 1, were held without being open to the public following proper notice.

The injunction also restrains members of the Board who are not accused of violations of the Open Meetings Act in plaintiffs’ pleadings and who are not named as defendants. The only members of the Board who are named as defendants are Elizondo and Cisneros. The trial court, in its judgment, speaks only of violations by “defendants.” Yet the injunction is made applicable to all members of the Board, including even the Board member who is plaintiff in the case.

The petition names the superintendent and superintendent-elect, “the San Antonio Independent School District its Agents, Employees, Servants and Attorneys” as defendants, in addition to Elizondo and Cisne-ros. The injunction also purports to bind such other defendants who are not members of the Board of Trustees.

It is patent that the Open Meetings Act does not apply to the superintendent, superintendent-elect or other members of the staff of the school district, nor does it apply to the school district itself. The prohibition against secret meeting applies only to meetings of the “governmental body,” that is, the Board of Trustees. Neither the superintendent, the superintendent-elect or other members of the staff can, under any circumstances, hold a meeting involving “a quorum of members” of the governmental body. Staff meetings are beyond the reach of the statute. The provisions for injunction and mandamus found in § 3 are expressly designed to prevent “violations or threatened violations of this Act by members of a governing body.” The penalties provided in § 4(a) apply only to

any member of a governing body who willfully calls or aids in calling or organizing a special or called meeting or session which is closed to the public, or who willfully closes or aids in closing a regular, special or called meeting or session which is closed to the public where a closed meeting is not permitted by the provisions of this Act, shall be guilty of a misdemeanor ...

Similarly, § 4(b), which makes it a misdemeanor to conspire to circumvent the provisions of the statute by meeting in numbers less than a quorum is applicable only to “any member of group of members of a governing body.” The Legislature, at least, recognized that the statute imposed duties only on governing bodies and their members, that only governing bodies or their members could violate the statute, and that actions by persons who are not members of the governing or governmental body cannot violate the provisions of the statute. It is idle to attempt to enjoin violations of a statute by persons who, no matter what actions they take or fail to take, cannot be guilty of violating the statute.

Rule 683, which provides that an injunction shall be binding on the “parties ... their officers, agents, employees and attorneys” is completely irrelevant here. It cannot be seriously argued that the Rule broadens the statutory prohibitions or imposes duties not imposed by the statute. In the ordinary case, if the injunction is to protect the aggrieved person effectively, it may be necessary to make the injunction binding on the agents, etc. of the parties, since the acts of the representatives of the parties may violate the rights of the complainant as effectively as the acts of their principals or superiors who are parties to the injunction case. Further, in such cases the act of the subordinate is viewed as the act of his principal. In the case before us, the act of, say, the superintendent is not the act of the governmental body nor of any member of that body. No matter how earnestly the representative of the school district attempt to do that which the statute prohibits, their actions cannot result in a violation of the statute.

It should also be pointed out that, as alleged in plaintiffs pleadings, the persons sought to be enjoined, other than Elizondo and Cisneros, are employees, etc., of the school district. They are not employees of the Board of Trustees or of any member of that Board.

The point finds illustration, for example, in that portion of the injunction, as modified by the majority opinion, which enjoins the agents, etc., of the “defendants” from “Failing to announce at an open meeting of the SAISD Board the topic(s) to be discussed at a closed or executive session, as required in § 2(a).” The relevant provision of § 2(a) prohibits closed meetings “unless the governmental body has first been convened in open meeting ... for which notice has been given ... and during which open meeting or session the presiding officer has publicly announced that a closed or executive session.” It is, of course, impossible for even the superintendent to comply with the requirements of § 2(a). Since the duty is imposed only on the presiding officer, no representative of the District other than the presiding officer of the governmental body can make the required announcement, and the absence of the required announcement is not a failure of, say, the superintendent to make any announcement which he is required to make.

I know of no considerations which can justify the action of a court in requiring, under threat of contempt proceedings, a person to do that which no rule of law requires him to do, or to refrain from doing that which he is not forbidden to do by any known rule of law.

      . Defendants include Harold H. Hitt, Superintendent, Dr. William R. Elizondo, President of the Board of Trustees, Oscar Cisneros, Board Trustee, Victor Rodriguez, Superintendent-Elect, The San Antonio Independent School District, its agents, employees, servants and attorneys. We refer to the San Antonio Independent School District As SAISD.

      . Unless otherwise noted, all statutory references will be to the Texas Open Meetings Act, Tex.Rev.Civ.Stat.Ann. art. 6252-17 (Vernon Supp.1985). We refer to the Open Meetings Act as the OMA.

      . Article 6252-17 § 2:
      ******
      (g) Nothing in this Act shall be construed to require governmental bodies to hold meetings open to the public in cases involving the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee or to hear complaints or charges against such officer or employee, unless such officer or employee requests a public hearing.
      ******
      (j) Nothing in this Act shall be construed to require governing bodies to deliberate in open meetings regarding the deployment, or specific occasions for implementation, of security personnel or devices.


source: Caselaw Access Project

author: DIAL, Justice.

license: Public Domain

text:
    Trong PATINO, Appellant, v. Isaac PATINO, Appellee.
    No. 04-83-00230-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 26, 1985.

      Sue M. Hall, San Antonio, for appellant.
    Ronald H. Budman, San Antonio, for ap-pellee.
    Before ESQUIVEL, CANTU and DIAL, JJ.
   OPINION

DIAL, Justice.

This is an appeal from the property division in a divorce decree.

Isaac and Trong Patino were married while Isaac was a member of the service. He has since retired from the military. On February 22, 1980, the parties entered into a “SEPARATION AGREEMENT (PROPERTY SETTLEMENT AND SUPPORT AGREEMENT).” The agreement recited that the parties were presently married but that differences had arisen, and they intend to live separate and apart from each other for the rest of their natural lives. Under the section entitled “Division of Assets,” the husband declared himself to be a trustee for his wife’s and child’s benefit of all his military retirement pay. He further agreed to execute an allotment of his retirement pay to his wife. In a separate and attached schedule the homestead of the parties was set aside to the wife along with other personal property. Another schedule set aside various personal property to the husband. The agreement also contained the language:

If venue of any suit arising from or relating to this agreement cannot be fixed under the preceding sentence, it shall lie in the county in which the judgment of divorce is granted_ The parties respectfully request the court having jurisdiction of their divorce to approve this agreement and to incorporate it into any divorce decree that may be entered in this case.

The agreement was signed by the parties and acknowledged by each of them before a notary public.

Contemporaneous with the separation agreement, Isaac executed a special warranty deed of the homestead to Trong. The deed was executed with all necessary formalities and was filed of record. No action was taken by either of the parties with respect to the military retirement pay except to permit the existing allotment to continue to the joint bank account of which each party had full access. Isaac moved out of the house two days later. There was a brief reconciliation followed by an extended separation and the filing of a divorce suit by Isaac on January 25, 1982.

A non-jury trial was held following which the trial judge announced that he found the separation agreement entered into by the parties was not just, fair, and equitable, and therefore, the agreement was set aside. Trong was awarded the homestead and the other personal property she had received in the agreement. Isaac was awarded all military retirement pay that accrued after the date of the divorce, which was April 28, 1982. The written decree was not signed by the judge until January 28, 1983.

After the decree of divorce was signed by the court, a request for findings of fact and conclusions of law was filed. When the court did not file additional findings, a reminder to file findings of fact was timely presented to the trial court. No additional findings were filed.

Trong complains on this appeal of the action of the trial court in setting aside the separation agreement and awarding the military retirement to Isaac. Trong contends that though it is labeled, “SEPARATION AGREEMENT,” the document was in fact a partition agreement executed in writing and subscribed by all the parties as required by TEX. CONST, art. XVI, § 15 and TEX.FAM.CODE ANN. § 5.44 (Vernon Supp.1984).

Article 16, section 15 of the Texas Constitution and section 5.42 of the Texas Family Code do provide a way for spouses who contemplate continual conjugal relations to partition or exchange community property and change its character to separate property. There is no requirement for judicial approval of such a partition or exchange agreement. Morgan v. Morgan, 622 S.W.2d 447, 450 (Tex.Civ.App.—Beaumont 1981, no writ).

There is extensive common-law precedent empowering a husband and wife to effect a division of their property on permanent separation. The only prerequisite to such agreement is that it be fair and equal. Harding v. Harding, 461 S.W.2d 235 (Tex.Civ.App.—San Antonio 1970, no writ) (and cases cited therein at Footnote No. 1).

Section 3.631 of the Texas Family Code authorizes the parties to enter into a written agreement concerning the division of all their property and liabilities. TEX. FAM.CODE ANN. § 3.631 (Vernon Supp. 1984). In a subsequent proceeding for divorce, the terms of such agreement are binding on the court unless it finds that the agreement was not just and right.

Since the trial court ruled on the fairness of the agreement, he obviously was treating it as a property settlement made in contemplation of divorce and not a partition agreement that did not require his approval. We hold that the action of the trial court in setting aside the “SEPARATION AGREEMENT” was a proper exercise of his duty and power under section 3.631 of the Texas Family Code.

The wife does not challenge the sufficiency of the evidence to support the finding of the court that the separation agreement was not just, fair and equitable. She does, however, contend that the trial court should have made a specific finding as to whether the agreement was incident to divorce or a partition of community property.

The trial court is only required to make findings of fact on the ultimate or controlling issues. Harding v. Harding, supra, at 236; Friedman v. Cohen, 429 S.W.2d 510, 512 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.); TEX.R. CIV.P. 298. The court made the finding that the agreement was not just, fair and equitable. This issue was the controlling and ultimate issue, and no other findings were necessary.

Also, although no formal conclusions of law appear in the record other than the decree, we are authorized to recognize findings which are necessary legal implications of the judgment entered below. Donahoe v. Allen, 608 S.W.2d 745, 747 (Tex.Civ.App.—Beaumont 1980, no writ); Sentry Development Corp. v. Norman, 553 S.W.2d 664, 665 (Tex.Civ.App.—Tyler 1977, writ ref d n.r.e.). Accordingly, we find that the trial judge’s specific finding carried with it the implication that the agreement in question was not a partition agreement but, instead, an agreement incident to divorce which required a “just and right” finding by the judge in order for it to be enforced. TEX.FAM.CODE ANN. § 3.631 (Vernon Supp.1984).

There still remains a compelling reason why part of the case must be returned to the trial court for re-examination. This is prompted by the chronology of the decision of the United States Supreme Court in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the adoption of the Uniform Services Former Spouses’ Protection Act, 10 U.S.C.A. § 1408 (1983), and the date of the divorce decree in this case. The Texas Supreme Court interpreted McCarty as holding that the supremacy clause of the United States Constitution effectively foreclosed the division of military retirement benefits under Texas community property laws. Trahan v. Trahan, 626 S.W.2d 485, 487 (Tex.1981).

Following the adoption of the Spouses’ Protection Act, the Texas Supreme Court held that the purpose of the act was to reverse the effect of the McCarty decision and empower a Texas court to divide military retirement pay in accordance with Texas community property laws beginning with pay periods after June 25, 1981. Cameron v. Cameron, 641 S.W.2d 210, 212-13 (Tex.1982).

We cannot tell from the judgment or the entire record if the trial judge awarded the military retirement to Isaac as his share of the community or if he believed it to be Isaac’s separate property and therefore not subject to division.

A presumption exists that a trial court acted in the manner required of it by the applicable law at the time of its actions. Gordon v. Gordon, 659 S.W.2d 475, 478 (Tex.App.—Corpus Christi 1983, no writ).

The trial judge announced his decision on April 28, 1982. The judge signed the decree on January 28, 1983. The effective date of the Spouses’ Protection Act was February 1, 1983. On the day the trial judge entered the divorce decree, McCarty precluded him from apportioning the military retirement. We conclude that the trial judge, in awarding the military retirement benefit to Isaac, was following the mandatory law as he understood it to be at that moment rather than what he deemed to be just and right for the parties.

The effect of McCarty having been reversed by the Spouses’ Protection Act, the Texas law is stabilizing after an unusual period. A trial judge would now be free to consider a division of Isaac’s military retirement in accordance with the evidence and approved formula. Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976). Any retirement pay for periods after June 25, 1981, are subject to Texas community property law. Cameron v. Cameron, supra, at 212-13.

Since the judgment in this case is not final, it is appropriate that the parties be given an opportunity to develop the case knowing the now-applicable law. Gordon v. Gordon, supra, at 478; Voronin v. Voronin, 662 S.W.2d 102, 106 (Tex.App.—Austin 1983, no writ). Since each party was claiming the full retirement benefits, the record was not fully developed as to a proper basis for a division.

The part of the judgment which sets aside the separation agreement is affirmed. The part of the judgment which divided the property of the parties is reversed and remanded for a new trial, at which time the trial court may consider a division of appel-lee’s military retirement.


author: AKIN, Justice.

text:
    The ATTORNEY GENERAL OF TEXAS, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 05-84-00957-CV.
    Court of Appeals of Texas, at Dallas.
    Feb. 27, 1985.
    Rehearing Denied April 8, 1985.

      Jim Mattox, Atty. Gen. of Texas, David Richards, Executive Asst., Atty. General’s Office, Paul D. Rich, Chief Antitrust Div., Atty. General’s Office, Marianne Woodard, Christine Beck, Asst. Attys. Gen., Austin, Tex., for appellant.
    E. Thomas Bishop, P. Michael Jung, Mark Donheiser, of Strasburger & Price, Dallas, Tex., for appellee.
    Before AKIN, DEYANY and McCLUNG, JJ.
   AKIN, Justice.

The Attorney General of Texas appeals from an order setting aside a civil investigative demand (“the C.I.D.”) served by the Attorney General on Allstate Insurance Company (“Allstate”). The C.I.D. was issued by the Attorney General pursuant to TEX.BUS. & COM.CODE ANN. §§ 15.01-15.26 (Vernon Supp.1985), the Texas Free Enterprise and Antitrust Act of 1983 (“the Act”). Pursuant to section 15.10(f) of the Act, Allstate petitioned the district court to have the C.I.D. set aside or modified. The district court rendered an order setting aside the C.I.D. in its entirety, from which the Attorney General appeals.

On appeal, the Attorney General contends that the district court erred in setting aside the C.I.D. because: (1) Allstate’s status as an insurance company does not exempt it from the Attorney General’s investigative authority under the Act; (2) the description in the C.I.D. of the nature of the activities that are the subject of the Attorney General’s investigation complies with the Act’s requirements; and (3) the information sought by the C.I.D. is discoverable as required by the Act. We agree with the Attorney General’s first and second contentions. Consequently, we hold that Allstate is not exempt from the Attorney General’s investigative authority under the Act. Further, we hold that the C.I.D.’s description of the nature of the activities that are the subject of the investigation complies with the requirements of the Act. However, we cannot determine whether the information sought is discoverable. Such a determination should be made, in the first instance, by the district court. Accordingly, we reverse the district court’s order setting aside the C.I.D. and remand the cause for further proceedings consistent with this opinion.

The Attorney General first contends that Allstate’s status as an insurance company does not exempt it from the Attorney General’s investigative authority under the Act. In this respect, Allstate first argues that the legislature has expressly delegated to the State Board of Insurance the exclusive authority to regulate all activities affecting the business of insurance. We do not agree with Allstate’s argument. TEX. INS.CODE ANN. art. 21.21 (Vernon 1981), which concerns regulation by the State Board of Insurance of trade practices in the business of insurance, supports our position. Section 8 of article 21.21 provides:

No order of the Board under this Act or order of a court to enforce the same shall in any way relieve or absolve any person affected by such order from any liability under any other laws of this state. (Emphasis added).

This provision indicates that the legislature did not intend for the State Board of Insurance to have exclusive regulatory authority in this area. See Dodd v. Commercial Union Insurance Co., 373 Mass. 72, 365 N.E.2d 802 (1977) (court, construing provision in Massachusetts insurance law virtually identical to article 21.21, section 8, held that such provision “clearly contemplates concurrent application” of a more general statute concerning unfair and deceptive trade practices).

Moreover, the language of the Act leads us to conclude that Allstate is not exempt from the Attorney General’s investigative authority thereunder. Section 15.-02(a) provides:

(a)The provisions of this Act are cumulative of each other and of any other provision of law of this state in effect relating to the same subject. Among other things, the provisions of this Act preserve the constitutional and common law authority of the attorney general to bring actions under state and federal law. (Emphasis added).

Additionally, we note that section 15.03(2) expressly provides that, as used in the Act, the term “goods” includes insurance. The purpose of the Act, as set forth in section 15.04, “is to maintain and promote economic competition in trade and commerce” in Texas; the terms “trade” and “commerce” are defined in section 15.03(5) as, inter alia, “the sale, purchase, lease, exchange, or distribution of any goods or services.” (Emphasis added). Further, we observe that among the anti-competitive practices prohibited by section 15.05 of the Act are the following:

(a) Every contract, combination, or conspiracy in restraint of trade or commerce is unlawful.
(b) It is unlawful for any person to monopolize, attempt to monopolize, or conspire to monopolize any part of trade or commerce.
(c) It is unlawful for any person to sell, lease, or contract for the sale or lease of any goods, whether patented or unpa-tented, for use, consumption, or resale or to fix a price for such use, consumption, or resale or to discount from or rebate upon such price, on the condition, agreement, or understanding that the purchaser or lessee shall not use or deal in the goods of a competitor or competitors of the seller or lessor, where the effect of the condition, agreement, or understanding may be to lessen competition substantially in any line of trade or commerce. (Emphasis added).

These provisions clearly establish that the Attorney General has the authority under the Act to investigate possible anticompeti-tive practices within, or connected with, the insurance industry.

Allstate also argues that it is exempt from the Attorney General’s investigative authority because it falls within the “business of insurance” exemption from federal antitrust law which is incorporated in the Act. Section 15.05(g) provides that “[n]othing in this section shall be construed to prohibit activities that are exempt from the operation of the Federal antitrust laws_” The federal “business of insurance” exemption is contained within the McCarran-Ferguson Act, 15 U.S.C.A. §§ 1011-1015 (West 1976). Section 1012(b) provides:

No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, that after June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15,1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, as amended, shall be applicable to the business of insurance to the extent that such business is not regulated by State law. (Emphasis in original).

Section 1013(b) provides that “[n]othing contained in this chapter shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or any act of boycott, coercion, or intimidation.” (Emphasis added). Thus, there are three requirements that must be met in order for the federal “business of insurance” exemption to be applicable: (1) the activity at issue must be part of the “business of insurance”; (2) the activity must be regulated by the state; and (3) the activity must not be a boycott. We need address only the third requirement. The C.I.D. states that it was issued because the Attorney General “is investigating the possibility of a group boycott” of certain providers of health care services to Texas workers’ compensation claimants. Such alleged activity is clearly encompassed within the broad definition of “boycott” as that term is used in section 1013(b) of the McCarran-Ferguson Act. See St. Paul Fire & Marine Insurance Co. v. Barry, 438 U.S. 531, 541-550, 98 S.Ct. 2923, 57 L.Ed. 932 (1978). We conclude, therefore, that the activities about which the C.I.D. inquiries are not within the scope of the federal “business of insurance” exemption. Consequently, we hold that Allstate is not exempt from the Attorney General’s investigative authority under the Act.

Next, the Attorney General contends that the description in the C.I.D. of the nature of the activities that are the subject of the Attorney General’s investigation complies with the Act’s requirements. Section 15.10(c)(1) of the Act provides:

Each demand shall describe the nature of the activities that are the subject of the investigation and shall set forth each statute and section of that statute that may have been or may be violated as a result of such activities. Each demand shall advise the person upon whom the demand is to be served that the person has the right to object to the demand as provided for in this section. (Emphasis added).

Allstate does not dispute that the C.I.D. sets forth the statute and section thereof that may have been violated. The issue before us, then, is whether the C.I.D. adequately “describe[s] the nature of the activities that are the subject of the investigation.” The description in the C.I.D. states that the Attorney General “is investigating the possibility of a group boycott of certain providers of health care services to workers’ compensation claimants in the State of Texas.”

Section 15.04 of the Act directs us to construe the Act’s provisions “in harmony with federal judicial interpretations of comparable federal antitrust statutes.” Section 15.10 of the Act, concerning civil investigative demands, is very similar to the federal Antitrust Civil Process Act (“the A.C.P.A.”), 15 U.S.C.A. §§ 1311-1314 (West 1982). Consequently, we must construe section 15.10 in harmony with federal judicial interpretations of the A.C.P.A.

A leading case interpreting the A.C.P.A. is Petition of Gold Bond Stamp Co., 221 F.Supp. 391 (D.Minn.1963), aff'd per curiam, 325 F.2d 1018 (8th Cir.1964). There that court stated that the purposes of the A.C.P.A. were two-fold: (1) to enable the Attorney General to determine whether there has been a violation of the antitrust laws, and if so (2) to enable the Attorney General to properly allege the violations in a civil complaint. Gold Bond, 221 F.Supp. at 397.

Gold Bond held that the test of the adequacy of a civil investigative demand’s description of the nature of the activities which are the subject of the investigation

must be whether the statement in the demand as to the nature of the conduct under investigation is sufficient to inform adequately the person being investigated and sufficient to determine the relevancy of the documents demanded for inspection. (Emphasis in original).

Gold Bond, 221 F.Supp. at 397. We conclude that the description at issue in the present case adequately informs Allstate of the intent and scope of the demand served upon it. See Gold Bond, 221 F.Supp. at 398. It is clear that the Attorney General is investigating the possibility of a group boycott of entities that provide health care services to workers’ compensation claimants in Texas. This description is sufficient to allow Allstate to determine, in light of the fact that Allstate is an active workers’ compensation insurer in Texas, the relevancy of the documents demanded for inspection. Accordingly, we hold that the description in the C.I.D. of the nature of the activities that are the subject of the Attorney General’s investigation complies with the requirements of the Act.

Finally, the Attorney General contends that the information sought by the C.I.D. is discoverable, as required by section 15.10(d)(1) of the Act. Allstate, of course, asserts that the information is not discoverable. We decline to determine whether the information sought is discoverable because such a determination should first be made by the trial court. Indeed, we are unable to pass on this question because the information claimed to be privileged was neither before the trial judge nor is before us. In this respect, we note that any requested document which Allstate believes to be privileged may be submitted to the district court in camera for a ruling to be made thereon. Finnell v. United States Department of Justice, 535 F.Supp. 410, 412 (D.Kan.1982); Gold Bond, 221 F.Supp. at 399.

We reverse the order of the district court setting aside the C.I.D. and remand the cause to the district court for further proceedings not inconsistent with this opinion.

      . For the purposes of addressing Allstate’s argument, we assume, without deciding, that the activities about which the C.I.D. inquires are within the definition of “business of insurance.” See footnote 2 of this opinion.

      . We note that the Supreme Court has identified three criteria relevant in determining whether a particular practice is part of the "business of insurance”: (1) whether the practice has the effect of transferring or spreading a policyholder's risk; (2) whether the practice is an integral part of the policy relationship between insurer and insured; and (3) whether the practice is limited to entities within the insurance industry. Union Labor Life Insurance Co. v. Pireno, 458 U.S. 119, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982). Although we need not reach the issue in our disposition of the instant case, it is our view that a boycott of providers of health care services is unlikely to be part of the “business of insurance.”

      . Section 15.10(d)(1) provides: “A demand may require the production of documentary material, the submission of answers to written interrogatories, or the giving of oral testimony only if the material or information sought would be discoverable under the Texas Rules of Civil Procedure or other state law relating to discovery.”


author: CANNON, Justice.

text:
    Vernon Edwin FEWELL, Appellant, v. The STATE of Texas, Appellee.
    No. A14-83-616CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 28, 1985.
    Rehearing Denied March 21, 1985.

      Robert Turner, Houston, for appellant.
    Calvin Hartmann, Dist. Atty., Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

CANNON, Justice.

The appellant was indicted for possession of cocaine with intent to deliver. After he pled not guilty, the jury convicted him and assessed punishment at 12 years’ confinement. The trial court ordered this sentence to begin upon completion of his federal sentence of 15 years.

This appeal alleges four grounds of error: (1) a fundamentally defective indictment; (2) insufficient evidence; (3) error in stacking the sentences; (4) violation of the right to a speedy trial.

We reverse with instructions to dismiss the indictment because it is fundamentally defective. We also find the trial court erred in stacking appellant’s sentences.

In ground of error number one, appellant asserts that the indictment is fundamentally defective because it fails to allege why cocaine, a substance not in a penalty group, is a controlled substance. Tex.Rev.Civ. Stat.Ann. art. 4476-15 (Vernon Supp.1985).

In the indictment, on the dates alleged and proved, cocaine was not specifically named in a penalty group of the Controlled Substances Act. The allegation in the indictment that appellant possessed “a controlled substance, namely, Cocaine,” without more, did not state an offense. Appellant was arrested on September 20, 1978, and possession of cocaine, without further description, did not become an offense until August 27, 1979. Appellant’s conduct, which occurred prior to the effective date of the amendment, is governed by prior law and thus the prior law controls the disposition of this indictment. Ex Parte Perez, 618 S.W.2d 770, 771 (Tex.Crim.App.1981) (en banc); Taylor v. State, 610 S.W.2d 471, 478 (Tex.Crim.App.1981) (en banc); Crowl v. State, 611 S.W.2d 59, 60 (Tex.Crim.App.1980).

To state the rule generally, we hold that in a prosecution under the Controlled Substances Act for the manufacture, delivery, or possession of a substance not specifically named in a penalty group but which is otherwise described in a penalty group, ... such description is an essential element of the offense which must be alleged in the indictment in order to state an offense.

Ex Parte Wilson, 588 S.W.2d 905, 908 (Tex.Crim.App.1979) (en banc).

As such, the indictment in this case does not allege why cocaine, a substance not listed by name in a penalty group, is a controlled substance. Therefore, the indictment fails to allege an essential element of the offense and is fundamentally defective. Crowl v. State, 611 S.W.2d at 61. We order the conviction set aside and the indictment dismissed. Accordingly, ground of error number one is sustained.

In appellant’s second ground of error, he claims the evidence is insufficient to support his conviction for possession with intent to deliver. Despite the reversal on ground number one, this court is obligated to review a claim of insufficient evidence. Foster v. State, 635 S.W.2d 710 (Tex.Crim.App.1982) (en banc). An appropriate discussion of this ground requires a brief look at the evidence.

Customs agents became suspicious of 3 boxes arriving from Bolivia addressed to the “Windjammer Corporation c/o Mr. Fe-well.” After a closer inspection they found a total of 24 pounds of cocaine hidden in the inner linings of these boxes. They immediately contacted the Drug Enforcement Administration (DEA), which sent over two agents who removed the bulk of the cocaine and replaced it with representative samples. They resealed the boxes and set up surveillance to establish who would claim them.

Several days later appellant retrieved the boxes from Customs, placed them in his automobile and proceeded at an erratic speed to a warehouse in southwest Houston. Upon arriving at his destination, he unloaded the boxes into the warehouse and closed the overhead door behind him. Emerging 20 minutes later, he was approached by a DEA agent who informed him he was under arrest. After an unsuccessful attempt to close the overhead door on the agent, appellant was taken into custody.

The DEA agents made a cursory inspection of the warehouse, found no one else inside, secured the premises, and left to obtain a search warrant. When they returned with the warrant, they discovered the boxes had been cut along the edges directly into the hidden linings instead of being opened from the top. The cocaine had not been removed and the wooden art objects were left undisturbed. Also seized were other boxes opened in a similar fashion and a phoneagram addressed to the appellant, advising him that a shipment had arrived at National Airlines and needed to be picked up. In addition, they confiscated appellant’s passport last stamped in La Paz, Bolivia.

Appellant also makes note of the fact that the boxes contained only a few grams of cocaine because the DEA agents had removed the remainder. He contends this small amount suggests no plan or intent to deliver or sell the cocaine to others. The evidence indicates that he had no way of knowing that the DEA agents removed the majority of the cocaine and replaced it with representative samples. Furthermore, it was not unreasonable for the jury to infer that he had the intent to deliver the original amount in the boxes. See Alba v. State, 492 S.W.2d 555, 561 (Tex.Crim.App.1973).

It is clear that intent may be inferred from the acts, words or conduct of the accused. Romo v. State, 593 S.W.2d 690, 693 (Tex.Crim.App.1980). Knowledge and intent can be inferred from conduct of, remarks by and circumstances surrounding the acts engaged in by an accused. Allen v. State, 478 S.W.2d 946, 947 (Tex.Crim.App.1972); Bean v. State, 641 S.W.2d 351, 352 (Tex.App.—Corpus Christi 1982, no pet.). In addition, intent is a question of fact to be determined by the trier of facts from all the facts and circumstances in evidence. Hemphill v. State, 505 S.W.2d 560, 562 (Tex.Crim.App.1974).

The relevant standard to be used in reviewing sufficiency of the evidence questions was developed by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979): “whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. State, 672 S.W.2d 801, 803 (Tex.Crim.App.1984) (en banc); Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984) (en banc).

Upon applying the above-quoted standard, we find the evidence sufficient to support the conviction. After reviewing the evidence in the light most favorable to the verdict, we believe that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Ground number two is overruled and a retrial is not prohibited upon remand.

Appellant urges in ground number three that the trial judge erred in “stacking” his state sentence on his federal sentence. We agree. Tex.Code Crim.Proc. Ann. art. 42.08 (Vernon 1979) does not authorize the cumulation or “stacking” of a Texas state sentence with a federal sentence. Article 42.08 is limited to the situation where “the punishment assessed in each case is confinement in an institution operated by the Department of Corrections or the jail for a term of imprisonment.” Sturgis v. State, 657 S.W.2d 813, 815 (Tex.App.—Eastland 1982), aff'd per curiam, (No. 051-83, September 14, 1983). Ground number three is sustained. In the event of a retrial and conviction of this offense, stacking of the sentences is prohibited.

Presented by appellant in ground number four is the argument that he was denied the right to a speedy trial; more specifically, that his arrest by DEA agents triggered the time provisions of the Texas Speedy Trial Act. Tex.Code Crim.Proc. Ann. art. 32A.02 (Vernon Supp.1985). Appellant was arrested and charged in Federal Court on September 20, 1978. He jumped bond in Federal Court in April, 1979. On February 12, 1980, while federal authorities were searching for him in a foreign country, he was indicted in State Court. The appellant was finally apprehended in Paris, France, and returned to Harris County on March 25, 1983. The state filed a written announcement of ready on June 10, 1983.

In Texas, the Speedy Trial Act is triggered by the commencement of a criminal action. For the purposes of this act, a criminal action commences when an indictment, information or complaint against the defendant is filed in court. Art. 32A.02 § 2(a). In the present case, this did not occur for state purposes until the indictment was returned on February 12, 1980. See U.S. v. Wilson, 657 F.2d 755 (5th Cir. 1981), cert. denied, 455 U.S. 951, 102 S.Ct. 1456, 71 L.Ed.2d 667 (1982); U.S. v. Walker, 710 F.2d 1062 (5th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 995, 79 L.Ed.2d 229 (1984). In calculating the time periods under the Speedy Trial Act, we exclude the period of delay resulting from the appellant’s absence when his location was unknown and he was avoiding apprehension or prosecution. Art. 32A.02 § (4). Since he was out of the country to avoid prosecution from February 12, 1980 (date he was indicted in state court) until March 25, 1983 (date he returned to Harris County), we exclude that period of time in computing the 120 days. Therefore, calculating from March 25, 1983, until the state announced ready for trial on June 10, 1983, the state announced ready within 77 days, well within the 120 day period. Ground number four is overruled.

Accordingly, the judgment of the trial court is reversed and this cause is remanded to the trial court for proceedings consistent with our holding.

      . The cocaine had an estimated street value of $13,000,000.00 and the majority of it was removed for security reasons.

        . In each of the cited cases, state action did not trigger the time provisions of the Federal Speedy Trial Act, 18 U.S.C. § 3161 et seq. (Supp. 1984), nor engage defendant’s Sixth Amendment right to a speedy trial in federal court. Conversely, it follows that the DEA arrest of Fewell did not trigger the time provisions of the Texas Speedy Trial Act. This conclusion is an outgrowth of the doctrine of dual sovereignty.


author: BUTTS, Justice. CADENA, Chief Justice.

text:
    Paul HUNTER, Appellant, v. Charles E. CLARK, Appellee.
    No. 04-83-00501-CV.
    Court of Appeals of Texas, San Antonio.
    March 6, 1985.

      Samuel F. Biery, San Antonio, for appellant.
    Morris Kirschberg, San Antonio, for ap-pellee.
    Before CADENA, C.J., and ESQUIVEL and BUTTS, JJ.
   OPINION

BUTTS, Justice.

The question on appeal is whether the surviving spouse waived his homestead rights to the separate property of his deceased wife. The court ruled in its construction of the premarital agreement that he did. The judgment of the trial court reflects the ruling that, as the result of the couple’s premarital agreement, the surviving spouse did waive his homestead rights to the real property. The plaintiff, the only child and devisee in his mother’s will, brought a declaratory judgment action, TEX.REV.CIV.STAT.ANN. art. 2524-1 (Vernon 1965), requesting the court to determine the status of the real property, a residence, of which he became the owner under the terms of his mother’s will.

Before their marriage in 1968, Katherine V. Clark, the deceased, and Paul Hunter, the surviving spouse and defendant, executed a premarital agreement. Katherine’s lawyer drew up the instrument and the two signed the agreement in his office; Hunter was not represented by a lawyer. Article 4610 of the TEX.REV.CIV.STAT.ANN., in effect at that time, controlled, the applicable statute now being section 5.41 of the TEX.FAM.CODE ANN. (Vernon Supp. 1985). The pertinent portions of the PREMARITAL MATRIMONIAL PROPERTY AGREEMENT are:

* * jjC * Sjc 4c
Now, therefore, for and in consideration of the premises and the agreement by each of the parties to marry the other, the parties do mutually agree that from and after the date of this instrument and continuing through the termination of such marriage, whether the same by death or divorce, the property presently owned by each of the parties shall be and remain the separate property of that respective party.
It is specifically agreed that all of the property presently owned by the Party of the First Part, real, personal or mixed, and wherever situated, including but not limited to cash on hand, stocks, bonds, real estate and the improvements thereto, livestock and other property of every nature whatsoever, shall be and remain the separate property of the Party of the First Part throughout said marriage without regard to any change in the nature or extent thereof. It being specifically agreed that all increases in said property, as well as all appreciation in value of said property, shall be and remain the separate property of the Party of the First Part.
[The identical words were set out as to the separate property of the Party of the Second Part.]
* ¾« * * * #
Each of the parties does by this instrument and for the considerations herein-above set out, covenant and agree with the other that each party shall claim as his or her separate property and estate all of the property hereinabove set forth as separate property and that, in addition, the party owning such separate property shall have the full unrestricted power and right to control, manage and dispose of such separate property as that party may see fit at any time during said marriage relationship. Said power to control, manage and dispose of said property not being subject to the consent or approval of the other party in any manner whatsoever.

The evidence established that the only property of the deceased was the house where she and Hunter resided after their marriage until the time of her death in September, 1977. It was also shown that Hunter owned a house at the time of the marriage; however, the couple never lived in it. He testified that his son presently resided in his house. The evidence further reflected that Clark, the son of the deceased, had paid the taxes on his mother’s house after her death until 1981, when Hunter paid part of them. Clark had also paid some utility bills immediately following the death. Hunter stated he had done some painting and repairs on the house. Hunter affirmed he had declared for tax purposes a homestead exemption on his separate property at the county tax office. There is no dispute that Hunter lived in the subject premises continuously from the time he married Katherine until the time of trial and still continued to do so. Although the death occurred in 1977, Clark did not file suit for declaratory judgment until May, 1982.

While Hunter assigns forty-nine points of appeal, it is plain they may all be addressed under one topic: whether there was a waiver of the surviving spouse’s homestead right to the property in question. TEX. CONST, art. XVI, § 52 provides:

Sec. 52. On the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction, to use and occupy the same.

TEX.PROB.CODE ANN. § 282 (Vernon 1980) provides:

The homestead rights of the surviving spouse and children of the deceased are the same whether the homestead be the separate property of the deceased or community property between the surviving spouse and the deceased, and the respective interests of such surviving spouse and children shall be the same in one case as in the other.

TEX.PROB.CODE ANN. § 283 (Vernon 1980) provides:

On the death of the husband or wife, leaving a spouse surviving, the homestead shall descend and vest in like manner as other real property of the deceased and shall be governed by the same laws of descent and distribution.

The language of the Constitution is plain. The surviving spouse has the same homestead rights as both spouses had prior to the death of one; and this is true whether the survivor be the husband or the wife. Brown v. Reed, 48 S.W. 537, 538 (Tex.Civ.App.1898, writ ref’d). The homestead provision is intended to relate to the rights of heirs and the surviving husband or wife, as between themselves, to the homestead property. Spencer v. Schell, 107 Tex. 44, 173 S.W. 867 (1915). TEX. CONST. art. XVI, § 52 gives to the surviving spouse the right to use and occupy the homestead, even though it was the separate estate of the deceased. Jenkins v. Hutchens, 287 S.W.2d 295, 298 (Tex.Civ.App.—Eastland 1956, writ ref’d n.r.e.). The deceased may not defeat this right by devising the property before death. Wicker v. Rowntree, 185 S.W.2d 150, 152 (Tex.Civ.App.—Amarillo 1945, writ ref’d w.o.m.).

Even if the survivor (Hunter) had a homestead right of his own when he married, and at the death of deceased, he still owned and controlled that property, the survivor has a right to the subject homestead. Clift v. Kaufman & Runge, 60 Tex. 64 (1883); Pressley’s Heirs v. Robinson, 57 Tex. 453, 460 (1882). This is true even though there is no doubt that Hunter owned a house where he could presently be living. The surviving spouse may use and occupy the homestead so long as he or she elects to do so. Tiboldi v. Palms, 34 Tex.Civ.App. 318, 78 S.W. 726, aff'd 97 Tex. 414, 79 S.W. 23 (1904). This applies against the creditors or heirs of the deceased. Blum v. Gaines, 57 Tex. 119, 122 (1882).

The homestead right is a right which vests immediately upon the death of the spouse and continues unless abandoned. Good v. Good, 293 S.W. 621, 623 (Tex.1927). The surviving spouse has the right to live on the premises for the remainder of his life without the permission of the deceased spouse’s heirs. Hill v. Aldrich, 242 S.W.2d 465, 466 (Tex.Civ.App.—San Antonio 1951, writ dism’d). Testamentary disposition by the deceased may not destroy the right of the surviving constituent family members to use and occupy the homestead. Lindsley v. Lindsley, 139 Tex. 512, 163 S.W.2d 633, 636 (1942). The homestead right is a personal privilege with the attributes and incidents of a life estate. Petrus v. Cage Brothers, 128 S.W.2d 537, 538 (Tex.Civ.App.—San Antonio 1939, writ ref'd). It is in the nature of a life estate analogous to that of a life tenant. Rancho Oil Co. v. Powell, 142 Tex. 63, 175 S.W.2d 960, 963 (1943). The surviving spouse is not liable for rent payable to the heirs. Pressley’s Heirs v. Robinson, supra at 458. But the surviving spouse is not entitled to reimbursement for improvements. During the continuation of his estate he is chargeable with the expenses of upkeep of the property. Sargeant v. Sargeant, 19 S.W. 382, 385 (Tex.Civ.App.—Fort Worth 1928, no writ). See George v. Taylor, 296 S.W.2d 620, 624 (Tex.Civ.App.—Fort Worth 1956, writ ref’d n.r.e.) as to rights of heirs.

We conclude that Hunter could rightfully elect to remain in the homestead premises, although it was the separate property of his wife, as mandated by the Constitution and statutes of Texas unless he had waived his personal privilege.

WAIVER

The privilege of the homestead right may be abandoned. Once the right to use and occupy the homestead premises becomes vested in the surviving spouse, the right is presumed to continue until there is affirmative proof of abandonment. Good v. Good, supra at 623. See Oelkers v. Clemens, 260 S.W.2d 74 (Tex.Civ.App.—Austin 1953, writ ref’d n.r.e.). It follows that the privilege which is personal to the surviving spouse may be waived. See Williams v. Williams, 569 S.W.2d 867 (Tex.1978). A definition of waiver appears in Cattle Feeders, Inc. v. Jordan, 549 S.W.2d 29, 33 (Tex.Civ.App.—Corpus Christi 1977, no writ):

Waiver, whether express or implied, is an intentional release, relinquishment, or surrender of a right that is at the time known to the party making it. In order to constitute a waiver, it is essential that there be an existing right, benefit or advantage, a knowledge (actual or constructive) of the existence and an actual intention to relinquish it. It must be a voluntary act made with full knowledge of the facts_ [Citations omitted.] A waiver takes place where one dispenses with performance of something which he has a right to exact, and occurs where one in possession of any right, whether conferred by law or by contract, with full knowledge of material facts does or forbears to do something, and such action is inconsistent with his right or his intention to rely upon it. [Citations omitted.]

The payment of taxes by the devisee under Katherine’s will is not a showing of Hunter’s abandonment of the homestead rights. Salmons v. Thomas, 25 Tex.Civ.App. 422, 62 S.W. 102, 104 (1901, no writ). Similarly, this would not constitute waiver by Hunter. Moreover, the designation by Hunter of his former homestead property for taxation purposes, while it may be challenged by the taxing authority, is not such conduct which will demonstrate waiver.

PREMARITAL AGREEMENT

It is to the premarital agreement which this court must look for Hunter’s intentional relinquishment of the homestead right known to him at the time he made the agreement. As indicated in the colloquy between the trial court and counsel, the trial court as well as the parties looked to Williams v. Williams, supra, for guidance. The 1978 Texas Supreme Court opinion concerns the waiver of homestead rights contained in a premarital agreement. The Williams agreement provided in part:

Whereas the parties desire that all property now owned or hereafter acquired by each of them shall, for testamentary disposition, be free from any claim of the other that may arise by reason of their contemplated marriage. [Emphasis added.]
It is therefore agreed:
1. Property to be separately owned.
After the solemnization of the marriage between the parties, each of them shall separately retain all rights in his or her own property, whether now owned or hereafter acquired, and each of them shall have the absolute and unrestricted right to dispose of such separate property, free from any claim that may be made by the other by reason of their marriage, and with the same effect as if no marriage had been consummated between them. [Emphasis added.]
[A supplemental agreement was simultaneously executed and incorporated into the basic agreement. It disclosed the properties that each spouse would bring into the marriage, set forth certain guidelines concerning living and other incidental expenses to be incurred during the marriage.]

Williams v. Williams, supra, at 868. “The question presented by this cause is whether a premarital agreement to waive the constitutional and statutory rights of a surviving spouse to a homestead and other exempt property is valid,” was the majority view of the Williams question on appeal. That court thus adopted the premise that one major purpose of the Williams agreement was that the parties before entering into their second marriage, each owning considerable properties separately, were by the terms of the agreement waiving their prospective homestead rights to the separate property of the other. As noted in the dissent, the majority apparently relied upon the general language of the agreement that each spouse's separate property shall be free from any claim by the other spouse that may arise as a result of the marriage. It is noteworthy the majority opinion never examined the content of the premarital agreement to determine whether it contained language sufficient to be a waiver. It presumed that agreement was a waiver of the homestead right and only addressed the question whether the surviving spouse could waive the right by an antenuptial agreement. The court wrote, at 870:

While a “surviving” spouse is granted the right to occupy the homestead by section 52 [of the Texas Constitution], such language is not to be construed as a constitutional prohibition to a waiver of that right by prospective spouses. Therefore, we hold that Mrs. Williams waived her rights to the probate homestead and exempt property by the premarital agreement in question.

When we turn to the Hunter premarital agreement, we find no words such as “free from any claim” by the other spouse that may arise as a result of the marriage. We do find the words, “the property presently owned by each of the parties shall be and remain the separate property of that respective party.” And, “shall be an remain the separate property of the [party] throughout said marriage ....” And, “the party owning such separate property shall have the full unrestricted power and right to control, manage and dispose of such separate property as that party may see fit at any time during said marriage relationship.”

At the time of the present trial, following the Williams decision, TEX.FAM.CODE ANN. § 5.45 (Vernon Supp.1985) had been enacted. Acts 1981, 67th Leg., p. 2964, ch. 782, § 2, eff. Sept. 1, 1981:

§ 5.45. Marital Agreements: Burden of Proof
In any proceeding in which the validity of a provision of an agreement, partition, or exchange agreement made under this subchapter is in issue as against a spouse or a person claiming from a spouse, the burden of showing the validity of the provision is on the party who asserts it. The proponent of the agreement, partition, or exchange agreement or any person claiming under the proponent has the burden to prove by clear and convincing evidence that the party against whom enforcement of the agreement is sought gave informed consent and that the agreement was not procured by fraud, duress, or overreaching.

The evidence shows that Hunter had resided on the homestead premises from September, 1977, when Katherine died, until the time of suit. We hold his right to continue using and occupying the premises was presumed until there was presented affirmative proof of his waiver of the homestead right. We agree with Hunter that his right as a homestead claimant vested upon Katherine’s death and the presumption of homestead continued. Since Clark relied upon the premarital agreement to prove waiver, Clark then had the burden of coming forward with clear and convincing evidence of a waiver of the right. This he did not do. Even had there been a provision in the premarital agreement which could be singled out as a waiver, which has not been shown, section 5.45 mandates proof that the surviving spouse gave informed consent. We hold, as a matter of law, that the premarital agreement in question is not a waiver of the surviving spouse’s homestead rights.

The judgment is reversed and rendered.

CADENA, Chief Justice.

I concur in the result. The case involves only the interpretation of a written contract. I see no reason to embark on an excursion leading us into the confusing waters engulfing the amorphous doctrine of waiver.

      . Repealed by Acts 1969, 61st Leg., p. 2707, ch. 888, § 6, eff. Jan. 1, 1970.


author: ESQUIVEL, Justice. BUTTS, Justice,

text:
    Pedro P. MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    Nos. 04-84-00026-CR, 04-84-00027-CR.
    Court of Appeals of Texas, San Antonio.
    March 6, 1985.
    Rehearing Denied April 2, 1985.

      Warren Weir, San Antonio, for appellant.
    Sam Millsap, Jr., Criminal Dist. Atty., Ronald E. Mendoza, Jody Tullos, Edward F. Shaughnessy, III, San Antonio, for ap-pellee.
    Before ESQUIVEL, BUTTS and REEVES, JJ.
   OPINION

ESQUIVEL, Justice.

These are appeals from a conviction for aggravated robbery and from a conviction for aggravated kidnapping.

Appellant was indicted for each of the above designated offenses in separate indictments and under separate case numbers on the docket of the trial court. The parties agreed to try both cases together. Upon appellant’s plea of guilty to the offense charged in each of the indictments, a jury found him guilty of the offense charged in each of the indictments and assessed his punishment for aggravated robbery at fifteen years’ confinement and for aggravated kidnapping at twenty-five years’ confinement. Appellant raises the exact same two grounds of error in each appeal. Since our consideration of appellant’s grounds of error in each appeal will be dispositive of both appeals, we have consolidated both appeals into this one opinion.

In his first ground of error appellant presents us with the issue of whether the trial court erred in permitting the testimony as to an extraneous offense during the punishment phase of the trial. In his second ground of error appellant presents us with the issue of whether the trial court erred in failing to obtain a written jury waiver from him during the plea phase of the trial. We answer both issues in the negative and affirm the judgments of conviction in both cases.

EXTRANEOUS OFFENSE

Following his plea of guilty and the introduction of evidence for the State, the appellant took the stand in his own behalf and the following took place during the cross-examination of appellant by the prosecutor, Ms. Tullos:

“Q: (By Ms. Tullos) Did you try to help Mr. Pisano by allowing him to escape this situation?
“A: (By Appellant) No, ma’am.
“Q: You didn’t do anything to help him?
“A: No, ma’am.
“Q: Now, when you realized that Mr. Pi-sano escaped and ran into the convenience store in Campbellton you and Bob ran?
“A: Yes, ma’am.
“Q: If you were so concerned about cooperating with him, why didn’t you stay there and wait for the law enforcement people to get there?
“A: Well, I got scared.
“Q: You got scared?
“A: Yes, ma’am.
“Q: Scared of what?
“A: That was the first time I had been busted, you know.
“Q: That’s the first time you had been busted?
“A: Yes, ma’am.
“Q: Are you sure that was the first time you had ever been arrested for anything?
“A: Yes, ma’am.
“MS. TULLOS: Your Honor, may we approach the Bench?
“THE COURT: Okay.
“WHEREUPON, a conference was held at the bench outside the hearing of the Court Reporter and the Jury.
“THE COURT: Members of the Jury, if you will follow the Bailiff, he’ll put you in the juryroom for a couple of minutes.
“WHEREUPON, the Jury was excused from the courtroom.
“THE COURT: You may confer with him, if you want to. Just sit with him there and just talk to him privately for a few minutes.
RECESS
“WHEREUPON, at this time, a recess was had afterwhich the following proceedings were had as follows:
“THE COURT: Okay. Go ahead.
“MR. WEIR: Your Honor, my client is now prepared to admit that he gave that answer because he was nervous and that he is prepared now to say that he has been arrested before.
“Under those circumstances, I think you cured [sic] the prejudicial effect of asking him what the offense was he’s been arrested for. Especially since there’s been no final conviction on it. I think it’s just an effort to inject prejudice in the case at this point if he’s willing to admit he’s been arrested for it.
“THE COURT: So you’re going to—
“MR. WEIR: I don’t think there is any probative value served by having the nature of the offense, especially when there’s been no conviction.
“THE COURT: So you’re objecting to the State attempting to impeach him with another arrest in Dallas County or whatever it is?
“MR. WEIR: That’s right.
“THE COURT: Whatever the arrest is?
“MR. WEIR: He’s now prepared to say he has been arrested before.
“THE COURT: Okay. Your objection is overruled. I’m going allow them to ask the question.
“MR. MENDOZA: Judge, for the benefit of the record, the State’s question will be: ‘Is it true that you are the same person who was arrested in Dallas County, Texas on July 1st, 1980 for the offense of sexual abuse against a child?’ That’s going to be our question.
“THE COURT: Okay.
“MR. WEIR: And I object to that question because it’s prejudicial without any probative value in the sense that you can get the same admission from him by asking if he’s ever been arrested before without getting into harmful material of what it was for. Especially since there has been no final conviction.
“THE COURT: Your objection will be overruled, Counsel.
“All right. Are you ready to proceed?
“MR. WEIR: Yes, Your Honor.
“THE COURT: Let’s put the jury back in the box.
“WHEREUPON, the following proceedings were had in the presence of the Jury.
“THE COURT: You may proceed, Counsel.
“QUESTIONS BY MS. TULLOS:
“Q: Mr. Martinez?
“A: Yes, ma’am.
“Q: Are you the same person that was arrested in Dallas County, Texas on July the 1st of 1980 for the offense of sexual abuse—
“MR. WEIR: Just a minute. I want to object to that question being asked. Because he’s already testified, without being controverted, he’s never been convicted of a felony in this state or any other state. And the object of that question is just to introduce prejudice into this trial at this time.
“THE COURT: Your objection is overruled, Counsel.
“QUESTIONS BY MS. TULLOS:
“Q: Are you the same person?
“A: Yes, ma’am.
u * * * * )i

Appellant does not complain of the admission of his previous arrest in Dallas County. His objection is directed to the fact that the State did not limit itself to the fact of the prior arrest but instead was permitted to inquire as to the nature of the offense for which he was arrested. He contends that the introduction of the testimony of a sex offense was temporally and logically unrelated to the offenses which were the gravamen of the State’s cases; that it was calculated to inflame the minds of the jury and of no probative value to the case in chief. He theorizes that it was of such an inflammatory nature that the jury, being morally offended by sex crimes, may have punished him not only for the crime charged but also for the prior offensive act for which he was only arrested. Appellant refers to the fact that even though no evidence of any prior record making him deserving of a harsh sentence was offered, the jury assessed terms of fifteen years and twenty-five years, respectively. Appellant argues that the jury’s assessment of these lengthy sentences must have been affected by its knowledge of his sex charge. We refuse to engage in such conjecture. We agree with the State that this was a legitimate avenue of cross-examination which was precipitated by appellant’s attempt to mislead the trier of fact with respect to his past criminal history.

Rules regarding impeachment of witnesses are fully applicable when it is a defendant testifying. He can be questioned on possible extraneous offenses even if those extraneous offenses have not been reduced to a final conviction when by his testimony, either on direct or cross-examination, he leaves a false impression with respect to his prior criminal record. Baxter v. State, 645 S.W.2d 812, 816 (Tex.Crim.App.1983). In our opinion, appellant’s testimony that he “got scared” and ran because he had never been arrested was a clear attempt to leave a false impression as to his prior criminal record with the jury. Accordingly, we hold that the State had a right to inquire about appellant’s arrest in Dallas County on July 1,1983, for the then offense of sexual abuse. Ground of error number one is overruled.

JURY WAIVER

In support of his contention that fundamental error is present which requires reversal due to the absence of a written jury waiver, appellant asserts that it is clear from the record that the trial court and not the jury found him guilty. Our review of the record leads us to the opposite conclusion. The court’s charge, which is contained in the record, clearly shows an instruction to the jury by the court to find appellant guilty of the offense charged in the indictments and to assess his punishment. The verdict form, also included in this record, clearly reads that the jury found appellant guilty of the offense charged in the indictment in each instance.

When appellant entered his plea of guilty before the jury the only issue to be decided by them was the issue of punishment to be assessed; however, this does not mean that they could not return a verdict of guilty. We, therefore, hold that a written jury waiver was not required. Appellant’s ground of error number two is without merit and is overruled.

The judgment of conviction in each case is affirmed.

BUTTS, Justice,

dissenting.

I respectfully dissent.

As noted by the majority, when a defendant chooses to waive his privilege against self-incrimination by voluntarily testifying, he is generally subject to the same rules as any other witness. Ex parte Carter, 621 S.W.2d 786, 790 (Tex.Crim.App.1981). But the State cannot normally on cross-examination of a defendant or other witness ask about the numbers of arrests he has had and upon receiving a denial from the witness seek to impeach him with his arrest record. Id. at 791. [These statements of law are found in the dissent]. The Carter majority found that it was the direct testimony of Carter which “opened the door,” permitting the State’s impeachment questions on cross-examination. The general rule of inadmissibility for impeachment purposes is that charges of offenses are not admissible unless the charges resulted in final convictions for felony offenses or final convictions involving moral turpitude, none of which are too remote. The exception to the general rule of inadmissibility applies when the defendant leaves a false impression of his past difficulties with the police on direct examination by his own counsel. The exception does not apply when the false impression is created by the State’s cross-examination of the defendant. The State may not rely on its own questioning on cross-examination to contradict the defendant and get in evidence collateral matters and evidence of convictions for other offenses which would otherwise be inadmissible. Shipman v. State, 604 S.W.2d 182, 184-85 (Tex.Crim.App.1980). The exception to the general rule as stated in Shipman and the cases cited therein thus appear to have been enlarged by Carter, Baxter v. State, 645 S.W.2d 812, 816 (Tex.Crim.App.1983) would take this exception a step farther, by stating that impeachment should not be limited solely to the witness’ assertions on direct examination. In that case, however, the court noted the evidence of impeachment did not constitute an extraneous offense, and further, the trial court sustained the objections of the defendant, and no further proof was permitted.

In the present case appellant argues a narrow issue which is not addressed in any of the cases cited: whether the trial court should have permitted him to admit that he had been previously arrested in order to explain his statement made just minutes before on cross-examination by the State. It is significant that appellant did not testify on direct examination that he had never before been arrested. Counsel for appellant immediately offered to put before the jury the appellant’s admission that his statement was incorrect. He pointed out the prejudicial effect of the State’s question if the court allowed it: whether appellant had been arrested for sexual abuse. Appellant explained he was nervous and the evidence clearly shows he is in a below-normal intelligence range. It goes without saying that the offense could not otherwise be proved by the State in its case; in fact it was of no probative value and immaterial to the proof.

The purpose of permitting the State to impeach the defendant-witness when he “opens the door” by creating a false impression of his arrest record is to cast doubt on his veracity and to place before the jury the truth. In this case, before the State asked the question, appellant immediately offered an explanation of the statement and offered to tell the jury he had been arrested previously, thus correcting the false impression. The admission would have displayed to the jury that a falsehood had been stated by appellant and that he had indeed been arrested before. More importantly, the prejudicial effect of the subject of the arrest would have been avoided.

The trial court overruled appellant’s objection and did not permit him to make the statement. The State was then permitted to ask the question. The jury heard what the offense was but did not learn that appellant had requested to correct the statement he made to them. Rather, their impression must have been that appellant lied purposefully and was “caught” by the State in that lie.

In this case due process, as well as one of the purposes of trial — to arrive at the truth without subterfuge — would have best been served by permitting appellant to correct immediately his erroneous statement as he requested to do. Texas cases and law have not addressed this particularized situation. The instant case is distinguishable from the other “false impression” cases. Under these facts, I would reverse.

      . The Baxter opinion (one concurrence, three dissents, one not participating) does not hold that it abolishes or modifies the prevailing rule that the defendant must have opened the door on direct examination, thereby permitting the exception to come into play upon cross-examination by the State. The opinion recognizes the Ex parte Carter and Shipman restrictions on the exception and simply states the exception to the rule should not be limited solely to the witness’ assertions on direct examination. Thus Baxter does not overrule the restrictions.