author: STEPHEN F. PRESLAR, Chief Justice.

text:
    Irby L. DYER, Appellant, v. TEXAS ELECTRIC SERVICE COMPANY, Appellee.
    No. 08-83-00029-CV.
    Court of Appeals of Texas, El Paso.
    Oct. 24, 1984.
    Rehearing Denied Nov. 21, 1984.

      Jerry R. Prothro, Robert P. Abbott, Turpin, Smith, Dyer & Saxe, Midland, for appellant.
    S.G. Johndroe, III, James A. Riddell, Cantey, Hanger, Gooch, Munn & Collins, Fort Worth, for appellee.
    Before STEPHEN F. PRESLAR, C.J., and WARD and SCHULTE, JJ.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is an appeal from a judgment of the district court which approved the special commissioners’ condemnation of the Appellant’s property for an electric power line easement. Appellant challenges the legal and factual sufficiency of the evidence establishing that the condemnation of his property was for a public use as required by Article I, sec. 17 of the Texas Constitution. We affirm.

Texas Electric Service Company (TES-CO), the Appellee, is a public utility engaged in the business of generating, transmitting and distributing electric energy in North-Central and West Texas. TESCO is the only electric utility providing electric service in the area of Ward County. Gulf Oil Company, U.S. (Gulf) is the lessee and operator of an oil field in Ward County within which the Appellant’s property is located. At trial, the evidence established that TESCO sought an easement over Appellant’s land to connect an electric tap line to a substation provided by Gulf. The line was to provide additional power to Gulf, which had undertaken an enhanced recovery program involving additional oil wells.

Appellant contends that TESCO does not have the right to condemn private property in order to provide service to only one person. Appellant asserts that the limitations of Article I, sec. 17 of the Texas Constitution are applicable in this case and would be violated by the taking of his property since it was for a “private use.” This constitutional provision limits the power of the state, the counties or their subdivisions, or corporations with delegated powers of condemnation, to the taking of private property only if it is deemed for a “public use.”

The question of what is a public use for which the right to exercise the power of eminent domain and condemnation may be granted, is a question for determination by the courts, but where the legislature has declared a certain act to be for a public use, such declaration must be given weight by the courts. Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699, 704 (1959); Housing Authority of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 84 (1940). Appellee is a public utility, empowered “to own, hold and use such lands, right of way, easements, ... as may be necessary for the purpose of such corporation.” Tex.Rev.Civ.Stat.Ann. art. 1435 (Vernon Supp.1984); art. 1436 (Vernon Supp.1984). The legislature, in enacting these statutes necessarily found that electric power lines constitute a public use for which rights-of-way may be condemned.

The question of what constitutes public use is a question for the court. Dallas Cotton Mills v. Industrial Corporation, 296 S.W. 503 (Tex.Comm’n.App.1927, judgmt adopted); Higginbotham, supra, at 84. A review of the decisions in this jurisdiction “demonstrates that this court has adopted a liberal view concerning what is or is not a public use.” Higginbotham, supra, 143 S.W.2d at 84. In Higgin-botham, the court noted the trend toward defining public use in terms of the general benefit to the state. Condemnation of private property was upheld in order to effectuate the legislative declaration that the construction of new housing would alleviate unsanitary or unsafe dwelling accomo-dations. See also: Borden v. Trespalacios Rice & Irrigation Company, 98 Tex. 494, 86 S.W. 11 (1905). Higginbotham, supra, 143 S.W.2d at 85, construed the holding in Borden to mean that the condemnation was valid since “[t]he public use arose out of the general benefit to the state through the reclamation of arid lands for agriculture by irrigation, which would otherwise be lost to the state.”

In Tenngasco Gas Gathering Company v. Fischer, 653 S.W.2d 469, 475 (Tex.App.—Corpus Christi 1983, writ ref’d n.r.e.), the Court of Appeals found the use of a pipeline across the property of a private landowner to be public even though the pipeline was built to serve only one customer. The Court of Appeals held:

The test for determining whether a given use is public is to see if there results to the public some definite right or use in the business or undertaking to which the property is devoted. Coastal States Gas Producing Co. v. Pate, supra, 309 S.W.2d at 833; Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699, 705-06 (Tex.1959). Initially, this test sounds rather narrow and restrictive. However, Texas courts have made it clear that it is the character of the right which inures to the public, not the extent to which the right is exercised, that is important in evaluating enterprises which are involved in condemning private property. Housing Authority of the City of Dallas v. Higginbotham, supra, 143 S.W.2d at 84. West v. Whitehead, 238 S.W. 976 (Tex.Civ.App.—San Antonio 1922, writ ref’d). As the Higginbotham court quoted from Whitehead: “It is immaterial if the use is limited to the citizens of a local neighborhood, or that the number of citizens likely to avail themselves of it is inconsiderable, so long as it is open to all who choose to avail themselves °of it. The mere fact that the advantage of the use inures to a particular individual or enterprise, or group thereof, will not deprive it of its public character.” 143 S.W.2d at 84.

Therefore, applying this test, considering the character of the right which inures to the public, we conclude that TES-CO’s condemnation for an electric power line was for a public use. Even though the only present use of the tap line for which the property is sought to be condemned is to serve a single customer, Gulf, the condemnation would still be deemed a public use. Tenngasco, supra, at 475. Arguably, this electric power line would benefit the public by increasing the oil production of Gulf. Appellant urged that any benefits to the public are unknown; that Gulf may or may not increase production. That we do not consider as the controlling consideration. The character of the use is public, and that rather than the extent of the use is the paramount consideration. Higgin-botham, supra.

As the holder of a “Certificate of Convenience and Necessity” issued by the Texas Public Utility Commission, TESCO is required to serve every customer within its certified area and render continuous and adequate service within that area. Tex. Rev.Civ.Stat.Ann. art. 1446c (Vernon 1980). Having determined that condemnation in this case was for a public use and since Gulf was a member of the public and a customer within TESCO’s certified area, the condemnation of the Appellant’s property ordered by the special commissioners and approved by the district court is affirmed. Tenngasco, supra; Higginbotham, supra; Arcola Sugar Mills Co. v. Houston Lighting & Power Co., 153 S.W.2d 628 (Tex.Civ.App.—Galveston 1941, writ ref’d w.o.m.). Points of Error Nos. One and Two are overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: LEVY, Justice.

license: Public Domain

text:
    Howard SIEGLER, M.D., Appellant, v. Noble C. GINTHER, Sr., Appellee.
    No. 01-83-00559-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 1, 1984.

      Alice M. Giessel, Talbert, Giessel & Stone, Houston, for appellant.
    Ronald D. Secrest, Fulbright & Jaworski, Houston, for appellee.
    Before EVANS, C.J., and LEVY and DOYLE, JJ.
   OPINION

LEVY, Justice.

This is an appeal from a judgment granted in favor of appellee for $10,000, plus interest, an amount found to be appellant’s proportionate amount of liability on a $50,-000 promissory note.

In August, 1977, Dr. Howard Siegler, appellant, and four members of the Ginther family including Noble Ginther, Sr., appel-lee, executed a promissory note for $50,-000, payable to South Loop National Bank (hereinafter referred to as “the Bank”). The purpose of the bank loan was to set up a fund for campaign expenses to be used by Noble Ginther, Jr., as a candidate for mayor of the City of Houston.

The note stated in pertinent part:

THE UNDERSIGNED (hereinafter called “Debtor”), jointly and severally if more than one, in consideration of the advancement by South Loop National Bank (hereinafter called “Bank”) of the “amount financed” shown below, promise(s) to pay to the order of the Bank at its offices at 9701 South Main Street, Houston, Harris County, Texas, in lawful money of the United States of America, the sum of: ... Fifty thousand and no/100 ... DOLLARS_

The note was absolute in its terms and contained no special conditions or any relaxation of the payment obligation of any of the five co-makers. On October 25, 1977, the note became due and the Bank demanded payment. At that time, Noble Ginther, Sr., paid one-half of the note on behalf of the Ginther family. Appellant did not make any payments on the loan.

In January, 1978, the Bank filed suit against appellant for the entire $50,000 debt. In response, appellant denied that he was solely responsible for the $50,000 and filed a cross-action against appellee and the other members of the Ginther family who had signed the note, alleging that they had fraudulently induced appellant to sign the note by promising that the note would be retired by using one-half of the campaign contributions. In a third-party action against Noble Ginther, Jr., appellant further alleged that the representation was made specifically to induce appellant to sign the note and that Noble Ginther, Jr., should indemnify appellant in the event of a judgment against him.

In September, 1978, appellee paid the remaining balance on the promissory note. Thereafter, the Bank assigned and transferred all of its rights under the note to appellee.

In January, 1979, the Ginthers filed a third-party counter-claim against Dr. Sie-gler, seeking to recover one-half of the amount of the note, alleging that they were then the owners of the note, and in the alternative seeking contribution for one-half of the money paid to the Bank, together with costs, attorney’s fees, and interest as provided by law.

In January, 1981, the Ginthers and appellant agreed to sever the Bank in the action against appellant and the Bank was dismissed from the cause of action.

Based on the jury’s answers to the special issues, the trial court determined that appellant was liable for Vs of $50,000 (or $10,000). In three points of error, appellant contends that the trial court erred in entering judgment in favor of appellee because the jury’s answers to special issues one and three showed appellant had contingent accommodation status and entitled ap-pellee only to a take-nothing judgment.

In response to special issues one and three, the jury answered as follows:

SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that Dr. Howard Siegler and the Ginther family entered into an agreement whereby all would sign the note in question and half of all monies received in the campaign would be used to retire the note in question?
Answer: “We do” or “We do not.”
To which the jury answered: “We do.”
SPECIAL ISSUE NO. 3
Was sufficient money received in the campaign to pay the note in question in accordance with such agreement? Answer: “We do” or “We do not.”
To which the jury answered: “We do.”

The jury’s response to these special issues establish that the appellant and the Ginther family agreed that half of all monies received in the campaign would be used to retire the debt, and that the campaign had received sufficient money to pay the note in accordance with such agreement. Appellant contends that these findings prove his “contingent” accommodation maker status, and thereby resolve him of liability.

Although appellant presents a novel argument, we cannot agree that the jury’s answers establish that he was an accommodation maker because he failed to submit a special issue or obtain a finding on an essential element required to prove such status. In Darden v. Harrison, 511 S.W.2d 925, 928 (Tex.1974), the Texas Supreme Court held that a party claiming accommodation status “must prove that the party claimed to be accommodated received the signature of the surety for the sole purpose of obtaining credit thereby, under an agreement that the accommodated party is principally responsible for payment at maturity, or that the instrument was executed for a limited purpose.” (Emphasis supplied).

In the instant ease, there were no special issues submitted which required the jury to determine whether appellee had obtained appellant’s signature on the note for the sole purpose of obtaining credit. Consequently, the omitted issue must be deemed found in support of the judgment as long as there is evidence to support the judgment. See City of Lubbock v. Onley, 498 S.W.2d 429, 431 (Tex.Civ.App.—Amarillo 1973, writ ref’d n.r.e.); Connell v. Rosales, 419 S.W.2d 673, 677 (Tex.Civ.App.—Texarkana 1967, no writ); Tex.R.Civ.P. 279. Here, the trial court’s implied rejection of appellant’s “contingent accommodation maker” defense is supported by the testimony of both appellee and appellant. Both parties testified that appellant did not sign the note for the sole purpose of allowing the Ginthers to obtain credit. Therefore, this court may not find, as urged by appellant, that the trial court erred in ignoring appellant’s “contingent accommodation maker” defense.

However, we agree with appellant that the jury’s findings establish an oral agreement between appellant and appellee which induced appellant to sign the note. In response to special issues six and seven, the jury found that the entire Ginther family’s promise to use one-half of the campaign funds to retire the note was made to induce appellant’s signature on the note, and that appellant signed the note in reliance on such promise. The jury also found that the campaign received sufficient funds to retire the note in accordance with appellee’s promise.

An independent parol agreement, made as an inducement to the making of a written contract, may be proven and enforced, though not referred to in the written contract. Leyendecker v. Strange, 204 S.W.2d 845, 847 (Tex.Civ.App.—Galveston 1947, writ ref’d n.r.e.). See e.g., Sherrod v. Barley, 580 S.W.2d 24, 28 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.). Thus, it has been held that parol or extrinsic evidence is admissible to show the true or additional consideration for the ultimate written agreement. See Anderson v. McRae, 495 S.W.2d 351, 360 (Tex.Civ.App.—Texarkana 1973, no writ); Smith v. Pulliam, 388 S.W.2d 329 (Tex.Civ.App.—Fort Worth 1965, writ ref’d n.r.e.).

Appellee contends that the independent parol agreement may not be enforced against a transferee of a negotiable instrument, who, as in the instant case, acquired the status of “holder in due course” from the transferor. See Tex.Bus. & Com.Code sec. 3.201(a); 3.603(b).

Under sec. 3.603(b), the surrender of an instrument by the holder to any party making full payment in satisfaction of the debt, gives such party the rights of a transferee. Under sec. 3.201, a transferee acquires such rights as the transferor had, unless the transferee was a party to fraud or a prior holder with notice of a defense or claim against it.

However, under the facts of this case, appellee incorrectly refers to himself as a transferee with all the rights of a holder in due course against appellant. Texas common law, and not the Texas Business and Commerce Code, establishes the general liability between co-makers on a note, where one co-maker satisfies the entire debt on the note. If neither party establishes suretyship status, the paying co-maker has a cause of action against the nonpaying co-maker based on an implied promise to reimburse the paying co-maker for his share of their joint and several liability. Caldwell v. Stevenson, 567 S.W.2d 278 (Tex.Civ.App.—Austin 1978, no writ); Dittberner v. Bell, 558 S.W.2d 527, 534 (Tex.Civ.App.—Amarillo 1977, writ ref’d n.r.e.); Charles v. Charles, 478 S.W.2d 133 (Tex.Civ.App.—Dallas 1972, writ ref d n.r.e.).

The cause of action asserted herein is founded, not primarily upon the note itself, but upon the implied promise to pay contribution. In Charles, supra, and Caldwell, supra, the court had before it notes signed before the Texas Business and Commerce Code became operative. The Code, however, does not change the law of the surety-principal-creditor relationship. Caldwell, supra; Clark, Suretyship in the Uniform Commercial Code, 46 Tex.L.Rev. 453, 454 (1968). Accordingly, the principles stated in those cases are applicable to the note signed in 1977, and to the implied promise to pay contribution, which issues are now before this Court.

Moreover, under both the Texas Business and Commerce Code and the common law, the liability of all parties is discharged when any party, who has no right of action or recourse on the instrument, re-aequires the instrument in his own right or is discharged by his payment of the entire debt. Tex.Bus. & Com.Code sec. 3.601(b) and (c) (Vernon Supp.1984). The principle is that all parties to an instrument are discharged when no party is left with rights against any other party on the instrument. Charles, supra; Tex.Bus. & Com.Code sec. 3.601(c), see Comment par. 3. In the instant case, appellee has no rights against any party other than the appellant, who as co-maker is impliedly liable for a pro rata contribution in “assump-sit.” Since this is not an action on the instrument, the liability of both the appellant and the appellee on the note was discharged when appellee acquired the note in his own right by his payment of the debt. Charles, supra; Moore v. Lindsey, 662 F.2d 354 (5th Cir.1981).

We do not find the bank’s transfer to appellee to be invalid, but only that all liabilities on the note were discharged by law when appellee, a co-maker, paid the entire debt and re-acquired the note. When the bank transferred all of its interests, rights, and title in the note to appel-lee, appellee became the holder of a note on which the liabilities of all parties had been discharged, and with notice of appellant’s prior cross-action alleging fraudulent inducement.

Appellee did not acquire the bank’s “holder in due course” status because the appellee, as co-maker, was entitled only to a pro-rata contribution from appellant to the extent of his promise to pay. A true “holder in due course” would take the instrument free from all claims and defenses against the note by any person with whom the holder has not dealt. See Tex.Bus. & Com.Code sec. 3.305; Williams v. Stansbury, 649 S.W.2d 293 (Tex.1983).

Consequently, we hold that evidence of the oral agreement which induced appellant to sign the written note was properly before the trial court, and that such agreement was enforceable against appel-lee in his action in assumpsit for contribution.

In the instant case, the jury’s responses to special issues one and three indicate that appellant’s “implied promise to pay contribution to his co-makers” was expressly conditioned upon the unavailability of campaign funds to retire the debt. In fact, the jury found that appellee’s promise to use half of the campaign funds to pay the debt induced appellant to sign the note and must have also induced appellant’s “implied promise” to pay contribution.

Since appellant established the existence of an express agreement which was part of the true or additional consideration for the written agreement and the implied promise to pay, the trial court erred in not enforcing the agreement and in not denying appellee’s claim for contribution. Cf. Sherrod v. Barley, supra; Leyendecker v. Strange, supra; Smith v. Pulliam, supra.

We reverse the trial court’s judgment awarding appellee $10,000 as contribution, and therefore find it unnecessary to address appellee’s cross-points on the sufficiency of the evidence supporting the jury’s finding on attorney’s fees. The judgment of the trial court awarding appellee $10,000 is reversed, and judgment is rendered that appellee take nothing against appellant.

      . "Assumpsit" is the recovery for the unjust retention of a benefit to the loss of another, or the retention of money of another against the fundamental principles of justice and equity. King v. Tubb, 551 S.W.2d 436 (Tex.Civ.App.—Corpus Christi 1977, no writ).


author: EVANS, Chief Justice.

text:
    Robert W. FELTS, Appellant, v. GRAPHIC ARTS EMPLOYEE BENEFIT TRUST, and Employee Welfare Benefit Plan Administration, Inc., Appellees.
    No. 01-83-0851-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 1, 1984.
    Rehearing Denied Nov. 30, 1984.

      Andrew Caplan, Barnhart, Mallia, Cochran & Luther, Houston, for appellant.
    Constance K. Acosta, Williams, Birnberg & Andersen, Houston, for appellees.
    Before EVANS, C.J., and JACK SMITH and DUGGAN, JJ.
   OPINION

EVANS, Chief Justice.

The plaintiff, Robert W. Felts, brought this suit against the defendants, Graphic Arts Employee Benefit Trust (the “Trust”) and its administrator, Employee Welfare Benefit Plan Administration, Inc. (the “Administrator”), to recover the cost of oral surgery and related medical expenses allegedly due under an employee benefit plan, and asserting unfair and deceptive practices in violation of the Texas Insurance Code and the Texas Deceptive Trade Practices Act.

In response to special issues, the jury found, insofar as pertinent here:

(1) That the defendants breached a health insurance contract with the plaintiff by failing to pay benefits to him as described in the terms and provisions of such contract;
(2) That $200 would fairly and reasonably compensate the plaintiff for the defendants’ failure to pay such benefits;
(3-4) That the defendants did not misrepresent the terms or benefits of the insurance contract to the plaintiff;
(5) That the plaintiff suffered actual damages in the amount of $1157;
■ (6) That the plaintiff’s reasonable attorney’s fees were for trial, $10,-000, for appeal $5,000;
(7-8) That the defendants were not “in the business of insurance;”
(9) That the expenses incurred by the plaintiff were excluded from the plan as dental work or treatment;
(10) That the Trust is an employee welfare benefit plan created under the authorization of the Employee Retirement Income Security Act of 1974. (ERISA).

On the basis of the jury’s verdict, the trial court entered judgment for the defendants.

In four points of error, the plaintiff contends that the trial court erred in entering the take-nothing judgment against him, because (1) the issues unequivocably entitle him to judgment; (2) the defendants failed to present a motion for judgment notwithstanding the verdict; (3) there was no evidence or, in the alternative, insufficient evidence to support the jury’s answer to Special Issue Number 9; and (4) the jury answers to Special Issue Numbers 1 and 9 are in fatal conflict.

The plaintiff’s oral surgery was performed in July 1977, and he subsequently made a claim for such expenses to the defendant, a self-funded multiple employer trust established to provide health care benefits to its members. Although the benefit plan’s coverage specifically excluded dental treatments, the plaintiff claimed that part of the surgery was for medical rather than dental problems. The Trust denied the plaintiff’s claim, and its decision was upheld after two administrative appeals. This litigation ensued.

It has been the defendant’s position throughout the proceedings that the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. sec. 1001-1381 (1976), preempted all state law claims relating to employee welfare benefit plans such as their own, and that the plaintiff neither alleged nor proved a cause of action under ERISA. Although the plaintiff largely ignored this argument during trial, and in his brief does not assert a claim based on ERISA, he contends on oral argument that his pleading is broad enough to support a recovery under ERISA.

ERISA was enacted in 1974 as a comprehensive federal scheme to regulate private employee benefit plans. A claim for relief governed by ERISA does not constitute an alternative ground for recovery, for if ERISA applies, it completely displaces other applicable state laws. Hayden v. Texas-U.S. Chemical Co., 681 F.2d 1053 (5th Cir.1982). The statute itself provides that ERISA supersedes all state laws relating to employee benefit plans that are not specifically exempt. 29 U.S.C. sec. 1144 (1976).

The term “employee welfare benefit plan” is defined in ERISA as any plan or program established by an employer or employee organization for the purpose of providing benefits, (e.g. medical, surgical, or hospital care) for its participants. 29 U.S.C. sec. 1002(1)(A) (1976). ERISA applies to all such employee welfare benefit plans, with a few narrowly defined exceptions that are inapplicable here. 29 U.S.C. sec. 1003(b) (1976). The employee benefit plan involved in this suit meets ERISA’s definitions, and it does not qualify under any exception to the statute. There was also testimony that the Trust itself was specifically formed pursuant to ERISA.

We conclude that the trial court properly determined the plan to be governed by ERISA provisions and that the plaintiff’s right of action is governed by the provisions of that statute.

ERISA does provide that a civil action may be brought in a state or federal court by a participant or beneficiary to recover benefits due to him or to enforce or clarify his rights under the terms of his plan. 29 U.S.C. sec. 1132 (1976). We assume, without deciding, that the allegations of the plaintiffs petition in the case at bar are sufficiently broad to support a cause of action under ERISA.

However, even based on this assumption, we must hold that the trial court properly denied the plaintiffs claim for recovery. The standard of appellate review under ERISA requires that the trustee’s determination of eligibility for benefits be upheld unless such determination is “arbitrary and capricious.” Dennard v. Richards Group, Inc., 681 F.2d 306 (5th Cir. 1982); Paris v. Profit Sharing Plan, Etc. 637 F.2d 357 (5th Cir.1981), cert. denied, 454 U.S. 836, 102 S.Ct. 140, 70 L.Ed.2d 117 (1981). The plaintiff did not meet his burden of proof under this standard, as there is no evidence or finding that the trustee’s determination of his ineligibility was arbitrary and capricious. The trial court, therefore, properly entered a judgment for the defendants on their motion for judgment, and we overrule the first two points of error.

We also overrule the third and fourth points of error. By statutory definition, an employee welfare benefit plan under ERISA does not place the trust or the administrator of such plan in the business of insurance for the purpose of applying state law. 29 U.S.C. sec. 1144(b)(2)(B) (1976). Thus, the jury’s answer to Special Issue No. 1, that the defendants breached an insurance contract, was immaterial to any ultimate issue in the case, and the trial court properly disregarded the jury’s finding to that issue in rendering judgment for the defendants. Gage v. Langford, 582 S.W.2d 203 (Tex.Civ.App.—Eastland 1979, writ ref’d n.r.e.).

We also overrule the defendants’ cross-points, contending that the plaintiff’s suit was groundless and brought in bad faith under the Texas Deceptive Trade Practices Act and The Texas Insurance Code.

The judgment of the trial court is affirmed.


author: BASS, Justice.

text:
    Robert H. HOLMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-00202-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 1, 1984.

      H.J. Bernard, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., Karen Zellars, Allen Tanner, Harris County Asst. Dist. Attys., Houston, for ap-pellee.
    Before DOYLE, BULLOCK and BASS, JJ.
   OPINION

BASS, Justice.

At a jury trial, appellant was convicted of attempted murder, and punishment was assessed at five years confinement.

We reverse and remand for a new trial.

In his first ground of error, appellant contends that the court’s charge at the guilt-innocence phase of the trial was fundamentally defective because it failed to require the jury to find that appellant “attempted to cause the death of [W.L.] by intentionally shooting [him] with a gun”, as was charged in the indictment.

To determine whether the charge is fundamentally defective we look to that part applying the law to the facts of the case. Lewis v. State, 656 S.W.2d 472 (Tex.Crim.App.1983). The pertinent portion of the charge instructed the jury:

Now if you find from the evidence beyond a reasonable doubt that on or about the 31st day of January, 1983, in Harris County, Texas, the defendant, Robert H. Holman, did, with intent to kill the said [W.L.], attempt to cause the death of [W.L.], as set forth in the indictment, then you will find the defendant guilty of an attempt to commit murder.

The language of the indictment was not set out in the charge to the jury, nor was there any objection to the charge.

When fundamental error is alleged, we consider the entire charge to determine whether there is error in the charge. The paragraph in which the law is applied to the facts must be construed in light of the other portions of the charge. Williams v. State, 622 S.W.2d 95, 96 (Tex.Crim.App.1981). There is also authority for the rule that the portion of the court’s charge to which we look in determining whether the charge is fundamentally erroneous is the portion that applies the law to the facts. Thomas v. State, 587 S.W.2d 707 (Tex.Crim.App.1979). However, where the paragraph applying the law to the facts omits an essential element of the offense, an examination of the remainder of the charge, including the abstract definitions, is never sufficient to cure the error caused by the omission. Hill v. State, 640 S.W.2d 879, at 882-83 (Tex.Crim.App.1982). Furthermore, even a partial failure to apply the law of the offense to the facts of the case infringes upon an accused’s state constitutional rights to due process of law, due course of law, and the right of trial by jury. Such error is “error calculated to injure the rights of a defendant,” Tex.Code Crim.P. Ann. art. 36.19 (Vernon 1981), because it prevents the defendant from receiving a fair and impartial trial by jury. Doyle v. State, 631 S.W.2d 732, 738 (Tex.Crim.App.1980).

Appellant was charged with attempted murder, an inchoate crime which required proof of 1) an intent to commit a specific offense, and 2) a specific act which tended, but failed, to effect the commission of that offense. Therefore, appellant’s act was an essential element of the offense. Ferguson v. State, 634 S.W.2d 306, 307 (Tex.Crim.App.1982). Had the indictment failed to allege such an act, it would have been fundamentally defective. Doyle, 631 S.W.2d at 735.

The state asserts that the charge alleged the specific act, shooting the complainant with a gun, by incorporating the indictment by reference. This approach was rejected in Bradley v. State, 560 S.W.2d 650 (Tex.Crim.App.1978). In that theft case, the court held:

The State is also incorrect in asserting that the charge is proper because it requires the jury to find that the appellant’s exercise of control over the property was as set forth in the indictment, and the indictment includes the element without the effective consent of the owner. Were this the law, there would never be any need for a charge beyond requiring the jury to find that the defendant committed the offense as set forth in the indictment, (emphasis added).

560 S.W.2d at 652. See also Hill, 640 S.W.2d at 882-83.

The omission of a necessary element of the offense from the application paragraph of the charge renders it fundamentally defective. Cumbie v. State, 578 S.W.2d 732 (Tex.Crim.App.1979); e.g., Doyle, 631 S.W.2d 732; Garza v. State, 162 Tex.Cr.R. 655, 288 S.W.2d 785 (1956).

Appellant’s first ground of error is sustained.

We need not address appellants remaining grounds. Coberly v. State, 644 S.W.2d 734 (Tex.Crim.App.1983).

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


author: DOYLE, Justice.

text:
    Robert SMART d/b/a Smart Body and Custom, Appellant, v. TEXAS AMERICAN BANK/GALLERIA, Appellee.
    No. 01-84-0205-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 1, 1984.

      Eric C. Hixon, Houston, for appellant.
    Richard L. Abrams, Houston, for appel-lee.
    Before BASS, BULLOCK and DOYLE, JJ.
   OPINION

DOYLE, Justice.

This is an appeal from the granting of a summary judgment in favor of the appel-lee, Texas American Bank/Galleria. The trial court found that there was no disputed issue of fact and that as a matter of law, the two-year statute of limitations had run on the appellant’s cause of action.

The resolution of this appeal is predicated upon the date that appellant’s cause of action accrued. A partial recitation of the facts is necessary to make this determination.

Pursuant to art. 6840, V.A.C.S. (1975), appellee filed a suit against appellant in the Harris County Civil Court at Law No. 2 and obtained a writ of sequestration that was levied against one 1976 Cadillac Seville automobile then in the possession of the appellant who was holding it for money due for repairs made to the vehicle. On September 18, 1981, a constable seized the automobile from appellant and stored it pending further orders. The writ of sequestration provided, inter alia, that:

You are hereby notified that certain properties alleged to be owned by you have been sequestered. If you claim any rights in such property, you are advised YOU HAVE A RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY FILING A “REPLEVY BOND”. YOU HAVE A RIGHT TO SEEK TO REGAIN POSSESSION OF THE PROPERTY BY FILING WITH THE COURT A MOTION TO DISSOLVE THIS WRIT:

Appellant chose to file a motion to dissolve the writ and did so on September 28, 1981. After a hearing, the trial court entered an order denying the motion to dissolve the writ on November 19, 1981.

Following various procedural actions of no relevance to this appeal, appellant filed his suit for damages under the Deceptive Trade Practices Act (DTPA) and, alternatively, under the common law. This suit was filed on November 3, 1983.

Appellee contends that appellant’s cause of action accrued on September 18, 1981, the date that the writ of sequestration was levied and the subject vehicle was taken in custody by the constable. Appellant argues that his cause of action accrued on November 19, 1981, the date the trial court entered its order denying his motion to dissolve the writ. The issue before us thus becomes clear: If appellant’s cause of action arose on September 18, 1981, more than two years had elapsed when appellant filed his suit on November 3, 1983, and the trial court’s judgment must be sustained. If the cause of action accrued on November 19, 1981, this case must be remanded for trial.

In his first two points of error, appellant contends that the trial court erred in granting appellee’s motion for summary judgment based on the two-year statute of limitations.

In a summary judgment proceeding, the burden is on the movant to prove that as a matter of law, there is no genuine issue of fact, and he is entitled to a summary judgment on the grounds set forth in his motion. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). Whether the statute of limitations is applicable to a given factual situation is a question of law, and not a fact issue. Moya v. O’Brien, 618 S.W.2d 890, 892 (Tex.Civ.App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.).

Pursuant to sec. 17.56A of the DTP A, the statute of limitations begins to run on the date on which the act occurred. Appellee argued in his motion for summary judgment that the act complained of was a wrongful sequestration. He offered as summary judgment proof certified copies of the writ of sequestration dated September 18, 1981 and the motion to dissolve the writ of sequestration dated September 28, 1981. These were offered to establish the date on which appellee contended the statute began to run.

Appellant does not challenge these facts. He argues that the deceptive act was appel-lee’s taking possession of the car without paying for authorized repairs. His suggestion is that the statute of limitations was tolled until a ruling was made on his motion to dissolve the writ of sequestration.

We first observe that perhaps both parties misconstrue the place and effect of a writ of sequestration. Its purpose and office is succinctly set out in Radcliff Finance Corporation v. Industrial State Bank, 289 S.W.2d 645, 649 (Tex.Civ.App.—Beaumont 1956, no writ):

In causing the writ of sequestration to be issued and levied in the case at bar the bank was merely pursuing a remedy for the preservation and protection of its security that was expressly accorded it by statute. Article 6840, Vernon’s Texas Civil Statutes. No contention is made that the writ was wrongfully sued out, or that it was wrongfully levied. The automobile was retained in the custody of the sheriff and was never delivered into the possession of the bank. We think no conversion was shown. “Being a conservatory act, sequestration does not affect the question of title to the property involved. Possession under the writ, as to the suit and the parties thereto is legal; and during the pendency of the levy the property remains in the custody of the law.” 38 Tex.Jur. 165, Sequestration, Sec. 6; Fowler v. Stonum, 6 Tex. 60, 72.

Thus, we see that the act of.sequestering personal property is not an act of conversion and its occurrence has no effect in instituting or tolling the statute of limitation.

The event that actually triggered the running of the statute of limitations was the legal dispossession of the appellant of the automobile. This dispossession occurred on November 19, 1981, when the court refused to dissolve the writ of sequestration. We sustain appellant’s points of error one and two.

The appellant’s remaining points of error are not discussed as they are immaterial in view of our disposition of appellant’s first two points of error.

The judgment of the trial court is reversed and the cause remanded for trial.


author: JACK SMITH, Justice. COHEN, Justice,

text:
    Damian Pena BENAVIDES, Appellant, v. The STATE of Texas, Appellee.
    No. 01-82-0162-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 8, 1984.
    Rehearing Denied Nov. 30, 1984.
    Don Ervin, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., Winston E. Cochran, Jr., Harris County Asst. Dist. Atty., Ned Morris, Harris County Asst. Dist. Atty., Houston, for appellee.
    Before JACK SMITH, BASS and COHEN, JJ.'
   OPINION

ON REMAND

JACK SMITH, Justice.

This is an appeal of a conviction for possession of marijuana in a quantity of more than five pounds but less than 50 pounds. Appellant plead guilty in a trial before the court and punishment was assessed at four years confinement pursuant to a plea bargain agreement. On appeal, this court, 652 S.W.2d 464 (Tex.App.1983), affirmed the conviction, and appellant filed a petition for discretionary review. 664 S.W.2d 328 (Tex.Cr.App.1983). The petition was granted and the judgment of this court was reversed and remanded.

Appellant was charged and convicted under Tex.Rev.Civ.Stat.Ann. art. 4476-15, sec. 4.051(b)(4). Appellant contends that his conviction was unconstitutional as the caption to H.B. 730, which amended the Controlled Substances Act, failed to meet the requirements of Tex. Const, art. Ill, sec. 35 and was therefore invalid. He further contends that the invalidity of that statute removes the conduct of possessing marijuana from criminal penalties.

In Ex parte Crisp, 661 S.W.2d 944 (Tex.Crim.App.1983), H.B. 730 was held unconstitutional. However, when an amendment to an act is declared invalid, the original act remains in full force and effect. Tex. Const, art. Ill, sec. 35. The pre-amendment Controlled Substances Act provided that “a person commits an offense if he knowingly or intentionally possesses a usable quantity of marijuana.” We therefore hold that the invalidity of the statute did not remove the conduct of possessing marijuana from criminal penalties. Appellant’s ground of error is overruled.

The pre-amendment act also provided that possession of over four ounces was a third-degree felony and as such, carried a penalty of from two to 10 years confinement and a fine not to exceed $5,000. Art. 4476-15, sec. 4.05(b)(1). Appellant was charged and convicted under H.B. 730 under which the penalty range of possession of more than five but less than 50 pounds of marijuana was from two to 20 years confinement and a fine not to exceed $10,-000. However, he had not alleged that he would not have entered a plea of guilty if he had known that the proper range of punishment was not less than two nor more than 10 years.

Prior to accepting a plea of guilty the court must admonish the defendant of the range of punishment attached to the offense or a plea of guilty shall be invalid. Hardman v. State, 614 S.W.2d 123 (Tex.Crim.App.1981); Tex.Code Crim.P.Ann. art. 26.13(a)(1) (Vernon 1977). However, where an erroneous admonishment is given, substantial compliance will still be deemed to have occurred and the burden shifts to the defendant to show that he entered his plea without understanding the consequences of such plea and thus was harmed. Ex parte Smith, 678 S.W.2d 78 (Tex.Crim.App.1984); Ex parte McAtee, 599 S.W.2d 335 (Tex.Crim.App.1980). Appellant has not alleged nor shown harm.

Therefore, in the present case, the judgment of the trial court is affirmed.

COHEN, J., dissenting.

COHEN, Justice,

dissenting.

The defendant in this case was incorrectly admonished upon his plea of guilty that he faced a punishment range of two to 20 years imprisonment and a fine of up to $10,000. This was incorrect because the statute so providing, H.B. 730, was unconstitutional. Ex parte Crisp, 661 S.W.2d 944 (Tex.Crim.App.1983). Consequently, the Controlled Substances Act in effect pri- or to the 1981 amendment remained in effect, and it provided for a lower penalty range, namely, two to 10 years imprisonment and a $5,000 fine.

Cases like Ex parte Smith, 678 S.W.2d 78 (Tex.Crim.App.1984) hold that this is not enough to show that the plea of guilty was involuntary because, unless no admonishment at all is given, substantial compliance with the admonishment statute, Tex. Code Crim.P.Ann. art. 26.13, is presumed, and the defendant must present evidence that he entered his plea without understanding the consequences and was, therefore, misled or harmed. This is a bad rule which should be abandoned for the reasons stated by Judge Onion in Devary v. State and by Judge Clinton and others in Taylor v. State.

Article 26.13(a)(1) is mandatory, and a trial judge’s total failure to tell the defendant the range of punishment is automatic reversible error, without objection and without proof of harm. Ex parte McAtee, 599 S.W.2d 335. In Taylor, Judge Clinton wrote, “There is no principled distinction between total failure to speak of punishment and stating a range of punishment which is not applicable to the offense on trial.” 610 S.W.2d at 474 (original op.). I submit that there is a significant distinction.

An admonishment which misstates the punishment range is worse than none at all. It is normally presumed that the defense attorney informed the defendant of the correct punishment range; that presumption is left undisturbed when the court gives no admonishment. But when the judge tells the defendant the wrong punishment range, and the defense attorney stands by silently, the defendant is affirmatively misled both by the court’s statement and the attorney’s silent acquiescence.

When a defendant enters a guilty plea, he waives many constitutional rights, including the privilege against self-incrimination, the right to a trial and the right to confront witnesses. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Such waivers must be intelligent and voluntary and are never presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). Here we do not have a silent record. We have a record indicating that the waiver of these rights was based on incorrect information from the court, ratified by the defense attorney.

It is well established that an attorney renders ineffective counsel if he incorrectly informs a defendant pleading guilty that the punishment range is lower than it actually is. Murphy v. State, 663 S.W.2d 604, 610 (Tex.App.—Houston [1st Dist.] 1983, no pet.). Yet, under cases like Ex parte Smith, supra, we do not reverse even when both the judge and the defense attorney have told the defendant that the penalty range is higher than it actually is, absent testimony from the defendant that he pleaded guilty in reliance upon the misrepresentation.

What will be the practical effects upon the criminal justice system from holding that an incorrect statement of the punishment range is substantial compliance with our statute, thus requiring appellants to show that they relied on the admonishment and were therefore misled? The first is that large numbers of cases which are affirmed on direct appeal will be reversed sometime later on writs of habeas corpus. These writs will require hearings in our district courts, findings of fact and conclusions of law by the district judge acting as a master, preparation of a transcript by the district clerk, a statement of facts by the court reporter, and appellate briefs by the state and the applicant, and a decision by the Court of Criminal Appeals. See Tex. Code Crim.P.Ann. art. 11.07 (Vernon Supp. 1984). Once the defendant states that he relied on the judge’s incorrect statement of the range of punishment and upon his own attorney’s agreement by silence, and that he would not have pleaded guilty if he had known the correct punishment range, it will be a rare case where the state can rebut such evidence. After all this additional work is done, and much time passes, with the predictable loss of witnesses by the state, post-conviction relief will, in all likelihood, be granted.

If the appellant’s sentence was relatively short, he will have probably served all of it, or enough to be on parole or eligible for parole, all without ever having been told the correct punishment range. On the other hand, if the appellant was given a long sentence because the judge or jury considered him a severe threat to society, the state will have to retry him, if it can still assemble its witnesses and its evidence, after a much longer delay than if the case had been promptly reversed on direct appeal. There is no doubt at all that some serious and violent criminals will escape prosecution entirely because of witnesses and evidence lost during the avoidable delay of meritorious habeas proceedings.

I do not suggest that convictions should be reversed without the defendant having been harmed; on the contrary, that is a sound rule which we follow too rarely in Texas, reversing many cases for fundamental error in the absence of both objection and prejudice. Nor do I suggest that it violates the defendant’s rights to make him prove the required prejudice. The issue is whether harm from a grossly incorrect statement of the punishment range is so probable that it is not worth society’s time to litigate the issue on a case-by-case basis. The answer is that it is a harmful waste of time likely to injure both defendants and the state unnecessarily.

The Supreme Court of the United States has recently discussed this problem in Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984). The Court held that convictions would not be reversed for ineffective assistance of counsel unless counsel’s errors were so prejudicial that they affected the court’s judgment. Nevertheless, the Court concluded that prejudice would be presumed in some cases. It stated:

In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of State interference with counsel’s assist-ance_ Prejudice in these circumstances is so likely that case by case inquiry into 'prejudice is not worth the cost.... Moreover, such circumstances involve impairments of the Sixth Amendment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent, (emphasis supplied).

In Ex parte McAtee, 599 S.W.2d at 336, the court cited Boykin v. Alabama for the proposition that where no admonishment at all is given, “the danger of the defendant entering an unknowing and involuntary plea is so great that no specific harm need be shown.”

In my opinion, the prejudice from a judge’s incorrect statement of the punishment range, ratified by the defense attorney’s silence, is so likely to be prejudicial that “case by case inquiry is not worth the cost.” As in Strickland, this is a sixth amendment violation because it is incorrect advice by the defense attorney regarding what will usually be the most important fact influencing the guilty plea, the punishment range. Further, incorrect admonishments of the range of punishment deny due process of law under the Texas and U.S. Constitutions because they deprive the appellant of knowledge of the nature of the charges against him. The violations are extremely easy to identify because there is verbatim record of the court’s admonishment in every case. Although the prosecution may not be directly responsible, the judge and the defense attorney will be, or, as in the instant case, the legislature may be" responsible for passing a statute with an inadequate caption that misleads the trial judge, the defense attorney, and the defendant as to what is the controlling law governing the range of punishment. In the many cases, including the instant case, where the incorrect admonishment was due to the unconstitutional statute set aside in Ex parte Crisp, it seems completely unreasonable to require a defendant to show that he was misled when the legislature, all but one court of appeals which ruled on the issue, and four judges of the Court of Criminal Appeals all thought that the statute was constitutional and that, consequently, the higher punishment range of the 1981 act was the correct range. Is it reasonable to assume that the appellant was not misled by this state of affairs when all of these high public officials were? Is it worth case-by-case litigation on post-conviction writs of habeas corpus to find out?

Finally, how can we presume substantial compliance from an admonishment that is blatantly not in compliance with the governing law? How can we presume that a defendant was aware of the consequences of his plea and not misled when every authority in the criminal justice system, including the trial judge, the defense attorney, and the prosecutor, all gave him incorrect advice, and thus deprived him of correct information needed to make an informed choice of whether to waive his constitutional rights? I cannot, in good conscience, presume that gross error is really substantial compliance, and that a defendant who has been expressly, materially, and unanimously misinformed, on the record, by the judge and by his own attorney was somehow not misled.

Some errors in admonitions regarding the punishment range may be too minor to presume harm, but the error in this case was of major proportion. Many cases like this will burden the system with meritorious writs of habeas corpus; in fact, the problem may extend to every guilty plea entered to offenses whose punishment range was increased by House Bill 730. Such cases, including this one, should be promptly reversed on direct appeal, not swept under the carpet for later, inevitable habeas corpus relief. If cases like Ex parte Smith, and Ex parte McAtee prevent this, then Judge Onion is correct. They should be overruled. McAtee, 599 S.W.2d at 336. Stare decisis is not a good enough reason to follow authorities which unnecessarily require inefficient and unfair results.

      . Ch. 429, 1973 Tex.Gen.Laws 1132, amended by Ch. 268, sec. 7, 1981 Tex.Gen.Laws 702 (eff. Sept. 1, 1981).

      . Accord, Ex parte McAtee, 599 S.W.2d 335 (Tex.Crim.App.1980); DeVary v. State, 615 S.W.2d 739 (Tex.Crim.App.1981); Taylor v. State, 610 S.W.2d 471, 477 (Tex.Crim.App.1980) (op. on reh'g).


text:
    Guadalupe LOZANO, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0048-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 15, 1984.

      Doyle W. Neighbours, Lake Jackson, for appellant.
    Jim Mapel, Brazoria County Dist. Atty., Jim Turner, Brazoria County Asst. Dist. Atty., Angleton, for appellee.
    Before EVANS, C.J., and BASS and BULLOCK, JJ.
   OPINION

EVANS, Chief Justice.

A jury found appellant guilty of murder. After finding that both enhancement allegations were true, the jury assessed punishment at confinement for life.

In a single ground of error, appellant contends that the trial court erred in overruling his pre-trial motion to dismiss for failure to comply with Tex.Code Crim.P. Ann. art. 32A.02, the Speedy Trial Act.

At the time of the offense, appellant was an inmate at the Darrington Unit of the Texas Department of Corrections. Appellant contends that, for purposes of computing time requirements under the Speedy Trial Act, he was “arrested” on the date of the incident, December 15, 1982. The state argues that the period of time within which the state must be ready for the purposes of the act did not commence until appellant was indicted, June 7, 1983.

The appellant testified that on the date of the incident an unidentified officer told him that he was under arrest. The deputy in charge of investigating the incident testified that when offenses were committed in the prison, standard procedure was to file charges directly with the grand jury, and that the authorities did not seek an arrest warrant. He also stated, however, that if appellant had not been a prisoner, he would “probably not” have been allowed to walk away.

On the date of the incident, the investigation by the deputy sheriff revealed that appellant had already made an incriminating statement, that he had blood on his clothing which had been taken from him for evidence, that he had two knives in his possession immediately after the victim was stabbed, and that he was found in the same cell line with the victim without having permission to be in that area.

There is no doubt that law enforcement officers detained the appellant on the date of the incident, and that kind of detention is usually considered an “arrest.” We therefore find that appellant was under arrest on December 15, 1982, the date of the offense.

The issue remains whether the period of 120 days set by the act commenced at that time.

Appellant’s circumstances are analogous to the situation in Lyles v. State, 653 S.W.2d 775 (Tex.Crim.App.1983). Lyles was involved in a traffic collision on August 1, 1979, in which an occupant of the vehicle his semitractor hit was killed. Lyles was arrested on August 1, 1979, and after giving an in custody statement, he was released without bond. A complaint and information were filed later on August 13, 1979. The Court of Criminal Appeals stated that:

In the instant case while the appellant was arrested on August 1, 1979 and detained in custody, he was released within 24 hours without bail and without charges being filed. The El Paso Court of Appeals was correct under the particular circumstances in finding the time limitations of Article 32A.02, supra, began on August 13, 1979, with the filing of the information.

653 S.W.2d at 776.

Section 2 of the Speedy Trial Act states that:

A criminal action commences for purposes of this article when an indictment .. or complaint against the defendant is filed in court, unless prior to the filing the defendant is either detained in custody or released on bail or personal bond to answer for the same offense or any other offense arising out of the same transaction, in which event the criminal action commences when he is arrested.

The statutory commencement of the action under the Speedy Trial Act is calculated from the date of arrest only if either 1) the detention for the same offense, or any other offense arising out of the same transaction, is continuous, e.g., Lyles, supra, or 2) the detention is followed by release on bail or personal bond. Appellant was not placed in detention for the same offense, or an offense arising from the same transaction, but was instead, already in detention for a prior offense. For violation of the prison’s administrative rule, he was placed in special administrative custody. We hold that this criminal action commenced when the indictment was filed in court. Garcia v. State, 625 S.W.2d 431 (Tex.App.—Houston [14th Dist.] 1982, pet. ref’d).

Appellant alternatively argues that the state was not ready for trial within 120 days of the indictment. Appellant concedes that when the state announced that it was ready for trial on August 4, 1983, within the applicable time limitation, it became his burden to rebut their prima facie showing of readiness. Barfield v. State, 586 S.W.2d 538 (Tex.Crim.App.1979). To comply with the act, the state must be ready for trial by the 120th day after the commencement of the action. The state need not show that its witnesses were actually available to testify within the 120-day period, nor that the witnesses had been interviewed. Walters v. State, 628 S.W.2d 526 (Tex.App.—Fort Worth 1982 no pet.). In fact, witnesses may even be unavailable at some later date. Baty v. State, 638 S.W.2d 185 (Tex.App.—Dallas 1982, pet ref’d). It was established that this cause was not tried until approximately six months after indictment because of court docket delays. The Act requires preparedness of the prosecution for trial, and does not encompass delays caused by the trial court and its docket. Barfield, supra. The appellant failed to rebut the state’s prima facie showing of readiness under the Act.

We overrule appellant s ground of error, and affirm the judgment of the trial court.


author: STEPHENSON, Justice.

text:
    James William JONES, Movant/Appellant, v. Patricia Ann JONES, Respondent/Appellee.
    Supreme Court of Kentucky.
    Dec. 6, 1984.
    William R. Meredith, Harrodsburg, for movant/appellant.
    Paula M. Raines, Lexington, for respondent/appellee.
   STEPHENSON, Justice.

The principal question presented on this appeal is whether military retirement benefits are marital property. The trial court entered judgment in a divorce action dividing military retirement benefits between the parties. We granted transfer and affirm the judgment of the trial court.

Shortly after the marriage of the parties in 1956, James Jones joined the Air Force and retired in 1976 after twenty-years’ service with monthly benefits of $1,251.60. The parties separated in 1981 and were divorced in 1983. The trial court adjudged that Patricia Jones should have 50 percent of the net retirement for her lifetime or until the death of James Jones, whichever first occurs.

As background to this proposition, the United States Supreme Court in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), effectively closed the door on varied approaches to this problem by the various states. The Court, after reviewing the legislative history of the military retirement pay system, held that:

“... (it) confers no entitlement to retired pay upon the retired member’s spouse, and does not embody even a limited ‘community property concept.’ The language, structure and history of the statutes make it clear that retired pay continues to be the personal entitlement of the retiree.”

The opinion further determined that the Supremacy Clause of the United States Constitution requires that all states follow the interpretation of military retirement pay as non-marital property.

Congress then in 1982 enacted legislation, Title 10, § 1408(c)(1) of the United States Code, effective in February 1983, which relates to retirement pay and provides in pertinent part:

“Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.”

This legislation nullified McCarty and left this issue to the states.

We are of the opinion that in the absence of a statute to the contrary, military retirement pay should be treated as marital property. KRS 403.190(2) provides, “For the purpose of this chapter, ‘marital property’ means all property acquired by either spouse subsequent to the marriage except: ....”

The military retirement pay here was accumulated entirely during the marriage, and by any test we can think of is property within the meaning of KRS 403.-190(2). Thus the pay is subject to division by the court as marital property.

Here the retirement pay is vested and being received at the time of the divorce. The duration of service to qualify for the pension took place entirely during the period of the marriage. We do not attempt by this opinion to resolve the problems that may arise due to fact situations different from those here.

We have reviewed the record and are of the further opinion the equal division of the retirement pay by the trial court is not clearly erroneous.

The judgment of the trial court is affirmed.

STEPHENS, C.J., and AKER, GANT, LEIBSON, STEPHENSON, VANCE and WINTERSHEIMER, JJ., sitting.

All concur.


text:
    H. Randall STARNES, District Judge, 35th Judicial District, Second Division, Appellant, v. JUDICIAL RETIREMENT AND REMOVAL COMMISSION, Appellee.
    Supreme Court of Kentucky.
    Dec. 6, 1984.
    Henry D. Stratton, Herman W. Lester, Pikeville, for appellant.
    George Rabe, James D. Lawson, Lexington, for appellee.
   OPINION OF THE COURT.

District Judge H. Randall Starnes appeals from an Order of the Judicial Retirement and Removal Commission removing him from office for the reasons stated in the “Findings of Fact, Conclusions of Law, and Final Order” of the Commission.

Briefly stated, the Commission has found Judge Starnes guilty of “misconduct in office,” of “persistent failure to perform the duties of his office,” and “violating the Code of Judicial Conduct.”

The evidence, largely unrefuted, is that during much of his tenure, and more particularly during the last three years, Judge Starnes has been frequently absent when court was scheduled to be in session, almost invariably late when he did show up, and usually unavailable to conduct the business of his office when court was not in session. His conduct significantly contributed to an unnecessary delay in disposition of cases and a large backlog of cases in his District.

Judge Starnes was also found guilty of improperly failing to disqualify in criminal cases involving defendants who were close personal friends. One friend faced charges in some fifteen cases, and a second one in eleven cases. In fairness, he was not charged with showing favoritism to these two friends, and a charge that he had exhibited favoritism toward a third friend was found to be unproved and dismissed.

At one point in his defense Judge Starnes submitted a letter from a Georgia alcohol and drug abuse clinic indicating that while these proceedings were in progress Judge Starnes had undertaken a course of treatment for drug addiction. On this appeal his counsel argues that he “was mislead [by opposing counsel] into believing that the Commission would, after his hospitalization, be compassionate.” He suggests that he was “entrapped into appearing before the Commission and admitting to the Commission, after his hospitalization and beginning treatment, about having a problem with substance abuse”; that the failure to show him mercy when he had “voluntarily bared his soul in hope that the compassion could be found,” was a breach of faith. This argument concedes implicitly, if not in so many words, that this appeal does not challenge the sufficiency of the evidence to prove the charges against him. In the circumstances of this case, had the Commission members elected to show the compassion to which the appellant alludes, they would have violated the responsibilities of their office and broken faith with the public.

The Commission found that “an addiction to an illegal drug which occurs as a result of voluntary conduct does not afford a valid defense to charges of misconduct on a judge’s part_ [A] judge who voluntarily engages in illegal drug activity violates Canon 1 and Canon 2 of the Code of Judicial Conduct.” We agree.

This opinion should not be misinterpreted. The fact that a judge is late or absent on occasion does not necessarily warrant a reprimand, let alone anything so serious as removal from office. But the misconduct here was chronic and pervasive. It was extreme. It seriously disrupted the administration of justice in the 35th Judicial District and brought the entire judiciary into disrepute. The evidence to sustain the charges met the necessary standard; it was “clear and convincing.” SCR 4.160; Nicholson v. Judicial Retirement & Removal Commission, Ky., 573 S.W.2d 642 (1978). In the circumstances the decision of the Commission to order removal was neither unjustified nor excessive.

Likewise, with reference to failing to disqualify in cases involving his friends, the details indicate an abuse of office, rather than a mere mistake in judgment. We are not called on to decide whether this conduct, standing alone, would justify removal. The question is whether, when all the evidence of misconduct is considered together, did the Commission abuse its decision-making function by ordering removal? We conclude that it did not.

In Wilson v. Judicial Retirement & Removal Commission, Ky., 673 S.W.2d 426, 428 (1984), we state:

“On a review of the entire record, we are unable to say that it was unreasonable for the commission to make the findings and conclusions set forth in this opinion, nor was the penalty of removal from office, imposed by the commission, unreasonable.”

Consistent with that opinion we affirm the decision of the Judicial Retirement and Removal Commission in the present case. The appeal is dismissed.

STEPHENS, C.J., and AKER, GANT, LEIBSON, VANCE and WINTERSHEIMER, JJ., sitting.

All concur.

      . Appellant had failed to appear in his own defense at two scheduled hearings of the Commission with no explanation except an ambiguous doctor’s letter about voluntary treatment for depression and personality disorder. The full explanation was presented belatedly.


author: STEPHENSON, Justice. LEIBSON, Justice,

text:
    COMMONWEALTH of Kentucky, Movant, v. Michael Joe McFERRON and Clarence Kirby, Respondents.
    Supreme Court of Kentucky.
    Dec. 6, 1984.

      David L. Armstrong, Atty. Gen., Christopher W. Johnson, Asst. Atty. Gen., Frankfort, for movant.
    Carl R. Clontz, Clontz & Cox, Mount Vernon, for respondent McFerron.
    William G. Crabtree, London, for respondent Kirby.
   STEPHENSON, Justice.

Michael Joe McFerron was convicted of third-degree sexual abuse, KRS 510.130, and aiding and abetting sexual misconduct and sexual misconduct, KRS 502.020(1), KRS 510.140. McFerron was sentenced to imprisonment for one year and a fine of $500. Clarence Kirby was convicted of rape in the first degree, KRS 510.040, and sentenced to imprisonment for ten years. The Court of Appeals remanded the case with directions. We granted discretionary review and reverse.

There is no challenge to the sufficiency of the evidence to convict, so a recitation of the facts here is not necessary.

The principal assertion of error for both McFerron and Kirby is systematic exclusion of distinctive groups from both the grand jury and petit jury panels.

Prior to trial a motion was made to quash the indictment, set aside the jury panel and continue the case. This motion was supported by an affidavit based on personal belief of counsel for McFerron. The motion was denied. So far as we can tell from the record, there was no request for a hearing for the taking of evidence, and no proof was offered.

The affidavit is as follows:

“Affiant states that he has been familiar with and has reviewed the names of every jury panel selected for service since 1960 and that during said period of time no lawyers of [sic] physcians [sic] have been called for jury duty although at all times during the period physicians and lawyers were available and qualified for jury service. Affiant states that he believes that there has been a systematic exclusion of those classes of persons from jury service for the last 20 years. “Affiant further states that during the entire period mentioned in the above paragraph that the Rockcastle Circuit Court has had three five-week terms each year and that those terms have commenced on the third Mondays of the months of March, July and November in each of said years. Affiant states that for the last five or six years during the March and November terms of said court, schoolteachers have been systematically excluded from jury service. The exclusion of teachers was accomplished in a manner different from that stated above relevant to attorneys and physicians. No attorneys’ or physicians’ names were ever pulled from the jury drum. In the case of school teachers, except for the current term of the Rock-castle Circuit Court, their names were placed in the jury drum and they were selected for jury duty but the court, upon request as a matter of comity, automatically excused them from jury service during the March and November terms. “Affiant believes that this exclusion of school teachers from jury service for the March and November terms of the Rock-castle Circuit Court has been absolute for the past five or six years and that no school teacher has served on a jury during those periods.”

The Court of Appeals held that the affidavit was sufficient to make out a •prima facie case of systematic exclusion and the failure of the Commonwealth to then go forward with proof to negate the affidavit required that the case be remanded in order that the Commonwealth be enabled to demonstrate that the jury was composed constitutionally.

We are of the opinion the Court of Appeals is in error in holding that the affidavit made out a prima facie case shifting the burden to the Commonwealth to prove constitutional standards had been met. In considering this proposition, we do not differentiate between standards for grand jury or petit jury. While there may be some differences in applying various sections of the U.S. Constitution, for the purposes of this case there is no difference.

We base our decision on the following U.S. Supreme Court cases on the subject: Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); and Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

We do not consider differently un-derrepresentation and systematic exclusion. For the purpose of the requirements of making out a prima facie case of unconstitutional composition, there is no difference. In a given case underrepresentation constitutes systematic exclusion.

Swain is an alleged underrepresentation case. The evidence there was that while Negro males constituted 26% of all males in the county only 10% to 15% of the grand and petit jury panels have been Negro and no Negro had served on a petit jury. In denying relief, the court said, “But purposeful discrimination may not be assumed or merely asserted .... It must be proven _” The court further stated: “Nor do we consider the evidence in this case to make out a prima facie ease of invidious discrimination under the Fourteenth Amendment.”

In Alexander, challenging the make-up of the grand jury, the evidence showed that 21% of the local adult population were Negro, 13% returning questionnaires to the commissioners were Negro, 6.75% of the persons ultimately selected as prospective grand jurors were Negro, only 1% of the 20 persons drawn for the defendant’s grand jury venire were Negro, and none of the 12 persons on the grand jury which indicted the defendant were Negro.

The Court held that the proof adduced by Alexander established a prima facie case of invidious racial discrimination, shifting the burden of proof to the state to rebut the presumption of unconstitutional action.

In Taylor there was a stipulation that of the people eligible for jury service in the judicial district 53% were female, but no more than 10% of the persons on the jury wheel were women and none were selected on the defendant’s venire. A state statute excluded women from jury service unless they had previously filed a written declaration of their desire to be subject to jury service.

The court held that women had been systematically excluded and that the makeup of the jury which convicted Taylor was impermissible constitutionally. No mention is made of a prima facie case for the obvious reason of the stipulation which constituted the proof from both defense and prosecution.

In Castaneda there was a challenge to the grand jury on underrepresentation of Mexican-Americans. The evidence showed that the population of the county was 79% Mexican-American, but only 39% of the persons summoned for grand jury service were in such class. The court held that a prima facie case of discrimination against Mexican-Americans was established since statistics showed that Mexican-Americans constituted a clearly identifiable class.

In Duren state law granted women an automatic exemption from jury service at their request. Duren established that while 54% of all adults in the county were women, only 26% of those summoned from the jury wheel were women and that only 14% of the persons on the post-summons venires were women. Duren’s all male jury was selected from a panel of 53, of whom 5 were women. None of the statistical evidence was disputed. The court held that a prima, facie case of systematic exclusion was established, and since there was no showing otherwise the case was reversed reaffirming the fair cross-section inquiry in Taylor stating that the wheels, pools of names, panels, or venires from which jurors are drawn must not systematically exclude distinctive groups in the community and thereby fail to be representative thereof.

The common thread running through these cases on the proposition of making out a prima facie case is “that proof by taking evidence is required in the absence of a stipulation. Swain is the only case stating such allegations as made here must be proven. The other opinions accept this proposition by inference. Here we have no suggestion that proof was offered or available to establish a prima facie case of systematic exclusion of a distinctive group.

We are of the opinion that we should not go beyond the opinions of the U.S. Supreme Court in this respect and are of the further opinion McFerron and Kirby did not establish a prima facie case requiring the Commonwealth to go forward with proof. We hold the Court of Appeals’ decision erroneous in requiring the Commonwealth to establish validity of the jury panel in the circumstances of this case.

We have heretofore stated in Tinsley v. Commonwealth, Ky., 495 S.W.2d 776, 781 (1973), that “... purposeful discrimination must be proved.”

In arriving at this decision we have re-examined Colvin v. Commonwealth, Ky., 570 S.W.2d 281 (1978). In Colvin there was a motion by counsel and what the opinion called an avowal that the jury commissioners would testify that the trial court specifically instructed them to exclude schoolteachers from the jury wheel and that this instruction was followed. We are of the opinion that, in conformity with our holding in this case, Colvin should be and it is overruled.

Finally the allegations in the affidavit regarding schoolteachers seem to assert improperly excusing schoolteachers from jury service on the part of the trial court. This allegation does not concern exclusion from the jury drum and does not rise to constitutional proportions. We do not see that there is even an allegation of violation of KRS 29A.090-29A.100. We mention schoolteachers here only for the reason that Colvin held that the “fair-cross-section” requirement of the U.S. Supreme Court cases would prohibit the exclusion of schoolteachers in the jury wheel. In examining this holding in the light of the cited cases, we find distinctive groups in the constitutional sense included: Swain, Negroes (26% of the county population); Alexander, Negroes (21% of the parish population); Castaneda, Mexican-Americans (79% of the county population); Taylor and Du-ren, females (53% and 54% of the district and county population). Significantly to us, Taylor and Duren address the issue presented in Colvin. Taylor stated:

“We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps ov-erconditioned or biased response of a judge. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large distinctive groups are excluded from the pool. Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system. Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial. ‘Trial by jury presupposes a jury drawn from a pool broadly representative of the community as well as impartial in the specific case.... [T]he broad representative character of the jury should be maintained, partly as assurance of a diffused impartiality and partly because sharing in the administration of justice is a phase of civic responsibility.’ ” [Emphasis ours.]

And further with regard to gender:

“ ‘The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influences one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded. The exclusion of one may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded.’
“The States are free to grant exemptions from jury service to individuals in case of special hardship or incapacity and to those engaged in particular occupations the uninterrupted performance of which is critical to the community’s welfare. Rawlins v. Georgia 201 U.S. 638, 50 LEd 899, 26 S Ct 560 (1906). It would not appear that such exemptions would pose substantial threats that the remaining pool of jurors would not be representative of the community.”

Then in Duren reaffirming the statements in Taylor the court said:

“We recognize that a State may have an important interest in assuring that those members of the family responsible for the care of children are available to do so. All exemptions appropriately tailored to this interest would, we think, survive a fair-cross-section challenge. We stress, however, that the constitutional guarantee to a jury drawn from a fair cross section of the community requires that States exercise proper caution in exempting broad categories of persons from jury service. Although most occupational and other reasonable exemptions may inevitably involve some degree of overinclusiveness or underin-clusiveness, any category expressly limited to a group in the community of sufficient magnitude and distinctiveness so as to be within the fair-cross-section requirement — such as women — runs the danger of resulting in underrepresentation sufficient to constitute a prima facie violation of that constitutional requirement. We also repeat the observation that in Taylor that it is unlikely that reasonable exemptions, such as those based on special hardship, incapacity, or community needs, ‘would pose substantial threats that the remaining pool of jurors would not be representative of the community.’ ”

This survey of U.S. Supreme Court cases leads us to the view that “distinctive groups” must comprise a substantial percentage of the county population, and in order to not be in advance of U.S. Supreme Court requirements we are of the opinion that ordinarily professions or occupations are not distinctive groups in a community absent a showing of numerosity and lack of community needs to establish a prima fa-cie case of systematic exclusion. The flavor of representative ideas of distinctive groups or outlooks play a part in determining if points of view of distinctive groups are missing from the jury pool. Certainly there has been no showing here that physicians and lawyers are “distinctive groups” in the community.

In order to allay the alarm expressed in the dissent, we emphasize that this case is decided on constitutional grounds as argued. We do not in any way diminish the effect of KRS 29A.90. As stated above, we simply do not see that the contents of the affidavit present a violation of KRS 29A.90 — 29A.100.

The other issues in the case were properly disposed of by the Court of Appeals’ decision.

The Court of Appeals’ decision is reversed insofar as it remands the case on the jury issue. In all other respects it is affirmed.

STEPHENS, C.J., and GANT, STEPHENSON, VANCE and WINTER-SHEIMER, JJ., concur.

LEIBSON, J., dissents and files a separate dissenting opinion.

AKER, J., not sitting.

LEIBSON, Justice,

dissenting.

Respectfully, I dissent.

The appellants moved to quash the indictment because the grand jury was improperly drawn and/or to set aside the jury panel for the same reason, and asked for “a hearing on this motion.” The motion was accompanied by an affidavit. The affiant “has been actively engaged in the practice of law in the Rockcastle Circuit Court since September, 1960.”

The affidavit establishes a prima facie case that lawyers and physicians have been systematically excluded from jury service in Rockcastle Circuit Court for the past twenty years, and that school teachers have been automatically excused from jury service for the last five or six years during the March and November terms of court.

The affidavit contains specifics; it is not just conclusory. The motion was overruled. The record shows no hearing on the motion and no waiver of the request for a hearing.

The affidavit provided a prima facie case of violation of KRS 29A.090 and of the Administrative Procedures of the Court of Justice, Part II, § 13 and 14, which implement the statutory mandate.

The motion and affidavit were sufficient to require the trial court to either sustain the motion or grant an evidentiary hearing. The failure to do either was reversible error.

The majority opinion expressly overrules Colvin v. Commonwealth, Ky., 570 S.W.2d 281 (1978). In Colvin, we held automatic exclusion of teachers impermissible. We stated:

“This court is of the opinion, and so holds, that the exclusion of an identifiable segment of the community cannot be said to rest in the discretion of the trial judge.” 570 S.W.2d at 282.

Our holding in Colvin is consonant with the mandate of the United States Supreme Court in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), which prohibits “excluding identifiable segments” of the community, and not, as the majority suggests, “beyond the opinions of the United States Supreme Court in this respect.” In any event the Colvin interpretation is identical with KRS 29A.090, which provides:

“Automatic exemptions prohibited— There shall be no automatic exemptions from jury service.”

The Colvin case is a reasonably sound interpretation of United States Supreme Court doctrine, and of recent vintage. It should not be so soon overruled. Further, since the Colvin interpretation is codified in KRS 29A.090, it cannot be properly overruled.

The majority concludes that teachers, physicians and attorneys are not “distinctive groups in a community absent a showing of numerosity and lack of community needs_” I disagree.

The “numerosity” of teachers, doctors and lawyers is irrelevant. None should be automatically excluded.

If “lack of community needs” means that a litigant must overcome a court-created presumption that these professionals should be automatically excluded because to do so serves community needs, simply to state this premise is enough to illustrate the problem.

We seem to be evolving towards a rule that in every circuit the chief circuit judge is authorized to make up a list of groups in the community who may be automatically excluded because he knows, innately, that such is desirable. Whereas the state through its legislature is free to grant ex-eruptions from jury service based on “particular occupations the uninterrupted performance of which is critical to the community’s welfare,” (Taylor v. Louisiana, supra 419 U.S. at 534, 95 S.Ct. at 700), no such privilege is extended to the courts, by constitution or otherwise.

The power of the court is limited to granting prospective jurors exemptions on an individual basis “upon a showing of undue hardship, extreme inconvenience or public necessity.” KRS 29A.100.

Within the past year we denied discretionary review in a published opinion of the Court of Appeals, Reid v. Commonwealth, Ky.App., 659 S.W.2d 217 (1983), which reversed the trial court for having excluded “doctors, lawyers, and policemen” as jurors. The Court of Appeals stated:

“This question was timely raised, and we believe reversal is required since automatic exclusion of these groups constitutes a substantial deviation from the statutory method of jury selection.” 659 S.W.2d at 218.

I respectfully suggest that this case, so recently perceived by us as sound, should not be so soon repudiated.

If the majority opinion in this case were limited to holding that counsel did not do enough to raise the point and preserve the error, I would disagree, but I would not be troubled by this decision.

But, unfortunately, the majority opinion goes much further. It overrules Colvin, a precedent which is both recent and reasonable, interpreting the United States Supreme Court’s mandate on the meaning of the Federal Constitution, and disregards the statutory mandate of KRS 29A.090. It gives carte blanche to circuit judges to decide when to exclude identifiable groups in the community'from jury service, whether they should be or not — indeed, whether they wish to be or not.