author: COOPER, Chief Justice. BROCK, Justice,

text:
    STATE of Tennessee, Appellee, v. Raymond Eugene TEAGUE, Appellant.
    Supreme Court of Tennessee, at Knoxville.
    Oct. 29, 1984.

      Robert J. Batson, Jr., Thomas M. Fleming, Chattanooga, for appellant.
    W.J. Michael Cody, Atty. Gen. & Reporter, Wayne E. Uhl, Asst. Atty. Gen., Nashville, for appellee.
   OPINION

COOPER, Chief Justice.

This is a direct appeal of a death penalty. In an earlier trial, the defendant was convicted of murder in the first degree and was sentenced to death by electrocution for the killing of his ex-wife, Terri Teague. The conviction was affirmed on appeal, but the sentence of death was reversed and the case was remanded for a re-sentencing hearing. State v. Teague, 645 S.W.2d 392 (Tenn.1983). In the re-sentencing hearing, the jury again fixed defendant’s sentence as death by electrocution. It is from this sentence that the present appeal is taken.

In seeking the penalty of death in the re-sentencing hearing, the state relied on, and the jury found, two aggravating circumstances to exist.

(1) The defendant was previously convicted of a felony other than the present charge, which involved the use or threat of violence to the person. See T.C.A. § 39-2-203(i)(2).
(2) The murder was committed for the purpose of avoiding, interfering with or preventing a lawful arrest or prosecution of the defendant or another. See T.C.A. § 39-2-203(i)(6).

The jury also found that there were no mitigating circumstances “sufficiently substantial to outweigh the aggravating circumstances.”

In our opinion, the evidence supports and justifies the jury’s verdict imposing the sentence of death by electrocution on the defendant for the murder in the first degree of his ex-wife, Terri Teague.

The defendant has questioned numerous rulings by the trial judge on the admissibility of evidence, insisting that “a great deal” of evidence was not germane or relevant to the statutory aggravating circumstances relied on by the state, or was impermissible hearsay. The defendant also insists that the trial court erred in permitting the state to rely on defendant’s conviction as an accessory before the fact to second-degree murder as an aggravating circumstance, questioning the timing of the conviction and the fact that the conviction was predicated on a plea of nolo contendere, and insisting that there is nothing in the record to support a finding that the conviction was for a felony, which involved the use or threat of violence to the person.

While not developed to the extent that it was in the first trial, the state was permitted to introduce background evidence relevant to the murder of Terri Teague, but not directly relevant to any statutory aggravating circumstance relied on by the state in seeking the death penalty as punishment for the murder of Mrs. Teague. This evidence showed that Mrs. Teague’s apartment had been forcibly entered and that Mrs. Teague had been drowned in the bathtub in her apartment. The jury also was informed that the defendant had been arrested on the night of the murder, while driving with two other men in the subdivision where the victim lived, and that the defendant was armed with a pistol. The defendant’s two companions testified that Teague told them that he had killed his former wife.

Evidence also was introduced which showed that Terri Teague had shot and killed John Mark Edmonds. Terri cooperated with the police in their investigation of the killing and taped conversations between herself and the defendant. She also was a witness at the grand jury hearings. The defendant was indicted for first degree murder and accessory before the fact to first degree murder in the death of Ed-monds. The state’s theory of the Edmonds killing was that the defendant was the culpable person and had used and incited Terri to kill Edmonds.

Jimmy Cook, one of defendant’s companions on the night Terri Teague was drowned, testified that the defendant had said the Edmonds case would never go to court if Terri were “out of the way.”

On June 15, 1982, the defendant pleaded nolo contendere to the charge of accessory before the fact to murder in the second degree in the Edmonds case and was convicted and sentenced to serve ten years in the state penitentiary.

The defendant’s proof in mitigation consisted of several friends and acquaintances, who testified to his good character as a father, friend, and worker. Employees at the Hamilton County Jail testified defendant was a model prisoner. A minister working with prisoners in the state penitentiary, testified as to defendant’s adjustment to prison routine, his aid in solving the problems of other prisoners, and his obvious love and concern for his children. Defendant's mother testified he was a good son and father. His former attorney in the Edmonds case testified that he had advised defendant that the state could never make a case in the Edmonds killing and that defendant would probably be acquitted.

The defendant questions the introduction of background evidence concerning the murder, insisting that in the sentencing proceeding only evidence relevant to aggravating and mitigating circumstances should have been allowed at the hearing. Guidelines for re-sentencing hearings in general have been set out in Farris v. State, 535 S.W.2d 608, 621 (Tenn.1976); Hunter v. State, 496 S.W.2d 900, 903 (Tenn.1972); and in Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738, 743 (1956). Under these guidelines, evidence of how the crime was committed, the injuries, and aggravating and mitigating factors are admissible. There appears to be no reason why such guidelines, carefully limiting evidence to the essential background, should not apply in capital cases in order to ensure that the jury acts from a base of knowledge in sentencing the defendant. See e.g. Blankenship v. State, 251 Ga. 621, 308 S.E.2d 369, 371 (1983) (parties at capital re-sentencing are entitled to offer evidence relating to circumstances of crime.)

In the course of giving background information, the officer who arrested Teag-ue near the victim’s house testified that he heard a metallic noise hit the door of the truck next to Teague and that he found a cocked and loaded .45 Colt lying below the seat “where Mr. Teague had dropped it.” The state used this incident to cross-examine character witnesses called by the defendant by showing that the defendant’s behavior in riding around with a gun late at night was unknown to them or contrary to their opinion of him as a good worker and parent. We see no basic error in the reference to the gun incident in cross-examining character witnesses. See Paine, Tennessee Law of Evidence § 21 (1974).

Defendant has cited us to several statements in the record, which he insists are inadmissible hearsay and are violative of the right to confrontation granted him by the Sixth Amendment. We find no merit in these contentions. The admissibility of three of the statements cited was not questioned by the defendant. The fourth objection — that is, to testimony that Mrs. Teag-ue was afraid to take a bath — was sustained and, could not therefore be a factor in the jury’s decision.

Defendant also insists that the state improperly cross-examined the defendant’s mother, getting into the record information that was not otherwise admissible, and that the trial court erred in not declaring a mistrial. Mrs. Quarles testified on direct examination that the defendant had been a good son and had not given her any trouble of any kind other than the present case and the Edmonds case. On cross-examination the state asked if the defendant had been in any other trouble. When the witness answered “No” to the general question, the assistant district attorney general asked specifically, “Didn’t you express your concern to me that you felt Randy was planning to kill somebody [in July, 1978]?” There was an objection by counsel to the question, and it was not answered. After a jury-out hearing, defendant’s objection was sustained and his motion for mistrial was overruled. The judge then instructed the jury to disregard the question. With the record in this state, we find nothing to indicate that the overruling of the mistrial motion was an abuse of the trial judge’s discretion, nor is there any indication that the asking of the question by the state affirmatively affected the jury’s decision. State v. Compton, 642 S.W.2d 745, 746 (Tenn.Crim.App.1982).

The defendant also questions ruling by the trial judge which kept from the jury evidence of the victim’s character. The defendant wanted to show that Terri Teague had “cooly” killed Edmonds and that she had no concern for her children. Defense counsel also wanted to cross-examine witnesses called by the state about the victim’s promiscuity, use of drugs, and possible embezzlement from her employer. In a sentencing hearing in a capital case, the jury must be permitted to consider any relevant mitigating evidence such as the defendant’s character, record, or the circumstances of the offense. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Cozzolino v. State, 584 S.W.2d 765 (Tenn.1979). However, evidence of the defects in the victim’s character of the nature sought to be introduced in the re-sentencing hearing is not relevant mitigating evidence and consequently, was properly excluded.

Defendant insists that the conviction of the defendant as an accessory before the fact of murder in the second degree, upon his plea of nolo contendere, may not be used to prove that the defendant had been previously convicted of a felony other than the present charge, which involved the use or threat of violence to the person — a statutory aggravating circumstance found by the jury in this case. See T.C.A. § 39-2-203(i)(2). In support of his argument, defendant points out that Rule 11(e) of the Tennessee Rules of Criminal Procedure provides in part that evidence of a plea of nolo contendere is inadmissible in any civil or criminal proceeding against the person who made the plea. The rule relied on by the defendant is based on PED.R. CRIM.P. 11(e) and was intended to prohibit the use of the plea to support an inference of guilt or as an admission against interest. FED.R.CRIM.P. 11, Notes of Advisory Committee, 1975 Amendment note to Subsection (e)(6) and 1980 Amendment Note. A conviction based on the plea, however, may be used to enhance punishment in the same manner as a conviction after a not guilty plea, unless there is a specific statute to the contrary. See United States v. Williams, 642 F.2d 136, 139 (5th Cir.1981). See also People v. Goodwin, 593 P.2d 326 (Colo.1979); Miller v. State, 162 Ga.App. 730, 292 S.E.2d 102, 105-106 (1982); 24B C.J.S. Criminal Law § 1960(1) (1962); 21 Am.Jur.2d, Criminal Law § 499 (1981); An-not. 89 A.L.R.2d 540, §§ 42-50 (1963). We have no statute or Rule of Criminal Procedure that prohibits the use of a conviction on a plea of nolo contendere to enhance punishment.

Defendant further argues that the nolo contendere plea was invalid because the judge accepting the plea failed to follow the requirements of Rule 11(c) of the Tennessee Rules of Criminal Procedure to insure that defendant understood the consequences of the plea. This issue was not raised in the trial court until the motion for new trial was filed. We do have in the record, as an exhibit to the motion for new trial, the colloquy between the trial judge, the defendant, and defendant’s counsel at the time the plea of nolo contendere was accepted. It is apparent from the colloquy that the plea was voluntary and that the defendant understood that he was losing his right to a jury trial and cross-examination. Further, it contains assurances of the defense counsel that the defendant fully understood what he was doing. While the trial judge could have paid more attention to detail and followed exactly the admonition of Rule 11, the purposes of the rule were carried out by the procedure followed, that is, insuring the defendant made an informed plea and that plea agreements are brought out in open court. See Advisory Committee Note 1983, FED.R. CRIM.P. 11(h). See also State v. Miller, 634 S.W.2d 615 (Tenn.Crim.App.1981); 2A Moores Federal Practice ¶ 11.05[2] (2d ed. 1984).

The defendant contends that there is no evidence that his conviction as an accessory before the fact to second degree murder is a felony involving the use or threat of violence to the person, and that it should not have been admitted to prove the aggravated circumstance set forth in T.C.A. § 39-2-203(i)(2). We see no merit in this contention. An accessory before the fact is a principal offender and is treated as such. T.C.A. § 39-1-302. Murder necessarily involves violence to a person. T.C.A. §§ 39-2-201 and 39-2-211(a). The fact the defendant did not fire the shot that killed Edmunds should make no difference since as an accessory he moved, incited, coun-selled, hired, commanded, or procured the murder. T.C.A. § 39-1-301.

The defendant also questions whether his conviction as an accessory before the fact to second degree murder was a “previous” conviction within the contemplation of the death penalty statute. This court pointed out in State v. Caldwell, 671 S.W.2d 459, 465 (Tenn.1984) that:

The language in [39 — 2—203(i)(2) ], “previously convicted” clearly indicates that the date of the conviction, not of the commission of the crime, is the important factor. The order in which the crimes were actually committed is irrelevant, as long as the convictions have been entered before the sentencing hearing at which they are introduced into evidence.

Teague’s plea and conviction as an accessory before the fact to second degree murder occurred after Teague’s first trial in this case, but before the re-sentencing hearing and, consequently, may be used as an aggravating factor. Elledge v. State, 408 So.2d 1021, 1022 (Fla.1982).

The defendant also raises a number of issues in relation to the voir dire. The defendant insists that the trial judge abused his discretion in refusing individual sequestered examination of prospective jurors, that jurors qualified to serve under the test set forth in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), were improperly excluded for cause, that voir dire by the defendant was improperly limited, and that the jury was “death qualified,” denying the defendant a jury composed of a representative cross-section of the community. We have considered these issues and found them to be without merit. There is nothing in the record to indicate that any prejudice resulted from group voir dire in this case. See State v. Simon 635 S.W.2d 498, 506 (Tenn.1982). The argument that the denial of individual sequestered voir dire maximizes the “untoward effects of death-qualification” was rejected in State v. Workman, 667 S.W.2d 44, 49 (Tenn.1984). Further, the record shows that the trial judge excused for cause only those prospective jurors who stated unequivocally that they could not follow the law regarding the death penalty. Where there was any possible ambiguity in answers given by a prospective juror to qualifying questions, the trial judge permitted counsel for the state and for the defendant to question prospective jurors fully, and cut short the questioning only when answers left no leeway for possible rehabilitation of the juror. We approved this procedure in State v. Strouth, 620 S.W.2d 467 (Tenn.1981).

The defendant has two issues directed to the trial court’s instructions to the jury. In the first, the defendant questions the sufficiency of the instruction on circumstantial evidence. The trial court defined both circumstantial and direct evidence, but did not include in the instructions the statement that to warrant a conviction on circumstantial evidence, the proof must exclude every other reasonable theory or hypothesis. The defendant made no request for such an instruction. Where the evidence is both direct and circumstantial, as in this case, the failure to give such an instruction is not error in the absence of a request. State v. Thompson, 519 S.W.2d 789, 792 (Tenn.1975).

The defendant also insists that the trial court erred in failing to include in its instructions nonstatutory mitigating circumstances, as requested by the defendant. The trial court instructed the jury that it should “consider ... any mitigating circumstance, which shall include, but are not limited to” the statutory mitigating circumstances, which he then read to the jury. The court refused to specifically cite seven additional circumstances, as mitigating, requested by the defendant, including the fact that the defendant was employed, was a good parent, a member of the Army Reserve, and other similar testimony. In doing so, the judge properly pointed out that they were matters of evidence to be argued to the jury.

Appellant also insists that T.C.A. § 39-2-203(g) is unconstitutional in that it makes the death penalty mandatory under certain circumstances. A similar attack of the constitutionality of the sentencing phase of the Tennessee Death Penalty Act has been made in other cases and has been found to be without merit. State v. Teague, 645 S.W.2d 392 (Tenn.1983); State v. Dicks, 615 S.W.2d 126 (Tenn.1981), cert. denied, 454 U.S. 933, 102 S.Ct. 431, 70 L.Ed.2d 240 (1981).

We have concluded from our review of the record that no reversible error was committed in the re-sentencing hearing, and that the sentence imposed by the jury is sustained by the evidence. The sentence of death by electrocution imposed on defendant is affirmed. The death sentence will be carried out on the 15th day of January, 1985, unless stayed by appropriate authority. Costs are adjudged against defendant.

FONES, HARBISON and DROWOTA, JJ., concur.

BROCK, Justice,

dissenting.

For the reasons stated in my dissent in State v. Dicks, 615 S.W.2d 126, 132 (Tenn.1981), I would hold that the death penalty is unconstitutional and the proper sentence in this case is life in the penitentiary.


source: Caselaw Access Project

author: PARROTT, Presiding Judge. PARROTT, Presiding Judge.

license: Public Domain

text:
    SOUTHERN RAILWAY EMPLOYEES CREDIT UNION, Plaintiff, v. Michael L. THORNBURG, Administer of the Estate of Howard Karl Thornburg, Defendant-Appellant, and Eula Mae Lindsey, Defendant-Appellee.
    Court of Appeals of Tennessee, Eastern Section.
    July 6, 1984.
    Permission to Appeal Denied by Supreme Court Oct. 29, 1984.
    David L. Buuck, Knoxville, for defendant-appellant.
    William P. Newkirk and Barry K. Maxwell, Knoxville, for defendant-appellee.
   OPINION

PARROTT, Presiding Judge.

The Southern Railway Employees Credit Union brought this interpleader action to decide rights in two accounts held jointly by Howard Thornburg and Eula Lindsey. Both Thornburg’s heirs and Lindsey claim the “Special Account” which was created without an explicit right of survivorship. The chancellor held that Lindsey did have a right of survivorship and the heirs appealed here.

The proof shows that both Thornburg and Lindsey .were employed and both contributed to the accounts. Thornburg and Lindsey originally held only one account, created by a signature card which explicitly included a right of survivorship. They shifted funds from the first account to open the second, “Special Account” only because it yielded greater interest. The second signature card, printed by the Credit Union, was for “Howard K. Thornburg or Eula Mae Lindsey,” but contained no explicit right of survivorship. Proof also shows Thornburg had remarked to his sister that Lindsey would own the account on his death.

The appellee relies here on the unpublished case of In re Estate of Tucker, Tennessee Appeals, Davidson Probate, filed October 81, 1980. In Estate of Tucker, Judge Todd wrote that the word “or” in a bank account' agreement payable to one party or another gives rise to a presumption

of intent to create a survivorship. If a contract is made payable to one party or the other, then, presumptively each party has the right to exercise ownership during the survival of both; but, upon the death of one, it must be presumed that the survivor is the sole owner.

We find it unnecessary to reach the presumption issue. However, we do believe that the language to “Howard K. Thornburg or Eula Mae Lindsey” creates an ambiguity about the parties’ intent in re survivorship. Because of their ambiguity, the chancellor was justified in resorting to extrinsic evidence concerning the parties’ intent. That extrinsic proof showed that all three parties, the Credit Union, Thorn-burg, and Lindsey, intended that Lindsey have a right of survivorship.

We conclude that the chancellor’s finding is supported by a preponderance of the evidence and it is hereby affirmed in all respects. Costs are taxed to the appellant.

GODDARD and FRANKS, JJ., concur.

OPINION ON PETITION TO REHEAR

PARROTT, Presiding Judge.

Appellant has filed a petition to rehear, charging that the Court’s opinion incorrectly stated the facts and misapprehends the law in Tennessee.

The opinion states: “Thornburg had remarked to his sister that Lindsey would own the account on his death.” Appellant correctly asserts that this statement is erroneous. More accurately, Thornburg remarked to his sister that Lindsey would own a different account, the corpus of which later formed the res of the contested account.

We find that appellant’s other contentions are without merit and that the misstatement of facts has no material effect on the outsome of this case.

We, therefore, deny appellant’s motion to rehear.

GODDARD and FRANKS, JJ., concur.


author: PARROTT, Presiding Judge.

text:
    STATE of Tennessee, ex rel. DEPARTMENT OF TRANSPORTATION, Appellee, v. Edward R. HARVEY, Appellant.
    Court of Appeals of Tennessee, Eastern Section.
    Aug. 3, 1984.
    Permission to Appeal Denied by Supreme Court Oct. 29, 1984.

      Dale C. Workman, Knoxville, for appellant.
    John J. Britton, Asst. Atty. Gen., Knoxville, for appellee; William M. Leech, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

PARROTT, Presiding Judge.

The sole issue in this condemnation suit was the value of the property taken by the state. The landowner appellant, Edward Harvey, argues here that the jury verdict of $70,000.00 must be set aside because the trial judge committed reversible error. We affirm the trial court for the reasons set out below.

Appellant insists that the court erred in not enforcing his asserted right to discover the state expert’s appraisals of adjacent property and in not permitting cross-examination concerning those appraisals. He urges as further error that he was not permitted to discover the state expert’s appraisal sheets concerning his own property. We begin analysis of appellant’s discovery argument with T.R.C.P. 26 which grants appellant the right to “obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” T.R. C.P. 26.02(1). We find no case or statute which makes privileged the papers of the state expert appraiser and we will create no such privilege here. Moreover we believe that the appraiser’s “worksheet” concerning the landowners property was “relevant to the subject matter involved” in this case. We therefore find that the trial judge erred in not requiring that the state expert produce his worksheet on the landowners property. However, under T.R. A.P. 36, error does not require reversal unless it “more probably than not affected the judgment or would result in prejudice to the judicial process.” T.R.A.P. 36(b). Appellant’s counsel cross-examined the state expert at great length concerning his appraisal of the taken property. Moreover, appellant alleges no unfair surprise here and requested no continuance after the expert’s testimony at trial. On these facts we must conclude that the trial court’s failure to require production of the worksheets was harmless error.

We are not convinced that the trial court erred in not requiring production of appraisals on adjacent property. There is no showing that those appraisals are relevant. The appraisals of adjacent property were not introduced as comparable sales, and indeed, the appraised value of the property is not probative of any price actually received in the sale of those properties. On these factors, we find that the trial court properly limited the scope of appellant’s discovery concerning the adjacent property.

We believe that State, ex rel. Moulton v. Blake, et al., 49 Tenn.App. 624, 357 S.W.2d 836 (1962), forecloses appellant’s argument concerning cross-examination of the state’s expert on the adjacent property appraisals. Judge McAmis wrote in Moul-ton that "[i]n condemnation cases the trial court is allowed a wide discretion in passing upon matters relating to expert testimony. The Moulton court ruled that the trial judge could properly exclude direct examination of the state’s expert in re sales of other property in the vicinity. We conclude that the trial judge in this case could prohibit cross-examination about adjacent property appraisals.

Appellant next argues that the trial judge erred in disallowing certified copies of deeds to show consideration paid in the sale of property. T.C.A. § 67-4-409(c) provides: “Any oath required in subsection (a) and (b) [as to value of, or consideration paid for, real property] of this section shall not be introduced in any proceeding had in connection with any condemnation action for the purpose of indicating the value of such real property.” (Emphasis added.) (See also Love v. Smith, 566 S.W.2d 876 [Tenn.1978]). We believe that this subsection dictates that the copies which appellant sought to introduce be excluded.

Appellant also argues that the trial judge erred in not admitting changes in traffic patterns which occurred after a related taking. This Court held in State v. Hodges, 552 S.W.2d 400 (Tenn.App.1977) that, where the state took property for a project which subsequently required an additional taking, the enhanced value of the property due to the project was noncom-pensable in the second taking. There is sufficient evidence to justify the trial judge’s conclusion that this property was part of the original project. We believe that the policy reasons enunciated by Judge Goddard in Hodges apply with equal force in this case and we therefore reject appellant’s argument.

Appellants last issue is likewise without merit. He argues that the state’s expert should not have been allowed to give a comparable sale opinion based only on the landowner’s previous purchase of the taken property and in the alternative that he was improperly denied a jury instruction that the expert’s testimony should be given only “slight probative value.” We reject the first contention because the record shows that the previous purchase was not the sole basis for the expert’s testimony. We deem the second contention waived because appellant’s counsel cites no authority on point for the proposition that he was entitled to such a jury instruction.

The judgment of the trial court is affirmed, with costs taxed to the appellant.

SANDERS and FRANKS, JJ., concur.


text:
    F. Chris CAWOOD, Appellant, v. Ronald L. DAVIS, Appellee.
    Court of Appeals of Tennessee, Eastern Section.
    Aug. 16, 1984.
    Permission to Appeal Denied by Supreme Court Oct. 29, 1984.
    F. Chris Cawood, Kingston, pro se.
    Foster D. Arnett and Rick L. Powers, Arnett, Draper & Hagood, Knoxville, for appellee.
   OPINION

PARROTT, Presiding Judge.

The plaintiff-appellant in this malicious prosecution action is F. Chris Cawood, an attorney licensed by the state of Tennessee. The defendant-appellee is Ronald Davis, who served as Disciplinary Counsel to the Board of Professional Responsibility (hereinafter, the Board) at the time relevant to this action. On October 12, 1981, pursuant to its authority under Rule 9 of the Rules of the Supreme Court, the office of Disciplinary Counsel petitioned the Board to appoint a panel which would hear evidence on nineteen allegations of misconduct lodged against Cawood. Davis, while acting as Disciplinary Counsel, amended that petition by adding the charge that Cawood committed aggravated assault, with the use of his automobile, upon a minor child. Thereafter Cawood brought this action, arguing that the additional charge of aggravated assault was an act of malicious prosecution by Davis. The trial judge decided that Davis was immune from civil suit for acts committed as Disciplinary Counsel. He granted Davis’ motion for summary judgment. We affirm for the reasons set out below.

At the appellate level, this case raises two issues: (1) Is the Board’s Disciplinary Counsel clothed in a quasi-judicial absolute immunity for actions within the scope of his authority; and (2) Has Davis established that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law? We consider first the question of immunity for the Board’s Disciplinary Counsel.

We believe this question to be one of first impression in Tennessee and, therefore, we have surveyed the caselaw from other jurisdictions. We find that Kissell v. Breskow, 579 F.2d 425 (7th Cir.1978), cogently explains and applies what is apparently the majority rule in jurisdictions which have considered this question. In Kissell, the clients of an attorney, who was subject to a disciplinary proceeding, sued the executive secretary of the Indiana disciplinary committee. They alleged that the defendant, in presenting charges against plaintiffs’ attorney and in certain related acts, had violated their constitutional right to counsel of choice. The federal district court granted defendant’s motion for summary judgment and the Seventh Circuit affirmed. After reviewing several cases on the issue, the Kissell court decided that an officer of a state body charged with disciplining attorneys is entitled to a quasi-judicial absolute immunity. The Kissell court analogized the acts of such an officer to those of prosecutors and found that the same policies which give rise to quasi-judicial immunity for prosecutors also apply to officers of a state’s disciplinary committee. In the recent case of Clulow v. State of Oklahoma, 700 F.2d 1291 (10th Cir.1983), the plaintiff-attorney sued various state bar officials after his suspension from the bar association. The Clulow court held as follows: “We therefore agree with the courts which have held that bar officials charged with the duties of investigating, drawing up, and presenting cases involving attorney discipline enjoy absolute immunity from damage claims for such functions (cites omitted).” We find the reasoning of Kissell and Clulow persuasive and therefore find that Davis is entitled to an absolute quasi-judicial immunity for actions he took in investigating, drawing up, and prosecuting the Cawood matter.

Having decided that Davis enjoys an absolute immunity for certain acts, we must now consider whether the trial judge properly dismissed this suit on summary judgment. The movant for summary judgment has presented no affidavit but relies in part upon a resolution sworn by the Chairman of the Board of Professional Responsibility. That resolution states, in effect, that Davis was fully authorized, indeed instructed, to investigate and prosecute the aggravated assault claim against Cawood. In his opposing affidavit, Cawood states that it could be discovered that Davis failed to inform the Board that criminal charges against Cawood had been dismissed. Cawood further states “[tjhat Ronald L. Davis was working outside the scope of his authority and was never authorized by the Board_” Apparently Ca-wood relies on these assertions as sufficient to create a genuine issue of material fact. However, we have consistently held that, although a court must view pleadings and evidence in the light most favorable to the party opposing summary judgment, mere conclusory generalizations are inadequate to place a material fact in controversy. ‘[W]hen faced with a motion for summary judgment,’ it is incumbent upon the opponent of the motion ‘to adduce proof sufficient to show a clear entitlement to maintain [the] action.’ ” Merritt v. Wilson City Bd. of Zoning Appeals, 656 S.W.2d 846 (Tenn.App.1983), quoting Kilbourne v. Hanzelik, 648 S.W.2d 932, 934 (Tenn.1983) (concurring opinion, J. Harbison). We, therefore, find that the trial judge was correct in finding that there was no genuine issue of materials facts.

Having reached these conclusions, we affirm the trial court decision in all respects. Costs are taxed to appellant.

SANDERS and FRANKS, JJ., concur.

      . Ultimately a designated Chancellor heard the misconduct charges against Cawood and found that the evidence did not support the aggravated assault charge. The Tennessee Supreme Court affirmed in a per curiam unreported decision reported June 4, 1984.

      . The responsibilities of the executive secretary of the Indiana disciplinary committee are comparable to those of Tennessee’s Disciplinary Counsel.


author: POPE, Chief Justice.

text:
    Mel LEMOS, Petitioner, v. Alfred R. MONTEZ et al., Respondents.
    No. C-2620.
    Supreme Court of Texas.
    Nov. 14, 1984.
    Rehearing Denied Dec. 19, 1984.
    Bonilla, Read, Bonilla & Berlanga, Inc., Edwards, McMains & Constant, Russell H. McMains, Corpus Christi, for petitioner.
    Kleberg, Dyer, Redford & Weil, Douglas E. Chaves and Joseph C. Rodriguez, Corpus Christi, for respondents.
   POPE, Chief Justice.

The questions presented for review are whether the trial court erred in submitting an unavoidable accident issue to the jury in this traffic accident case and in giving an instruction that the happening of a collision is not evidence of negligence. Mel Lemos sued Alfred R. Montez and Seven-Up Bottling Company of Corpus Christi for damages arising when Montez backed a Seven-Up truck into Lemos’ Volkswagen. The trial court rendered a judgment on the verdict that plaintiff Lemos take nothing, and the court of appeals affirmed the judgment. 659 S.W.2d 145. We reverse the judgments of the courts below and remand the cause for trial.

On the afternoon of December 27, 1979, plaintiff Mel Lemos was a passenger in his Volkswagen that was being driven by Ignacio Arrellano. The Lemos vehicle was proceeding in an easterly direction in the right hand lane of Leopard Street in Corpus Christi. It was following a six-wheel Seven-Up truck driven by Alfred Montez. The Seven-Up truck turned to the right, that is to the south, on Mexico Street, and Arrella-no followed in the Volkswagen, making the same turn to the right on Mexico. There were no other moving vehicles going either direction on Mexico Street south of Leopard.

After turning south on Mexico, the Volkswagen proceeded some thirty or thirty-five feet and stopped on the traveled part of Mexico Street. These facts are not disputed. There is dispute, though not material, about the movement of the Seven-Up truck. Lemos testified that the Volkswagen stopped because the Seven-Up truck began backing northward on Mexico toward the Volkswagen. Lemos said that the red rear light of the truck was flashing, and the truck backed into and struck the Lemos Volkswagen directly in front, damaging the Volkswagen and injuring him.

Defendant Montez recalled the facts differently. He said he turned right from Leopard Street onto Mexico Street, but instead of driving straight down Mexico Street, he kept turning the truck to the right to enter a service station on the southwest corner of Leopard and Mexico, where he was going to purchase gasoline. He said that he did not drive the truck close enough to the pump, so he backed the Seven-Up truck in an easterly direction out of the service station property and into Mexico Street. He intended to drive back into the station to position the truck closer to the pump. He testified that while backing, there was an area behind the large Seven-Up truck which he could not see in his rear view mirrors. Montez explained that he heard the sound of the Volkswagen horn and slammed on the brakes, but the vehicles collided. He testified that he did not see the Volkswagen until after the accident.

The undisputed evidence is that Montez was backing the truck blindly in whatever direction it was moving. Montez’ excuse for the collision was that four or five cars parked in the service station property along Leopard Street obscured his vision. Those cars, however, were north of the Seven-Up truck, not east of it. They could not possibly have obscured Montez’ vision in the direction in which he was backing the truck.

By adding the option of “neither” to the broad negligence — proximate cause special issue, the trial court in effect submitted a special issue on unavoidable accident. Plaintiff Lemos objected that it was an inferential rebuttal issue and that there was no evidence of unavoidable accident. The trial court also overruled Lemos’ objection to the instruction that the happening of a collision is not evidence of negligence. The instruction and special issue submitted to the jury, and its response, were as follows:

The mere happening of a collision of motor vehicles is not evidence of negligence. An occurrence may be an unavoidable accident, that is, an event not proximately caused by the negligence of any party to it.
⅜ ⅜ sfc ⅜ * ⅜
Whose negligence, if any, do you find from a preponderance of the evidence proximately caused the collision of December 27, 1979 made the basis of this suit?
Answer with one of the following:
(a) Alfred R. Montez
(b) Ignacio Nat Arrellano
(c) Both
(d) Neither
Answer: (d) Neither

Since 1973, the use of broad issues in the trial of cases has been approved. Rule 277, Tex.R.Civ.P., specifically authorizes broad submissions. In Mobil Chemical Co. v. Bell, 517 S.W.2d 245 (Tex.1974), this court expressly approved broad negligence issues. We have permitted the submissions of negligence and proximate cause issues in a single issue. Members Mutual Insurance Co. v. Muckelroy, 523 S.W.2d 77 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ ref’d n.r.e.). We later approved the Muckelroy submission in Scott v. Atchison, Topeka & Santa Fe Ry. Co., 572 S.W.2d 273 (Tex.1978). The Muckelroy charge did not, however, include in its alternative jury answers the blank for an answer of “Neither.”

In the subsequent case of Pate v. Southern Pacific Transportation Co., 567 S.W.2d 805 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ ref’d n.r.e.), the court in-eluded among its inquiries, after the broad issue, spaces for answers as to the negligence of each party, followed by a blank space to indicate “No one.” On appeal, the attack upon the judgment was addressed only to the broad form of the issue, but not to the alternative answer. The court of appeals correctly approved the submission. Because there was no objection or point on appeal that complained of what might be termed an unavoidable accident issue, the court of appeals did not address it.

Prior to our decision in Yarborough v. Berner, 467 S.W.2d 188 (Tex.1971), a plaintiff was required to submit an issue and to obtain a finding that negated unavoidable accident. We held in Yarborough that the special issue inquiring about unavoidable accident should not be submitted because it was an inferential rebuttal issue that required the plaintiff to prove the nonexistence of an affirmative defense. We also said that the issue had produced confusion, was a trap for the jury, sometimes created conflicts in jury answers, and was one of the issues that defeated a simple submission of issues to juries. Since 1971, the rule has been that an issue asking a jury about unavoidable accident is improper. Rule 277, Tex.R.Civ.P., expressly prohibits the submission of inferential rebuttal issues.

In this case, the trial court has submitted, in new form, an issue that compels the plaintiff to negate unavoidable accident. To prevail, plaintiff Lemos had to negate a finding of “Neither.” A finding of “Neither” equals unavoidable accident which is defined as “an event not proximately caused by the negligence of any party to it.” The inquiry is a return to the condemned inferential rebuttal issue.

The choices that should have been submitted to the jury in this case are subdivisions (a) and (b) of the issue, that is, whether defendant Montez’ negligence proximately caused the collision and (b) whether Arrellano’s negligence proximately caused the collision. The jury can find that the negligence of either, neither, or both caused the accident by their answers to subdivisions (a) and (b). Subdivisions (c) “Both” and (d) “Neither” are not proper whether there is evidence of unavoidable accident or not. A proper way to submit the issue when there is evidence that neither driver proximately caused the accident would be to include the correct definition of “unavoidable accident” and ask:

Whose negligence, if any, do you find from a preponderance of the evidence proximately caused the collision of December 27, 1979 made the basis of this suit?
Yes No
(a) Alfred R. Montez _ _
(b) Ignacio Nat Arrellano _ _

The inquiry about “Neither” should not have been submitted for another reason. Unavoidable accident was not raised by the evidence in this case and the court erred in giving the instruction. The argument of defendants Montez and Seven-Up was that Montez’ view toward Leopard Street, that is to the north, was obstructed by parked cars. The operative facts about the collision show that when Montez began to back into Mexico Street he was looking or should have been looking to his rear, which was toward the east. His lookout or view, according to his own testimony, was in the direction toward which he was blindly backing, that is, to the east toward Mexico Street. If, while backing, Montez was looking in the wrong direction toward Leopard Street, he was not keeping a proper lookout as a matter of law. The parked cars toward the north had nothing to do with Montez’ view toward the east. This is not a fact situation for an instruction concerning unavoidable accident and, on remand, upon similar facts, the instruction should not be given. This case concerned only negligence. Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952); Hicks v. Brown, 136 Tex. 399, 151 S.W.2d 790 (1941).

Plaintiff Lemos also objected to the court’s charge that appended to the correct definition of unavoidable accident the words, “[T]he mere happening of a collision of motor vehicles is not evidence of negligence.” The correct definition of unavoidable accident has been settled since our decision in Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 385 (1952). The definition used in Bailey is carried forward in our Pattern Jury Charges. 1 STATE BAR OF TEXAS, TEXAS PATTERN JURY CHARGES § 3.03 (1969). This court has not indicated to the bench and bar that the definition should be embellished with the addendum.

The extra instruction is also wrong. Res ipsa loquitur cases exemplify situations in which negligence can be inferred from the happening itself. Backing blindly into a vehicle that is lawfully headed in the right direction can be some evidence of negligence. A collision between an unoccupied vehicle that rolls down an inclined driveway into another vehicle or a child may be evidence that brakes were defective or not set. The court of appeals cites as authority for its approval of the trial court’s. instruction Molina v. Payless Foods, Inc., 615 S.W.2d 944, 947 (Tex.Civ.App.—Houston [1st Dist.] 1981, no writ). The instruction in Molina, unlike the one in this case, was, “the mere occurrence of an accident does not necessarily imply negligence.” There is a material difference between an instruction that the happening “is not” negligence and an instruction that the happening “does not necessarily imply” negligence. The jury does not need either instruction. This court has treated addenda to the charge as impermissible comments that tilt or nudge the jury one way or the other. Acord v. General Motors Corp., 669 S.W.2d 111 (Tex.1984); Gulf Coast State Bank v. Emenhiser, 562 S.W.2d 449 (Tex.1978); see Irick v. Andrew, 545 S.W.2d 557 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref d n.r.e.); Levermann v. Cartall, 393 S.W.2d 931 (Tex.Civ.App.—San Antonio 1965, writ ref’d n.r. e.).

Prior to 1913 there was such a gradual accumulation of instructions considered helpful to juries, that an errorless charge became almost impossible. In 1913, to escape from the unsuccessful general charge, the Texas Legislature enacted article 1984a. Submission of Special Issues Act, ch. 59, § 1, 1913 Tex.Gen.Laws 113. The new procedure required the use of special issues that would be submitted separately and distinctly.

In 1973, after sixty years, it became apparent that Texas courts, while escaping from the voluminous instructions to jurors, had substituted in the place of instructions, a jury system that was overloaded with granulated issues to the point that jury trials were again ineffective. The Supreme Court in 1973 amended Rule 277, Tex.R. Civ.P., by abolishing the requirement that issues be submitted distinctly and separately. Since that time, broad issues have been repeatedly approved by this court as the correct method for jury submission.

This court’s approval and adoption of the broad issue submission was not a signal to devise new or different instructions and definitions. We have learned from history that the growth and proliferation of both instructions and issues come one sentence at a time. For every thrust by the plaintiff for an instruction or an issue, there comes a parry by the defendant. Once begun, the instructive aids and balancing issues multiply. Judicial history teaches that broad issues and accepted definitions suffice and that a workable jury system demands strict adherence to simplicity in jury charges.

We reverse the judgments of the courts below and remand the cause to the trial court.


author: ROBERTSON, Justice.

text:
    CITY OF COLLEGE STATION, Petitioner, v. TURTLE ROCK CORPORATION, Respondent.
    No. C-2918.
    Supreme Court of Texas.
    Nov. 21, 1984.

      Lowell F. Denton, City Atty., Neeley C. Lewis, Asst. City Atty., College Station, for petitioner.
    Lawrence, Thornton, Payne, Watson & Kling, Bill Payne, Bryan, for respondent.
   ROBERTSON, Justice.

This is a suit for declaratory judgment brought by Turtle Rock Corporation, a real estate developer, challenging the constitutionality and validity of the City of College Station’s ordinance requiring park land dedication or money in lieu thereof as a condition to subdivision plat approval.

The trial court granted summary judgment for Turtle Rock. The court of appeals affirmed, holding that College Station’s ordinance was a “taking” without compensation in violation of TEX. CONST, art. 1 § 17 and that it violated TEX.REV. CIV.STAT.ANN. art. 6081e and art. 1175. 666 S.W.2d 318. We reverse the judgments of the courts below and remand this cause to the trial court.

College Station is a home rule city, and Turtle Rock Corporation is a real estate development corporation with a project located within the city limits. At issue is College Station’s Ordinance No. 1265, the park land dedication ordinance. The stated purpose of this ordinance is “to provide recreátional areas in the form of neighborhood parks as a function of subdivision development _” Basically, the ordinance requires, as a condition precedent to subdivision plat approval, that the developer dedicate land to the city for park purposes. The ordinance contains provisions to the following effect:

(1) that a developer must grant to the city a fee simple dedication of one acre of land for each 133 proposed dwelling units;
(2) that a developer must pay cash in lieu of land if fewer than 133 units are proposed;
(3) that the city may decide whether to accept the dedication or to require cash payment if between one and five acres of land are to be dedicated;
(4) that the developer may elect to pay cash, subject to a city council veto, in lieu of any dedication required.

The ordinance further requires that the city establish a special fund for the deposit of all sums paid in lieu of land dedication. These sums must be expended within two years for the acquisition or development of a neighborhood park; otherwise the owners of property in the subdivision are entitled to a refund.

Turtle Rock elected to pay $34,200.00 in lieu of dedicating the required amount of land. Upon agreement between the parties, this amount was placed in an escrow fund, pending the resolution of this lawsuit.

CONSTITUTIONAL CHALLENGE

The Texas Constitution, article 1, section 17 requires that adequate compensation be paid when private property is taken for public use. However, all property is held subject to the valid exercise of the police power. Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475, 478 (1934). A city is not required to make compensation for losses occasioned by the proper and reasonable exercise of its police power. Lombardo, 73 S.W.2d at 479; Edge v. City of Bellaire, 200 S.W.2d 224, 226 (Tex.Civ.App.—Galveston 1947, writ ref’d).

Recognizing the illusory nature of the problem, we have previously refused to establish a bright line for distinguishing between an exercise of the police power which does constitute a taking and one which does not. City of Austin v. Teague, 570 S.W.2d 389, 391 (Tex.1978); DuPuy v. City of Waco, 396 S.W.2d 103, 107 (Tex.1965). Instead, the eases demonstrate that a careful analysis of the facts is necessary in each case of this kind.

There is ... no one test and no single sentence rule .... The need to adjust the conflicts between private ownership of property and the public’s interests is a very old one which has produced no single solution.

Teague, 570 S.W.2d at 392. See also Goldblatt v. Town of Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130 (1962); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387-388, 47 S.Ct. 114, 118, 71 L.Ed. 303 (1926). The question of whether a police power regulation is proper or whether it constitutes a compensable taking is a question of law and not of fact. Hunt v. City of San Antonio, 462 S.W.2d 536, 539 (Tex.1971); Dupuy, 396 S.W.2d at 110; City of Bellaire v. Lamkin, 159 Tex. 141, 317 S.W.2d 43, 45 (1958); City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477, 481 (1955). Nevertheless, we have held that the court must consider all of the circumstances. Hunt, 462 S.W.2d at 539; Lamkin, 317 S.W.2d at 45; Watkins, 275 S.W.2d at 481; Edge, 200 S.W.2d at 227.

The eases provide examples of numerous factors that have proven useful in resolving particular police power questions, but ultimately a fact-sensitive test of reasonableness is required. See Teague; City of University Park v. Benners, 485 S.W.2d 773 (Tex.1972), appeal dismissed 411 U.S. 901, 93 S.Ct. 1530, 36 L.Ed.2d 191 (1973); DuPuy; City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218 (1958).

By contrast, the court of appeals in effect held that all park land dedication ordinances are per se invalid. The court stated its holding as follows:

[A] required dedication of land for streets and waterworks clearly ‘bears a substantial relation to the safety and health of the community’ while a required dedication for park land does not _ We note that parks are not necessarily beneficial to a community or neighborhood.

666 S.W.2d at 321.

The issue in this appeal is not whether parks are always and necessarily a benefit to the community; the issue is whether Turtle Rock met its burden for summary judgment of showing that College Station’s ordinance is invalid as a matter of law.

A city may enact reasonable regulations to promote the health, safety, and general welfare of its people. Ellis v. City of West University Place, 141 Tex. 608, 175 S.W.2d 396 (1943); Lombardo, 73 S.W.2d at 478. Thus, in order for this ordinance to be a valid exercise of the city’s police power, not constituting a taking, there are two related requirements. First, the regulation must be adopted to accomplish a legitimate goal; it must be “substantially related” to the health, safety, or general welfare of the people. Watkins, 275 S.W.2d at 481; Lombardo, 73 S.W.2d at 479. Second, the regulation must be reasonable; it cannot be arbitrary. Benners, 485 S.W.2d at 778; Lombardo, 73 S.W.2d at 479.

The presumption favors the reasonableness and validity of the ordinance. An “extraordinary burden” rests on one attacking a city ordinance. Hunt, 462 S.W.2d at 539.

The concept of the public welfare has a broad range. Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954).

If reasonable minds may differ as to whether or not a particular zoning ordinance has a substantial relationship to the public health, safety, morals, or general welfare ... the ordinance must stand as a valid exercise of the city’s policy power.

Hunt, 462 S.W.2d at 539. Numerous other jurisdictions have upheld park land dedication ordinances as being legitimate exercises of the police power. See, e.g., Associated Home Builders of the Greater East Bay, Inc. v. City of Walnut Creek, 4 Cal.3d 633, 94 Cal.Rptr. 630, 484 P.2d 606, appeal dismissed, 404 U.S. 878, 92 S.Ct. 202, 30 L.Ed.2d 159 (1971); Home Builders Ass’n of Greater Kansas City v. City of Kansas City, 555 S.W.2d 832 (Mo.1977); Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 394 P.2d 182 (1964); Jenad, Inc. v. Village of Scarsdale, 18 N.Y.2d 78, 271 N.Y.S.2d 955, 218 N.E.2d 673 (1966); Banberry Development Corp. v. South Jordan City, 631 P.2d 899 (Utah 1981); Jordan v. Village of Menomonee Falls, 28 Wis.2d 608, 137 N.W.2d 442 (1965), appeal dismissed, 385 U.S. 4, 87 S.Ct. 36, 17 L.Ed.2d 3 (1966). Although we are not bound by these authorities, they are persuasive. We therefore hold that College Station’s ordinance is at least one about which reasonable minds might differ. The court of appeals erred in holding that, as a matter of law, a requirement for dedication of park land does not bear a substantial relation to the health, safety, or general welfare of the community.

The court of appeals relied upon the case of Berg Development Co. v. City of Missouri City, 603 S.W.2d 273 (Tex.Civ.App.—Houston [14th Dist.] 1980, writ ref’d n.r.e.). However, the Missouri City ordinance did not preclude the city from exacting funds from a developer and then failing to use the money to provide parks for the assessed development. Therefore, that park dedication ordinance placed a special economic burden upon the developer and ultimately upon the home buyers with no guarantee that they would benefit from the exaction. This defect made the Missouri City ordinance arbitrary and therefore unreasonable and unconstitutional.

College Station’s ordinance, unlike that of Missouri City, specifically identifies the legitimate goal of providing neighborhood parks for developments, and it requires that the land or money be used only for that purpose within a reasonable time period.

The ordinance does not permit the city to initiate action that compels a dedication of park land. As long as the land is not developed, the city requires nothing. It is only when a developer chooses to develop land that the city can step in to impose reasonable regulations upon that development.

The transfer of title to a small portion of the property does not of itself create a compensable taking. Texas courts have expressly recognized that municipalities can require the “donation” of streets, alleys, water mains, and sewer mains as a condition to subdivision development.

The overwhelming weight of authority is that such donation is not a taking of ... property for public use without reimbursement. The exercise of governmental discretion to impose reasonable regulations as a condition for use of property, or as a condition precedent to the subdivision of land, does not amount to a taking of private property without just compensation.

Crownhill Homes, Inc. v. City of San Antonio, 433 S.W.2d 448, 460 (Tex.Civ.App.—Corpus Christi 1968, writ ref’d n.r.e.).

More than fifty years ago, a Detroit developer made a similar argument about a city ordinance requiring dedication of streets as a condition to subdivision plat approval. Ridgefield Land Co. v. City of Detroit, 241 Mich. 468, 217 N.W. 58 (1928). He asserted that, of necessity, the street dedication requirement constituted a taking of private property without compensation. The Michigan Supreme Court ruled that the street dedication requirement was a reasonable exercise of the police power. Id. Likewise, in a case which emphasized the importance of considering all the circumstances and conditions, the United States Supreme Court made the following observations about the flexibility of the police power:

Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive.

Village of Euclid v. Ambler Realty Company, 272 U.S. 365, 387, 47 S.Ct. 114, 118, 71 L.Ed. 303 (1926).

College Station’s ordinance requires that only a small portion of a developer’s subdivision tract be dedicated to serve park needs. It does not render the developer’s entire property “wholly useless” nor does it cause a “total destruction” of the entire tract’s economic value. See Teague, 570 S.W.2d at 393. It is a regulatory response to the needs created by the developer’s use of the land.

On its face, this ordinance is not inherently different from other types of municipal land use regulations such as density controls and street dedication requirements. It is possible, of course, that the ordinance may be unduly harsh or create a disproportionate burden in the case of a particular subdivision or developer. We merely hold that College Station’s park land dedication ordinance is not unconstitutionally arbitrary or unreasonable on its face.

Turtle Rock did not present any summary judgment evidence to show that the ordinance is unreasonable or arbitrary in this particular application; therefore, we remand the cause to the trial court. In making its determination, the court must consider whether there is a reasonable connection between the increased population arising from the subdivision development and the increased park and recreation needs in this neighborhood. The burden rests on Turtle Rock to demonstrate that there is no such reasonable connection.

Both need and benefit must be considered. Without a determination of need, a city could exact land or money to provide a park that was needed long before the developer subdivided his land. Similarly, unless the court considers the benefit, a city could, with monetary exactions, place a park so far from the particular subdivision that the residents received no benefit. See Pavelko, Subdivision Exactions: A Review of Judicial Standards, 25 Wash.UJ. Urb. & Contemp.L. 269, 289 (1983). The following are examples of the types of evidence which the court may consider: size of lots in the subdivision, the economic impact on the subdivision, the amount of open land consumed by the development.

This type of “reasonable connection” analysis will ensure that the subdivision receives relief from a perceived need, and it will effectively constrain the reach of the municipality. It is consistent with the kind of “reasonableness” analysis required by DuPuy and Teague, and the presumption of validity is consistent with the approach that Texas courts have traditionally taken when considering the constitutionality of municipal land use ordinances. We also note that this type of analysis has been commonly used in other jurisdictions examining the validity of park land dedication ordinances. See the cases from other jurisdictions cited above.

The position taken by the American Law Institute also supports this type of “reasonable connection” analysis. They recommended that park dedication requirements be utilized and summarized their position as follows:

The Code adopts the position that developers may be required to provide streets and utilities but only of a quality or quantity reasonably necessary for the proposed, development_ Similarly, a developer may be required to provide land or fees for parks or other open space. Again, however, the Code limits the extent of such demands to that reasonably allocable to the development— measured in terms of the need created by the development.

Model Land Development Code § 2-103 at 38 (1976).

STATUTORY CHALLENGE

The court of appeals also invalidated the College Station ordinance on statutory grounds. The court construed articles 1175 and 6081e, TEX.REV.CIV.STAT. ANN., as “enabling” statutes which limit the proper methods by which Texas cities may obtain park land and which exclude the possibility of a city acquiring parks under its police power.

The court’s construction of these statutes is at odds with Texas authority on the powers of home rule cities. Home rule cities have “full power of self-government” and “look to the acts of the legislature not for grants of power ... but only for limitations on their powers.” Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641 (Tex.1975). The intention of the legislature to impose such limitations must appear with “unmistakable clarity;” and if the limitations arise by implication, the provisions of the law must be “clear and compelling to that end.” Id., at 645.

We do not accept the conclusion reached by the court of appeals that these statutes preclude College Station’s power to enact and enforce the park land dedication ordinance. Article 1175 expressly states that the enumerated powers therein are “among the other powers that may be exercised by any [home rule] city.” Article 1176, TEX.REV.CIV.STAT.ANN., also provides that the enumeration of powers in article 1175 shall never be construed as an implied limitation on home rule powers. See also Lower Colorado River Authority, 523 S.W.2d at 644. Likewise, article 6081e does not “unmistakably” limit the power of a home rule city to require neighborhood park land dedication in connection with subdivision regulation. Article 6081e also applies to counties and general law cities, and thus serves as a grant of specific powers to these non-home rule entities.

CONCLUSION

College Station’s park land dedication ordinance, on its face, is not unconstitutional nor is it invalid on statutory grounds. Turtle Rock did not present any summary judgment evidence to show that the ordinance was arbitrary or unreasonable as applied to it. Therefore, summary judgment was improper because Turtle Rock did not prove its cause of action as a matter of law. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979).

We reverse the judgments of the courts below and remand to the district court for trial in accordance with the guidelines set forth in this opinion.


author: PER CURIAM.

text:
    NORTHWEST SIGN COMPANY, an Idaho Corporation, Petitioner, v. JACK H. BROWN & COMPANY, INC., Respondent.
    No. C-3491.
    Supreme Court of Texas.
    Nov. 21, 1984.
    Rehearing Denied Dec. 19, 1984.
    Bertrán T. Bader, III, Dallas, for petitioner.
    Goins & Underkofler, Steven E. Clark, Dallas, for respondent.
   PER CURIAM.

This is an appeal from the reversal of an action to enforce a foreign judgment and the dismissal of the writ of garnishment filed in the enforcement action. The trial court held that the suit to enforce the foreign judgment was valid because the service of process on the original defendant in the foreign action was proper. Consequently, the writ of garnishment filed for satisfaction of the judgment was proper. The court of appeals reversed the enforcement and dismissed the garnishment action. 677 S.W.2d 135 (1984). Pursuant to TEX.R.CIV.P. 483, we grant Northwest Sign Company’s application for writ of error and, without hearing oral argument, reverse the judgment of the court of appeals and affirm the judgment of the trial court enforcing the foreign judgment and allowing the garnishment of funds in satisfaction of the judgment.

There are two corporations involved here: (1) Signgraphies, Inc., whose registered agent for service of process is Jack H. Brown; and (2) Jack H. Brown & Company, which does business under the assumed name of Signgraphics, whose registered agent for service of process is also Jack H. Brown. In November, 1981, Northwest Sign Company, an Idaho Corporation, obtained a judgment in Idaho in an action styled, “NORTHWEST SIGN COMPANY, an Idaho Corporation v. SIGN-GRAPHICS, a foreign corporation; John Does I through X d/b/a SIGNGRAPHICS, a proprietorship or partnership." Service of process was executed upon “Sign-graphics, by delivering to its registered agent for service Jack H. Brown, on the 10th day of October, 1981 at 11:38 a.m.” The record clearly shows that service was had upon Signgraphics. The judgment obtained as a result of this lawsuit was filed in Texas on April 14, 1982, in the suit to enforce the foreign judgment. On January 14, 1983, Northwest Sign Company garnished the account of Signgraphics, Inc., at the Republic National Bank of Dallas. Republic National Bank responded that they had an account styled Jack H. Brown & Company, d/b/a Signgraphics, but no account styled Signgraphics, Inc. As a result, the foreign judgment was amended on March 25, 1983, to add “Jack H. Brown & Co., d/b/a Signgraphics, a Texas corporation” in place of John Doe I for the suit to enforce and on the judgment itself.

Jack Brown & Company then moved to vacate the foreign judgment and to dissolve the writ of garnishment. The trial court properly overruled both motions. On appeal the court of appeals held that Jack H. Brown was the only entity served, with process in the Idaho suit and that he was served as the registered agent for “Sign-graphics, Inc.” Therefore, the court held that since there was no valid service of Jack H. Brown & Company, d/b/a Sign-graphics, the Idaho judgment and the Texas suit to enforce same must fail. This is not only an incorrect statement of the facts but also a contradiction of the plain meaning of TEX.R.CIY.P. 28.

The service of process in the Idaho suit showed on its face that Jack H. Brown was served as agent for Signgraphics. The Idaho complaint also named the defendants as “Signgraphics, Inc., ... a foreign corporation” and “John Does I through X ... unknown partners or unknown proprietors doing business under the name of Sign-graphics.” Nowhere does “Signgraphics, Inc.” appear on the judgment or on the complaint.

In addition, TEX.R.CIV.P. 28 provides that any partnership, unincorporated association, private corporation or individual doing business under an assumed name may be sued in his assumed or common name. The record reflects that Jack H. Brown & Company had fair and adequate notice of the lawsuit since it was sued in its assumed name of Signgraphics and service of process was had on Jack H. Brown, the registered agent for Jack H. Brown & Company and for Signgraphics, the assumed name of the company. The court of appeals erred in holding that there was no service of Jack H. Brown & Company, d/b/a Signgraphics.

We conclude that the opinion of the court of appeals conflicts with TEX.R.CIV.P. 28. Without hearing oral argument, we grant Northwest Sign Company’s application for writ of error, reverse the judgment of the court of appeals, and affirm the judgment of the trial court enforcing the foreign judgment and the writ of garnishment. TEX.R.CIV.P. 483.


author:
MILLER, Judge.
      TEAGUE, Judge,

text:
    Wesley Valsom JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 118-84.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 21, 1984.

      Charles Campion, Don W. King, Jr., San Antonio, for appellant.
    Bill M. White, Former Dist. Atty., Wayne Hampton and Alan E. Battaglia, Former Asst. Dist. Attys., Sam D. Millsap, Jr., Dist. Atty., and Charles Estee, Asst. Dist. Atty., San Antonio, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

This is an appeal from a conviction for sexual abuse of a child pursuant to former V.T.C.A. Penal Code, § 21.10. The trial court assessed punishment at eight years confinement in the Texas Department of Corrections. On direct appeal, the San Antonio Court of Appeals affirmed the conviction in an unpublished opinion. We granted the appellant’s petition for discretionary review to examine the procedure employed by the trial court in assessing appellant’s punishment. We find that the trial judge abused his discretion in setting punishment and we remand the case to the trial court for a new assessment of punishment.

The record reflects that appellant waived trial by jury and entered a plea of not guilty. On December 26, 1979, trial commenced in the 187th Judicial District Court of Bexar County before the Honorable John Benavides. At the conclusion of the evidence, Judge Benavides found the appellant guilty of the offense of sexual abuse of a child. At that time, counsel for appellant requested the trial court postpone hearing the punishment evidence until a later date. Defense counsel represented to the court that there were other witnesses not presently available who could furnish evidence on appellant’s behalf. Defense counsel also requested that a comprehensive presentence investigation report be prepared and studied by the court, as appellant had filed an application for probation. Judge Benavides deferred judgment on punishment pending a presentence investigation and recessed the proceedings.

The record reflects that the Honorable John Benavides died prior to assessing punishment in this case, and the next proceeding shown in the statement of facts occurred on January 15, 1981. In the proceeding, no evidence was offered by either the State or the appellant. The Honorable Pat Priest entered a judgment assessing appellant’s punishment at eight years confinement in the Texas Department of Corrections. Judge Priest denied appellant’s application for probation, as well as his motion for mistrial. Formal sentence was pronounced on January 29, 1981, ordering that appellant be confined in the Department of Corrections for not less than two years nor more than eight years. Appellant’s motion for new trial was also denied on January 29, 1981.

Appellant complains that the trial court erred in assessing punishment, over appellant’s objection, without having reviewed the transcript of the evidence presented at the guilt-innocence stage of trial. More specifically, appellant contends that the trial judge abused his discretion by assessing punishment based solely on the probation officer’s presentence investigation report. We agree.

The record reflects that during the January 15, 1981, punishment hearing, appellant’s counsel asked Judge Priest whether a transcript of the proceedings before Judge Benavides had been prepared. Judge Priest responded that he did not have access to the transcript of the trial. Appellant’s counsel then objected, in connection with his motion for mistrial, to the trial court’s action in fixing punishment in that manner.

It is undisputed that the trial court assessed punishment in this case without reviewing the transcript of the testimony adduced at the guilt-innocence stage of trial. Further, no evidence was presented by the State or the appellant at the punishment hearing. It follows, therefore, that the sole basis for the trial court’s assessment of punishment was derived from the pre-sentence investigation report prepared by the probation office. We now turn to consider whether, at the time of the trial of this case, a presentence investigation report was a proper tool for the trial court to employ in determining the punishment to be assessed.

Early on, Presiding Judge Onion expressed his view on the use of presentence reports in Rodriguez v. State, 502 S.W.2d 13 (Tex.Cr.App.1973), stating that:

“The primary purpose of the pre-sen-tence report is to provide the trial court with succinct and precise information upon which to base a rational decision on the motion for probation.”

Judge Onion’s opinion on the proper use of a presentence report grew stronger in 1978 when he authored concurring opinions in Bean v. State, 563 S.W.2d 819, 821 (Tex.Cr.App.1978), and Nunez v. State, 565 S.W.2d 536, 538 (Tex.Cr.App.1978). In those cases, the trial court bifurcated a plea of guilty trial, deferring punishment “in order to obtain a presentence investigation.” Judge Onion took the occasion to “add a word of caution to trial judges about the use of pre-sentence reports to determine punishment.” In Bean, supra, he opined:

“The use of presentence investigation reports is to be commended. The only reference to such reports, however, to be found in the Code of Criminal Procedure is in Article 42.12, Section 4, V.A.C.C.P. The proper use of such reports is to enable the trial court to pass on the issue of probation, not to determine the punishment to be assessed.”

Judge Onion reiterated his views in Nunez, supra. After all, it should be remembered that these reports often contain reports of arrests not resulting in final convictions, McNeese v. State, 468 S.W.2d 800 (Tex.Cr.App.1971); Valdez v. State, 491 S.W.2d 415 (Tex.Cr.App.1973), reports of pending indictments, Clay v. State, 518 S.W.2d 550 (Tex.Cr.App.1975), hearsay statements, Brown v. State, 478 S.W.2d 550 (Tex.Cr.App.1972), or unseen psychological reports, Rodriguez, supra. Eyeing the possible contents of a presentence report, Judge Onion declared:

"While many of these matters can be considered by the court in passing upon the issue of probation, they would not be considered admissible on the issue of guilt or upon the issue of the punishment. [footnote omitted] ... If there be a pre-sentence report, it should be used to determine the question of granting probation alone. This would avoid any argument that in assessing punishment the court took into consideration arrest reports not resulting in final convictions, extraneous offenses, hearsay, rumors, etc., which frequently find their way into pre-sentence reports and which should not be used in determining punishment.” Nunez, supra at 539-40.

Two months later, however, an entirely different panel decided Angelle v. State, 571 S.W.2d 301 (Tex.Cr.App.1978), In An-gelle, the trial court employed substantially. the same procedure as in Bean, supra. Judge Roberts espoused the view that “whenever an issue of the proper punishment is present a presentence investigation and report may be utilized to assist the trial judge in the exercise of his discretion.” In October of 1978, the Court’s Motion for Rehearing En Banc in Angelle, was denied.

The issue was revisited in Mason v. State, 604 S.W.2d 83 (Tex.Cr.App.1979), where the trial court again bifurcated a guilty plea trial, deferring punishment until it reviewed the probation officer’s presen-tence investigation report. A panel opinion held that “[although there is some division in thought as to the use of the presentence investigation report ... it was not error for the trial court to recess the proceedings to obtain the presentence investigation report.” On April 2, 1980, the Appellant’s Motion for Rehearing En Banc in Mason was denied.

Judge Clinton, however, dissented to the denial of Appellant’s Motion for Rehearing, Mason, supra at 84-91. Judge Clinton noted that utilizing a presentence investigation report to assess punishment developed as a “local common law procedure” and was frequently employed without objection by the defendant. Judge Clinton also observed in his opinion that ordering a pre-sentence report was authorized only by the Adult Probation and Parole Act, but utilizing it in assessing punishment was not authorized at all. He found that the use of the presentence investigation report via this “local common law procedure” was not permissible. Mason, supra at 88. In Judge Clinton’s view, “a trial court is not authorized to order, receive and consider a presentence investigation report in assessing punishment by confinement. In sum, the local common law procedure utilized here should be rejected by the Court.” Mason, supra at 90.

Why, then, was the procedure not rejected by the Court? Judge Clinton enlightens us in footnote 21 of Mason, supra at 90.

“... I take it, though, the Court has concluded that by being agreeable then our appellant may not protest now, and we must await the day when an accused refuses to comply with the local common law procedure.”

This failure to object to the use of a presentence report in determining punishment grew in significance in the next case to address the issue: Green v. State, 617 S.W.2d 253 (Tex.Cr.App.1981). In Green, a panel opinion authored by Presiding Judge Onion, and joined by Judge Clinton and Judge Tom Davis, the defendant contended that the trial court committed reversible error by utilizing a presentence investigation report to assess the punishment. After noting that the “proper use of such reports is to enable the trial court to pass on the issue of probation, not to determine the punishment to be assessed,” Judge Onion went to the crucial aspect of the case.

“There was no objection at the time, and the pre-sentence report, made available to the appellant, was not made a part of the appellate record. Appellant makes no assertion that there were improper matters in the report which the court should not have considered.
In light of the pending motion for probation, the failure to object, and all the other facts and circumstances, appellant’s contention is without merit.

The telling footnote 3, however, reflects Judge Onion’s true position on the matter.

This writer maintains the strong belief that if trial courts would assess punishment at the penalty stage of the trial, and utilize the pre-sentence report only to determine the issue of probation these claims on appeal that the court considered otherwise inadmissible matters contained in the report in assessing punishment would be eliminated.”

Cognizant of this “division in thought” as to the proper use of a presen-tence investigation report prior to the 1981 amendment to Article 37.07, § 3(d), Y.A.C. C.P., we now turn to the ease sub judice. We note at the outset that, unlike the defendants in Mason and Green, supra, and the defendant in Tamminen v. State, 653 S.W.2d 799 (Tex.Cr.App.1983), the appellant in this case did object to the use of the presentence report as a basis for determining punishment. The appellant in this case does assert that there are improper matters contained in the report, Cf. Green, supra at 255, and he has made the report part of the appellate record, Cf. Green, supra at 255. In this case, we can find that the punishment actually assessed by the trial court was founded independently in the presentence investigation report, Cf. Mason, supra at 90-91. In short, the day has come “when an accused refuse[d] to comply with the local common law procedure,” Mason, supra at 90, n. 21.

Bearing this in mind, we agree with Judge Clinton’s observation in Mason, supra, that Angelle is sui generis. We, too, cannot perceive any explication or rationale to support the finding and holding of An-gelle. Accordingly, Angelle, supra, is overruled.

We hold, therefore, that the trial court’s use, over objection, of a presentence investigation report in determining what punishment will be assessed, prior to the effective date of the 1981 amendment to Article 37.-07, § 3(d), Y.A.C.C.P., was error. Next must come the determination of the harmfulness of that error.

In this case, the judge assessing punishment did not have access to the transcript of the testimony at the guilt-innocence phase of trial. No evidence was elicited at the punishment hearing. Although a pre-sentence report was properly ordered and utilized by the court in determining whether appellant should receive probation, we have held that the trial court could not consider the presentence report in determining appellant’s punishment. The sentencing judge then was left with nothing to base his determination as to punishment on except the naked fact that appellant had been found guilty of the offense of sexual abuse of a child. This was the heart of appellant’s objection at trial and our final question for review.

In our review of a trial judge’s determination of the appropriate punishment in any given case a great deal of discretion is allowed the sentencing judge. Moreover and germane to the case at bar, it is proper for a different judge to sit at the punishment hearing and his decision as to punishment will not be disturbed on appeal absent a showing of abuse of discretion and harm. Hogan v. State, 529 S.W.2d 515 (Tex.Cr.App.1975); Ben-Schoter v. State, 634 S.W.2d 28 (Tex.App. Beaumont 1982). It is also the general rule that as long as a sentence is within the proper range of punishment it will not be disturbed on appeal. Nunez v. State, 565 S.W.2d 536 (Tex.Cr.App.1978); Letterman v. State, 171 S.W.2d 349 (Tex.Cr.App.1943). However, in all of the cases dealing with review in this area there was at least some evidence or facts available to the court and upon which the court could have relied in assessing punishment. We can find no case sanctioning, over timely objection, a particular punishment decision in which there was no evidence of the offense, no information about the defendant, no punishment evidence, no plea bargain; in short, nothing at all upon which the punishment decision could have been based. We decline to sanction such procedure and hold that under the limited facts of this case the trial judge abused his discretion when, over proper objection, he determined the appellant’s punishment. Such determination was a violation of Art. 1.04, V.A.C.C.P., and Art. 1 Sec. 19 of the Texas Constitution constituting reversible error.

Under our bifurcated trial system, if a reversible error occurs at the penalty hearing before the trial judge alone, the case on appeal may be remanded to the trial court for the proper assessment of punishment. Bullard v. State, 548 S.W.2d 13, 18 (Tex.Cr.App.1977), rev’d. on other grounds, 665 F.2d 1347 (5th Cir.1982), vacated, Estelle v. Bullard, 459 U.S. 1139, 103 S.Ct. 776, 74 L.Ed.2d 987 (1983). See also, Hogan v. State, 529 S.W.2d 515 (Tex.Cr.App.1975); Ex parte Hill, 528 S.W.2d 125 (Tex.Cr.App.1975); Marrero v. State, 500 S.W.2d 818 (Tex.Cr.App.1973); Bradley v. State, 456 S.W.2d 923 (Tex.Cr.App.1970). Accordingly, cause number 79-CR-2313 is remanded to the 187th Judicial District Court of Bexar County for proceedings not inconsistent with this opinion.

It is so ordered.

McCORMICK, J., dissents.

TEAGUE, Judge,

concurring.

I respectfully concur in the result the majority reaches.

I totally agree with Judge Miller, in the opinion he authors for the majority, that “the trial court’s use, over objection, of a presentence investigation and report, [prepared by the local probation department], in determining what punishment will be assessed, prior to the effective date of the 1981 amendment to Article 37.07(3)(d), Y.A. C.C.P., was error.” (My emphasis). I also totally agree with Judge Miller that such error was not harmless in this instance.

I concur only in the result because I am unable to agree with many of the statements Judge Miller makes in the opinion he authors for the Court. For example, I am unable to agree that the holding in Angelle v. State, 571 S.W.2d 301 (Tex.Cr.App.1978), is “peculiar” to our jurisprudence; especially is this not so when one considers that the presentence investigation and report that was ordered and conducted in that cause was done and made without objection by the defendant.

I will, however, agree that prior to the amendment to Art. 42.12, V.A.C.C.P., many trial court judges of this State ordered a presentence investigation and report only when considering whether the defendant should be granted probation. However, prior to the amendment, there was not any statutory prohibition that would have prevented a trial judge from using such in assessing punishment in general-where the defendant agreed, either expressly or im-plictly, to such occurring. Judge Roberts reached this same conclusion in Angelle, supra, when he stated the following on behalf of the panel in that cause: “We are not convinced that a pre-sentence investigation and report are appropriate only when the issue of whether a trial judge should grant a defendant probation is raised. Rather, whenever an issue of the proper punishment is present, [and the defendant does not object], a presentence investigation and report may be utilized to assist the trial judge in the exercise of his discretion [in the assessment of punishment].” (302). I wholeheartedly agree with what Judge Roberts stated.

In this instance, the trial judge, over objection, considered the presentence investigation and report in assessing punishment. This he should not have done. The majority thus reaches the correct result in holding that the trial judge erred and that such error was not harmless.

For the above reasons, I concur in the result the majority reaches.

      . Repealed by Acts 1983, 68th Leg., p. 5321, ch. 977, § 12. Effective September 1, 1983.

      . The statement of facts does not reveal that any proceedings were conducted between the December 26, 1979, adjudication of guilt by Judge Benavides and the January 15, 1981, assessment of punishment by Judge Priest. Indeed, at the conclusion of the December 26, 1979, trial before Judge Benavides, the official court reporter’s notes state that "the proceedings were recessed until January 15, 1981, at 9:30 o’clock a.m.” This is the posture in which both sides have presented and argued the case to us.
      However, some confusion arises from the record concerning intervention by District Judge Edward Prado. A September 18, 1980, docket sheet notation states "Motion for Mistrial sentenced to 8 yrs.” Appellant’s motion for new trial, dated January 21, 1981, contains the statement that "the Judge hearing said cause [Judge Benavides] passed away prior to the completion of the case in that no sentencing [sic] had been announced. Subsequently, Judge Edward Prado announced the sentence in said case, never having had an opportunity to either read the record or observe the demeanor conduct and personality of the said witnesses. Subsequently [sic] to the above related proceedings, the Honorable Pat Priest again pronounced sentence and determined Defendant’s application for probation be denied."
      We note, however, that both the judgment and the sentence affirmatively recite that punishment was determined by the court on January 15, 1981. The statement of facts reflect that those proceedings were held “before the Honorable Pat Priest, Judge Presiding.” We are constrained to find that whatever occasioned the docket entry of September 18, 1980, the statement of facts and judgment indicate it was not a “proceeding” in this case, and does not control its disposition. We find that Judge Priest conducted the punishment hearing ab initio on January 15, 1981.

      . Article 37.07, § 3(d), V.A.C.C.P., now provides:
      “(d) When the judge assesses the punishment, he may order an investigative report as contemplated in Section 4 of Article 42.12 of this code and after considering the report, and after the hearing of the evidence herein-above provided for, he shall forthwith announce his decision in open court as to the punishment to be assessed.”
      This amendment to Article 37.07, however, did not become effective until September 1, 1981, and is not applicable to this case. Patently, the 1981 amendment to Article 37.07 was designed to meet the thrust of Judge Clinton’s dissenting opinion in Mason v. State, 604 S.W.2d 83, 84-91 (Tex.Cr.App.1979). See, Turner v. McDonald, 676 S.W.2d 375, n. 5 (Tex.Cr. App.1984).

      . All emphasis throughout this opinion is that of the writer unless otherwise indicated.

      . It is, of course, time for the Legislature of this State to further amend Art. 42.12, V.A.C.C.P., to expressly provide, as do some States, see, for example, California Penal Code Section 1204, that a presentence investigation and report may be conducted and prepared by other than the local county probation department. The reason this amendment is needed is obvious — not all such investigations and reports are done and prepared in a fair and impartial manner. Furthermore, why should the defendant himself not be able to present to the trial judge, from his standpoint, a comprehensive presentence report that could have a favorable impact on what punishment the trial judge might assess.