author: POWERS, Justice.

text:
    SPRING INDEPENDENT SCHOOL DISTRICT, et al., Appellants, v. Elaine DILLON, Appellee.
    No. 14221.
    Court of Appeals of Texas, Austin.
    Dec. 19, 1984.

      Augustus T. White, Houston, for Spring ISD.
    Jim Mattox, Atty. Gen., Kevin O’Hanlon, Asst. Atty. Gen., Mark W. Robinett, Austin, for Texas Educ. Agency.
    Robert E. Hall, Law Firm of Bob Hall, .Houston, for appellee.
    Before PHILLIPS, C.J., and POWERS and GAMMAGE, JJ.
   POWERS, Justice.

The Commissioner of Education, ruling that he lacked subject-matter jurisdiction, dismissed an administrative appeal taken to him by Elaine Dillon in her dispute with her former employer, Spring Independent School District. The State Board of Education affirmed the Commissioner’s order and Dillon sued for judicial review in a district court of Travis County. Tex.Educ.Code Ann. § 11.13(a)-(c) (1972 & Supp.1984). The district court reversed the agency order and remanded the dispute to the board of trustees of the school district, ordering that they afford Dillon an “evidentiary” or trial-type hearing of her complaints against the school district.

We will hold the district court correctly reversed the agency order. We will affirm to that extent the judgment rendered below. We will, however, reform that judgment to require that the Commissioner, on remand, enter a final order proper in his judgment based upon his determination of the following: (1) whether, under the principles set forth in this opinion, he has jurisdiction of the dispute under § 11.18(a) of the Texas Education Code; and, if so, (2) whether Dillon’s dispute with the school district falls within the scope of the administrative regulation found at 19 Tex.Admin. Code § 61.231(b)(1) (Rule 226.23.09.010) (1981), which provides for and governs hearings before local boards of trustees as to “grievances or controversies involving administrative actions or problems of school districts” when brought by “aggrieved parties.”

THE CONTROVERSY IN THE SCHOOL DISTRICT

Dillon was employed by the school district for the school year 1978-79. Her contract, which expired by its own terms at the end of the school year, specified that she work as coordinator of the Vocational Office Education (“VOE”) Program at one of the high schools in the district. Dillon served in that position for the school year 1978-79, working under the immediate supervision of the principal of the school, Bobby J. Woodruff.

Various disputes arose between Wood-ruff and Dillon concerning the conduct of each. At the end of the school year, Wood-ruff prepared a required job-performance evaluation of Dillon’s work. The evaluation was placed in her personnel file maintained by the school district. We assume the content of the evaluation amounted to an opinion by Woodruff that Dillon’s work was unsatisfactory. (We find in the appellate record nothing which suggests the content of the evaluation).

The superintendent of the school district intervened in the dispute between Dillon and Woodruff. He was unable fully to resolve the dispute but determined that Dillon should be offered a contract for the succeeding year. Dillon was in due course offered a contract of employment for the succeeding year. But because Woodruff had recommended termination of the VOE Program for lack of student interest, in which recommendation the superintendent apparently concurred, the new contract offered to Dillon specified that she would work as an English teacher in the coming school year.

Dillon initially accepted the offer of reemployment as an English teacher. She reserved, in her acceptance, a right to complain further of her treatment by Wood-ruff. She did so in a grievance filed with the board of trustees of the school district. The board of trustees heard Dillon’s complaints in a public meeting. It then investigated her complaints and rejected them, affirming nevertheless Dillon’s re-employment as an English teacher for the coming school year. Dillon, however, unilaterally rescinded her previous acceptance of re-employment and sought administrative review of the trustees’ decision by complaining to the Commissioner, as ostensibly authorized by the terms of § 11.13(a) of the Texas Education Code.

ADMINISTRATIVE REVIEW BY THE COMMISSIONER

In Dillon’s appeal to the Commissioner, she made the following allegations: (a) the school district arbitrarily discontinued the VOE Program, resulting in her being offered a lower-paid position, as an English teacher, for the succeeding school year; (b) the school district refused to remove from her personnel records the job-performance evaluation prepared by Woodruff; (c) the board of trustees violated an administrative rule, in refusing to afford her the procedural benefits of a trial-type hearing when the trustees considered and determined her grievance against Woodruff; and, (d) the board of trustees based its rejection of her grievance in part upon what the board learned in its ex parte investigation of her complaints against Woodruff, thereby violating the public meetings requirement of the Texas Open Meetings Act, Tex.Rev.Civ. Stat.Ann. art. 6252-17 (Supp.1984), and voiding the board’s action in rejecting her grievance.

• The school district moved that the Commissioner dismiss Dillon’s administrative appeal for want of subject-matter jurisdiction in the Commissioner. In a hearing conducted by the Commissioner’s hearing officer, Dillon’s counsel stated that Dillon’s complaints in her administrative appeal would be limited to the first two enumerated in the preceding paragraph; that is, her complaints that the school district had arbitrarily discontinued the VOE Program and refused to remove from Dillon’s personnel records the job-evaluation made by Wood-ruff. After hearing argument on the motion, the matter was apparently taken under advisement. In an order of February 7, 1980, the Commissioner dismissed Dillon’s administrative appeal for want of subject-matter jurisdiction. He therefore did not decide Dillon’s contention that the agency’s rules 226.23.09.010-226.23.11.010 applied to her grievance so that the local board of trustees that heard her grievance was obliged to afford her a trial-type hearing attended by such things as representation by counsel, briefs, oral argument, the taking of testimony and documentary evidence, cross-examination of adverse witnesses, and so forth. Moreover, it is not clear to us that the statement made by Dillon’s counsel was intended to waive this contention and, in any event, that matter is not briefed by the parties on appeal.

Implicit in the Commissioner’s order, as shown by accompanying findings of fact and conclusions of law, is his determination that his jurisdiction under § 11.13(a) of the Texas Education Code is co-extensive with the general original jurisdiction of a district court of the State to review the actions of administrative agencies. So much is implied in his determination that he had no jurisdiction of Dillon’s dispute with the school district because: (a) she did not assert a statutorily or constitutionally protected right of re-employment by the school district, in any capacity, her contract for the preceding year having expired by its own terms; and (b) Woodruffs evaluation of her job performance was not alleged by her to have risen to the level of “a substantial infringement of a legal right ...” (emphasis added). See generally Hubert, Dismissals of Public-School Employees in Texas — Suggestions for a More Effective Administrative Process, 44 Tex.L.R. 1309, 1311-21 (1966).

Dillon made further administrative appeal to the State Board of Education, as authorized by the terms of § 11.13(b) of the Texas Education Code. The State Board of Education affirmed the Commissioner’s order and adopted his findings of fact and conclusions of law. Dillon sued for judicial review, asserting that her suit was authorized by the terms of § 11.13(c) of the Texas Education Code and governed by the provisions of § 19 of the Administrative Procedure and Texas Register Act (AP-TRA), Tex.Rev.Civ.Stat.Ann. art. 6252-13a (Supp.1984).

JUDICIAL REVIEW IN THE DISTRICT COURT

Dillon, in her petition in district court, enlarged considerably her complaints and requested additional forms of relief. Her claims may be summarized as follows:

(a) She was subjected “to unfair harassment and ill treatment,” by Woodruff, during the school year 1978-79.

(b) The actions of the board of trustees, in denying her grievance, and the State

Board of Education, in not giving her relief therefrom, were arbitrary and capricious, not supported by substantial evidence, and based upon incorrect interpretations of the applicable law and administrative regulations.

(c) The “hearing” afforded her by the board of trustees was inadequate because she was not allowed the trial-type procedural benefits enumerated in 19 Tex.Admin.Code, supra, §§ 61.231-.252.

(d) The board of trustees, in basing its decision in part upon its ex parte investigation, violated the Texas Open Meetings Act.

For relief, Dillon requested that the district court set aside the administrative decisions in her case; that she be reinstated in her former position as coordinator of the VOE Program until removed therefrom “in accord with applicable law”; that all records of her “reassignment” and Wood-ruff’s evaluation of her job performance be removed from her personnel file and destroyed; that she recover money damages from the school district for its “wrongful actions and inactions”; and that she recover attorney’s fees, interest, and general relief.

Dillon moved for summary judgment, which the trial court granted on the ground that the local board of trustees had not afforded her a trial-type hearing as required by 19 Tex.Admin.Code, supra, §§ 61.231-252 and the Texas Open Meetings Act. Impliedly, the trial court thereby overruled the school district’s own motion for summary judgment which asserted, among other things, that the trial court lacked jurisdiction of the dispute in that Dillon was not “aggrieved” in the sense implied in § 11.13(c) of the Texas Education Code and § 19(a) of APTRA. The substance of the school district’s motion apparently was that Dillon’s claims did not rest upon a legal injury; and, if adjudicated by the court, its judgment would constitute an impermissible intrusion by the court into a matter purely administrative in nature and therefore committed to the exclusive jurisdiction of the school authorities. The trial-court judgment also dismissed, apparently without prejudice, Dillon’s common-law cause of action for money damages. The dismissal was founded on the ground that a decision in that regard would be “premature” until she was permitted a trial-type hearing before the board of trustees of the school district. Dillon has not filed a cross-point directed at this portion of the trial-court judgment, and we express no opinion thereon, although it is readily apparent that the school district has no authority to adjudicate such a cause of action and order an award of money damages in compensation of Dillon’s alleged injuries, if her pleading is indeed, as we suppose, intended to allege a common-lav/ cause of action.

The trial-court judgment orders that Dillon’s dispute be remanded to the school district with instructions that she be given “a full evidentiary hearing concerning the merits of her original grievance,” which hearing “shall comply with the procedural requirements prescribed by the rules of the Texas Education Agency concerning hearings before local boards.” The “rules” referred to are evidently those found at 19 Tex.Admin.Code, supra, §§ 61.231-252. Finally, the trial-court judgment recites that it is a final judgment and “[t]he Court does not retain jurisdiction of this case except to the extent necessary to enforce its judgment.” This appeal ensued.

DISCUSSION AND HOLDINGS

We hold the district court correctly reversed the final order of the Commissioner, as affirmed by the State Board of Education. It is true, as the Commissioner found, that Dillon expressly declined to base her complaints against the school district upon a claim of legal injury or a statutory or constitutional right to re-employment by the district; nor did she base her request for removal of the job evaluation on grounds of that character. Nevertheless, it does not follow, in our view, that the Commissioner had no power, under § 11.13(a) of the Texas Education Code, to hear and determine her dispute with the school district.

The Commissioner is charged with many duties and given many statutory powers in administering the school laws of the State. The same is true of the Central Education Agency as a whole. Simultaneously, local boards of trustees are vested by the Legislature with “the exclusive power to manage and govern the public free schools of the district” (emphasis added). Tex.Edue. Code Ann., supra, § 23.26(b). Notwithstanding the word “exclusive,” the Texas Education Code itself quite explicitly divides the power of management and government of the schools of an independent school district. For example, state-level school authorities, of which the Commissioner is the executive officer, have discretionary power that supersedes local authority in such matters as textbooks, course requirements, and numerous functions and activities included within the Foundation School Program which the State subsidizes. See, e.g., Tex.Educ.Code Ann., supra, §§ 12.13-16, 12.61-62; 16.-051-52, 16.103, 16.176, 16.177, and 16.204.

State-level school authorities claim, by regulations set forth in 19 Tex.Admin.Code, supra, a similar power over local school authorities in an astonishing array of other matters (including some that are, perhaps, related indirectly to the present dispute). These other matters are in addition to the procedural requirements applicable to local-board hearings, enumerated in 19 Tex.Admin.Code, supra, §§ 61.231-252. These other matters include: a prohibition against coercion of professional employees by other such employees (§ 61.143); a requirement that teachers be placed in positions for which they are qualified (§ 97.-98(1)); a rather vague and opaque direction that teachers, “as individuals,” be made to “feel” they are encouraged to teach well (§ 97.98(2)(D)); requirements concerning consultation with teachers and the responsibilities of supervisory leadership with regard to teachers (§ 97.98(4)(H)); a requirement that local school boards enact policies concerning evaluation and retention of teachers (§ 97.94(4)(B)); and other, rather vague and broadly stated requirements dealing with teacher performance evaluations (§§ 97.98(4)(F), (J)). This listing is, of course, not intended to mean that any of these regulations are applicable to the case before us, for it is not clear to us that we would have jurisdiction of any dispute about those matters. (Nor are we confident that we even understand properly these “regulations” — they are not a paragon of precision, objectiveness, consistency, or clarity.) Rather, the foregoing regulations and statutory provisions are listed simply to demonstrate that state-level school authorities have or claim discretionary power in numerous matters that pertain to local school operation, management, and government, and this power must in a particular instance be accommodated with other contrasting statutory provisions that vest other discretionary powers in local school authorities.

Drawing the division line between local and state jurisdiction, under the Texas Education Code, is a complex, large, technical, and perhaps even a delicate task, requiring the consideration of many different public policies and factors implicit in the Texas Education Code. The division line may, of course, vary with the context and the particular matters in controversy. Drawing the division line in a particular kind of dispute is ill-suited for judicial determination; it is especially well-suited to administrative determination assisted by the special knowledge and experience of the Central Education Agency, particularly when it is obvious that matters of state as well as local education policy and practice are involved and the Commissioner is given the express power to interpret and assign meaning to 19 Tex.Admin.Code, §§ 61.-231(b)(1), supra, which he has not yet done. Tex.Educ.Code Ann., supra, § 11.52(Z).

It is the Commissioner’s duty to determine his administrative jurisdiction in the first instance because, we hold, he has previously in this case interpreted erroneously the provisions of § 11.13(a) of the Texas Education Code when he limited his jurisdiction to a “cause of action” based upon the violation of a “legal,” statutory, or constitutional right. Section 11.13(a) does not, by its terms, so limit his jurisdiction on appeal in a “dispute” arising under the school laws; and the powers vested in the Commissioner and the other component authorities of the Central Education Agency demonstrate vividly and unequivocally the existence and scope of the administrative powers of state education authorities, so that a “dispute ... arising under the school laws of Texas” may well implicate that power even though the dispute does not rise to the level of a “cause of action” cognizable in a district court, whether a common law cause of action based upon the violation of a constitutional right or a legal injury or a statutory cause of action within a district court’s special statutory jurisdiction, such as that conferred in § 11.13(c). The persons entitled to seek relief from the Commissioner under § 11.13(a) include, in addition to “any person aggrieved by the school laws,” those persons “having any matter of dispute under the school laws,” suggesting quite clearly two distinct classes of persons entitled to appeal to the Commissioner and obtain a decision, even if both classes are not entitled to judicial review by a district court under § 11.13(c) or under a district court’s inherent jurisdiction under the Constitution.

In summary, the Commissioner has the undoubted power to determine the extent of his jurisdiction implicit in the phrase “any dispute ... arising under the school laws of Texas as that phrase is used in § 11.13(a) of the Texas Education Code. He must do so in the present case because, we hold, he has erroneously set the threshold of his jurisdiction too high when he limited it to a “cause of action” asserting a legal, constitutional, or statutory right. If he determines on remand that he has jurisdiction of Dillons’ dispute, under a proper construction of § 11.13(a) of the Texas Education Code, then he must determine whether the nature of Dillon’s complaints entitled her, as an “aggrieved party,” to the procedural benefits of 19 Tex.Admin. Code §§ 61.231-.252, which on their face apply in “grievances or controversies involving administrative actions or problems of school districts _” brought by “aggrieved parties.” Id., § 61.231(b)(1). The Commissioner’s construction of both the statute and the regulations will depend upon his interpretation thereof in light of other statutes, the pertinent regulations, and perhaps, administrative policies applicable to the matter.

We must await the Commissioner’s construction of these statutory and regulatory provisions in order that we do not propel ourselves into the province reserved for local and state-level school authorities. The ultimate object of any future judicial review of the Commissioner’s construction will be, no doubt, the meaning he will assign to the statutory and regulatory provisions we have mentioned above. His interpretation of § 11.13(a) of the Texas Education Code will not be controlling on a reviewing court, but it will, of course, merit respect. Pacific Employers Ins. Co. v. Brannon, 150 Tex. 441, 242 S.W.2d 185 (1951). Conversely, the Commissioner’s interpretation of the administrative regulations will be of controlling effect, because a part of the regulation itself, unless plainly erroneous or inconsistent with some statutory or regulatory provision. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945); Sunset Express v. Gulf, C. & S.F. Ry. Co., 154 S.W.2d 860 (Tex.Civ.App.1941, writ ref’d w.o.m.).

Therefore, we remand the dispute to the State Board of Education with instructions that it be further remanded to the Commissioner in order that he may determine whether he has jurisdiction of the dispute under § 11.13(a) of the Texas Education Code; and, if so, whether the dispute under review falls within the meaning and scope of 19 Tex.Admin.Code § 61.231(b)(1) so that Dillon would be entitled to the hearing and procedural benefits contemplated by §§ 61.231-.252 of those regulations; the Commissioner being required by our judgment to enter a final order, proper in his judgment, based upon such determinations. We reform the district-court judgment accordingly; and, as reformed, we affirm that judgment.

PHILLIPS, C.J., not participating.

      . Section 11.13 provides:
      (a)Persons having any matter of dispute among them arising under the school laws of Texas or any person aggrieved by the school laws of Texas or by actions or decisions of any board of trustees ... may appeal in writing to the commissioner of education, who, after due notice to the parties interested, shall hold a hearing and render a decision without cost to the parties involved, but nothing contained in this section shall deprive any party of any legal remedy.
      (b) The decisions of the commissioner of education shall be subject to review by the State Board of Education.
      (c) Any person, county, or school district aggrieved by any action of the Central Education Agency may appeal to a district court in Travis County, Texas.... Upon trial the court shall determine all issues of law and fact.

      . Dillon refers to the rule found at 19 Tex.Admin.Code §§ 61.231-.252 (Rules 226.23.09.010-226.23.11.010) (1981). The rule, promulgated by the Texas Education Agency, governs hearings before local boards of trustees. See footnote 7, infra, discussing in detail the contents of the rule and listing the procedural benefits claimed by Dillon.

      . Dillon’s grievance against Woodruff was set forth in a letter she composed and delivered to the board of trustees of the school district. In the letter, she directed the following complaints against Woodruff: (a) the nature of his evaluation of her job-performance and the bases for it; (b) his "harassment” and "threats" against her; (c) his denying her an opportunity to recruit students for the VOE Program so that it might attract sufficient student interest to justify its continuance for another year; and (d) his deliberate attempt to hinder the objectives of the VOE Program.

      . We hold that we need not decide Dillon’s novel contention that the Texas Open Meetings Act entitled her to trial-type procedural benefits, for we base our decision here solely on the Commissioner’s erroneous holding that he did not have jurisdiction to hear and determine the dispute between Dillon and the school district, owing to her failure to base her claims on a legal, statutory, or constitutional right.

      . Administrative agencies are created, of course, to exercise legislative power. The power delegated to a particular agency may be “quasi-legislative,” such as rulemaking, or it may include a power to decide administrative controversies arising under those rules or relevant statutes — a “quasi-judicial” power. But the latter is not the judicial power exercised by a district court under the Constitution and statutes of the State.
      There is a rather clear line of distinction between the two.
      The district courts of the State have a jurisdiction which includes the power to hear and determine “all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution, and such other jurisdiction, original and appellate, as may be provided by law.” Tex. Const.Ann. art. V, § 8 (emphasis added).
      Under the constitutional phrase “as may be provided by law,” the Legislature has chosen to enact many statutes which confer upon district courts, or some of them, a special statutory jurisdiction to review the final orders of specified administrative agencies. An example is found in § 11.13(c) of the Texas Education Code where it is provided that a "person ... aggrieved by any action of the Central Education Agency may appeal to a district court in Travis County, Texas_” See generally Schwantz v. Texas Department of Public Safety, 415 S.W.2d 12, 14-16 (Tex.Civ.App.1967, writ refd) where many similar statutes are listed in a footnote. Nevertheless, the extent of the Legislature’s power to confer upon a district court the authority to review administrative action is limited by the separation-of-powers principle found in art. II, § 1 of the State Constitution. Tex. Const.Ann., supra, art. II, § 1. See, e.g., Chemical Bank & Trust Company v. Falkner, 369 S.W.2d 427 (Tex. 1963), in which the Court refus-

        ed to follow a statutory provision that directed the reviewing court to determine what constituted "public necessity” justifying the issuance of a new bank charter. Conversely, under the phrase "all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution,” the district courts of the State have original general jurisdiction to hear and determine a person’s allegations that the actions of an administrative agency have adversely affected his constitutional or property rights. See, e.g., Brazosport Sav. & L. Ass’n v. American Sav. & L. Ass'n., 161 Tex. 543, 342 S.W.2d 747 (1961). Causes of action of this kind fall within the constitutional jurisdiction of the district courts even though there exists no statute which vests in a district court a special jurisdiction to review the actions of an administrative agency. See also Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1946); Board of Water Engineers v. McKnight, 111 Tex. 82, 229 S.W. 301 (1921); and Railroad Commission of Texas v. Rau, 45 S.W.2d 413 (Tex.Civ.App. 1931, writ dism’d) for other illustrations of the kinds of adjudicatory power that may not be delegated to an administrative agency because they ordinarily belong solely to the judicial department of government. See also Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411 (1961) and Foree v. Crown Central Petroleum Corporation, 431 S.W.2d 312 (Tex.1968) for a discussion of statutes which purport to vest administrative agencies and courts with concurrent jurisdiction over a given class of controversies.

      . The Commissioner’s findings of fact and conclusions of law were as follows:
      Findings of Fact
      1. [Dillon] specifically disclaims any cause of action asserting relief as a result of the abridgment of any constitutionally protected right regarding the non-renewal of [her] employment contract with [the district] as a VOE coordinator.
      2. [Dillon] specifically disclaims any cause of action asserting relief from the abridgment of a constitutionally protected right regarding [the district’s] written evaluation of [her] performance as a VOE coordinator.
      3. [The district] has not elected to adopt probationary and continuing contracts pursuant to the provisions of the Tex.Educ.Code Ann. § 13.101 et seq. (1972).
      Conclusions of Law
      It is well-settled that teachers employed by school districts pursuant to term contracts have no expectancy of re-employment and that no cause of action for non-renewal shall lie in absence of the abridgment of a constitutionally protected right, (citations omitted) As [Dillon’s] pleadings specifically disclaim any cause of action based on "provisions of Federal law, statutory or constitutional," it is concluded that [she] has stated no cause of action over which the State Commissioner of Education may properly exercise jurisdiction. Additionally, it is concluded that employee evaluations are purely administrative in nature and the State Commissioner of Education will not substitute his judgment regarding such matters for that of the school district in absence of facts conclusively showing an abuse of discretion resulting in a substantial infringement of a legal right to which Petitioner is entitled....

      . 19 Tex.Admin.Code, supra, §§ 61.231-.252 is found in Subchapters I and J of the regulations of the "Texas Education Agency." Under the heading "Hearings Before Local Boards,” we find that the Commissioner “shall prescribe procedures for hearings held before local governing boards of trustees,” which procedures shall “be in accordance with applicable law” (§ 61.-231(a)). Local boards of trustees are instructed to "adopt written procedures providing for orderly hearings and appeals of aggrieved parties -” (emphasis added). Implicit in a portion of the following section, § 61.231(b)(1), is the possibility that the term "aggrieved parties” is not intended to mean the same thing it means in § 11.13(c) of the Tex.Educ.Code Ann., supra, or in APTRA § 19(a). The terms of § 61.231(b)(1) provide as follows:
      (1) In grievances or controversies involving administrative actions or problems of school districts, aggrieved parties shall be afforded a full hearing before the board of trustees of the district....
      (emphasis supplied). No broader scope can be implied than the scope implicit in the phrase “problems of school districts.” This phrase must be accommodated with the narrower meaning implicit in the term "persons aggrieved,” for the combined use of the two renders ambiguous the class of persons entitled to a hearing before the local board of trustees attended by the procedural benefits listed in § 61.252. At minimum, we would suppose the regulations apply to a schoolteacher who is, during the term of his contract, dismissed with cause. (And the regulations have been so applied in those cases. See District Trustees, Etc. v. Central Education Agency, 256 S.W.2d 151, 154 (Tex.Civ.App.1953, writ ref’d n.r.e.); Bear v. Donna Independent School Dist., 85 S.W.2d 797, 798 (Tex.Civ.App.1935, writ dism’d). But nothing in the regulations purports to limit their applicability to such cases, so as to exclude therefrom Dillon’s case where she was not dismissed for cause during the term of her contract, but had an entirely different kind of controversy arising out of her employment.)
      These regulations raise the following questions: (a) what kinds of controversies are included in § 61.231(b)(1), entitling those involved to the trial-type procedures listed in § 61.252 and the right of appeal to the Commissioner as authorized by § 61.253; (b) does § 61.231(b)(1), quoted above, encompass all possible "dispute(s) arising under the school laws of Texas," within the meaning of § 11.13(a) of the Tex.Educ.Code Ann., supra; (c) are there controversies within the terms of both the regulation and § 11.13(a) of the Texas Education Code so that those affected adversely have both a statutory right of appeal to the Commissioner as well as a regulatory right in that regard; (d) are there controversies to which § 61.231(b)(1) does not apply but § 11.13(a) does apply, so that affected persons have a right of appeal to the Commissioner but not the procedural rights contemplated by the regulation; (e) are there controversies to which, in the Commissioner’s view, the regulation applies but not the statute; and (f) are there controversies to which neither the statute nor the regulation applies, so that affected persons have neither the procedural benefits of the regulation nor the statutory right of appeal to the Commissioner under § 11.13(a) of the Tex. Educ.Code Ann., supra?

      Section 61.252 of the regulation lists the procedural benefits applicable to an “aggrieved party,” such as representation by counsel, a benefit extended to “all interested parties,” the introduction of evidence, cross-examination of "witnesses offered by other parties,” oral argument, the filing of briefs, and other matters. These are the benefits claimed by Dillon in the present case and denied her by the board of trustees, which preferred to handle her grievance by an exercise of its investigatory power in lieu of its adjudicatory power.
      Section 61.231(b)(1) is for the Commissioner’s interpretation in the first instance, particularly when that regulation and the statute (§ 11.-13(a)) are stated in the broadest possible terms. Notwithstanding our views about the possible interpretation of the regulation, it remains for the Commissioner to give the controlling interpretation as to what kinds of controversies the regulation applies. This is the explicit direction of § 11.52(0 of the Tex.Educ.Code Ann., supra. Until the Commissioner has construed the regulation, we are unable to say whether his construction is plainly erroneous or inconsistent with the regulation or some applicable statute, whether Dillon was erroneously denied the benefits of the regulation, or even whether this Court has jurisdiction of the controversy. If she was legally entitled to the benefits of the regulation, because the Commissioner so construes it, or if his contrary construction is plainly erroneous or inconsistent with a statute or the regulation itself, then we would, of course, have jurisdiction. But the regulation is vague indeed as to what kind of controversies it applies and we may not proceed to evaluate its scope until the

        Commissioner has done so. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945).

      . We are informed by the parties that the school district did not choose to offer again the VOE Program after the 1978-79 school year in which Dillon served as coordinator of the program. There is, therefore, a serious question in the case of whether a district court may, in effect. control the course offerings of a local school district by compelling the district to reinstate Dillon in her former position. This would appear to be a matter within the exclusive jurisdiction of the school authorities but we defer the matter for future resolution, if and when it arises, after resolution by the Commissioner of the extent of his jurisdiction in thd dispute and the meaning of 19 Tex.Admin.Code, supra, §§ 61.231(b)(1).

      . Generally speaking, public education is a State function that originates in the Legislature’s duty "to establish and make suitable provision for the support and maintenance of an efficient system of public free schools." Tex. Const.Ann. art. VII, § 1 (1955). The relevant statutes are now found in the Texas Education Code, dealing with all manner of school affairs.
      The statutory framework for the government of public education establishes a basic division between government and financing at the State level and government and financing at a local level, the latter being effectuated through local school districts, in the present case an “independent school district."
      The State agency for the government of public education is the Central Education Agency, a body of limited and delegated powers (although they are broadly expressed), all other powers of school government being vested by the Legislature in the boards of trustees of the numerous independent school districts. (§ 11.01). The Central Education Agency is composed of four entities: (1) the State Board of Education, a body charged to formulate policies and rules "for carrying out the duties placed on it or the Central Education Agency by the legislature” (§§ 11.21, 11.24); (2) the State Board for Vocational Education, a body composed of the members of the State Board of Education when they act in matters concerned with vocational education not necessary here to recite {id.)-, (3) the State Department of Education, which is the professional, technical, and clerical staff of the Central Education Agency (§ 11.61); and (4) the Commissioner of Education, having the following duties among others:
      a. The general duty of executing the school laws and the rules and regulations of the State Board of Education (§ 11.25).
      b. The power to interpret the rules and regulations of the State Board of Education, his opinions in that regard being "binding for observance on all officers and teachers.” (§ 11.52(1)).
      c. The performance of adjudicative functions, together with the State Board of Education, in deciding appeals from local school authorities (§ 11.13(a), (b)).
      Appellant, the Spring Independent School District, is one of the independent school districts authorized by Chapter 23 of the Texas Education Code. It is governed by its board of trustees, a “body corporate” having, among others, the following powers and duties:
      a. The “exclusive power to manage and govern the public free schools of the district.” (§ 23.26(b)).
      b. The power to "adopt such rules, regulations, and by-laws as they may deem proper.” (§ 23.26(d)).
      c. Such other powers and duties as may be granted or imposed by the Code or other provisions of law. (§ 23.25).
      d. The power to contract with superintendents, principals, teachers and other executive officers. (§ 23.28(a)).
      e. The power to require the teaching of courses in addition to those required by the Code. (§ 21.108).
      A local board of trustees is, generally speaking, vested with all educational functions "not specifically delegated to the Central Education Agency ...” (§ 11.01).

      . Several portions of the Texas Education Code provide for a "hearing” before particular kinds of administrative action may be taken in regard to a teacher. In these portions of the Code, the “hearing” implied is a trial-type hearing with the affected teacher's right thereto being statutory, whether or not it rises to the level of a constitutional right to a hearing. None of them would seem to apply to one in Dillon’s position. See Texas Educ.Code Ann., supra, § 2.06 (dismissal for treason and subversion); § 3.06 (cancellation of teacher’s certificate for offenses against retirement system); § 13.046 (cancellation of teacher’s certificate for incompetence and other grounds); §§ 13.104, 13.112 (decision not to renew employment of teacher under probationary contract, or discharge during year, of teacher under probationary contract or continuing contract, or release at end of year of teacher under continuing contract) on any of specified grounds such as immorality, conviction of felony, drunkeness, incapacity, or neglect of duties); § 13.113 (suspension of teacher for any of the foregoing); § 13.213 (complaints that teacher has violated a rule or provision of the code of ethics and standard practices of the teaching profession); § 13.214 (same).
      In § 21.205, the Code provides for a hearing to be held, at a teacher’s request, when he or she is notified that the school district will not review a term contract. It was not effective at the time of the present dispute. See 1981 Tex.Gen.Laws, ch. 765, § 21.205, at 2848. In any event, however, it is undisputed that Dillon was offered a contract for another year because the district chose to renew her employment for another year, albeit in another capacity.


source: Caselaw Access Project

author: EVANS, Chief Justice.

license: Public Domain

text:
    INTERMEDIOS, INC., Appellant, v. Frank J. GRADY, M.D., Appellee.
    No. 01-84-00306-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 20, 1984.
    Rehearing Denied Jan. 17, 1985.

      Dan Matthews, Fulbright & Jaworski, San Antonio, Joseph Patterson, Leland B. Kee, Kee & Patterson, Angleton, for appellant.
    Ron Etzel, Pearland, for appellee.
    Before EVANS, C.J., and SMITH and DUGGAN, JJ.
   OPINION

EVANS, Chief Justice.

The plaintiff, Dr. Frank J. Grady, brought this action against the defendant, Intermedies, Inc., to recover the value of certain shares of Intermedies stock, basing his claim on an oral contract of employment. The trial court submitted the case to a jury, and upon its verdict, the court entered judgment for the plaintiff in the amount of $561,000 plus $7,900 as attorney’s fees. We affirm.

Dr. Grady testified that, in December 1975, he was contacted by Mr. Albert Beu-tel, who was then the executive vice-president and one of three board members of Intermedies. Mr. Beutel had decided that Intermedies, a medical equipment manufacturer, should expand its product line to include intraocular lenses, and his investigation showed that Dr. Grady was one of the most knowledgeable and respected persons in that field. After a series of conversations, the parties reached an oral agreement under which Dr. Grady was to perform consulting services for Intermedies in return for a $20,000 annual salary and 17,-000 shares of Intermedies stock. For a period of several years thereafter, Dr. Grady did perform services for Intermedies, as agreed, and was paid his annual salary in sporadic payments. However, Intermedies never issued the stock certificates evidencing Dr. Grady’s ownership of the 17,000 shares of stock. On repeated occasions during the course of his employment, Dr. Grady questioned Mr. Beutel about the stock, and'in each instance, he was told not to worry, that his stock certificates would be forthcoming at a time more convenient for the corporation. In March 1979, Mr. Albert Beutel died suddenly, and Dr. Grady demanded the transfer of the stock to him and asked for a raise in salary because of the increasing calls on his time. However, Intermedies did not honor Dr. Grady’s requests and instead terminated his employment contract. Dr. Grady then brought this suit in 1981 to recover his 17,000 shares of Intermedies stock, which had increased in number because of stock splits.

In response to special issues, the jury found: (1) that Intermedies had orally agreed to hire Dr. Grady as an employee and to compensate him with stock and a salary, (2) that Intermedies, through Albert Beutel, promised Dr. Grady 17,000 shares of stock, (2a) that Dr. Grady was entitled to receive Intermedies stock within a period of not more than one year of the agreement in May or June 1976, (2b) that the contract between Intermedies and Dr. Grady involved an outright grant of stock rather than an option to purchase, (3) that the fair market value of Intermedies stock in March 1979 was $22 per share, (4) that Dr. Grady should receive $7,900 as reasonable attorney’s fees, (4a) that Dr. Grady was reasonably diligent in asserting his claim to the Intermedies stock, (5) that Intermedies, through Albert Beutel, continued to promise Dr. Grady that he would receive his stock until March 1979, (6) that such promise lulled Dr. Grady into a false sense of security, (7) that, therefore, Dr. Grady did not file his action until after March 1979, and (8) that an ordinary, prudent person in Dr. Grady’s circumstances would have concluded that Intermedies was waiving any rights to assert the statute of limitations. The jury further found that the contract for Dr. Grady’s consulting services could be terminated at the will of either party.

Intermedies’ first six points of error relate to its defensive theory that Dr. Grady’s action is barred by the applicable two-year statute of limitations. In its first two points, Intermedies contends that the undisputed evidence and the jury’s finding to Special Issue No. 2a established the bar of limitations as a matter of law. In its points of error three, four, five, and six, Intermed-ies complains of the submission of Special Issues 5, 6, 7 and 8, asserting that such issues are not controlling on the question of estoppel to assert limitations and that there are no pleadings or evidence to support the submission of such issues.

Intermedies’ first two points are based upon the jury’s finding, in Special Issue No. 2a, that Dr. Grady was entitled to receive stock within one year of May or June 1976, and upon Dr. Grady’s similar testimony.

Limitation of actions is an affirmative defense that must be specifically pleaded and proved. A party asserting limitations must not only establish the applicability of the limitations statute, but must, as well, prove when the opponent’s cause of action accrued in order to demonstrate the bar of limitations. Hoffman v. Wall, 602 S.W.2d 324, 326 (Tex.Civ.App.— Texarkana 1980, writ ref’d n.r.e.). Where the facts are undisputed, the defendant may establish that the plaintiff’s claim is barred by the statute of limitations as a matter of law. See, e.g., Axcell v. Phillips, 473 S.W.2d 554, 558 (Tex.Civ.App. — Houston [1st Dist.] 1971, writ ref’d n.r.e.). However, where reasonable minds may differ as to the inferences to be drawn from the evidence, it is incumbent upon the party asserting limitations to secure findings sustaining the plea of limitations. Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.2d 93, 99 (Tex.Civ.App. — Amarillo 1971, writ ref’d n.r.e.). The question then, in the case at bar, is whether the testimony and jury’s finding that Dr. Grady was entitled to the stock within one year of May or June 1976, established, as a matter of law, that his cause of action commenced at that time.

A breach of contract occurs when a party fails or refuses to do something he has promised to do. Fidelity & Deposit Co. v. Stool, 607 S.W.2d 17, 24 (Tex.Civ.App. — Tyler 1980, no writ). Thus, a cause of action for the breach of a promise to pay usually arises when a demand for payment has been made and refused. See, e.g., Dyer v. Sterett, 248 S.W.2d 234, 240 (Tex.Civ.App. — San Antonio 1952, writ ref’d n.r.e.). It is also usually at that point, with the right to institute suit, when the limitations period commences. Gabriel v. Alhabbal, 618 S.W.2d 894, 896-97 (Tex.Civ.App.— Houston [1st Dist.] 1981, writ ref’d n.r.e.).

If the parties’ agreement contemplates a continuing contract for performance, the limitations period does not usually commence until the contract is fully performed, unless one party refuses to fulfill the contract or prevents the other party from performing. See, e.g., Thomason v. Freberg, 588 S.W.2d 821, 828 (Tex.Civ.App. —Corpus Christi 1979, no writ); Alexander & Polley Construction Co. v. Spain, 477 S.W.2d 301 (Tex.Civ.App. — Tyler 1972, no writ). In such a continuing contract, where a claim for work, labor, or materials furnished is based on an entire contract for continuous work, labor, or materials, the claim is considered to be an entire demand, and the limitations period will not commence until the contract is finished. Godde v. Wood, 509 S.W.2d 435, 441 (Tex. Civ.App. — Corpus Christi 1974, writ ref’d n.r.e.). However, if the terms of an agreement call for periodic payments during the course of the contract, a cause of action for such payments may arise at the end of each period, before the contract is completed. See, e.g., Parker v. Rolls, 338 S.W.2d 523, 528-29 (Tex.Civ.App. — Austin 1960, no writ). But see City and County of Dallas Levee Improvement District v. Halsey, Stuart, & Co., 202 S.W.2d 957, 960-61 (Tex.Civ.App. — Amarillo 1947, no writ). It has also been held that limitations may begin to run, notwithstanding a continuing performance of the contract, if a demand for performance is required and not made within a reasonable time. Irwin v. Pre-stressed Structures, Inc., 471 S.W.2d 865, 867-68 (Tex.Civ.App. — Eastland 1971, writ ref’d n.r.e.).

The circumstances related in Irwin are similar to those in the instant case, and Intermedies urges that the Irwin case should be given controlling effect. There, the jury found that an officer of the corporation had orally promised Irwin that, as compensation for working for the company, he would receive a relatively low salary, but in addition he would be given V¿xk% of the corporation’s stock. The other officers and directors of the corporation were not informed of this promise. The jury further found that under the terms of such agreement, Irwin had the right to receive the stock within one year from the date of the contract. Finding that the corporation was not estopped to rely on limitations, the trial court entered a take-nothing judgment for the defendant.

On appeal, Irwin argued that the agreement called for his “continuing performance” and that the statute of limitations did not begin to run until he made a demand for stock. The court of civil appeals rejected Irwin’s contentions, concluding that even if he was correct in his assertion that limitations did not begin to run until demand was made, such demand itself had to be made within a reasonable time, which ordinarily would be concurrent with the statute of limitations period. Because Irwin did not demand his stock for seven years after the agreement was made, the court held that his cause of action was barred.

The facts and circumstances in the instant case are distinguishable from those in Irwin in several respects. However, even under the rationale of the Irwin court, Dr. Grady’s cause of action would not be barred. The contract between In-termedies and Dr. Grady was made in May or June 1976. The jury found that Dr. Grady was entitled to receive stock within a year, in May or June 1977. According to the Irwin case, demand for the stock had to be made within a reasonable time, i.e., the time within the statute of limitations period. Therefore, even if we apply a limitations period ending May or June 1979, as Intermedies asserts we should, it is apparent that Dr. Grady’s demand in March 1979, was made within a reasonable time. Hence, the limitations period would have commenced when the demand was made and refused in March 1979, and Dr. Grady’s suit in January 1981, was not barred.

Furthermore, the evidence in the case at bar establishes a different set of circumstances than those present in Irwin. In the case before us, there was not only an agreement for Dr. Grady’s continuing performance under the contract, but also an understanding between Dr. Grady and Mr. Albert Beutel, that even though Dr. Grady was entitled to the stock, the actual transfer would not take place until some undetermined time in the future.

Even if an exact date of performance is specified in a contract, this provision can be waived by the parties. Highpoint of Montgomery Corp. v. Vail, 638 S.W.2d 624, 627 (Tex.App. — Houston [1st Dist.] 1982, writ ref’d n.r.e.). An extension of time for performance may be implied as well as express. See, e.g., Ryan v. Thurmond, 481 S.W.2d 199, 206 (Tex.Civ.App. — Corpus Christi 1972, writ ref’d n.r.e.). Where the exact duration of an extension of time is not expressed, the law will imply a reasonable time. The effect of such an extension is merely to substitute a new time for the old. It does not affect the other provisions of the contract. Id.

In Earthman’s, Inc. v. Earthman, 526 S.W.2d 192 (Tex.Civ.App. — Houston [1st Dist.] 1975, no writ), the parties to a divorce action voluntarily permitted certain stock certificates, which had been ordered transferred to the wife, to be placed in the registry of the court. When the stock certificates were released from registry, the corporation refused to transfer the stock, and the wife brought suit, alleging conversion by the corporation in its wrongful refusal to effect a transfer on its books of the shares of stock to which she was entitled. The corporation responded with the defense that the plaintiff’s action was barred by the two-year statute of limitations. Her original petition was filed while the stock certificates were still in the registry of the court. This court held that because the plaintiff was without legal standing to require the corporation to effectuate the transfer and thus had no legal basis to assert a cause of action for conversion until the stock was released from registry, her suit was not barred by the statute of limitations.

In the present case, Dr. Grady voluntarily permitted Intermedies to retain legal title to his 17,000 shares of stock, pursuant to his understanding with Mr. Beu-tel, and this condition existed until Mr. Beutel’s death in 1979. Until that time, there was not such a distinct and unequivocal refusal by the corporation to effect the transfer that would give Dr. Grady the right to sue. Earthman’s, Inc. v. Earth-man, 526 S.W.2d at 201. Therefore, In-termedies failed to meet its burden of offering evidence and obtaining a finding showing that Dr. Grady had an enforceable claim to compel Intermedies to transfer the stock prior to Mr. Beutel’s death. The trial court properly rejected Intermedies’ limitations defense, and we accordingly overrule Intermedies’ first two points of error. In view of this disposition, we do not consider Intermedies’ points three through six, relating to its claim that it is not estopped to assert its limitation defense.

Intermedies’ next points, seven, eight, and nine, assert that the trial court erred in submitting Special Issue Nos. 1 and 2, because no evidence or insufficient evidence was offered to show that Mr. Albert Beutel had either actual or apparent authority to agree to the issuance of 17,000 shares of stock to Dr. Grady, and also because there were no pleadings to support the submission of the instruction on apparent authority-

These points raise questions of the legal and factual sufficiency of the evidence, and, because we overrule the no evidence point, we next view all the evidence in the record that is relevant to the question to determine factual sufficiency. Burnett v. Motyka, 610 S.W.2d 735 (Tex.1980) (per curiam).

At the time Dr. Grady was retained as a consultant to Intermedies, Mr. Albert Beutel was the executive vice-president and one of the three board members of Intermedies. Mr. Beutel’s father, Mr. Phillip Beutel, was then president and chairman of Intermedies’ board of directors. Mr. Phillip Beutel testified that he knew of Dr. Grady’s employment by In-termedies and was aware of Dr. Grady’s contractual relationship with the corporation from the time of his employment until 1979. He testified that Dr. Grady was to be compensated by both salary and stock. He said that his son, Mr. Albert Beutel, had general authority to hire personnel and to grant stock and that his son’s actions in that respect were not taken unilaterally. His son, Mr. Albert Beutel, made many other contracts that included stock options, and Intermedies probably had agreements with over 50 people involving the transfer of stock as compensation. Mr. Albert Beu-tel was the moving force behind Intermed-ies’ expansion into the field of intraocular lenses, and he possessed general authority to act in furtherance of that goal. At the time of Dr. Grady’s employment, Mr. Phillip Beutel and his son, Mr. Albert Beutel, together formed a majority of the In-termedies board of directors. Because Mr. Albert Beutel had spearheaded Intermed-ies’ efforts to enter the intraocular lens market, he was given free rein to promote Intermedies’ interests in that area. Dr. Grady also offered additional testimony to the same effect, showing that similar offers by Mr. Albert Beutel to others had been generally authorized or ratified by the corporation and that others at Intermedies knew of the stock transfer agreement with Dr. Grady.

A principal may confer actual authority upon an agent either expressly or by implication. See, e.g., Carr v. Hunt, 651 S.W.2d 875, 879 (Tex.App. — Dallas 1983, writ ref’d n.r.e.). Indeed, the existence of an agency relationship based on actual authority may be implied from the conduct of the parties or from the facts and circumstances surrounding the transaction in question. Wells Fargo Business Credit v. Ben Kozloff, Inc., 695 F.2d 940, 944 (5th Cir.1983).

We find that there is legally and factually sufficient evidence to support the instructions and issues on authority, and we therefore overrule points of error seven and nine. We also overrule point of error eight, concluding that the trial court’s submission of an instruction on apparent authority, even if improper, was harmless error in view of the jury’s finding on the issue of implied actual authority. Tex.R. Civ.P. 434; Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 937-38 (Tex.), cert, denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980).

Intermedies’ tenth point of error asserts that the trial court erred in submitting the first two special issues, because these issues and the accompanying instructions did not embrace all the elements of an enforceable contract. Contrary to In-termedies’ contention, the special issues and the court’s instructions relating to contract formation provided enough certainty for determining the party’s respective obligations under the agreement in question. As stated, there was evidence supporting the jury’s finding of an outright grant of 17,000 shares of stock, and although only 10,000 shares were first mentioned during the parties’ negotiations, there was uncon-troverted testimony showing the parties later agreed on a grant of 17,000 shares. It was for the jury, as the finder of fact, to resolve conflicting evidentiary questions, and its findings on the submitted issues support the trial court’s determination that an enforceable contract existed. We overrule this point of error.

Intermedies’ eleventh and twelfth points of error assert that there was no evidence, or insufficient evidence, to support the jury’s answer to Special Issue No. 2b, inquiring whether the agreement made with Dr. Grady contemplated an outright grant of stock or merely an option to purchase.

We overrule these points of error. There was evidence that Intermedies had in the past given both stock options and made outright grants of stock under similar agreements. However, the evidence offered on behalf of Dr. Grady in this case evidenced an agreement for a grant of stock, not for an option to purchase stock, and notwithstanding Dr. Grady’s testimony that he would have preferred stock options for tax purposes, there was no showing of any such understanding between him and Mr. Albert Beutel. Thus, we find that the jury’s finding is supported by the evidence.

In its final two points of error, points 13 and 14, Intermedies contends that the trial court erred in submitting Special Issue No. 3, inquiring as to the market value of the stock in March 1979, and that the jury’s finding on this issue is an incorrect measure of damages. Under these points, Intermedies argues that the special issue on damages should have inquired about the market value of the stock as of the date of breach alleged by Intermedies, May or June 1977. Since Intermedies was not required to transfer the stock to Dr. Grady before March 1979, no cause of action existed for breach of its agreement to deliver the stock until that time. Earthman’s, Inc. v. Earthman, 526 S.W.2d at 201. The special issue concerning damages for breach of a contract for stock was correctly submitted. See Fidelity & Deposit Co., 607 S.W.2d at 24. We overrule these points of error.

The judgment of the trial court is affirmed.


author: BENAVIDES, Justice.

text:
    Donnie Ray TISBY, Appellant, v. STATE of Texas, Appellee.
    No. 13-84-056-CR.
    Court of Appeals of Texas, Corpus Christi.
    Dec. 20, 1984.

      Stanley Schneider, Houston, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before NYE, C.J., and BENAVIDES and SEERDEN, JJ.
   OPINION

BENAVIDES, Justice.

This is an appeal from a conviction for the offense of burglary of a habitation and from the ten-year sentence imposed upon such conviction. The defendant having waived a jury, the plea of nolo contendere was before the trial court which also assessed punishment. We affirm.

Initially appellant complains that the indictment charging him with the offense of burglary of a habitation is fundamentally defective for failing to allege that such habitation was “not open to the public” as required by Tex.Penal Code Ann. § 30.02(a)(1) (Vernon 1974). The appellant’s complaint is clearly in error. While such an allegation is necessary in an indictment for the offense of “burglary of a building,” under § 30.02(a)(1), it is not required to be alleged as to a “burglary of a habitation” under such section. Jackson v. State, 633 S.W.2d 897 (Tex.Crim.App.1982); Garza v. State, 522 S.W.2d 693 (Tex.Crim.App.1975). Appellant’s first ground of error is overruled.

In his remaining ground of error, appellant complains that his ten-year sentence was not appropriate and that the trial court erred in sentencing him to such term rather than granting appellant probation or a lesser sentence.

Where the court assesses punishment, the question of whether the accused is entitled to probation rests absolutely with the trial court, and such decision is not appealable. Clay v. State, 592 S.W.2d 609, 613 (Tex.Crim.App.1980); Brown v. State, 478 S.W.2d 550 (Tex.Crim.App.1972).

Since the sentence imposed is within the prescribed limits for the offense of which appellant was convicted, there is no merit in appellant’s claim that a lesser sentence would have been more appropriate. Gonzales v. State, 501 S.W.2d 644 (Tex.Crim.App.1973); Mabry v. State, 492 S.W.2d 951 (Tex.Crim.App.1973); Perez v. State, 478 S.W.2d 551 (Tex.Crim.App.1972). Appellant’s second ground is overruled, and the judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    Rita L. SNABB, Appellant, v. STATE of Texas, Appellee.
    No. 13-84-115-CR.
    Court of Appeals of Texas, Corpus Christi.
    Dec. 20, 1984.
    Sam R. Fugate, Kingsville, for appellant.
    T.R. Bandy, Jr., Co. Atty., Corpus Christi, for appellee.
   OPINION

PER CURIAM.

Appellant was convicted by the court of the misdemeanor offense of escape. Punishment was assessed by the court at a fine of $100.00 and thirty days in jail. The jail term was probated for one year.

Appellant’s keys were found in the restaurant at the Corpus Christi International Airport. She was paged on the .public address system, and, when she claimed her keys from Officer Mitchell, he determined that appellant was intoxicated. The officer returned her keys on the condition that someone else would drive her, otherwise she would be arrested if he caught her driving in her inebriated state.

Appellant agreed to the officer’s condition, but then disregarded his warning. When appellant attempted to leave the airport parking lot in her vehicle, Officer Mitchell and his partner pursued appellant on foot and eventually stopped appellant, but not without considerable difficulty..

Officer Mitchell advised appellant she was under arrest, then ordered her to gather her possessions, lock her vehicle, and come with him. Appellant became abusive, refused to cooperate, and then began to run from the officer. She disregarded his command to stop and did not stop until Officer Mitchell chased her down and grabbed her by the arm.

In a single ground of error, appellant alleges the evidence is insufficient to show that she was under arrest or that she actually escaped from the custody of the officers.

TEX.PENAL CODE ANN. § 38.07(a) (Vernon 1974) provides as follows:

“A person arrested for, charged with, or convicted of an offense commits an offense if he escapes from custody.”

“The elements of escape are that a person (1) escape (2) from custody (3) after having been arrested for, charged with or convicted of an offense.” Henderson v. State, 600 S.W.2d 788, 789 (Tex.Crim.App.1979).

Officer Mitchell testified that when he advised appellant she was under arrest and to gather her possessions, the window of the car was rolled down and he was talking with her face to face. He also testified that when so advised, appellant became irate and began to use profanity. Mitchell’s partner, Officer Bates, testified that appellant stated to the officers that they were security guards and could not arrest her.

Obviously, the officers intended to arrest appellant, and they were ultimately successful. However, the offense of escape occurs after having been arrested, not before the arrest is complete.

TEX.CODE CRIM.PROC.ANN. Art. 15.-22 (Vernon 1977) provides that:

“A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.”

In Smith v. State, 219 S.W.2d 454 (Tex. Crim.App.1949), the court set out the following facts:

He [defendant] was then approached by an officer who grabbed him from behind, disarmed him and told him to come and go to jail, at which time he refused to go, and the difficulty then ensued as the two officers attempted to detain him. He escaped and left the officers who were unable to detain him. Subsequently ... they peacefully took appellant into custody.

219 S.W.2d at 456.

The issue in Smith was whether the defendant’s resistance was admissible as res gestae of the offense or inadmissible as proof of an extraneous offense. In holding that the proceedings relative to defendant’s arrest were properly admitted, the Court of Criminal Appeals wrote:

An arrest of a person carries with it an element of detention, custody or control of the accused. The mere fact that an officer makes the statement to an accused that he is under arrest does not complete the arrest. There must be custody or detention and submission to such arrest.

219 S.W.2d at 456. Also:

He was either under arrest or not under arrest; and it is the writer’s opinion that the arrest had not been completed. He had to be taken into custody and detained. While he may have been told that he was under arrest, still when the officer attempted to complete the arrest, appellant refused to submit thereto, and his arrest and detention were not completed. It had to again take place, all the proceedings consuming about five minutes.

Id. at 457.

In light of Smith, we are constrained to hold that appellant’s arrest was not complete when she fled from Officer Mitchell. The elements of detention and control were lacking, and appellant refused to submit to the officer’s authority. This is demonstrated by Officer Mitchell’s own testimony:

Q. She ran about 20 feet, and you grabbed her. You had to physically restrain her. Is that correct?
A. Yes, sir.
Q. Okay. At that time, when you physically restrained her, that was really the first time that her movement was actually totally restrained. Is that correct?
A. Yes, sir, that’s correct.
Q. All right. And, from that point on, you had hold of her?
A. Yes, sir.
Q. And, she wasn’t getting away from you at that point.
A. Well, she tried to get away. We had — Like I said, it was beginning to look like we was going to drag her. Q. You had to fight with her and drag her?
A. All the way to the terminal.
Q. All the way to the terminal. And, when did you put handcuffs on her? A. We put the handcuffs on her once we got her inside at the checkpoint. We had one of the female attendants officers search her for us, and then we handcuffed her and sat her down on the chair.

In McCrory v. State, 643 S.W.2d 725 (Tex.Crim.App.1982), the court wrote:

It is doubtful that Texas law recognizes such a thing as being placed under “formal” arrest. “A person is arrested when he has been placed under restraint or taken into custody_” Article 15.-22, V.A.C.C.P. No form of words is required, White v. State, 601 S.W.2d 364 (Tex.Crim.App.1980).

643 S.W.2d at 726 n. 3. Cases determining the “point of arrest” under TEX.CODE CRIM.PROC.ANN. Art. 15.22 (Vernon 1977) have concluded that an arrest occurs at the moment that a person’s freedom of movement is restricted or restrained. White, at 601 S.W.2d 365-66.

In White, the defendant was under arrest when held at gunpoint in a spread-ea-gled position. In Hardinge v. State, 500 S.W.2d 870 (Tex.Crim.App.1973), the officer testified that he “held” the defendant. The court wrote:

“It is not the actual physical taking into custody that will constitute an arrest. An arrest is complete whenever a person’s liberty of movement is restricted or restrained. In the situation at bar, the arrest took place when Gonzales ‘held’ appellant for the San Antonio Police.”

500 S.W.2d at 873. However, the opinion in Hardinge is silent as to what actions constituted “held.” In Maldonado v. State, 528 S.W.2d 234 (Tex.Crim.App.1975), the defendant had paid his fines and was walking out of the courthouse when “stopped” by a DPS investigator. 528 S.W.2d at 237. The court held the defendant was “under arrest”; writing:

For the next three hours, or between 9:00 a.m. and noon, Prince continued to talk to appellant in a room in the Sheriff’s office at the courthouse. Although appellant was apparently left unattended at times for this three hour period, he was nevertheless restrained of his liberty. Prince had already once restrained appellant from leaving the courthouse. If Prince had observed him trying to leave again, it is reasonable to infer that he would have stopped him again.

Id.

We conclude that in the instant case appellant’s liberty of movement was not restricted or restrained until she was chased and grabbed by Officer Mitchell. In the State’s brief, seven events are set out to show that “dominion and control were being exercised over her." We note that all of these occurred while appellant was in her car being chased by the officers who were on foot.

We disagree with the State that verbal commands were sufficient to effect an arrest when appellant refused to submit to those commands. In Wyatt v. State, 120 Tex.Cr.R. 3, 47 S.W.2d 827 (1932), the offense was aiding a prisoner to escape. The “prisoner” was one Hines, about whom the court stated, “it seems apparent that the officer did not at any time have Hines in custody or under his control....” Id. at 829. Essential to the conviction of the defendant was that the prisoner be under arrest. The court reversed, notwithstanding that Hines had been ordered out of the field a half-dozen times by the constable, was told the constable had two warrants for his arrest, was kicked, and then did get through the fence when the constable pulled his pistol. Id. 47 S.W.2d at 828.

In Wyatt, the court set out the following quotation:

To constitute an arrest it is necessary that the officer should assume custody and control over the party, either by force or with his consent, and it has been held that neither the utterance of words indicating an intention to arrest on the part of the person uttering them, nor the reading of the warrant is of itself sufficient.

Id. 47 S.W.2d at 829.

It would appear that appellant violated TEX.PENAL CODE ANN. § 38.04 (Vernon 1974) which makes it an offense to intentionally flee from a peace officer attempting to arrest him. However, the State sought to impose the harsher penalty provided for in the escape statute. By so choosing, the State assumed the burden to prove a completed arrest and custody. The State showed that the officers had a difficult time apprehending appellant as she did not want to be detained; this is not enough. We hold the evidence is insufficient to show that appellant escaped from an arrest or from custody. The judgment of the trial court is reversed and a judgment of acquittal entered.

      . Maldonado was partially overruled on an unrelated issue of standing in Sullivan v. State, 564 S.W.2d 698, 704 (Tex.Crim.App.1977).


author: DRAUGHN, Justice.

text:
    Owen W. CECIL, et al., Appellants, v. Walter P. ZIVLEY, Independent Administrator of the Estate of Perry W. Robertson, Deceased, Appellee.
    No. A14-83-712-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 20, 1984.

      Richard L. Rothfelder, Ryan & Shoss, Houston, for appellants.
    David Beale, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

DRAUGHN, Justice.

This is an appeal from a judgment awarding Appellee recovery on four promissory notes. After both sides presented their evidence, the trial judge granted Ap-pellee’s “Motion for the Court to Withdraw this Case from the Jury and Render Judgment for Plaintiff, or, Alternative Motion for Instructed Verdict.” Appellants raise twelve points of error attacking the trial court’s granting of the Motion. We affirm.

This suit grows out of a series of promissory notes given as part of the purchase price of an apartment complex. In 1976, Perry Robertson wished to sell his interest in the Le Manoir Apartment complex in Houston. Robertson contacted A. Jack Gregory to find a prospective purchaser for the apartments. Gregory, in turn, contacted Fred Gardner, who began to assemble a group of investors to purchase the apartment complex.

Gardner formed an investment group named Memorial Trust to purchase the apartments for conversion into condominiums. Gardner appointed himself trustee of the trust. Gardner prepared and distributed to potential investors a trust agreement and confidential memorandum explaining Gardner’s investment proposal. Appellants, Owen W. Cecil, Grant R. McKeever, Robert W. Cherry, John Greig Coogan, Bruce R. Kelly, L.G. Menefee, Marian L. Modeland, John C. Perkins, and Jack Whit-more were investors in the Memorial Trust. Each of the Appellants signed powers of attorney which authorized Gardner to act for them in the purchase of the Le Manoir Apartments. Each power of attorney provided in part that:

Such powers will include, but are not limited to, the execution of all purchase vendor lien notes with joint and several liability, deeds, deeds of trust, and other security instruments relative to the purchase of said Le Manoir Apartments.

Pursuant to the powers of attorney, at the closing of the sale of the apartments, Gardner executed four promissory notes as part of the purchase price for Robertson’s interest in the apartment complex.

Gardner failed to make timely payment on the notes given to Robertson and the other notes executed in connection with the purchase of the apartments. Attorneys for the note holders, including Robertson, began sending notice letters to the individual investors, demanding payment on the notes. After receiving these letters, the investors confronted Gardner and demanded an explanation. Gardner explained that the notes had not been paid because of a temporary cash flow problem which would be solved as soon as there was final approval on the loans of some of the prospective condominium purchasers.

The financial problems did not get better. In February, 1978, the apartments were set for foreclosure due to the non-payment of promissory notes held by other creditors of the trust. The individual trust investors obtained the books and records of the trust and turned them over to John Stormes, a certified public accountant. Stormes reported that a substantial amount of trust money was missing. The trust investors forced Gardner to resign as trustee and selected three of the individual investors to serve as co-trustees. In order to avoid the impending foreclosure, the apartments were filed for bankruptcy by the investors, hoping that a purchaser for the apartment complex could be found. No purchaser was found and eventually the apartments were foreclosed upon by another note holder.

Robertson brought suit on four promissory notes executed by Gardner, on behalf of the trust investors. After suit was filed, but prior to the time of trial, Robertson died. Subsequently, Appellee was named as Independent Administrator of the Estate of Robertson and was made a party to this suit. Trial was to a jury, but, after each side had presented its evidence, the trial court granted Appellee’s Motion for Instructed Verdict and denied Appellants’ motion. Appellants attack the trial court’s action in granting Appellee’s motion.

On appeal from the granting of an instructed verdict, an appellate court is to determine whether there is any evidence of probative force to raise fact questions on the material issues of the case. Henderson v. Travelers Insurance Co., 544 S.W.2d 649, 650 (Tex.1976). All of the evidence in the record must be considered by the reviewing court in a light most favorable to the party against whom the instructed verdict was rendered and we must discard all contrary evidence and inferences. Henderson, 544 S.W.2d at 650; Kennedy v. Beasley, 606 S.W.2d 1 (Tex.Civ.App. — Houston [1st Dist.] 1980, writ ref’d n.r.e.). This court must affirm the action of the trial court if Appellants failed to present some legally sufficient evidence on each element of the defenses Appellants raised to Appellee’s suit on the promissory notes. See generally, 3 R. McDonald, TEXAS CIVIL PRACTICE IN DISTRICT and COUNTY COURTS § 11.28.1 (rev. 1983).

In point of error one, Appellants argue that the trial court erred in finding there was no evidence refuting Gardner’s actual authority to execute the promissory notes on behalf of Appellants. The second point of error is that the trial court erred in finding that Appellants presented no evidence that Gardner did not possess apparent authority to execute and bind Appellants on the promissory notes. Even if we assume that Appellants presented some evidence refuting Gardner’s actual authority, an issue we do not decide, if there was no evidence refuting Gardner’s apparent authority, the trial court properly granted the motion for instructed verdict on the issue of Gardner’s authority to execute and bind Appellants on the promissory notes.

Appellants attack Gardner’s apparent authority in two ways. They argue that a third party, like Appellee, may not use the doctrine of apparent authority to bind them when the third party has notice of fraud in the inducement of the delegated authority, or of any limitations on the agent’s power and the agent’s deviation therefrom. See Douglass v. Panama, Inc., 504 S.W.2d 776 (Tex.1974). Appellants argue that any notice that Gregory had is attributable to Robertson.

Appellants contend that a written contract may be comprised of several documents and those separate documents must be construed together. See W.B. Dunavant and Co. v. Southmost Growers, Inc., 561 S.W.2d 578, 582 (Tex.Civ.App. — Corpus Christi 1978, writ ref’d n.r.e.). Appellants believe that according to the terms of the trust agreement, confidential memorandum, and other documents there existed three substantial limitations on any authority granted to Gardner. Appellants argue that the limitations on Gardner’s authority were that:

1. Thirty units in the Memorial Trust would have to be fully purchased and subscribed to before the apartment complex would be purchased;
2. The total purchase price to be paid by the Trust for the apartments would not exceed $3,720,000;
3. Gardner would execute, and personally obligate Appellants on, promissory notes totalling no more than $200,-000.

Appellants contend because Gardner exceeded these limitations on his authority, Appellee may not assert any authority on the part of Gardner to bind the investors on the promissory notes. Appellants also believe that the same three matters form the basis of their claim of fraudulent inducement.

Appellants argue that a principal is not bound by the conduct of his agent when the agent acts in excess of the actual authority given to him. Gessell v. Traweek, 628 S.W.2d 479, 482 (Tex.App. — Texarkana 1982, writ ref’d n.r.e.); Webb v. Webb, 602 S.W.2d 127, 129 (Tex.Civ.App. — Austin 1980, no writ); Gunn v. Schaeffer, 567 S.W.2d 30, 32 (Tex.Civ.App. — El Paso 1978, no writ). We have no dispute with this general statement. However, we agree with the trial court that Appellants presented no evidence in support of the alleged limitations on Gardner’s apparent authority.

The trust agreement provided that Gardner had the authority to do the following:

A. Enter into and contract for the purpose of purchasing the subject property and to execute all notes, papers, earnest money contracts, deeds of conveyance and other instruments pertaining to and necessary to the purchase thereof.
* * * * * *
D. Without in any wise limiting the foregoing, to execute and perform in the subscribers behalf, any notes, vendor or promissory notes, necessary and to perform any act or deed of any nature or anything whatsoever that ought to be done, executed or performed in or about the premises, in connection with the purchase of said property, and as fully and effectively as the subscribers to this agreement could do if personally present.

The power of attorney executed by the subscribers to the trust provided:

I grant to my said attorney in fact full power and authority to do and perform all and every act and thing whatsoever requisite, necessary, and proper to be done in the exercise of any of the rights and powers herein granted, as fully to all intents and purposes as I might or could do if personally present, regarding the purchase of Le Manoir Apartments, with full power of substitution or revocation, hereby ratifying and confirming all my said attorney in fact, shall lawfully do or cause to be done by virtue of this power of attorney and the rights and powers herein granted. Such powers will in- elude, but are not limited to, the execution of all 'purchase vendor lien notes with joint and several liability, deeds, deeds of trust, and other security instruments relative to the purchase of said Le Manoir Apartments (emphasis added).

The grant of authority to Gardner contained in both the trust agreement and power of attorney is quite broad. The trust agreement and confidential memorandum do provide that there were to be thirty shares in the trust, the prospective purchase price of the apartments was $3,720,-000, and the investors must be willing to sign a $200,000 note. However, these documents do not expressly limit Gardner’s authority as Appellants argue. Because the documents presented no evidence of limitations on the authority granted to Gardner, we need not determine if there was any evidence of Gardner acting beyond the alleged limitations.

Appellants argue that they were fraudulently induced to join the trust and sign the powers of attorney. They contend that fraudulent inducement is fatal to a contract and it is a valid defense against enforcement of such contract. See Roberts v. Tipton, 562 S.W.2d 921, 923 (Tex.Civ.App. —Waco 1978, writ ref d n.r.e.). Appellants assert that proof of fraud by Gardner in obtaining Appellants’ signatures to the powers of attorney would negate any authority allegedly given Gardner.

We have no dispute with the general statement that fraudulent inducement is a valid defense to enforcement of a contract. However, Appellants have failed to show that Robertson, individually or through Gregory, had notice of any fraud in this ease. Assuming that Appellants established evidence on all the elements of fraudulent inducement, Appellants produced no evidence connecting the alleged fraud to Robertson. The only evidence of misrepresentation were oral statements made by Gardner to some, but not all, of the Appellants. Appellants produced no evidence that Gregory or Robertson had any knowledge of these oral representations or that the representations were false. The strongest evidence in support of Appellants’ position is contained in the testimony of Cecil and Gardner. Cecil testified that he believed that Jack Gregory and Perry Robertson knew that Gardner had stolen money from the trust. Cecil did not testify that Gregory or Robertson knew of the representations upon which Appellants base their claim of fraudulent inducement. During Gardner’s testimony at trial, an earlier deposition was used to impeach Gardner’s testimony on the questions of Gregory’s knowledge. While Appellants may have been successful in impeaching Gardner, the prior statements cannot be used as substantive evidence of the truth of the facts stated. Atlantic Mutual Insurance Co. v. Middleman, 661 S.W.2d 182 (Tex.App. — San Antonio 1983, writ ref’d n.r.e.); Smith v. Tennessee Life Insurance Co., 618 S.W.2d 829 (Tex.Civ.App. — Houston [1st Dist.] 1981, no writ); 1 R. Ray, TEXAS LAW OF EVIDENCE CIVIL AND CRIMINAL § 688 (Texas Practice 3d ed. 1980).

In addition, the trust agreement and confidential memorandum do not contain the representations that Appellants claim. The confidential memorandum generally states “[t]here will be a total of thirty (30) units in this Trust.” The memorandum does not provide that thirty shares in the trust must be fully purchased and subscribed to prior to the purchase of the apartments. The trust agreement does provide that the “prospective purchase price of the property is $3,720,000.00 (emphasis added).” The agreement does not state, as Appellants argue, that the total purchase price to be paid by the Trust for the Apartments would not exceed $3,720,-000. Both documents state that “[e]ach investor must be willing to sign a $200,-000.00 note jointly and severally_” Neither document contains a statement that the total personal liability of the trust investors would not exceed $200,000.

The statements contained in these documents are neither limitations on Gardner’s authority nor false misrepresentations upon which a claim of fraudulent inducement could be based. Appellants have failed to refute Gardner’s apparent authority to execute the promissory notes. Point of error two is overruled. Because Gardner did have apparent authority, we need not decide the remaining points of error contesting authority and whether Appellants have waived or are estopped from contesting authority.

In points of error ten and eleven, Appellants argue that the trial court erred in determining that, as a matter of law, a $200,000 and a $139,175 note were not usurious. Both of these notes contained the following provision:

In the event the LeManoir Apartments are sold as townhouses, the said holder shall receive [$2,000/$725] per unit at closing regarding the 120 units and that this payment shall be in lieu of and substitute the note receipts of principal and interest as hereinabove set forth. However, the holder hereof shall receive the same rate of interest per month for as many months as it takes to pay such note on the reduced and outstanding principal.

In the $200,000 note, the stipulated amount is $2,000, and, in the $139,175 note, the stipulated amount is $725. Appellants argue that these notes are usurious because they allow the exaction of a greater compensation than allowed by law for the use of money by the borrowers.

Appellants do not allege that Robertson actually received usurious interest but that the notes are usurious as a matter of law because they could have, hypothetically, allowed Robertson to exact interest at a rate greater than that allowed by law. Appellants argue that the “conversion payment” clause contained in both of the challenged notes allows Appellee to receive and keep interest far in excess of the maximum rate allowed by law. Under the $200,000 note, for example, Appellants were to pay $2,000 to Appellee as each unit in the complex was converted into a condominium. Appellants argue that because there were 120 units in the complex, the note required payment of $240,000 upon conversion of all units. Appellants conclude that if the full conversion was completed within a short period of time, the note would call for the payment of $240,000. Appellants assert that $40,-000 of that amount would be interest which under hypothetical circumstances could be usurious.

Whether the notes are usurious because of the inclusion of the challenged clause is a question of construction. Jim Walter Homes, Inc. v. Schuenemann, 668 S.W.2d 324 (Tex.1984); Smart v. Tower Land and Investment Co., 597 S.W.2d 333 (Tex.1980). This court will adopt the construction of the contract which comports with legality, if the contract is susceptible of more than one reasonable interpretation. Conte v. Greater Houston Bank, 641 S.W.2d 411 (Tex.App. — Houston [14th Dist.] 1982, writ ref d n.r.e.). We will not find the contract under construction usurious unless it expressly entitled the Appel-lee to exact interest at a rate greater than that allowed by law. Smart, 597 S.W.2d at 341.

These notes do not expressly entitle Appellee to exact usurious interest. Looking at the note provision in question, the Appellants have not shown that the trial court’s failure to find the notes to be usurious was error. The provisions merely provided for payments to Robertson as the individual condominiums were sold to third-parties. The notes clearly provided that these payments were “in lieu of and substitute” for the note payments of principal and interest and that these payments were to reduce the outstanding principal. While the notes could under hypothetical circumstances be usurious, an equally likely construction of the provisions is that the conversion payments were only required up to the amount of principal and interest due under the notes. This latter construction is at least as reasonable as the construction advanced by Appellants. Under these circumstances, Appellants have failed to show that the trial court’s construction of the notes was erroneous. Points of error ten and eleven are overruled. Due to our disposition of those points, we need not decide whether the trial court erred in determining that the counterclaim for usury was abated by Robertson’s death.

The judgment is affirmed.