author: BUTTS, Justice. CADENA, Chief Justice,

text:
    Amando CANALES, et al., Appellants, v. ESTATE OF Jose CANALES, et al., Appellees.
    No. 04-83-00316-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 30, 1984.

      H.H. Rankin, Jr., McAllen, for appellants.
    Seagal Wheatley, San Antonio, Joseph Zitomer, Silver Spring, Md., for appellees.
    Before CADENA, C.J., and BUTTS and REEVES, JJ.
   OPINION

BUTTS, Justice.

This is an appeal from an order sustaining the pleas of privilege of six defendants, Gus T. Canales, Patricia Canales, Mary Grace Canales Hornsby, Charles Hornsby (her husband), Tomasita Canales, and Anne Fuller. Thirty-five plaintiffs sued twenty-five defendants for breach of an oil and gas agreement. Plaintiffs and defendants before this court all claim interests in lands inherited from common ancesters, Andres Canales and his wife, Tomasa Cavezos de Canales. By their pleadings and arguments plaintiffs contend venue must be maintained in Jim Hogg County because part of the subject land is located in that county and this suit is for recovery of royalty interests in the land. TEX.REV. CIV.STAT.ANN. art. 1995(14) (Vernon 1964). We affirm in part and reverse and remand in part.

The children of Andres and Tomasa Ca-nales divided their estate as the result of district court proceedings in 1934, each receiving several thousand acres of land in south Texas. In 1937, five of the children — there are seven — entered into an agreement, which is the basis of this suit, whereby each party agreed that if oil, gas or minerals were discovered on that party’s part of the original Canales estate, he or she would assign an undivided one-fifth of his or her royalty interest to each of the other parties. The contract specifically provided that the agreement “is not intended for record or in any way to affect the title to the lands of the parties hereof.” It further provided that the contract ceased to exist and was void ten years from that date if no oil, gas, or other minerals were discovered in paying quantities on the Ca-nales estate.

Each party to the agreement was title owner to certain tracts within the estate. J.T. Canales, a son and one of the parties, owned the Baluarte Ranch tract when he signed the agreement. Through the years oil in paying quantities was produced on the four other tracts, but not on the Bal-uarte Ranch tract. However, J.T. Canales and his wife executed assignments of any royalty interests to his four brothers and sisters and their families. On June 25, 1956, he amended the assignments to eliminate any royalty interest to the other parties provided there was no production in paying quantities of minerals on the Bal-uarte tract by December 24, 1976. Subsequent to the termination date, oil was produced in paying quantities on the Baluarte tract. The defendants in this venue case are descendants of J.T. Canales (and husband of one).

On appellate review in a venue case the court does not concern itself with the merits of the case and the rights of the parties. Although appellants present nine points of error, we can address them as four in our disposition of the venue question: whether the trial court correctly sustained the plea of privilege of Anne Fuller; whether this is an action for recovery of land which places mandatory venue in Jim Hogg County; whether defendants judicially admitted this is a suit for recovery of land; and whether defendants’ use of discovery waived their pleas of privilege.

FULLER’S VENUE QUESTION

When Anne Fuller filed her “Plea of Privilege,” in June, 1980, she stated she was a resident of Washington, D.C. at the time the suit was instituted and when she was served with process. She did not state that she had a residence in Dallas county nor that she contemplated a move to a residence there. She filed her original answer five minutes subsequent to the first instrument. In her second amended plea she states she is a resident of Dallas County but was a resident of Washington, D.C. at the time of the institution of the suit and service of process upon her.

It is axiomatic that article 1995 benefits only residents of the State of Texas. “No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile ...” (Emphasis added.) One having no residence in Texas has no right to be sued in any particular county unless venue is controlled by some mandatory provision of the statute. See Pegram v. Owens, 64 Tex. 475 (1885); Nolte v. Saenz, 153 S.W.2d 281 (Tex.Civ. App.—San Antonio 1941, no writ). TEX.R. CIV.P. 86. 1 MCDONALD, TEXAS CIVIL PRACTICE, § 4.03.2 (1981). When a defendant who resides in another state files a “plea of privilege” asserting that he is not a resident of the county where the suit was filed but instead is an out-of-state resident, the plea is insufficient because the defendant fails to allege he is a resident of any county in the State of Texas. Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551, 554 (1946).

Fuller filed her answer subject to the original “plea of privilege.” She now argues that no exceptions were leveled at the plea, and her amendment later asserting her residence to be in Dallas replaced the defective plea. We do not agree. The first pleading was a nullity not only for the reasons stated but also in that it requested the court either to transfer the case against her “to a court having proper jurisdiction or dismiss the action” against Fuller. The trial court had jurisdiction to do neither of these under article 1995.

A plea in abatement seeks to have a cause of action dismissed. TEX.R.CIV.P. 85. Generally when an instrument, such as the first two herein, requests dismissal of the cause, this may be construed as a plea in abatement. In any event we hold the first was not a plea of privilege under article 1995. Fuller filed her original answer on June 6, 1980; she filed her first amended “plea of privilege” on February 19, 1981, again asserting she was then and at the time the suit was instituted a resident of Washington, D.C.; there was an identical prayer for transfer to a court having proper venue and jurisdiction or dismissal of the action against her. On August 26, 1982, she filed a second amended plea of privilege in which she stated she now resided in Dallas County, two years after the original answer was filed.

Even under the liberal pleading practice authorized by Rule 84, a plea of privilege is still required to be filed in due order, that is, prior to any plea other than that of a special appearance under Rule 120a. Venue may be waived by failure to comply with this due order of pleading. Crosby v. Heldt Bros. Trucks, 394 S.W.2d 235, 237 (Tex.Civ.App.—San Antonio 1965, no writ) and cases cited therein. In the present case Fuller invoked the general jurisdiction of the court, appeared in the case, and waived any venue rights she might have had. Id. We, accordingly, reverse and set aside the order sustaining the plea of privilege of Fuller.

DISCOVERY AFTER PLEADING VENUE PRIVILEGE

Defendants filed requests for admissions, interrogatories, and a motion to compel answers after filing their pleas of privilege. Plaintiffs erroneously contend these discovery actions resulted in waiver of defendants’ pleas of privilege. It is established law that issuing process for witnesses and taking depositions shall not constitute waiver of a plea of privilege. Petromark Minerals, Inc. v. Buttes Resources Co., 633 S.W.2d 657, 659-60 (Tex. App.—Houston [14th Dist.] 1982, writ dism’d w.o.j.). TEX.R.CIV.P. 88. The point of error is overruled.

APPLICATION OF SUBDIVISION 14

The central question to this appeal is whether the action suffices as a recovery for land under subdivision 14 of article 1995 in effect at the time of this suit, which provides:

Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.

A plaintiff must establish two venue facts to invoke the mandatory provisions of subdivision 14: (1) the location of the land, and (2) the nature of plaintiff’s claim. 1 MCDONALD, TEXAS CIVIL PRACTICE, § 4.22.1 (rev. 1981). It is undisputed in this case that part of the Baluarte tract is located in Jim Hogg County; accordingly, we need only ascertain the nature of plaintiffs’ claim. We will examine, therefore, plaintiff’s pleadings to determine the principal rights asserted, and the relief sought for the breach of that right. See Roach v. Chevron U.S.A., Inc., 574 S.W.2d 200, 202 (Tex.Civ.App.—San Antonio 1978, no writ); Batex Oil Co. v. La Brisa Land & Cattle Co., 352 S.W.2d 769, 771 (Tex.Civ.App.—San Antonio 1961, writ dism’d).

Both a royalty interest and an overriding royalty in minerals are “lands” for the purpose of fixing venue in suits for recovery of such interests or damages thereto, and damages to such estate are damages to land. Anglo Exploration Corp. v. Grayshon, 577 S.W.2d 742, 744 (Tex.Civ.App.—San Antonio 1979, writ ref’d n.r.e.), with many citations confirming this established law. The law is equally well settled that oil and gas, when produced and severed, becomes personal property. Phillips Petroleum Co. v. Mecom, 375 S.W.2d 335, 339 (Tex.Civ.App. — Austin 1964, no writ).

The pertinent parts of plaintiff’s first amended original petition can be summarized:

(1) The plaintiffs are either children, descendants of four children, or trustees of involved estates of Andres and Tomasa Canales and may be designated as parties to the 1937 agreement. J.T. Canales, also a son, was the other party. Minerals in paying quantities were produced within the specified 10 year period on the land belonging to the other four children. They executed the agreed royalty interest deed to J.T. Canales and to each other. There is no dispute that J.T. and his descendants benefited from the royalty interests derived from the land of his siblings on the “Ca-nales estate.”

(2) J.T.’s Baluarte tract did not produce any minerals. He amended his royalty deed to his siblings in 1956. The amendment provided that his royalty deed would expire on December 24, 1976, if no paying production were obtained from the land by that time. J.T. died in 1976, but before his death J.T. sold the tract to his children. After 1976 production in paying quantities from the tract began.

(3) Plaintiffs plead they were in possession of their “aliquot royalty interest” in the land and that defendants unlawfully entered and dispossessed plaintiffs of their royalty interest on the premises and withheld possession [of the royalty interest] and the right to income from the property. Plaintiffs prayed for “title and possession of the ... royalty interest in said ... property, for their damage,” and for general relief.

(4) Plaintiffs further plead conversion in that defendants continued to receive royalty income payments notwithstanding the provisions of the agreement. They further asked that a constructive trust be imposed upon the funds already received by the defendants and for an accounting, as well as damages for breach of the agreement between the five children. Attached to this petition are the agreement and the 1934 partition order dividing the original estate.

We deem the alleged actions of conversion and breach of contract and as well as the impression of a constructive trust on the funds to be primary and the principal right asserted in the suit. We find the pleadings for recovery of title to royalty interests, although couched in terms of a trespass to try title suit, to be ancillary and a method for attempting to assert a claim to royalty interests in land. See, as an example in pleading a royalty interest, Anglo Exploration Corp. v. Grayshon, supra, (where the minerals were still in the ground).

On the merits it appears plaintiffs contend defendants (J.T.’s descendants) were not authorized to terminate the contract (agreement) granting plaintiffs a percentage of any royalty interest in the tract after the termination date. Defendants contend the contract terminated on December 24, 1976, before any production of minerals had been achieved. Plaintiffs seek a constructive trust to be impressed upon any funds received by defendants, as well as an accounting. Defendants contend this is a suit to enforce a contract and recover damages based thereon, and they argue a suit of this nature is not within the purview of subdivision 14. They do not agree this is a suit to recover an interest in minerals in place, to quiet title, or to prevent wastes. They argue the fact involvement of the Baluarte tract does not bring the suit within subdivision 14 provisions.

It is not enough that the suit merely involves land; it must be a suit for the recovery of land or damages thereto, or to quiet the title to land, or to prevent or stay waste on land. Ashby v. Delhi Gas Pipe Line Corp., 500 S.W.2d 686, 690 (Tex.Civ. App.—San Antonio 1973, writ dism’d). Batex Oil Co. v. La Brisa Land & Cattle Co., supra at 773 stated:

It is well settled that a suit for specific performance of a contract of sale of real estate, although the judgment therein may result in a transfer of title to real estate, does not come under Exception 14 of the venue statute requiring suits for the recovery of land or damages thereto to be brought in the county where the land is situated.

See Smith v. Hall, 147 Tex. 634, 219 S.W.2d 441 (1949), and Umbaugh v. Miers, 256 S.W.2d 660 (Tex.Civ.App.—San Antonio 1953, no writ). Plaintiffs’ points of error in which they contend subdivision 14 applies to fix venue are overruled.

We have examined the record and find no merit in plaintiffs’ contention of a judicial confession by defendants that the suit is one for recovery of lands. The transcription of that portion of the venue hearing alluded to by plaintiffs fails to convey with any degree of lucidity what was actually said or meant by the attorneys. There can be no judicial admission under those circumstances. See Griffin v. Superior Insurance Co., 161 Tex. 195, 338 S.W.2d 415, 419 (1960).

It is not necessary in reaching a decision to address defendant’s assertion that plaintiffs alleged in bad faith the trespass action in their first amended original petition because we regard this suit as one for breach of contract, enforcement of its terms, consequential damages flowing therefrom, and other relief.

We hold, therefore, the venue of this cause of action does not come within the purview of the provisions of subdivision 14. The trial court properly sustained the pleas of privilege of the five defendants other than Fuller.

The order sustaining the pleas of privilege of the five defendants other than Fuller is affirmed. The order sustaining the plea of privilege of Fuller is reversed and the cause against her remanded to Jim Hogg County for trial.

CADENA, Chief Justice,

concurring:

While I agree that the judgment below should be affirmed, I cannot join in the conclusion that “the alleged actions of conversion and breach of contract and ... the impression of a constructive trust on the funds ” constitute “the primary and principal right asserted in” plaintiffs’ suit and that “the pleadings for recovery of title to royalty interests, although couched in terms of a trespass to try title suit,” are “ancillary and a method for asserting a claim to royalty interests in land.” Anglo Exploration Corp. v. Grayshon, 577 S.W.2d 742 (Tex.Civ.App.—San Antonio 1979, writ ref’d n.r.e.) does not support this conclusion.

The first count of plaintiffs’ petition is in the form of the traditional form of an action in trespass to try title and meets the requirements of Rule 783, TEX.R.CIV.P. This count, while describing the interest which plaintiffs’ claim (a royalty interest in described land), follows the usual practice and does not allege how plaintiffs acquired their interest, nor does it contain any allegation of fact, other than ownership, in support of plaintiffs’ claim of right to possession. Plaintiffs allege that defendants are withholding from plaintiffs the royalty interest and the right to receive the income from such interest.

The prayer under this first count is for judgment for title and possession of the royalty interest and for damages.

The second count is prefaced by a statement that it is an alternative pleading and is not a waiver of the first count. The allegations under this count are fairly summarized in paragraphs (1), (2) and (4) of the majority opinion except for the fact that the majority opinion fails to mention allegations that defendants breached a fiduciary duty.

By their prayer under the second count plaintiffs sought judgment for:

1. Title, possession and damages to their royalty interest.

2. An accounting of all royalties received by defendants.

3. The imposition of a constructive trust on such royalties.

4. The termination of such trust and disbursement of its assets.

5. Damages for breach of the agreement, breach of fiduciary duty, and conversion.

6. Exemplary damages, attorney’s fees, interest and court costs.

Grayshon merely holds that (1) a royalty interest is “land” for the purpose of fixing venue under subdivision 14, and (2) a suit claiming equitable title to land by means of a constructive trust is a suit for recovery of land under such subdivision. 577 S.W.2d at 744, 745.

In describing the nature of plaintiff’s suit in Grayshon, this Court said,

The principal right asserted in [plaintiff’s] suit for which relief is sought is for establishment through a constructive trust of an equitable title to 20% of certain overriding royalties received by defendants under an assignment of an oil, gas and mineral lease covering certain lands in Webb County. The action for specific performance and for breach of contract is merely ancillary thereto, ...

577 S.W.2d at 745.

The Grayshon opinion states that plaintiff’s prayer was “for 20% of the overriding royalty interest, ... for an accounting, for exemplary damages, and for other relief ...” 577 S.W.2d at 745. According to the transcript which is on file as part of the official records of this Court, plaintiff’s prayer was for (1) “any monies due after an accounting,” (2) 20% of the overriding royalty interest, (3) “20% of all monies received by defendants as a result of production from” the lease, (4) exemplary damages, and (5) costs and such other relief, etc.

The relief sought in Grayshon is the same as the relief sought by plaintiffs in this case. In both cases plaintiffs sought judgment awarding them title to the royalty interest, the only difference being that in this case a judgment for title was listed first in the prayer while in Grayshon plaintiff’s first prayer was for a judgment “for monies due” him. In Grayshon, plaintiff prayed for judgment for “20% of the” royalty interest while in this case plaintiffs, under both counts, prayed for judgment “for title and possession” and for damages. Grayshon, in his petition alleged that he “claims a constructive trust as to such royalty interest,” although his prayer does not ask that a constructive trust be impressed on such interest. In this case while plaintiff asked that a constructive trust be placed on the “royalties received by” defendants, his allegations of breach of a fiduciary duty by defendants state grounds for imposition of a constructive trust on the royalty interest. It is true that plaintiff in this case did not ask for such relief in his prayer, but neither did Grayshon.

There is no basis for holding that in Grayshon the primary purpose of the suit was the establishment of an equitable title to the royalty interest while in this case “the alleged actions of conversion and breach of contract as well as the impression of a constructive trust” on the monies received by defendants are the primary and principal rights asserted, with the pleadings for recovery of title to the royalty interest are “ancillary.” In both cases plaintiffs seek title to the royalty interest and recovery of the funds received by defendants.

The fact that, as asserted in the opinion of Justice Butts, the pleadings for recovery of the royalty interest in this ease is “a method for asserting a claim to royalty interests in land” is no basis for giving primacy to the allegations which seek a recovery of monies received by defendants. If that be true, the claim of a constructive trust in Grayshon would be reduced to a similar secondary and ancillary status because such claim is no more than a method for asserting a claim to royalty interests in land. The majority theory, which makes the primary purpose of plaintiffs’ suit the recovery, by means of a constructive trust, of monies received by defendant, leads to a strange result. Plaintiffs’ prayer in this case expressly seeks “an order terminating said trust and disbursing its assets.” Under the Justice Butts’ theory, the principal purpose of the suit is to recover only such funds as defendants might have in their hands on the date of judgment, when the constructive trust is to be terminated and the assets disbursed, and the prayer to establish title to the royalty interest be treated as something thrown in as an afterthought of little importance so long as plaintiffs recover the money already received by defendants. It is clear that plaintiffs seek to establish title to the royalty interest and, on the basis of such title, to establish their right to the royalty payments which defendants have received. This is exactly what plaintiff sought in Grayshon.

Plaintiffs’ alternative plea clearly recites that such alternative plea is not relied on to exclusion of any other title that plaintiffs’ might establish under the count in trespass to try title. The alternative plea did not bar proof by plaintiffs of any title they might establish under their trespass to try title count. Rhoades v. Meyer, 418 S.W.2d 300, 302 (Tex.Civ.App.—Texarkana 1967, writ ref d n.r.e.).

Plaintiffs’ pleadings in this case clearly establish that the suit is one for the recovery of title to land under subdivision 14.

However, I agree that the order sustaining the pleas of privilege of the five defendants other than Anne Fuller should be affirmed, because the evidence is sufficient to support the finding that the allegations in plaintiffs’ pleading seeking to maintain venue in Jim Hogg County under subdivision 14 were made in bad faith.

Plaintiffs’ claim of equitable title must rest on the fact that oil and gas were being produced on the land in question by December 24, 1976. All of the evidence is to the effect that there was no production of oil, gas or other minerals on the land until 1977. While the witness who gave such testimony could not definitely establish the date in 1977 when such production began, he clearly and directly testified that there had been no production prior to 1977. Although plaintiffs’ attorney testified that he embodied the venue allegations in the pleadings in good faith and had no personal knowledge as to whether production had begun by December 24, 1976, there is no testimony concerning the knowledge or belief of plaintiffs themselves. It would have taken no great effort for plaintiffs to discover whether there had, in fact, been production on the land prior to December 24, 1976. Plaintiffs had the means at hand of obtaining knowledge of the pertinent facts concerning production. There is no evidence that they made any effort to discover the relevant facts. Under these circumstances, the trial court did not abuse its discretion that in holding that the venue allegations were not made in good faith, and the evidence is sufficient to support the trial court’s finding. See Batex Oil Company v. La Brisa Land & Cattle Co., 352 S.W.2d 769, 772 (Tex.Civ.App.—San Antonio 1962, writ dism’d).


source: Caselaw Access Project

author: TIJERINA, Justice. ESQUIVEL, Justice, DIAL, Justice,

license: Public Domain

text:
    Alma Nydia RAMOS, Appellant, v. Daniel RAMOS, Jr., Appellee.
    No. 04-84-00231-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 30, 1984.

      Eustorgio Perez, Laredo, for appellant.
    Carlos David Castillon, Laredo, for appel-lee.
    Before ESQUIVEL, TIJERINA and DIAL, JJ.
   OPINION

TIJERINA, Justice.

This appeal concerns a trial court order modifying the managing conservator provisions of a 1982 divorce decree. The trial court, without jury, held appellant in contempt for denying appellee access to the child, and granted the motion to modify naming appellee as the managing conservator. Findings of fact and conclusions of law were filed.

The prior divorce decree named appellant as the managing conservator. Appellee, as the possessory conservator, was awarded possession of the child on alternating Sundays and every Wednesday evening. The record reflects that the trial court previously held appellant in contempt for refusal to allow the father to exercise his visitation rights; however, punishment was postponed. On appeal, appellant contends that there is no evidence or insufficient evidence to support the motion for modification or the contempt order. We reverse the judgment of the trial court in part, and affirm in part.

TEX.FAM.CODE ANN. § 14.08(c) (Vernon Supp.1984) provides that a trial court may order modification of child custody after a hearing if (1) the circumstances of the child, managing conservator, posses-sory conservator, or other party affected by the decree have materially and substantially changed since the entry of the order or decree to be modified; and (2) the retention of the present managing conservator would be injurious to the child’s welfare; and (3) the appointment of a new managing conservator would be a positive improvement for the child. See Gibbs v. Greenwood, 651 S.W.2d 377, 379 (Tex.App.—Austin 1983, no writ). The burden is on the movant to establish the latter two elements by a preponderance of the evidence. Oglesby v. Silcott, 620 S.W.2d 820, 823 (Tex.Civ.App.—Tyler 1981, no writ); see In the Interest of Soliz, 671 S.W.2d 644, 647 (Tex.App.—Corpus Christi 1984, no writ).

The trial court has wide discretion in determining child custody matters when it is the trier of fact and its decision will not be overturned absent a showing of a clear abuse of discretion. Hamann v. Morentin, 660 S.W.2d 645, 646 (Tex.App.—Fort Worth 1983, no writ); Dunker v. Dunker, 659 S.W.2d 106, 108 (Tex.App.—Houston [14th Dist.] 1983, no writ); In the Matter of the Marriage of Stockett, 570 S.W.2d 151, 153 (Tex.Civ.App.—Amarillo 1978, no writ).

In considering a no evidence contention, we consider only the evidence favorable to the verdict and disregard all evidence to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Files v.

Thomasson, 578 S.W.2d 883, 884 (Tex.Civ. App.—Houston [14th Dist.] 1979, no writ). But when determining the sufficiency of the evidence we consider all the evidence to determine if the findings are so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); Queton v. Queton, 622 S.W.2d 648, 650 (Tex.App.—Fort Worth 1981, writ ref’d n.r.e.). While findings of fact and conclusions of law ordinarily are binding on an appellate court, they are not binding when the statement of facts comprises a part of the record and the evidence is legally or factually insufficient to support them. Bobbitt v. Electronic Data Systems, 652 S.W.2d 620, 622 (Tex.App.— Dallas 1983, no writ); Armstrong v. Armstrong, 601 S.W.2d 724, 727 (Tex.Civ.App.—Beaumont 1980, writ ref d n.r.e.).

The fact that the father has been denied his visitation rights, or has remarried, moved into a house, or his new wife is pregnant “are neither material nor substantial [changes] absent a showing of a relationship of such developments to the welfare of the children.” Armstrong v. Armstrong, supra, Files v. Thomasson, supra, at 884-85. As in Files, the father in our case presented evidence mainly supporting the contention that he was denied his visitation rights.

The evidence concerning a material and substantial change is that the child is no longer breast or bottle fed (she is now 4 years old); the child no longer needs to wear diapers; the mother is no longer employed; the father is remarried; the father has moved into an apartment; and the father’s new wife is pregnant. The evidence tending to show that maintenance of the present managing conservator would be injurious to the welfare of the child is that the father has been denied visitation with the child, and as a result, he is unable to have a relationship with the child and teach her his morals and principles. The father stated his belief that his lack of visitation will damage the child’s emotional well-being, but also stated she has been “very cheerful, very happy go lucky,” and that she is very healthy. To show that the appointment of a new managing conservator would be a positive improvement for the child, the father stated he believed his appointment would be in the child’s best interest and the child could form a relationship with both mother and father. No evidence was presented concerning the living conditions of the child when living with her mother. See Armstrong v. Armstrong, supra, at 727.

While there is some evidence of change, we hold it is insufficient to establish a material and substantial change. Further, the evidence is insufficient to show that maintenance of the status quo, the mother as the managing conservator, will be injurious to the child’s welfare, or that substituting the father as managing conservator will be a positive improvement for the child. See Dalton v. Doherty, 670 S.W.2d 422, 424 (Tex.App.—Fort Worth 1984, no writ); Gaona v. Gaona, 627 S.W.2d 821, 823-24 (Tex.App.—San Antonio 1982, no writ).

The mother also raises no evidence and insufficient evidence points regarding the trial court’s finding of contempt. The evidence is conflicting as to whether she denied the father visitation rights. The judge, as the trier of fact, had the opportunity to observe the witnesses and to determine their credibility. Buffalo Savings & Loan Association v. Trumix Concrete Co., 641 S.W.2d 650, 653 (Tex.App.—Corpus Christi 1982, no writ); National Resort Communities, Inc. v. Holleman, 594 S.W.2d 195, 197 (Tex.Civ.App.—Austin 1980, writ ref’d n.r.e.).

The evidence is insufficient to support the trial court’s modification of managing conservator from the mother to the father; therefore, the trial court abused its discretion, and in this respect the judgment is reversed and rendered. The evidence is sufficient to support the finding that the mother is in contempt and in this respect judgment is affirmed.

ESQUIVEL, Justice,

concurring.

I concur in the result.

Following the standard of review as set out in Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965), I would go no further than to sustain the appellant’s, the mother’s, legal sufficiency point of error. Accordingly, it follows that I likewise find an abuse of discretion on the part of the trial court in changing the conservatorship of the child.

From the record, the trial court, as the trier of fact, was correct in his findings that the mother denied the appellee, the father, his visitation rights as ordered in the modified decree of divorce. There is, however, no evidence in the record concerning the living conditions of the child when with the mother; there is no evidence as to the conditions under which the child would live if custody was changed to the father; and, equally significant, there was no evidence of any change in conditions since the entry of the modified order. The only facts established were that the child was older and needed less care, that the father was remarried and lived in an apartment with his present wife, all of which cannot be deemed to be a change of condition. I agree that it was definitely established by the evidence presented that the mother had unjustly denied the father visiting privileges. I cannot hold, however, that this, standing alone, constituted legally sufficient evidence to change the conservator-ship of the child from the mother to the father. See Armstrong v. Armstrong, 601 S.W.2d 724, 727 (Tex.Civ.App.—Beaumont 1980, writ ref’d n.r.e.).

Section 14.07(a) of the Texas Family Code, and the decisions thereunder, place a heavy burden upon a party seeking to modify custody rights granted in a decree of divorce. Armstrong, 601 S.W.2d at 725. Accordingly, I hold that the father utterly failed to offer any evidence sufficient to meet the “threshold inquiry.”

I agree with the majority’s disposition that the judgment of the trial court modifying and changing the conservatorship of the child be reversed and rendered and that the father’s motion to modify be denied. I also agree that the judgment of the trial court holding the mother in contempt be affirmed.

DIAL, Justice,

dissenting.

The panel finds itself on the horns of a dilemma. On one side is that portion of TEX.FAM.CODE ANN. § 14.08(c) (Vernon Supp.1984) quoted in the majority opinion, setting out the very narrow circumstances under which a trial court may change the managing conservator of a child. I commend the majority’s efforts to follow this very laudible legislative mandate. A change of custody disrupts a child’s home life and personal relationships. It should therefore be ordered only when the court is convinced that it would be a positive improvement for the child. Taylor v. Meek, 154 Tex. 305, 310, 276 S.W.2d 787, 790 (1955).

On the other side is the equally clear directive that the trial court’s judgment in determining the best interest of a child in awarding its custody in accordance with such determination should be reversed only when it appears from the record as a whole that the trial court has abused its discretion. Herrera v. Herrera, 409 S.W.2d 395, 396 (Tex.1966). We likewise agree with the • majority that the findings of a trial court are binding on an appellate court in a child custody case unless they are so contrary to the great weight and preponderance of the evidence as to indicate a clear abuse of discretion. Tye v. Tye, 532 S.W.2d 124,127 (Tex.Civ.App.—Corpus Christi 1975, no writ).

The majority sets out the evidence of change offered by the father and found in the record. There is authority, correctly cited by the majority, that the single fact of denial of visitation rights is not a material nor substantial change. Armstrong v. Armstrong, 601 S.W.2d 724 (Tex.Civ.App.—Beaumont 1980, writ ref’d n.r.e.). There is also authority cited that the remarriage of the father, moving into his own residence and expecting a new child is by itself not a material nor substantial change. Files v. Thomasson, 578 S.W.2d 883 (Tex. Civ.App.—Houston [14th Dist.] 1979, no writ). But that case holds that the same evidence would bear on the question of the best interest of the child, which is the primary consideration of the court in such cases. Files, supra, at 885; TEX.FAM. CODE ANN. § 14.07(a) (Vernon 1975). To this I would add that the deprivation of the care and attention of a father would also have a crucial bearing on the best interest of the child. Both items of evidence relate to the issues of the child’s welfare and whether or not a change would be an improvement. § 14.08(c), supra.

This case will hereafter be the only Texas holding that the denial of paternal visitations, plus the creation by the father of a family constellation in a new residence, plus a significant maturation of the child are not only insufficient evidence of change, but if they convinced a district judge that the best interest of a four-year old child really warranted a change, it would amount to a clearly abusive discretionary finding.

The judge believed that it would be better for the child to live in a home with a father, step-mother, and younger sibling, have the benefit of a father’s love and attention as well as generous visitation from the natural mother to add her wholesome influence. The alternative of living with an unemployed single mother and an elderly grandmother, while a father’s influence was consistently denied, was a situation that >the trial judge felt was injurious to the welfare of the child. I support the wise decision of the trial judge to try to give the child the benefit of love and attention from both parents in the most suitable home environment available.

Since the evidence does support his findings and conclusions, I feel we are bound to affirm the order of the trial judge.

I respectfully dissent.

      . This section was amended effective September 1, 1983. The major change pertinent to this case is putting the three elements in the conjunctive.

      . Note: In O. v. P., 560 S.W.2d 122, 126 (Tex.Civ. App. — Fort Worth 1977, no writ), the Fort Worth Court of Appeals overruled sufficiency of the evidence questions concerning a material and substantial change when the evidence showed the mother "violated [the father’s] visitation rights on several occasions since the granting of their divorce,” but reversed because the evidence was insufficient to support the holding that retention of the present managing conservator would be injurious to the welfare of the child.

      . TEX.FAM.CODE ANN. § 14.07(a) (Vernon 1978), reads as follows: "The best interest of the child shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to the child_”


author: AKIN, Justice.

text:
    Donald E. STATHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 05-83-01325-CR.
    Court of Appeals of Texas, Dallas.
    Dec. 4, 1984.
    Rehearing Denied Jan. 2, 1985.
    Raymond G. Wheless, Plano, for appellant.
    Roger V. Dickey, Asst. Dist. Atty., McKinney, for appellee.
    Before AKIN, VANCE and ALLEN, JJ.
   AKIN, Justice.

Donald E. Statham appeals from a conviction of theft of the value of at least $200 ' but less than $10,000. Appellant contends that the trial court erred in permitting the State, over appellant’s objections, to cross-examine and impeach him with evidence of an alleged extraneous offense that did not result in a final conviction. We agree with appellant and, accordingly, reverse and remand the cause to the trial court.

Appellant accepted a check for $300 from the complainant, Jenkinson, as a deposit on the purchase price of a chair that appellant was to order for Jenkinson. Jenkinson never received the chair and appellant did not return the $300 to him. Appellant testified on his own behalf at trial. On cross-examination, the prosecutor questioned appellant regarding an allegation that he had attempted to shoplift some merchandise from a Target store. Appellant objected to this line of questioning and moved for a mistrial on the ground that the State was attempting to bring before the jury an inadmissible extraneous offense. Appellant’s objections and motion were overruled.

TEX.CODE CRIM.PROC. art. 38.-29 (Vernon 1979) provides that only offenses resulting in final convictions or present probation may be used to impeach a defendant or witness. The convictions that may be used for impeachment purposes are limited to felonies and offenses involving moral turpitude. Ochoa v. State, 481 S.W.2d 847 (Tex.Crim.App.1972). Generally, evidence of specific acts of misconduct of a defendant or witness that have not resulted in final convictions are not admissible for impeachment purposes. Bell v. State, 620 S.W.2d 116 (Tex.Crim. App.1981); Hoffman v. State, 514 S.W.2d 248 (Tex.Crim.App.1974). An exception applies, however, when the testifying defendant makes blanket statements concerning his exemplary conduct such as never having been arrested, charged, or convicted of any offense, or purports to detail his convictions and in doing so gives the jury a false impression that there are no others. Ex parte Carter, 621 S.W.2d 786 (Tex. Crim.App.1981); Ochoa, 481 S.W.2d at 850. When such blanket statements are made, the State may refute them by introducing evidence of extraneous offenses.

In our case, the State points to certain direct testimony of appellant and one of his witnesses, Jacqueline Nguyen, and certain testimony of appellant elicited on cross-examination. The State contends that this testimony, when considered together, constitutes a blanket statement of exemplary conduct through which appellant sought to place before the jury a false impression of his conduct in his business dealings. The State argues that appellant thus “opened the door,” allowing the State to cross-examine him about his “business dealings” with a Target store — specifically, about an alleged shoplifting incident at the store that did not result in a final conviction. At the outset, we note that only testimony presented on direct examination can be considered in determining whether the testimony constitutes a blanket statement that opens the door for the impeachment of the witness through admission of the extraneous offense. Shipman v. State, 604 S.W.2d 182 (Tex.Crim.App.1980). Consequently, we look only to the direct testimony of appellant and Nguyen in determining whether such a blanket statement was made.

The direct testimony of appellant which, when examined together with certain testimony of Nguyen, purportedly constitutes a blanket statement of exemplary conduct is:

Q. How many different people would you say you bought furniture and other goods for through Jacqueline Nguyen?
A. Probably a dozen; her next door neighbor, the friend Chris lived with, Terry Jenkinson — Chris’s father, Terry; Doctor Thong, her boss. I redesigned the beauty shop down there for them.
Q. What place is that?
A. Hair Craft, at Custer and Park Place.
Q. Did you provide all the goods to these individuals and companies that you promised?
A. Yes. Everything was delivered without any incident.
Q. Were you paid what you were agreed to be paid?
A. Yes.
Q. No criminal charges were brought against you in connection with any of those?
A. Never.
(emphasis added). The direct testimony of Nguyen at issue is:
Q. Did Don ever try to connive these people out of their money?
A. No — you mean try to cheat them?
Q. Yes.
A. No. If you in business and you cheating, they not come back to you, not recommend. (Emphasis Added).

We hold that this testimony, even when considered together, is not a blanket statement of exemplary conduct that would allow the State to introduce allegations of extraneous offenses under the exception to the general rule. The record reflects that the questions of appellant’s counsel, and the responses of appellant and Nguyen, were directed only toward appellant’s business dealings with customers obtained through referrals from Nguyen. The testimony concerned a specific group of transactions and was not, as the State would have us hold, a blanket statement going to all of appellant’s various business dealings.

An examination of cases discussing the “blanket statement exception” to the general rule of inadmissibility supports our holding. The types of statements held to open the door for admission of extraneous offenses are truly “blanket” in scope: statement that defendant had never been convicted of a felony or misdemeanor, Orozco v. State, 301 S.W.2d 634 (Tex.Crim. App.1957); statement that defendant had never before been called to testify as a defendant in any case, Stephens v. State, 417 S.W.2d 286 (Tex.Crim.App.1967); statement that defendant had never been involved with a particular type of crime, Page v. State, 486 S.W.2d 300 (Tex.Crim. App.1972), Hamilton v. State, 480 S.W.2d 685 (Tex.Crim.App.1972); statement that defendant had never had any complaints lodged against him, Hoffman v. State, 514 S.W.2d 248 (Tex.Crim.App.1974); and statement by defendant detailing only part of his prior criminal record, thereby implying that he had recited his record in its entirety, Ex parte Carter, 621 S.W.2d 786 (Tex. Crim.App.1981), Bell v. State, 620 S.W.2d 116 (Tex.Crim.App.1981), Reese v. State, 531 S.W.2d 638 (Tex.Crim.App.1976), and Nelson v. State, 503 S.W.2d 543 (Tex.Crim. App.1974). The testimony in the instant case does not rise to the level of a “blanket statement.” Rather, a limited number of specified business transactions were discussed. Consequently, the trial court erred in permitting the State to bring evidence of the alleged Target shoplifting incident before the jury. Accordingly, we reverse and remand.

      . Art. 38.29. [732a] Indictment, information or complaint not admissible to impeach witness
      The fact that a defendant in a criminal case, or a witness in a criminal case, is or has been, charged by indictment, information or complaint, with the commission of an offense against the criminal laws of this State, of the United States, or any other State shall not be admissible in evidence on the trial of any criminal case for the purpose of impeaching any person as a witness unless on trial under such indictment, information or complaint a final conviction has resulted, or a suspended sentence has been given and has not been set aside, or such person has been placed on probation and the period of probation has not expired....


author: PER CURIAM.

text:
    Robert Caldwell HOLT, Appellant, v. The STATE of Texas, Appellee.
    No. 3-84-035-CR.
    Court of Appeals of Texas, Austin.
    Dec. 5, 1984.
    Michael Brandes, Brandes & Kiester, Austin, for appellant.
    Margaret Moore, County Atty., Claire Dawson-Brown, Asst. County Atty., Austin, for appellee.
    Before PHILLIPS, C.J., and POWERS and GAMMAGE, JJ.
   PER CURIAM.

A jury found appellant guilty of driving while intoxicated. Tex.Rev.Civ.Stat. art. 6701l-1 (1979 Tex.Gen.Laws, ch. 682, § 3 at 1609). The court assessed punishment at incarceration for forty-five days and a $500.00 fine, but imposition of sentence was suspended and appellant was placed on probation.

In one of his two grounds of error, appellant contends the trial court erroneously excluded the testimony of a defense witness. We agree. Because this ground of error is dispositive, discussion of the other ground is unnecessary.

The witness in question was Kirt Kiester, an Austin attorney who practices in association with Michael Brandes, appellant’s trial counsel. Kiester testified outside the presence of the jury that he is a personal friend of appellant and represents him in legal matters of a civil nature. Following his arrest at 11:50 p.m. on May 5, 1981, appellant called Kiester and asked him to come to the police station to secure his release pursuant to the “Hobby rule.” Kiester arrived at the police station at 1:30 a.m. Kiester testified that appellant’s behavior was completely normal, and that he manifested none of the physical symptoms associated with intoxication. Appellant was coherent and alert, and gave Kiester perfect directions to his home. In Kiester’s opinion, appellant was not intoxicated.

The State argued, and the trial court ruled, that the admission of this testimony would violate Disciplinary Rule 5-102(A) of the Code of Professional Responsibility, which provides:

If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial....

The trial court reasoned that if Kiester were permitted to testify, appellant’s trial counsel, Brandes, would be forced to withdraw from the case or face disciplinary proceedings. To avoid this result, the court sustained the State's objection to Kiester’s testimony.

Unless Disciplinary Rule 5-102(A) constitutes a limitation, Kiester was competent to testify on appellant’s behalf. Texas Code Cr.P.Ann. art. 38.10 (Supp.1984) provides that:

All other persons, except those enumerated in Articles 38.06, 38.101, 38.11, and 38.111, whatever may be the relationship between the defendant and witness, are competent to testify, except that an attorney at law shall not disclose a communication made to him by his client during the existence of that relationship, nor disclose any other fact which came to the knowledge of such attorney by reason of such relationship.

Kiester’s proposed testimony did not violate the attorney/client privilege, and none of the other exceptions referred to in art. 38.10 apply to this case.

In Pannell v. State, 666 S.W.2d 96 (Tex.Cr.App.1984), a district attorney violated Disciplinary Rule 7-104(A)(l) of the Code of Professional Responsibility by interviewing the defendant without the prior consent of his court-appointed attorney. The defendant argued that the resulting confession was inadmissible under Tex.Code Cr.P. Ann. art. 38.23 (1979) as having been obtained in violation of a law of the State. The court rejected this argument, holding:

[T]he disciplinary rules of the Code of Professional Responsibility are not laws of the State of Texas as were contemplated by Article 38.23, supra. Thus, violation of one of these disciplinary rules in obtaining evidence for a criminal proceeding will not bar introduction of that evidence at trial.... We agree with our brothers in the federal system that such ethical violations are to be dealt with by means of the administrative mechanisms specially established for dealing with such unethical conduct.

666 S.W.2d at 98.

While appellant’s trial counsel might have violated Disciplinary Rule 5-102 by calling his associate Kiester to testify on appellant’s behalf, this did not constitute grounds for excluding Kiester’s otherwise competent testimony. Because Kiester was the only defense witness to have seen appellant soon after his arrest, we cannot conclude that the exclusion of this testimony was harmless error.

The judgment of conviction is reversed and the cause remanded to the trial court for a new trial.

PHILLIPS, C.J., not participating.

      . Although the judgment of conviction was signed by the Honorable Steve Russell, the presiding judge at appellant's trial was the Honorable Bob Perkins, Russell’s predecessor as judge of the County Court at Law No. 2.

      . The trial court’s express ruling was as follows: "The Court feels that, in order to do that, that then you would have to withdraw, which would then face the Court with either proceeding with Mr. Holt representing himself or getting another attorney to finish up the trial or declaring a mistrial, none of which three possibilities the Court feels — deems advisable or proper to occur. Therefore, the Court will sustain the State’s objection to the testimony of this witness, and you may step down.”


author: EARL W. SMITH, Justice. BRADY, Justice,

text:
    Ex parte James MATTOX, Appellant.
    No. 3-84-201-CR.
    Court of Appeals of Texas, Austin.
    Dec. 5, 1984.

      Roy Q. Minton, Minton, Burton, Poster & Collins, Austin, for appellant.
    Ronald Earle, Dist. Atty., Philip A. Nelson, Jr., First Asst. Dist. Atty., Austin, for appellee.
    Before SHANNON, EARL W. SMITH and BRADY, JJ.
   EARL W. SMITH, Justice.

The appellant, James Mattox, applied for a writ of habeas corpus in the trial court, contending that he is unlawfully restrained pursuant to three indictments pending against him. The indictments allege the offense of commercial bribery, Tex.Pen. Code Ann. § 32.43(c) (1974), and are based on the same alleged incident. Mattox has executed a personal bond in each cause, and it is undisputed that he is restrained in his liberty by reason of the indictments and bonds. Tex.Code Cr.P.Ann. art. 11.22 (1977). Following a hearing upon the writ, the trial court entered an order denying relief and Mattox gave notice of appeal.

In his first two grounds of error, Mattox contends the indictments are fundamentally defective because they fail to allege the forbidden conduct and required culpability elements of commercial bribery. We do not reach the merits of these contentions, because it is well established that this is a matter that cannot be raised in a pretrial habeas corpus proceeding.

The general rule is this: when there is a valid penal statute under which a prosecution may be brought, habeas corpus is not available to test the sufficiency of the charging instrument prior to trial. Ex parte Mangrum, 564 S.W.2d 751 (Tex.Cr.App.1978); Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1977); Ex parte Ward, 560 S.W.2d 660 (Tex.Cr.App.1978); Ex parte Dickerson, 549 S.W.2d 202 (Tex.Cr.App.1977); Ex parte Greene, 406 S.W.2d 465 (Tex.Cr.App.1966); Ex parte Drenner, 125 Tex.Cr.R. 331, 67 S.W.2d 870 (1934); Ex parte Jarvis, 109 Tex.Cr.R. 52, 3 S.W.2d 84 (1928); Ex parte Webb, 113 S.W. 545 (Tex.Cr.App.1908); Ex parte Beverly, 34 Tex.Cr.R. 644, 31 S.W. 645 (1895). Mat-tox acknowledges the existence of this long line of precedent, but argues that these cases no longer correctly state the law.

Mattox relies on the oft-stated principle that the failure of the charging instrument to allege all elements of the offense is a fundamental defect depriving the trial court of jurisdiction, and may be asserted at any time. But the opinions in which this language is found and on which Mattox relies deal with post-trial attacks, either direct or collateral, on judgments of conviction. See American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974) [fundamentally defective indictment may be challenged for first time on appeal]; Duplechin v. State, 652 S.W.2d 957 (Tex.Cr.App.1983), and Ex parte Millard, 587 S.W.2d 703 (Tex.Cr.App.1979) [collateral attack on judgment of conviction used for enhancement of punishment]; Salazar v. State, 589 S.W.2d 412 (Tex.Cr.App.1979), and Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975) [collateral attack on judgment of conviction in probation revocation proceeding]; Ex parte Munoz, 657 S.W.2d 105 (Tex.Cr.App.1983), and Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr. App.1977) [collateral attack on judgment of conviction pursuant to Tex.Code Cr.P.Ann. art. 11.07 (1977 and Supp.1984)]. Mattox correctly observes that this willingness on the part of the Court of Criminal Appeals to permit belated attacks on the sufficiency of the charging instrument represents a recent change in the law. Compare Ex parte Minor, 146 Tex.Cr.R. 159, 172 S.W.2d 347 (1943) and Ex parte Roberts, 502 S.W.2d 802 (Tex.Cr.App.1973), with Standley v. State, supra, and Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App.1975). However, that court has not manifested a similar willingness to permit pretrial collateral attacks on charging instruments.

It is true, as Mattox points out, that the Court of Criminal Appeals has occasionally entertained pretrial habeas corpus proceedings begun for the purpose of setting aside an indictment or information. But in each of these cases, the issue was not the sufficiency of the allegations in the charging instrument but the legal authority of the State to prosecute the accused. See Ex parte Dickerson, supra, and Ex parte Ward, supra [charging instrument showed on its face that prosecution was barred by limitations]; Ex parte Becker, 459 S.W.2d 442 (Tex.Cr.App.1970) [indictment returned by irregularly empaneled grand jury]; Ex parte Mangrum, supra [indictment based on repealed statute]; Ex parte Menefee, supra [juvenile indicted without examining trial]. Moreover, in Mangrum, Menefee, Ward, and Dickerson, all decided after the Court of Criminal Appeals opened the door to post-trial collateral attacks on charging instruments, the court was careful to point out that it was acting pursuant to a narrow exception to the general rule prohibiting such attacks prior to trial. Mattox is asking this Court to read into these opinions a holding that is contrary to their express language.

Before trial, the accused may challenge the sufficiency of the State’s pleading in a motion to quash. Should the motion be overruled and the accused subsequently convicted, the issue may be taken up on appeal. Mattox does not assert any extraordinary interest that would justify the delay and judicial wheelspinning that would result were defendants authorized to institute pretrial collateral proceedings, complete with interlocutory appeals, to test the sufficiency of the allegations in a charging instrument. Cf. Ex parte Robinson, 641 S.W.2d 552 (Tex.Cr.App.1982) [pretrial review of defendant’s jeopardy claim]. Rulings on other pretrial motions, even those with a constitutional basis such as motions to suppress unlawfully seized evidence, must be reviewed on appeal and may not be pursued in pretrial collateral proceedings.

In summary, the Court of Criminal Appeals has clearly and consistently held that an accused cannot challenge the sufficiency of the charging instrument’s allegations in a pretrial habeas corpus proceeding. None of the cases cited by Mattox are authority to the contrary. We therefore overrule the first and second grounds of error.

In his third and fourth grounds of error, Mattox contends that § 32.43(c) is unconstitutionally vague on its face and as applied to the facts alleged in the indictments. A penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first element of due process of law. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). A statute alleged to violate the Constitution may be challenged through application for writ of habeas corpus. Crisp v. State, 643 S.W.2d 487 (Tex. App.1982), aff’d, Ex parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1983).

Section 32.43, as it read at the time of the alleged offense, provided:

(a) For purposes of this section:
(1) “Beneficiary” means a person for whom a fiduciary is acting.
(2) “Fiduciary” means:
(A) an agent or employee;
(B) a trustee, guardian, custodian, administrator, executor, conservator, receiver, or similar fiduciary;
(C) a lawyer, physician, accountant, appraiser, or other professional advis- or; or
(D) an officer, director, partner, manager, or other participant in the direction of the affairs of a corporation or association.
(b) A person who is a fiduciary commits an offense if he intentionally or knowingly solicits, accepts, or agrees to accept any benefit as consideration for:
(1) violating a duty to a beneficiary; or
(2) otherwise causing harm to a beneficiary by act or omission.
(c) A person commits an offense if he offers, confers, or agrees to confer any benefit the acceptance of which is an offense under Subsection (b) of this section.
(d) An offense under this section is a felony of the third degree.

“Benefit” is defined in Tex.Pen.Code Ann. § 1.07(a)(6) (1974) as follows:

[A]nything reasonably regarded an economic gain or advantage, including benefit to any other person in whose welfare the beneficiary is interested.

Mattox argues that § 32.43(c) does not give adequate notice of the conduct it prohibits. He asserts that because the economic gain or advantage need not accrue to the person to whom the offer is made, a person could be prosecuted for offering a benefit to a fiduciary of whom he had no knowledge. Mattox finds a similar problem with the definitions of “fiduciary” and “beneficiary” contained in § 32.43(a), arguing that it is impossible for an individual to know if the person to whom he offers a benefit is a fiduciary. These arguments fail when it is recalled that the State must prove that the offeror acted with the requisite culpable mental state.

A requirement of scienter may mitigate a law’s vagueness, especially with respect to the adequacy of notice to an individual that his conduct is proscribed. Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 499, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982). Section 32.-43(c) is not a strict liability statute. It criminalizes only those offers the acceptance of which would violate subsection (b). Subsection (b), in turn, criminalizes the acceptance of a benefit only if it is in consideration for a breach of a fiduciary duty. Obviously, one can offer a benefit in consideration for a breach of a fiduciary duty only if one knows the offeree is a fiduciary, and that he would violate a duty owed to his beneficiary or otherwise cause harm to his beneficiary by accepting the offered benefit. Thus, the State must prove such knowledge in a prosecution pursuant to § 32.43(c). See Pfleging v. State, 572 S.W.2d 517 (Tex.Cr.App.1978). See also Ledesma v. State, 677 S.W.2d 529 (Tex.Cr. App., 1984); Goss v. State, 582 S.W.2d 782 (Tex.Cr.App.1979).

Mattox further argues that the definition of “benefit” is vague because whether a particular offer may be “reasonably regarded as economic gain or advantage” must be decided on a case-by-case basis at some point after the conduct has been undertaken. However, the requirement of reasonableness narrows, rather than broadens, the definition and hence the scope of § 32.43(c). Moreover, the criminality of a particular defendant’s conduct must always be determined after the fact, and on a case-by-case basis.

In Bates v. State, 587 S.W.2d 121 (Tex.Cr.App.1979), it was held that the general bribery statute, Tex.Pen.Code § 36.02 (1975 Tex.Gen.Laws, eh. 342, § 11, at 915), is not unconstitutionally vague or indefinite on its face. The same conclusion applies to the strongly analogous commercial bribery statute. Ground of error three is overruled.

A clear and precise statute may nevertheless be overbroad if in its reach it prohibits constitutionally protected conduct. McMorris v. State, 516 S.W.2d 927 (Tex.Cr.App.1974). In his fourth ground of error, Mattox argues that the State is seeking to prosecute him for nothing more than engaging in negotiations with another attorney. He asserts that it unconstitutionally tortures the language of the statute to apply it to “two lawyers [who] harangue each other during a telephone conversation.”

For one lawyer to offer another lawyer an economic benefit in consideration for the latter’s breach of a fiduciary duty owed to a client is not a legitimate negotiating tactic; it is bribery. It is just such conduct that has been alleged against Mattox in the indictments pending against him. Whether Mattox is in fact guilty of such conduct is, in the first instance, for a jury to decide.

In Ex parte Meers, 129 Tex.Cr.R. 465, 88 S.W.2d 100 (1935), the appellants were charged by complaint with the offense of unlawfully keeping and exhibiting a gam-, ing table and bank. While free on bond awaiting the action of the grand jury, they filed a writ of habeas corpus in the trial court seeking their release from restraint. Upon denial of relief in the trial court, they appealed to the Court of Criminal Appeals, voicing arguments similar to those presented to this Court by Mattox. The court rejected these arguments, stating:

This court has consistently held that a writ of habeas corpus will not lie where the remedy at law is adequate, nor will it lie after indictment to prevent a trial on the merits. [Citations omitted.] Rela-tors had not been tried; they had not even been indicted by the grand jury for the offense for which they were charged by complaint, yet they are seeking by means of a writ of habeas corpus to have this court determine in advance of a trial in a court of competent jurisdiction, whether the facts developed at the hearing show them guilty of an offense against the law of this state. Should relators be charged by indictment with said offense, and on trial the evidence is not sufficient to show that an offense has been committed, the trial court will no doubt so decide. If not, then relators have the legal right to appeal to this court. In the case of Ex parte Drenner, 125 Tex.Cr.R. 331, 67 S.W.(2d) 870, this court said: “The merits of a case on the sufficiency of the evidence to show a violation of the law is not the subject of inquiry by writ of habeas corpus.” Rela-tors contend, however, that there is no statute which denounces their act and the operation of their marble table as an offense. Looking to the entire record, it appears to us that relators, under the guise of questioning the validity of article 619, P.C., under which they are charged with the offense of unlawfully keeping and exhibiting a gaming table, to wit, a marble table, are in fact questioning the sufficiency of the facts to bring their act and the marble table within the purview of said article. We do not believe we are required in this proceeding to pass upon that question_ Inasmuch as relators have an adequate legal remedy, this court will not interfere with the jurisdiction of the trial court over the person and subject matter.

Mattox’s fourth ground of error is overruled, and the order of the trial court is affirmed.

APPENDIX

IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

THE GRAND JURY, for the County of Travis, State of Texas, duly selected, empaneled, sworn, charged and organized as such at the January Term A.D. 1984 of the 147th Judicial District Court for said County, upon their oaths present in and to said court at said term that James Mattox, on or about the 17th day of June A.D. 1983 and before the presentment of this indictment in the County of Travis, and State of Texas, did then and there intentionally and knowingly offer a benefit to a fiduciary, to wit, Wiley Caldwell, as consideration for the said Wiley Caldwell’s violation of his duty to a beneficiary for whom the said Wiley Caldwell was acting as a lawyer, said duty being the said Wiley Caldwell's duty as a lawyer to exercise independent professional judgment on behalf of his client, Mobil Oil Corporation, in that the said James Mattox did then and there, in the course of a conversation over a telephone between the said James Mattox and the said Wiley Caldwell, threaten to delay approval and deny approval of certain bonds then pending approval by the said James Mattox as Attorney General of the State of Texas, said bonds being those of certain beneficiaries for whom the said Wiley Caldwell was acting as a lawyer, to wit: City of Bedford, Texas; Comal County, Texas; Crockett County Consolidated Common School District Number 1; Lavaca County, Texas; Lavaca County Flood Control District Number 3; Liberty County, Texas; Lower Colorado River Authority; Matagor-da County Water Control and Improvement District Number 6; City of Midland, Texas; New Braunfels Independent School District; Oakwood Independent School District; City of Plano, Texas; Rockwall Independent School District; Southeast Texas Hospital Financing Agency; City of Ste-phenville, Texas; City of Terrell, Texas; and Webb County, Texas; but that he, the said James Mattox, as Attorney General of the State of Texas, would not delay approval and would not deny approval of said bonds then pending approval as aforesaid, for and in return for the said Wiley Caldwell’s violation of his duty as a lawyer to his beneficiary, Mobil Oil Corporation, in that he, the said Wiley Caldwell, would order and require that Thomas R. McDade, a lawyer and the partner of the said Wiley Caldwell, cease and desist from his efforts to question and depose Janice Mattox in the course of a certain law suit pending in the 49th Judicial District Court of Webb County, Texas, Cause Number 33,674, styled Clinton Manges, Individually, and Duval County Ranch Company versus Mobil Producing Texas and New Mexico, Inc., et al., against the peace and dignity of the State.

BRADY, Justice,

dissenting.

I respectfully dissent. The majority is correct that the general rule is that where there is a valid penal statute under which a prosecution is brought, habeas corpus is not available to test the sufficiency of the charging instrument prior to trial. However, I do not agree that this should be the rule in cases such as this one.

It defies logic, in my opinion, that where there are fundamental defects in the charging instrument, i.e., the indictment or information, that such cannot be challenged at any stage in the criminal proceedings. The office of the motion to quash and its review by the appellate courts only after conviction seems to be totally inadequate to prevent the irreparable damage that a full blown trial will inflict upon an accused, especially a public official, when it is clearly possible that the conviction will be reversed on appeal. The savings of time and money to the State and to the accused, if for no other reason, is a strong argument to support a pre-trial attack.

I do not agree that these types of pre-trial habeas corpus attacks on charging instruments will open the flood gates to such writs in all criminal cases. A narrow exception would be made only where the indictment fails to allege the essential elements of the offense, and thus constitute a fundamental defect depriving the trial court of jurisdiction.

The statute under which the accused has been indicted in this cause was enacted essentially to deal with kickbacks. See Practice Commentary by Seth S. Searcy, III, and James R. Patterson of the Austin Bar, following Sec. 32.43(c) of the Penal Code. It is my view that the State has chosen the wrong statute, and that Sec. 32.43(c) was never intended by the Legislature to embrace a fact situation as herein alleged against the Attorney General.

Further, I am in disagreement with the majority that the appellant’s Motion For Leave to File a Supplemental Brief should have been summarily overruled. It has been held that in order to effectuate the cause of justice, an appellate court has the authority to permit an appellant to file an amended brief and to include therein additional grounds or points of error. This is permissible either prior to or after sub mission, upon such reasonable terms as it may prescribe. Stuart v. Coldwell Banker & Co., 552 S.W.2d 904 (Tex.Civ.App. 1977, writ ref’d n.r.e.). Appellant’s Motion For Leave to file a Supplemental Brief alleges that such was made necessary “to clarify issues raised by oral argument regarding jurisdiction and whether the writ of habeas corpus is an appropriate remedy in this matter.” It was further stated that the request was made to aid the Court in the administration of justice, and not for purposes of delay.

I perceive no harm, prejudice or delay which would have resulted from the filing of the amended or supplemental brief, and leave to file should have been granted.

      . Travis County cause numbers 71804, 72163, and 73737. The indictment in number 73737 appears as an appendix to this opinion.

      . This statute was amended effective September 1, 1983, after the alleged act of commercial bribery took place.


author: COLLEY, Justice.

text:
    THOMAS, RICHARDSON, RUNDEN & COMPANY, INC., Appellant, v. The STATE of Texas and the Railroad Commission of Texas and James H. Cowden, Appellees.
    No. 12-83-0095-CV.
    Court of Appeals of Texas, Tyler.
    Dec. 6, 1984.
    Rehearing Denied Jan. 10, 1985.

      Patrick Feeney, Feeney, O’Hanion & Moore, Austin, for appellant.
    Bob Burleson, Bowmer, Courtney, Burle-son & Pemberton, Temple, Gus Lyons, Austin, for appellees.
   COLLEY, Justice.

Thomas, Richardson, Runden & Company, Inc., plaintiff/appellant (Thomas), brought suit on a written contract purportedly executed on behalf of the Railroad Commission of the State of Texas by James H. Cowden, defendant/appellee. The contract provided that for certain considerations Thomas would find and recruit a certified public accountant to supervise accounting procedures for the State of Texas to the United States Transportation Department on a federal grant of one million dollars made to the State for study of rail beds and tracks. The Railroad Commission of Texas repudiated the contract on the ground that Cowden had no authority to execute the same with Thomas for the commission. Thomas sued Cowden, the Railroad Commission, and by its consent, the State of Texas. The trial court rendered a take-nothing judgment against Thomas finding that Cowden had no authority to execute the contract, and that Cowden was not personally liable because he acted in good faith with a reasonable belief that he had authority to bind the Railroad Commission in the agreement.

We affirm the take-nothing judgment as to the Railroad Commission and the State of Texas, and reverse the take-nothing judgment as to Cowden, and here render judgment in favor of Thomas against Cow-den.

Our Supreme Court in Bullock v. Calvert, 480 S.W.2d 367 (Tex.1972), quoted with approval the rule announced in Fort Worth Cavalry Club v. Sheppard, 125 Tex. 339, 83 S.W.2d 660, 663 (1935), to-wit:

All public offices and officers are creatures of law. The powers and duties of public officers are defined and limited by law. By being defined and limited by law, we mean the act of a public officer must be expressly authorized by law, or implied therefrom. It follows from the above that public officers may make only such contracts for the government they represent as they are authorized by law to make, [citations omitted]

For the purposes of our opinion, we will assume, without deciding, that the Railroad Commission as a state agency (public office), acting as a body, had implied authority under TEX.REV.CIV.STAT.ANN. art. 6506 (Vernon Supp.1984) to execute the contract before us. However, Cowden had no such authority under the statute to do so. Cowden does not so claim. Cowden contends that he is not personally liable to Thomas because he executed the contract with a reasonable good faith belief that he did have authority to enter into the agreement on behalf of the commission. So, under the record here, we must decide whether the Railroad Commission, acting as a body, expressly authorized Cowden to bind it to such a contract. The trial judge in this bench trial found that Cowden was not authorized by the commission to do so, and we agree with that finding.

Thomas attacks the court’s finding on a “no evidence” point of error. However, before we are authorized to disturb such finding on such a challenge, we must conclude that the evidence conclusively establishes the opposite finding. Robert W. Calvert “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 (1960). In applying such standard of review, we hold that Thomas’ first point of error is without merit, and it is overruled.

Under its second point, Thomas contends that the trial court erred in rendering the take-nothing judgment in favor of Cowden because the evidence establishes as a matter of law that Cowden acted without authority and is therefore personally liable to Thomas’ damages. We agree. The record shows that Cowden was an employee of the Railroad Commission and had been named as Director of the Railroad Commission’s Division of Transportation. He was not a public officer, but rather an employee of the Railroad Commission. Dunbar v. Brazoria County, 224 S.W.2d 738, 740 (Tex.Civ.App.—Galveston 1949, writ ref’d); Aldine Independent School District v. Standley, 154 Tex. 547, 280 S.W.2d 578, 583 (1955). Since Cowden was not a public officer at the time he executed the contract, his liability is determined by the common law rules of agency prevailing in this State. Under such rules, an agent who acts without authority to bind his purported principal is himself liable. Talmadge Tinsley Co., Inc. v. Kerr, 541 S.W.2d 207, 209 (Tex.Civ.App.—Dallas 1976, writ ref’d n.r.e.); Calhoun v. Burden, 424 S.W.2d 517, 518 (Tex.Civ.App.—Waco 1968, writ dism’d). Cowden’s liability rests on his implied warranty of authority to execute the contract on behalf of his purported principal, and renders him liable, not on the contract itself, but rather for the consequential damages flowing from the repudiation of the contract. Here, the value of services performed by Thomas. Heard v. Clegg, 144 S.W. 1145 (Tex.Civ. App.—Fort Worth 1912, writ ref’d); White v. Roughton, 201 S.W. 679, 680 (Tex.Civ. App.—Amarillo 1918, no writ).

The trial court’s finding that Cow-den was acting in good faith under a reasonable belief that he had the requisite authority to bind the Railroad Commission is immaterial. Thomas’ second and third points of error are sustained.

That portion of the judgment decreeing that Thomas take nothing against the State of Texas and the Railroad Commission is affirmed; that part of the judgment decreeing that Thomas take nothing against James H. Cowden is reversed, and judgment is here rendered in favor of Thomas, Richardson, Runden & Company, Inc. against James H. Cowden for $4,061.30, together with prejudgment interest thereon from July 3, 1978, to November 4, 1981, in the amount of $825.12, all costs in the court below and for postjudgment interest thereon at the rate of nine percent (9%) per annum from November 4, 1981, until paid, for all of which execution shall issue. All costs of this appeal are taxed against ap-pellee James H. Cowden.


text:
    S.F. DUDLEY, Appellant, v. E.W. HABLE & SONS, INC. & James Harris Concrete Finishing, Appellees.
    No. 12-84-0037-CV.
    Court of Appeals of Texas, Tyler.
    Dec. 6, 1984.

      David H. Hill, Henderson, for appellant.
    Emerson Stone, Jacksonville, for appel-lees.
   PER CURIAM.

This is an appeal from the trial court’s order denying appointment of a receiver under TEX.BUS. & COM.CODE ANN. § 17.59 (Vernon Supp.1984). Appellee E.W. Hable & Sons, Inc. settled and was dismissed as a party defendant in the trial court.

On March 23, 1982, judgment was entered in favor of appellant against appellee, James Harris Concrete Finishing (Harris), in an action brought by appellant under the Texas Deceptive Trade Practices Act, TEX. BUS. & COM.CODE, Chapter 17, Subchap-ter E. Appellant was awarded $5,610.00 in damages and attorney’s fees of $2,100.00, with post-judgment interest at the rate of nine percent per annum. Harris made no payment on the judgment, and on October 17, 1983, appellant filed a motion to show cause why a receiver should not be appointed under § 17.59. A hearing on the motion was held on November 2, 1983; Harris appeared at the hearing with counsel. On January 6, 1984, the trial court denied appellant’s motion. Harris filed no brief in this appeal of the trial court’s order.

Section 17.59 reads in relevant part as follows:

(a) If a money judgment entered under this subchapter is unsatisfied 30 days after it becomes final and if the prevailing party has made a good faith attempt to obtain satisfaction of the judgment, the following presumptions exist with respect to the party against whom the judgment was entered:
(1) that the defendant is insolvent or in danger or becoming insolvent; and
(2) that the defendant’s property is in danger of being lost, removed, or otherwise exempted from collection on the judgment; and
(3) that the prevailing party will be materially injured unless a receiver is appointed over the defendant’s business; and
(4) that there is no adequate remedy other than receivership available to the prevailing party.
(b) Subject to the provisions of Subsection (a) of this section, a prevailing party may move that the defendant show cause why a receiver should not be appointed. Upon adequate notice and hearing, the court shall appoint a receiver over the defendant’s business unless the defendant proves that all of the presumptions set forth in Subsection (a) of this section are not applicable.

Harris testified that he had not made any payments on the judgment. Counsel for appellant testified that good faith attempts had been made to satisfy the judgment and that attempts to execute on the judgment had been unsuccessful. A review of the record reveals that Harris made no attempt to disprove the presumptions set forth in Subsection (a) of § 17.59, except that he testified he was not insolvent or in danger of becoming insolvent.

While the appointment of receivers under TEX.REV.CIV.STAT.ANN. art. 2293 (Vernon 1971) has been held to be within the sound discretion of the trial court, Sloan v. Sloan, 474 S.W.2d 272 (Tex.Civ.App.—Waco 1971, no writ), the language of § 17.59(b) is mandatory, i.e., “Upon adequate notice and hearing, the court shall appoint a receiver over the defendant’s business unless the defendant proves that all of the presumptions set forth in Subsection (a) of this section are not applicable.” (Emphasis added). The conditions of § 17.-59 having been met, appellant was entitled to the appointment of a receiver.

We hold that the trial court was in error in denying appellant’s motion to appoint a receiver. The judgment of the trial court is reversed, and the cause remanded to the trial court with instructions to grant appellant’s motion to appoint a receiver in accordance with § 17.59.

      . Art. 2293 states, "Receivers may be appointed by any judge of a court of competent jurisdiction of this State, in the following cases ...” (Emphasis added).


text:
    BANCTEXAS DALLAS, N.A., et al., Appellant, v. Michael CORNWELL, Lead Underwriter of Lloyd’s of London, Appellee.
    No. 05-84-0002-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 10, 1984.
    Rehearing Denied Jan. 14, 1985.

      Alan H. Cooper, Ben L. Krage, Kasmir, Willingham & Krage, William A. Winston, Mahon, Winston & Chaney, Dallas, for appellant.
    L.W. Anderson, Dallas, for appellee.
    Before AKIN, VANCE and ALLEN, JJ.
   AKIN, Justice.

BancTexas, Robert T. O’Brien, and David Walling, trustee in bankruptcy for Dallas Custom Vans Ltd., Inc., appeal from a judgment non obstante veredicto in which they were denied recovery on a casualty insurance policy issued by Lloyd’s of London on a motor vehicle. We affirm the judgment against BancTexas because we hold that it failed to prove its right to recover on the policy. We dismiss O’Brien’s claim on the policy because we hold that he was improperly realigned as a party plaintiff by the trial court. We also affirm the take nothing judgment against Walling because Dallas Custom Vans did not have an insurable interest in the vehicle at any time crucial to this appeal. This lawsuit arose from a fire which destroyed a motor vehicle known as the “Heartbreak Hotel,” a customized van. This van was customized by Robert T. O’Brien, the designated beneficiary in a casualty insurance policy issued by Lloyd’s on the van. O’Brien was also the owner of Dallas Custom Vans which used the “Heartbreak Hotel” in promotion of its services by showing it at automobile shows and dealerships, sometimes in return for a fee.

BancTexas sued to collect on the policy of insurance, arguing that it was entitled to the proceeds because Dallas Custom Vans owned the “Heartbreak Hotel” and because BancTexas had held a perfected security interest in that company’s property since April of 1977. Walling, the trustee in bankruptcy for Dallas Custom Vans, joined as a party plaintiff. These two parties challenged O’Brien’s right to collect on the policy, contending that his designation as beneficiary in his individual capacity was the result of a fraudulent transfer.

At the close of evidence, over Lloyd’s objection, the court granted the bank’s and Walling’s motion to realign O’Brien as an involuntary party plaintiff for certain purposes. Additionally, the court granted these two appellants leave to file a trial amendment asking that O’Brien, who represented himself, be allowed to recover on the policy should the jury find them not entitled to collect thereon. In answer to special issues, the jury found, among other things, that Dallas Custom Vans owned the “Heartbreak Hotel” at the time of the fire and as of April 1977 and that the beneficiary rights in the policy were fraudulently transferred from that company to O’Brien. The jury also found that certain security precautions required of the insured by the insurance policy had not been violated so as to preclude recovery and that the van had been worth $100,000 before its destruction. Appellants moved for judgment based on these fact findings, but the trial court denied their motion and substituted its own fact findings for those of the jury. The court agreed with the jury that beneficial rights in the policy were fraudulently transferred to O’Brien, but it set aside the jury findings that Dallas Custom Vans owned the “Heartbreak Hotel” at the time of the fire and at times during which a BancTexas security interest might have attached. Furthermore, the court found that the fire which destroyed the van was caused by arson, contrary to a jury finding, and that the contract of insurance had been breached. Upon these substituted findings of fact, the trial judge rendered a take-nothing in favor of Lloyd’s.

Appellants contend that the trial judge erred in setting aside jury findings and in rendering his own in their place. We first consider their argument that BancTexas was entitled to collect on any forthcoming proceeds because it held a perfected security interest in the “Heartbreak Hotel.” In this respect, the evidence shows that the bank perfected its security interest in Dallas Custom Vans property in April 1977. However, BancTexas and Walling adduced evidence that O’Brien, individually, became owner of the van in February 1977. Both O’Brien and Bill Brummett, called as witnesses for appellants, testified to this fact. Their testimony was supported by a manufacturer’s statement of origin which was introduced into evidence by appellants and which showed that Brummett, who was an officer of Dallas Custom Vans in February 1977, transferred ownership to O’Brien on behalf of the company. There was no evidence that O’Brien transferred his rights in the van back to the company at any time. Consequently, we hold that this evidence, introduced by appellants, establishes that Dallas Custom Vans did not own the van at the time of the fire or at any time after April 1977 when the bank first perfected its security interest in that corporation’s property-

Furthermore, we disagree with appellants’ contention that they proved that Dallas Custom Vans owned the “Heartbreak Hotel” with evidence that the company tried to lease the van to a third party and attempted to use it as security for obtaining a loan. Neither this evidence nor evidence that O’Brien did not pay for the van when he obtained it proves that title in the van rested in Dallas Custom Vans. Furthermore, there was no evidence or allegation that ownership in the van was transferred fraudulently. Consequently, we hold that BancTexas failed to prove that it held a security interest in any proceeds of insurance payable on the vehicle in question. Thus, the trial judge was correct in denying BancTexas’ claim.

Next, we consider the trial judge’s dismissal of O’Brien’s claim. Although we have held that the evidence established ownership of the van in O’Brien, we conclude that he is not entitled to the insurance proceeds under the Lloyd’s policy. In this respect, we previously noted that O’Brien was realigned as an involuntary party plaintiff after the close of evidence. By a cross-point of error, Lloyd’s challenges this realignment and the accompanying trial amendment, by which the bank and Walling asserted a claim on O’Brien’s behalf, on the ground that the trial court’s ruling resulted in an unfair surprise to Lloyd’s. We agree. Lloyd’s prepared a defense to BancTexas’ and Walling’s pleadings but was not afforded an opportunity by the trial judge to defend against any legal theory on which O’Brien might have been entitled to recover. Although Lloyd’s introduced some evidence which might have shown that O’Brien was precluded from recovering on the policy, Lloyd’s did not try the case with the knowledge that such evidence was material to a claim by O’Brien. Neither was Lloyd’s given the opportunity to cross-examine witnesses or to obtain discovery with respect to any rights under the policy that O’Brien might have had.

Leave to file a trial amendment, after the close of evidence, which effectively changes a theory of recovery is improper. See Burroughs v. Farmers Dairies, 538 S.W.2d 809 (Tex.Civ.App.—El Paso 1976, writ ref’d n.r.e.). Accordingly, we hold that the trial judge abused his discretion in granting appellants leave to file the trial amendment.

Furthermore, we also conclude that O’Brien was improperly realigned as a party plaintiff. Although a party may be involuntarily realigned when the court finds it necessary to afford complete relief to those already parties, TEX.R.CIV.P. 39, no such necessity was present in this case. All parties were present at trial, including O’Brien, a named defendant, and each had the opportunity to present his claims arising from the destruction of the “Heartbreak Hotel.” Therefore, if O’Brien had chosen to assert a claim to the insurance policy proceeds he could have done so on his own initiative, rather than the trial judge ordering appellants’ attorneys to file such a claim for him after the evidence had closed. Consequently, we hold that the realignment of O’Brien as an involuntary plaintiff was improper and we dismiss him as a plaintiff in this suit and as an appellant on this appeal.

Finally, we turn to the question of the propriety of the take nothing judgment as to Walling, Dallas Custom Van’s trustee in bankruptcy. In this respect, we sustain Lloyd’s cross-point by which it argues that Dallas Custom Vans had no interest in any insurance proceeds because there was no evidence of a fraudulent transfer of beneficiary rights from that company to O’Brien individually. As we have already noted, the record establishes that ownership of the “Heartbreak Hotel” was in O’Brien. Furthermore, it is undisputed that at the time the rights to the proceeds were transferred to O’Brien, Dallas Custom Vans was no longer in business. Because the company was no longer in business, the continued existence of the “Heartbreak Hotel” van could not have provided the company with any pecuniary advantage as a show van or as a promotional tool. Consequently, the company had no insurable interest in the van. See First Preferred Ins. Co. v. Bell, 587 S.W.2d 798 (Tex.Civ.App.—Amarillo 1979, writ ref’d n.r.e.). Having found no insurable interest in Dallas Custom Vans, we conclude that the finding of a fraudulent transfer of the policy in question is unsubstantiated by the record. Accordingly, we hold that appellant Walling has no right to the proceeds of the policy.

Since we have held that neither BancTex-as nor Walling are entitled to the policy proceeds, we affirm the trial judge’s take-nothing judgment in favor of Lloyd’s. TEX.R.CIV.P. 434. We modify, however, the trial court’s judgment with respect to O’Brien and order appellant O’Brien dismissed as a party to this appeal and as a party plaintiff. The judgment of the trial court is affirmed as modified.

      . The van’s creator named it in honor of a recording made popular by Elvis Presley. Its motif was designed in tribute to the late rock and roll musician.


author: GUITTARD, Chief Justice.

text:
    Marion MONK, et al., Appellants, v. DALLAS BRAKE AND CLUTCH SERVICE COMPANY, INC., et al., Appellees.
    No. 05-84-00788-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 18, 1984.

      Randall R. Moore, Law Offices of Windle Turley, P.C., Douglas H. Conner, Patrice M. Barron, Asst. City Attys., Dallas, for appellants.
    Sidney H. Davis, Jr., Touchstone, Bernays, Johnston, Beall & Smith, Dallas, for appellees.
    Before GUITTARD, C.J., and ALLEN and GUILLOT, JJ.
   ON MOTION TO RECONSIDER EXTENSION OF TIME FOR FILING STATEMENT OF FACTS

GUITTARD, Chief Justice.

FOR FILING STATEMENT OF FACTS

Appellants moved to extend the time for filing the statement of facts. We granted the motion on the ground that appellants reasonably explained their delay in requesting the reporter to begin preparation of the statement of facts. Appellee Dallas Brake and Clutch Service Company, Inc. now moves to reconsider our ruling and to strike the statement of facts, contending that we have no discretion to extend the time for filing a statement of facts unless a written request is made to the official reporter within the time prescribed by rule 377(a) of the Texas Rules of Civil Procedure, which requires such a request to be made “at or before the time for perfecting the appeal.” We disagree.

Although appellee’s argument is supported by Odom v. Olafson, 675 S.W.2d 581 (Tex.App.—San Antonio 1984, no writ), we are committed to a different view by our decision in Moore v. Davis, 644 S.W.2d 40, 43 (Tex.App.—Dallas 1982, no writ). In accordance with that decision, we hold that failure to request preparation of the statement of facts within the time prescribed by rule 377(a), like failure to file the statement of facts within the time prescribed by rule 386 of the Texas Rules of Civil Procedure, may be excused by a timely motion showing a reasonable explanation for the delay in compliance with rule 21c of the Texas Rules of Civil Procedure.

Moore was decided under the provisions of rule 377 as they stood before the 1984 amendments. The pre-1984 provisions of the rule had been interpreted to require the appellant to make his request to the reporter “promptly.” In Moore we held that a request is made “promptly” if made by the time the appellant perfects the appeal, but that any delay beyond that time may be excused by a motion showing a reasonable explanation under rule 21c. Rule 21c was not changed by the recent amendments, and the only change in rule 377 material to this question is the specification of “at or before the time prescribed for perfecting the appeal” in lieu of “promptly.” Therefore, we conclude that failure to make the written request within the time prescribed by rule 377(a) may still be excused by a reasonable explanation presented in accordance with rule 21c.

We recognize that the time for requesting preparation of the statement of facts is not included in rule 21c as one of those periods which may be extended on proper motion. However, we do not interpret the recent amendment to rule 377(a) as imposing a new restrictive deadline on the appellate process. Such an interpretation would be contrary to the general objective of the supreme court in the last several series of amendments to simplify the appellate rules and eliminate technical restrictions unrelated to the merits. The time of the request is important only as it affects the time of filing the statement of facts, which is prescribed by rule 386. A late request is of no consequence and need not be explained if the statement of facts is prepared and filed within the time prescribed by rule 386. However, if the statement of facts will not be filed within the prescribed time because of a late request, then the motion to extend the time for filing the statement of facts must reasonably explain the delay in making the request to the reporter. It is in this context that the time requirement of rule 377(a) is important as tending to expedite the appellate process.

We must consider, therefore, whether the delay in making the request in the present case has been reasonably explained. The evidence before us on the appellants’ motion to extend consisted of three affidavits made by the official reporter. According to these affidavits: (1) she returned from vacation on July 9, three days after the time for perfecting the appeal expired on July 6; (2) she received a telephone request for preparation of the statement of facts from the appellants on July 10; (3) she received a letter confirming this request on July 14; and (4) she could not have begun preparation of the statement of facts earlier because of other work, including preparation of another statement of facts for a two-week trial. The present statement of facts, consisting of four volumes, was due on August 5. It was completed and tendered to this court for filing on August 23. According to the facts stated by the reporter, appellants’ delay from July 6 to July 14 in making their written request for the statement of facts did not, in fact, delay its preparation and filing. We conclude that this delay has been reasonably explained, as required by rule 21c and Moore. Consequently, we adhere to our previous ruling extending the time for filing the statement of facts.

Appellee’s motion for reconsideration is overruled.