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Texas unconstitutional statutes

VIEWS: 2,128 PAGES: 258

									V.T.C.A., Alcoholic Beverage Code § 6.01                                                                     Page 1




                                       Effective:[See Text Amendments]

Vernon's Texas Statutes and Codes Annotated Currentness
 Alcoholic Beverage Code (Refs & Annos)
      Title 2. Administration of Code
         Chapter 6. Activities Subject to Regulation
           § 6.01. Rights and Privileges; Revocation


(a) A person may manufacture, distill, brew, sell, import, export, transport, distribute, warehouse, store, possess,
possess for the purpose of sale, bottle, rectify, blend, treat, fortify, mix, or process alcoholic beverages or pos-
sess equipment or material designed for or capable of use for manufacturing alcoholic beverages, if the right or
privilege of doing so is granted by this code and the person has first obtained a license or permit of the proper
type as required by this code.



(b) A license or permit issued under this code is a purely personal privilege and is subject to revocation or sus-
pension if the holder is found to have violated a provision of this code or a rule of the commission.



CREDIT(S)

Added by Acts 1987, 70th Leg., ch. 303, § 1, eff. June 11, 1987. Amended by Acts 1993, 73rd Leg., ch. 934, §
15, eff. Sept. 1, 1993.


VALIDITY

    < This section has been declared unconstitutional by Dickerson v. Bailey, C.A.5 (Tex)2003, 336
    F.3d. 388.>


HISTORICAL AND STATUTORY NOTES

2007 Main Volume

Acts 1993, 73rd Leg., ch. 934, in subsec. (b), inserted “or suspension”.


Section 107(d) of Acts 1993, 73rd Leg., ch. 934 provides:


“The change in law made by this Act relating to a penalty that may be imposed or to the suspension or cancella-
tion of a license or permit by the Texas Alcoholic Beverage Commission applies only to a violation of a law reg-




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 6.01                                                                      Page 2




ulated by the commission or of a rule or order of the commission that occurs on or after the effective date [Sept.
1, 1993] of this Act. A violation that occurs before the effective date is governed by the law in effect on the date
it occurred, and the former law is continued in effect for that purpose.”


CROSS REFERENCES

      Causes of action, see V.T.C.A., Alcoholic Beverage Code § 2.02.
      Providing, serving or selling alcoholic beverage as basis for revocation proceeding under this section, see
      V.T.C.A., Alcoholic Beverage Code § 2.02.

LIBRARY REFERENCES

2007 Main Volume

    Intoxicating Liquors       106(2).
    Westlaw Topic No. 223.
    C.J.S. Intoxicating Liquors §§ 226 to 227, 229.

RESEARCH REFERENCES

2010 Electronic Update

ALR Library

116 ALR 5th 149, Interplay Between Twenty-First Amendment and Commerce Clause Concerning State Regu-
lation of Intoxicating Liquors.


Encyclopedias

TX Jur. 3d Intoxicating Liquors § 16, Importation.


TX Jur. 3d Intoxicating Liquors § 53, Activities for Which Permit or License Not Required; Production for Per-
sonal Use--Transportation, Importation for Personal Consumption.


NOTES OF DECISIONS

  Validity 1

  1. Validity

Texas Alcoholic Beverage Code provisions, which were part of Texas's three-tier system and allowed an in-state
liquor retailer to make local deliveries within its county, but barred out-of-state retailers from shipping to Texas,
did not violate the dormant Commerce Clause; under the Twenty-first Amendment alcohol wholesalers and re-
tailers could be required to be within the state, regulating alcoholic beverage retailing was largely a state's
prerogative, and out-of-state retailers were not similarly situated to Texas retailers. Wine Country Gift Bas-
kets.com v. Steen, C.A.5 (Tex.)2010, 612 F.3d 809. Commerce             74.35; Intoxicating Liquors        15




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 6.01                                                                     Page 3




Texas Alcoholic Beverage Code provisions, which were part of Texas's three-tier system, which allowed an in-
state liquor retailer to make local deliveries within its county, but barred out-of-state retailers from shipping to
Texas, did not violate the dormant Commerce Clause; under the Twenty-first Amendment alcohol wholesalers
and retailers may be required to be within the state, regulating alcoholic beverage retailing was largely a state's
prerogative, and out-of-state retailers were not similarly situated to Texas retailers. Siesta Village Market LLC
v. Steen, C.A.5 (Tex.)2010, 595 F.3d 249, opinion withdrawn and superseded on reconsideration 612 F.3d 809.
Commerce           74.35; Intoxicating Liquors      15


Provisions of the Texas Alcoholic Beverage Code (TABC) which prohibited out-of-state wineries from directly
selling and shipping wine to Texas consumers discriminated against out-of-state vintners and impeded interstate
commerce in violation of the Commerce Clause. Dickerson v. Bailey, C.A.5 (Tex.)2003, 336 F.3d 388. Com-
merce        74.35; Intoxicating Liquors   15


Economically discriminatory provisions of the Texas Alcoholic Beverage Code (TABC), which prohibited out-
of-state wineries from directly selling and shipping wine to Texas consumers, were not saved from strict judicial
scrutiny under the Commerce Clause by the Twenty-First Amendment. Dickerson v. Bailey, C.A.5 (Tex.)2003,
336 F.3d 388. Commerce          74.35; Intoxicating Liquors      15


Where provisions of the Texas Alcoholic Beverage Code (TABC) prohibiting direct sales and shipments of wine
by out-of-state vintners to Texas consumers were found to violate the Commerce Clause, appropriate remedy
was to enjoin administrator of state alcoholic beverage commission from enforcing the economically discrimin-
atory provisions as applied to plaintiff-consumers and to out-of-state wineries, not to enjoin enforcement of the
special statutory benefits accorded to in-state wineries, as requested by administrator; plaintiffs sued to obtain
equal benefits under the TABC, goal of extension of benefits was inherent in a claim under the Commerce
Clause, and administrator's request that appellate court reform the remedy imposed by the district court, in es-
sence, asked appellate court to act in a legislative capacity, which it declined to do. Dickerson v. Bailey, C.A.5
(Tex.)2003, 336 F.3d 388. Civil Rights         1456


Texas Alcoholic Beverage Code provisions violated dormant commerce clause to extent that they restricted right
of Texas residents, who were not otherwise statutorily prohibited from possessing alcoholic beverages, to order
out-of-state wines to be shipped directly to their homes for their personal consumption. Dickerson v. Bailey,
S.D.Tex.2002, 212 F.Supp.2d 673, affirmed 336 F.3d 388. Commerce          74.40; Intoxicating Liquors       15


V. T. C. A., Alcoholic Beverage Code § 6.01, TX AL BEV § 6.01


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 6.03                                                                       Page 1




                                        Effective:[See Text Amendments]

Vernon's Texas Statutes and Codes Annotated Currentness
 Alcoholic Beverage Code (Refs & Annos)
      Title 2. Administration of Code
         Chapter 6. Activities Subject to Regulation
           § 6.03. Citizenship Requirements

(a) It is the public policy of this state and a purpose of this section to require that, except as provided in Subsec-
tion (k) of this section or otherwise in this code, a permit or license may not be issued to a person who was not a
citizen of this state for a one-year period preceding the date of the filing of the person's application for a license
or permit. In that regard, the legislature makes the findings in Subsections (b) through (j) of this section.



(b) Between 1920 and 1933, the distribution and consumption of alcoholic beverages was prohibited in the
United States. While the idealistic motives behind Prohibition were noble, a law enforcement nightmare ensued.
Otherwise law-abiding citizens routinely violated the law by buying and consuming alcoholic beverages. The
demand for the illegal products created an opportunity for criminal elements to develop a national network for
the supply and distribution of alcoholic beverages to the populace. Massive criminal empires were built on illicit
profits from these unlawful activities and organized crime openly flourished in Chicago, New York, New Or-
leans, and other cities.


(c) During Prohibition, the illegal enterprises used their national wholesale distribution networks to exert control
over their customers. A common operating procedure was to sell alcoholic beverages to a speakeasy on liberal
terms to ensnarl the owner in a web of debt and control with the aim of forcing the owner to engage in other il-
legal business enterprises on the premises including gambling, prostitution, and the distribution of illegal drugs.


(d) In 1935, when the sale of alcoholic beverages was legalized in this state following the adoption of the
Twenty-first Amendment to the United States Constitution, the state was faced with building an entire frame-
work for the distribution of alcoholic beverage products. An important concern was that since criminals owned
and controlled the existing illegal alcoholic beverage distribution system, criminals would attempt to own and
control the newly legalized industry. In an effort to prevent this situation, comprehensive laws were adopted to
ensure that an alcoholic beverage permit or license could be issued only to citizens of the state who had lived in
this state for at least three years, thus, long enough to be known by their community and neighbors.


(e) Under the newly designed regulatory scheme, permits and licenses issued by the state did not grant the hold-
er a right. Rather, the holder was granted a privilege that could be challenged at both the county and the state
level if the character or qualifications of the applicant were suspect. Finally, strict cash and credit laws were ad-
opted to prevent parties in the wholesale distribution system from controlling their retail customers through the




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 6.03                                                                         Page 2




leveraging of debt to accomplish other illicit gain.


(f) The alcoholic beverage laws adopted by the legislature in the 1930s to free the industry from the influence of
organized crime have been successful in this state. The alcoholic beverage industry in this state is not dominated
by organized crime. However, the legislature does find that organized crime continues to be a threat that should
never be allowed to establish itself in the alcoholic beverage industry in this state.


(g) To accommodate the interests of the consuming public, the expansion of popular nationwide businesses, and
the increasing state interest in tourism, and at the same time to guard against the threats of organized crime, un-
fair competition, and decreased opportunities for small businesses, the legislature finds that there is no longer
need for the three-year residency requirements with regard to those segments of the industry that sell alcoholic
beverages to the ultimate consumer only. The legislature finds that it is desirable to retain a one-year residency
requirement for businesses that sell to the consumer packaged liquor and fortified wine capable of being used to
supply legal or illegal bars and clubs. The legislature also finds it reasonable, desirable, and in the best interests
of the state to provide a one-year residency requirement for businesses engaged in the wholesale distribution of
beer, malt liquor, or wine or in the manufacture and distribution of distilled spirits and fortified wines at both the
wholesale and the retail levels where those beverages, in unopened containers, are sold to mixed beverage per-
mittees and private club registration permittees as well as to the general public. Adequate protection is deemed
to be provided by controlling those sources of supply for distilled spirits and fortified wines.


(h) It is also the public policy of this state and a purpose of this section to enforce strict cash and credit laws as a
means of preventing those engaged in the distribution of alcoholic beverages from exerting undue influence over
any level of the industry selling or serving alcoholic beverages to the ultimate consumer.


(i) It is also the public policy of this state and a purpose of this section to maintain and enforce the three-tier sys-
tem (strict separation between the manufacturing, wholesaling, and retailing levels of the industry) and thereby
to prevent the creation or maintenance of a “tied house” as described and prohibited in Section 102.01 of this
code.


(j) The above-stated public policies, purposes of this section, and legislative findings are provided as guidelines
for the construction of the following subsections of this section.


(k) A requirement under this code that 51 percent or more of the stock of a corporation be owned by a person or
persons who were citizens of this state for a one-year period preceding the date of the filing of an application for
a license or permit does not apply to a corporation organized under the laws of this state that applies for a li-
cense or permit under Chapters 25-34, Chapter 44, Chapters 48-51, Chapters 69-72, or Chapter 74 of this code
if:


  (1) all of the officers and a majority of directors of the applicant corporation have resided within the state for a
  one-year period preceding the date of the application and each officer or director possesses the qualifications
  required of other applicants for permits and licenses;




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 6.03                                                                      Page 3




  (2) the applicant corporation and the applicant's shareholders have no direct or indirect ownership or other
  prohibited relationship with others engaged in the alcoholic beverage industry at different levels as provided
  by Chapter 102 of this code and other provisions of this code;


  (3) the applicant corporation is not precluded by law, rule, charter, or corporate bylaw from disclosing the ap-
  plicant's shareholders to the commission; and


  (4) the applicant corporation maintains its books and records relating to its alcoholic beverage operations in
  the state at its registered office or at a location in the state approved in writing by the commission.


(l) Corporations subject to Subsection (k) of this section that have substantially similar ownership may merge or
consolidate. A fee of $100 shall be paid to the commission for each licensed or permitted premises that is
merged or consolidated into the surviving corporation. The surviving corporation succeeds to all privileges of
the prior corporation that held the permits or licenses if the surviving corporation is qualified to hold the permits
or licenses under this code. For the purposes of this subsection, corporations have substantially similar owner-
ship if 90 percent or more of the corporations is owned by the same person or persons or by the same corpora-
tion or corporations or if the surviving corporation has maintained an ownership interest in the merged or con-
solidated corporations since the date the original permit or license was issued.



CREDIT(S)

Added by Acts 1993, 73rd Leg., ch. 934, § 16, eff. Sept. 1, 1993.


VALIDITY

    < This section has been declared unconstitutional by Siesta Village Market, LLC v. Perry,
    N.D.Tex.2008, 530 F.Supp.2d 848.>


LIBRARY REFERENCES

2007 Main Volume

    Intoxicating Liquors       58.
    Westlaw Topic No. 223.
    C.J.S. Intoxicating Liquors §§ 146 to 148.

RESEARCH REFERENCES

2010 Electronic Update

Encyclopedias

TX Jur. 3d Intoxicating Liquors § 59, Residency and Citizenship Requirements.




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 6.03                                                                    Page 4




TX Jur. 3d Intoxicating Liquors § 81, Rights of Successor in Interest of Holder.


NOTES OF DECISIONS

  Validity 1

  1. Validity

Texas Alcoholic Beverage Code's Texas citizenship requirements were unconstitutional under Commerce Clause
as applied to out-of-state wine retailers; Texas could not condition qualification for Texas Alcoholic Beverage
Commission (TABC) permits on establishing citizenship in Texas. Siesta Village Market, LLC v. Perry,
N.D.Tex.2008, 530 F.Supp.2d 848, vacated in part 595 F.3d 249, opinion withdrawn and superseded on recon-
sideration 612 F.3d 809. Commerce          74.40; Intoxicating Liquors      15


All of the issues involved in a court's analysis of the constitutionality of the Alcoholic Beverage Code's one-year
residency requirement involve the resolution of fact questions. Op.Atty.Gen. 1995, No. DM-361.


V. T. C. A., Alcoholic Beverage Code § 6.03, TX AL BEV § 6.03


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 11.01                                                                     Page 1




                                         Effective:[See Text Amendments]

Vernon's Texas Statutes and Codes Annotated Currentness
 Alcoholic Beverage Code (Refs & Annos)
    Title 3. Licenses and Permits
      Subtitle A. Permits
            Chapter 11. Provisions Generally Applicable to Permits (Refs & Annos)
              Subchapter A. General Provisions
                § 11.01. Permit Required

(a) No person who has not first obtained a permit of the type required for the privilege exercised may, in a wet
area, do any of the following:



  (1) manufacture, distill, brew, sell, possess for the purpose of sale, import into this state, export from this
  state, transport, distribute, warehouse, or store liquor;


  (2) solicit or take orders for liquor; or


  (3) for the purpose of sale, bottle, rectify, blend, treat, fortify, mix, or process liquor.


(b) A person may manufacture, distill, brew, sell, import, export, transport, distribute, warehouse, store, possess,
possess for the purpose of sale, bottle, rectify, blend, treat, fortify, mix, or process liquor, or possess equipment
or material designed for or capable of use for manufacturing liquor, if the right or privilege of doing so is gran-
ted by this code.


(c) A right or privilege granted by this section as an exception to prohibitions contained elsewhere in this code
may be exercised only in the manner provided. An act done by a person which is not permitted by this code is
unlawful.



CREDIT(S)

Acts 1977, 65th Leg., p. 404, ch. 194, § 1, eff. Sept. 1, 1977.


VALIDITY

    < This section has been declared unconstitutional by Dickerson v. Bailey, C.A.5 (Tex)2003, 336




                            © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 11.01                                                     Page 2




    F.3d. 388.>


HISTORICAL AND STATUTORY NOTES

2007 Main Volume

Prior Laws:

    Acts 1935, 44th Leg., 2nd C.S., p. 1795, ch. 467, art. 1, § 4.

    Acts 1937, 45th Leg., p. 1053, ch. 448, §§ 3 to 5.

    Acts 1943, 48th Leg., p. 339, ch. 221, § 1.

    Acts 1943, 48th Leg., p. 509, ch. 325, § 2.

    Vernon's Ann.P.C. (1925) art. 666-4.


CROSS REFERENCES

      Authorized activities, see V.T.C.A., Alcoholic Beverage Code § 74.01
      Establishment of certain fees, see V.T.C.A., Alcoholic Beverage Code § 5.50
      Inspection of vehicle, see V.T.C.A., Alcoholic Beverage Code § 101.71
      Tied house prohibited, see V.T.C.A., Alcoholic Beverage Code § 102.01

LIBRARY REFERENCES

2007 Main Volume

    Intoxicating Liquors       44, 54.
    Westlaw Topic No. 223.
    C.J.S. Intoxicating Liquors §§ 126, 143 to 145.

RESEARCH REFERENCES

2010 Electronic Update

ALR Library

116 ALR 5th 149, Interplay Between Twenty-First Amendment and Commerce Clause Concerning State Regu-
lation of Intoxicating Liquors.


Encyclopedias

TX Jur. 3d Intoxicating Liquors § 16, Importation.


TX Jur. 3d Intoxicating Liquors § 51, Necessity for Permit or License.




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 11.01                                                              Page 3




TX Jur. 3d Intoxicating Liquors § 53, Activities for Which Permit or License Not Required; Production for Per-
sonal Use--Transportation, Importation for Personal Consumption.


Forms

Texas Jurisprudence Pleading & Practice Forms 2d Ed § 148:1, Introductory Comments.


2 West's Texas Forms App. C, Texas State Agency Directory.


NOTES OF DECISIONS

  In general 2
  Admissibility of evidence 18-25
       Admissibility of evidence - In general 18
       Admissibility of evidence - Containers and contents of containers 21
       Admissibility of evidence - Labels and revenue stamps 22
       Admissibility of evidence - Local option election 23
       Admissibility of evidence - Other offenses 25
       Admissibility of evidence - Possession and possession for sale 19
       Admissibility of evidence - Sale or purchase 20
       Admissibility of evidence - Search and seizure 24
  Conduct of counsel 33
  Containers and contents of containers, admissibility of evidence 21
  Enhancement of punishment, sentence and punishment 39
  Home rule city ordinances 8
  Indictment, information or complaint 9-13
       Indictment, information or complaint - In general 9
       Indictment, information or complaint - Issues, proof and variance 13
       Indictment, information or complaint - Possession and possession for sale 10
       Indictment, information or complaint - Sale or purchase 11
       Indictment, information or complaint - Transportation 12
  Instructions 34-36
       Instructions - In general 34
       Instructions - Possession and possession for sale 35
       Instructions - Sale or purchase 36
  Issues, proof and variance, indictment, information or complaint 13
  Judicial notice 17
  Jurisdiction 3
  Jury questions 32
  Labels and revenue stamps, admissibility of evidence 22
  Local option election, admissibility of evidence 23
  Local option law, sufficiency of evidence 31
  Manufacture, sufficiency of evidence 30
  Other offenses, admissibility of evidence 25




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 11.01                                                                     Page 4




  Possession and possession for sale, admissibility of evidence 19
  Possession and possession for sale, indictment, information or complaint 10
  Possession and possession for sale, instructions 35
  Possession and possession for sale, presumptions and burden of proof 15
  Possession and possession for sale, sufficiency of evidence 27
  Possession for personal use 5
  Possession for sale, generally 4
  Presumptions and burden of proof 14-16
      Presumptions and burden of proof - In general 14
      Presumptions and burden of proof - Possession and possession for sale 15
      Presumptions and burden of proof - Transportation 16
  Review 40
  Sale or purchase, admissibility of evidence 20
  Sale or purchase, generally 6
  Sale or purchase, indictment, information or complaint 11
  Sale or purchase, instructions 36
  Sale or purchase, sufficiency of evidence 28
  Search and seizure, admissibility of evidence 24
  Sentence and punishment 38, 39
      Sentence and punishment - In general 38
      Sentence and punishment - Enhancement of punishment 39
  Sufficiency of evidence 26-31
      Sufficiency of evidence - In general 26
      Sufficiency of evidence - Local option law 31
      Sufficiency of evidence - Manufacture 30
      Sufficiency of evidence - Possession and possession for sale 27
      Sufficiency of evidence - Sale or purchase 28
      Sufficiency of evidence - Transportation 29
  Transportation, generally 7
  Transportation, indictment, information or complaint 12
  Transportation, presumptions and burden of proof 16
  Transportation, sufficiency of evidence 29
  Validity 1
  Verdict and judgment 37

  1. Validity

Texas Alcoholic Beverage Code provisions, which were part of Texas's three-tier system and allowed an in-state
liquor retailer to make local deliveries within its county, but barred out-of-state retailers from shipping to Texas,
did not violate the dormant Commerce Clause; under the Twenty-first Amendment alcohol wholesalers and re-
tailers could be required to be within the state, regulating alcoholic beverage retailing was largely a state's
prerogative, and out-of-state retailers were not similarly situated to Texas retailers. Wine Country Gift Bas-
kets.com v. Steen, C.A.5 (Tex.)2010, 612 F.3d 809. Commerce             74.35; Intoxicating Liquors        15


Texas Alcoholic Beverage Code provisions, which were part of Texas's three-tier system, which allowed an in-




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 11.01                                                                    Page 5




state liquor retailer to make local deliveries within its county, but barred out-of-state retailers from shipping to
Texas, did not violate the dormant Commerce Clause; under the Twenty-first Amendment alcohol wholesalers
and retailers may be required to be within the state, regulating alcoholic beverage retailing was largely a state's
prerogative, and out-of-state retailers were not similarly situated to Texas retailers. Siesta Village Market LLC
v. Steen, C.A.5 (Tex.)2010, 595 F.3d 249, opinion withdrawn and superseded on reconsideration 612 F.3d 809.
Commerce           74.35; Intoxicating Liquors      15


Economically discriminatory provisions of the Texas Alcoholic Beverage Code (TABC), which prohibited out-
of-state wineries from directly selling and shipping wine to Texas consumers, were not saved from strict judicial
scrutiny under the Commerce Clause by the Twenty-First Amendment. Dickerson v. Bailey, C.A.5 (Tex.)2003,
336 F.3d 388. Commerce          74.35; Intoxicating Liquors      15


Provisions of the Texas Alcoholic Beverage Code requiring nonresident sellers of alcoholic beverages to sell
only to wholesale permit holders was unconstitutional under the Supremacy Clause (U.S.C.A. Const. Art. 6, ch.
2) as applied to purchases of alcoholic beverages by nonappropriated fund instrumentalities of the Department
of the Navy located in Texas. U.S. v. State of Tex., C.A.5 (Tex.)1983, 695 F.2d 136, certiorari denied 104 S.Ct.
336, 464 U.S. 933, 78 L.Ed.2d 305. Intoxicating Liquors       15; States     18.89


Texas Alcoholic Beverage Code provisions violated dormant commerce clause to extent that they restricted right
of Texas residents, who were not otherwise statutorily prohibited from possessing alcoholic beverages, to order
out-of-state wines to be shipped directly to their homes for their personal consumption. Dickerson v. Bailey,
S.D.Tex.2002, 212 F.Supp.2d 673, affirmed 336 F.3d 388. Commerce          74.40; Intoxicating Liquors       15


  2. In general

Vernon's Ann.P.C. (1925) arts. 666-3 and 666-4 (repealed) and Const. Art. 16, § 20, prohibiting an “open sa-
loon,” applied to areas in which local option was in effect, as well as to other areas. Shelton v. State (Cr.App.
1940) 139 Tex.Crim. 126, 138 S.W.2d 1078. Intoxicating Liquors          143


  3. Jurisdiction

The County Criminal Court of Dallas County had jurisdiction to try offense of allegedly selling wine in wet area
without a permit, since county courts have concurrent jurisdiction with justice courts of misdemeanors cogniz-
able in justice courts. Skaggs v. State (Cr.App. 1952) 157 Tex.Crim. 195, 247 S.W.2d 906. Criminal Law
90(5)


  4. Possession for sale, generally

Vernon's Ann.P.C. (1925) art. 666-4 (repealed) required a permit to sell and such permit carried with it the priv-
ilege and became a permit to possess liquor for the purpose of sale in a wet area. Anderson v. State (Cr.App.
1943) 146 Tex.Crim. 222, 172 S.W.2d 310. Intoxicating Liquors         140; Intoxicating Liquors       150




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 11.01                                                                 Page 6




Possession of whisky for purpose of sale in a wet area without a permit constituted an offense within Vernon's
Ann.P.C. (1925) art. 666-4 (repealed). Dearman v. State (Cr.App. 1944) 147 Tex.Crim. 308, 180 S.W.2d 366.
Intoxicating Liquors     140


Under Liquor Control Act, more than one person could be guilty of possessing the same liquor for purpose of
sale. Shawhart v. State (Cr.App. 1956) 163 Tex.Crim. 199, 289 S.W.2d 601. Intoxicating Liquors    139


Possession of liquor as prohibited by Liquor Control Act need not have been exclusive, nor was ownership a ne-
cessary element of the offense. Shawhart v. State (Cr.App. 1956) 163 Tex.Crim. 199, 289 S.W.2d 601. Intoxic-
ating Liquors      139


Right to possess and use alcoholic beverages is not an inherent right but a highly guarded privilege surrounded
by stringent regulations. State v. Harris (Civ.App. 1960) 342 S.W.2d 177. Intoxicating Liquors      1


Beer may be legally possessed for the purpose of dispensing by an employee of a retail dealer's on-premise li-
censee on the licensed premises of the licensee in a 2 5/8 gallon container which bears the brand name of the
beer and which has been filled on the licensed premises by the licensee or his agent from a tax-paid, legal-
sized 1/2 barrel of beer purchased by the licensee from a beer distributor. Op.Atty.Gen.1968, No. M-218.


  5. Possession for personal use

Persons bringing not more than one quart of liquor into state for personal use were exempt from payment of tax
required by Vernon's Ann.P.C. (1925) art. 666-43 (repealed), which made possession of liquor without stamp or
evidence of tax payment a misdemeanor, in view of art. 666-4 (repealed), that prohibition against importation
and transportation of liquor should not apply to such persons. Horton v. State (Cr.App. 1937) 132 Tex.Crim.
488, 105 S.W.2d 669. Intoxicating Liquors       139


A prosecution for possessing whisky on premises licensed to sell beer and wine was not unauthorized because
whisky was found in a bedroom, which could only be entered through a curtained doorway behind bar, although
accused and a woman claimed bedroom as their “home,” since barroom and bedroom were so intimately connec-
ted as to impress both with the character of a “barroom.” Moore v. State (Cr.App. 1937) 133 Tex.Crim. 330, 112
S.W.2d 194. Intoxicating Liquors        236(6.5)


In State's suit to enjoin husband and wife from illegal possession of intoxicating liquors, where there was evid-
ence that husband and wife possessed intoxicating liquors hidden in their home on six separate occasions, if
such possession of liquors was for personal use then such possession was not illegal and was not evidence of an
intention to violate Liquor Control Act in the future. Templin v. State (Civ.App. 1954) 274 S.W.2d 171, ref.
n.r.e.. Intoxicating Liquors      139


  6. Sale or purchase, generally




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V.T.C.A., Alcoholic Beverage Code § 11.01                                                                    Page 7




In prosecution for being interested in the operation of an open saloon, if accused was interested either directly or
indirectly in the business on the day of the alleged offense that he might not have been present personally would
not relieve him from guilt by knowingly permitting or authorizing employees to sell spirituous liquors. Malone
v. State (Cr.App. 1938) 135 Tex.Crim. 306, 119 S.W.2d 885. Intoxicating Liquors           167


Where defendant's own testimony showed that she sold and delivered to purchaser a pint of whisky, transaction
was a “sale”, regardless whether defendant made a profit or whether she expected to use money to renew her
supply of whisky. Benjamin v. State (Cr.App. 1939) 138 Tex.Crim. 90, 134 S.W.2d 678. Intoxicating Liquors
     150


The purchase of intoxicating liquor where the sale thereof was unlawful was not a violation of the law. Cooper
v. State (Cr.App. 1939) 138 Tex.Crim. 438, 136 S.W.2d 814. Intoxicating Liquors       167


If defendant acted as agent of purchaser and in that capacity purchased beer for purchaser on Sunday, he would
not be guilty of selling the beer to purchaser. Harris v. State (Cr.App. 1950) 155 Tex.Crim. 180, 233 S.W.2d 123
. Intoxicating Liquors        146(3)


A defendant could be separately prosecuted and convicted for two separate transactions and sales of liquor to
two liquor agents, even though the dealings with the liquor agents were contemporaneous. Hardy v. State
(Cr.App. 1961) 171 Tex.Crim. 18, 344 S.W.2d 451. Criminal Law       619


Beer may be served and sold by the retail dealer's on-premise licensee or his agent from the 2 5/8 gallon con-
tained to customers on the licensed premises. Op.Atty.Gen.1968, No. M-218.


  7. Transportation, generally

Provisions of the Texas Alcoholic Beverage Code (TABC) which prohibited out-of-state wineries from directly
selling and shipping wine to Texas consumers discriminated against out-of-state vintners and impeded interstate
commerce in violation of the Commerce Clause. Dickerson v. Bailey, C.A.5 (Tex.)2003, 336 F.3d 388. Com-
merce        74.35; Intoxicating Liquors   15


Under Texas Liquor Control Act evidence of ownership as well as a permit to transport had to accompany all
transported liquor. Cartlidge v. Rainey, 1948, 168 F.2d 841, certiorari denied 69 S.Ct. 237, 335 U.S. 885, 93
L.Ed. 424. Intoxicating Liquors      138


Transportation of whisky was a felony of equal gravity to that of having whisky for purposes of sale. Parker v.
State (Cr.App. 1939) 138 Tex.Crim. 478, 136 S.W.2d 229.


All persons were forbidden by Liquor Control Act to transport liquor without a permit unless they came within
some exception provided in the statute, regardless of whether they came within one of the classes for which a
permit could be issued. Anderson v. State (Cr.App. 1944) 147 Tex.Crim. 410, 181 S.W.2d 78. Intoxicating Li-




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V.T.C.A., Alcoholic Beverage Code § 11.01                                                                  Page 8




quors      138


Liquor control statute which provided that any act not permitted by statute was unlawful did not render illegal
the transportation by automobile of a friend and his packages containing liquor. State v. Rose (Civ.App. 1966)
402 S.W.2d 794. Intoxicating Liquors        138


A person may purchase liquor for his own use in a wet county and transport it to his home in a dry county
without having a written statement. Op.Atty.Gen.1940, No. 0-1882.


A person who holds more than one package store permit and who has designated one of the licensed premises as
a place for the storage of liquor, cannot transport liquor from such storage to his other premises, and the liquor
may be transported only by the holder of a local cartage, private carrier, or common carrier permit.
Op.Atty.Gen.1942, No. 0-4471.


  8. Home rule city ordinances

City liquor ordinance was not invalid because the only districts where alcoholic beverages were permitted to be
sold within its boundaries were those establishments in existence at time of passing of the ordinance. Covington
v. City of Denison (Civ.App. 1963) 369 S.W.2d 824. Intoxicating Liquors         15


City of Amarillo, a home-rule city, had authority to enact ordinance prohibiting sale of intoxicating beverages in
particular area in city although area was otherwise “wet” territory. Discount Liquors No. 2, Inc. v. Texas Liquor
Control Bd. (Civ.App. 1967) 420 S.W.2d 422, ref. n.r.e.. Intoxicating Liquors        10(3)


A home rule city has power to regulate sale of alcoholic beverages in its city limits. Hewlett v. Texas Alcoholic
Beverage Commission (Civ.App. 1973) 492 S.W.2d 686, ref. n.r.e.. Intoxicating Liquors           10(2)


  9. Indictment, information or complaint--In general

Where Liquor Control Act specified about sixteen ways in which liquor could be kept, sold, and bartered in viol-
ation of law, complaint charging accused with maintaining a common nuisance in form of building where intox-
icating liquor was sold, kept, and bartered in violation of law was defective, since it did not apprise accused of
what he might expect to meet. Carr v. State (Cr.App. 1937) 132 Tex.Crim. 438, 104 S.W.2d 866. Intoxicating
Liquors       211


Complaint charging that a designated person who was authorized by law to sell malt liquor, to wit, beer, on cer-
tain premises for consumption thereon, and another designated person who was acting as agent and employee of
person authorized to sell the malt liquor, with having liquor produced by process of distillation, to wit, whisky,
in their possession at and near the designated premises was sufficient to charge an offense. Kelley v. State
(Cr.App. 1937) 133 Tex.Crim. 180, 109 S.W.2d 482. Intoxicating Liquors         211




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V.T.C.A., Alcoholic Beverage Code § 11.01                                                                  Page 9




A complaint and information charging that defendant kept a place “where intoxicating liquor, to wit, beer and
whisky was kept, possessed and sold or given away”, and failing to negative the fact that defendant did not have
license, and charging the many items which the statute prohibited, was insufficient to apprise defendant as to
which offense defendant would be called on to defend, and therefore did not charge an offense. Lenox v. State
(Cr.App. 1941) 142 Tex.Crim. 194, 152 S.W.2d 342. Indictment And Information           71.4(7)


  10. ---- Possession and possession for sale, indictment, information or complaint

Complaint and information for possessing liquor for sale in county where such possession for sale was prohib-
ited by law was insufficient in not alleging that election to determine whether sale should be prohibited had been
held, that commissioners' court canvassed returns and declared result, and that result had been published as re-
quired by law. Kight v. State (Cr.App. 1937) 131 Tex.Crim. 590, 101 S.W.2d 258. Intoxicating Liquors
205(1)


Count of information charging defendant with possession of liquor for purpose of sale in local option territory
was insufficient. Bell v. State (Cr.App. 1937) 131 Tex.Crim. 571, 101 S.W.2d 558. Intoxicating Liquors
205(1)


Information charging unlawful possession of whisky for sale after voters of county “had at a legal election held
for that purpose in accordance with law determined” such possession should be prohibited was insufficient to
charge offense of unlawful possession of whisky for purpose of sale in dry territory, in absence of averment that
commissioners' court had canvassed election returns and declared result, and that result was published as re-
quired by law in force at time of election. Wilkinson v. State (Cr.App. 1937) 131 Tex.Crim. 624, 101 S.W.2d
569. Intoxicating Liquors      205(2)


In prosecution for possession of whisky at premises licensed for sale of malt and vinous liquors, complaint was
not defective on ground that averment that license for sale of malt and vinous liquors was for certain named
premises was not supported, where evidence showed that named premises had same address as premises referred
to in license. Trustee v. State (Cr.App. 1937) 133 Tex.Crim. 168, 109 S.W.2d 173. Intoxicating Liquors
207


An information charging that defendant possessed whisky does not charge an offense when not charging that the
whisky was possessed for purpose of sale. Alexander v. State (Cr.App. 1938) 133 Tex.Crim. 588, 113 S.W.2d
545. Intoxicating Liquors     211


The inclusion of the phrase “an alcoholic beverage” in an allegation of a complaint and information that accused
“unlawfully possessed for the purpose of sale an alcoholic beverage, to-wit: whisky, more than one quart of
whisky, in violation of law,” etc., was mere surplusage, as against contention that it rendered the pleading
vague, indefinite, and unintelligible as a charge for the unlawful possession of whisky for the purpose of sale.
Bright v. State (Cr.App. 1938) 134 Tex.Crim. 421, 115 S.W.2d 964. Indictment And Information          119


Complaint and information charging accused with possessing eight gallon jars of whisky, a distilled liquor, not




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V.T.C.A., Alcoholic Beverage Code § 11.01                                                                   Page 10




contained in a container to which was then and there affixed a stamp and other evidence showing payment of tax
on such liquor due to the state, charged an offense regardless of whether county in which it was committed was
dry area. Hinton v. State (Cr.App. 1938) 134 Tex.Crim. 528, 116 S.W.2d 391. Intoxicating Liquors       211


A complaint and information charging defendant with unlawful possession for purpose of sale of “beer contain-
ing alcohol in excess of one-half of one per centum by volume, same being an intoxicating liquor.” etc., was not
repugnant because of inclusion of phrase “same being an intoxicating liquor,” since phrase did not mean to
charge that such beer was “liquor” as defined by Vernon's Ann.P.C. (1925) art. 666-3a (repealed) but rather
phrase was a generic term used only as descriptive of intoxicating qualities of beer. Spencer v. State (Cr.App.
1941) 142 Tex.Crim. 450, 154 S.W.2d 846. Indictment And Information          73(1)


  11. ---- Sale or purchase, indictment, information or complaint

Under Vernon's Ann.C.C.P. (1925) art. 406 (see, now, art. 21.12), naming purchaser was not necessary when
name of purchaser was unknown, but fact that purchaser's name was unknown should have been specifically al-
leged. Barnett v. State (Cr.App.1951) 242 S.W.2d 885, followed in Wilson v. State, 242 S.W.2d 886, two cases.


Under Vernon's Ann.C.C.P. (1925) arts. 406 and 416 (see, now, arts. 21.12 and 21.23), when state relied upon
testimony of alleged purchaser of whiskey from defendant upon date alleged in information, state was bound to
name purchaser in information, and information, in absence of such allegation, was fatally defective. Barnett v.
State (Cr.App.1951) 242 S.W.2d 885, followed in Wilson v. State, 242 S.W.2d 886, two cases.


Information charging unlawful sale of whisky in county in which sale of such liquor was prohibited by laws of
state was fatally defective, since information for violation of local option law must show that election was held
and that as result thereof act complained of was prohibited. Hardin v. State (Cr.App. 1937) 131 Tex.Crim. 587,
101 S.W.2d 264. Intoxicating Liquors         205(1)


An information charging unlawful sale of intoxicating liquor is insufficient in failing to allege that an election
was held in county and that result thereof was such as to prohibit acts complained of. Monzingo v. State
(Cr.App. 1937) 132 Tex.Crim. 545, 106 S.W.2d 282. Intoxicating Liquors          205(1)


Count of information which failed to allege steps by which sale of liquor was prohibited, namely, that an elec-
tion was held in county and that result thereof was such as to prohibit act complained of, was insufficient to sus-
tain conviction for unlawful sale of intoxicating liquor thereunder. Ballew v. State (Cr.App. 1937) 132
Tex.Crim. 534, 106 S.W.2d 284. Intoxicating Liquors          205(2)


Under Vernon's Ann.P.C. (1925) art. 666-4(b) (repealed), prohibiting sale in dry area of liquor containing alco-
hol in excess of one-half of one per cent. by volume, information charging accused with having sold
“intoxicating liquor, to wit: one half gallon of wine, a vinous liquor,” in light of art. 666-3a (repealed) defining
liquor was sufficient as against motion to quash on ground that there was no averment that sale was made for
beverage purposes and no allegation as to the percentage of alcohol either by volume or weight in liquor sold.
Terry v. State (Cr.App. 1939) 137 Tex.Crim. 325, 128 S.W.2d 1202. Intoxicating Liquors             216; Intoxicating




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Liquors       220


Information charging proprietor of grocery store with selling vanilla extract which contained alcohol, for bever-
age purposes, was fatally defective because of omission of the word “knowingly.” Wilkinson v. State (Cr.App.
1946) 150 Tex.Crim. 274, 200 S.W.2d 631. Intoxicating Liquors          203


  12. ---- Transportation, indictment, information or complaint

Information charging unlawful transportation of whisky in certain county, which contained no averment that an
election had been held and as a result thereof transportation of liquor in county was prohibited, was insufficient.
Hood v. State (Cr.App. 1937) 131 Tex.Crim. 500, 100 S.W.2d 1014. Intoxicating Liquors            205(1)


Information charging unlawful transportation of whisky in a wet area without a permit was not fatally defective
for failure to allege that accused came within one of the classes for which a permit may be issued, and that ac-
cused had not secured such a permit. Anderson v. State (Cr.App. 1944) 147 Tex.Crim. 410, 181 S.W.2d 78. In-
toxicating Liquors        221


In charging unlawful transportation of liquor in a wet area without a permit, state must allege that transportation
was made without a permit and assume the burden of proof of such allegation. Anderson v. State (Cr.App. 1944)
147 Tex.Crim. 410, 181 S.W.2d 78. Intoxicating Liquors         223(1)


  13. ---- Issues, proof and variance, indictment, information or complaint

In prosecution for possessing distilled spirits on licensed wine and beer premises, state was not required to prove
allegation that premises “was not then and there a hotel authorized to sell distilled spirits,” since the allegation
was surplusage. Manos v. State (Cr.App. 1938) 134 Tex.Crim. 234, 115 S.W.2d 655. Indictment And Informa-
tion      167


Where complaint alleged the sale of whiskey on a specified lot, proof that sale was made on a different lot did
not sustain conviction. Padget v. State (Cr.App. 1941) 141 Tex.Crim. 89, 147 S.W.2d 488. Intoxicating Liquors
      223(4)


Variance between information, charging sale of whiskey to “R. M. Barber,” and proof showing prosecuting wit-
ness to be “R. M. Barba,” was not fatal. Pierce v. State (Cr.App. 1954) 160 Tex.Crim. 646, 274 S.W.2d 408. In-
dictment And Information       180


Charge that defendant transported “beer, wine and whiskey” would have been sufficient without allegation as to
alcoholic content; and there was no fatal variance between complaint, alleging transportation of beer, wine and
whiskey containing alcohol in excess of four per cent by weight, and information, charging transportation of
beer, wine and whiskey containing alcohol in excess of one-half of one per cent by volume. Gaines v. State
(Cr.App. 1956) 164 Tex.Crim. 516, 301 S.W.2d 110. Intoxicating Liquors         223(3)




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V.T.C.A., Alcoholic Beverage Code § 11.01                                                                  Page 12




Variance between information charging offense of possession of beer for purpose of sale and judgment of con-
viction, rendered upon guilty plea to above information, for offense of unlawful sale of beer was fatal. Acosta v.
State (Cr.App. 1965) 385 S.W.2d 394. Criminal Law          990.1


Where complaint charged defendant with unlawfully transporting illicit beverage, to-wit: wine, in container to
which no tax stamp showing payment of tax due thereon to the State was affixed and information charging de-
fendant with unlawfully transporting an alcoholic beverage, to-wit: wine, in a dry area did not charge the same
offense, and such variance was fatal to information, and conviction could not stand. Ray v. State (Cr.App. 1968)
433 S.W.2d 434. Indictment And Information          122(2)


  14. Presumptions and burden of proof--In general

In prosecution for violating local option law, where copies of newspaper declaring result of local option election
46 years previously, with attached certificate of clerk of county court, were introduced in evidence, court would
presume that county judge had designated such newspaper for publication of the orders and hence that local op-
tion law was in effect, though minutes of commissioners' court did not contain entry showing designation of
such newspaper. Dabney v. State (Cr.App. 1940) 141 Tex.Crim. 16, 146 S.W.2d 1000. Intoxicating Liquors
      39


In prosecution for the sale of whiskey in a wet area without a permit or license, no proof is required that area is
not dry. Harris v. State (Cr.App. 1973) 489 S.W.2d 303. Intoxicating Liquors        223(1)


  15. ---- Possession and possession for sale, presumptions and burden of proof

Where there was no proof that defendant had sold or offered to sell any liquor, state had burden to prove that de-
fendant possessed more than a quart of intoxicating liquor to sustain conviction of possessing intoxicating liquor
for purpose of sale. Hinton v. State (Cr.App. 1938) 135 Tex.Crim. 400, 120 S.W.2d 1053. Intoxicating Liquors
     224


Where defendant accused of unlawful possession of whisky for purpose of sale possessed less than a quart of
whisky, the rule that possession was prima facie for purpose of sale was inapplicable. Williams v. State (Cr.App.
1939) 136 Tex.Crim. 511, 126 S.W.2d 976. Intoxicating Liquors          236(7)


In prosecution for possession of intoxicating liquor for purpose of sale, where there was no proof of any attempt
to sell liquor by the accused and only one pint of liquor was shown to be in his possession, the state could not
avail itself of the prima facie presumption that possession of more than one quart of intoxicating liquor was for
the purpose of sale. Thursby v. State (Cr.App. 1942) 143 Tex.Crim. 295, 158 S.W.2d 539. Intoxicating Liquors
      236(5)


Eight pints of whisky which defendant had on his person when arrested by officer on street was sufficient to
raise presumption that defendant had the whisky in his possession for purpose of sale. Merrick v. State (Cr.App.
1942) 145 Tex.Crim. 300, 167 S.W.2d 743. Intoxicating Liquors         236(5)




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V.T.C.A., Alcoholic Beverage Code § 11.01                                                                 Page 13




A person may be guilty of possessing for purpose of sale beer owned by others, in which case possession of
more than quantity required to create prima facie presumption of possession for such purpose becomes a rebut-
table proposition on accused's part. Fennell v. State (Cr.App. 1947) 150 Tex.Crim. 132, 199 S.W.2d 515. Intox-
icating Liquors      140; Intoxicating Liquors        236(5)


Rule that where evidence shows an equal opportunity of persons other than defendant to possess liquor in ques-
tion, evidence must disprove such outstanding hypothesis to be sufficient to show possession by defendant, was
not applicable where defendant was present when whisky was found in and thrown from his automobile.
Shawhart v. State (Cr.App. 1956) 163 Tex.Crim. 199, 289 S.W.2d 601. Intoxicating Liquors        236(4)


Possession of four half pints of whisky was not sufficient to raise presumption that it was possessed for sale.
Widener v. State (Cr.App. 1961) 171 Tex.Crim. 238, 347 S.W.2d 251. Intoxicating Liquors        236(5)


Two pint bottles of whiskey found by searching officers on chest of drawers about six feet from side door of de-
fendant's store was not sufficient in amount to raise prima facie presumption that whiskey was possessed for
purpose of sale. Murphy v. State (Cr.App. 1968) 425 S.W.2d 358. Intoxicating Liquors         224


  16. ---- Transportation, presumptions and burden of proof

That one charged with unlawful transportation of liquor in a wet area without a permit came within some excep-
tion provided in Liquor Control Act permitting transportation without a permit or within some class for which a
permit could be issued, and had such a permit, was a matter of defense as to which accused had the burden of
proof. Anderson v. State (Cr.App. 1944) 147 Tex.Crim. 410, 181 S.W.2d 78. Intoxicating Liquors         224


Admissions of accused and companion that they did not have an invoice for large quantities of liquor which they
were transporting from a package store nor a permit to transport such liquor made a prima facie case of unlawful
transportation of liquor without a permit. Anderson v. State (Cr.App. 1944) 147 Tex.Crim. 410, 181 S.W.2d 78.
Intoxicating Liquors       236(20)


  17. Judicial notice

Court could take judicial notice that wine containing 10.7 per cent. of alcohol by volume and 8.61 per cent. by
weight was “intoxicating liquor.” Terry v. State (Cr.App. 1939) 137 Tex.Crim. 325, 128 S.W.2d 1202. Criminal
Law       304(20)


Courts take judicial recognizance of the fact that whisky is an intoxicating liquor. Traders & General Ins. Co. v.
Grant (Civ.App. 1940) 137 S.W.2d 213. Evidence          7


The Court of Criminal Appeals takes judicial notice that wine is an “intoxicating liquor.” Bell v. State (Cr.App.
1940) 141 Tex.Crim. 59, 146 S.W.2d 1004. Criminal Law          304(20)




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  18. Admissibility of evidence--In general

In liquor prosecution, court erred in permitting state over accused's objection to prove accused's general reputa-
tion as law-abiding citizen was bad, where accused did not place his reputation in issue. Walker v. State
(Cr.App. 1943) 146 Tex.Crim. 321, 174 S.W.2d 974. Criminal Law             376


In liquor prosecution, permitting sheriff to testify that he apprehended defendant near a creek called “Whiskey
Hollow” had no bearing on defendant's guilt or innocence and was not error. Shafer v. State (Cr.App. 1948) 151
Tex.Crim. 558, 209 S.W.2d 599. Criminal Law            338(7)


  19. ---- Possession and possession for sale, admissibility of evidence

In prosecution for possessing beer in a dry area for purpose of sale, objection that constable's testimony that two
brothers who owned and jointly occupied premises where defendant and his sons resided had requested con-
stable to “clean up that mess out there” was “hearsay” was properly sustained. O'Rear v. State (Cr.App. 1940)
138 Tex.Crim. 327, 136 S.W.2d 214. Criminal Law           419(10)


In prosecution for unlawful possession of beer, sheriff's testimony that unnamed railroad engineer told sheriff to
go to a certain place on railroad right of way and he would find a bootlegger, was inadmissible. Allen v. State
(Cr.App. 1940) 138 Tex.Crim. 303, 136 S.W.2d 232. Criminal Law             419(3)


In trial for unlawful possession of intoxicating liquor, testimony that whisky was found on defendant's premises,
on which evidence showed that defendant lived and had lived for past two years, was admissible. Miller v. State
(Cr.App. 1941) 141 Tex.Crim. 635, 150 S.W.2d 1042. Intoxicating Liquors           226


Permitting witness to testify that prior to time liquors were found in defendant's automobile witness had pur-
chased full bottle of liquid on which federal and state tax stamps had been affixed, and that it was a full bottle of
whiskey, and that witness later bought another similar bottle with a whiskey label was properly admitted for pur-
pose of showing the intent for which the bottles found were possessed. Woodruff v. State (Cr.App. 1942) 145
Tex.Crim. 324, 167 S.W.2d 769. Criminal Law            371(10)


Where defendant was charged with unlawful possession of whisky for sale upon officers' observing him cast
bottles from fleeing automobile, testimony as to a subsequent conversation between defendant and a representat-
ive of liquor control board as to place where defendant kept his whisky, evidencing astuteness with which de-
fendant managed to carry on his unlawful business, was admissible as having some weight toward evidencing
purpose for which defendant possessed liquor that he cast from automobile. Steen v. State (Cr.App. 1946) 149
Tex.Crim. 176, 192 S.W.2d 266. Intoxicating Liquors        233(1)


In prosecution for possession of intoxicating liquor for purpose of sale, evidence relative to officers seeing a
drunk driver drive up into defendant's driveway was not admissible. Corley v. State (Cr.App. 1947) 150
Tex.Crim. 107, 199 S.W.2d 782. Criminal Law         338(4)




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In prosecution for unlawful possession of intoxicating liquor for purpose of sale, proof of sales made by defend-
ant at a time not too remote is admissible as throwing light on purpose for which the liquor was possessed. Mor-
rison v. State (Cr.App. 1950) 155 Tex.Crim. 106, 230 S.W.2d 808. Criminal Law           371(10)


Where defendant, who had been found in alley with a pistol and a package containing whiskey and who was pro-
secuted for illegal possession of whiskey, claimed that he had found the package when he entered alley to hide
pistol from his wife, exclusion of witnesses' testimony that, immediately before event, defendant had stated that
he was going out to hide pistol, was error. Pennye v. State (Cr.App. 1954) 160 Tex.Crim. 299, 269 S.W.2d 375.
Criminal Law         413(2)


Evidence of past course of action of husband and wife in possessing intoxicating liquor for illegal sale, was
evidence of their intentions in regard to possessing intoxicating liquors at time of trial. Templin v. State
(Civ.App. 1954) 274 S.W.2d 171, ref. n.r.e.. Intoxicating Liquors    275


  20. ---- Sale or purchase, admissibility of evidence

In liquor prosecution, testimony of liquor inspector that supervisor of Liquor Control Board had information that
accused was selling whisky in dry territory and had ordered inspector to go there and purchase whisky from ac-
cused was inadmissible as “hearsay.” Hammond v. State (Cr.App. 1940) 138 Tex.Crim. 546, 137 S.W.2d 1042.
Criminal Law        419(3)


In prosecution for selling liquor, permitting state to elicit from witness, who was a soldier stationed at nearby
camp, statement that it was necessary to protect boys in army from people who violate law and sell whisky to
soldier boys and things that interfere with their work, was error. Nabors v. State (Cr.App. 1944) 146 Tex.Crim.
613, 177 S.W.2d 267. Intoxicating Liquors         226


  21. ---- Containers and contents of containers, admissibility of evidence

In prosecution for violating local option law, wherein witnesses testified that bottle sold by defendant contained
gin, bottle and its contents were admissible regardless of whether label showed that bottle contained gin, as
against contention that testimony concerning lettering on the label was inadmissible as not the “best evidence.”
Dabney v. State (Cr.App. 1940) 141 Tex.Crim. 16, 146 S.W.2d 1000. Criminal Law               398(1); Criminal Law
      404.55


Where sheriff, after being told that someone had placed whisky in certain place, searched and found nine half-
pints and three pints of whisky, and removed the nine half-pints and left the three pints and defendant sub-
sequently appeared at the place and took possession of the three pints, possession of the three pints was suffi-
cient to sustain conviction, and admission in evidence of the nine half-pints was proper. Green v. State (Cr.App.
1948) 152 Tex.Crim. 201, 211 S.W.2d 949. Criminal Law            404.55; Intoxicating Liquors      236(7)


In prosecution for unlawful possession of beer for purpose of sale, possession of sixteen 12-ounce cans of beer
would not be prima facie evidence of fact that such possession was for purpose of sale, but the sixteen cans of




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V.T.C.A., Alcoholic Beverage Code § 11.01                                                                   Page 16




beer would be admissible in order to show purpose of possession thereof. Moneyhun v. State (Cr.App. 1953)
159 Tex.Crim. 317, 263 S.W.2d 266. Criminal Law       404.55; Intoxicating Liquors    236(5)


In prosecution for unlawfully possessing beer for purpose of sale, it was not improper for court to permit of-
ficers to bring into court empty beer cans and whiskey bottles for purpose of introducing those articles into evid-
ence, and to place them in presence and sight of jury, where it was shown that such articles were found on ac-
cused's premises. Moneyhun v. State (Cr.App. 1953) 159 Tex.Crim. 317, 263 S.W.2d 266. Criminal Law
663


In liquor prosecution, where state offered bottles of whisky into evidence and officer testified that they were the
same bottles which he had found at the scene and there was no showing that anyone other than the witness ever
had the same in their custody, proper predicate was sufficiently laid for introduction of the bottles into evidence.
Johnson v. State (Cr.App. 1958) 167 Tex.Crim. 284, 319 S.W.2d 713. Criminal Law              404.55


  22. ---- Labels and revenue stamps, admissibility of evidence

The admission of bottles and liquid therein and revenue stamps and state stamps on bottles and names of whisky
as shown on the labels and stamps was not error where the labels, stamps, etc., were not placed on the bottles by
the officers making the arrest, but were on the bottles found in defendant's possession, who was charged with
knowledge of what was on the bottles and which was descriptive of the articles so found. Ferguson v. State
(Cr.App. 1937) 133 Tex.Crim. 250, 110 S.W.2d 61. Criminal Law          404.55


In liquor prosecution admission of bottles with their contents as well as labels thereon bearing inscription nam-
ing whisky and carrying the United States Government Seal across the top of bottles was not error where labels
carrying the inscription and kind of the liquor were on the bottles when accused sold them to officers and he ta-
citly if not actually represented that the bottles contained the kind and character of whisky indicated by the la-
bels. Dozier v. State (Cr.App. 1942) 143 Tex.Crim. 397, 158 S.W.2d 776. Criminal Law           404.55


  23. ---- Local option election, admissibility of evidence

In prosecution for violating local option law, testimony of newspaper editor who produced alleged original files
of newspaper showing publication of orders relative to local option election was not objectionable as “hearsay”,
though witness was not the editor at time of publication and had not at all times had charge of the files. Dabney
v. State (Cr.App. 1940) 141 Tex.Crim. 16, 146 S.W.2d 1000. Criminal Law           419(1.10)


  24. ---- Search and seizure, admissibility of evidence

Where liquor, by reason of an officer's observation of accused, and not as a result of search under a previously
executed warrant authorizing search of a filling station, was found in an open pasture some 200 yards from the
station at which accused was employed, and record did not show to whom the pasture belonged, accused could
not complain of admission of officer's evidence regarding accused's movements and finding of the liquor be-
cause the pasture was not described in the warrant. Davis v. State (Cr.App. 1942) 145 Tex.Crim. 69, 165 S.W.2d
732. Criminal Law       394.4(8)




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V.T.C.A., Alcoholic Beverage Code § 11.01                                                                   Page 17




Where liquor, by reason of officer's observation of accused, and not as a result of a search under a previously ex-
ecuted warrant authorizing search of a filling station, was found in an open pasture some 200 yards from filling
station at which accused was employed, officer's evidence regarding accused's movements and finding of the li-
quor was not inadmissible on ground that accused was not named in the warrant. Davis v. State (Cr.App. 1942)
145 Tex.Crim. 69, 165 S.W.2d 732. Criminal Law           394.4(3)


In liquor prosecution, two pint bottles of gin in clean carton which had originally contained 24 such bottles and
large number of empty bottles which had contained intoxicating liquor found by officers in their search of de-
fendant's premises under search warrant were admissible. Martin v. State (Cr.App. 1947) 151 Tex.Crim. 62, 204
S.W.2d 627. Criminal Law         404.55


  25. ---- Other offenses, admissibility of evidence

In prosecution for possession of intoxicating liquor for purpose of sale, evidence of five prior convictions of de-
fendant for sale of intoxicating liquor, with no showing just when convictions were had, was properly introduced
to substantiate state's contention that possession of liquor was for purpose of sale. Carroll v. State (Cr.App.
1951) 156 Tex.Crim. 553, 244 S.W.2d 828. Criminal Law            371(10)


In action for forfeiture of automobile allegedly used to transport illicit beverages in a wet area without a permit,
evidence of conviction in criminal case arising from same incident as forfeiture proceeding was admissible.
White v. State (Civ.App. 1959) 329 S.W.2d 446, ref. n.r.e.. Judgment          648


  26. Sufficiency of evidence--In general

Undisputed testimony of state's witnesses that intoxicating liquors were kept stored, possessed, and sold on
club's premises, contrary to State Liquor Control Act, on various dates, established as matter of law that such
premises constituted a “common nuisance” subject to abatement, in absence of proof that nuisance was abated
before filing or trial of state's abatement action. State v. Crystal Club, 1944, 177 S.W.2d 110. Intoxicating Li-
quors       275


In prosecution for violation of liquor laws, evidence, consisting mainly of evidence that defendant's footprints or
tracks were found leading to and in the vicinity of illegal liquors which were hidden from view upon and along a
public highway, was insufficient to support conviction. Harris v. State (Cr.App. 1956) 163 Tex.Crim. 519, 294
S.W.2d 123. Intoxicating Liquors         236(4)


  27. ---- Possession and possession for sale, sufficiency of evidence

In prosecution for possession of alcoholic liquor for purpose of sale, evidence that liquor was found in house on
wheels, occupied by third party and located near highway not far from accused's filling station, was insufficient
to sustain conviction, though when filling station was being searched accused had made statement that anything
found in house on wheels was his. Scott v. State (Cr.App. 1937) 132 Tex.Crim. 471, 104 S.W.2d 868. Intoxicat-
ing Liquors       236(4)




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V.T.C.A., Alcoholic Beverage Code § 11.01                                                                   Page 18




In prosecution for unlawful possession of beer for purpose of sale, evidence that sheriff and ranger found de-
fendant near railroad right of way, that defendant ran away when pursued and shot at, and that sheriff found beer
about 60 feet from where defendant was first seen, did not authorize conviction. Allen v. State (Cr.App. 1940)
138 Tex.Crim. 303, 136 S.W.2d 232. Intoxicating Liquors        236(7)


In trial for unlawful possession of intoxicating liquors, where evidence shows equal opportunity of another or
others than defendant to possess such liquors, state must disprove such hypothesis to justify conviction on cir-
cumstantial evidence, but such rule is complied with by evidence that such others exercised no control over or
possession of liquors, and had no opportunity to do so. Peters v. State (Cr.App. 1941) 142 Tex.Crim. 146, 151
S.W.2d 592. Intoxicating Liquors        236(4)


In trial for unlawfully possessing intoxicating liquors for purpose of sale, evidence that house in which officers
found alcoholic beverages was defendant's residence as known to such officers and that he rented it, paid rent,
lived there and was in charge thereof was sufficient to show his possession of such beverages for purpose of
sale, though he was not present at time of officers' search and his mother, sister and brother, as well as his wife,
sometimes lived with him. Peters v. State (Cr.App. 1941) 142 Tex.Crim. 146, 151 S.W.2d 592. Intoxicating Li-
quors        140


In trial for unlawful possession of intoxicating liquors found by officers in cellar of defendant's house during his
absence, where there was no proof that residence or living quarters of house were searched or who was in it at
the time, nor any evidence as to where defendant was when his wife got in touch with him while officers waited
to make search, proof did not negative fact that key with which officer unlocked cellar was obtained from or fur-
nished by defendant, and there was no affirmative proof that other occupants of house than defendant's wife ex-
ercised any right of control over house or cellar, evidence was sufficient to support conviction as against conten-
tion that evidence raised unrebutted hypothesis that other occupants of house than defendant had possession of
house, cellar and liquors. Peters v. State (Cr.App. 1941) 142 Tex.Crim. 146, 151 S.W.2d 592. Intoxicating Li-
quors        236(4)


In prosecution for possessing liquor for sale in a wet area without first obtaining a permit for sale, evidence sus-
tained conviction. Anderson v. State (Cr.App. 1943) 146 Tex.Crim. 222, 172 S.W.2d 310. Intoxicating Liquors
     236(7)


Testimony of agent of Texas Liquor Control Board searching home and finding therein a large quantity of wine
and whisky was sufficient to sustain conviction for possessing whisky for purpose of sale in a wet area without a
permit. Dearman v. State (Cr.App. 1944) 147 Tex.Crim. 308, 180 S.W.2d 366. Intoxicating Liquors           236(7)


Evidence that whiskey in containers without tax stamps affixed was found in house occupied by husband and
wife was insufficient to support conviction of wife for possessing whiskey in absence of evidence that she exer-
cised any control or management thereof. Wade v. State (Cr.App. 1944) 147 Tex.Crim. 613, 183 S.W.2d 576.
Intoxicating Liquors       236(6.5)




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V.T.C.A., Alcoholic Beverage Code § 11.01                                                                 Page 19




In prosecution for possession of whisky for purpose of sale in a wet area without a permit, proof that area in
which offense was committed was not dry was unnecessary. Fullylove v. State (Cr.App. 1955) 161 Tex.Crim.
629, 279 S.W.2d 357. Intoxicating Liquors      223(1)


In absence of any evidence that defendant had possessed whiskey for purpose of sale, evidence was insufficient
to support conviction for possession of whiskey for purpose of sale in a wet area without having procured permit
required by law. Sarles v. State (Cr.App. 1958) 165 Tex.Crim. 642, 310 S.W.2d 336. Intoxicating Liquors
236(7)


Testimony that defendant while under bond offered money to an officer who saw defendant throw the whisky to
suppress or influence his testimony was insufficient to show that defendant possessed whisky for sale. Widener
v. State (Cr.App. 1961) 171 Tex.Crim. 238, 347 S.W.2d 251. Intoxicating Liquors       236(7)


  28. ---- Sale or purchase, sufficiency of evidence

Testimony that witness was present at the time and place alleged in complaint of the sale of whisky to a named
person and that witness did not at any time see such person purchase or get any intoxicating liquor from ac-
cused, although admissible, would have little probative force in refuting direct and positive testimony by state's
witnesses that liquor was purchased as alleged. Fowler v. State (Cr.App. 1942) 144 Tex.Crim. 382, 162 S.W.2d
969. Criminal Law        387


Evidence was insufficient to sustain conviction of unlawful sale of whiskey in a wet area without a permit or li-
cense. Stevens v. State (Cr.App. 1966) 402 S.W.2d 177. Intoxicating Liquors       236(17)


Testimony of inspector with enforcement division of Alcoholic Beverage Commission was sufficient to show
that premises on which defendant sold whiskey were a place where a permit could legally be secured to sell
whiskey. Harris v. State (Cr.App. 1973) 489 S.W.2d 303. Intoxicating Liquors  236(17)


Evidence that undercover agent purchased bottle of whiskey from defendant on premises for which only a wine
and beer retailer's permit had been issued was sufficient to support defendant's conviction for selling whiskey in
a wet area without a permit. Harris v. State (Cr.App. 1973) 489 S.W.2d 303. Intoxicating Liquors         236(17)


  29. ---- Transportation, sufficiency of evidence

Flight of accused was insufficient, standing alone, to warrant conviction for unlawfully transporting intoxicating
liquor. Reed v. State (Cr.App. 1940) 140 Tex.Crim. 243, 144 S.W.2d 268. Intoxicating Liquors          236(20)


  30. ---- Manufacture, sufficiency of evidence

Evidence was insufficient to support finding that defendant had possession of equipment designed for manufac-
ture of illicit beverage. Smith v. State (Cr.App. 1962) 172 Tex.Crim. 407, 357 S.W.2d 752. Intoxicating Liquors
      236(19)




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V.T.C.A., Alcoholic Beverage Code § 11.01                                                                 Page 20




Evidence supported conviction of defendant, who allegedly was helped by accomplice to set up and put into op-
eration a still, for possession of equipment for manufacture of illicit whiskey. Trumble v. State (Cr.App. 1963)
367 S.W.2d 333. Intoxicating Liquors         236(19)


  31. ---- Local option law, sufficiency of evidence

A conviction of a cafe and dance hall operator for violating local option law could not be sustained on evidence
that liquor was found near operator's premises where there was no showing that operator had any connection
with liquor or had sold it. Bolton v. State (Cr.App. 1940) 138 Tex.Crim. 433, 137 S.W.2d 36. Intoxicating Li-
quors       236(1)


Evidence, consisting of testimony of employee of State Liquor Control Board as to purchasing of whisky from
defendant in cafe in county in which Local Option Law was in effect, supported conviction of operating an open
saloon. Walker v. State (Cr.App. 1940) 138 Tex.Crim. 660, 137 S.W.2d 1033. Intoxicating Liquors        236(9)


  32. Jury questions

In prosecution for being interested in the operation of an open saloon, whether accused was directly or indirectly
interested in the business on day of alleged offense was for the jury. Malone v. State (Cr.App. 1938) 135
Tex.Crim. 306, 119 S.W.2d 885. Intoxicating Liquors          238(2)


In prosecution for unlawfully selling whisky, question whether defendant sold whisky himself or acted only as
agent for buyer was for the jury. May v. State (Cr.App. 1944) 147 Tex.Crim. 204, 179 S.W.2d 563. Intoxicating
Liquors      238(2)


Whether accused had possession of whisky in violation of county liquor laws was a question for the jury. Callo-
way v. State (Cr.App. 1950) 155 Tex.Crim. 245, 233 S.W.2d 847. Intoxicating Liquors       238(1)


Question of whether ordinance of home-rule city regulating sale of liquor within its limits was void as being ar-
bitrary and unreasonable was a matter of law which was not for jury determination. Discount Liquors No. 2, Inc.
v. Texas Liquor Control Bd. (Civ.App. 1967) 420 S.W.2d 422, ref. n.r.e.. Municipal Corporations         121


  33. Conduct of counsel

Where original bill of exceptions showed that court sustained objection to question whether accused charged
with violating liquor laws was under suspended sentence in a liquor case of federal court but refused to instruct
jury not to consider question asked and county attorney in presence of jury argued in favor of question stating
that he had right to show by such witness that accused's real occupation was not that of a farmer but that of a
bootlegger, and court was requested by proper motion to declare a mistrial which was refused, conviction for vi-
olation of liquor laws could not be sustained. Dorrell v. State (Cr.App. 1940) 138 Tex.Crim. 534, 137 S.W.2d
772. Criminal Law        2206




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V.T.C.A., Alcoholic Beverage Code § 11.01                                                                  Page 21




In prosecution for possessing unstamped whisky, wherein defendant entered plea of not guilty and made no ad-
mission that jar of liquid produced in court was intoxicating liquor, action of county attorney, over objection, in
exhibiting the jar of liquid to jury, and asking jurors to smell or otherwise examine the liquid and determine for
themselves whether it was intoxicating liquor, was reversible error, because county attorney made the jurors be-
come witnesses in the case on a controverted issue. Smith v. State (Cr.App. 1949) 153 Tex.Crim. 193, 218
S.W.2d 851. Criminal Law           861; Criminal Law        1174(1)


  34. Instructions--In general

In prosecution for being interested in operation of an open saloon, instruction that although jury find beyond
reasonable doubt that an open saloon was operated on day in question, still accused could not be convicted if a
reasonable doubt existed that accused severed his connection with business prior to the date of the offense, ad-
equately protected accused's rights. Malone v. State (Cr.App. 1938) 135 Tex.Crim. 306, 119 S.W.2d 885. Intox-
icating Liquors      239(1)


In prosecution for violation of liquor law in county allegedly constituting a dry area, charge that county was a
dry area was error, where there was no proof of order declaring result of local option election prohibiting sale of
intoxicants in county. Sweeten v. State (Cr.App. 1938) 135 Tex.Crim. 445, 120 S.W.2d 1074. Intoxicating Li-
quors       239(11)


In prosecution for violation of liquor law, refusal to give requested charge on circumstantial evidence was not
error where sheriff testified that he found 25 bottles of intoxicating beer on defendant's premises. Sweeten v.
State (Cr.App. 1938) 135 Tex.Crim. 445, 120 S.W.2d 1074. Criminal Law           814(17)


Where accused was charged with sale of whisky containing alcohol in excess of 4 per cent. by weight without
permit court instructed jury that county was a wet county and an area in which sale of alcoholic beverages con-
taining alcohol in excess of 4 per cent. by weight could be legally carried on under legal permit whereas local
option election had legalized sale by permit of beverages containing only 3.2 per cent. alcohol by weight and the
county was a “dry area” as to sale of the liquor charged, whole theory was erroneously charged and proof would
not sustain conviction. Tillerson v. State (Cr.App. 1942) 143 Tex.Crim. 473, 159 S.W.2d 502. Intoxicating Li-
quors       239(9)


In liquor prosecution, court erred in failing to charge on law relative to the presumption of innocence and reas-
onable doubt, where accused did not object to charge for such omission but directed court's attention thereto by
special charge on the subject. Walker v. State (Cr.App. 1943) 146 Tex.Crim. 321, 174 S.W.2d 974. Criminal
Law        845


In prosecution for possession of whisky for purpose of sale in a wet area without a permit, no error was shown
by failure of court to charge as to dry status of the precinct where alleged unlawful possession occurred, in ab-
sence of evidence raising an issue as to dry status of that area. Fullylove v. State (Cr.App. 1955) 161 Tex.Crim.
629, 279 S.W.2d 357. Criminal Law           814(3)




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V.T.C.A., Alcoholic Beverage Code § 11.01                                                                  Page 22




  35. ---- Possession and possession for sale, instructions

In prosecution under Vernon's Ann.P.C. (1925) art. 666-4(a) (repealed), for the unlawful possession of intoxicat-
ing liquor for the purpose of sale in a wet area, where there was no evidence that defendant had sold or offered
to sell any intoxicating liquor on the premises where the liquor was found, or otherwise, charge that possession
of more than one quart of intoxicating liquor was prima facie evidence that it was possessed for the purpose of
sale was reversible error. Bailey v. State (Cr.App. 1937) 133 Tex.Crim. 178, 109 S.W.2d 1055. Intoxicating Li-
quors        239(7)


Instruction that jury could find accused guilty of possessing distilled spirits on licensed wine and beer premises
only upon finding that accused had the distilled spirits in his possession on the premises and that if some person
other than accused possessed the distilled spirits jury should find accused not guilty, and an instruction properly
defining term “possession,” adequately presented affirmative defense that accused's son-in-law who owned
package liquor store possessed the distilled spirits. Manos v. State (Cr.App. 1938) 134 Tex.Crim. 234, 115
S.W.2d 655. Intoxicating Liquors        239(1)


Instruction that jury could find accused guilty of possessing distilled spirits on licensed wine and beer premises
only upon finding beyond reasonable doubt that accused had the distilled spirits in his possession on premises
where accused was authorized to sell vinous and malt beverages, and that if some person other than accused pos-
sessed the distilled spirits jury should find accused not guilty, and an instruction properly defining term
“possession,” were sufficient to embrace elements of offense charged, as against contention charge failed to re-
quire jury to believe beyond reasonable doubt that accused possessed distilled spirits on the premises. Manos v.
State (Cr.App. 1938) 134 Tex.Crim. 234, 115 S.W.2d 655. Intoxicating Liquors             239(1)


Evidence that when accused saw sheriff enter accused's place of business, accused picked up a pitcher of about a
gallon capacity, which was half full of whisky, ran to the sink, turned on the water and began pouring whisky in-
to the sink, that sheriff stopped the water and stopped up the sink, and obtained about two-thirds of a half gallon
jar of whisky mixed with water showed that accused possessed more than one quart of whisky so as to justify the
court in charging on the prima facie presumption that the possession was prima facie evidence that the whisky
was possessed for purpose of sale. Bright v. State (Cr.App. 1938) 134 Tex.Crim. 421, 115 S.W.2d 964. Intoxic-
ating Liquors        239(2)


In prosecution for possessing intoxicating liquor for sale in which only evidence was a quantity of whisky seen
by officers on floor of defendant's home and which they estimated to be more than a quart, refusal to instruct on
law of circumstantial evidence was reversible error. Hinton v. State (Cr.App. 1938) 135 Tex.Crim. 400, 120
S.W.2d 1053. Criminal Law          784(1)


An instruction that, if jury should believe beyond reasonable doubt from evidence in case that defendant pos-
sessed intoxicating liquor for purpose of sale, they should find defendant guilty, but, if they did not so believe,
they should find defendant not guilty, was not erroneous, as shifting burden of proof to defendant. Phariss v.
State (Cr.App. 1939) 137 Tex.Crim. 469, 131 S.W.2d 965. Criminal Law           778(5)




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V.T.C.A., Alcoholic Beverage Code § 11.01                                                                    Page 23




Defendant convicted of possessing liquor in wet area for purpose of sale without obtaining permit of sale could
not complain of refusal to instruct jury that proof of possession of liquor was not sufficient to convict and that
state must show beyond reasonable doubt that there was a sale by defendant where charge would have been im-
proper and charge given by court sufficiently covered question of sale. Anderson v. State (Cr.App. 1943) 146
Tex.Crim. 222, 172 S.W.2d 310. Criminal Law           829(3)


A charge which gave undue prominence to the evidence of other prior sales as bearing on intent of accused in
possessing the liquor in question was improper. Walker v. State (Cr.App. 1943) 146 Tex.Crim. 321, 174 S.W.2d
974. Criminal Law        811(2)


In prosecution for the possession of intoxicating liquor for the purpose of sale, jury was properly charged to con-
sider the whisky exhibited before them as found on defendant's premises, only if they found that defendant gave
the officers permission to search the premises without a warrant, where testimony conflicted as to whether such
permission was given. Corley v. State (Cr.App. 1947) 150 Tex.Crim. 107, 199 S.W.2d 782. Criminal Law
783.5


Failure of trial court to instruct jury that if jury believed that husband's and wife's possession of intoxicating li-
quor which was found in their home on six previous occasions was for their personal use, then jury could not
consider such possession as evidence that husband and wife would in future violate Liquor Control Act unless
restrained, was reversible error. Templin v. State (Civ.App. 1954) 274 S.W.2d 171, ref. n.r.e.. Appeal And Error
      1067; Intoxicating Liquors         276


  36. ---- Sale or purchase, instructions

In prosecution for selling intoxicating liquor, consisting of grape juice, which defendant alleged had been put up
in hermetically sealed jars by his wife in the same manner that she put up fruit and that the wine did not contain
alcohol at the time it was sold, failure to instruct that a conviction was not authorized if the liquor did not con-
tain alcohol in excess of one-half of 1 per cent. by volume at the time it was sold was reversible error. Terry v.
State (Cr.App. 1938) 134 Tex.Crim. 95, 114 S.W.2d 254. Intoxicating Liquors            239(5)


In prosecution for selling intoxicating liquor, evidence that defendant, as purchaser's agent, bought liquor from
another and was not interested on seller's behalf renders it erroneous to refuse charge presenting such issue to
jury or to give charge that if defendant delivered liquor to and received money from purchaser, there was a sale
thereof. Hollis v. State (Cr.App. 1942) 144 Tex.Crim. 165, 161 S.W.2d 794. Intoxicating Liquors         239(2)


In prosecution for unlawful sale of intoxicating liquor, evidence by way of defense that defendant acted for pro-
secuting witness as his agent in purchasing liquor for delivery to witness was for the jury, and failure to submit
affirmative charge on that defense was reversible error. Smith v. State (Cr.App. 1948) 152 Tex.Crim. 399, 214
S.W.2d 471. Criminal Law         1173.2(3); Intoxicating Liquors       238(2); Intoxicating Liquors        239(3)


In prosecution for violation of liquor laws, wherein defendant proved that the sale, if any, took place in adjoin-
ing county, refusal of defendant's requested instruction that before jury could convict, jury should believe bey-




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V.T.C.A., Alcoholic Beverage Code § 11.01                                                                 Page 24




ond a reasonable doubt that alleged sale took place within 400 yards of line of county in which prosecution was
had, was reversible error. Crawford v. State (Cr.App. 1948) 152 Tex.Crim. 421, 214 S.W.2d 633. Criminal Law
     772(4); Criminal Law        1173.2(1)


  37. Verdict and judgment

Under information charging in three counts that defendant, “on or about” three specified dates, made sales of
whisky to named person, without alleging specific times or places, conviction could be had under one or all of
counts on showing of unlawful sale of whisky at any time or place within two years before filing of information,
so that it alleged only one unlawful sale, and jury having convicted defendant for offense charged in first count,
judgment should have been entered thereon, and judgment entered on verdict of guilty under each count must be
reformed on appeal so as to find defendant guilty as charged in first count only and fix his punishment as as-
sessed by jury under such count. Wiley v. State (Cr.App. 1956) 163 Tex.Crim. 512, 294 S.W.2d 118. Criminal
Law         29(5.5); Criminal Law       1184(1); Sentencing And Punishment         533


  38. Sentence and punishment--In general

Where provisions of the Texas Alcoholic Beverage Code (TABC) prohibiting direct sales and shipments of wine
by out-of-state vintners to Texas consumers were found to violate the Commerce Clause, appropriate remedy
was to enjoin administrator of state alcoholic beverage commission from enforcing the economically discrimin-
atory provisions as applied to plaintiff-consumers and to out-of-state wineries, not to enjoin enforcement of the
special statutory benefits accorded to in-state wineries, as requested by administrator; plaintiffs sued to obtain
equal benefits under the TABC, goal of extension of benefits was inherent in a claim under the Commerce
Clause, and administrator's request that appellate court reform the remedy imposed by the district court, in es-
sence, asked appellate court to act in a legislative capacity, which it declined to do. Dickerson v. Bailey, C.A.5
(Tex.)2003, 336 F.3d 388. Civil Rights         1456


The punishment for the offense of selling wine without a permit in a wet area is a fine of not less than $100 nor
more than $1,000 or imprisonment for not more than one year or both such fine and imprisonment. Skaggs v.
State (Cr.App. 1952) 157 Tex.Crim. 195, 247 S.W.2d 906. Intoxicating Liquors          242


Paragraph (a) of Vernon's Ann.P.C. (1925) art. 666-4 (repealed), making it unlawful for any person to possess
for purpose of sale any liquor in a wet area without having first procured a permit was separate from paragraph
(c)(1) of said article, making it unlawful for any person to possess any alcoholic beverage in a public place for
purpose of consuming same during certain specified hours, and punishment provided under paragraph (c)(3) of
said article was not applicable to offense for possession of liquor for purpose of sale without required license.
Hill v. State (Cr.App. 1957) 164 Tex.Crim. 146, 297 S.W.2d 679. Intoxicating Liquors         242


Where defendant was adjudged guilty of unlawfully selling whisky in a wet area without first having procured a
permit to sell such liquor, his punishment was properly assessed within terms of Vernon's Ann.P.C. (1925) art.
666-41 (repealed), providing punishment for violation of any provision of Liquor Control Act for which a defin-
ite punishment had not been provided. Hill v. State (Cr.App. 1957) 164 Tex.Crim. 146, 297 S.W.2d 679. Intox-
icating Liquors       242




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V.T.C.A., Alcoholic Beverage Code § 11.01                                                                 Page 25




Fifty dollar fine for possession of whiskey and vodka in a wet area for purpose of sale without a license was less
than $100 minimum provided by law requiring reversal and remand. Clardy v. State (Cr.App. 1967) 415 S.W.2d
423. Criminal Law         1177.3(1); Intoxicating Liquors      242


  39. ---- Enhancement of punishment

Offenses of transporting whisky in wet area without permit and of transporting whisky in dry area were not the
same and were not of like character and conviction of the latter offense could not be used to enhance punishment
upon conviction of the former offense. Graham v. State (Cr.App. 1953) 159 Tex.Crim. 52, 260 S.W.2d 887. Sen-
tencing And Punishment        1260


The offense of selling whisky on Sunday and offense of selling whisky without a permit in wet area were of-
fenses of like character and hence prior convictions for selling whisky on Sunday enhanced punishment on sub-
sequent conviction for latter offense. Hill v. State (Cr.App. 1956) 163 Tex.Crim. 331, 290 S.W.2d 677. Senten-
cing And Punishment         1260


  40. Review

Where complaint and information charging violation of liquor law appeared regular, record was before Court of
Criminal Appeals without statement of facts or bill of exceptions, in absence of evidence adduced on trial, court
was unable to appraise matters presented in motion for new trial and conviction was affirmed. Phariss v. State
(Cr.App. 1943) 176 S.W.2d 196.


In determining whether applicant who appealed from order of Liquor Control Board's assistant administrator, re-
fusing application for “beer retail on-premise license”, had discharged burden, all evidence and record as whole
would be looked to. Texas Liquor Control Bd. v. Scott (Civ.App. 1961) 347 S.W.2d 841, ref. n.r.e.. Intoxicating
Liquors       75(7)


V. T. C. A., Alcoholic Beverage Code § 11.01, TX AL BEV § 11.01


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 11.46                                                                  Page 1




                                         Effective: September 1, 2003

Vernon's Texas Statutes and Codes Annotated Currentness
 Alcoholic Beverage Code (Refs & Annos)
    Title 3. Licenses and Permits
      Subtitle A. Permits
            Chapter 11. Provisions Generally Applicable to Permits (Refs & Annos)
              Subchapter B. Application for and Issuance of Permits
                § 11.46. General Grounds for Refusal

(a) The commission or administrator may refuse to issue an original or renewal permit with or without a hearing
if it has reasonable grounds to believe and finds that any of the following circumstances exists:



  (1) the applicant has been convicted in a court of competent jurisdiction of the violation of any provision of
  this code during the two years immediately preceding the filing of his application;


  (2) five years have not elapsed since the termination, by pardon or otherwise, of a sentence imposed on the ap-
  plicant for the conviction of a felony;


  (3) within the six-month period immediately preceding his application the applicant violated or caused to be
  violated a provision of this code or a rule or regulation of the commission which involves moral turpitude, as
  distinguished from a technical violation of this code or of the rule;


  (4) the applicant failed to answer or falsely or incorrectly answered a question in an original or renewal ap-
  plication;


  (5) the applicant is indebted to the state for any taxes, fees, or payment of penalty imposed by this code or by
  rule of the commission;


  (6) the applicant is not of good moral character or his reputation for being a peaceable, law-abiding citizen in
  the community where he resides is bad;


  (7) the applicant is a minor;


  (8) the place or manner in which the applicant may conduct his business warrants the refusal of a permit based
  on the general welfare, health, peace, morals, and safety of the people and on the public sense of decency;




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V.T.C.A., Alcoholic Beverage Code § 11.46                                                                     Page 2




  (9) the applicant is in the habit of using alcoholic beverages to excess or is physically or mentally incapacit-
  ated;


  (10) the applicant will sell liquor unlawfully in a dry area or in a manner contrary to law or will knowingly
  permit an agent, servant, or employee to do so;


  (11) the applicant is not a United States citizen or has not been a citizen of Texas for a period of one year im-
  mediately preceding the filing of his application, unless he was issued a permit or renewal permit on or before
  September 1, 1948, and has at some time been a United States citizen;


  (12) the applicant does not provide an adequate building available at the address for which the permit is
  sought before conducting any activity authorized by the permit;


  (13) the applicant is residentially domiciled with a person whose permit or license has been cancelled for
  cause within the 12 months immediately preceding the date of his present application;


  (14) the applicant has failed or refused to furnish a true copy of his application to the commission's district of-
  fice in the district in which the premises for which the permit is sought are located; or


  (15) during the six months immediately preceding the filing of the application the premises for which the per-
  mit is sought have been operated, used, or frequented for a purpose or in a manner that is lewd, immoral, or
  offensive to public decency.


(b) The commission or administrator shall refuse to issue an original permit authorizing the retail sale of alco-
holic beverages unless the applicant for the permit files with the application a certificate issued by the comp-
troller of public accounts stating that the applicant holds, or has applied for and satisfies all legal requirements
for the issuance of, a sales tax permit, if required, for the place of business for which the alcoholic beverage per-
mit is sought.


(c) The commission or administrator shall refuse to issue for a period of one year after cancellation a mixed
beverage permit or private club registration permit for a premises where a license or permit has been canceled
during the preceding 12 months as a result of a shooting, stabbing, or other violent act, or as a result of an of-
fense involving drugs.



CREDIT(S)

Acts 1977, 65th Leg., p. 408, ch. 194, § 1, eff. Sept. 1, 1977. Amended by Acts 1979, 66th Leg., p. 1965, ch.
777, § 3, eff. Aug. 27, 1979; Acts 1981, 67th Leg., p. 252, ch. 107, § 1, eff. Sept. 1, 1981; Acts 1985, 69th Leg.,
ch. 285, § 2, eff. Sept. 1, 1986; Acts 1985, 69th Leg., ch. 462, § 3, eff. Sept. 1, 1986; Acts 1985, 69th Leg., ch.
690, § 1, eff. Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 934, § 21 eff. Sept. 1, 1993; Acts 2003, 78th Leg., ch. 625,




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V.T.C.A., Alcoholic Beverage Code § 11.46                                                                    Page 3




§ 1, eff. Sept. 1, 2003.


VALIDITY

    <Subsection (a)(11) of this section has been declared unconstitutional by Siesta Village Market, LLC
    v. Perry, N.D.Tex.2008, 530 F.Supp.2d 848.>


HISTORICAL AND STATUTORY NOTES

2007 Main Volume

Acts 1979, 66th Leg., p. 1965, ch. 777 inserted subsection designation “(a)” and added subsec. (b).


Acts 1981, 67th Leg., p. 252, ch. 107, in subd. (a)(7), substituted “19” for “18”.


Acts 1985, 69th Leg., ch. 285 and Acts 1985, 69th Leg., ch. 462, in subd. (a)(7), substituted “a minor” for “less
than 19 years of age”.


Acts 1985, 69th Leg., ch. 690 added subsec. (c).


Acts 1993, 73rd Leg. ch. 934, in subsec. (a)(11), substituted “one year” for “three years”; in subsec. (a)(12), sub-
stituted “provide” for “have” and added “before conducting any activity authorized by the permit”; and, in sub-
sec. (c), substituted “a license or permit has” for “two or more licenses and permits have”.


Acts 2003, 78th Leg., ch. 625 in subsec. (a)(2) substituted “five years” for “three years”.


Section 6 of Acts 2003, 78th Leg., ch. 625 provides:


“The changes in law made by this Act apply only to an application for an alcoholic beverage license or permit
that is made on or after the effective date [Sept. 1, 2003] of this Act. An application made before the effective
date of this Act is governed by the law in effect on the date the application is made, and that law is continued in
effect for that purpose.”



Prior Laws:

    Acts 1935, 44th Leg., 2nd C.S., p. 1795, ch. 467, art. 1, § 11.

    Acts 1937, 45th Leg., p. 1053, ch. 448, § 11.

    Acts 1943, 48th Leg., p. 509, ch. 325, § 11.




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V.T.C.A., Alcoholic Beverage Code § 11.46                                                               Page 4




    Acts 1949, 51st Leg., p. 1011, ch. 543, § 2.

    Acts 1971, 62nd Leg., p. 682, ch. 65, § 4.

    Vernon's Ann.P.C. (1925) art. 666-11.

    Acts 1977, 65th Leg., p. 1713, ch. 681, § 1.


LIBRARY REFERENCES

2007 Main Volume

    Intoxicating Liquors       71.
    Westlaw Topic No. 223.
    C.J.S. Intoxicating Liquors §§ 163, 165 to 170.

RESEARCH REFERENCES

2010 Electronic Update

ALR Library

116 ALR 5th 149, Interplay Between Twenty-First Amendment and Commerce Clause Concerning State Regu-
lation of Intoxicating Liquors.


Encyclopedias

TX Jur. 3d Intoxicating Liquors § 64, Permits.


TX Jur. 3d Intoxicating Liquors § 68, Permits.


TX Jur. 3d Intoxicating Liquors § 70, What Constitutes General Welfare, Safety, and Public Decency.


TX Jur. 3d Intoxicating Liquors § 71, Hearing Requirement.


TX Jur. 3d Intoxicating Liquors § 83, Issuance or Refusal.


TX Jur. 3d Intoxicating Liquors § 84, Issuance or Refusal--Mixed Beverage Permit Held by Corporation.


UNITED STATES SUPREME COURT

Minimum drinking age as condition for state's receipt of federal highway funds, state's rights and Twenty-first
Amendment, see South Dakota v. Dole, 1987, 107 S.Ct. 2793, 483 U.S. 203, 97 L.Ed.2d 171.




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V.T.C.A., Alcoholic Beverage Code § 11.46                                                                  Page 5




NOTES OF DECISIONS

  In general 2
  Erroneous issuance of permit 7
  General welfare 4
  Location of establishment 6
  Municipal powers 3
  Traffic 5
  Validity 1

  1. Validity

Neither the claim that alcoholic beverage distribution system was established to protect the health, safety, wel-
fare, morals and temperance of the citizens of Texas nor the need for screening of applicant's reputation in the
community, could justify discrimination on interstate commerce resulting from residency requirements for per-
mits under Texas Alcoholic Beverage Code. Cooper v. McBeath, C.A.5 (Tex.)1994, 11 F.3d 547, certiorari
denied 114 S.Ct. 2675, 512 U.S. 1205, 129 L.Ed.2d 810. Commerce          74.40; Intoxicating Liquors        15


Individuals who had option to purchase majority of stock of liquor licensee and who would receive their remain-
ing stock once the transfer could occur without endangering the permit had standing to challenge constitutional-
ity of residency requirements for permits under the Texas Alcoholic Beverage Code. Cooper v. McBeath, C.A.5
(Tex.)1994, 11 F.3d 547, certiorari denied 114 S.Ct. 2675, 512 U.S. 1205, 129 L.Ed.2d 810. Constitutional Law
      714


Provisions of Texas Alcoholic Beverage Code imposing residency requirements on permit holders discriminated
against nonresidents, thus imposing burden on the state to provide justification, those challenging the require-
ments were not required to prove discriminatory intent. Cooper v. McBeath, C.A.5 (Tex.)1994, 11 F.3d 547, cer-
tiorari denied 114 S.Ct. 2675, 512 U.S. 1205, 129 L.Ed.2d 810. Commerce             74.40; Intoxicating Liquors
      15


State's interest in facilitating background checks of permit applicants which resulted in discrimination against
nonresidents in issuance of permits under the Texas Alcoholic Beverage Code was not within the core concern
of the Twenty-first Amendment. Cooper v. McBeath, C.A.5 (Tex.)1994, 11 F.3d 547, certiorari denied 114 S.Ct.
2675, 512 U.S. 1205, 129 L.Ed.2d 810. Intoxicating Liquors         58


Texas Alcoholic Beverage Code's Texas citizenship requirements were unconstitutional under Commerce Clause
as applied to out-of-state wine retailers; Texas could not condition qualification for Texas Alcoholic Beverage
Commission (TABC) permits on establishing citizenship in Texas. Siesta Village Market, LLC v. Perry,
N.D.Tex.2008, 530 F.Supp.2d 848, vacated in part 595 F.3d 249, opinion withdrawn and superseded on recon-
sideration 612 F.3d 809. Commerce          74.40; Intoxicating Liquors      15


State failed in its burden to prove that no nondiscriminatory alternative means were available to address the
state's interest in ensuring that those who distributed alcoholic beverages had a stake in the welfare of the com-




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V.T.C.A., Alcoholic Beverage Code § 11.46                                                                    Page 6




munity which they operated, and thus facially discriminatory one-year durational residency and citizenship re-
quirements upon out-of-state wine and spirits distributors imposed an unconstitutional burden upon interstate
commerce, and did not fall within the ambit of the Twenty-First Amendment; residency requirements were im-
posed upon wine and spirits distributor's request for wholesaler's permit, general distributor's license, and im-
porter's license, but were not imposed upon in-state distributors, and even though the residency period had been
reduced by legislature from three years to one year, the regulation remained discriminatory. Southern Wine and
Spirits of Texas, Inc. v. Steen, W.D.Tex.2007, 486 F.Supp.2d 626. Commerce           74.40; Intoxicating Liquors
      15


  2. In general

Fact that large number of residents of area protested issuance of mixed beverage permit and mixed beverage late
hours permit was not of itself sufficient reason to deny application where applicant was otherwise qualified.
Texas Alcoholic Beverage Commission v. Mikulenka (Civ.App. 1974) 510 S.W.2d 616. Intoxicating Liquors
      69


In order to deny alcoholic beverage permit to fully qualified applicant who proposes to operate lawful business
in wet area in compliance with zoning ordinances of city, be shown so as to justify finding that place some un-
usual conditions or situations must or manner in which applicant may conduct his business warrants refusal of
permit. Dienst v. Texas Alcoholic Beverage Commission (Civ.App. 1976) 536 S.W.2d 667. Intoxicating Liquors
     69


  3. Municipal powers

City ordinance, which provided that no permit for construction of a building to be used as a retail outlet for alco-
holic beverages should be issued by city unless owner of such building had been a resident of city for not less
than one year, was invalid under Texas law. Davis v. Coffee City, Tex., E.D.Tex.1972, 356 F.Supp. 550. Intox-
icating Liquors      15


Texas Liquor Control Act did not allow a municipality to impose, under guise of regulating the issuance of
building permits, a residency requirement supplemental to the residency requirements included in Vernon's
Ann.P.C. (1925) art. 666-11 (repealed). Davis v. Coffee City, Tex., E.D.Tex.1972, 356 F.Supp. 550. Intoxicating
Liquors      11


Texas Legislature, in enacting the Texas Liquor Control Act did not intend to permit local municipalities to pro-
mulgate residency requirements for obtaining alcoholic beverage permits which in particular cases might be
more restrictive than those imposed in first instance by Vernon's Ann.P.C. (1925) art. 666-11 (repealed). Davis
v. Coffee City, Tex., E.D.Tex.1972, 356 F.Supp. 550. Intoxicating Liquors       11


Texas Legislature, in enacting Texas Liquor Control Act did not intend to grant municipalities broad and general
power to regulate sale of intoxicating liquors. Davis v. Coffee City, Tex., E.D.Tex.1972, 356 F.Supp. 550. In-
toxicating Liquors      10(1)




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V.T.C.A., Alcoholic Beverage Code § 11.46                                                                   Page 7




Zoning provision of city charter confining sale of alcoholic beverages to certain area in downtown business sec-
tion applied to annexed areas without further action on part of city, and after annexation liquor control board
properly refused to renew liquor licenses for stores located in annexed areas, notwithstanding alleged fact that
annexed areas were business areas not suitable for residential purposes. Louder v. Texas Liquor Control Bd.
(Civ.App. 1948) 214 S.W.2d 336, ref. n.r.e.. Intoxicating Liquors       59(1)


  4. General welfare

To deny an alcoholic beverage permit to a fully qualified applicant, who proposed to operate a lawful business
in a wet area and in compliance with the zoning ordinances of the city, some unusual condition or situation had
to be shown so as to justify a finding that the place or manner in which the applicant could conduct his business
warranted a refusal of a permit under Vernon's Ann.P.C. (1925) art. 666-11(6), on ground that place or manner
was of a nature which, based on the general welfare, health, morals, etc., warranted a refusal of the permit.
Texas Alcoholic Beverage Commission v. Mikulenka (Civ.App. 1974) 510 S.W.2d 616. Intoxicating Liquors
      69


In absence of showing of some unusual condition or situation justifying finding that place or manner in which
applicant for reinstatement of mixed beverage permit and mixed beverage late hours permit would conduct his
business, which was to be operated in wet area in compliance with zoning ordinances, trial court did not err in
concluding that denial of application on ground of detriment to general health, welfare, etc., was not reasonably
supported by substantial evidence. Texas Alcoholic Beverage Commission v. Mikulenka (Civ.App. 1974) 510
S.W.2d 616. Intoxicating Liquors        70


Fact that holder of wine and beer retailer's permit held, in course of a year, two “wine tastings” at which it took
orders for wine off licensed premises did not constitute “substantial evidence” upon which Alcoholic Beverage
Commission could have concluded that holder's business posed a threat to general welfare or that holder would
conduct his future business in a manner contrary to law, and thus Commission's action denying renewal ex-
ceeded its statutory authority. Texas Alcoholic Beverage Com'n v. Wines of Germany and World, Inc. (App. 1
Dist. 1985) 691 S.W.2d 817. Intoxicating Liquors         102


  5. Traffic

Fact that on-premises alcoholic beverage permit was denied because operation of such business would cause in-
crease in traffic, while any other business not serving alcoholic beverages would be permissible, did not imper-
missibly discriminate against permit applicant. Dienst v. Texas Alcoholic Beverage Commission (Civ.App.
1976) 536 S.W.2d 667. Intoxicating Liquors          71


Alcoholic Beverage Commission's denial of on-premises alcoholic beverage permits, on ground that operation of
such business would cause increase in traffic in residential area, was supported by substantial evidence. Dienst
v. Texas Alcoholic Beverage Commission (Civ.App. 1976) 536 S.W.2d 667. Intoxicating Liquors            70


  6. Location of establishment




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V.T.C.A., Alcoholic Beverage Code § 11.46                                                                  Page 8




Evidence of proposed pub's proximity to religious and educational institutions reasonably supported State Alco-
holic Beverage Commission's denial of application for private club registration permit and beverage cartage per-
mit. Morgan v. Texas Alcoholic Beverage Commission (Civ.App. 1975) 519 S.W.2d 250. Intoxicating Liquors
      70


Denial of wine and beer permit was supported by evidence that restaurant was located along a dangerous curve
on highway and that people who had consumed alcohol at restaurant and attempted to leave the somewhat lim-
ited parking area and enter the highway would pose a traffic hazard. Texas Alcoholic Beverage Com'n v. Sierra
(Sup. 1990) 784 S.W.2d 359. Intoxicating Liquors       70


There was substantial evidence of unusual situation that justified Alcoholic Beverage Commission's (ABC) re-
fusal to issue mixed beverage permit, mixed beverage late hours permit, and beverage cartage permit; applicant's
establishment was the only establishment serving alcoholic beverages whose patrons were forced to travel
through unusually busy merge zone given that exit from applicant's parking area was directly onto frontage road
which intersected with exit ramp of state highway. Bavarian Properties, Inc. v. Texas Alcoholic Beverage Com'n
(App. 2 Dist. 1994) 870 S.W.2d 686, rehearing denied , writ denied. Intoxicating Liquors       71


  7. Erroneous issuance of permit

Alcoholic Beverage Commission's denial of club's mixed beverage permit application was warranted, even
though a mixed beverage permit was erroneously issued for a business in the club's same location previously and
no local option election occurred after the erroneous permit issuance to convert the location to dry status, where
location of the club was dry at the time the previous permit was erroneously issued, erroneously issued permit
expired, city secretary did not certify club was located in a wet area, club did not have a food and beverage per-
mit, and city had not authorized sale of mixed beverages without food and beverage permit. Texas Alcoholic
Beverage Com'n v. Hancock (App. 9 Dist. 2008) 269 S.W.3d 685. Intoxicating Liquors             71


V. T. C. A., Alcoholic Beverage Code § 11.46, TX AL BEV § 11.46


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




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V.T.C.A., Alcoholic Beverage Code § 11.61                                                                     Page 1




                                          Effective: September 1, 2007

Vernon's Texas Statutes and Codes Annotated Currentness
 Alcoholic Beverage Code (Refs & Annos)
    Title 3. Licenses and Permits
      Subtitle A. Permits
            Chapter 11. Provisions Generally Applicable to Permits (Refs & Annos)
              Subchapter C. Cancellation and Suspension of Permits (Refs & Annos)
                § 11.61. Cancellation or Suspension of Permit

(a) As used in Subsection (b) of this section, the word “permittee” also includes each member of a partnership or
association and, with respect to a corporation, each officer and the owner or owners of a majority of the corpor-
ate stock. This section shall not be construed as prohibiting anything permitted under Section 22.06, 24.05, or
102.05 of this code.



(b) The commission or administrator may suspend for not more than 60 days or cancel an original or renewal
permit if it is found, after notice and hearing, that any of the following is true:


  (1) the permittee has been finally convicted of a violation of this code;


  (2) the permittee violated a provision of this code or a rule of the commission;


  (3) the permittee was finally convicted of a felony while holding an original or renewal permit;


  (4) the permittee made a false or misleading statement in connection with his original or renewal application,
  either in the formal application itself or in any other written instrument relating to the application submitted to
  the commission, its officers, or employees;


  (5) the permittee is indebted to the state for taxes, fees, or payment of penalties imposed by this code, by a
  rule of the commission, or by Chapter 183, Tax Code;


  (6) the permittee is not of good moral character or his reputation for being a peaceable and law-abiding citizen
  in the community where he resides is bad;


  (7) the place or manner in which the permittee conducts his business warrants the cancellation or suspension
  of the permit based on the general welfare, health, peace, morals, and safety of the people and on the public




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V.T.C.A., Alcoholic Beverage Code § 11.61                                                                  Page 2




  sense of decency;


  (8) the permittee is not maintaining an acceptable bond;


  (9) the permittee maintains a noisy, lewd, disorderly, or unsanitary establishment or has supplied impure or
  otherwise deleterious beverages;


  (10) the permittee is insolvent or mentally or physically unable to carry on the management of his establish-
  ment;


  (11) the permittee is in the habit of using alcoholic beverages to excess;


  (12) the permittee knowingly misrepresented to a customer or the public any liquor sold by him;


  (13) the permittee was intoxicated on the licensed premises;


  (14) the permittee sold or delivered an alcoholic beverage to an intoxicated person;


  (15) the permittee possessed on the licensed premises an alcoholic beverage that he was not authorized by his
  permit to purchase and sell;


  (16) a package store or wine only package store permittee transported or shipped liquor, or caused it to be
  transported or shipped, into a dry state or a dry area within this state;


  (17) the permittee is residentially domiciled with a person who has a financial interest in an establishment en-
  gaged in the business of selling beer at retail, other than a mixed beverage establishment, except as authorized
  by Section 22.06, 24.05, or 102.05 of this code;


  (18) the permittee is residentially domiciled with a person whose permit or license was cancelled for cause
  within the 12-month period preceding his own application;


  (19) the permittee is not a citizen of the United States or has not been a citizen of Texas for a period of one
  year immediately preceding the filing of his application, unless he was issued an original or renewal permit on
  or before September 1, 1948, and has been a United States citizen at some time;


  (20) the permittee permitted a person to open a container of alcoholic beverage or possess an open container
  of alcoholic beverage on the licensed premises unless a mixed beverage permit has been issued for the
  premises;




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V.T.C.A., Alcoholic Beverage Code § 11.61                                                                      Page 3




  (21) the permittee failed to promptly report to the commission a breach of the peace occurring on the permit-
  tee's licensed premises;


  (22) the permittee consumed an alcoholic beverage or permitted one to be consumed on the licensed premises
  at a time when the consumption of alcoholic beverages is prohibited by this code; or


  (23) the permittee sold, served, or delivered an alcoholic beverage at a time when its sale is prohibited.


(b-1) Notwithstanding Section 204.01 and any other provision of this code, a person applying for a license or
permit under Chapter 25 or 69 for the on-premises consumption of beer exclusively or beer and wine exclus-
ively, other than a license or permit for an establishment holding a food and beverage certificate whose primary
business being operated on the premises is food service, must file with the commission a surety bond, in an
amount to be determined by the commission, conditioned on the licensee's or permittee's conformance with the
alcoholic beverage law. The bond is forfeited to the commission on the suspension of the license or permit for
the first time under this section or Section 61.71. Before the suspended license or permit may be reinstated, the
licensee or permittee must furnish a second surety bond, similarly conditioned, in an amount greater than the ini-
tial surety bond, the amount to be determined by the commission. If the same license or permit is suspended un-
der this section or Section 61.71 a second time, the bond is again forfeited to the commission. Before the sus-
pended license or permit may be reinstated, the licensee or permittee shall furnish a third surety bond, similarly
conditioned, in an amount greater than the second surety bond, the amount to be determined by the commission.
If the same license or permit is suspended under this section or Section 61.71 a third time, the bond is again for-
feited to the commission and the license or permit shall be canceled by the commission. This subsection applies
only to a license or permit held in connection with an establishment located in a county with a population of 1.4
million or more.


(c) The commission or administrator may refuse to renew or, after notice and hearing, suspend for not more than
60 days or cancel a permit if the commission or administrator finds that the permittee:


  (1) no longer holds a sales tax permit, if required, for the place of business covered by the alcoholic beverage
  permit; or


  (2) is shown on the records of the comptroller of public accounts as being subject to a final determination of
  taxes due and payable under the Limited Sales, Excise and Use Tax Act (Chapter 151, Tax Code), or is shown
  on the records of the comptroller of public accounts as being subject to a final determination of taxes due and
  payable under Chapter 321, Tax Code.


(d) The commission or administrator without a hearing may for investigative purposes summarily suspend a
mixed beverage permit or a wine and beer retailer's permit for not more than seven days if the commission or
administrator finds that a shooting, stabbing, or murder has occurred on the licensed premises which is likely to
result in a subsequent act of violence. Notice of the order suspending the permit shall be given to the permittee
personally within 24 hours of the time the violent act occurs. If the permittee cannot be located, notice shall be




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V.T.C.A., Alcoholic Beverage Code § 11.61                                                                  Page 4




provided by posting a copy of the order on the front door of the licensed premises.


(e) Except as provided by Subsection (f) or (i), the commission or administrator shall cancel an original or re-
newal permit if it is found, after notice and hearing, that the permittee knowingly allowed a person to possess a
firearm in a building on the licensed premises. This subsection does not apply to a person:


  (1) who holds a security officer commission issued under Chapter 1702, Occupations Code, if:


    (A) the person is engaged in the performance of the person's duties as a security officer;


    (B) the person is wearing a distinctive uniform; and


    (C) the weapon is in plain view;


  (2) who is a peace officer;


  (3) who is a permittee or an employee of a permittee if the person is supervising the operation of the premises;
  or


  (4) who possesses a concealed handgun of the same category the person is licensed to carry under Subchapter
  H, Chapter 411, Government Code, [FN1] unless the person is on the premises of a business described by Sec-
  tion 46.035(b)(1), Penal Code.


(f) The commission may adopt a rule allowing:


  (1) a gun or firearm show on the premises of a permit holder, if the premises is owned or leased by a govern-
  mental entity or a nonprofit civic, religious, charitable, fraternal, or veterans' organization;


  (2) the holder of a permit for the sale of alcoholic beverages for off-premises consumption to also hold a fed-
  eral firearms license; or


  (3) the ceremonial display of firearms on the premises of the permit holder.


(g) The length of a suspension must be appropriate for the nature and seriousness of the violation. In determin-
ing the length of a suspension, the commission or administrator shall consider:


  (1) the type of license or permit held;




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V.T.C.A., Alcoholic Beverage Code § 11.61                                                                   Page 5




  (2) the type of violation;


  (3) any aggravating or ameliorating circumstances concerning the violation, including those enumerated in
  Section 11.64(c); and


  (4) the permittee's or licensee's previous violations.


(h) The length of a suspension may not be based on:


  (1) the volume of alcoholic beverages sold;


  (2) the receipts of the business;


  (3) the taxes paid; or


  (4) the financial condition of the permittee or licensee.


(i) The commission shall adopt rules allowing a historical reenactment on the premises of a permit holder. Rules
adopted under this subsection must prohibit the use of live ammunition in a historical reenactment.


(j) A hearing under Subsection (b) must be concluded not later than the 60th day after notice is provided under
that subsection. Neither the permittee nor the commission may waive the provisions of this subsection. This sub-
section applies only to a hearing in connection with a wine and beer retailer's permit, other than a permit held
with a food and beverage certificate, for premises located in a county with a population of 1.4 million or more.



CREDIT(S)

Acts 1977, 65th Leg., p. 410, ch. 194, § 1, eff. Sept. 1, 1977. Amended by Acts 1979, 66th Leg., p. 1967, ch.
777, §§ 4, 5, eff. Aug. 27, 1979; Acts 1981, 67th Leg., p. 1779, ch. 389, § 32, eff. Jan. 1, 1982; Acts 1985, 69th
Leg., ch. 687, § 1, eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 2, § 14.27(a)(2), eff. Aug. 28, 1989; Acts 1989,
71st Leg., ch. 1200, § 1, eff. June 16, 1989; Acts 1993, 73rd Leg., ch. 934, § 24, eff. Sept. 1, 1993; Acts 1995,
74th Leg., ch. 998, § 1, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 1001, § 5, eff. Aug. 28, 1995; Acts 1995,
74th Leg., ch. 1060, § 3, eff. Aug. 28, 1995; Acts 1997, 75th Leg., ch. 1001, § 1, eff. Sept. 1, 1997; Acts 1997,
75th Leg., ch. 1261, § 17, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, § 9.19, eff. Sept. 1, 1999; Acts 2001,
77th Leg., ch. 1420, § 14.725, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1223, § 1, eff. Sept. 1, 2003; Acts
2005, 79th Leg., ch. 452, § 3, eff. Sept. 1, 2005; Acts 2005, 79th Leg., ch. 628, § 1, eff. Sept. 1, 2005; Acts
2005, 79th Leg., ch. 976, § 1, eff. Sept. 1, 2005; Acts 2007, 80th Leg., ch. 921, § 17.001(2), eff. Sept. 1, 2007.


        [FN1] V.T.C.A., Government Code § 411.171 et seq.




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V.T.C.A., Alcoholic Beverage Code § 11.61                                                                    Page 6




VALIDITY

    <Subsection (b)(19) of this section has been declared unconstitutional by Siesta Village Market, LLC
    v. Perry, N.D.Tex.2008, 530 F.Supp.2d 848.>


HISTORICAL AND STATUTORY NOTES

2007 Main Volume

Acts 1979, 66th Leg., p. 1967, ch. 777, in subsec. (a), in the first sentence, inserted “Subsection (b) of”; and ad-
ded subsec. (c).


Acts 1981, 67th Leg., p. 1779, ch. 389, in subsec. (c)(2), substituted “(Chapter 151, Tax Code)” for “(Chapter
20, Title 122A, Taxation--General, Revised Civil Statutes of Texas, 1925, as amended)”.


Section 1 of Acts 1981, 67th Leg., p. 1779, ch. 389 enacts Title 2 of the Tax Code.


Acts 1985, 69th Leg., ch. 687 added subsec. (d).


Acts 1989, 71st Leg., ch. 2, in subd. (c)(2), substituted “Chapter 321, Tax Code” for “the Local Sales and Use
Tax Act, as amended (Article 1066c, Vernon's Texas Civil Statutes)”.


Acts 1989, 71st Leg., ch. 1200, in subsec. (b)(14), deleted “or allowed an intoxicated person to remain on the
premises” following “person”.


Acts 1993, 73rd Leg., ch. 934, in subsec. (b)(19), substituted “one year” for “three years”; and added subsec. (e).


Acts 1995, 74th Leg., ch. 998, in subsec. (e), substituted “Except as provided by Subsection (f), the” for “The”,
and added subd. (3); and added subsec. (f).


Section 4 of Acts 1995, 74th Leg., ch. 998 provides:


“This Act takes effect September 1, 1995. An offense committed before the effective date of this Act is covered
by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.”


Acts 1995, 74th Leg., ch. 1001, in subsec. (b)(5), added “, or by Chapter 183, Tax Code”.


Acts 1995, 74th Leg., ch. 1060, in subsec. (d), deleted “, a private club registration permit,” following “mixed
beverage permit”.




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V.T.C.A., Alcoholic Beverage Code § 11.61                                                                    Page 7




Acts 1997, 75th Leg., ch. 1001, in subsec. (b), added subd. (21).


Section 3 of Acts 1997, 75th Leg., ch. 1001 provides:


“The change in law made by this Act applies to the holder of an alcoholic beverage permit or retail dealer's on-
or off-premise license, including a holder of a food and beverage certificate issued by the Texas Alcoholic
Beverage Commission.”


Acts 1997, 75th Leg., ch. 1261, in subsec. (e), added subd. (4).


Acts 1999, 76th Leg., ch. 62, in subsec. (e)(4), corrected a reference.


Acts 2001, 77th Leg., ch. 1420, in subsec. (e)(1), substituted “under Chapter 1702, Occupations Code” for “by
the Texas Board of Private Investigators and Private Security Agencies”.


Acts 2003, 78th Leg., ch. 1223 added subsecs. (g) and (h).


Acts 2005, 79th Leg., ch. 452 added subsecs. (b-1) and (i).


Sections 10 and 11 of Acts 2005, 79th Leg., ch. 452 provide:


    “Sec. 10. Section 11.321 and Subsection (b-1), Section 11.61, Alcoholic Beverage Code, as added by this
    Act, apply only to an original or renewal application filed on or after the effective date [Sept. 1, 2005] of
    this Act. An original or renewal application filed before the effective date of this Act is covered by the law
    in effect when the application was filed, and the former law is continued in effect for that purpose.

    “Sec. 11. Subsection (i), Section 11.61, Alcoholic Beverage Code, and Subsection (k), Section 61.71, Alco-
    holic Beverage Code, as added by this Act, apply only to a hearing the notice for which is provided on or
    after the effective date [Sept. 1, 2005] of this Act. A hearing the notice for which is provided before the ef-
    fective date of this Act is covered by the law in effect when the notice is provided, and the former law is
    continued in effect for that purpose.”


Acts 2005, 79th Leg., ch. 628 added subsec. (b)(22) and (23).


Section 3 of Acts 2005, 79th Leg., ch. 628 provides:


“(a) The change in law made by this Act applies only to an offense committed on or after the effective date
[Sept. 1, 2005] of this Act. For purposes of this section, an offense is committed before the effective date of this
Act if any element of the offense occurs before that date.




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V.T.C.A., Alcoholic Beverage Code § 11.61                                                                Page 8




“(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense
was committed, and the former law is continued in effect for that purpose.”


Acts 2005, 79th Leg., ch. 976, in subsec. (e), inserted “or (i)” preceding “the commission”; and added subsec.
(i).


2010 Electronic Update

2007 Legislation

Acts 2007, 80th Leg., ch. 921 relettered subsec. (i), as added by Acts 2005, 79th Leg., ch. 452, § 3, as subsec.
(j).


2007 Main Volume

Prior Laws:

    Acts 1935, 44th Leg., 2nd C.S., p. 1795, ch. 467, art. 1, §§ 12, 17, 19.

    Acts 1937, 45th Leg., p. 1053, ch. 448, §§ 12, 22, 24.

    Acts 1943, 48th Leg., p. 509, ch. 325, § 12.

    Acts 1949, 51st Leg., p. 1011, ch. 543, §§ 3, 7.

    Acts 1967, 60th Leg., p. 160, ch. 85, § 1.

    Acts 1971, 62nd Leg., p. 685, ch. 65, § 6.

    Vernon's Ann.P.C. (1925) arts. 666-12; 666-17, subsec. (30); 666-19.

    Acts 1977, 65th Leg., p. 1713, ch. 681, § 1.


CROSS REFERENCES

      Citizenship of permittee, see V.T.C.A., Alcoholic Beverage Code § 109.53.
      Report to legislature of violations, see V.T.C.A. Alcoholic Beverage Code, § 5.61.
      Reports, public disturbances on premises of permittees or licensees, see V.T.C.A., Alcoholic Beverage
      Code § 5.331.

LIBRARY REFERENCES

2007 Main Volume

    Intoxicating Liquors       106.
    Westlaw Topic No. 223.
    C.J.S. Intoxicating Liquors §§ 222 to 223, 226 to 233.




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V.T.C.A., Alcoholic Beverage Code § 11.61                                                            Page 9




RESEARCH REFERENCES

2010 Electronic Update

ALR Library

116 ALR 5th 149, Interplay Between Twenty-First Amendment and Commerce Clause Concerning State Regu-
lation of Intoxicating Liquors.


174 ALR 549, Interest Necessary to Maintenance of Declaratory Determination of Validity of Statute or Ordin-
ance.


Encyclopedias

TX Jur. 3d Intoxicating Liquors § 63, Bond Requirement.


TX Jur. 3d Intoxicating Liquors § 89, Tax Violations.


TX Jur. 3d Intoxicating Liquors § 93, Firearms on Premises.


TX Jur. 3d Intoxicating Liquors § 94, Shooting, Stabbing, or Murder on Premises.


Forms

Texas Jurisprudence Pleading & Practice Forms 2d Ed § 148:1, Introductory Comments.


Texas Jurisprudence Pleading & Practice Forms 2d Ed § 148:4, Petition--For Judicial Review--Of Administrat-
ive Order Refusing, Canceling, or Suspending Liquor Permit or License.


NOTES OF DECISIONS

  In general 2
  Affidavits, sufficiency of evidence 21
  Agent's or employee's acts, generally 7
  Agent's or employee's acts, sufficiency of evidence 17
  Appeal 22
  Citizenship and residency 13
  Constitutional rights 3
  Conviction of code violation 11
  Grounds, generally 8
  Hours of sale, generally 10
  Hours of sale, sufficiency of evidence 18




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V.T.C.A., Alcoholic Beverage Code § 11.61                                                                 Page 10




  Illegal sales, sufficiency of evidence 16
  Intoxication, sufficiency of evidence 20
  Location of establishment 9
  Nature of proceedings 14
  Partnerships 6
  Remand 23
  Review 24
  Rights of permittee, generally 4
  Sufficiency of evidence 15-21
       Sufficiency of evidence - In general 15
       Sufficiency of evidence - Affidavits 21
       Sufficiency of evidence - Agent's or employee's acts 17
       Sufficiency of evidence - Hours of sale 18
       Sufficiency of evidence - Illegal sales 16
       Sufficiency of evidence - Intoxication 20
       Sufficiency of evidence - Welfare, health, peace, morals, and safety 19
  Validity 1
  Weapons or firearms 5
  Welfare, health, peace, morals, and safety 12
  Welfare, health, peace, morals, and safety, sufficiency of evidence 19

  1. Validity

Neither the claim that alcoholic beverage distribution system was established to protect the health, safety, wel-
fare, morals and temperance of the citizens of Texas nor the need for screening of applicant's reputation in the
community, could justify discrimination on interstate commerce resulting from residency requirements for per-
mits under Texas Alcoholic Beverage Code. Cooper v. McBeath, C.A.5 (Tex.)1994, 11 F.3d 547, certiorari
denied 114 S.Ct. 2675, 512 U.S. 1205, 129 L.Ed.2d 810. Commerce          74.40; Intoxicating Liquors        15


State's interest in facilitating background checks of permit applicants which resulted in discrimination against
nonresidents in issuance of permits under the Texas Alcoholic Beverage Code was not within the core concern
of the Twenty-first Amendment. Cooper v. McBeath, C.A.5 (Tex.)1994, 11 F.3d 547, certiorari denied 114 S.Ct.
2675, 512 U.S. 1205, 129 L.Ed.2d 810. Intoxicating Liquors         58


Texas Alcoholic Beverage Code's Texas citizenship requirements were unconstitutional under Commerce Clause
as applied to out-of-state wine retailers; Texas could not condition qualification for Texas Alcoholic Beverage
Commission (TABC) permits on establishing citizenship in Texas. Siesta Village Market, LLC v. Perry,
N.D.Tex.2008, 530 F.Supp.2d 848, vacated in part 595 F.3d 249, opinion withdrawn and superseded on recon-
sideration 612 F.3d 809. Commerce          74.40; Intoxicating Liquors      15


By seizing large numbers of adult magazines, videos and DVDs, from premises of liquor licensees, based upon
determination of seizing officers that materials were obscene, Texas Alcoholic Beverage Commission (TABC)
applied state statutes and regulations so as to impose prior restraint on speech, in violation of First Amendment.
Carico Investments, Inc. v. Texas Alcoholic Beverage Com'n, S.D.Tex.2006, 439 F.Supp.2d 733. Constitutional




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V.T.C.A., Alcoholic Beverage Code § 11.61                                                                  Page 11




Law       2237; Intoxicating Liquors        247


Statutes and regulations, applied by Texas Alcoholic Beverage Commission (TABC) to allow seizure of large
numbers of adult magazines, videos and DVDs based only upon seizing officer's determination that materials
were obscene, violated Fourth Amendment requirement that seizure be preceded by judicial determination of ob-
scenity, following adversary proceeding. Carico Investments, Inc. v. Texas Alcoholic Beverage Com'n,
S.D.Tex.2006, 439 F.Supp.2d 733. Intoxicating Liquors      247


Federal court was not required, on Burford abstention grounds, to refrain from considering First and Fourth
Amendment challenge to constitutionality of statutes and regulations allowing for seizure and destruction of in-
decent and obscene matter displayed on liquor licensees' premises; there was no need to delve into any intricate
state administrative process in order to determine constitutionality of statutes and regulations. Carico Invest-
ments, Inc. v. Texas Alcoholic Beverage Com'n, S.D.Tex.2006, 439 F.Supp.2d 733. Federal Courts          53


Subsection (b)(7) of this section permitting suspension of permit based on the general welfare, health, peace,
morals, and safety of the People and on public sense of decency is not impermissibly vague. Wishnow v. Texas
Alcoholic Beverage Com'n (App. 14 Dist. 1988) 757 S.W.2d 404, writ denied. Intoxicating Liquors        15


  2. In general

The Liquor Control Act authorized the governing authorities of any city or town or the commissioners' court of
any county in which a permittee operated a licensed drug store to institute proceedings for revocation of permit
by filing of a complaint with the Liquor Control Board, but such provision did not deprive the board of the
power to institute its own proceedings based upon its own findings and to cancel the permit after notice and
hearing. Bradley v. Texas Liquor Control Board (Civ.App. 1937) 108 S.W.2d 300. Intoxicating Liquors
108.1


Liquor Control Board's exercise of power conferred upon it to establish standards of conduct required of private
club registration permittee was legislative in nature. Texas Liquor Control Bd. v. Longwill (Civ.App. 1965) 392
S.W.2d 725, error dismissed. Intoxicating Liquors         129.5


Texas Alcoholic Beverage Commission properly cancelled mixed beverage permit of bar and restaurant operator
who violated Alcoholic Beverage Code by selling an alcoholic beverage to an intoxicated person, where operat-
or had a history of prior Code violations resulting in imposition of $12,450 in fines and eighty-three days of li-
cense suspension. Texas Alcoholic Beverage Com'n v. Quintana (App. 8 Dist. 2005) 225 S.W.3d 200, review
denied. Intoxicating Liquors      106(4)


  3. Constitutional rights

Permittee failed to show that cancellation of its mixed beverage and late hours permits as penalty for allowing
nine lewd acts and twice failing to report breach of the peace penalized it differently than other entities for the
same number and kind of violations, and thus did not establish discriminatory enforcement of the Alcoholic




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V.T.C.A., Alcoholic Beverage Code § 11.61                                                                   Page 12




Beverage Code, where none of other entities that permittee named as having more violations but a lesser sanc-
tion were penalized for failing to report breach of the peace and none had as many as nine violations for permit-
ting lewd conduct. Allen-Burch, Inc. v. Texas Alcoholic Beverage Com'n (App. 5 Dist. 2003) 104 S.W.3d 345.
Intoxicating Liquors       106(4)


Lewd sexual conduct and failure to report a breach of peace were not protected expression, and thus, cancella-
tion of permittee's mixed beverage and late hours permits as penalty for allowing nine lewd acts and twice fail-
ing to report breach of the peace was not a prior restraint on protected activity, in violation of State and Federal
Constitutions. Allen-Burch, Inc. v. Texas Alcoholic Beverage Com'n (App. 5 Dist. 2003) 104 S.W.3d 345. Con-
stitutional Law      2238; Intoxicating Liquors        106(4)


  4. Rights of permittee, generally

A permittee or licensee under the Liquor Control Act had no vested right to sell liquor, but had mere privilege of
selling liquor in accordance with the terms of the act, and accepted his permit or license subject to the authority
of the board to cancel it for any violation of the statute or any regulation promulgated by the board under the au-
thority of the Act. Bradley v. Texas Liquor Control Board (Civ.App. 1937) 108 S.W.2d 300. Intoxicating Li-
quors       106(1)


A “package store permit” to purchase specified liquor from designated parties and to sell it under the conditions
and in the manner prescribed in the Liquor Control Act was neither a “contract” nor a “right of property” within
Constitution, but was merely a temporary license to do that which would otherwise have been unlawful, and
could be revoked by authorized agent of the state whenever a violation of the law was ascertained. Texas Liquor
Control Board v. Warfield (Civ.App. 1938) 122 S.W.2d 669. Intoxicating Liquors         99; Intoxicating Liquors
     106(4)


A permit to sell and dispense liquor for medicinal purposes did not constitute a “property right” but was a purely
“personal privilege” revocable for causes as stated in Vernon's Ann.P.C. (1925) art. 666-13 (repealed), to which
holder of permit assented by accepting permit. Texas Liquor Control Board v. Cannon (Civ.App. 1940) 147
S.W.2d 927. Intoxicating Liquors        99; Intoxicating Liquors      106(1)


Permit or license under Texas Liquor Control Act was a mere privilege and such permittee or licensee had no
vested right to sell or dispense intoxicating beverages. Attic Club, Inc. v. Texas Liquor Control Bd. (Civ.App.
1970) 450 S.W.2d 149, reversed 457 S.W.2d 41, appeal dismissed 91 S.Ct. 459, 400 U.S. 986, 27 L.Ed.2d 435.
Constitutional Law         2641


A permit to operate as a private club is not a vested property right but is a privilege that is granted and enjoyed
subject to regulations prescribed by legislature. Texas Liquor Control Bd. v. Canyon Creek Land Corp. (Sup.
1970) 456 S.W.2d 891. Intoxicating Liquors         99


  5. Weapons or firearms




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V.T.C.A., Alcoholic Beverage Code § 11.61                                                                  Page 13




A holder of a retail license or permit authorizing the sale and on- or off-premise consumption of alcoholic bever-
ages may possess a firearm for the purpose of self-defense. Op.Atty.Gen. 1994, No. DM-293.


  6. Partnerships

When a retail dealer's license was issued in the name of partners, a dissolution of the partnership operated as a
revocation of the license and sale of beer under the old license by remaining partner or new partnership was in
violation of the Texas Liquor Control Act, and a new license could be required by the state as condition preced-
ent to the right to engage in the business of selling beer. Op.Atty.Gen.1939, No. 0-973.


The death of a limited partner does not necessarily prohibit the renewal of a mixed beverage permit issued to the
partnership. Op.Atty.Gen.1976, No. H-783.


  7. Agent's or employee's acts, generally

A permit issued by the Liquor Control Board could be canceled for the unlawful acts of an agent the same as if
they had been the acts of the permittee himself. Bradley v. Texas Liquor Control Board (Civ.App. 1937) 108
S.W.2d 300. Intoxicating Liquors      106(4)


A licensee or permittee is responsible for the acts of his agent, employee, or servant, which violate the terms of
the license or permit, even though the acts are against the instructions of the licensee or permittee, except in
criminal cases where a conviction of a licensee or a permittee for an offense committed by the agent requires
that the licensee or permittee must have committed the unlawful act of the agent or known of the same and ac-
quiesced therein. Bradley v. Texas Liquor Control Board (Civ.App. 1937) 108 S.W.2d 300. Intoxicating Liquors
      106(4)


A permit to sell liquor on a physician's prescription for medicinal purposes is subject to cancellation by reason
of the unlawful act of permittee's clerk in selling liquor without a physician's prescription. Bradley v. Texas Li-
quor Control Board (Civ.App. 1937) 108 S.W.2d 300. Intoxicating Liquors            106(4)


A license could be revoked for the possession of whisky on the premises by an employee of the licensee, wheth-
er or not licensee had knowledge that employee was in possession of prohibited liquors on the premises. Texas
Liquor Control Bd. v. Floyd (Civ.App. 1938) 117 S.W.2d 530.


The fact that applications and contracts for certain public utility services were signed for dinner club by person
in charge of adjoining athletic club did not establish such a connection between the two clubs as to authorize
Administrator of Liquor Control Board to cancel beer-and-wine permit of dinner club because of liquor viola-
tions in athletic club, where applications and contracts were dated several years before and were, therefore, too
remote. Texas Liquor Control Board v. Maceo (Civ.App. 1941) 147 S.W.2d 954, error dismissed. Intoxicating
Liquors        108.5




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V.T.C.A., Alcoholic Beverage Code § 11.61                                                                 Page 14




Specific intent of server to violate dram shop statute was not required for Alcoholic Beverage Commission to
cancel alcoholic beverage permit when permittee sold or delivered an alcoholic beverage to an intoxicated per-
son. Fay-Ray Corp. v. Texas Alcoholic Beverage Com'n (App. 3 Dist. 1998) 959 S.W.2d 362. Intoxicating Li-
quors       106(4)


  8. Grounds, generally

Findings by Liquor Control Board that holder of a permit to operate a wine and beer retail store permitted drunk-
enness, use of profane language, solicitation from customers by employees for drinks and money to play music
machines, and sold beer to persons visibly intoxicated, constituted grounds for forfeiture of permit by board.
Texas Liquor Control Board v. Smalley (Civ.App. 1939) 129 S.W.2d 466. Intoxicating Liquors           108.9


Where beer license was secured on certificate of compliance issued under agreement between operator of non-
conforming restaurant in apartment zone and city for issuance of provisional permit pending action of board of
adjustment on appeal of operator's application for relief from zoning ordinance restriction and pending court ac-
tion, use of beer license after order of board of adjustment denying application became final was violation of
agreement and beer license would be canceled and injunction granted. City of Dallas v. Haworth (Civ.App.
1949) 218 S.W.2d 264, ref. n.r.e.. Intoxicating Liquors       106(2); Intoxicating Liquors      261


Texas Liquor Control Act did not limit cancellation of private club registration permits to acts and omissions
specified as comprising ground for cancellation. Texas Liquor Control Bd. v. Longwill (Civ.App. 1965) 392
S.W.2d 725, error dismissed. Intoxicating Liquors     106(1)


Existing mixed beverage and late hours permits were improperly cancelled based on a finding of how the per-
mittee might conduct his business in the future. Texas Alcoholic Beverage Com'n v. Diedrich (App. 8 Dist.
1984) 679 S.W.2d 737. Intoxicating Liquors       106(2)


The Liquor Control Board had no authority to suspend or cancel a wine bottlers' permit or any other liquor per-
mit issued to a corporation on ground that corporation's right to do business in the state had been forfeited, and
had no authority to require payment of corporate franchise taxes or collection thereof. Op.Atty.Gen.1940, No.
0-2567.


The Alcoholic Beverage Commission could reasonably conclude that a person charged with or convicted of a
misdemeanor gambling offense under the Penal Code had “conducted his business in a place or manner which
warrants the cancellation or suspension” of a license or permit “based on the general welfare, health, peace,
morals, safety, and sense of decency of the people”. Op.Atty.Gen. 1998, No. DM-466.


  9. Location of establishment

Where other similar businesses which had been granted mixed beverage late hours permit were not in city but
were all outside corporate limits of the city, Commission's order refusing applicant a mixed beverage late hours
permit for place of business in the city was not arbitrary and capricious. Hewlett v. Texas Alcoholic Beverage




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V.T.C.A., Alcoholic Beverage Code § 11.61                                                                  Page 15




Commission (Civ.App. 1973) 492 S.W.2d 686, ref. n.r.e.. Intoxicating Liquors          71


The Texas Liquor Control Board was without authority to deny or cancel a permit to sell intoxicating liquors on
the sole ground that the establishment to which it was issued would be operated along the highway.
Op.Atty.Gen.1939, No. 0-1768.


Where a permit has been granted to a person to handle liquor and permit holder's place of business is within 300
feet of a church, public school, or public hospital, proper procedure is to make application for cancellation of
permit. Op.Atty.Gen.1940, No. 0-2156.


  10. Hours of sale, generally

The administrator of the Liquor Control Board was authorized to cancel a package store permit where permit-
tee's employee sold and delivered, on Sunday, to an employee of the board, one-half pint of whisky not upon a
prescription issued by a duly licensed physician. Texas Liquor Control Board v. Warfield (Civ.App. 1938) 122
S.W.2d 669. Intoxicating Liquors       106(4)


The sale of intoxicating liquors on Sunday was cause for cancellation of package store liquor permit. Texas Li-
quor Control Bd. v. O'Fallon (Civ.App. 1945) 189 S.W.2d 885. Intoxicating Liquors        106(4)


Although “beer retail on-premise license” applicant contended that he had not sold or given away beer during
prohibited hours, reasonable minds could have reached contrary conclusion which Liquor Control Board's assist-
ant administrator must have reached in order to justify refusal of application. Texas Liquor Control Bd. v. Scott
(Civ.App. 1961) 347 S.W.2d 841, ref. n.r.e.. Intoxicating Liquors       75(7)


  11. Conviction of code violation

The terms “convicted,” or “finally convicted” as used in the Texas Liquor Control Act did not include a convic-
tion where the sentence was probated under the terms of Vernon's Ann.C.C.P. art. 42.12, (felony conviction), or
Vernon's Ann.C.C.P. art. 42.13, (misdemeanor conviction), unless and until probation was revoked and the court
entered judgment on the finding of guilty. Op.Atty.Gen.1966, No. C-787.


  12. Welfare, health, peace, morals, and safety

The state liquor control board's administrator on finding that liquor package store permittee had paid an officer a
bribe to allow liquor runners to load up at permittee's liquor store was authorized by Vernon's Ann.P.C. (1925)
art. 666-12(6) (repealed; see, now, subd. (b)(7) of this section) to cancel permit, as payment of bribe was con-
trary to general welfare, health, peace, morals and safety of people and public sense of decency. Lowe v. Texas
Liquor Control Bd. (Civ.App. 1952) 255 S.W.2d 252. Intoxicating Liquors           106(2)


Where liquor package store permittee was alleged to have conducted his business in manner contrary to general
welfare, morals and safety of people so as to warrant cancellation of permit, state liquor control board adminis-




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V.T.C.A., Alcoholic Beverage Code § 11.61                                                                Page 16




trator in exercise of his discretion had to determine whether alleged acts were such as law and sound public
opinion condemned as detrimental to public good. Lowe v. Texas Liquor Control Bd. (Civ.App. 1952) 255
S.W.2d 252. Intoxicating Liquors        108.1


Texas Liquor Control Board could cancel private club registration permit when it found from evidence admitted
at proper hearing that continued operation by permittee under particular permit would be inimical to public wel-
fare, health, peace, and safety, and Board could use its insight and discernment in such broad fields. Texas Li-
quor Control Bd. v. Longwill (Civ.App. 1965) 392 S.W.2d 725, error dismissed. Intoxicating Liquors
106(2)


  13. Citizenship and residency

Provisions of Texas Alcoholic Beverage Code imposing residency requirements on permit holders discriminated
against nonresidents, thus imposing burden on the state to provide justification, those challenging the require-
ments were not required to prove discriminatory intent. Cooper v. McBeath, C.A.5 (Tex.)1994, 11 F.3d 547, cer-
tiorari denied 114 S.Ct. 2675, 512 U.S. 1205, 129 L.Ed.2d 810. Commerce             74.40; Intoxicating Liquors
      15


Individuals who had option to purchase majority of stock of liquor licensee and who would receive their remain-
ing stock once the transfer could occur without endangering the permit had standing to challenge constitutional-
ity of residency requirements for permits under the Texas Alcoholic Beverage Code. Cooper v. McBeath, C.A.5
(Tex.)1994, 11 F.3d 547, certiorari denied 114 S.Ct. 2675, 512 U.S. 1205, 129 L.Ed.2d 810. Constitutional Law
      714


  14. Nature of proceedings

The cancellation of a permit to sell liquor under the Liquor Control Act was not a civil suit, but was merely the
exercise of an administrative function. Bradley v. Texas Liquor Control Board (Civ.App. 1937) 108 S.W.2d 300.
Intoxicating Liquors       108.1


Action of Texas Liquor Control Board or its administrator in canceling package store permit was not judicial,
but was merely the performance of an administrative function. Texas Liquor Control Bd. v. Warfield (Civ.App.
1937) 110 S.W.2d 646. Intoxicating Liquors      108.9


The authority granted to Liquor Control Board, the Administrator and to County Judge with regard to issuance,
denial, cancellation or supervision of liquor permits was merely the exercise of an administrative function and
duty imposed by Liquor Control Act. State v. Bush (Sup. 1952) 151 Tex. 606, 253 S.W.2d 269. Administrative
Law And Procedure         327; Intoxicating Liquors      61(1); Intoxicating Liquors     106(1)


A proceeding by state liquor control board or its administrator to cancel package store permit was not a criminal
prosecution or exercise of judicial power but merely performance of administrative function and hearings therein
were not governed by strict rules governing court. Lowe v. Texas Liquor Control Bd. (Civ.App. 1952) 255




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 11.61                                                                Page 17




S.W.2d 252. Intoxicating Liquors         108.1


Function of Liquor Control Board in cancelling private club registration permit was administrative rather than
judicial. Texas Liquor Control Bd. v. Longwill (Civ.App. 1965) 392 S.W.2d 725, error dismissed. Intoxicating
Liquors       106(1)


Where only sanction Alcoholic Beverage Commission could impose under V.A.T.S. Penal Auxiliary Laws, art.
666-12 (repealed), upon holder of a mixed beverage permit after a decision favorable to Commission concerning
its complaint for cancellation or suspension of such permit was to cancel or suspend holder's permit, a final de-
cision by Commission became unnecessary and useless when holder voluntarily allowed its permit to expire,
that is, question of cancellation or suspension had become moot. Big D Bamboo, Inc. v. State (Civ.App. 1978)
567 S.W.2d 915. Intoxicating Liquors         108.10(9)


  15. Sufficiency of evidence--In general

Cancellation of a permit to sell liquor on a physician's prescription for medicinal purposes under the Liquor
Control Act could be had upon evidence of the inspectors or employees of the Liquor Control Board who pro-
cured the unlawful sale. Bradley v. Texas Liquor Control Board (Civ.App. 1937) 108 S.W.2d 300. Intoxicating
Liquors      108.5


On appeal from the order of State Liquor Control Board cancelling a beer permit for permittee's intoxication on
licensed premises and for unsanitary conditions on licensed premises, evidence of cause for cancellation, even
though controverted, was substantial and reasonably supported the order of the Board. Texas Liquor Control Bd.
v. Cervantes (Civ.App. 1960) 333 S.W.2d 466. Intoxicating Liquors        108.10(8)


Order of Liquor Control Board Administrator cancelling wine and beer retail permit was supported by substan-
tial evidence. Texas Liquor Control Bd. v. Medina (Civ.App. 1967) 412 S.W.2d 796. Intoxicating Liquors
108.5


  16. ---- Illegal sales, sufficiency of evidence

Testimony of inspectors sufficiently supported order of the Liquor Control Board for cancellation of permit on
ground that holder maintained disorderly establishment and unlawfully sold beer to minor precluding injunction
restraining board from interfering with continued operation under permit. Texas Liquor Control Board v. Tscho-
erner (Civ.App. 1938) 117 S.W.2d 121. Injunction        130


In proceedings culminating in cancellation of package store permit, evidence would sustain finding that permit-
tee had made illegal sales of wine to a person under age of 21 years. Texas Liquor Control Bd. v. Raspante
(Civ.App. 1957) 308 S.W.2d 136. Intoxicating Liquors        108.5


In view of substantial evidence introduced indicating that club holding private club registration permit had sold




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 11.61                                                                 Page 18




beer in dry area in violation of Liquor Control Act and had served liquor to customers for beverage purposes in
such a way as to constitute it an open saloon, order of administrator of Liquor Control Board cancelling permit
was supported by the evidence. Texas Liquor Control Bd. v. Longwill (Civ.App. 1965) 392 S.W.2d 725, error
dismissed. Intoxicating Liquors       108.5


  17. ---- Agent's or employee's acts, sufficiency of evidence

The fact that in a dinner club, in which no liquor law violations were discovered, match covers were found on
tables bearing name of dinner club, with name of person operating adjoining athletic club as managing director
of dinner club, was insufficient to establish that person in charge of athletic club was agent or employee of own-
er of dinner club, but was “hearsay” evidence which did not warrant cancellation of beer-and-wine permit of
dinner club because of violation of liquor law in athletic club. Texas Liquor Control Board v. Maceo (Civ.App.
1941) 147 S.W.2d 954, error dismissed. Evidence           318(1); Intoxicating Liquors       108.5


  18. ---- Hours of sale, sufficiency of evidence

Evidence at hearing before administrator was sufficient to authorize order of Liquor Control Board cancelling
package store liquor license for sale of liquor on Sunday. Texas Liquor Control Bd. v. O'Fallon (Civ.App. 1945)
189 S.W.2d 885. Intoxicating Liquors         108.5


Evidence supported order of administrator of board cancelling plaintiff's wine and beer permit for after-hours
sale of beer. Texas Liquor Control Bd. v. Pennington (Civ.App. 1967) 423 S.W.2d 469, ref. n.r.e.. Intoxicating
Liquors       108.5


  19. ---- Welfare, health, peace, morals, and safety, sufficiency of evidence

Substantial evidence supported finding of Alcoholic Beverage Commission that manner in which licensee con-
ducted its business was of such a nature that, based on general welfare, health, peace, morals and safety of
people and on public sense of decency, cancellation of licensee's private club registration and beverage cartage
permits was warranted. Texas Alcoholic Beverage Commission v. Big Country Club (Civ.App. 1973) 492
S.W.2d 368, ref. n.r.e. Intoxicating Liquors    108.5


Substantial evidence supported finding that night club authorized minor to dance topless, which thus supported
Texas Alcoholic Beverage Commission's (TABC) cancellation of club's mixed beverage and late hours mixed
beverage permits; club owner testified that disc jockey allowed minor to dance and club did not contest that she
was underage, although owner also testified that dancer was not employee. Texas Alcoholic Beverage Com'n v.
Top of the Strip, Inc. (App. 4 Dist. 1999) 993 S.W.2d 242, rehearing overruled , review denied , rehearing of pe-
tition for review overruled. Intoxicating Liquors     106(4); Intoxicating Liquors      108.5


Permittee's violations of the Alcoholic Beverage Code, in allowing nine lewd acts and twice failing to report
breach of the peace, warranted penalty canceling its mixed beverage and late hours permits, even if permittee
did not knowingly violate the Code. Allen-Burch, Inc. v. Texas Alcoholic Beverage Com'n (App. 5 Dist. 2003)
104 S.W.3d 345. Intoxicating Liquors       106(4)




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 11.61                                                                  Page 19




  20. ---- Intoxication, sufficiency of evidence

Evidence adduced on appeal from order of Liquor Control Board cancelling beer and wine retail license on
ground that licensee had permitted intoxicated persons to remain on licensed premises did not establish that li-
censee or his employees knew or should have known that any intoxicated person remained on premises. Texas
Liquor Control Bd. v. Johnson (Civ.App. 1957) 298 S.W.2d 227. Intoxicating Liquors       108.5


Evidence that licensee's wife, who was in charge of premises licensed for sale of beer, knew before shooting oc-
curred at premises that the one who did shooting, deceased, and their companions were intoxicated and that
trouble was threatened between them, but that nothing was done to prevent trouble, and that trouble finally oc-
curred and shooting resulted, sustained order of Assistant Administrator of the Texas Liquor Control Board can-
celing retail beer license. Texas Liquor Control Bd. v. McGee (Civ.App. 1958) 314 S.W.2d 678, ref. n.r.e.. In-
toxicating Liquors        108.5


Statute governing admissibility of blood test results in criminal proceedings did not apply in civil proceeding to
revoke bar's alcoholic beverage permit for serving an obviously intoxicated person. Fay-Ray Corp. v. Texas Al-
coholic Beverage Com'n (App. 3 Dist. 1998) 959 S.W.2d 362. Intoxicating Liquors           108.5


Witness's testimony estimating driver's blood alcohol concentration and physical effects upon a human at time
bar served driver his last drink was admissible as expert testimony at administrative hearing to revoke bar's alco-
holic beverage permit for serving an obviously intoxicated person; despite bar's claim that witness's methodo-
logy and analysis were not scientifically reliable, witness testified to his extensive training and experience in
field of blood alcohol analysis and interpretation and witness had given his expert opinion in some three hundred
cases. Fay-Ray Corp. v. Texas Alcoholic Beverage Com'n (App. 3 Dist. 1998) 959 S.W.2d 362. Intoxicating Li-
quors       108.5


Substantial evidence supported Alcoholic Beverages Commission's findings that bar served an obviously intox-
icated person, whose intoxication rendered him unable to drive and resulted in injuries and death, and revocation
of bar's alcoholic beverage permit based on those findings; three witnesses confirmed that driver was at bar
drinking beer and shots of liquor, one witness stated that driver slipped off his chair, his speech was slurred and
he smelled of alcohol, and another witness testified that it was obvious to her that driver was intoxicated. Fay-
Ray Corp. v. Texas Alcoholic Beverage Com'n (App. 3 Dist. 1998) 959 S.W.2d 362. Intoxicating Liquors
108.5


  21. ---- Affidavits, sufficiency of evidence

Evidence before liquor control board's administrator, consisting of affidavits which were signed by an inspector
of board, and which were not contradicted by licensee, sustained order of administrator, canceling package store
liquor permit of licensee, since it would not be presumed that the statutory official was motivated by reasons
other than appeared from testimony before him. Texas Liquor Control Bd. v. Lanza (Civ.App. 1939) 129 S.W.2d
1153, error dismissed. Intoxicating Liquors      108.10(8)




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 11.61                                                                  Page 20




Affidavits of two of state liquor control board's inspectors as to package store permittee's payment of bribe per-
sonally and through his agent to one of such inspectors and deputy sheriff for allowing liquor runners to load up
at permittee's liquor stores, constituted substantial evidence warranting cancellation of permit. Lowe v. Texas
Liquor Control Bd. (Civ.App. 1952) 255 S.W.2d 252. Intoxicating Liquors           108.5


  22. Appeal

On trial de novo on appeal from Texas Liquor Control Board's order canceling license or permit, the licensee
had burden of proving that there was no evidence introduced at hearing before board's administrator to substanti-
ate findings of administrator or that there were no facts upon which order could be based, since order of admin-
istrator was prima facie valid. Texas Liquor Control Board v. Jones (Civ.App.1938) 112 S.W.2d 227; Texas Li-
quor Control Board v. Lanza (Civ.App.1939) 129 S.W.2d 1153.


In proceeding to set aside judgment of Liquor Control Board canceling a package store permit, allegations of
cross-action that defendant's employee unlawfully sold whisky on Sunday in violation of the statute sufficiently
negatived the exception of Vernon's Ann.P.C. (1925) art. 666-25 (repealed), as to sales on prescription of a duly
licensed physician as against a general demurrer. Smithart v. Texas Liquor Control Bd. (Civ.App. 1937) 105
S.W.2d 260. Pleading        63


On trial de novo on appeal from Liquor Control Board's order canceling retail liquor license, evidence required
that order be sustained on ground that board had sufficient evidence before it at hearing to authorize it to cancel
license, and that board did not act arbitrarily or capriciously. Texas Liquor Control Board v. Jones (Civ.App.
1937) 112 S.W.2d 227. Intoxicating Liquors         108.10(7)


Issue to be decided in proceeding to review order of Administrator of Alcoholic Beverage Commission cancel-
ling licensee's private club registration and beverage cartage permits was a question of law; evidence to be con-
sidered was evidence admitted in judicial proceeding, and all evidence was to be reviewed, not merely that
which supported order of Administrator. Texas Alcoholic Beverage Commission v. Big Country Club (Civ.App.
1973) 492 S.W.2d 368, ref. n.r.e. Intoxicating Liquors       108.10(8)


Burden of proof was upon licensee in review proceeding to show that order of Administrator of Alcoholic
Beverage Commission cancelling licensee's private club registration and beverage cartage permits was not reas-
onably supported by substantial evidence; preponderance of evidence was not the test. Texas Alcoholic Bever-
age Commission v. Big Country Club (Civ.App. 1973) 492 S.W.2d 368, ref. n.r.e. Intoxicating Liquors
108.10(6)


  23. Remand

Judicial remand to Texas Alcoholic Beverage Commission (TABC) for reconsideration of the penalty to be im-
posed on permittee for violations of the Alcoholic Beverage Code, due to fact that two grounds for permit revoc-
ation were not supported by substantial evidence, did not require further evidence, and thus did not require an
evidentiary hearing. Allen-Burch, Inc. v. Texas Alcoholic Beverage Com'n (App. 5 Dist. 2003) 104 S.W.3d 345.




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 11.61                                                                Page 21




Intoxicating Liquors      108.10(9)


  24. Review

On judicial review following remand to the Texas Alcoholic Beverage Commission (TABC) for redetermination
of the penalty to be imposed on permittee for violations of the Alcoholic Beverage Code, district court's prior
determination of issues concerning substantial evidence, selective enforcement, and scienter were the “law of
the case” and could not be decided by that court again, where case was remanded for penalty determination only,
and case was returned to trial court with identical factual record. Allen-Burch, Inc. v. Texas Alcoholic Beverage
Com'n (App. 5 Dist. 2003) 104 S.W.3d 345. Intoxicating Liquors           108.10(9)


V. T. C. A., Alcoholic Beverage Code § 11.61, TX AL BEV § 11.61


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 24.01                                                                Page 1




                                        Effective: September 1, 2001

Vernon's Texas Statutes and Codes Annotated Currentness
 Alcoholic Beverage Code (Refs & Annos)
    Title 3. Licenses and Permits
          Subtitle A. Permits
            Chapter 24. Wine Only Package Store Permit (Refs & Annos)
              § 24.01. Authorized Activities

(a) The holder of a wine only package store permit may:



  (1) purchase ale, wine, and vinous liquors in this state from the holder of a winery, wine bottler's, whole-
  saler's, or class B wholesaler's permit; and


  (2) sell those beverages to consumers at retail on or from the licensed premises in unbroken original contain-
  ers of not less than six ounces for off-premises consumption only and not for the purpose of resale.


(b) The holder of a wine only package store permit whose premises is located in a wet area permitting the legal
sale of wine for off-premises consumption only as determined by an election held under Section 251.19 may
only purchase, sell, or possess vinous liquor on those licensed premises.


(c) The qualifications for a wine only package store permit whose premises is in a wet area permitting the legal
sale of wine for off-premises consumption only as determined by an election held under Section 251.19 are the
same as the qualifications for a permit issued under Chapter 26 of this code, including the citizenship require-
ments prescribed by Section 6.03.



CREDIT(S)

Acts 1977, 65th Leg., p. 423, ch. 194, § 1, eff. Sept. 1, 1977. Amended by Acts 1979, 66th Leg., p. 2118, ch.
819, § 7, eff. June 13, 1979; Acts 2001, 77th Leg., ch. 400, § 2, eff. Sept. 1, 2001.


VALIDITY

    <Subsection (c) of this section has been declared unconstitutional by Siesta Village Market, LLC v.
    Perry, N.D.Tex.2008, 530 F.Supp.2d 848.>




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 24.01                                                                 Page 2




HISTORICAL AND STATUTORY NOTES

2007 Main Volume

Acts 1979, 66th Leg., p. 2118, ch. 819, in subd. (1), deleted “class A winery, class B” following “from the hold-
er of a”.


Acts 2001, 77th Leg., ch. 400, designated the section as subsec. (a), and added subsecs. (b) and (c).



Prior Laws:

    Acts 1935, 44th Leg., 2nd C.S., p. 1795, ch. 467, art. 1, § 15.

    Acts 1937, 45th Leg., p. 1053, ch. 448, § 16.

    Acts 1951, 52nd Leg., p. 272, ch. 157, § 1.

    Vernon's Ann.P.C. (1925) art. 666-15, subd. (9).


CROSS REFERENCES

      Class B wholesaler's permits, see V.T.C.A., Alcoholic Beverage Code §§ 20.01 et seq., 21.01 et seq.
      Package store tasting permit, authorized activities, see V.T.C.A., Alcoholic Beverage Code § 52.01.
      Wholesaler's permit, see V.T.C.A., Alcoholic Beverage Code § 19.01 et seq.
      Wine bottler's permit, see V.T.C.A., Alcoholic Beverage Code § 18.01 et seq.
      Winery permit, see V.T.C.A., Alcoholic Beverage Code § 16.01 et seq.

LIBRARY REFERENCES

2007 Main Volume

    Intoxicating Liquors       98.
    Westlaw Topic No. 223.
    C.J.S. Intoxicating Liquors §§ 195 to 198, 200.

RESEARCH REFERENCES

2010 Electronic Update

ALR Library

116 ALR 5th 149, Interplay Between Twenty-First Amendment and Commerce Clause Concerning State Regu-
lation of Intoxicating Liquors.


Encyclopedias




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 24.01                                                                     Page 3




TX Jur. 3d Intoxicating Liquors § 55, Classes of Permits and Licenses Available.


NOTES OF DECISIONS

  Validity 1

  1. Validity

Texas Alcoholic Beverage Code provisions, which were part of Texas's three-tier system and allowed an in-state
liquor retailer to make local deliveries within its county, but barred out-of-state retailers from shipping to Texas,
did not violate the dormant Commerce Clause; under the Twenty-first Amendment alcohol wholesalers and re-
tailers could be required to be within the state, regulating alcoholic beverage retailing was largely a state's
prerogative, and out-of-state retailers were not similarly situated to Texas retailers. Wine Country Gift Bas-
kets.com v. Steen, C.A.5 (Tex.)2010, 612 F.3d 809. Commerce             74.35; Intoxicating Liquors        15


Texas Alcoholic Beverage Code provisions, which were part of Texas's three-tier system, which allowed an in-
state liquor retailer to make local deliveries within its county, but barred out-of-state retailers from shipping to
Texas, did not violate the dormant Commerce Clause; under the Twenty-first Amendment alcohol wholesalers
and retailers may be required to be within the state, regulating alcoholic beverage retailing was largely a state's
prerogative, and out-of-state retailers were not similarly situated to Texas retailers. Siesta Village Market LLC
v. Steen, C.A.5 (Tex.)2010, 595 F.3d 249, opinion withdrawn and superseded on reconsideration 612 F.3d 809.
Commerce           74.35; Intoxicating Liquors      15


Requirement that wine retailers, including out-of-state retailers, purchase wine for resale from Texas-licensed
wholesalers did not violate Commerce Clause. Siesta Village Market, LLC v. Perry, N.D.Tex.2008, 530
F.Supp.2d 848, vacated in part 595 F.3d 249, opinion withdrawn and superseded on reconsideration 612 F.3d
809. Commerce       74.40; Intoxicating Liquors        15


Texas Alcoholic Beverage Code's Texas citizenship requirements were unconstitutional under Commerce Clause
as applied to out-of-state wine retailers; Texas could not condition qualification for Texas Alcoholic Beverage
Commission (TABC) permits on establishing citizenship in Texas. Siesta Village Market, LLC v. Perry,
N.D.Tex.2008, 530 F.Supp.2d 848, vacated in part 595 F.3d 249, opinion withdrawn and superseded on recon-
sideration 612 F.3d 809. Commerce          74.40; Intoxicating Liquors      15


V. T. C. A., Alcoholic Beverage Code § 24.01, TX AL BEV § 24.01


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 37.03                                                                    Page 1




                                       Effective:[See Text Amendments]

Vernon's Texas Statutes and Codes Annotated Currentness
 Alcoholic Beverage Code (Refs & Annos)
    Title 3. Licenses and Permits
          Subtitle A. Permits
            Chapter 37. Nonresident Seller's Permit (Refs & Annos)
              § 37.03. Permit Required

A nonresident seller's permit is required of any distillery, winery, importer, broker, or person who sells liquor to
permittees authorized to import liquor into this state, regardless of whether the sale is consummated inside or
outside the state.



CREDIT(S)

Acts 1977, 65th Leg., p. 445, ch. 194, § 1, eff. Sept. 1, 1977.


VALIDITY

    < This section has been declared unconstitutional by Dickerson v. Bailey, C.A.5 (Tex.)2003, 336
    F.3d 388.>


HISTORICAL AND STATUTORY NOTES

2007 Main Volume

Prior Laws:

    Acts 1935, 44th Leg., 2nd C.S., p. 1795, ch. 467, art. 1, § 15 1/2.

    Acts 1943, 48th Leg., p. 509, ch. 325, § 14.

    Vernon's Ann.P.C. (1925) art. 666-15 1/2, subsec. A, subd. (1).


LIBRARY REFERENCES

2007 Main Volume

    Intoxicating Liquors   54.
    Westlaw Topic No. 223.




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 37.03                                                                     Page 2




    C.J.S. Intoxicating Liquors §§ 143 to 145.

RESEARCH REFERENCES

2010 Electronic Update

ALR Library

116 ALR 5th 149, Interplay Between Twenty-First Amendment and Commerce Clause Concerning State Regu-
lation of Intoxicating Liquors.


Encyclopedias

TX Jur. 3d Intoxicating Liquors § 16, Importation.


TX Jur. 3d Intoxicating Liquors § 53, Activities for Which Permit or License Not Required; Production for Per-
sonal Use--Transportation, Importation for Personal Consumption.


NOTES OF DECISIONS

  Validity 1

  1. Validity

Texas Alcoholic Beverage Code provisions, which were part of Texas's three-tier system and allowed an in-state
liquor retailer to make local deliveries within its county, but barred out-of-state retailers from shipping to Texas,
did not violate the dormant Commerce Clause; under the Twenty-first Amendment alcohol wholesalers and re-
tailers could be required to be within the state, regulating alcoholic beverage retailing was largely a state's
prerogative, and out-of-state retailers were not similarly situated to Texas retailers. Wine Country Gift Bas-
kets.com v. Steen, C.A.5 (Tex.)2010, 612 F.3d 809. Commerce             74.35; Intoxicating Liquors        15


Texas Alcoholic Beverage Code provisions, which were part of Texas's three-tier system, which allowed an in-
state liquor retailer to make local deliveries within its county, but barred out-of-state retailers from shipping to
Texas, did not violate the dormant Commerce Clause; under the Twenty-first Amendment alcohol wholesalers
and retailers may be required to be within the state, regulating alcoholic beverage retailing was largely a state's
prerogative, and out-of-state retailers were not similarly situated to Texas retailers. Siesta Village Market LLC
v. Steen, C.A.5 (Tex.)2010, 595 F.3d 249, opinion withdrawn and superseded on reconsideration 612 F.3d 809.
Commerce           74.35; Intoxicating Liquors      15


Provisions of the Texas Alcoholic Beverage Code (TABC) which prohibited out-of-state wineries from directly
selling and shipping wine to Texas consumers discriminated against out-of-state vintners and impeded interstate
commerce in violation of the Commerce Clause. Dickerson v. Bailey, C.A.5 (Tex.)2003, 336 F.3d 388. Com-
merce        74.35; Intoxicating Liquors   15




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 37.03                                                                  Page 3




Economically discriminatory provisions of the Texas Alcoholic Beverage Code (TABC), which prohibited out-
of-state wineries from directly selling and shipping wine to Texas consumers, were not saved from strict judicial
scrutiny under the Commerce Clause by the Twenty-First Amendment. Dickerson v. Bailey, C.A.5 (Tex.)2003,
336 F.3d 388. Commerce          74.35; Intoxicating Liquors      15


Where provisions of the Texas Alcoholic Beverage Code (TABC) prohibiting direct sales and shipments of wine
by out-of-state vintners to Texas consumers were found to violate the Commerce Clause, appropriate remedy
was to enjoin administrator of state alcoholic beverage commission from enforcing the economically discrimin-
atory provisions as applied to plaintiff-consumers and to out-of-state wineries, not to enjoin enforcement of the
special statutory benefits accorded to in-state wineries, as requested by administrator; plaintiffs sued to obtain
equal benefits under the TABC, goal of extension of benefits was inherent in a claim under the Commerce
Clause, and administrator's request that appellate court reform the remedy imposed by the district court, in es-
sence, asked appellate court to act in a legislative capacity, which it declined to do. Dickerson v. Bailey, C.A.5
(Tex.)2003, 336 F.3d 388. Civil Rights         1456


Texas Alcoholic Beverage Code provisions violated dormant commerce clause to extent that they restricted right
of Texas residents, who were not otherwise statutorily prohibited from possessing alcoholic beverages, to order
out-of-state wines to be shipped directly to their homes for their personal consumption. Dickerson v. Bailey,
S.D.Tex.2002, 212 F.Supp.2d 673, affirmed 336 F.3d 388. Commerce          74.40; Intoxicating Liquors       15


V. T. C. A., Alcoholic Beverage Code § 37.03, TX AL BEV § 37.03


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 54.12                                                                  Page 1




                                             Effective: May 9, 2005

Vernon's Texas Statutes and Codes Annotated Currentness
 Alcoholic Beverage Code (Refs & Annos)
    Title 3. Licenses and Permits
          Subtitle A. Permits
            Chapter 54. Out-Of-State Winery Direct Shipper's Permit (Refs & Annos)
              § 54.12. Penalty for Shipping Without a Permit

Any person who does not hold an out-of-state winery direct shipper's permit who sells and ships alcohol from
outside of Texas to an ultimate consumer in Texas commits on first offense a Class B misdemeanor, on second
offense a Class A misdemeanor, and on third offense a state jail felony.



CREDIT(S)

Added by Acts 2005, 79th Leg., ch. 36, § 2, eff. May 9, 2005.


VALIDITY

    < This section has been declared unconstitutional by Siesta Village Market, LLC v. Perry, 530
    F.Supp.2d 848 (N.D. Tex., 2008).>


HISTORICAL AND STATUTORY NOTES

2007 Main Volume

Sections 6 and 7(b) of Acts 2005, 79th Leg., ch. 36 provide:


“Sec. 6. This Act applies only to sales and shipments occurring on or after the effective date [May 9, 2005] of
this Act. Sales or shipments occurring before the effective date of this Act are governed by the law in effect im-
mediately before that date, and that law is continued in effect for that purpose.”


“Sec. 7(b). If this Act takes immediate effect, the requirement for a permit and the penalty imposed for shipping
without a permit under Chapter 54, Alcoholic Beverage Code, as added by this Act, take effect on the date 90
days [Aug. 7, 2005] after the date of immediate effect, otherwise the requirement for a permit and the penalty
imposed for shipping without a permit under Chapter 54, Alcoholic Beverage Code, as added by this Act, take
effect January 1, 2006.”




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 54.12                                                                     Page 2




LIBRARY REFERENCES

2007 Main Volume

    Intoxicating Liquors       138.
    Westlaw Topic No. 223.
    C.J.S. Intoxicating Liquors §§ 323, 369 to 375.

RESEARCH REFERENCES

2010 Electronic Update

ALR Library

116 ALR 5th 149, Interplay Between Twenty-First Amendment and Commerce Clause Concerning State Regu-
lation of Intoxicating Liquors.


NOTES OF DECISIONS

  Validity 1

  1. Validity

Texas Alcoholic Beverage Code provisions, which were part of Texas's three-tier system and allowed an in-state
liquor retailer to make local deliveries within its county, but barred out-of-state retailers from shipping to Texas,
did not violate the dormant Commerce Clause; under the Twenty-first Amendment alcohol wholesalers and re-
tailers could be required to be within the state, regulating alcoholic beverage retailing was largely a state's
prerogative, and out-of-state retailers were not similarly situated to Texas retailers. Wine Country Gift Bas-
kets.com v. Steen, C.A.5 (Tex.)2010, 612 F.3d 809. Commerce             74.35; Intoxicating Liquors        15


Texas Alcoholic Beverage Code provisions, which were part of Texas's three-tier system, which allowed an in-
state liquor retailer to make local deliveries within its county, but barred out-of-state retailers from shipping to
Texas, did not violate the dormant Commerce Clause; under the Twenty-first Amendment alcohol wholesalers
and retailers may be required to be within the state, regulating alcoholic beverage retailing was largely a state's
prerogative, and out-of-state retailers were not similarly situated to Texas retailers. Siesta Village Market LLC
v. Steen, C.A.5 (Tex.)2010, 595 F.3d 249, opinion withdrawn and superseded on reconsideration 612 F.3d 809.
Commerce           74.35; Intoxicating Liquors      15


Texas Alcoholic Beverage Code provisions giving wine retailers located within a Texas county the right to sell
and ship wine to consumers within that county, but banning out-of-state wine retailers from selling or shipping
wine to any Texas consumers, violated Commerce Clause; requiring the in-state presence of wine retailers was
not necessary for protecting Texas' interest in conducting on-site inspections of retailer premises, preventing ac-
cess to alcohol by minors did not justify Texas' discriminatory direct-shipping laws, there was no proof that
Texas would encounter difficulty collecting taxes in the context of alcohol sales, where it could protect itself by
requiring a permit as a condition of direct shipping, and the sale and direct shipment of wine would not neces-
sarily allow out-of-state retailers to bypass the three-tier system. Siesta Village Market, LLC v. Perry,




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 54.12                                                         Page 3




N.D.Tex.2008, 530 F.Supp.2d 848, vacated in part 595 F.3d 249, opinion withdrawn and superseded on recon-
sideration 612 F.3d 809. Commerce     74.30; Intoxicating Liquors      15


V. T. C. A., Alcoholic Beverage Code § 54.12, TX AL BEV § 54.12


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 107.05                                                                Page 1




                                       Effective:[See Text Amendments]

Vernon's Texas Statutes and Codes Annotated Currentness
 Alcoholic Beverage Code (Refs & Annos)
      Title 4. Regulatory and Penal Provisions (Refs & Annos)
         Chapter 107. Transportation and Importation
           § 107.05. Importation of Liquor

(a) No person may import liquor into the state and deliver it to a person not authorized to import it.



(b) This section does not apply to the transportation of liquor into the state as authorized by Section 107.07 of
this code.



CREDIT(S)

Acts 1977, 65th Leg., p. 517, ch. 194, § 1, eff. Sept. 1, 1977.


VALIDITY

    <Subsection (a) of this section has been declared unconstitutional by Dickerson v. Bailey, C.A.5
    (Tex)2003, 336 F.3d 388.>


    <Subsection (a) of this section has been declared unconstitutional by Siesta Village Market, LLC v.
    Perry, 530 F.Supp.2d 848 (N.D. Tex., 2008).>


HISTORICAL AND STATUTORY NOTES

2007 Main Volume

Prior Laws:

    Acts 1935, 44th Leg., 2nd C.S., p. 1795, ch. 467, art. 1, § 17.

    Acts 1937, 45th Leg., p. 1053, ch. 448, § 22.

    Acts 1943, 48th Leg., p. 509, ch. 325, § 15.

    Acts 1949, 51st Leg., p. 1011, ch. 543, § 7.




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 107.05                                                                Page 2




    Vernon's Ann.P.C. (1925) art. 666-17, subsecs. (18), (33).


LIBRARY REFERENCES

2007 Main Volume

    Intoxicating Liquors       112.5.
    Westlaw Topic No. 223.
    C.J.S. Intoxicating Liquors § 309.

RESEARCH REFERENCES

2010 Electronic Update

ALR Library

116 ALR 5th 149, Interplay Between Twenty-First Amendment and Commerce Clause Concerning State Regu-
lation of Intoxicating Liquors.


Encyclopedias

TX Jur. 3d Intoxicating Liquors § 16, Importation.


TX Jur. 3d Intoxicating Liquors § 53, Activities for Which Permit or License Not Required; Production for Per-
sonal Use--Transportation, Importation for Personal Consumption.


NOTES OF DECISIONS

  Validity 1

  1. Validity

Texas Alcoholic Beverage Code provisions which placed a limit on quantity of alcoholic beverages that an indi-
vidual could purchase out-of-state and then bring to Texas, which was a limited exception to Texas's three-tier
system, did not violate the dormant Commerce Clause; interests of Texas consumers in purchasing alcoholic
beverages outside of Texas was recognized, while State validly insisted that vast majority of alcoholic beverages
consumed in Texas be obtained through its own retailers. Siesta Village Market LLC v. Steen, C.A.5
(Tex.)2010, 595 F.3d 249, opinion withdrawn and superseded on reconsideration 612 F.3d 809. Commerce
74.30; Intoxicating Liquors      15


Provisions of the Texas Alcoholic Beverage Code (TABC) which prohibited out-of-state wineries from directly
selling and shipping wine to Texas consumers discriminated against out-of-state vintners and impeded interstate
commerce in violation of the Commerce Clause. Dickerson v. Bailey, C.A.5 (Tex.)2003, 336 F.3d 388. Com-
merce        74.35; Intoxicating Liquors   15




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 107.05                                                                 Page 3




Economically discriminatory provisions of the Texas Alcoholic Beverage Code (TABC), which prohibited out-
of-state wineries from directly selling and shipping wine to Texas consumers, were not saved from strict judicial
scrutiny under the Commerce Clause by the Twenty-First Amendment. Dickerson v. Bailey, C.A.5 (Tex.)2003,
336 F.3d 388. Commerce          74.35; Intoxicating Liquors      15


Where provisions of the Texas Alcoholic Beverage Code (TABC) prohibiting direct sales and shipments of wine
by out-of-state vintners to Texas consumers were found to violate the Commerce Clause, appropriate remedy
was to enjoin administrator of state alcoholic beverage commission from enforcing the economically discrimin-
atory provisions as applied to plaintiff-consumers and to out-of-state wineries, not to enjoin enforcement of the
special statutory benefits accorded to in-state wineries, as requested by administrator; plaintiffs sued to obtain
equal benefits under the TABC, goal of extension of benefits was inherent in a claim under the Commerce
Clause, and administrator's request that appellate court reform the remedy imposed by the district court, in es-
sence, asked appellate court to act in a legislative capacity, which it declined to do. Dickerson v. Bailey, C.A.5
(Tex.)2003, 336 F.3d 388. Civil Rights         1456


Texas Alcoholic Beverage Code's ban on consumer imports of wine from out-of-state wine retailers violated
Commerce Clause. Siesta Village Market, LLC v. Perry, N.D.Tex.2008, 530 F.Supp.2d 848, vacated in part 595
F.3d 249, opinion withdrawn and superseded on reconsideration 612 F.3d 809. Commerce     74.30; Intoxicat-
ing Liquors      15


Texas Alcoholic Beverage Code provisions violated dormant commerce clause to extent that they restricted right
of Texas residents, who were not otherwise statutorily prohibited from possessing alcoholic beverages, to order
out-of-state wines to be shipped directly to their homes for their personal consumption. Dickerson v. Bailey,
S.D.Tex.2002, 212 F.Supp.2d 673, affirmed 336 F.3d 388. Commerce          74.40; Intoxicating Liquors       15


V. T. C. A., Alcoholic Beverage Code § 107.05, TX AL BEV § 107.05


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 109.53                                                                       Page 1




                                           Effective: September 1, 2001

Vernon's Texas Statutes and Codes Annotated Currentness
 Alcoholic Beverage Code (Refs & Annos)
    Title 4. Regulatory and Penal Provisions (Refs & Annos)
          Chapter 109. Miscellaneous Regulatory Provisions
            Subchapter D. Other Miscellaneous Provisions
              § 109.53. Citizenship of Permittee; Control of Premises; Subterfuge Ownership; Etc.

No person who has not been a citizen of Texas for a period of one year immediately preceding the filing of his
application therefor shall be eligible to receive a permit under this code. No permit except a brewer's permit, and
such other licenses and permits as are necessary to the operation of a brewer's permit, shall be issued to a cor-
poration unless the same be incorporated under the laws of the state and unless at least 51 percent of the stock of
the corporation is owned at all times by citizens who have resided within the state for a period of one year and
who possess the qualifications required of other applicants for permits; provided, however, that the restrictions
contained in the preceding clause shall not apply to domestic or foreign corporations that were engaged in the
legal alcoholic beverage business in this state under charter or permit prior to August 24, 1935. Partnerships,
firms, and associations applying for permits shall be composed wholly of citizens possessing the qualifications
above enumerated. Any corporation (except carrier) holding a permit under this code which shall violate any
provisions hereof, or any rule or regulation promulgated hereunder, shall be subject to forfeiture of its charter
and it shall be the duty of the attorney general, when any such violation is called to his attention, to file a suit for
such cancellation in a district court of Travis County. Such provisions of this section as require Texas citizen-
ship or require incorporation in Texas shall not apply to the holders of agent's, industrial, and carrier's permits.
No person shall sell, warehouse, store or solicit orders for any liquor in any wet area without first having pro-
cured a permit of the class required for such privilege, or consent to the use of or allow his permit to be dis-
played by or used by any person other than the one to whom the permit was issued. It is the intent of the legis-
lature to prevent subterfuge ownership of or unlawful use of a permit or the premises covered by such permit;
and all provisions of this code shall be liberally construed to carry out this intent, and it shall be the duty of the
commission or the administrator to provide strict adherence to the general policy of preventing subterfuge own-
ership and related practices hereinafter declared to constitute unlawful trade practices. No applicant for a pack-
age store permit or a renewal thereof shall have authority to designate as “premise” and the commission or ad-
ministrator shall not approve a lesser area than that specifically defined as “premise” in Section 11.49(a) of this
code. Every permittee shall have and maintain exclusive occupancy and control of the entire licensed premises
in every phase of the storage, distribution, possession, and transportation and sale of all alcoholic beverages pur-
chased, stored or sold on the licensed premises. Any device, scheme or plan which surrenders control of the em-
ployees, premises or business of the permittee to persons other than the permittee shall be unlawful. No minor,
unless accompanied by his or her parent, guardian, adult husband or adult wife, or other adult person into whose
custody he or she has been committed for the time by some court, shall knowingly be allowed on the premises of
the holder of a package store permit. The prohibition against the presence of a minor on the premises of the
holder of a package store permit does not apply to the presence on the premises of the holder or a person law-
fully employed by the holder. Any package store permittee who shall be injured in his business or property by




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 109.53                                                                    Page 2




another package store permittee by reason of anything prohibited in this section may institute suit in any district
court in the county wherein the violation is alleged to have occurred to require enforcement by injunctive pro-
cedures and/or to recover threefold the damages by him sustained; plus costs of suit including a reasonable attor-
ney's fee. The provisions prohibiting the licensing of only a portion of a building as premise for a package store
permit shall not apply to hotels as already defined in this code.



CREDIT(S)

Acts 1977, 65th Leg., p. 526, ch. 194, § 1, eff. Sept. 1, 1977. Amended by Acts 1981, 67th Leg., p. 258, ch. 107,
§ 15, eff. Sept. 1, 1981; Acts 1985, 69th Leg., ch. 285, § 13, eff. Sept. 1, 1986; Acts 1985, 69th Leg., ch. 462, §
14, eff. Sept. 1, 1986; Acts 1993, 73rd Leg., ch. 934, § 90, eff. Sept. 1, 1993; Acts 2001, 77th Leg., ch. 191, § 2,
eff. Sept. 1, 2001.


VALIDITY

    < This section has been declared unconstitutional by Siesta Village Market, LLC v. Perry, 530
    F.Supp.2d 848 (N.D. Tex., 2008).>


HISTORICAL AND STATUTORY NOTES

2007 Main Volume

Acts 1981, 67th Leg., p. 258, ch. 107, in the eleventh sentence substituted “19” for “18”, and inserted the twelfth
sentence.


Acts 1985, 69th Leg., ch. 285 and Acts 1985, 69th Leg., ch. 462, in the eleventh sentence, substituted “minor”
for “person under the age of 19 years” twice.


Acts 1993, 73rd Leg., ch. 934, in the first and second sentences, substituted “one year” for “three years”.


Acts 2001, 77th Leg., ch. 191 deleted a provision excepting medicinal permits from the section requirements.



Prior Laws:

    Acts 1935, 44th Leg., 2nd C.S., p. 1795, ch. 467, art. 1, § 18.

    Acts 1967, 60th Leg., p. 161, ch. 85, § 2.

    Acts 1969, 61st Leg., p. 80, ch. 38, § 16A.

    Acts 1969, 61st Leg., p. 2451, ch. 819, § 1.




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 109.53                                                                Page 3




    Vernon's Ann.P.C. (1925) art. 666-18.


CROSS REFERENCES

      Airline beverage permit, inapplicability of this section, see V.T.C.A., Alcoholic Beverage Code § 34.06.
      Applicability of this section to market research packager's permit, see V.T.C.A., Alcoholic Beverage
      Code § 49.01.
      Brewer's permit, see V.T.C.A., Alcoholic Beverage Code § 12.01 et seq.
      Certain governmentally owned facilities, financial arrangements, see V.T.C.A., Alcoholic Beverage Code
      § 108.755.
      Passenger train beverage permit, inapplicability of this section, see V.T.C.A., Alcoholic Beverage Code §
      48.05.
      Premises defined; designation of licensed premises, see V.T.C.A., Alcoholic Beverage Code § 11.49
      Sales near school, application, notice to school officials, inapplicability to premises where minors barred
      under this section, see V.T.C.A., Alcoholic Beverage Code § 109.33.

LIBRARY REFERENCES

2007 Main Volume

    Intoxicating Liquors       58.
    Westlaw Topic No. 223.
    C.J.S. Intoxicating Liquors §§ 146 to 148.

RESEARCH REFERENCES

2010 Electronic Update

ALR Library

116 ALR 5th 149, Interplay Between Twenty-First Amendment and Commerce Clause Concerning State Regu-
lation of Intoxicating Liquors.


Encyclopedias

TX Jur. 3d Intoxicating Liquors § 6, Premises and Equipment.


TX Jur. 3d Intoxicating Liquors § 13, Promotional Activities--Public Entertainment Facilities.


TX Jur. 3d Intoxicating Liquors § 28, Permitting Minor's Presence in Package Store.


TX Jur. 3d Intoxicating Liquors § 59, Residency and Citizenship Requirements.


TX Jur. 3d Intoxicating Liquors § 115, Cancellation of Corporate Charter.




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 109.53                                                                  Page 4




TX Jur. 3d Intoxicating Liquors § 116, Injunctions.


NOTES OF DECISIONS

  In general 2
  Sufficiency of evidence 3
  Validity 1

  1. Validity

Provisions of Texas Alcoholic Beverage Code imposing residency requirements on permit holders discriminated
against nonresidents, thus imposing burden on the state to provide justification, those challenging the require-
ments were not required to prove discriminatory intent. Cooper v. McBeath, C.A.5 (Tex.)1994, 11 F.3d 547, cer-
tiorari denied 114 S.Ct. 2675, 512 U.S. 1205, 129 L.Ed.2d 810. Commerce             74.40; Intoxicating Liquors
      15


Neither the claim that alcoholic beverage distribution system was established to protect the health, safety, wel-
fare, morals and temperance of the citizens of Texas nor the need for screening of applicant's reputation in the
community, could justify discrimination on interstate commerce resulting from residency requirements for per-
mits under Texas Alcoholic Beverage Code. Cooper v. McBeath, C.A.5 (Tex.)1994, 11 F.3d 547, certiorari
denied 114 S.Ct. 2675, 512 U.S. 1205, 129 L.Ed.2d 810. Commerce          74.40; Intoxicating Liquors        15


Individuals who had option to purchase majority of stock of liquor licensee and who would receive their remain-
ing stock once the transfer could occur without endangering the permit had standing to challenge constitutional-
ity of residency requirements for permits under the Texas Alcoholic Beverage Code. Cooper v. McBeath, C.A.5
(Tex.)1994, 11 F.3d 547, certiorari denied 114 S.Ct. 2675, 512 U.S. 1205, 129 L.Ed.2d 810. Constitutional Law
      714


Constitutional challenge to residency and citizenship requirements of Texas Alcoholic Beverage Code was not
rendered moot by statutory changes enacted after the filing of the suit where the revisions still required one-year
residency in order to obtain a license. Cooper v. McBeath, C.A.5 (Tex.)1994, 11 F.3d 547, certiorari denied 114
S.Ct. 2675, 512 U.S. 1205, 129 L.Ed.2d 810. Constitutional Law          977


Promise of threatened enforcement of revisions of Texas Alcoholic Beverage Code imposing residency require-
ments on licensees and providing for revocation of a permit if permit were acquired by a nonresident gave ripe-
ness to constitutional challenge to residency requirements. Cooper v. McBeath, C.A.5 (Tex.)1994, 11 F.3d 547,
certiorari denied 114 S.Ct. 2675, 512 U.S. 1205, 129 L.Ed.2d 810. Constitutional Law      978


State's interest in facilitating background checks of permit applicants which resulted in discrimination against
nonresidents in issuance of permits under the Texas Alcoholic Beverage Code was not within the core concern
of the Twenty-first Amendment. Cooper v. McBeath, C.A.5 (Tex.)1994, 11 F.3d 547, certiorari denied 114 S.Ct.
2675, 512 U.S. 1205, 129 L.Ed.2d 810. Intoxicating Liquors         58




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 109.53                                                                 Page 5




Texas Alcoholic Beverage Code's Texas citizenship requirements were unconstitutional under Commerce Clause
as applied to out-of-state wine retailers; Texas could not condition qualification for Texas Alcoholic Beverage
Commission (TABC) permits on establishing citizenship in Texas. Siesta Village Market, LLC v. Perry,
N.D.Tex.2008, 530 F.Supp.2d 848, vacated in part 595 F.3d 249, opinion withdrawn and superseded on recon-
sideration 612 F.3d 809. Commerce          74.40; Intoxicating Liquors      15


State failed in its burden to prove that no nondiscriminatory alternative means were available to address the
state's interest in ensuring that those who distributed alcoholic beverages had a stake in the welfare of the com-
munity which they operated, and thus facially discriminatory one-year durational residency and citizenship re-
quirements upon out-of-state wine and spirits distributors imposed an unconstitutional burden upon interstate
commerce, and did not fall within the ambit of the Twenty-First Amendment; residency requirements were im-
posed upon wine and spirits distributor's request for wholesaler's permit, general distributor's license, and im-
porter's license, but were not imposed upon in-state distributors, and even though the residency period had been
reduced by legislature from three years to one year, the regulation remained discriminatory. Southern Wine and
Spirits of Texas, Inc. v. Steen, W.D.Tex.2007, 486 F.Supp.2d 626. Commerce            74.40; Intoxicating Liquors
      15


  2. In general

Under Vernon's Ann.P.C. (1925) repealed arts. 666-3a(7) and 666-18, sale of intoxicating liquors could not be
carried on under same roof with grocery store which was not separated from premises where liquor was sold.
Johnson v. McDaniel (Civ.App. 1970) 461 S.W.2d 198, ref. n.r.e.. Intoxicating Liquors     116


Vernon's Ann.P.C. (1925) art. 666-18 (repealed) restricted the class of corporations authorized to qualify under
the “grandfather clause” therein to only those domestic or foreign corporations that were engaged in the legal al-
coholic beverage business in Texas under charter or permit prior to August 24, 1935. Op.Atty.Gen.1967, No. M-
159.


The death of a limited partner does not necessarily prohibit the renewal of a mixed beverage permit issued to the
partnership. Op.Atty.Gen.1976, No. H-783.


As much as 49% of a corporate permit holder may be owned by person residing out-of-state, but facts of any
specific situation must be examined to insure that there is no question of subterfuge ownership or violation of
tied house prohibitions. Op.Atty.Gen.1980, No. MW-125.


  3. Sufficiency of evidence

Order of the Alcoholic Beverage Commission denying application for a wine only package store permit and for
a beer retailer's off-premises license on ground that applicant was a subterfuge corporation was not supported by
substantial evidence and was arbitrary. Texas Alcoholic Beverage Commission v. Good Spirits, Inc. (Civ.App.
1981) 616 S.W.2d 411. Intoxicating Liquors          70; Intoxicating Liquors      71




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Alcoholic Beverage Code § 109.53                                                      Page 6




V. T. C. A., Alcoholic Beverage Code § 109.53, TX AL BEV § 109.53


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Bus. & C. § 102.051                                                                                  Page 1




                                          Effective: September 1, 2009

Vernon's Texas Statutes and Codes Annotated Currentness
 Business and Commerce Code (Refs & Annos)
    Title 5. Regulation of Businesses and Services
      Subtitle C. Business Operations
            Chapter 102. Sexually Oriented Businesses
              Subchapter B. Fee Imposed on Certain Sexually Oriented Businesses
                § 102.051. Definitions

In this subchapter:



  (1) “Nude” means:


    (A) entirely unclothed; or


    (B) clothed in a manner that leaves uncovered or visible through less than fully opaque clothing any portion
    of the breasts below the top of the areola of the breasts, if the person is female, or any portion of the genitals
    or buttocks.


  (2) “Sexually oriented business” means a nightclub, bar, restaurant, or similar commercial enterprise that:


    (A) provides for an audience of two or more individuals live nude entertainment or live nude performances;
    and


    (B) authorizes on-premises consumption of alcoholic beverages, regardless of whether the consumption of
    alcoholic beverages is under a license or permit issued under the Alcoholic Beverage Code.


CREDIT(S)

Added by Acts 2007, 80th Leg., ch. 1206, § 3, eff. Jan. 1, 2008. Redesignated from V.T.C.A., Bus. & C. Code §
47.051 by Acts 2009, 81st Leg., ch. 87, § 4.004, eff. Sept. 1, 2009.


VALIDITY

    < This section has been declared unconstitutional by Combs v. Texas Entertainment Ass’n, Inc., 287
    S.W.3d 852 (Tex.App.-Austin, 2009).>




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Bus. & C. § 102.051                                                                               Page 2




LIBRARY REFERENCES

2010 Electronic Update

    Public Amusement and Entertainment           9.
    Westlaw Topic No. 315T.

NOTES OF DECISIONS

  Validity 1

  1. Validity

Tax imposed on businesses offering live, nude entertainment in the presence of alcohol was based on the content
of expressive conduct, and thus was subject to strict scrutiny under the First Amendment, even though tax was
directed at reducing the secondary effects of sexually oriented businesses, and a sexually oriented business own-
er could avoid the tax by choosing not to allow the consumption of alcohol on the premises. Combs v. Texas En-
tertainment Ass'n, Inc. (App. 3 Dist. 2009) 287 S.W.3d 852, review granted. Constitutional Law         2239


Even if considered content neutral for First Amendment purposes, tax imposed on businesses that offer live,
nude entertainment in the presence of alcohol could not survive intermediate scrutiny because it was not nar-
rowly tailored to further a substantial governmental interest; majority of proceeds resulting from the tax were al-
located to purposes bearing no relation to the negative secondary effects the State claimed it was seeking to cor-
rect. Combs v. Texas Entertainment Ass'n, Inc. (App. 3 Dist. 2009) 287 S.W.3d 852, review granted. Constitu-
tional Law       2239; Intoxicating Liquors       16


V. T. C. A., Bus. & C. § 102.051, TX BUS & COM § 102.051


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Bus. & C. § 102.052                                                                            Page 1




                                        Effective: September 1, 2009

Vernon's Texas Statutes and Codes Annotated Currentness
 Business and Commerce Code (Refs & Annos)
    Title 5. Regulation of Businesses and Services
      Subtitle C. Business Operations
            Chapter 102. Sexually Oriented Businesses
              Subchapter B. Fee Imposed on Certain Sexually Oriented Businesses
                § 102.052. Fee Based on Admissions; Records

(a) A fee is imposed on a sexually oriented business in an amount equal to $5 for each entry by each customer
admitted to the business.



(b) A sexually oriented business shall record daily in the manner required by the comptroller the number of cus-
tomers admitted to the business. The business shall maintain the records for the period required by the comp-
troller and make the records available for inspection and audit on request by the comptroller.


(c) This section does not require a sexually oriented business to impose a fee on a customer of the business. A
business has discretion to determine the manner in which the business derives the money required to pay the fee
imposed under this section.



CREDIT(S)

Added by Acts 2007, 80th Leg., ch. 1206, § 3, eff. Jan. 1, 2008. Redesignated from V.T.C.A., Bus. & C. Code §
47.052 by Acts 2009, 81st Leg., ch. 87, § 4.004, eff. Sept. 1, 2009.


VALIDITY

    < This section has been declared unconstitutional by Combs v. Texas Entertainment Ass’n, Inc. 287
    S.W.3d 852 (Tex. App.--Austin 2009).>


HISTORICAL AND STATUTORY NOTES

2010 Electronic Update

Section 8 of Acts 2007, 80th Leg., ch. 1206 provides:




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Bus. & C. § 102.052                                                                               Page 2




“The fee imposed by Section 47.052, Business & Commerce Code, as added by this Act, applies only to a sexu-
ally oriented business with respect to the admission by the business of customers on or after the effective date of
this Act.”


CROSS REFERENCES

      Sexual assault program fund, see V.T.C.A., Government Code § 420.008.

LIBRARY REFERENCES

2010 Electronic Update

    Public Amusement and Entertainment           60.
    Westlaw Topic No. 315T.

NOTES OF DECISIONS

  Validity 1

  1. Validity

Even if considered content neutral for First Amendment purposes, tax imposed on businesses that offer live,
nude entertainment in the presence of alcohol could not survive intermediate scrutiny because it was not nar-
rowly tailored to further a substantial governmental interest; majority of proceeds resulting from the tax were al-
located to purposes bearing no relation to the negative secondary effects the State claimed it was seeking to cor-
rect. Combs v. Texas Entertainment Ass'n, Inc. (App. 3 Dist. 2009) 287 S.W.3d 852, review granted. Constitu-
tional Law       2239; Intoxicating Liquors       16


Tax imposed on businesses offering live, nude entertainment in the presence of alcohol was based on the content
of expressive conduct, and thus was subject to strict scrutiny under the First Amendment, even though tax was
directed at reducing the secondary effects of sexually oriented businesses, and a sexually oriented business own-
er could avoid the tax by choosing not to allow the consumption of alcohol on the premises; thus, in light of con-
cession by Comptroller of Public Accounts and the Attorney General that tax could not survive strict scrutiny,
tax was unconstitutional under the First Amendment. Combs v. Texas Entertainment Ass'n, Inc. (App. 3 Dist.
2009) 287 S.W.3d 852, review granted. Constitutional Law          2239


V. T. C. A., Bus. & C. § 102.052, TX BUS & COM § 102.052


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Bus. & C. § 102.053                                                                         Page 1




                                          Effective: September 1, 2009

Vernon's Texas Statutes and Codes Annotated Currentness
 Business and Commerce Code (Refs & Annos)
    Title 5. Regulation of Businesses and Services
      Subtitle C. Business Operations
            Chapter 102. Sexually Oriented Businesses
              Subchapter B. Fee Imposed on Certain Sexually Oriented Businesses
                § 102.053. Remission of Fee; Submission of Reports

Each quarter, a sexually oriented business shall:



  (1) remit the fee imposed by Section 47.052 to the comptroller in the manner prescribed by the comptroller;
  and


  (2) file a report with the comptroller in the manner and containing the information required by the comp-
  troller.


CREDIT(S)

Added by Acts 2007, 80th Leg., ch. 1206, § 3, eff. Jan. 1, 2008. Redesignated from V.T.C.A., Bus. & C. Code §
47.053 by Acts 2009, 81st Leg., ch. 87, § 4.004, eff. Sept. 1, 2009.


VALIDITY

    < This section has been declared unconstitutional by Combs v. Texas Entertainment Ass’n, Inc. 287
    S.W.3d 852 (Tex. App.--Austin 2009).>


LIBRARY REFERENCES

2010 Electronic Update

    Public Amusement and Entertainment              60.
    Westlaw Topic No. 315T.

NOTES OF DECISIONS

  Validity 1




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Bus. & C. § 102.053                                                                               Page 2




  1. Validity

Tax imposed on businesses offering live, nude entertainment in the presence of alcohol was based on the content
of expressive conduct, and thus was subject to strict scrutiny under the First Amendment, even though tax was
directed at reducing the secondary effects of sexually oriented businesses, and a sexually oriented business own-
er could avoid the tax by choosing not to allow the consumption of alcohol on the premises. Combs v. Texas En-
tertainment Ass'n, Inc. (App. 3 Dist. 2009) 287 S.W.3d 852, review granted. Constitutional Law         2239


Even if considered content neutral for First Amendment purposes, tax imposed on businesses that offer live,
nude entertainment in the presence of alcohol could not survive intermediate scrutiny because it was not nar-
rowly tailored to further a substantial governmental interest; majority of proceeds resulting from the tax were al-
located to purposes bearing no relation to the negative secondary effects the State claimed it was seeking to cor-
rect. Combs v. Texas Entertainment Ass'n, Inc. (App. 3 Dist. 2009) 287 S.W.3d 852, review granted. Constitu-
tional Law       2239; Intoxicating Liquors       16


V. T. C. A., Bus. & C. § 102.053, TX BUS & COM § 102.053


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Bus. & C. § 102.054                                                                              Page 1




                                         Effective: September 1, 2009

Vernon's Texas Statutes and Codes Annotated Currentness
 Business and Commerce Code (Refs & Annos)
    Title 5. Regulation of Businesses and Services
      Subtitle C. Business Operations
            Chapter 102. Sexually Oriented Businesses
              Subchapter B. Fee Imposed on Certain Sexually Oriented Businesses
                § 102.054. Allocation of Certain Revenue for Sexual Assault Programs

The comptroller shall deposit the first $25 million received from the fee imposed under this subchapter in a state
fiscal biennium to the credit of the sexual assault program fund.



CREDIT(S)

Added by Acts 2007, 80th Leg., ch. 1206, § 3, eff. Jan. 1, 2008. Redesignated from V.T.C.A., Bus. & C. Code §
47.054 by Acts 2009, 81st Leg., ch. 87, § 4.004, eff. Sept. 1, 2009.


VALIDITY

    < This section has been declared unconstitutional by Combs v. Texas Entertainment Ass’n, Inc. 287
    S.W.3d 852 (Tex. App.--Austin 2009).>


CROSS REFERENCES

      Sexual assault program fund, see V.T.C.A., Government Code § 420.008.

LIBRARY REFERENCES

2010 Electronic Update

    States       127.
    Westlaw Topic No. 360.
    C.J.S. States §§ 386 to 387.

NOTES OF DECISIONS

  Validity 1

  1. Validity




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Bus. & C. § 102.054                                                                               Page 2




Tax imposed on businesses offering live, nude entertainment in the presence of alcohol was based on the content
of expressive conduct, and thus was subject to strict scrutiny under the First Amendment, even though tax was
directed at reducing the secondary effects of sexually oriented businesses, and a sexually oriented business own-
er could avoid the tax by choosing not to allow the consumption of alcohol on the premises. Combs v. Texas En-
tertainment Ass'n, Inc. (App. 3 Dist. 2009) 287 S.W.3d 852, review granted. Constitutional Law         2239


Even if considered content neutral for First Amendment purposes, tax imposed on businesses that offer live,
nude entertainment in the presence of alcohol could not survive intermediate scrutiny because it was not nar-
rowly tailored to further a substantial governmental interest; majority of proceeds resulting from the tax were al-
located to purposes bearing no relation to the negative secondary effects the State claimed it was seeking to cor-
rect. Combs v. Texas Entertainment Ass'n, Inc. (App. 3 Dist. 2009) 287 S.W.3d 852, review granted. Constitu-
tional Law       2239; Intoxicating Liquors       16


V. T. C. A., Bus. & C. § 102.054, TX BUS & COM § 102.054


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Bus. & C. § 102.055                                                                              Page 1




                                         Effective: September 1, 2009

Vernon's Texas Statutes and Codes Annotated Currentness
 Business and Commerce Code (Refs & Annos)
    Title 5. Regulation of Businesses and Services
      Subtitle C. Business Operations
            Chapter 102. Sexually Oriented Businesses
              Subchapter B. Fee Imposed on Certain Sexually Oriented Businesses
                § 102.055. Allocation of Additional Revenue

(a) The comptroller shall deposit all amounts received from the fee imposed under this subchapter after the first
$25 million in a state fiscal biennium in the Texas health opportunity pool established under Subchapter N,
Chapter 531, Government Code. Money deposited in the pool under this section may be used only to provide
health benefits coverage premium payment assistance to low-income persons through a premium payment assist-
ance program developed under that subchapter.



(b) This section takes effect only if Senate Bill No. 10, Acts of the 80th Legislature, Regular Session, 2007, be-
comes law and the Texas health opportunity pool is established under that Act. If that Act does not become law,
or that Act becomes law but the pool is not established, this section has no effect, and the revenue is deposited
as provided by Section 47.0551.



CREDIT(S)

Added by Acts 2007, 80th Leg., ch. 1206, § 3, eff. Jan. 1, 2008. Redesignated from V.T.C.A., Bus. & C. Code §
47.055 by Acts 2009, 81st Leg., ch. 87, § 4.004, eff. Sept. 1, 2009.


VALIDITY

    < This section has been declared unconstitutional by Combs v. Texas Entertainment Ass’n, Inc. 287
    S.W.3d 852 (Tex. App.--Austin 2009).>


LIBRARY REFERENCES

2010 Electronic Update

    States       127, 128.
    Westlaw Topic No. 360.
    C.J.S. States §§ 381 to 382, 386 to 387.




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Bus. & C. § 102.055                                                                               Page 2




NOTES OF DECISIONS

  Validity 1

  1. Validity

Tax imposed on businesses offering live, nude entertainment in the presence of alcohol was based on the content
of expressive conduct, and thus was subject to strict scrutiny under the First Amendment, even though tax was
directed at reducing the secondary effects of sexually oriented businesses, and a sexually oriented business own-
er could avoid the tax by choosing not to allow the consumption of alcohol on the premises. Combs v. Texas En-
tertainment Ass'n, Inc. (App. 3 Dist. 2009) 287 S.W.3d 852, review granted. Constitutional Law         2239


Even if considered content neutral for First Amendment purposes, tax imposed on businesses that offer live,
nude entertainment in the presence of alcohol could not survive intermediate scrutiny because it was not nar-
rowly tailored to further a substantial governmental interest; majority of proceeds resulting from the tax were al-
located to purposes bearing no relation to the negative secondary effects the State claimed it was seeking to cor-
rect. Combs v. Texas Entertainment Ass'n, Inc. (App. 3 Dist. 2009) 287 S.W.3d 852, review granted. Constitu-
tional Law       2239; Intoxicating Liquors       16


V. T. C. A., Bus. & C. § 102.055, TX BUS & COM § 102.055


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Bus. & C. § 102.056                                                                            Page 1




                                        Effective: September 1, 2009

Vernon's Texas Statutes and Codes Annotated Currentness
 Business and Commerce Code (Refs & Annos)
    Title 5. Regulation of Businesses and Services
      Subtitle C. Business Operations
            Chapter 102. Sexually Oriented Businesses
              Subchapter B. Fee Imposed on Certain Sexually Oriented Businesses
                § 102.056. Administration, Collection, and Enforcement

The provisions of Subtitle B, Title 2, Tax Code, [FN1] apply to the administration, payment, collection, and en-
forcement of the fee imposed by this chapter.



CREDIT(S)

Added by Acts 2007, 80th Leg., ch. 1206, § 3, eff. Jan. 1, 2008. Redesignated from V.T.C.A., Bus. & C. Code §
47.056 by Acts 2009, 81st Leg., ch. 87, § 4.004, eff. Sept. 1, 2009.


        [FN1] V.T.C.A., Tax Code § 111.001 et seq.

VALIDITY

    < This section has been declared unconstitutional by Combs v. Texas Entertainment Ass’n, Inc. 287
    S.W.3d 852 (Tex. App.--Austin 2009).>


LIBRARY REFERENCES

2010 Electronic Update

    States       121.
    Westlaw Topic No. 360.
    C.J.S. States §§ 322 to 323, 372.

NOTES OF DECISIONS

  Validity 1

  1. Validity

Tax imposed on businesses offering live, nude entertainment in the presence of alcohol was based on the content
of expressive conduct, and thus was subject to strict scrutiny under the First Amendment, even though tax was




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Bus. & C. § 102.056                                                                               Page 2




directed at reducing the secondary effects of sexually oriented businesses, and a sexually oriented business own-
er could avoid the tax by choosing not to allow the consumption of alcohol on the premises. Combs v. Texas En-
tertainment Ass'n, Inc. (App. 3 Dist. 2009) 287 S.W.3d 852, review granted. Constitutional Law         2239


Even if considered content neutral for First Amendment purposes, tax imposed on businesses that offer live,
nude entertainment in the presence of alcohol could not survive intermediate scrutiny because it was not nar-
rowly tailored to further a substantial governmental interest; majority of proceeds resulting from the tax were al-
located to purposes bearing no relation to the negative secondary effects the State claimed it was seeking to cor-
rect. Combs v. Texas Entertainment Ass'n, Inc. (App. 3 Dist. 2009) 287 S.W.3d 852, review granted. Constitu-
tional Law       2239; Intoxicating Liquors       16


V. T. C. A., Bus. & C. § 102.056, TX BUS & COM § 102.056


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Civil Practice & Remedies Code § 72.001                                                           Page 1




                                       Effective:[See Text Amendments]

Vernon's Texas Statutes and Codes Annotated Currentness
 Civil Practice and Remedies Code (Refs & Annos)
      Title 4. Liability in Tort
         Chapter 72. Liability of Motor Vehicle Owner or Operator to Guest (Refs & Annos)
           § 72.001. Limited Liability


A person who is related to the owner or operator of a motor vehicle within the second degree by consanguinity
or affinity, as determined under Chapter 573, Government Code, and who is being transported in the motor
vehicle over a public highway of this state as a guest without payment for the transportation has a cause of ac-
tion against the owner or operator of the motor vehicle for injury, death, or loss in an accident only if the acci-
dent was intentional on the part of the owner or operator or was caused by his heedlessness or reckless disregard
of the rights of others.



CREDIT(S)

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1991, 72nd Leg., ch. 561, § 7, eff. Aug.
26, 1991; Acts 1995, 74th Leg., ch. 76, § 5.95(27), eff. Sept. 1, 1995.


VALIDITY

    < This section has been declared unconstitutional by Colvin v. Colvin, 291 S.W.3d 508 (Tex.
    App.--Tyler 2009, no pet.).>


    <The source law for this section, Vernon's Ann.Civ.St. art 6701b, was declared unconstitutional by
    Whitworth v. Bynum, 699 S.W.2d 194 (Tex. 1985).>


HISTORICAL AND STATUTORY NOTES

2008 Main Volume

Acts 1991, 69th Leg, ch. 959 provided that consanguinity or affinity was to be “as determined under article
5996h, Revised Statutes.”


Acts 1995, 74th Leg., ch. 76 substituted “Chapter 573, Government Code” for “Article 5996h, Revised Stat-
utes”.




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Civil Practice & Remedies Code § 72.001                                                      Page 2




Prior Laws:

    Acts 1931, 42nd Leg., p. 379, ch. 255, § 1.

    Acts 1973, 63rd Leg., p. 42, ch. 28, § 3.

    Vernon's Ann.Civ.St. art. 6701b, § 1(a).


LIBRARY REFERENCES

2008 Main Volume

    Automobiles       181.
    Westlaw Topic No. 48A.
    C.J.S. Motor Vehicles §§ 791 to 811.

RESEARCH REFERENCES

2010 Electronic Update

Encyclopedias

TX Jur. 3d Automobiles § 538, Generally; Limited Liability of Motor Vehicle Owner or Operator to Guest.


TX Jur. 3d Automobiles § 541, Validity of Guest Statute.


TX Jur. 3d Automobiles § 553, Joint Enterprise Between Rider and Owner or Operator--Agreement to Share Ex-
penses of Trip Distinguished.


TX Jur. 3d Automobiles § 554, Requirement of Intentional Accident or Heedless or Reckless Disregard.


TX Jur. 3d Automobiles § 555, Requirement of Intentional Accident or Heedless or Reckless Disregard-
-Construction and Interpretation of Statutory Terms.


Forms

Texas Jurisprudence Pleading & Practice Forms 2d Ed § 40:45, Plaintiff's Pleading Guide.


Texas Jurisprudence Pleading & Practice Forms 2d Ed § 40:90, Petition--Collision Resulting from Attempts by
Rider to Hug and Kiss Driver.


Texas Jurisprudence Pleading & Practice Forms 2d Ed § 40:91, Petition--Intersection Collision at Excessive
Speed.




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Civil Practice & Remedies Code § 72.001                                    Page 3




9 West's Texas Forms § 1.36, Action Against Driver for Death of Guest.


Treatises and Practice Aids

Texas Family Law Service § 43:63, Limitation of Liability.


NOTES OF DECISIONS

  Adoption 8
  Adverse driving conditions, gross negligence 38
  Assumption of risk, contributory negligence 49
  Benefit to driver, generally, guests 12
  Business relationship, guests 16
  Car pools, guests 19
  Care required, contributory negligence 46
  Compensation by guest, guests 11
  Conflict of laws 4
  Conscious indifference, gross negligence 37
  Conscious indifference, heedlessness 31
  Construction and application 2
  Continued course of conduct, heedlessness 32
  Contribution 50
  Contributory negligence 45-49
      Contributory negligence - In general 45
      Contributory negligence - Assumption of risk 49
      Contributory negligence - Care required 46
      Contributory negligence - Failure to complain 47
      Contributory negligence - Imputed contributory negligence 48
  Control, joint enterprise 26
  Defects in vehicle, gross negligence 39
  Definition of guest, guests 10
  Degree of relationship 7
  Determination generally, gross negligence 36
  Determination generally, heedlessness 30
  Employees' guests 18
  Employment relationship, guests 17
  Failure to complain, contributory negligence 47
  Gross negligence 35-44, 54
      Gross negligence - In general 35
      Gross negligence - Adverse driving conditions 38
      Gross negligence - Conscious indifference 37
      Gross negligence - Defects in vehicle 39
      Gross negligence - Determination generally 36
      Gross negligence - Instructions 54




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Civil Practice & Remedies Code § 72.001                                    Page 4




       Gross negligence - Intoxication 42
       Gross negligence - Lane violations 44
       Gross negligence - Sleeping at wheel 41
       Gross negligence - Speeding 43
       Gross negligence - Traffic law violations generally 40
  Guests 9-22
       Guests - In general 9
       Guests - Benefit to driver, generally 12
       Guests - Business relationship 16
       Guests - Car pools 19
       Guests - Compensation by guest 11
       Guests - Definition of guest 10
       Guests - Employees' guests 18
       Guests - Employment relationship 17
       Guests - Minors 20
       Guests - Mutual benefit, generally 15
       Guests - Owner not driving 21
       Guests - Persons outside vehicle 22
       Guests - Services of guests 14
       Guests - Shared expenses, generally 13
  Heedlessness 29-34, 53
       Heedlessness - In general 29
       Heedlessness - Conscious indifference 31
       Heedlessness - Continued course of conduct 32
       Heedlessness - Determination generally 30
       Heedlessness - Instructions 53
       Heedlessness - Loss of control 33
       Heedlessness - Traffic law violations 34
  Imputed contributory negligence 48
  Instructions 52-54
       Instructions - In general 52
       Instructions - Gross negligence 54
       Instructions - Heedlessness 53
  Interest, joint enterprise 25
  Intoxication, gross negligence 42
  Joint enterprise 23-27
       Joint enterprise - In general 23
       Joint enterprise - Control 26
       Joint enterprise - Interest 25
       Joint enterprise - Requisites generally 24
       Joint enterprise - Transportation to work 27
  Lane violations, gross negligence 44
  Loss of control, heedlessness 33
  Minors, guests 20
  Mutual benefit, generally, guests 15




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Civil Practice & Remedies Code § 72.001                                                        Page 5




  Owner not driving, guests 21
  Persons outside vehicle, guests 22
  Public highways 6
  Purpose of law 3
  Quality of negligence, generally 28
  Questions of fact 51
  Requisites generally 5
  Requisites generally, joint enterprise 24
  Services of guests 14
  Shared expenses, generally, guests 13
  Sleeping at wheel, gross negligence 41
  Speeding, gross negligence 43
  Sufficiency of evidence 55
  Traffic law violations generally, gross negligence 40
  Traffic law violations, heedlessness 34
  Transportation to work, joint enterprise 27
  Validity of prior laws 1

  1. Validity of prior laws

Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) was constitutional. Elkins v. Foster
(Civ.App.1937) 101 S.W.2d 294, error dismissed ; Campbell v. Paschall (1938) 132 Tex. 226, 121 S.W.2d 593;
Perry v. Harrod (Civ.App.1970) 451 S.W.2d 821, ref. n.r.e.


Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) was not unconstitutional as depriving right of ac-
tion for death through gross neglect or willful act or omission. Paschall v. Gulf, C. & S. F. Ry. Co. (Civ.App.
1936) 100 S.W.2d 183, modified 132 Tex. 226, 121 S.W.2d 593.


Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter), when words “heedlessness or his reckless disreg-
ard of the rights of others” with respect to conduct of driver of automobile, are given same meaning as “gross
negligence” did not deprive guest's surviving widow of rights against driver guaranteed by Const. Art. 16, § 26,
relating to exemplary damages where homicide was caused by gross neglect. Bowman v. Puckett (Sup. 1945)
144 Tex. 125, 188 S.W.2d 571. Automobiles          181(1)


Provisions of Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) did not deprive automobile guests
generally of equal protection of laws on theory that its sole purpose and effect was to bestow an immunity on a
special group by imposing an invidious discrimination against innocent injured persons. Tisko v. Harrison
(Civ.App. 1973) 500 S.W.2d 565, ref. n.r.e.. Automobiles         181(1); Constitutional Law      3756


Classifications drawn by Texas Guest Statute [Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) ]
which were not rationally related to statutory purpose of reducing collusion, such as distinctions between pas-
senger injured on public road as compared with passenger injured on private road, and distinctions between rel-
atives who were passengers and relatives who were pedestrians, were not determinative of statute's constitution-




                              © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Civil Practice & Remedies Code § 72.001                                                              Page 6




ality, but did offer further evidence statute's failure to discriminate in manner rationally related to statutory pur-
pose. Whitworth v. Bynum (Sup. 1985) 699 S.W.2d 194. Automobiles               181(1)


Texas Automobile Guest Statute [Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) ] was unconsti-
tutional because classifications drawn by statute were not rationally related to legitimate state interest. Whit-
worth v. Bynum (Sup. 1985) 699 S.W.2d 194. Automobiles          181(1)


  2. Construction and application

No other definition than statutory definition which is fully complete may be considered in determining whether
publication constitutes libel. Deen v. Snyder (Civ.App.1933) 57 S.W.2d 338; Times Pub. Co. v. Ray
(Civ.App.1928) 1 S.W.2d 471, affirmed (Com.App.) 12 S.W.2d 165; Jetco Electronic Industries v. Gardiner,
S.D.Tex.1971, 325 F.Supp. 80.


Operation of Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) should not have been extended bey-
ond correction of evils and attainments of permissible social objects which, it may have been assumed, were in-
ducing reasons for its enactment. Schoremoyer v. Barnes, C.A.5 (Tex.)1951, 190 F.2d 14. Automobiles
181(1)


Rev.Civ.St.1911, art. 5595 (now, this section), gave a full and complete definition of libel, and no other defini-
tions could be considered in arriving at a conclusion as to whether a publication constituted libel. Taber v.
Arkansas Harbor Terminal Ry. (Civ.App. 1920) 219 S.W. 860, error granted , reversed 235 S.W. 841. Libel And
Slander      1.5


Vernon's Ann.Civ.St. arts. 6701b (repealed; now, this chapter) and 4671 et seq. (repealed; see now, § 71.001 et
seq.) authorizing suits for damages for injuries resulting in death should have been construed together, and terms
of art. 6701b precluding recovery for ordinary negligence applied also to beneficiary's suit for damages for
guest's death. Bowman v. Puckett (Sup. 1945) 144 Tex. 125, 188 S.W.2d 571. Automobiles               181(1); Stat-
utes      223.2(20)


Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) was in derogation of the common law and was to
be construed liberally to effect the purpose sought to be accomplished but was to be strictly construed in determ-
ination of whether a passenger was a guest. Gregory v. Otts (Civ.App. 1959) 329 S.W.2d 904, ref. n.r.e.. Auto-
mobiles       181(1); Automobiles         181(2)


  3. Purpose of law

Announced legislative purpose behind Texas Guest Statute [Vernon's Ann.Civ.St. art. 6701b (repealed; now, this
chapter) ] was to prevent fraudulent collusion between insured party and guest. Whitworth v. Bynum (Sup.1985)
699 S.W.2d 194; Cedziwoda v. Crane-Longley Funeral Chapel (1955) 155 Tex. 99, 283 S.W.2d 217; Forgus v.
Hodnett (Civ.App.1966) 401 S.W.2d 104, ref. n.r.e. 405 S.W.2d 337.




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Civil Practice & Remedies Code § 72.001                                                           Page 7




  4. Conflict of laws

Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter), and not Arkansas statute denying recovery, ap-
plied to Arkansas passenger's claim against Texas driver for personal injuries sustained in accident while travel-
ing in driver's automobile on road divided by state line where departure and destination points for trip were in
Texas, negligence causing the accident occurred in Texas, driver only temporarily resided in Arkansas and
maintained Texas driver's license and registration for her car, Arkansas had no interest in protecting Texas resid-
ent through application of its guest statute, and driver should have expected in general that Texas law would
govern use and operation of her vehicle. Danner v. Staggs, C.A.5 (Tex.)1982, 680 F.2d 427. Automobiles
229.5


“Significant contacts,” rule rather than traditional conflicts rule, would not be applied in Oklahoma action to re-
cover for injuries sustained in Texas accident, and use of Vernon's Ann.Civ.St. art. 6701b (repealed; now, this
chapter) was not precluded, notwithstanding claim that depriving plaintiff of a cause of action through laws of
another state whose only contact with case was fortuitous event of accident was against Oklahoma's public
policy, where Oklahoma's public policy with respect to wrongful death actions, clearly expressed in its Constitu-
tion (O.S.A. Const. Art. 23, § 7), was not considered so strong as to require abandonment of traditional conflicts
rule. Mills v. Hoflich, W.D.Okla.1971, 326 F.Supp. 95, affirmed 465 F.2d 29. Automobiles           229.5


Where plaintiffs who were injured while guest passengers in defendant's automobile in Oklahoma failed to plead
or prove that Oklahoma law was different from Texas law and took no action as to trial court taking judicial
knowledge of Oklahoma law, the cause of action would be governed by Vernon's Ann.Civ.St. art. 6701b
(repealed; now, this chapter). Ethridge v. Sullivan (Civ.App. 1951) 245 S.W.2d 1015, error refused. Evidence
     80(1)


State public policy should not be prime consideration in determining whether or not Vernon's Ann.Civ.St. art.
6701b (repealed; now, this chapter) should be enforced in event action has brought in state to enforce right of
action accruing under laws of another state. Brown v. Seltzer (Civ.App. 1968) 424 S.W.2d 671, ref. n.r.e..
Courts       8


  5. Requisites generally

To remove cause from provisions of Texas guest statute, definite relationship must be established between auto-
mobile operator and passenger, and definite tangible benefit must be shown to have been motivating influence
for furnishing transportation. Dietrich v. F.R. Young Co. (Civ.App.1966) 400 S.W.2d 572, ref. n.r.e. ; Autry v.
Spiering (Civ.App.1966) 407 S.W.2d 826, ref. n.r.e.


Under Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section), negligence of owner or operator of
automobile for which there shall be no cause of action refers to negligence connected with the transportation.
Wren v. Wilburn (Civ.App. 1944) 182 S.W.2d 1007, error refused. Automobiles        181(1)


In funeral car passenger's action against funeral director who was driving funeral car, for injuries sustained when




                            © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Civil Practice & Remedies Code § 72.001                                                             Page 8




director's hearse, due to hearse driver's negligence, collided with rear of stopping funeral car, director was liable
regardless whether passenger was director's guest without payment for transportation within Vernon's
Ann.Civ.St. art. 6701b (repealed; see, now, this section) since passenger did not assume risk of director's negli-
gence not connected with operation of funeral car. Wren v. Wilburn (Civ.App. 1944) 182 S.W.2d 1007, error re-
fused. Automobiles         181(1)


  6. Public highways

Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) did not apply to motorboats operating upon the
waterways and navigable lakes of the State of Texas. Schoremoyer v. Barnes, C.A.5 (Tex.)1951, 190 F.2d 14.
Shipping     81(1)


Application of Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) in an action by a guest passenger
against host for injuries sustained when automobile in which they were riding was backed into a tree on hotel
property had to be determined from what occurred before the vehicle reached the highway and while it was still
on private property, regardless of intent, and art. 6701b could not be considered applicable before the vehicle
entered a public highway even if a guest relationship was intended by the parties for purposes of the contem-
plated trip. Skrabanek v. Ritter (Civ.App. 1967) 412 S.W.2d 337, ref. n.r.e.. Automobiles     181(1)


“Public highways” within Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section) did not include
private roads, private driveways, or other private property, as distinguished from travel ways generally opened
to the public, and therefore art. 6701b did not preclude a guest passenger from maintaining a suit for ordinary
negligence against host for injuries sustained when vehicle in which passenger was riding struck a tree on
private hotel property. Skrabanek v. Ritter (Civ.App. 1967) 412 S.W.2d 337, ref. n.r.e.. Automobiles
181(1)


Legislative intent in employing term “public highways” in Vernon's Ann.Civ.St. art. 6701b (repealed; see, now,
this section) was to make art. 6701b applicable only to such highway as was dedicated to use of public and not
private way used by public merely by invitation of owner. Stanford v. Stanford (Civ.App. 1967) 413 S.W.2d 835
, ref. n.r.e.. Automobiles     181(1)


Ramp in parking garage operated by department store which was not dedicated to public use but was facility on
private property intended only for convenience and use of members of public patronizing department store was
not a “public highway” and Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) was not applicable to
accident occurring on ramp. Stanford v. Stanford (Civ.App. 1967) 413 S.W.2d 835, ref. n.r.e.. Automobiles
181(1)


  7. Degree of relationship

Under § 1(a) of Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section) respecting persons who were
related within the second degree of consanguinity or affinity to the owner or operator of motor vehicle, consan-
guinity was not limited to lineal consanguinity such as parent and child, and minor passenger who was the blood




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V.T.C.A., Civil Practice & Remedies Code § 72.001                                                            Page 9




niece of operator who was the blood sister of passenger's father was related by “consanguinity” to the defendant
operator as that word was used in said section. Warner v. Rice (Civ.App. 1976) 541 S.W.2d 896. Automobiles
     181(1)


Applying the common-law method for computation of degrees of kinship, as used under Texas law, blood niece
of operator of automobile was related within the second degree of consanguinity to the operator within meaning
of § 1(a) of Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section). Warner v. Rice (Civ.App. 1976)
541 S.W.2d 896. Automobiles         181(1)


Notwithstanding fact that passenger's husband, who was driver's brother, had died, driver and passenger re-
mained related within second degree of affinity for purposes of § 1(a) of Vernon's Ann.Civ.St. art. 6701b
(repealed; see, now, this section) by virtue of fact that issue born of the marriage remained living; thus, passen-
ger's suit against driver for personal injury sustained in automobile collision was barred by art. 6701b. Pomer-
antz v. Rosenberg (Civ.App. 1980) 593 S.W.2d 815. Automobiles              181(1)


  8. Adoption

Parents' cause of action against driver of automobile, who was son of brother of one of parents bringing action
and who was adopted by step-father after father's parental rights had been terminated, for wrongful death of their
son, who was passenger in automobile at time of accident in which he was killed, was not barred by Vernon's
Ann.Civ.St. art. 6701b (repealed; now, this chapter). Figueroa v. Santos (Civ.App. 1980) 606 S.W.2d 350, ref.
n.r.e. Automobiles       181(1)


When paternal rights were terminated and child was legally adopted by another individual, all ties of such adop-
ted person with natural parent and his kin were completely severed within meaning of Vernon's Ann.Civ.St. art.
6701b (repealed; see, now, this section). Figueroa v. Santos (Civ.App. 1980) 606 S.W.2d 350, ref. n.r.e. Auto-
mobiles       181(1)


  9. Guests--In general

Where plaintiff was riding in defendant's automobile by defendant's invitation and without duress and without
paying for defendant's hospitality, at time of accident, plaintiff was a “guest,” within contemplation of Vernon's
Ann.Civ.St. art. 6701b (repealed; see, now, this chapter) as respects defendant's liability for injuries received by
plaintiff notwithstanding that plaintiff had been drinking intoxicating liquor before entering automobile, espe-
cially where plaintiff had entered automobile on his own power and carried on conversations respecting his busi-
ness matters. Linn v. Nored (Civ.App. 1939) 133 S.W.2d 234, error dismissed. Automobiles              181(2)


Under Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter), the legislature intended that relationship of
host and guest may be created without contract. Linn v. Nored (Civ.App. 1939) 133 S.W.2d 234, error dis-
missed. Automobiles     181(2)


Where several friends, including plaintiff and defendant, who were business friends as well as hunting compan-




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V.T.C.A., Civil Practice & Remedies Code § 72.001                                                         Page 10




ions, planned fishing trip and other friends rode in one automobile and defendant asked plaintiff to ride with him
in his automobile and where plaintiff could have ridden in other automobile but chose to ride with defendant,
plaintiff was a “guest” in defendant's automobile. Choisser v. Ramey (Civ.App. 1958) 314 S.W.2d 664, ref.
n.r.e.. Automobiles       181(2)


Motorist's mother-in-law, whom motorist and his family were visiting and whom motorist offered to drive to
store to obtain food which motorist would pay for, was “guest without payment for transportation” within Ver-
non's Ann.Civ.St. art. 6701b (repealed; see, now, this section), rather than part of a joint enterprise. Hough v.
McMillan (Civ.App. 1961) 351 S.W.2d 609, ref. n.r.e.. Automobiles          181(2)


Plaintiff who, while on date with defendant, was riding with defendant in his automobile was “guest” of defend-
ant within Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter). Perry v. Harrod (Civ.App. 1970) 451
S.W.2d 821, ref. n.r.e.. Automobiles      181(2)


Plaintiff who had accepted gratuitous transportation in defendant's automobile to funeral home was a “guest”
within meaning of Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) when defendant, while plaintiff
was in process of getting out of defendant's automobile, started automobile forward and plaintiff sustained per-
sonal injuries. Stein v. Stat (Civ.App. 1970) 456 S.W.2d 750, error refused. Automobiles     181(2)


Minor passenger riding in automobile without payment for transportation was not “unwilling guest”, and thus
came within scope of Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter), despite contention that he
was nonassentive passenger and was riding with driver under duress, where minor boy's mother allowed him to
ride with driver so he would not be forced to stay at home by himself while mother was working. Vlasek v.
Sarkissian (Civ.App. 1976) 544 S.W.2d 517, ref. n.r.e.. Automobiles    181(2)


  10. ---- Definition of guest

“Guest,” as used in Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) had its general and common
understanding, and meant that one was a guest who was the recipient of the voluntary hospitality of the owner or
operator of the automobile. Linn v. Nored (Civ.App. 1939) 133 S.W.2d 234, error dismissed. Automobiles
181(2)


The term “guest” means recipient of automobile owner's or operator's voluntary hospitality. McCarty v. Moss
(Civ.App. 1949) 225 S.W.2d 883, error refused. Automobiles     181(2)


Where legislature in enacting Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) did not specifically
define word “guest” or phrase “his guest without payment,” court would apply to such word and phrase their or-
dinary meaning. Satterfield v. Satterfield (Sup. 1969) 448 S.W.2d 456. Automobiles      181(2)


“Guest” within Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) was one who was invited to enjoy
hospitality of driver of a motor vehicle, who accepted such hospitality and took ride either for his own pleasure




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V.T.C.A., Civil Practice & Remedies Code § 72.001                                                           Page 11




or for business without making any return or conferring any benefit upon driver of motor vehicle, other than
mere pleasure of his company. Perry v. Harrod (Civ.App. 1970) 451 S.W.2d 821, ref. n.r.e.. Automobiles
181(2)


A “guest,” under provisions of Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) was a recipient of
the voluntary hospitality of the driver or owner, that was, one who was invited or permitted by owner or pos-
sessor of automobile to ride with owner-possessor as a gratuity. Walker v. Bounds (Civ.App. 1974) 510 S.W.2d
392. Automobiles        181(2)


  11. ---- Compensation by guest

Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) should not have been construed in such manner
that its provisions would have been made to apply in every case where the passenger had not actually com-
pensated, or agreed to compensate the owner for his transportation. Henry v. Henson (Civ.App.1943) 174
S.W.2d 270, error refused; Johnson v. Smither (Civ.App.1938) 116 S.W.2d 812, error dismissed.


A woman who was being transported in neighbor's automobile to races for alleged consideration that she had her
daughter go to the neighbor's home and stay with neighbor's sick son, was a “guest.” Rowan v. Allen, 1940, 134
Tex. 215, 134 S.W.2d 1022.


Compensation is given automobile owner for transportation of passenger, so as to entitle passenger to recover
damages from such owner for injuries sustained as result of only ordinary negligence in operation of automobile,
where special tangible benefit to owner is motivating influence to furnish transportation, but compensation
therefor is not given where main purpose of trip is participants' joint pleasure. McCarty v. Moss (Civ.App. 1949)
225 S.W.2d 883, error refused. Automobiles         181(2)


Where plaintiff, a ship captain, was being transported to his ship in the automobile of defendant and a charge
would have been made to the steamship company for the transportation of the captain if there had been no acci-
dent, captain was a “passenger” and not a “guest” and was entitled to recover against owner of automobile
without proving that owner was guilty of willful and wanton conduct in operation of automobile. Houston Belt
& Terminal Ry. Co. v. Burmester, 1957, 309 S.W.2d 271, ref. n.r.e.. Automobiles           181(2); Automobiles
      242(1)


In order to render Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section) inapplicable, payment by
passenger must have been chief motivating cause of owner's furnishing of transportation to passenger. Wills v.
Buchanan (Civ.App. 1962) 358 S.W.2d 727. Automobiles          181(2)


Under evidence showing that motorist had no plans to drive to city when she was called by her friend to take the
friend and her husband to city to purchase groceries, and that friend and her husband were going to fill the tank
of the automobile with gasoline and buy the motorist a bottle or two of rum, trial court did err in holding that the
occupants were guests within Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter). Berentsen v.
Bellinghausen (Civ.App. 1966) 403 S.W.2d 816. Automobiles            244(20)




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If automobile passenger's payment for transportation was a motivating cause for driver's furnishing transporta-
tion, passenger was not “guest” within meaning of Vernon's Ann.Civ.St. art. 6701b (repealed; now, this
chapter), it was not necessary under art. 6701b that such payment was the only reason for furnishing transporta-
tion in order for passenger to avoid operation of art. 6701b. Fernandez v. Kiesling (Sup. 1973) 500 S.W.2d 459.
Automobiles         181(2)


Where plaintiff decedent's agreement with driver to pay a share of expenses was “a motivating cause” for
driver's furnishing transportation, Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) did not apply in
wrongful death action. Francis v. Tover (Civ.App. 1974) 516 S.W.2d 492. Automobiles           181(2)


  12. ---- Benefit to driver, generally, guests

Benefit expected from trip taken by plaintiff in defendant's automobile, which trip resulted in injuries to plaintiff
in Texas accident, was not the kind of “definite tangible benefit” which Texas law required in order to remove
plaintiff from operation of Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter), where purpose of trip
was for mutual enjoyment and pleasure of plaintiff and defendant, and where only contribution by plaintiff to-
ward expenses of trip was some sandwiches, with defendant providing the automobile and the gasoline. Mills v.
Hoflich, W.D.Okla.1971, 326 F.Supp. 95, affirmed 465 F.2d 29. Automobiles            181(2)


Where automobile owner invited friend to ride with him rather than in friend's automobile to permit discussion
of efforts of friend to secure retention of postmastership by owner's brother, which efforts were admittedly of
financial benefit to owner, friend was not a “guest” who was required to show intentional or reckless disregard
of his rights to recover for injuries. Elkins v. Foster (Civ.App. 1936) 101 S.W.2d 294, error dismissed. Automo-
biles       181(2)


The relationship which will give rise to the status of a “passenger” in an automobile rather than a “guest” must
confer a benefit on the owner of a definite tangible nature. Franzen v. Jason (Civ.App. 1942) 166 S.W.2d 727,
error refused. Automobiles      181(2)


Where plaintiff accepted invitation of motorist to ride with him to get something to eat, plaintiff was a “guest”
and not a “passenger” even though they discussed business on the way, and no basis existed for bus company's
claim of right of contribution from motorist for injuries sustained by plaintiff in collision between automobile
and bus. El Paso City Lines, Inc. v. Sanchez (Civ.App. 1957) 306 S.W.2d 396, ref. n.r.e.. Automobiles
181(2); Contribution       5(7)


Automobile passengers, who, at time of accident, were accompanying driver because of his insistence that their
presence would be of benefit to him in helping influence person into selling tires to driver on terms favorable to
him, were not “guests” for purposes of Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter). Pressley v.
Holley (Civ.App. 1974) 507 S.W.2d 869, ref. n.r.e.. Automobiles       181(2)


To take passenger out of Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) tangible benefits to
driver or operator need not have been “the” only motivating cause for furnishing transportation, it need only




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V.T.C.A., Civil Practice & Remedies Code § 72.001                                                        Page 13




have been “a” motivating cause. Pressley v. Holley (Civ.App. 1974) 507 S.W.2d 869, ref. n.r.e.. Automobiles
     181(1)


Defendant's payment of monthly rent did not extend over or involve compensation for providing vehicle to take
plaintiff, with whom he and others shared house, to the store; thus, defendant's act in volunteering to drive his
vehicle to store was a matter of convenience for the parties concerned, and any benefit defendant derived from
act was too uncertain, remote and speculative to be sufficiently definite and tangible so as to amount to payment
as envisioned under Vernon's Ann.Civ. St. art. 6701b (repealed; now, this chapter). Walker v. Bounds (Civ.App.
1974) 510 S.W.2d 392. Automobiles         181(2)


  13. ---- Shared expenses, generally, guests

An agreement on the part of a party to pay proportionate share of operating expenses of an automobile in which
the party was riding did not make such party a “passenger for hire” or compensation within exception of Ver-
non's Ann.Civ.St. art. 6701b (repealed; see, now, this section). Raub v. Rowe (Civ.App. 1938) 119 S.W.2d 190.
Automobiles        181(3)


Where automobile driver, who was also automobile occupant's son-in-law, took occupant's mother to visit her
daughter as a friendly gesture growing out of family relationship, and occupant rode along to care for his moth-
er, and he furnished only the oil toward expenses of trip, occupant was a “guest”. Young v. Bynum (Civ.App.
1953) 260 S.W.2d 696. Automobiles         181(2); Automobiles         240(1)


Where automobile driver occasionally picked up fellow employee as passenger and took him to work but
without prearrangement or notice, passenger was a “guest”, though passenger occasionally, without obligation,
agreement, or request of driver, contributed to gasoline expense. McClain v. Carter, 1955, 278 S.W.2d 877, ref.
n.r.e.. Automobiles      181(2)


When one was invited to ride with owner of automobile on trip for their mutual pleasure, payment for gas and
oil or portion thereof, even though by prior agreement, constituted merely an exchange of courtesies, and not
such payment for transportation as was contemplated by Vernon's Ann.Civ.St. art. 6701b (repealed; see, now,
this section). Burnett v. Howell (Civ.App. 1956) 294 S.W.2d 410, ref. n.r.e.. Automobiles   181(2)


Where driver wanted to make trip to see his girl friend, but was unable to do so because he did not have gasoline
and could not buy it, and passenger, seeing an opportunity to get a convenient ride to tend to some business,
agreed to buy gasoline in exchange for transportation, passenger was not a “guest” barred from recovering for
personal injuries sustained when automobile overturned. Burnett v. Howell (Civ.App. 1956) 294 S.W.2d 410,
ref. n.r.e.. Automobiles     181(2)


An agreement to pay a share of operating expenses of automobile in which one is riding does not make one a
passenger for hire, and in order for one so contributing to be considered a paying passenger there must be some
tangible benefit moving to driver, which benefit must have been motivating cause of driver's making journey.
Easter v. Wallace (Civ.App. 1958) 318 S.W.2d 916, ref. n.r.e.. Automobiles        181(2)




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Where occupant of automobile received injuries in collision while riding with owner, there had been no agree-
ment concerning sharing of expenses of trip, occupant did not pay any part thereof, and occupant had no inten-
tion to or right to exercise any control over automobile, occupant was a “guest” and he could not assert a cause
of action against owner of automobile for ordinary negligence. Maples v. Penn (Civ.App. 1965) 388 S.W.2d 484
, error refused. Automobiles       181(2)


Automobile passenger, who had agreed with two others to share expenses of automobile trip from New York to
Mexico, who paid for his own food and lodging during trip, who shared driving with others, and who was killed
when automobile collided with highway sign post, was “guest” and thus his parents could not recover for his
death in absence of showing of gross negligence on part of defendant driver. Brown v. Seltzer (Civ.App. 1968)
424 S.W.2d 671, ref. n.r.e.. Automobiles     181(2)


  14. ---- Services of guests

Where plaintiff rode along in an ambulance merely to accompany a patient to a hospital on a trip for the benefit
of the patient and plaintiff had no reason to accompany the patient other than such purpose and he merely an-
nounced to the defendant's employees that he was taking passage and they answered “All right”, plaintiff was a
gratuitous rider in the ambulance and could not recover on proof of ordinary negligence. Cedziwoda v. Crane-
Longley Funeral Chapel (Civ.App. 1954) 273 S.W.2d 455, affirmed 155 Tex. 99, 283 S.W.2d 217. Automobiles
      181(2)


Where lady hired ambulance and requested her fiancé to ride with her therein, and operator consented, fiancé
was guest of patient and was not “guest” of owner or operator without payment for transportation. Cedziwoda v.
Crane-Longley Funeral Chapel (Sup. 1955) 155 Tex. 99, 283 S.W.2d 217. Automobiles           181(2)


Woman who chaperoned group of school children on special trip in school bus which was being operated and
paid for pursuant to contract with school district was not gratuitous guest of bus operator. Freeman v. Ham
(Civ.App. 1955) 283 S.W.2d 438, ref. n.r.e.. Automobiles      181(2)


In actions growing out of weekend fishing trip by a number of employees of automobile company, wherein two
of the employees who were occupants of an automobile which was driven by its owner, another employee
sought to recover from him and from their employer for injuries sustained when the automobile overturned,
evidence was sufficient to permit jury to find that one of the occupants, who was a porter at the automobile com-
pany and who had been invited to go along to aid in cooking was a passenger and not a guest within meaning of
Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter). Morgan v. Luna (Civ.App. 1960) 337 S.W.2d 139
. Automobiles       244(20)


  15. ---- Mutual benefit, generally, guests

Where trip was for mutual enjoyment of plaintiff passenger and defendant driver, and passenger's only contribu-
tion toward expense of trip was sandwiches and snacks, passenger was guest in driver's car under Vernon's
Ann.Civ.St. art. 6701b (repealed; now, this chapter). Mills v. Hoflich, C.A.10 (Okla.)1972, 465 F.2d 29. Auto-




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V.T.C.A., Civil Practice & Remedies Code § 72.001                                                           Page 15




mobiles       181(2)


The fact that automobile trip may have been for the mutual pleasure of the plaintiff and defendant did not oper-
ate to change the plaintiff's status from that of “guest.” Rowan v. Allen, 1940, 134 Tex. 215, 134 S.W.2d 1022.


Passenger in an automobile made payment to the owner or operator, and hence Vernon's Ann.Civ.St. art. 6701b
(repealed; now, this chapter) was not applicable, if the transportation was likely to result in a definite tangible
benefit to the operator or mutual benefit to the parties and if receipt of the benefit was the motivating reason for
the transportation. Autry v. Spiering (Civ.App. 1966) 407 S.W.2d 826, ref. n.r.e.. Automobiles          181(2)


Where motivating cause of automobile trip was mutual pleasure not connected with business transaction, and
driver and passenger decided to go and eat or go to a show, and no arrangement was made as to who would fur-
nish transportation and passenger paid none of expenses of operating automobile, she was guest within Vernon's
Ann.Civ.St. art. 6701b (repealed; now, this chapter). Hutcheson v. Se'Christ's Estate (Civ.App. 1970) 459
S.W.2d 495, error refused. Automobiles        181(2)


  16. ---- Business relationship, guests

Under Vernon's Ann.Civ.St. art. 6701b (repealed; now, this section), woman who had employed broker for pur-
pose of trading or selling her farm, and who was injured when accompanying broker for purpose of showing him
way to farm so that broker might inspect farm and show it to prospective buyers, was not a “guest” so as to be
precluded from recovering for injuries sustained in collision while accompanying broker, since trip was made
for mutual benefit of both broker and owner. Johnson v. Smither (Civ.App. 1938) 116 S.W.2d 812, dismissed.
Automobiles         181(2)


Where farmer who drove truck to city to procure laborers was requested by neighbor to bring back some
laborers for neighbor, and after farmer procured laborers and was preparing to leave, unemployed laborer was
asked by laborer in farmer's truck if unemployed laborer wished to work, and when unemployed laborer stated
that he did, farmer was requested to stop truck, and unemployed laborer got into truck to go to farming section
to secure employment, and was injured because of farmer's ordinary negligence in operation of truck, unem-
ployed laborer was a “guest” within meaning of Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this sec-
tion) and could not recover for injuries, and was not a “passenger”. Franzen v. Jason (Civ.App. 1942) 166
S.W.2d 727, error refused. Automobiles        181(1); Automobiles      181(2)


A life insurance applicant, whose examination by insurance company's medical examiner was completed by
noon and who thereafter was taken to lunch by insurance company's agent and spent afternoon with agent in mu-
tual pleasure and enjoyment before being driven home by agent, was agent's “guest” when fatally injured as res-
ult of automobile accident while enroute home. Burt v. Lochausen (Sup. 1952) 151 Tex. 289, 249 S.W.2d 194.
Automobiles        181(2)


Where owner of automobile service station was being transported from station to automobile owner's place of
employment with intention that he would bring automobile back to service station to be washed, greased, and




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V.T.C.A., Civil Practice & Remedies Code § 72.001                                                         Page 16




otherwise serviced, and while enroute automobile, which was being driven by owner thereof, was involved in a
collision with another automobile, owner of service station was not a “guest” within Vernon's Ann.Civ.St. art.
6701b (repealed; now, this chapter). Gregory v. Otts (Civ.App. 1959) 329 S.W.2d 904, ref. n.r.e.. Automobiles
      181(2)


Automobile occupant was not “guest” of driver but was “business invitee,” so that driver was liable only for or-
dinary negligence, where driver's motive both in business discussion with occupant and subsequent entertain-
ment of occupant as prospective customer was to obtain a contract which would net driver a money profit.
Schafer v. Stevens (Civ.App. 1961) 352 S.W.2d 471, dismissed. Automobiles         181(2)


If trucker was business invitee at time branch office manager of company for which trucker often hauled drove
him around municipality, trying to get him a load to haul, he ceased to be such a “business invitee” when he, his
nephew, and the branch manager left the municipality to cross the river to Mexico to get something to eat, going
simply as friends with each paying for his own meal, but he was then a “guest” within the meaning of Vernon's
Ann.Civ.St. art. 6701b (repealed; now, this chapter). Matlock v. Hooge (Civ.App. 1963) 365 S.W.2d 386, ref.
n.r.e.. Automobiles      181(2)


Benefits to salesman derived from transporting customer to a cocktail party in his automobile, where depositions
of both men showed that trip was primarily for social purposes and that motivating purpose was solely for pleas-
ure, were too uncertain, remote and speculative to be definite and tangible, as required to show that customer
was not a guest of agent within Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) in suit for injuries
received when salesman failed to negotiate a curve and automobile overturned. Dietrich v. F. R. Young Co.,
1966, 400 S.W.2d 572, ref. n.r.e.. Automobiles      181(2)


  17. ---- Employment relationship, guests

In action against automobile dealer by prospective buyer of used truck who was injured while riding in auto-
mobile driven by dealer's sales agent, evidence that automobile belonged to dealer, that the sales agent was em-
ployed by the dealer to sell automobiles, and that he was driving the automobile on a mission for the dealer, un-
dertaken at dealer's direction for the purpose of consummating sale of truck, established that the agent was an
“employee” or “servant” of the dealer and not an “independent contractor”, notwithstanding that agent was com-
pensated by commission rather than by salary. Le Sage v. Pryor, 1941, 137 Tex. 455, 154 S.W.2d 446. Automo-
biles      244(29)


In actions growing out of weekend fishing trip by a number of employees of automobile company, wherein two
of the employees who were occupants of an automobile which was driven by its owner, another employee,
sought to recover from him and from their employer for injuries sustained when the automobile overturned, and
attempted to show that employer maintained a fund from proceeds of vending machines for employee benefits
and offered evidence to show that money from such fund had been used for an employee party, evidence was in-
sufficient to support a verdict against employer. Morgan v. Luna (Civ.App. 1960) 337 S.W.2d 139. Automobiles
      244(26)




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  18. ---- Employees' guests

Evidence that plaintiff rode with assistant manager of defendant corporation while he was taking trip on com-
pany business, that plaintiff took trip at request of such manager and was not employed by defendant, and that
plaintiff was personal guest of manager and intended to register over night as wife of manager, established that
plaintiff was not guest of defendant and that manager's relationship with plaintiff was outside scope of manager's
employment and business of defendant, and that defendant had no relationship with plaintiff that would create
any duty to plaintiff, and plaintiff could not recover from defendant for injuries which resulted from alleged neg-
ligence of manager in parking automobile with a portion thereof on traffic lane of highway. McGregor Mill. &
Grain Co. v. Russo (Civ.App. 1951) 243 S.W.2d 852, ref. n.r.e.. Automobiles           244(28)


Where truck driver had no authority from owner-employer to permit third party to accompany him, and third
party knew that driver was violating instructions in permitting him to ride, third party was not an “invitee” but at
most a mere “licensee” as respects owner. Thomas v. Southern Lumber Co. (Civ.App. 1944) 181 S.W.2d 111.
Automobiles        181(2)


Where employee was directed by employer to deliver truck load of merchandise to another town, employee's
brother accompanied employee and was killed in collision on return trip, employer was not liable at common
law for death of brother since, if brother was also an employee, suit could be maintained only under Workmen's
Compensation Act (Vernon's Ann.Civ.St. art. 8306 et seq.), and if brother was merely riding along for his own
pleasure, recovery was barred by Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section). Serano v.
Garza (Civ.App. 1938) 119 S.W.2d 413. Automobiles            181(1); Labor And Employment          2929; Work-
ers' Compensation        2084


  19. ---- Car pools, guests

Person who was accompanying truck owner on trip to help drive truck for pay was a passenger being transported
by owner for a tangible benefit that was a motivating influence to owner. Cate v. Holcomb (Civ.App. 1963) 370
S.W.2d 422, ref. n.r.e.. Automobiles       181(2)


Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) did not apply to relieve driver of automobile from
liability for ordinary negligence in causing injuries sustained by passenger, where the purpose of the trip was
business in that parties were returning home from work, and consideration had been given by passenger for the
ride because of a reciprocal arrangement whereby each took turns driving thus reducing the cost of transporta-
tion to each. Autry v. Spiering (Civ.App. 1966) 407 S.W.2d 826, ref. n.r.e.. Automobiles       181(2)


Expectation on part of automobile driver who was foreman at construction project, that by securing services of
experienced man, and, possibly of man's friend, an inexperienced 16-year-old boy, by giving the boy a ride to
jobsite, driver would be able to perform his own job better was not such a definite, tangible benefit to driver as
to constitute the boy a passenger for hire rather than a gratuitous guest who could not recover against driver
found guilty of negligence proximity causing accident. Samoheyl v. Bearden (Civ.App. 1969) 448 S.W.2d 850,
ref. n.r.e.. Automobiles      181(2)




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  20. ---- Minors, guests

A minor riding as a passenger in an automobile without paying compensation was a guest, and the fact that the
minor was of tender years did not take the case out of Vernon's Ann.Civ.St. art. 6701b (repealed; now, this
chapter). Reed v. Hicks (Civ.App. 1973) 489 S.W.2d 958, ref. n.r.e.. Automobiles   181(2)


Minor guest was not excepted from operation of Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter).
Bryant v. Adair (Civ.App. 1973) 490 S.W.2d 950, ref. n.r.e.. Automobiles    181(2)


  21. ---- Owner not driving, guests

Where nonowner is driving and owner is present in vehicle, there is a presumption that the driver is an agent of
the owner and the negligence of the driver will be imputed to the owner, but such theory is not applicable where
driver and passenger are coowners. Whistler's Estate v. Shoemaker (Civ.App. 1973) 502 S.W.2d 237, error gran-
ted , affirmed 513 S.W.2d 10. Automobiles        227.5; Automobiles       242(6)


Owner of automobile, if a passenger in it at time of an accident, is barred by the negligence of the driver from
recovering for injuries sustained. Wilkinson v. Stevison (Civ.App. 1973) 500 S.W.2d 549, error granted , af-
firmed 514 S.W.2d 895. Automobiles         227.5


Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) did not apply to action where passengers sued an-
other passenger who had been requested to drive automobile by automobile owner. Zetar v. Woodrow (Civ.App.
1972) 478 S.W.2d 109, ref. n.r.e.. Automobiles      181(1)


Fact that automobile owner requested one passenger to drive automobile did not alter guest relationship between
two other passengers and owner. Zetar v. Woodrow (Civ.App. 1972) 478 S.W.2d 109, ref. n.r.e.. Automobiles
      181(2)


Where owner of vehicle is riding in the vehicle while it was being driven by another person, the owner is not the
guest of the driver when the owner has equal right, either express or implied, to direct and control the driver's
conduct in the operation of the vehicle. Satterfield v. United Auto Supply, Inc. (Civ.App. 1968) 424 S.W.2d 40,
error granted , affirmed 448 S.W.2d 456. Automobiles          181(2)


In action for death of guest in an automobile accident, owner of the car, who was riding on the front seat beside
the driver, could be held liable for compensatory damages for the gross negligence of the driver who was driving
with the owner's express consent. Bernal v. Seitt (Sup. 1958) 158 Tex. 521, 313 S.W.2d 520. Automobiles
192(12)


Where automobile owner, who was apparently agent for sale of onion plants, took prospective buyers to visit
various onion beds and, after completing business, they agreed upon pleasure trip with buyers as guests, during
which all became intoxicated, owner was not liable for guest's death if owner was not driving at time of acci-




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dent. Aycock v. Green (Civ.App. 1936) 94 S.W.2d 894, error dismissed. Automobiles           181(1)


  22. ---- Persons outside vehicle, guests

In action for injury to boy, whose foot was run over by defendant's truck, which he was helping defendant to
push, it was unnecessary for plaintiff to allege and prove that injury was caused by defendant's willful miscon-
duct or heedless and reckless disregard of plaintiff's rights, as case was not within Vernon's Ann.Civ.St. art.
6701b (repealed; now, this chapter) relating to an automobile guest. Hernandez v. Almendarez (Civ.App. 1940)
137 S.W.2d 1059. Automobiles          240(1)


If plaintiff was guest of defendant corporation when assistant manager of corporation who was driving auto-
mobile in which plaintiff was guest started changing a tire when tire blew out and automobile was stopped on
part of paved portion of traffic lane of highway, and plaintiff got out of automobile contrary to instructions of
manager and walked to rear of automobile and was standing behind automobile when plaintiff was struck by an-
other automobile, plaintiff's action in going to rear of automobile on highway relieved defendant of liability to
plaintiff for injuries. McGregor Mill. & Grain Co. v. Russo (Civ.App. 1951) 243 S.W.2d 852, ref. n.r.e.. Auto-
mobiles         224(1)


Where decedent got into an automobile owned by one individual defendant, and which he and two other men
were attempting to start by pushing, and the automobile ran into defendant railroad's train when driver of the
automobile was unable to stop it after observing the train, because of bad brakes on the automobile, decedent
was not a guest of owner of automobile or of driver thereof, and they could not be held liable for his death, res-
ulting from injuries sustained in the collision. Woods v. Panhandle & Santa Fe Ry. Co. (Civ.App. 1958) 315
S.W.2d 953, ref. n.r.e.. Automobiles       181(2); Automobiles       196; Railroads       312.2


Where plaintiff, who had a social date with defendant to go to a club, spent evening at club with defendant, and
about 10 p.m. they left club, and defendant took her in his automobile to parking area where her automobile was
parked, and plaintiff alighted from defendant's automobile, and, as she was walking toward her automobile, de-
fendant's foot slipped off brake of his automobile, and it rolled forward, striking plaintiff, plaintiff was not a
“guest” of defendant within meaning of Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section) at
time of accident. Paul v. Floyd (Civ.App. 1960) 337 S.W.2d 632, error refused. Automobiles          181(2)


Cousin struck by opened automobile door as automobile lurched backward on inadvertent acceleration, prior to
entering automobile for ride home from family reunion, was not yet a “guest”, within Vernon's Ann.Civ.St. art.
6701b (repealed; see, now, this section) preclusive of recovery by guest from owner or operator for injuries sus-
tained in gratuitous transportation by motor vehicle in absence of proof of recklessness. Hickman v. Finlay
(Civ.App. 1965) 392 S.W.2d 147, error refused. Automobiles         181(2)


Where minor, who had been invited by operator of camper for overnight camp-out, had alighted from camper
and was walking behind truck when he was struck while operator was backing camper in attempt to retrieve
sweatshirt which had previously blown from camper, minor's injuries were not sustained while he was being
transported within meaning of Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter). Hull v. Chapman




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(Civ.App. 1971) 464 S.W.2d 705, dismissed w.o.j.. Automobiles            181(1)


  23. Joint enterprise--In general

Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section) respecting liability toward guests without pay-
ment was not applicable when the driver and rider were engaged in a joint enterprise. Johnson v. Smithes
(Civ.App.1938) 116 S.W.2d 812, error dismissed ; Bonney v. San Antonio Transit Co. (Sup.1959) 325 S.W.2d
117; Satterfield v. United Auto Supply, Inc. (Civ.App.1968) 424 S.W.2d 40, affirmed 448 S.W.2d 456.


In action against automobile dealer by prospective customer who was injured while riding in automobile driven
by dealer's sales agent, even though parties may have been engaged in a joint enterprise, that fact would not pre-
clude recovery by the prospective customer for the injuries suffered by him from the sales agent's negligence. Le
Sage v. Pryor, 1941, 137 Tex. 455, 154 S.W.2d 446. Automobiles          227.5


Generally, relation of joint enterprise for purposes of Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this
section) presupposed existence of antecedent agreement, express or implied. Withers v. Stimmel (Civ.App.
1962) 363 S.W.2d 144, ref. n.r.e.. Automobiles        181(2)


Where son was driving father to church in father's automobile and driver-son's negligence was proximate cause
of collision, father and son were engaged in joint enterprise which rendered Vernon's Ann.Civ.St. art. 6701b
(repealed; see, now, this section) inapplicable and father was entitled to recover from son for the injuries. Satter-
field v. United Auto Supply, Inc. (Civ.App. 1968) 424 S.W.2d 40, error granted , affirmed 448 S.W.2d 456.
Automobiles         181(2)


A joint venturer may recover from another joint venturer for ordinary negligence as distinguished from gross
negligence which is required before a guest passenger may recover from host motorist under Vernon's
Ann.Civ.St. art. 6701b (repealed; see, now, this section). Satterfield v. United Auto Supply, Inc. (Civ.App.
1968) 424 S.W.2d 40, error granted , affirmed 448 S.W.2d 456. Automobiles        181(1)


Where there was joint interest in object and purpose of enterprise, primary purpose of trip was not social one,
and there was equal right, express or implied, to direct and control conduct of each other in operation of convey-
ance, existence of joint enterprise could have rendered provisions of Vernon's Ann.Civ.St. art. 6701b (repealed;
see, now, this section) inapplicable in suit by passenger against operator of automobile. Brown v. Seltzer
(Civ.App. 1968) 424 S.W.2d 671, ref. n.r.e.. Automobiles         181(2)


Doctrine of joint venture may not be thrust aside except for compelling reasons. Wilkinson v. Stevison
(Civ.App. 1973) 500 S.W.2d 549, error granted , affirmed 514 S.W.2d 895. Negligence 575


  24. ---- Requisites generally, joint enterprise

A “joint enterprise” exists where driver and occupant of automobile have not only a joint interest in object and




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purpose of enterprise but also an equal right, express or implied, to direct and control conduct to each other in
operation of conveyance. Bonney v. San Antonio Transit Co. (1959) 160 Tex. 11, 325 S.W.2d 117; Hough v.
McMillian (Civ.App.1961) 351 S.W.2d 609, ref. n.r.e. ; Fuller v. Flanagan (Civ.App.1971) 468 S.W.2d 171, ref.
n.r.e.


As applied to occupants of a conveyance, doctrine of joint enterprise not only requires joint possession thereof
by joint adventures, but that they also have joint control and responsibility for its operation. Webb v. Huffman
(Civ.App. 1959) 320 S.W.2d 893, ref. n.r.e.. Automobiles        198(4)


A “joint enterprise” which would have rendered Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this sec-
tion) inapplicable is a legal relationship between two or more persons as would have imposed liability on each
joint adventurer for negligent acts of the others while they were acting in furtherance of their common objective
and required that there have been a joint interest in the purpose and objective of the enterprise and that there
have been an equal right on part of each, expressly or impliedly, to direct and control the conduct of each other
in reaching the goals of the enterprise. Satterfield v. United Auto Supply, Inc. (Civ.App. 1968) 424 S.W.2d 40,
error granted , affirmed 448 S.W.2d 456. Automobiles          181(2)


For trip to constitute joint enterprise, there must have been joint interest in object of trip and equal right of con-
trol, but only first of such elements was relevant in case under Vernon's Ann.Civ.St. art. 6701b (repealed; now,
this chapter). Jackson v. Davis (Civ.App. 1971) 470 S.W.2d 213. Automobiles              181(2)


  25. ---- Interest, joint enterprise

A mere or gratuitous passenger riding with operator of a conveyance by invitation is not engaged in a common
or joint enterprise with operator, even though guest asks to be driven to a certain place, indicates route to be
taken, points out dangers to be encountered, or takes turns in driving. Webb v. Huffman (Civ.App. 1959) 320
S.W.2d 893, ref. n.r.e.. Automobiles      198(4)


A mere guest or gratuitous passenger riding with operator of conveyance by invitation is not engaged in com-
mon or joint enterprise with operator notwithstanding that guest takes his turn in driving. Withers v. Stimmel
(Civ.App. 1962) 363 S.W.2d 144, ref. n.r.e.. Automobiles      181(2)


  26. ---- Control, joint enterprise

Right of control and not actual physical control is usual test of whether joint enterprise exists between operator
of automobile and passenger. Satterfield v. United Auto Supply, Inc. (Civ.App.1968) 424 S.W.2d 40, affirmed
448 S.W.2d 456; Benson v. Wanda Petroleum Co. (Civ.App.1970) 460 S.W.2d 453, reversed on other grounds
468 S.W.2d 361.


It did not follow from fact that owner and occupant had agreed to share operating costs that owner had relin-
quished, in part, his exclusive right to control manner of driving his vehicle; nor would such inference necessar-
ily have arisen if there had been agreement that occupant was to remain on front seat during journey and to share




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in driving; disapproving Douty v. Delta Drilling Company. Bonney v. San Antonio Transit Co. (Sup. 1959) 160
Tex. 11, 325 S.W.2d 117. Automobiles         198(2)


  27. ---- Transportation to work, joint enterprise

In death action brought by widow of automobile passenger against widow and executor of estate of driver of
automobile arising out of collision of automobile and truck resulting in death of automobile driver and passen-
ger, who were brothers and who worked together on drilling crews and took turns driving their automobiles to
work, evidence was insufficient to submit to jury issue of joint enterprise. Webb v. Huffman (Civ.App. 1959)
320 S.W.2d 893, ref. n.r.e.. Automobiles      245(93)


Evidence in action against driver for injuries sustained by plaintiff's wife as occupant was insufficient, despite
evidence of exchange of lunches and that driver was required to have licensed operator with her, to take to jury
issues whether occupant had paid for transportation or whether there was a joint enterprise arising out of ar-
rangement for transportation to work. Fuller v. Wainwright (Civ.App. 1967) 415 S.W.2d 234. Trial
350.3(7)


  28. Quality of negligence, generally

Legislature's intent in enacting Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section) was to exclude
recovery for ordinary negligence. Paschall v. Gulf, C. & S. F. Ry. Co. (Civ.App. 1936) 100 S.W.2d 183, modi-
fied 132 Tex. 226, 121 S.W.2d 593.


Under Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section) legislature had abolished common-law
obligation of motorist to exercise that degree of care for his gratuitous guest's safety which a reasonably prudent
man would exercise under the same or similar circumstances. McMillian v. Sims (Civ.App. 1937) 112 S.W.2d
793, error granted , dismissed by agreement. Automobiles          181(1)


The duty owed by owner or operator of motor vehicle to a gratuitous guest is practically the same as that owed
by owner of realty used for private purposes to a mere licensee. Thomas v. Southern Lumber Co. (Civ.App.
1944) 181 S.W.2d 111. Automobiles        181(1)


The test of truck owner's liability to one injured while riding in truck with driver's permission, contrary to own-
er's instructions, was practically the same whether rider be regarded as a trespasser, licensee or guest. Thomas v.
Southern Lumber Co. (Civ.App. 1944) 181 S.W.2d 111. Automobiles               181(1); Automobiles         181(4)


“Negligence” meant the breach of a legal duty amounting only to a want of ordinary care, whereas
“heedlessness” and “reckless disregard” of the rights of others, within Vernon's Ann.Civ.St. art. 6701b
(repealed; see, now, this section), was practically the same as “gross negligence”, which was such wanton, heed-
less and reckless misconduct on the part of wrongdoer as to indicate a conscious indifference to consequences.
Gough v. Fincher (Civ.App. 1950) 228 S.W.2d 541. Automobiles             181(1)




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Quality of negligence necessary to support a recovery under Vernon's Ann.Civ.St. art. 6701b (repealed; see,
now, this section) was same as that necessary to support a recovery of exemplary damages. Snyder v. Jones
(Civ.App. 1965) 392 S.W.2d 504, ref. n.r.e.. Automobiles     244(20)


  29. Heedlessness--In general

The phrase “heedlessness or his reckless disregard of rights of others,” in Vernon's Ann.Civ.St. art. 6701b
(repealed; see, now, this section) was construed as meaning gross negligence. Raub v. Rowe (Civ.App.1938)
119 S.W.2d 190, error refused; Rowan v. Allen (1940) 134 Tex. 215, 134 S.W.2d 1022; Bowman v. Puckett
(Civ.App.1945) 185 S.W.2d 228, reversed on other grounds 144 Tex. 125, 188 S.W.2d 571; Rogers v. Blake
(1951) 150 Tex. 373, 240 S.W.2d 1001; Snyder v. Jones (Civ.App.1965) 392 S.W.2d 504, ref. n.r.e. ; Berentsen
v. Bellinghausen (Civ.App.1966) 403 S.W.2d 816; Cone v. Smith (La.App.1955) 76 So.2d 46.


Under Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section) host could not ordinarily be held liable
for injury or death of nonpaying guest, unless host was guilty of conduct amounting to heedless and reckless dis-
regard of rights of others. Bowman v. Puckett (Civ.App.1945) 185 S.W.2d 228, reversed on other grounds 144
Tex. 125, 188 S.W.2d 571; Hammett v. Fleming (Civ.App.1959) 324 S.W.2d 70, ref. n.r.e.


Phrase in Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section) “his heedlessness or his reckless dis-
regard,” meant “his heedless and his reckless disregard,” and referred to wanton misconduct embodying same
concept as “gross negligence”. Napier v. Mooneyham (Civ.App. 1936) 94 S.W.2d 564, error dismissed.


Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) having been copied from Connecticut act
(Gen.St.Conn.1930, § 1628), construction by courts of that state of phrase “caused by his heedlessness or reck-
less disregard of the rights of others” to mean “gross negligence” would be considered as adopted by Legis-
lature. Pfeiffer v. Green (Civ.App. 1937) 102 S.W.2d 1077. Statutes      226


In construing provision of Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section) allowing recovery
for “heedlessness or reckless disregard of the rights of others,” “heedlessness” should have been “heedless” and
should have been an adjective the same as “reckless” to modify the word “disregard”, and the connective “or”
should have been “and,” so that entire provision would have read “or caused by his heedless and his reckless
disregard of the rights of others.” Scott v. Gardner (Civ.App. 1937) 106 S.W.2d 1109, error dismissed. Automo-
biles      181(1)


  30. ---- Determination generally, heedlessness

There must be something of a continued or persistent course of action in order to render the driver of an auto-
mobile guilty of “heedless or reckless disregard of the rights of others” or “gross negligence”. Linn v. Nored
(Civ.App. 1939) 133 S.W.2d 234, error dismissed. Automobiles         181(1)


The liability for heedlessness or reckless disregard of rights of others under Vernon's Ann.Civ.St. art. 6701b
(repealed; see, now, this section) like liability for negligence, whether ordinary or gross, arose out of act or




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omission of defendant, and not out of his mental condition. Scott v. Gardner, 1941, 137 Tex. 628, 156 S.W.2d
513. Automobiles       181(1)


Whether defendant's driving of automobile was “heedless and reckless disregard of the rights of others” within
this article was to be determined by inference from what defendant did and the physical facts that existed at time
and that contributed to the accident. Bowman v. Puckett (Sup. 1945) 144 Tex. 125, 188 S.W.2d 571. Automo-
biles       181(1)


There must be evidence of continued or persistent course of action evincing conscious indifference to rights or
welfare of persons affected by it to create liability on part of driver of automobile for injuries suffered by guest
in collision. Rogers v. Blake (Sup. 1951) 150 Tex. 373, 240 S.W.2d 1001. Automobiles             181(1)


Whether an automobile host's conduct is so far negligent or wanton, reckless, or willfully improper as to render
him liable to a gratuitous guest depends upon combination of circumstances present at the particular time and
place. Sims v. Smith (Civ.App. 1960) 332 S.W.2d 99, ref. n.r.e.. Automobiles      181(1)


A motorist's reckless disregard of rights of gratuitous passenger may be shown by a continued or persistent
course of conduct evidencing an entire want of care resulting from a realization of danger to rights of others and
a conscious indifference to such rights, safety and welfare of such person, or by evidence of an act of such qual-
ity or kind of conduct as to show that driver was consciously indifferent to rights or welfare of his passengers as
well as others. Montgomery v. Campbell (Civ.App. 1962) 362 S.W.2d 658, ref. n.r.e.. Automobiles            181(1)


A host's heedless or reckless disregard of the rights of others may be shown by a continued or persistent course
of conduct evidencing an entire want of care resulting from a realization of danger to the rights of others and a
conscious indifference to such rights, and it may also be established by evidence of an act of such quality or
kind of conduct as to show that driver was consciously indifferent to the rights or welfare of his passenger as
well as others. Barrington v. Adams (Civ.App. 1966) 403 S.W.2d 477, ref. n.r.e.. Automobiles         181(1)


  31. ---- Conscious indifference, heedlessness

Momentary thoughtlessness, inadvertence, inattention or error of judgment does not constitute “heedless and
reckless disregard of the rights of others.” Pfeiffer v. Green (Civ.App.1937) 102 S.W.2d 1077; Mims v. Seltzer
(1940) 143 S.W.2d 973, error dismissed ; Wright v. Carey (Civ.App.1943) 169 S.W.2d 749.


In Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section) phrase “cause by his heedlessness or his
reckless disregard of the rights of others” meant “gross negligence,” which was an entire want of care raising be-
lief that act or omission complained of was result of conscious indifference to right or welfare of persons to be
affected by it. Glassman v. Feldman (Civ.App. 1937) 106 S.W.2d 721. Automobiles           181(1)


The proper definition of “his heedless and his reckless disregard,” which is proper meaning of “heedlessness or
reckless disregard of the rights of others,” under this article, is such entire want of care, not including, but ex-




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cluding “ordinary care,” sufficient to raise belief or presumption that act or omission complained of was result
of conscious indifference to rights, welfare, or safety of person or persons affected. Scott v. Gardner (Civ.App.
1937) 106 S.W.2d 1109, error dismissed. Automobiles           181(1)


Thoughtlessness, inadvertence, or error in judgment do not constitute “heedless or reckless disregard of the
rights of others.” Linn v. Nored (Civ.App. 1939) 133 S.W.2d 234, error dismissed.


Evidence that plaintiff, after asking for ride on dump truck, fell onto drive shaft in space between cab and dump
bed when truck started suddenly while plaintiff was climbing into dump bed, was insufficient to show that acci-
dent was intentional or caused by operator's heedlessness or reckless disregard of rights of others so as to au-
thorize recovery under Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section). Johnson v. Long
(Civ.App. 1944) 179 S.W.2d 788, error refused. Automobiles            244(20)


“Heedless and reckless disregard of the rights of others”, within meaning of Vernon's Ann.Civ.St. art. 6701b
(repealed; see, now, this section) meant “gross negligence”, which was defined as an entire want of care which
would raise a presumption of a conscious indifference to consequences. Wood v. Orts (Civ.App. 1944) 182
S.W.2d 139, dismissed. Automobiles         181(1)


A mental state of conscious indifference to the rights of others, whether brought about by evil motive, intoxicat-
ing liquor, or any other cause under the party's control, constitutes “heedless and reckless disregard of rights of
others” and, in determining whether such state of mind existed, external acts and conduct of the parties together
with all other facts and circumstances in the evidence relating to the question are to be considered. Rice v.
Schiller (Civ.App. 1951) 241 S.W.2d 330, affirmed in part , reversed in part 151 Tex. 116, 246 S.W.2d 607.
Negligence        274


Quality of negligence to support a recovery under Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this sec-
tion) was the same as necessary to support a recovery of exemplary damages under “gross negligence,” which
was an entire want of care raising the belief that the act or omission complained of was the result of conscious
indifference to the right or welfare of the persons affected thereby. Fancher v. Cadwell (Civ.App. 1958) 309
S.W.2d 545, reversed 159 Tex. 8, 314 S.W.2d 820. Automobiles           181(1)


In determining whether or not there was any evidence of probative force to hold defendant in personal injury ac-
tion guilty of gross negligence within meaning of Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this sec-
tion) Court of Civil Appeals had to consider element of conscious indifference, an essential element of gross
negligence. Perry v. Harrod (Civ.App. 1970) 451 S.W.2d 821, ref. n.r.e.. Automobiles       244(20)


  32. ---- Continued course of conduct, heedlessness

Momentary thoughtlessness, inadvertence, or error of judgment did not constitute “heedlessness or reckless dis-
regard of the rights of others” within § 1 of Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section),
and there had to be something in nature of continued or persistent course of action, and such acts as to constitute
wanton misconduct or gross negligence. Hamilton v. Perry (Civ.App. 1937) 109 S.W.2d 1142. Automobiles




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     181(1)


Evidence that host in rounding curve pulled automobile to left side of road, that he was traveling 35 miles per
hour immediately prior to accident, that when he observed approaching automobile he attempted to get back on
his side of road, and that he had not operated automobile on wrong side until he proceeded to round curve, was
insufficient to convict motorist of “heedlessness or reckless disregard of the rights of others” precluding guest
from recovering for injuries sustained in collision. Hamilton v. Perry (Civ.App. 1937) 109 S.W.2d 1142. Auto-
mobiles        244(20)


Mere operation of automobile at excessive rate of speed raises issue of driver's ordinary negligence only, and his
thoughtlessness, inadvertence or error in judgment does not constitute heedless or reckless disregard of others'
rights, but there must be continued or persistent course of action to constitute such disregard or gross negli-
gence. McCarty v. Moss (Civ.App. 1949) 225 S.W.2d 883, error refused. Automobiles             181(7)


There must be evidence of a continued or persistent course of action evincing a conscious indifference to the
rights or welfare of persons affected by it to create liability on part of driver of automobile for injuries suffered
by guest in collision. Blake v. Rogers (Civ.App. 1950) 237 S.W.2d 457, reversed 150 Tex. 373, 240 S.W.2d
1001. Automobiles         181(1)


It is not necessary in every case to show a continuous or persistent course of conduct in order to establish that
conduct of driver amounts to gross negligence; length of time that certain conduct is pursued is but one of the
factors to be considered in determining state of mind of the driver. Harbin v. Seale (Sup. 1970) 461 S.W.2d 591.
Automobiles         181(1); Automobiles        242(1)


Some acts by host driver are of such quality or kind as to show that host was consciously indifferent to rights
and welfare of his guest. Rickey v. O'Neal (Civ.App. 1974) 508 S.W.2d 479. Automobiles       181(1)


  33. ---- Loss of control, heedlessness

In passenger's action against driver for injuries allegedly sustained when driver's automobile was driven into rear
of trailer proceeding in same direction on highway on rainy night, evidence that driver was driving approxim-
ately 50 miles per hour and did not see trailer, which had no taillight, until approximately 50 feet from it and
then did not apply his brakes or swerve his automobile for fear of skidding on wet highway was insufficient for
jury on question of whether driver was guilty of “heedless or reckless disregard of the rights of others” or “gross
negligence” within contemplation of Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section). Linn v.
Nored (Civ.App. 1939) 133 S.W.2d 234, error dismissed. Automobiles             245(24)


Where none of motorist's guests had warned driver that he was driving in a reckless manner, or that he was too
sleepy or too intoxicated to drive, before automobile suddenly began to go to the left and continued to do so un-
til several guard posts were knocked down and a bridge abutment was struck and there was no rational explana-
tion of what happened other than that motorist fell asleep or became unconscious, or in some other manner lost
control, there was no “heedless and reckless” disregard for the lives of others so as to justify recovery. Wood v.




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Orts (Civ.App. 1944) 182 S.W.2d 139, dismissed. Automobiles           181(1)


  34. ---- Traffic law violations, heedlessness

In guest's action against motorist for injuries sustained when automobile plunged against embankment, evidence
that motorist was driving at high rate of speed prior to accident was insufficient to show that motorist intention-
ally caused accident or that accident was caused by motorist's heedlessness or recklessness, where motorist, after
discovering embankment, did all that he could to avoid accident. Mayer v. Johnson (Civ.App. 1941) 148 S.W.2d
454, error dismissed. Automobiles         244(20)


A conscious violation of law requiring one to stop at stop sign, standing alone, does not show a “heedlessness
and reckless disregard of rights of others”. Rogers v. Blake (Sup. 1951) 150 Tex. 373, 240 S.W.2d 1001. Auto-
mobiles       181(1)


  35. Gross negligence--In general

The legislature by enacting Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) did not intend to re-
lieve motorist from liability for injuries caused to guest by gross negligence. McMillian v. Sims (Civ.App. 1937)
112 S.W.2d 793, error granted , dismissed by agreement. Automobiles            181(1)


The quality of negligence necessary to support a recovery under Vernon's Ann.Civ.St. art. 6701b (repealed; see,
now, this section) was the same as that necessary to support a recovery of exemplary damages under gross negli-
gence provisions of Const. Art. 16, § 26. Schiller v. Rice (Sup. 1952) 151 Tex. 116, 246 S.W.2d 607. Automo-
biles      181(1)


Gross negligence of operator of automobile must be established to fix liability of owner and operator of auto-
mobile for death of guest in collision with truck. Adams v. McHam (Civ.App. 1956) 289 S.W.2d 319. Automo-
biles     181(1)


Section 1 of Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section) providing that host should not be
liable to his guest unless accident was intentional on part of host or caused by his heedlessness or his reckless
disregard of rights of others, required gross negligence as prerequisite for liability of host. Harbin v. Seale
(Civ.App. 1970) 454 S.W.2d 271, reversed 461 S.W.2d 591. Automobiles            181(1)


  36. ---- Determination generally, gross negligence

In action for injuries plaintiff received when a tire of automobile in which plaintiff was riding as a guest of as-
sistant manager of defendant corporation blew out and such manager brought automobile to stop and left it
standing on paved portion of traffic lane of highway, and plaintiff got out of automobile and walked onto high-
way and was struck by another automobile while manager was changing tire, evidence did not justify inference
that manager parked automobile in reckless disregard of rights of plaintiff or was consciously indifferent to
plaintiff's welfare, and that manager was guilty of gross negligence within this article. McGregor Mill. & Grain




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Co. v. Russo (Civ.App. 1951) 243 S.W.2d 852, ref. n.r.e.. Automobiles          244(20)


Where driver of automobile drove 65 to 70 miles an hour at night along highway with many curves and prior to
collision drove off the highway one time at a curve and after such incident continued to drive at the same speed
until he collided with a truck on a curve when he drove across the center of the highway driving in such manner
constituted “gross negligence” authorizing recovery for death of guest in the automobile. Bernal v. Seitt (Sup.
1958) 158 Tex. 521, 313 S.W.2d 520. Automobiles          181(7)


Under some circumstances it is quality or kind of conduct rather than its persistence and duration which determ-
ines whether negligence is gross for purposes of this article; nevertheless, it is necessary in ordinary guest case
to look further than immediate negligent act, in consequence of which a collision occurs, in order that one may
find evidence of sufficient heedlessness and reckless disregard of rights of others to raise issue of gross negli-
gence. Farney v. Herr (Civ.App. 1962) 358 S.W.2d 758. Automobiles            181(1)


Although race at 90 miles per hour, after drinking, on extensively traveled city street which caused collision las-
ted only a few seconds, such conduct constituted “gross negligence” warranting awarding of exemplary damages
as the period of time during which conduct existed was not to be sole criterion for deciding if course of action
was so continued and persistent as to constitute gross negligence. Claunch v. Bennett (Civ.App. 1965) 395
S.W.2d 719. Automobiles        249.2


Evidence, in action by guests against host for injuries sustained when automobile struck iron gate at end of “T”
intersection, that host driver knew that he was approaching “T” part of intersection, but that there was no marker
to notify him he was near intersection, that only hazard incident to host's acts was his driving at excessive speed,
and that he failed to discover landmarks which would have caused him to be aware that he was approaching in-
tersection failed to raise fact issue of gross negligence within purview of Vernon's Ann.Civ.St. art. 6701b
(repealed; see, now, this section). Sparks v. Dalton (Civ.App. 1970) 458 S.W.2d 836. Automobiles            245(24)


  37. ---- Conscious indifference, gross negligence

“Gross negligence” on part of host required for liability to guest is that entire want of care which would raise be-
lief that act or omission complained of was result of a conscious indifference to rights or welfare of person or
persons to be affected by it. Gill v. Minter (Civ.App.1950) 233 S.W.2d 585, error refused; Claunch v. Bennett
(Civ.App.1965) 395 S.W.2d 719; Harbin v. Seale (Civ.App.1970) 454 S.W.2d 271, reversed on other grounds
461 S.W.2d 591; McPhearson v. Sullivan (Sup.1971) 463 S.W.2d 174.


Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section) permitted recovery for damages resulting from
operator's “gross negligence”, which words meant entire want of care which would raise a presumption of con-
scious indifference to consequences. Mayer v. Johnson (Civ.App. 1941) 148 S.W.2d 454, error dismissed.


To have a “conscious indifference to consequences” within rule that “gross negligence” for which motorist is li-
able to guest is such an entire want of care as will raise a presumption of conscious indifference to con-
sequences, the motorist must know that guest will probably be affected by motorist's act or omission, and motor-




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ist must be conscious of the fact that he is indifferent at the time and upon the occasion in question. Mayer v.
Johnson (Civ.App. 1941) 148 S.W.2d 454, error dismissed. Automobiles           181(1)


“Gross negligence” is such affirmative, wanton, heedless and reckless misconduct as indicates conscious indif-
ference to consequences. Thomas v. Southern Lumber Co. (Civ.App. 1944) 181 S.W.2d 111. Negligence
273


“Gross negligence” within Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section) was an act which
was a result of a conscious indifference to the right or welfare of persons affected by it and probability of danger
not only to occupants of automobile but persons on the street or highway or who entered upon it was to be con-
sidered. Bowman v. Puckett (Sup. 1945) 144 Tex. 125, 188 S.W.2d 571. Automobiles               181(1)


“Gross negligence” consists of such heedless and reckless disregard of rights of others as to be shocking to reas-
onable men. Adams v. McHam (Civ.App. 1958) 310 S.W.2d 145, ref. n.r.e.. Automobiles              181(1)


Backing an unlighted automobile out of a driveway in the nighttime onto a heavily traveled highway, and driv-
ing it diagonally across wrong lanes of traffic in front of an automobile, approaching at 70 to 75 miles per hour
would constitute conduct sufficient to sustain a jury finding of gross negligence, even though driver of unlighted
automobile thought he could make it safely across the highway. Fancher v. Cadwell (Sup. 1958) 159 Tex. 8, 314
S.W.2d 820. Automobiles         181(1)


Where all three occupants of automobile were friends and they were on a casual pleasure ride and driver was
driving in a slow, careful and prudent manner, act of driver, who exhibited a feeling of being left out by other
two occupants, in suddenly turning steering wheel back and forth causing automobile to rock and to go out of
control was negligent but did not constitute gross negligence, and driver was not liable to guest who sustained
injuries when automobile struck a tree. Sims v. Smith (Civ.App. 1960) 332 S.W.2d 99, ref. n.r.e.. Automobiles
      181(1)


Conscious indifference is essential element of gross negligence which will render host liable for injuries of
guests. Rice v. Simmons (Civ.App. 1962) 356 S.W.2d 206. Automobiles        181(1)


It was not essential in every case under Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section) where
gross negligence was alleged that subjective mental attitude or knowledge of host driver have been shown by
direct evidence. Rickey v. O'Neal (Civ.App. 1974) 508 S.W.2d 479. Automobiles           244(20)


  38. ---- Adverse driving conditions, gross negligence

Motorist traveling at speed of 65 to 80 miles per hour in foggy weather when visibility, even with lights burning,
was only 100 yards and attempting to overtake truck preceding his automobile when an oncoming truck was less
than 50 feet away was guilty of “gross negligence”. Adams v. McHam (Civ.App. 1958) 310 S.W.2d 145, ref.
n.r.e.. Automobiles       181(7)




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Motorist was not grossly negligent, and hence was not liable for injuries sustained by guest when automobile en-
countered ice at tip of rather steep hill in city and went out of control and skidded into telephone pole, notwith-
standing that motorist exceeded speed limit in ascending hill at speed of 50 or 55 miles per hour, where surface
of paved highway was dry until automobile reached top of hill. Farney v. Herr (Civ.App. 1962) 358 S.W.2d 758.
Automobiles         181(7)


Motorist, who negotiated several detours without difficulty but who failed to negotiate last detour while travel-
ing at a speed of some 70 miles per hour, was not guilty of gross negligence and was not liable to gratuitous pas-
senger for injuries sustained in accident when he lost control of automobile while negotiating last detour. Mont-
gomery v. Campbell (Civ.App. 1962) 362 S.W.2d 658, ref. n.r.e.. Automobiles           181(1); Automobiles
181(7)


  39. ---- Defects in vehicle, gross negligence

Evidence that defendant was driving automobile between 75 and 85 miles per hour when he entered limits of
city of 6000 on heavily traveled highway with knowledge of defective brakes, supported findings that defendant
was driving at speed which amounted to “heedless and reckless disregard of the rights of others” including guest
passenger, warranting recovery for guest's death where automobile struck tree after swerving when brakes were
applied. Bowman v. Puckett (Sup. 1945) 144 Tex. 125, 188 S.W.2d 571. Automobiles           244(20)


Knowledge by owner of automobile that automobile had a dangerous defect at time he permitted his daughter to
use it for herself and her guest would not manifest that entire want of care which would raise belief that he was
consciously indifferent to their welfare within meaning of Vernon's Ann.Civ.St. art. 6701b (repealed; see, now,
this section). Snyder v. Jones (Civ.App. 1965) 392 S.W.2d 504, ref. n.r.e.. Automobiles      181(1)


Proof of knowledge by owner that his automobile had dangerous defect when he permitted his daughter to use
automobile for herself and guest did not show gross negligence which was essential to establish liability under
Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section). Forgus v. Hodnett (Civ.App. 1966) 401
S.W.2d 104, ref. n.r.e. 405 S.W.2d 337. Automobiles      244(20)


Evidence in action by automobile passenger against driver for injuries sustained in one-vehicle accident that
driver, who contended that he tried to steer away from ditch but that his steering mechanism would not work,
was not confronted with emergency not proximately caused by his own negligence was sufficient for jury. Jack-
son v. Davis (Civ.App. 1971) 470 S.W.2d 213. Automobiles         245(49)


  40. ---- Traffic law violations generally, gross negligence

In guest's action for injuries sustained in automobile accident, evidence that 14-year-old motorist, who had been
in possession of driver's license from state highway department for nine months, had extinguished lights of auto-
mobile four different times preceding accident, was insufficient to take question of motorist's recklessness, heed-
lessness, and indifference to jury, where extinguishment of lights had nothing to do with accident which oc-
curred when lights were on. Mayer v. Johnson (Civ.App. 1941) 148 S.W.2d 454, error dismissed. Automobiles




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     245(24)


In action by guest against driver for injuries arising out of automobile collision at intersection which resulted
when driver failed to heed stop sign and proceeded onto thoroughfare at moderate rate of speed, evidence proved
no more than momentary thoughtlessness, inadvertence, or error of judgment on part of driver and did not meet
requirements of Vernon's Ann.Civ.St. art. 6701b (repealed; see, now this section) by proving gross negligence
and a heedlessness or reckless disregard of rights of others such as would impose liability upon driver. Rogers v.
Blake (Sup. 1951) 150 Tex. 373, 240 S.W.2d 1001. Automobiles           244(20)


Where funeral home ambulance had proceeded into intersection of two thoroughfares after a traffic light had
changed from green to amber and person in ambulance had warned driver to “watch out”, driver's action, even
though conscientious violation of law, did not constitute gross negligence thereby entitling guest, who was rid-
ing in ambulance when it had a collision, to recover for personal injuries on theory of gross negligence against
funeral home. Hernandez v. Castillo (Civ.App. 1957) 303 S.W.2d 508, ref. n.r.e. , mandate amended 309 S.W.2d
938, error refused. Automobiles      181(1)


Driver who followed another automobile through red light when he was blinded by sun and struck truck in inter-
section was not guilty of gross negligence and nonpaying guest was not entitled to recover from driver for injur-
ies. Duncan v. Durham (Civ.App. 1962) 356 S.W.2d 377. Automobiles           181(1)


Action of host driver in knowingly speeding on heavily traveled city street toward railroad crossing along which
he knew trains would be expected while ignoring signs of hospital zone, railroad crossing sign and flashing
lights at crossing constituted gross negligence. Hanks v. LaQuey (Civ.App. 1968) 425 S.W.2d 396, ref. n.r.e..
Automobiles         181(7)


  41. ---- Sleeping at wheel, gross negligence

Ordinarily, the mere fact of a motorist's going to sleep while driving is a proper basis for an inference of negli-
gence sufficient to make out a prima facie case and sufficient for a recovery if no circumstances tending to ex-
cuse or justify his conduct are proven. McMillian v. Sims (Civ.App. 1937) 112 S.W.2d 793, error granted , dis-
missed by agreement. Automobiles          244(34)


Motorist's negligence in falling asleep while driving about 3 o'clock in the morning was “ordinary negligence”
and not “gross negligence.” Matlock v. Hooge (Civ.App. 1963) 365 S.W.2d 386, ref. n.r.e.. Automobiles
181(1)


Under the record, there was no way that host driver's going to sleep could constitute gross negligence so as to
permit recovery by passengers. Jones v. McCoy (Civ.App. 1973) 493 S.W.2d 891. Automobiles           181(1)


  42. ---- Intoxication, gross negligence




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Evidence that act of motorist in driving on wrong side of road prior to collision with motorist who was intoxic-
ated was nothing more than an error of judgment did not disclose that her act was one of “heedless and reckless
disregard” of the rights of her guests so as to authorize recovery for injuries sustained by guests due to gross
negligence of motorist. Pfeiffer v. Green (Civ.App. 1937) 102 S.W.2d 1077. Automobiles          244(20)


Drunkenness which has not made the owner or operator of an automobile unconscious or entirely helpless does
not absolve him from liability for injury to his guest when accident and injury are caused by owner's or operat-
or's acts or conduct which, if he were sober, would evince a “heedlessness or reckless disregard of rights of oth-
ers” or of “conscious indifference”. Scott v. Gardner, 1941, 137 Tex. 628, 156 S.W.2d 513. Automobiles
181(1)


In driving off traveled portion of road while intoxicated, and colliding with bridge abutment, motorist was guilty
of only ordinary negligence and, hence, was not liable for injuries sustained by social, nonpaying guest. Ray v.
Zackey (Civ.App. 1959) 329 S.W.2d 350. Automobiles             181(1)


In absence of testimony of any conduct or appearance to indicate intoxication or amount of alcohol consumed by
defendant driver, there was no competent evidence sufficient to raise issue of driving while intoxicated in suit by
guest who testified only that she could tell whether or not defendant had been drinking. McPhearson v. Sullivan
(Civ.App. 1970) 457 S.W.2d 583, reversed 463 S.W.2d 174. Automobiles             244(20)


  43. ---- Speeding, gross negligence

High and excessive speed was mere “ordinary negligence” and was not “gross negligence” within Vernon's
Ann.Civ.St. art. 6701b (repealed; see, now, this section) making grossly negligent host motorist liable for guests'
injuries. Farney v. Herr (Civ.App.1962) 358 S.W.2d 758; McPhearson v. Sullivan (Civ.App.1970) 457 S.W.2d
583, reversed on other grounds 463 S.W.2d 174.


Testimony that automobile was going at “pretty rapid gait” involves purely relative term and is insufficient
alone to justify finding of unlawful, excessive, or unusually dangerous speed. Aycock v. Green (Civ.App. 1936)
94 S.W.2d 894, error dismissed. Automobiles          244(35)


Evidence that motorist increased speed of automobile to about 60 miles an hour to prevent friend from passing
him and that he collided at intersection with automobile which he could have avoided striking if he had applied
his brakes severely, was insufficient to establish “gross negligence” and there could be no recovery for injuries
sustained by guest. Gill v. Minter (Civ.App. 1950) 233 S.W.2d 585, error refused. Automobiles        244(20)


Under circumstances disclosed in death action, accelerating convertible sports automobile from zero to 60 miles
per hour in distance of two blocks in a residential district where speed limit was 30 miles per hour did not con-
stitute gross negligence, for purposes of Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section).
Webb v. Karsten, 1957, 308 S.W.2d 114. Automobiles            181(7)




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Under facts and circumstances disclosed, on defendants' plea of privilege in case under Vernon's Ann.Civ.St. art.
6701b (repealed; see, now, this section), excessive speed could not be held to constitute gross negligence.
Bruton v. Shinault (Civ.App. 1958) 314 S.W.2d 143. Automobiles          181(7)


Teenage driver whose only overt manifestation of his irritation because his automobile did not start immediately
was his remaining silent for brief period and starting automobile at a fast rate of speed, who drove at high rate of
speed on service road which he thought led straight into main highway and who drove into field to avoid over-
turning automobile when service road took abrupt turn without warning, was not grossly negligent and guest
could not recover for injuries received. Rice v. Simmons (Civ.App. 1962) 356 S.W.2d 206. Automobiles
181(7)


Although automobile occupants' testimony that motorist was operating the automobile at a rate of speed ten to
fifteen miles per hour in excess of legal speed limit was evidence of ordinary negligence, it would not, under cir-
cumstances including showing that motorist had proper control of the automobile prior to flat tire, be evidence
of such heedlessness or reckless disregard of rights of others as to constitute gross negligence within Vernon's
Ann.Civ.St. art. 6701b (repealed; see, now, this section). Berentsen v. Bellinghausen (Civ.App. 1966) 403
S.W.2d 816. Automobiles          244(20)


Finding, in action by passenger against owner-operator of vehicle for injuries sustained when vehicle struck util-
ity pole, that operator, who allegedly, prior to striking pole, had swerved in and out of traffic on narrowing con-
gested thoroughfare at speeds of over 50 miles per hour, had been grossly negligent was not so against great
weight and preponderance of evidence as to be manifestly unjust. Benevides v. Peche (Civ.App. 1970) 460
S.W.2d 207, ref. n.r.e.. Automobiles        244(20)


Evidence that motorist was driving at a minimum of 80 miles per hour at night on a narrow curved street in a
residential area at time of accident in which passenger was killed had probative force in support of jury's finding
that defendant was grossly negligent and liable for passenger's death under Vernon's Ann.Civ.St. art. 6701b
(repealed; see, now, this section). Harbin v. Seale (Sup. 1970) 461 S.W.2d 591. Automobiles         244(20)


Evidence in passenger's action against administrator of estate of host driver, including evidence that driver con-
sciously accelerated automobile to speed of at least 90 miles per hour into clearly visible curve after passing sign
approximately one-quarter mile from curve warning motorist to enter curve at speed of 40 miles per hour, and
that driver did not apply brakes until he entered curve and lost control of automobile, was sufficient to establish
gross negligence. Rickey v. O'Neal (Civ.App. 1974) 508 S.W.2d 479. Automobiles              244(20)


Evidence of excessive speed can support finding of gross negligence when taken together with other circum-
stances. Brown v. Powell (Civ.App. 1974) 508 S.W.2d 691, ref. n.r.e. 515 S.W.2d 901. Automobiles
244(4)



  44. ---- Lane violations, gross negligence




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Backing an unlighted automobile out of a driveway in the nighttime on a heavily traveled highway, and driving
it diagonally across wrong lanes of traffic in front of an automobile approaching at 70 to 75 miles per hour
would constitute conduct sufficient to sustain a jury finding of gross negligence, within Vernon's Ann.Civ.St.
art. 6701b (repealed; now, this chapter) even though driver of unlighted automobile thought he could make it
safely across the highway. Fancher v. Cadwell (Sup. 1958) 159 Tex. 8, 314 S.W.2d 820. Automobiles
181(1)



Evidence disclosing that southbound driver was straddling center lane of highway and did not see oncoming
pickup truck until it was right upon him and then collided with the oncoming truck showed only ordinary negli-
gence as a matter of law and not the gross negligence required for recovery under Vernon's Ann.Civ.St. art.
6701b (repealed; now, this chapter). Barrington v. Adams (Civ.App. 1966) 403 S.W.2d 477, ref. n.r.e.. Automo-
biles      244(20)


  45. Contributory negligence--In general

Ordinary contributory negligence was a defense to action based upon the heedless and reckless disregard provi-
sions of Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section). Schiller v. Rice (1952) 151 Tex. 116,
246 S.W.2d 607; Sargent v. Williams (1953) 152 Tex. 413, 258 S.W.2d 787; Morgan v. Luna (Civ.App.1960)
337 S.W.2d 139.


Contributory negligence was a defense even to gross negligence required for a recovery under Vernon's
Ann.Civ.St. art. 6701b (repealed; see, now, this section). Parrott v. Garcia (Sup.1969) 436 S.W.2d 897; Be-
nevides v. Peche (Civ.App.1970) 460 S.W.2d 207, ref. n.r.e.


Rule of comparative negligence was inapplicable in actions under Vernon's Ann.Civ.St. art. 6701b (repealed;
now, this chapter). Aycock v. Green (Civ.App. 1936) 94 S.W.2d 894, error dismissed. Automobiles     226(3)


Contributory negligence was no defense to cause of action for injury or death resulting from intentional or wan-
ton acts, such as was preserved by Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section) to guests
against owner or operator of automobile. Aycock v. Green (Civ.App. 1936) 94 S.W.2d 894, error dismissed.
Automobiles        226(1)


Automobile guest was charged with observing ordinary care for his own safety. Magnolia Petroleum Co. v.
Owen (Civ.App. 1936) 101 S.W.2d 354, error dismissed. Automobiles    224(1)


In action by automobile guests, who were husband and wife, against automobile owner for injuries received
while husband was driving, court should not have submitted issue of husband's contributory negligence, since
contributory negligence was no defense under Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section).
Scott v. Gardner (Civ.App. 1937) 106 S.W.2d 1109, error dismissed. Automobiles        240(1)




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  46. ---- Care required, contributory negligence

A guest riding in gasoline truck was under no duty to stay awake to guard against intentional injuries inflicted
on him by any one, nor was he required to foresee possibility that driver might be guilty of gross negligence and
to keep awake to guard against such a contingency. McMillian v. Sims (Civ.App. 1937) 112 S.W.2d 793, error
granted , dismissed by agreement. Automobiles       224(3); Automobiles          224(4)


A motorist's promise or agreement to stay behind another automobile, when accepted by occupant of auto-
mobile, had effect of novation on occupant's previously incurred and existing duty or obligation to leave auto-
mobile because of manner of motorist's driving and extinguished it. Morgan v. Luna (Civ.App. 1960) 337
S.W.2d 139. Automobiles        224(6)


Automobile occupant, who was on joint enterprise with driver, had no duty to keep lookout in absence of dan-
gerous conditions and in view of driver's prudent driving prior to collision with rear of truck. Edmondson v.
Keller (Civ.App. 1964) 376 S.W.2d 5, ref. n.r.e.. Automobiles     224(4)


Where driver had traveled road before, it was a clear day, his car was in good condition, he was not speeding,
passenger had seen nothing to alarm him about the driving, passenger was not advising or directing driving in
any way, and he did not see another vehicle until immediately before collision with it, passenger was not liable
for death of driver of the other automobile on basis of failure to keep a lookout or to warn of its approach. Gal-
van v. Sisk (Civ.App. 1975) 526 S.W.2d 717. Automobiles            198(1)


  47. ---- Failure to complain, contributory negligence

Passenger who made no protest as to manner in which vehicle was being driven and failed to avail himself of
two opportunities to leave vehicle within short period of time before fatal intersection collision was guilty of
contributory negligence proximately causing his own death, and it was immaterial to right of recovery for his
death that he was only 19 years old at the time and that he had not appreciated danger of riding in vehicle being
driven at excessive speed. Webb v. Karsten, 1957, 308 S.W.2d 114. Automobiles              224(5); Automobiles
     224(6); Automobiles        226(2)


Guest must exercise ordinary care for his safety by protesting improper manner in which automobile is being op-
erated or by leaving it if opportunity is afforded. Edmondson v. Keller (Civ.App. 1964) 376 S.W.2d 5, ref. n.r.e..
Automobiles        224(5); Automobiles          224(6)


Vehicle passenger has duty to exercise reasonable care to avoid injury, including duty to protest against excess-
ive rate of speed of vehicle in which he is riding. Atchison, T. & S. F. Ry. Co. v. Sheppard (Civ.App. 1969) 447
S.W.2d 216. Automobiles          224(1); Automobiles        224(5)


A passenger who had made no complaint with reference to driver's conduct with respect to intoxication during
portion of automobile ride was precluded from emphasizing amount or degree of intoxication on part of driver
during that portion of trip in a suit by passenger under Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this




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V.T.C.A., Civil Practice & Remedies Code § 72.001                                                            Page 36




section) for injury sustained in subsequent accident. McPhearson v. Sullivan (Civ.App. 1970) 457 S.W.2d 583,
reversed 463 S.W.2d 174. Automobiles         224(8)


Discharge of duty of automobile passenger to exercise degree of care that ordinarily prudent person would exer-
cise under same circumstances does not require passenger to constantly watch speedometer to see if driver is ex-
ceeding speed limit, but if driver operates automobile at speed that is so great, under circumstances then prevail-
ing, that reasonable man would realize its excessive character, passenger has duty to call driver's attention to
such speed and to protest act of driver in operating automobile at such speed. Tipton v. Stuart (Civ.App. 1972)
480 S.W.2d 795, ref. n.r.e.. Automobiles        224(5)


Guest passenger is not required to call attention of driver to excessive speed, unless speed is so great that a reas-
onable man would recognize its excessive character. Galvan v. Sisk (Civ.App. 1975) 526 S.W.2d 717. Automo-
biles     198(1)


  48. ---- Imputed contributory negligence

In automobile guest's action against owner for injuries suffered in collision, if facts show joint enterprise of
guest and driver, driver's negligence will be imputed to guest, precluding recovery against driver. Pryor v. Le
Sage (Civ.App. 1939) 133 S.W.2d 308, affirmed 137 Tex. 455, 154 S.W.2d 446. Automobiles            181(1)


In suit by guest and her father against owners and operator of automobile that collided with automobile of host,
the negligence of host and driver could not be imputed to guest or her father. Justiss v. Naquin (Civ.App. 1940)
137 S.W.2d 72, error dismissed. Automobiles        227.5


The rule that the doctrine of imputed negligence is inapplicable in a suit between members of a joint enterprise
would not render it inapplicable in a suit by a party injured in an automobile accident because he was not suing
the driver of the automobile, but the driver's alleged employer and was attempting to impute the negligence of
the driver to the employer, where to permit the application of the doctrine would permit the employer to take
refuge behind the wrong of his employee. Le Sage v. Pryor, 1941, 137 Tex. 455, 154 S.W.2d 446. Automobiles
     193(1)


Negligence of driver of pickup truck at time it collided with defendant's truck could not be imputed to passenger
where there was a finding that driver and passenger were not engaged in a joint enterprise. Robinson v. Ashner
(Sup. 1963) 364 S.W.2d 223. Automobiles           227.5


Imputed negligence based on community property defense is no longer available as a defense to a claim for pain
and suffering arising out of wife's personal injuries, but the community property defense is still a viable defense
as to lost earnings. Wilkinson v. Stevison (Civ.App. 1973) 500 S.W.2d 549, error granted , affirmed 514 S.W.2d
895. Negligence        575


  49. ---- Assumption of risk, contributory negligence




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Assumed risk doctrine applies only where there is a contractual relationship between the parties, and is not a de-
fense in action for injuries sustained while riding as a guest in defendant's automobile. Rice v. Schiller
(Civ.App.1951) 241 S.W.2d 330, affirmed in part, reversed in part on other grounds 151 Tex. 116, 246 S.W.2d
607; Schiller v. Rice (1952) 151 Tex. 116, 246 S.W.2d 607.


Where jury found on the basis of evidence of probative force that defendant was driving while intoxicated and
that his guests knew that he was intoxicated and had fair and reasonable opportunity to leave automobile after
gaining such knowledge, trial court should have ignored further findings that guests did not know the danger of
riding with defendant and that failure of guests to leave automobile was not in heedless and reckless disregard of
their own safety, and should have rendered judgment for defendant in action for injuries sustained by guests
when automobile collided with tree. Schiller v. Rice (Sup. 1952) 151 Tex. 116, 246 S.W.2d 607. Trial         360


Two girls, 13 and 14 years old, voluntarily undertaking automobile trip as guests of 13 year old boy known by
them to be incompetent and reckless driver, were guilty of contributory negligence, barring their recovery of
damages for resulting injuries, as matter of law, notwithstanding jury's contrary findings and absence of findings
on issues of proximate cause. Sargent v. Williams (Sup. 1953) 152 Tex. 413, 258 S.W.2d 787. Automobiles
     224(8); Automobiles         226(1)


In action for death of guest in an automobile accident, failure of the guest to abandon the party when the car was
stopped just prior to the collision did not bar recovery against the driver for gross negligence on the theory of
contributory negligence or voluntary self-exposure to the risk of the reckless driving of the driver. Bernal v.
Seitt (Sup. 1958) 158 Tex. 521, 313 S.W.2d 520. Automobiles            224(6)


Host could not be held liable for death of guest who had knowledge that host was operating automobile in intox-
icated condition, and who thereafter had a fair and reasonable opportunity to leave, even though jury found con-
duct of guest was not negligent and that he did not appreciate full danger. Wilson v. Burleson (Civ.App. 1962)
358 S.W.2d 751, ref. n.r.e.. Automobiles        224(8)


Where automobile guest failed to leave automobile of host driver at first fair and reasonable opportunity after
learning host was driving under influence of alcohol, guest acted in reckless disregard of her own safety and was
precluded from recovery notwithstanding host's gross negligence. Vanderburg v. Garrett (Civ.App. 1969) 443
S.W.2d 68. Automobiles        224(8)


One who voluntarily enters motor vehicle to ride with a driver then known to be intoxicated, or who, having
entered without such knowledge, discovers the intoxicated condition of the driver and fails to leave if fair and
reasonable opportunity to leave is afforded, will be charged with knowledge of the danger and will be held to
have exposed himself to such danger so as to bar recovery. Combs v. Morrill (Civ.App. 1971) 470 S.W.2d 222,
ref. n.r.e.. Automobiles     224(8)


  50. Contribution

Automobile guest could recover for injuries received in collision between automobile and truck if negligence of




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V.T.C.A., Civil Practice & Remedies Code § 72.001                                                           Page 38




driver of automobile concurred with act of negligence by truck driver. Magnolia Petroleum Co. v. Owen
(Civ.App. 1936) 101 S.W.2d 354, error dismissed. Automobiles    201(8)


Where a guest is injured in collision between automobile of host and that of third party, each of whose ordinary
negligence is a proximate cause of injury to guest, third party defendant cannot recover contribution of one-half
the damages caused by their joint or concurring ordinary negligence, since the host is only liable to his guest for
gross negligence. Mitchell v. Gooch (Civ.App. 1948) 210 S.W.2d 834. Contribution           5(7)


  51. Questions of fact

In action to recover for wrongful death of passenger as alleged result of negligence of driver of automobile in
which he was riding, evidence, including showing that defendant had driven his automobile after dark at high
and excessive rate of speed of 70 to 75 miles per hour and that he had passed a moving van to its left from the
rear, without slowing down, just as it entered a left hand curve, was sufficient to go to the jury on the issue of
gross negligence. Burt v. Lochausen (Sup. 1952) 151 Tex. 289, 249 S.W.2d 194. Automobiles            245(24)


Evidence in action by passenger against owner-operator of vehicle for injuries sustained when vehicle struck
utility pole was sufficient for jury on issue whether passenger, who, prior to accident, had traveled distance of
less than mile in vehicle with no opportunity to leave such vehicle, and who did not know how to drive, was
contributorily negligent in riding with operator or in not protesting operator's manner of driving. Benevides v.
Peche (Civ.App. 1970) 460 S.W.2d 207, ref. n.r.e.. Automobiles         245(87)


  52. Instructions--In general

In action for injuries sustained by plaintiff in automobile collision when accompanying realty broker to point out
way to farm listed for sale with broker, refusal of issue requiring jury to find that plaintiff was not obligated to
pay broker for transportation was not error where it was shown that trip was made for mutual benefit of both
parties so as to render Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) inapplicable. Johnson v.
Smither (Civ.App. 1938) 116 S.W.2d 812, dismissed. Trial            350.6(3)


The use of word “expectation” in special issue inquiring, for purpose of determining guest status of automobile
occupant, whether motivating influence of driver, in transporting occupant, was furtherance of business deal in
which driver had expectation of tangible benefit of pecuniary nature, was not misleading. Schafer v. Stevens
(Civ.App. 1961) 352 S.W.2d 471, dismissed. Trial        352.16


  53. ---- Heedlessness, instructions

In suit by guest against host under Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter) term
“heedlessness” should not have been separately defined, but reconstructed term “his heedless and his reckless
disregard” should have been defined as to be exclusive of ordinary negligence and to include essential character-
istics of gross negligence. Napier v. Mooneyham (Civ.App. 1936) 94 S.W.2d 564, error dismissed. Automobiles
      246(3)




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V.T.C.A., Civil Practice & Remedies Code § 72.001                                                           Page 39




In action governed by Vernon's Ann.Civ.St. art. 6701b (repealed; now, this chapter), instruction defining
“heedlessness or reckless disregard of the rights of others” as doing or failure to do thing by person who was in-
different, oblivious, and careless to consequences, and without consideration for others, and that it was unneces-
sary that act be done with willful purpose of inflicting injury, but that it must have been in connection with do-
ing of act or omission to act under circumstances indicating natural or probable result and consequence thereof,
was misleading and confusing, especially where court also defined “ordinary care” and “negligence.” Scott v.
Gardner (Civ.App. 1937) 106 S.W.2d 1109, error dismissed. Automobiles              246(2.1)


In action for death of guest who was burned when gasoline truck in which he was riding struck culvert and gas-
oline exploded, evidence warranted jury in finding that driver went to sleep, and hence trial court's statement
that “heedlessness or reckless disregard of the rights of others” under this article means more than failure to use
care which an ordinarily prudent person would use under similar circumstances, but means acting in a rashly
careless or indifferent manner and in disregard of probable consequences of such acts as they may affect the
rights of others was proper and was tantamount to a definition of “gross negligence.” McMillian v. Sims
(Civ.App. 1937) 112 S.W.2d 793, error granted , dismissed by agreement. Automobiles             244(20); Automo-
biles      246(54)


Any error in omission of element of persistent course from definition of heedless and reckless disregard of rights
of others was harmless where occupant of defendant's automobile was not a guest. Schafer v. Stevens (Civ.App.
1961) 352 S.W.2d 471, dismissed. Appeal And Error         1170.9(4)


“Heedless and reckless disregard,” suggested by state bar in pattern jury charges for use in automobile cases, is
synonymous with term “gross negligence” and thus both terms should be defined to jury in same terms. Burk
Royalty Co. v. Walls (Sup. 1981) 616 S.W.2d 911. Automobiles          246(3)


  54. ---- Gross negligence, instructions

Trial court's definition of gross negligence, given in passenger's action against host driver for personal injuries,
was not error because it failed to state that acts or omissions complained of must be of a continuous or persistent
nature. Hanks v. LaQuey (Civ.App. 1968) 425 S.W.2d 396, ref. n.r.e.. Automobiles           246(2.1)


Intoxication of a driver is not an ultimate fact issue to be submitted to jury in suit by guest, but it may be con-
sidered by the jury on other fact issues. McPhearson v. Sullivan (Civ.App. 1970) 457 S.W.2d 583, reversed 463
S.W.2d 174. Automobiles          243(1); Automobiles         245(24)


Where there was no determination, in automobile accident case, of disputed issues as to whether host was aware
of his proximity to “T” intersection until it was too late, and whether he attempted to control automobile by
slowing it down and effecting turn in order to avoid collision, submission of special issues as to whether host
driver knowingly and intentionally operated automobile at excessive rate of speed under the circumstances, and
whether his operation of automobile was gross negligence constituted reversible error in that it amounted to gen-
eral charge. Sparks v. Dalton (Civ.App. 1970) 458 S.W.2d 836. Appeal And Error                1062.1; Trial
352.12




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V.T.C.A., Civil Practice & Remedies Code § 72.001                                                          Page 40




Gross negligence under Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section) might be established
by evidence of act of such quality or kind of conduct as to show that driver was consciously indifferent to rights
or welfare of his passengers as well as others. Benevides v. Peche (Civ.App. 1970) 460 S.W.2d 207, ref. n.r.e..
Automobiles        244(20)


Where parents went on long automobile trip with their daughter and her husband in the latter's vehicle and par-
ents agreed to pay for the gas and oil on trip which was principally for the purpose of sightseeing, parents were
guests without payment and not entitled to recover for injuries caused through ordinary negligence. Urban v.
Chars (1957) 1 Wis.2d 582, 85 N.W.2d 386. Automobiles           181(2)


“Gross negligence” is such negligence as evidences a reckless disregard of human life, or such conscious indif-
ference to rights of others as amounts to an intentional violation of them. Alesio v. Lococo, 1938, 134 Neb. 461,
279 N.W. 154. Automobiles          181(1)


Driving 50 to 60 miles per hour on straight, level concrete highway at or about daybreak, in a drizzling rain, was
not such heedlessness or reckless disregard of rights of others as would entitle motorist's guests to recover under
Vernon's Ann.Civ.St. art. 6701b (repealed; see, now, this section). Mondello v. Pastiro, App. 2 Cir.1955, 78
So.2d 64. Automobiles        181(7)


Conduct of host-motorist who was driving about 85 miles per hour at time of head-on collision with motorist
who turned far to left on the highway directly in front of host did not amount to “gross negligence” and host was
not liable to gratuitous guest. Cone v. Smith, App. 2 Cir.1954, 76 So.2d 46. Automobiles        181(7)


Where plaintiff, who was injured in Texas when she fell out of automobile, testified that purpose of trip to Texas
was combined business and pleasure, instruction, for purposes of determining whether Vernon's Ann.Civ.St. art.
6701b (repealed; now, this chapter) was applicable, that sharing cost of gasoline and oil consumed on trip taken
for pleasure or social purposes did not transform into “guest with payment” one who without such charge would
have been “guest without payment” was not erroneous. Disney v. Cook, Okla., 457 P.2d 552 (1969). Automo-
biles      246(54)


  55. Sufficiency of evidence

In action for injuries sustained by gratuitous automobile guest in collision between automobile and bridge, evid-
ence sustained finding that driver was operating automobile at dangerous speed, that he failed to keep reasonable
lookout, that he failed to keep automobile under proper control, that he failed to reduce speed, that he failed to
stop automobile, and that he failed to apply the brakes thereof. Kirkpatrick v. Neal (Civ.App. 1941) 153 S.W.2d
519, error refused. Automobiles         244(20)


In actions growing out of weekend fishing trip by a number of employees of automobile company, wherein two
of the employees who were occupants of an automobile which was driven by its owner, another employee,
sought to recover from him and from their employer for injuries sustained when the automobile overturned,
evidence was insufficient to support findings that motorist did not have normal use of mental and physical fac-




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V.T.C.A., Civil Practice & Remedies Code § 72.001                                                           Page 41




ulties by reason of use of intoxicating beverages. Morgan v. Luna (Civ.App. 1960) 337 S.W.2d 139. Automo-
biles      244(31)


Evidence in action against tractor operator for injuries to host motorist and death of passenger sustained jury's
conclusion that host automobile, prior to collision with tractor, was being driven at speed which would cause
passenger in exercise of ordinary care to protest the speed to host motorist. Copeland v. Ogle (Civ.App. 1963)
372 S.W.2d 731, ref. n.r.e.. Automobiles       244(56)


Evidence was sufficient to support jury findings as to gross negligence on part of host driver of automobile with
respect to failure to keep a proper lookout, to driving at an excessive rate of speed and failure to apply brakes in
time to avoid collision with moving train at grade crossing. Hanks v. LaQuey (Civ.App. 1968) 425 S.W.2d 396,
ref. n.r.e.. Automobiles       244(20)


In automobile cases, existence of “some care” will not vitiate a finding of gross negligence because the court ap-
plies the traditional no evidence test to see if there is some evidence to support jury's finding of gross negli-
gence; court looks to all of surrounding facts and circumstances, not just individual elements or facts. Burk Roy-
alty Co. v. Walls (Sup. 1981) 616 S.W.2d 911. Automobiles           244(4)


V. T. C. A., Civil Practice & Remedies Code § 72.001, TX CIV PRAC & REM § 72.001


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Civil Practice & Remedies Code § 74.251                                                             Page 1




                                          Effective: September 1, 2003

Vernon's Texas Statutes and Codes Annotated Currentness
 Civil Practice and Remedies Code (Refs & Annos)
    Title 4. Liability in Tort
          Chapter 74. Medical Liability (Refs & Annos)
            Subchapter F. Statute of Limitations (Refs & Annos)
              § 74.251. Statute of Limitations on Health Care Liability Claims

(a) Notwithstanding any other law and subject to Subsection (b), no health care liability claim may be com-
menced unless the action is filed within two years from the occurrence of the breach or tort or from the date the
medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is
made is completed; provided that, minors under the age of 12 years shall have until their 14th birthday in which
to file, or have filed on their behalf, the claim. Except as herein provided this section applies to all persons re-
gardless of minority or other legal disability.



(b) A claimant must bring a health care liability claim not later than 10 years after the date of the act or omission
that gives rise to the claim. This subsection is intended as a statute of repose so that all claims must be brought
within 10 years or they are time barred.



CREDIT(S)

Added by Acts 2003, 78th Leg., ch. 204, § 10.01, eff. Sept. 1, 2003.


VALIDITY

    < This section has been declared unconstitutional as it applies to minors. See Adams v. Gottwald,
    D.D.S., P.C., 179 S.W.3d 101 (Tex. App.--San Antonio 2005, pet. denied).>


HISTORICAL AND STATUTORY NOTES

2005 Main Volume

Prior Laws:

    Acts 1977, 65th Leg., p. 2039, ch. 817, Part 1.

    Vernon's Ann.Civ.St. art. 4590i, § 10.01.




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V.T.C.A., Civil Practice & Remedies Code § 74.251                                                   Page 2




LAW REVIEW COMMENTARIES

Medical malpractice and mental incompetence: Tinkle-ing on the two-year statute of limitations. Richard D.
Villa, 46 S.Tex.L.Rev. 529 (Winter 2004).

LIBRARY REFERENCES

2005 Main Volume

    Health     811.
    Westlaw Topic No. 198H.

RESEARCH REFERENCES

2010 Electronic Update

ALR Library

5 ALR 6th 133, Validity of Medical Malpractice Statutes of Repose.


71 ALR 5th 307, Medical Malpractice Statutes of Limitation Minority Provisions.


89 ALR 4th 887, What Patient Claims Against Doctor, Hospital, or Similar Health Care Provider Are Not Sub-
ject to Statutes Specifically Governing Actions and Damages for Medical Malpractice.


80 ALR 2nd 368, When Statute of Limitations Commences to Run Against Malpractice Action Against Physi-
cian, Surgeon, Dentist, or Similar Practitioner.


120 ALR 758, Reasonableness of Period Allowed for Existing Cause of Action by Statute Reducing Period of
Limitation.


Encyclopedias

10 Am. Jur. Proof of Facts 2d 605, Surgeon's Failure to Discover Breakage of Surgical Instrument.


26 Am. Jur. Proof of Facts 3d 185, Discovery Date in Medical Malpractice Litigation.


40 Am. Jur. Proof of Facts 3d 1, Unnecessary Surgery--Hysterectomy.


4 Am. Jur. Trials 441, Solving Statutes of Limitation Problems.


16 Am. Jur. Trials 471, Defense of Medical Malpractice Cases.




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V.T.C.A., Civil Practice & Remedies Code § 74.251                                                     Page 3




TX Jur. 3d Healing Arts & Institutions § 258, Validity of Statute.


TX Jur. 3d Healing Arts & Institutions § 259, Validity of Statute--Effect of Open-Courts Provision.


TX Jur. 3d Healing Arts & Institutions § 260, Exclusion of “Other Law”.


TX Jur. 3d Healing Arts & Institutions § 261, When Limitations Period Begins to Run.


TX Jur. 3d Healing Arts & Institutions § 263, Tolling of Limitations Period.


TX Jur. 3d Healing Arts & Institutions § 264, Tolling of Limitations Period--Discovery Rule.


TX Jur. 3d Limitation of Actions § 145, Change or Substitution of Parties--Defendant.


Forms

Texas Jurisprudence Pleading & Practice Forms 2d Ed § 135:6, Claims Against Hospital as Health Care Pro-
vider.


Texas Jurisprudence Pleading & Practice Forms 2d Ed § 135:7, Notice Requirements.


Texas Jurisprudence Pleading & Practice Forms 2d Ed § 135:8, Statute of Limitations.


Texas Jurisprudence Pleading & Practice Forms 2d Ed § 135:17, Notice of Claim Against Hospital Under Texas
Medical Liability Act.


Texas Jurisprudence Pleading & Practice Forms 2d Ed § 135:40, Answer--Special Exception--Private Hospital
Defendant--Statute of Limitations--Texas Medical Liability Act.


Texas Jurisprudence Pleading & Practice Forms 2d Ed § 159:24, Response--To Bar of Limitations--Fraudulent
Concealment Defers Limitations Period--Medical Malpractice.


Texas Jurisprudence Pleading & Practice Forms 2d Ed § 159:28, Response--Allegation--Health Care Claim by
Minor.


Texas Jurisprudence Pleading & Practice Forms 2d Ed § 194:15, Statute of Limitations.




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V.T.C.A., Civil Practice & Remedies Code § 74.251                                                     Page 4




Texas Jurisprudence Pleading & Practice Forms 2d Ed § 194:16, Notice and Authorization.


Texas Jurisprudence Pleading & Practice Forms 2d Ed § 194:23, Checklist--Drafting Petition for Malpractice
Under TMLA.


Texas Jurisprudence Pleading & Practice Forms 2d Ed § 194:35, Notice of Health Care Liability Claim--By
Claimant--To Physician or Health-Care Provider.


Texas Jurisprudence Pleading & Practice Forms 2d Ed § 194:55, Petition--Allegation--Fraudulent Concealment
of Negligence--Tolling of Statute of Limitations.


Texas Jurisprudence Pleading & Practice Forms 2d Ed § 194:56, Petition--Allegation--Application of Texas
Medical Liability Act Statute of Limitation Violates Texas and United States Constitution.


Texas Jurisprudence Pleading & Practice Forms 2d Ed § 194:57, Petition--Allegation--Application of Texas
Medical Liability Act Statute of Repose Violates Texas and United States Constitutions.


Texas Jurisprudence Pleading & Practice Forms 2d Ed § 194:62, Answer--Affirmative Defense--Statute of Lim-
itations.


Texas Jurisprudence Pleading & Practice Forms 2d Ed § 135:36.10, Petition--Allegation--Fraudulent Conceal-
ment Tolling Statute of Limitations.


Treatises and Practice Aids

McDonald & Carlson Texas Civil Practice § 9:66, Introduction.


McDonald & Carlson Texas Civil Practice § 9:67, Accrual of Causes of Action.


McDonald & Carlson Texas Civil Practice § 9:71, Statutes of Repose.


McDonald & Carlson Texas Civil Practice § 9:72, Express Limitations for Statutory Causes of Action.


McDonald & Carlson Texas Civil Practice § 9:74, Personal Actions.


Penick, 44 Tex. Prac. Series § 20.12, Limitations.


NOTES OF DECISIONS




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V.T.C.A., Civil Practice & Remedies Code § 74.251                                                            Page 5




  In general 2
  Accrual 5 to 10
      Accrual - In general 5
      Accrual - Drug treatment 10
      Accrual - Failure to diagnose 6
      Accrual - Hospitalization 8
      Accrual - Last exam or visit 7
      Accrual - Misdiagnosis or failure to diagnose 6
      Accrual - Surgeries 9
  Breach of contract 15
  Burden of proof 20
  Conflicts of law 4
  Course of treatment 12
  Drug treatment, accrual 10
  Failure to diagnose, accrual 6
  Follow-up treatment 11
  Fraudulent concealment 13
  Hospitalization, accrual 8
  Intentional torts 16
  Last exam or visit, accrual 7
  Minors 14
  Misdiagnosis or failure to diagnose, accrual 6
  Negligence 16.5
  New trial 19
  Purpose 3
  Relation-back doctrine 18.5
  Surgeries, accrual 9
  Survival suit 17
  Tolling of limitations period 18
  Validity 1

  1. Validity

The Legislature did not act unreasonably or arbitrarily in using its police power to enact a ten-year statute of re-
pose for medical malpractice actions with no exception for foreign-object claims, and thus, the statute of repose
does not violate the Open Courts provision of the state Constitution. Methodist Healthcare System of San Anto-
nio, Ltd., L.L.P. v. Rankin (Sup. 2010) 307 S.W.3d 283, rehearing denied. Constitutional Law          2315; Limit-
ation of Actions       4(2)


Two-year limitations period for health care liability claims does not violate the open courts guarantee of State
Constitution if the plaintiff had a reasonable opportunity to discover the alleged wrong and bring suit before the
limitations period expired, and courts are to decide what constitutes a reasonable time or opportunity for the
plaintiff to discover his injury and file suit. Const. Art. Walters v. Cleveland Regional Medical Center (App. 1
Dist. 2007) 264 S.W.3d 154, rehearing overruled , review granted , reversed 307 S.W.3d 292. Constitutional
Law         2315; Limitation Of Actions         4(2)




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V.T.C.A., Civil Practice & Remedies Code § 74.251                                                              Page 6




Texas Tort Claims Act provision giving a sued governmental employee the option of forcing the plaintiff to sub-
stitute the governmental entity for the employee or risk a complete dismissal did not violate constitutional open
courts provision as applied to medical malpractice action against physician employed by state university, al-
though plaintiffs were unable to sue university after physician invoked statute because statute of limitations had
expired; restriction of the applicable two-year statute of limitations and the substitution of the governmental unit
was not unreasonable when balanced against the purpose of each statute. Bailey v. Sanders (App. 4 Dist. 2008)
261 S.W.3d 153. Constitutional Law          2315; States        112(2)


Legislative basis for ten-year statute of repose for health care liability claims did not outweigh the denial of pa-
tient's constitutionally-guaranteed right of redress, as required in order for hysterectomy patient to establish that
the statute of repose as applied violated the open courts provision of the Texas Constitution by barring health
care liability cause of action against surgeons brought by the patient who discovered surgical sponge in her body
11 years after the hysterectomy; legislative basis for the statute of repose, concern over insurance rates and the
cost of health care, was legitimate, but the statute barred patient's right to sue before she had a reasonable oppor-
tunity to discover the wrong, and statute required patient to fulfill an impossible condition. Rankin v. Methodist
Healthcare System of San Antonio, Ltd., LLP (App. 4 Dist. 2008) 261 S.W.3d 93, rehearing overruled , review
granted , reversed 307 S.W.3d 283, rehearing denied. Constitutional Law                2315; Limitation Of Actions
       4(2)


Hysterectomy patient who discovered that surgical sponge had been left in her body 11 years after the hysterec-
tomy had a vested right to bring a health care liability cause of action against the surgeons, as required in order
for patient to establish that ten-year statute of repose for health care liability claims as applied violated the open
courts provision of the Texas Constitution by barring patient's cause of action against the surgeons, as the event
giving rise to patient's cause of action occurred within the ten-year-repose period. Rankin v. Methodist Health-
care System of San Antonio, Ltd., LLP (App. 4 Dist. 2008) 261 S.W.3d 93, rehearing overruled , review granted
, reversed 307 S.W.3d 283, rehearing denied. Constitutional Law             2315; Limitation Of Actions        4(2)


Ten-year statute of repose for health care liability claims abrogated an established common law cause of action
for a surgeon's negligent failure to remove a foreign object in a patient's body, as required in order for hysterec-
tomy patient to establish that the statute of repose as applied violated the open courts provision of the Texas
Constitution by barring health care liability cause of action against surgeons brought by the patient who dis-
covered surgical sponge in her body 11 years after the hysterectomy; prior to adoption of the statute of repose,
causes of action based upon the alleged negligence of a physician in leaving a foreign object in his patient's
body were proper subjects for the discovery rule. Rankin v. Methodist Healthcare System of San Antonio, Ltd.,
LLP (App. 4 Dist. 2008) 261 S.W.3d 93, rehearing overruled , review granted , reversed 307 S.W.3d 283, re-
hearing denied. Constitutional Law        2315; Limitation Of Actions         4(2)


Application of two-year statute of limitations under Medical Liability and Insurance Improvement Act (MLIIA)
to bar patient's action against group medical practice for negligence, negligent misrepresentation, and deceptive
trade practices did not violate open courts provision of Texas Constitution, where patient discovered alleged
wrong at least three months before limitations period expired, and retained counsel to pursue claims at least one
month before limitations expired. Hogue v. Propath Laboratory, Inc. (App. 2 Dist. 2006) 192 S.W.3d 641, re-
view denied , rehearing of petition for review denied. Constitutional Law          2315; Limitation Of Actions




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V.T.C.A., Civil Practice & Remedies Code § 74.251                                                             Page 7




     4(2)


Open courts provision of state constitution did not bar application of statute governing limitations period for
medical malpractice claims to bar patient's cause of action for medical malpractice against doctor, based on doc-
tor's allegedly negligent failure to diagnose patient's cancer; negligence claims against doctor were examples of
well-established medical malpractice common-law claims, patient failed to present admissible evidence to raise
a fact issue demonstrating that there was no reasonable opportunity to discover alleged wrong before limitations
period expired, and patient did not use due diligence and sue within a reasonable time after learning about the al-
leged wrong. Gilbert v. Bartel (App. 2 Dist. 2004) 144 S.W.3d 136, rehearing overruled , review denied , rehear-
ing of petition for review denied. Constitutional Law        2315; Limitation Of Actions       4(2)


  2. In general

For procedural matters, such as statutes of limitations, Texas, generally speaking, applies law of forum state.
Porter v. Charter Medical Corp., N.D.Tex.1997, 957 F.Supp. 1427. Limitation Of Actions        2(1)


Patient's claims against health care facility for false imprisonment, invasion of privacy intrusion upon seclusion,
medical negligence, intentional infliction of emotional distress, civil conspiracy, loss of parental consortium,
and battery, were all governed by Texas' two-year limitations period for health care liability claims, as all such
claims stemmed from allegations that facility treated patient improperly, failed to provide him with necessary
and appropriate treatment, and departed from accepted standards of health care, with proximate result that pa-
tient was injured. Porter v. Charter Medical Corp., N.D.Tex.1997, 957 F.Supp. 1427. Health           810


Physician's argument in his plea to the jurisdiction that limitations period within which plaintiffs were required
to file negligence suit against him was not tolled because plaintiffs failed to comply with statutory notice re-
quirements did not implicate issue of trial court's subject matter jurisdiction, and, thus, interlocutory order deny-
ing physician's plea was not appealable as having raised an issue that could be jurisdictional, as statutory notice
requirement was jurisdictional requirement in all suits against a governmental entity, but physician was not a
governmental entity. Illoh v. Carroll (App. 14 Dist. 2010) 2010 WL 3038268, petition for review filed. Appeal
and Error       70(3)


Interlocutory order denying state-employed physician's plea to the jurisdiction was not appealable under statute
permitting a government employee to file an interlocutory appeal from an order denying a motion for summary
judgment based on immunity, as physician's plea was predicated on statute of limitations, not immunity. Illoh v.
Carroll (App. 14 Dist. 2010) 2010 WL 3038268, petition for review filed. Appeal and Error       70(3)


Even if statute allowing for interlocutory appeal of a trial court's order granting or denying a governmental unit's
plea to the jurisdiction was applicable to government employees, no appeal of interlocutory order denying physi-
cian's plea to the jurisdiction in negligence suit filed against him would be permitted, as physician's argument
raised in his plea that plaintiffs failed to file suit within limitations period did not raise issue regarding trial
court's subject matter jurisdiction, but was instead an affirmative defense. Illoh v. Carroll (App. 14 Dist. 2010)
2010 WL 3038268, petition for review filed. Appeal and Error            70(3)




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V.T.C.A., Civil Practice & Remedies Code § 74.251                                                              Page 8




The “notwithstanding any other law” language of the statute of limitations on health care liability claims im-
poses an absolute two-year limitations period on such claims. Kimbrell v. Molinet (App. 4 Dist. 2008) 288
S.W.3d 464, rehearing overruled , review granted. Limitation of Actions    55(3)


Two-year limitations period for health care liability claims is absolute; however, a plaintiff can save his claim if
he can show that the claim was cut short in violation of the open courts guarantee of the Texas Constitution.
Const. art. Walters v. Cleveland Regional Medical Center (App. 1 Dist. 2007) 264 S.W.3d 154, rehearing over-
ruled , review granted , reversed 307 S.W.3d 292. Constitutional Law           2315; Limitation Of Actions
4(2)


Absolute two-year statute of limitations under Medical Liability and Insurance Improvement Act (MLIIA) abol-
ishes discovery rule in cases governed by MLIIA. Hogue v. Propath Laboratory, Inc. (App. 2 Dist. 2006) 192
S.W.3d 641, review denied , rehearing of petition for review denied. Limitation Of Actions    95(12)


Two-year statute of limitations on health care liability claims is absolute. Campbell v. MacGregor Medical Ass'n
(App. 1 Dist. 1997) 966 S.W.2d 538, rehearing overruled, writ granted, affirmed in part , reversed in part 985
S.W.2d 38. Limitation Of Actions        55(3)


  3. Purpose

The legislature's actual purpose in limiting the time for bringing a medical negligence suit in the Texas Medical
Liability and Insurance Improvement Act was to limit the length of time that medical professionals would be ex-
posed to potential liability and thereby reduce medical malpractice insurance rates, and when these concerns are
balanced against a particular plaintiff's claim, the limitations period does not violate Texas' open courts guaran-
tee if the plaintiff had a reasonable opportunity to discover the alleged wrong and bring suit before the limita-
tions period expired. Mendoza v. Murphy, C.A.5 (Tex.)2008, 532 F.3d 342. Constitutional Law             2315; Lim-
itation Of Actions        4(2)


By enacting statutory provision for a medical liability two-year limitations period, legislature intended to strictly
limit time for asserting health care liability claims, not only to avoid stale claims, but also to reduce frequency of
claims. Hyson v. Chilkewitz (App. 5 Dist. 1998) 971 S.W.2d 563, review granted , reversed 22 S.W.3d 825, on
remand 2000 WL 566776, review denied. Health               811


Purpose of statutory provisions for measuring medical malpractice limitations period from last date of treatment
or hospitalization is to aid plaintiff who was injured during period of hospitalization or course of medical treat-
ment, but who has difficulty ascertaining precise date of injury, and in such situations doubts about time cause
of action accrued are resolved in plaintiff's favor by using last date of treatment or hospitalization as proxy for
actual date of tort. Husain v. Khatib (Sup. 1998) 964 S.W.2d 918. Limitation Of Actions          55(3)


As part of statutory provisions for medical liability and insurance improvement, Legislature intended section
providing for two-year statute of limitations for all medical malpractice actions to apply to medical malpractice
involving death. Maxwell v. Mani (App. 14 Dist. 1994) 892 S.W.2d 146, rehearing overruled , writ granted , re-




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V.T.C.A., Civil Practice & Remedies Code § 74.251                                                           Page 9




versed 909 S.W.2d 889. Health         811


With passage of statutory provisions for medical liability and insurance improvement, legislature intended to ad-
opt absolute two-year limitations period and to abolish discovery rule for medical malpractice claims. Marchal
v. Webb (App. 1 Dist. 1993) 859 S.W.2d 408, rehearing denied, writ denied , petition for rehearing of applica-
tion for writ of error filed, rehearing of writ of error overruled. Limitation Of Actions  95(12)


Statute relating to medical liability and insurance improvemment was enacted by the Legislature to address the
problem of litigants filing frivolous claims against medical practitioners without adequately investigating them
in a timely manner. In re Collom & Carney Clinic Ass'n (App. 6 Dist. 2001) 62 S.W.3d 924. Health          803


  4. Conflicts of law

Under Texas law, former patient's fraud claims against physicians and professional associations arising from pa-
tient's treatment at psychiatric facility were governed by four-year statute of limitations for fraud, rather than
two-year limitations period for health care liability claims. Rotella v. Pederson, C.A.5 (Tex.)1998, 144 F.3d 892,
rehearing denied. Health        811


Patient's claims against physicians added by amended complaint as responsible third parties in patient's action
against podiatrist and physicians for personal injury and medical malpractice, although added within the 60 day
statutory period after being designated as responsible third parties, were governed by absolute two year statute
of limitations on health care liability claims. Kimbrell v. Molinet (App. 4 Dist. 2008) 288 S.W.3d 464, rehearing
overruled , review granted. Limitation of Actions         55(3); Limitation of Actions     124


Patient's claim against professional association which performed radiology services, which was based on alleged
negligence in failing to diagnose breast cancer after mammogram was performed on patient, was health care li-
ability claim, and thus was governed by medical malpractice statute of limitations, not general two-year personal
injury statute of limitations. Khatib v. Husain (App. 2 Dist. 1997) 949 S.W.2d 805, rehearing overruled , review
granted , reversed 964 S.W.2d 918. Health         811


  5. Accrual--In general

Patient had reasonable opportunity to discover negligence claims and bring suit against Veterans Affairs physi-
cians within two-year limitations period of Texas Medical Liability and Insurance Improvement Act, and district
court's determination that suit was barred thus did not violate Texas' open courts doctrine, where patient suspec-
ted as early as when he noticed related claim against United States that some sort of malpractice had occurred,
and, at time when he filed federal claim, three months remained before state limitations period would expire.
Mendoza v. Murphy, C.A.5 (Tex.)2008, 532 F.3d 342. Constitutional Law               2315; Limitation Of Actions
      4(2)


Under the Texas Medical Liability and Insurance Improvement Act, a plaintiff may not choose the commence-
ment date most favorable to him; if the date of the alleged tort is ascertainable, the limitations period begins at




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V.T.C.A., Civil Practice & Remedies Code § 74.251                                                            Page 10




that time. Mendoza v. Murphy, C.A.5 (Tex.)2008, 532 F.3d 342. Limitation Of Actions              55(3)


Statute of limitations on health care liability claims begins to run from (1) date of breach or tort; (2) date treat-
ment that is subject of claim is completed; or (3) date hospitalization for which claim is made is completed.
Slater v. National Medical Enterprises, Inc. (App. 2 Dist. 1998) 962 S.W.2d 228, rehearing overruled , review
denied. Limitation Of Actions        55(3)


Claim by parents for medical expenses of child until child reached age of majority, based on severe, permanent
neurological injuries sustained by child in course of labor and delivery, belonged to parents and was not brought
on child's behalf, and thus, two year limitations period governing medical malpractice action against nurses
began to run from date of child's injury. Morrell v. Finke (App. 2 Dist. 2005) 184 S.W.3d 257, rehearing over-
ruled , review denied , rehearing of petition for review denied. Limitation Of Actions        55(3); Limitation Of
Actions       72(1)


Patient's cause of action for medical malpractice against doctor, based on doctor's allegedly negligent failure to
diagnose patient's cancer, accrued, and 2-year limitations period began to run, when doctor ran tests on patient
and failed to recognize the possibility of cancer, rather than on later date on which doctor referred patient to an
oncologist for testing that detected patient's cancer. Gilbert v. Bartel (App. 2 Dist. 2004) 144 S.W.3d 136, re-
hearing overruled , review denied , rehearing of petition for review denied. Limitation Of Actions       55(3)


In the event the exact date alleged tort occurred cannot be ascertained, statute governing limitations period for
medical malpractice claims resolves doubts about the time of accrual in the plaintiff's favor by using the last
date of treatment or hospitalization as a proxy for the actual date of the tort; before the last date of treatment be-
comes relevant to determining when limitations begins, however, the plaintiff must establish a course of treat-
ment for the alleged injury, and if the defendant committed the alleged tort on an ascertainable date, whether the
plaintiff established a course of treatment is immaterial because limitations begins to run on the ascertainable
date. Gilbert v. Bartel (App. 2 Dist. 2004) 144 S.W.3d 136, rehearing overruled , review denied , rehearing of
petition for review denied. Limitation Of Actions        55(3)


Patient's cause of action for medical malpractice accrued, and two-year statute of limitations began to run, on
date patient last visited physician's office, even though patient obtained additional refills on her prescription
medication for hypertension by calling physician well after last visit, where gist of complaint was not that the
medications prescribed by physician caused patient's injuries, which were a ruptured cerebral aneurysm and sub-
arachnoid hemorrhages, but that physician's lack of follow-up care caused the injuries. Winston v. Peterek (App.
14 Dist. 2004) 132 S.W.3d 204, petition stricken, review denied. Limitation Of Actions        55(3)


Statute of limitations on medical negligence claim filed by personal representative of decedent's estate against
hospital was not tolled, under open courts provision of state constitution, by mental incapacity of decedent from
time of his hospitalization until his death, where open courts provision did not apply to representative's wrongful
death and survival claims. Romero v. Institute For Rehabilitation And Research (App. 14 Dist. 2004) 2004 WL
1441049, Unreported. Death           39




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V.T.C.A., Civil Practice & Remedies Code § 74.251                                                            Page 11




Medical malpractice action brought by representative of decedent's estate against hospital was barred by two
year statute of limitations, where limitations period began running on date decedent was released from hospital,
which was last possible date hospital could have improperly treated or diagnosed decedent, and representative
did not file claim until two years and 75 days past that date. Romero v. Institute For Rehabilitation And Re-
search (App. 14 Dist. 2004) 2004 WL 1441049, Unreported. Death           39


  6. ---- Misdiagnosis or failure to diagnose, accrual

Limitations period under Texas Medical Liability and Insurance Improvement Act, in patient's action alleging
that medical malpractice led to unnecessary removal of his entire bladder, began when physicians allegedly mis-
diagnosed invasive bladder cancer. Mendoza v. Murphy, C.A.5 (Tex.)2008, 532 F.3d 342. Limitation Of Actions
      55(3)


When complaint in medical malpractice action is that physician instituted improper course of treatment based
upon misdiagnosis, last day of such mistreatment is date statute of limitation begins to run. Rowntree v. Hun-
sucker (Sup. 1992) 833 S.W.2d 103. Limitation Of Actions        55(3)


For limitations tolling purposes, patient's claims against radiologist for misreading two mammograms were not
part of continuing course of treatment that extended to date on which patient sought to have radiologist interpret
another mammogram; third visit to radiologist concerned breast different from one giving rise to patient's claims
of negligence in interpreting first two mammograms. Holt v. Epley (App. 7 Dist. 1995) 894 S.W.2d 511, rehear-
ing overruled , writ denied. Limitation Of Actions       55(3)


Doctor could not have breached duty to conduct or recommend complete physical examination on date of pa-
tient's first visit, and thus limitations period for malpractice claim arising out of alleged failure to diagnose can-
cer could not have begun on that date, where patient's cancer did not exist in any detectable degree at that time.
Karley v. Bell (App. 2 Dist. 2000) 24 S.W.3d 516, rehearing overruled , review denied. Limitation Of Actions
       55(3)


  7. ---- Last exam or visit, accrual

Last examination of patient is not necessarily triggering event for commencement of statute of limitations in
medical malpractice suit. Rowntree v. Hunsucker (Sup. 1992) 833 S.W.2d 103. Limitation Of Actions
55(3)


Period of limitations on patient's medical malpractice claim against orthodontist, alleging failure to diagnose
periodontal disease, began to run at time disease could have been detected and not at time of patient's last visit.
Damron v. Ornish (App. 5 Dist. 1993) 862 S.W.2d 683, rehearing denied , writ denied. Limitation Of Actions
     55(3); Limitation Of Actions       95(12)


Radiologist's examination of patient to check status of anal radiation burns was last day of treatment commen-
cing two-year statute of limitations for medical malpractice action alleging failure to disclose radiation burns.




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V.T.C.A., Civil Practice & Remedies Code § 74.251                                                             Page 12




Willingham v. Schlichtemeier (App. 11 Dist. 1993) 864 S.W.2d 179, rehearing denied , writ denied. Limitation
Of Actions     55(3)


Two-year statute of limitations for medical malpractice action for alleged failure to tell patient of suffering from
radiation burns commenced on last day of treatment, not discovery of burns; surgeon had continuing duty to ap-
prise patient of cause of suffering during course of treatment. Willingham v. Schlichtemeier (App. 11 Dist.
1993) 864 S.W.2d 179, rehearing denied , writ denied. Limitation Of Actions          95(12)


Statute of limitations governing dental malpractice action began to run on date of plaintiff's last office visit, ab-
sent any competent contradictory evidence to support plaintiff's theory of continuing course of treatment beyond
that date. Morin v. Helfrick (App. 1 Dist. 1996) 930 S.W.2d 733. Limitation Of Actions          55(3)


  8. ---- Hospitalization, accrual

When claimant asserts health care liability claim against hospital, liability, for statute of limitations purposes,
accrues on last day of hospitalization. Thompson v. Community Health Inv. Corp. (App. 5 Dist. 1995) 892
S.W.2d 440, rehearing overruled , writ granted , reversed 923 S.W.2d 569. Limitation Of Actions           55(3)


Where claim is based on hospitalization itself, limitations period runs from date relevant hospitalization was
completed. Winkle v. Tullos (App. 14 Dist. 1995) 917 S.W.2d 304, rehearing overruled, writ denied , rehearing
of writ of error overruled. Limitation Of Actions     55(3)


  9. ---- Surgeries, accrual

Patient's injury occurred on date of either of two radial keratotomy surgeries on her eyes, so that statute of limit-
ations for medical malpractice began to run on date of either surgery, rather than date of patient's last postoperat-
ive or follow-up visit to physician three years after initial surgery; patient alleged that physician negligently per-
formed surgeries and did not allege negligence in postoperative care, but, rather, her allegation concerning post-
operative period related to fraudulent concealment. Marchal v. Webb (App. 1 Dist. 1993) 859 S.W.2d 408, re-
hearing denied, writ denied , petition for rehearing of application for writ of error filed, rehearing of writ of error
overruled. Limitation Of Actions         55(3)


For limitations purposes, undisputed evidence established that physician's alleged negligence in performing cir-
cumcision did not involve continuous course of treatment, and that statute of limitations began to run from date
physician performed circumcision. Ericson v. Roberts (App. 12 Dist. 1995) 910 S.W.2d 608. Limitation Of Ac-
tions      55(3)


Limitations period for medical malpractice action that arose from unintentional leaving of rubber tube in chest
of patient following heart surgery began to run at date of that surgery. Osborne v. St. Lukes Episcopal Hosp.
(App. 1 Dist. 1996) 915 S.W.2d 906, rehearing overruled , writ denied. Limitation Of Actions      55(3)




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V.T.C.A., Civil Practice & Remedies Code § 74.251                                                         Page 13




Limitations period for medical malpractice claim that surgery was unnecessary and inappropriate began to run
on date of surgery, and continuous course of treatment rule was inapplicable despite claim that follow-up care
for surgery was also unnecessary because complaint related to surgery itself which occurred on readily ascer-
tainable date. Winkle v. Tullos (App. 14 Dist. 1995) 917 S.W.2d 304, rehearing overruled, writ denied , rehear-
ing of writ of error overruled. Limitation Of Actions    55(3)


Statute of limitations in medical malpractice action began running when last surgery was performed on patient's
feet, and not on date of last treatment, even considering allegations that doctor's treatment for post-operative
pain was negligent because it only masked symptoms of patient's continuing problems where surgeries remained
focus of allegation of actionable injury. Johnson v. Fuselier (App. 6 Dist. 2002) 83 S.W.3d 892. Limitation Of
Actions       55(3)


  10. ---- Drug treatment, accrual

Parents' wrongful death cause of action against pediatric neurologist, alleging that poisoning from neurologist's
prescribed course of drug treatment for minor daughter's seizures contributed to her death, accrued, and statute
of limitations began to run on date family physician became responsible for refilling drug prescription. Gross v.
Kahanek (Sup. 1999) 3 S.W.3d 518, rehearing overruled. Death          39


The determination of when a course of drug treatment ends, such that the statute of limitations for medical mal-
practice for such treatment begins to run, requires consideration of such factors as: (1) whether the physician
continues to examine or attend the patient, and (2) whether the condition requires further services from the phys-
ician. Gross v. Kahanek (Sup. 1999) 3 S.W.3d 518, rehearing overruled. Limitation Of Actions           55(3)


Patient's survivors' medical malpractice cause of action against psychiatrist, alleging that he prescribed wrong
medication and failed to heed patient's pleas for medication change, accrued when patient hung herself, rather
than when she died two days later; as result of hanging, patient was brain-dead and comatose, and therefore not
treatable by psychiatrist, and patient remained in that comatose state until her death. Estate of Magness By and
Through Magness v. Hauser (App. 1 Dist. 1995) 918 S.W.2d 5, writ denied, rehearing of writ of error overruled.
Limitation Of Actions        55(3)


  11. Follow-up treatment

A physician's negligent failure to conduct follow-up procedures occurs only in connection with the last examina-
tion, for purposes of establishing when the limitations period begins to run on health care claim; the theory in
such cases is that when a physician negligently fails to provide weekly or monthly follow-up treatment, the
breach of duty imposed by the standard of care occurs on the last date the physician actually saw the patient.
Winston v. Peterek (App. 14 Dist. 2004) 132 S.W.3d 204, petition stricken, review denied. Limitation Of Ac-
tions      55(3)


  12. Course of treatment

Neither the mere continuing relation between physician and patient nor the continuing nature of a diagnosis is




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V.T.C.A., Civil Practice & Remedies Code § 74.251                                                             Page 14




sufficient to create a course of treatment, for purposes of statute governing limitations period for medical mal-
practice claims. Gilbert v. Bartel (App. 2 Dist. 2004) 144 S.W.3d 136, rehearing overruled , review denied , re-
hearing of petition for review denied. Limitation Of Actions        55(3)


  13. Fraudulent concealment

For purposes of claim that statute of limitations in medical negligence case is tolled by defendant's fraudulent
concealment, duty to disclose under Texas and federal law ends when physician-patient relationship ends. Porter
v. Charter Medical Corp., N.D.Tex.1997, 957 F.Supp. 1427. Limitation Of Actions          104(1)


“Fraudulent concealment” is equitable doctrine that, when properly invoked, estops defendant from relying on
statute of limitations as affirmative defense to medical malpractice claim when defendant is under duty to make
disclosure but fraudulently conceals existence of cause of action from plaintiff. Casey v. Methodist Hosp. (App.
1 Dist. 1995) 907 S.W.2d 898. Limitation Of Actions         104(1)


“Doctrine of fraudulent concealment” provides that where defendant is under duty to make disclosure, but fraud-
ulently conceals existence of cause of action from party to whom it belongs, defendant is estopped from relying
on defense of limitations until party learns of action, or should have learned of it through exercise of reasonable
diligence. Winkle v. Tullos (App. 14 Dist. 1995) 917 S.W.2d 304, rehearing overruled, writ denied , rehearing of
writ of error overruled. Limitation Of Actions        104(1)


Physician has duty to disclose negligent act or fact that injury has occurred, and limitations provision does not
abolish fraudulent concealment as equitable estoppel to defense of limitations under that statute. Winkle v. Tul-
los (App. 14 Dist. 1995) 917 S.W.2d 304, rehearing overruled, writ denied , rehearing of writ of error overruled.
Limitation Of Actions       104(1)


  14. Minors

Limitations on a wrongful death claim based on negligent health care is not tolled or extended because the de-
cedent is a minor. Gross v. Kahanek (Sup. 1999) 3 S.W.3d 518, rehearing overruled. Death       39


  15. Breach of contract

Breach of contract and breach of warranty claims asserted against professional association of physicians were
distinguishable from patient's negligence claim, and thus were not barred under two-year statute of limitations
under Texas Medical Liability and Insurance Improvement Act, even though negligence claim was time barred.
Campbell v. MacGregor Medical Ass'n (App. 1 Dist. 1997) 966 S.W.2d 538, rehearing overruled, writ granted,
affirmed in part , reversed in part 985 S.W.2d 38. Limitation Of Actions    166


  16. Intentional torts

Texas' two-year statute of limitations for health care liability claims applies to intentional torts. Porter v. Charter




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V.T.C.A., Civil Practice & Remedies Code § 74.251                                                               Page 15




Medical Corp., N.D.Tex.1997, 957 F.Supp. 1427. Health              811


  16.5. Negligence

Negligence claims brought against nursing homes, alleging abuse of patient by nurse aide, were “health care li-
ability claims” subject to two-year limitations period under Civil Practices and Remedies Code, rather than lim-
itations period for personal injury claims brought by person with legal disability. Dunn v. Clairmont Tyler, LP
(App. 12 Dist. 2008) 2008 WL 5005529. Health           811


  17. Survival suit

Defect in status of patient's sister as administratrix of patient's estate at time she filed survival suit against physi-
cian and hospital, namely that formal appointment as administratrix was still pending when applicable two-year
limitations period had run, was cured when formal appointment was made, and thus, trial court did not lack sub-
ject matter jurisdiction to hear case. Lorentz v. Dunn (Sup. 2005) 171 S.W.3d 854, rehearing denied. Death
31(3.1)


Amended complaint which demonstrated capacity of mother's heir at law as representative of mother's estate
based on family settlement agreement related back to original complaint, for purposes of two-year limitations
period governing survival action against physician. Cooper v. Coe (App. 12 Dist. 2005) 188 S.W.3d 223, review
denied. Limitation Of Actions      121(2)


  18. Tolling of limitations period

Texas' open courts doctrine, as applied to the question whether the two-year limitations period of the Texas
Medical Liability and Insurance Improvement Act should be tolled, is more restrictive than the traditional dis-
covery rule. Mendoza v. Murphy, C.A.5 (Tex.)2008, 532 F.3d 342. Constitutional Law           2315; Limitation
Of Actions       4(2)


Under some circumstances, the Texas open courts doctrine may toll commencement of the limitations period of
the Texas Medical Liability and Insurance Improvement Act. Mendoza v. Murphy, C.A.5 (Tex.)2008, 532 F.3d
342. Constitutional Law      2315; Limitation Of Actions     4(2)


The Texas Medical Liability and Insurance Improvement Act makes no allowance for a discovery rule; the com-
mencement date is not automatically tolled until the plaintiff knows or has reason to know of his injury. Mend-
oza v. Murphy, C.A.5 (Tex.)2008, 532 F.3d 342. Limitation Of Actions         95(12)


Under Texas constitution, open courts provision did not apply to prevent application of two-year medical mal-
practice limitations period to suit against pathologists for allegedly misinterpreting biopsied bladder tissue in re-
port to urologist, where it would have been neither impossible nor exceedingly difficult for patient to have dis-
covered claim within two-year period following date of their report; patient filed notice of claim against govern-
ment in connection with subsequent bladder removal surgery well within limitations period, indicating he sus-




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V.T.C.A., Civil Practice & Remedies Code § 74.251                                                            Page 16




pected some malpractice during his treatment. Mendoza v. U.S., W.D.Tex.2007, 481 F.Supp.2d 650, affirmed
532 F.3d 342. Constitutional Law      2315; Limitation Of Actions   4(2)


Statement in patient's affidavit in opposition to summary judgment that he was not informed after removal of his
bladder that post-surgery results gave reason to question pathologists' findings with respect to cancerous nature
of biopsy tissue was relevant to question of whether it was impossible or exceedingly difficult to bring claim
within limitations period, for purposes of Texas “open courts” provision even if insufficient by itself to create is-
sue of fact on limitations issue. Mendoza v. U.S., W.D.Tex.2007, 481 F.Supp.2d 650, affirmed 532 F.3d 342.
Federal Civil Procedure        2537


Notice letter and medical authorization form sent by heirs of patient who died during medical procedure to one
physician were sufficient to toll statute of limitation as to all defendant physicians through constructive notice,
while later letter and form provided actual notice to all defendant physicians, although form was deficient; re-
ceipt of letter and form by first physician gave fair warning to physicians of claim and opportunity to abate the
proceedings for negotiations and evaluation of claim, and carried out the intent of the statute requiring notice,
which was to encourage pre-suit negotiations and settlement, and to reduce litigation costs. Rabatin v. Vazquez
(App. 8 Dist. 2008) 2008 WL 4684366. Limitation Of Actions             105(1)


A plaintiff may not obtain relief from a statute of limitations, under the Open Courts provision of the state Con-
stitution, if he does not use due diligence and sue within a reasonable time after learning about the alleged
wrong. Walters v. Cleveland Regional Medical Center (Sup. 2010) 307 S.W.3d 292. Constitutional Law
2315


Genuine issue of material fact as to whether patient discovered the surgical sponge and brought her suit within a
reasonable time precluded a determination on summary judgment that Open Courts provision of state Constitu-
tion did not apply as an exception to two-year statute of limitations for medical malpractice action, in patient's
foreign-object medical malpractice action against hospital, surgeon, and surgical assistant, alleging that surgical
sponge was left in patient after tubal ligation immediately following the birth of patient's child. Walters v. Clev-
eland Regional Medical Center (Sup. 2010) 307 S.W.3d 292. Judgment             181(7)


Summary judgment affidavits of two nurses failed to demonstrate that patient was continually mentally incapa-
citated from date of her surgery until date on which medical malpractice suit was filed against surgical center
and nurse, as to demonstrate that patient was eligible for tolling of limitations period for medical malpractice
claims; affidavits did not set forth any facts upon which opinions were based, nor were any of patient's medical
records attached to affidavit, and nurse's claim that patient had been in “comatose, vegetative state” consistently
since date of surgery was a medical diagnosis that nurse had not shown herself qualified to render. Yancy v.
United Surgical Partners Intern., Inc. (App. 5 Dist. 2005) 170 S.W.3d 185, rehearing overruled , affirmed 236
S.W.3d 778. Judgment          185.1(2); Judgment        185.3(2)


  18.5. Relation-back doctrine

Relation-back doctrine applied to health care liability claim so as to allow patient's amendment to the pleadings




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V.T.C.A., Civil Practice & Remedies Code § 74.251                                                           Page 17




to include state university health science center as a defendant, which would otherwise be barred by limitations,
given that amendment was not based on new, distinct, or different transactions; patient sued doctor, in his indi-
vidual capacity, for common law torts within limitations period, and but for doctor's motion for summary judg-
ment of substitution or dismissal, patient could have proceeded against doctor in his individual capacity, and
substitution of science center, who was doctor's employer, for the defendant doctor was required, and science
center was not misled about claim or disadvantaged by its substitution. Bailey v. University of Texas Health Sci-
ence Center at San Antonio (App. 4 Dist. 2008) 261 S.W.3d 147, review granted. Limitation Of Actions
125


  19. New trial

Trial court did not abuse its discretion in denying patient's motion for new trial in action against group medical
practice and pathology laboratory following entry of partial summary judgment as to negligence, negligent mis-
representation, and deceptive trade practices claims, and directed verdict as to breach of implied warranty claims
arising out of failure of pathologist employed by group medical practice to detect presence of melanoma in le-
sion that had been removed from patient's skin and submitted to group medical practice for analysis; actions
were barred by two-year statute of limitations under Medical Liability and Insurance Improvement Act (MLIIA),
and law would not recognize action for breach of implied warranty of professional services. Hogue v. Propath
Laboratory, Inc. (App. 2 Dist. 2006) 192 S.W.3d 641, review denied , rehearing of petition for review denied.
New Trial        17


  20. Burden of proof

To prove that applying the limitations period of the Texas Medical Liability and Insurance Improvement Act
constitutes a violation of the Texas open courts doctrine, it is the plaintiff's burden to show that: (1) he has a
cognizable common-law claim that the Act restricts, and (2) the restriction is unreasonable or arbitrary when
balanced against the statute's purpose and basis. Mendoza v. Murphy, C.A.5 (Tex.)2008, 532 F.3d 342. Constitu-
tional Law       2315; Limitation Of Actions        4(2)


Patient, who allegedly had hysterectomy as result of sponge being left in patient's body following surgery, failed
to establish that she did not have a reasonable opportunity to discover her injuries and file suit before the two
year limitations period expired, and thus, patient did not establish that the two-year limitations period for health
care liability claims violated patient's open courts guarantee under Texas Constitution. Const. Art. Walters v.
Cleveland Regional Medical Center (App. 1 Dist. 2007) 264 S.W.3d 154, rehearing overruled , review granted ,
reversed 307 S.W.3d 292. Constitutional Law          2315; Limitation Of Actions         4(2)


Because pain itself could be an indicator of injury, fact that patient, who allegedly had hysterectomy because
sponge was left in her body following surgery, had no medical training did not show that she could not have
reasonably discovered her injury within the two-year limitations period for health care liability claims for pur-
poses of determining whether the limitations period violated patient's open courts guarantee under Texas Consti-
tution. Const. Art. Walters v. Cleveland Regional Medical Center (App. 1 Dist. 2007) 264 S.W.3d 154, rehear-
ing overruled , review granted , reversed 307 S.W.3d 292. Constitutional Law        2315; Limitation Of Actions
      4(2)




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V.T.C.A., Civil Practice & Remedies Code § 74.251                                                          Page 18




For a litigant to establish that the two-year limitations period for health care liability claims violated his open
courts guarantee under State Constitution, the litigant must show a cognizable, common-law claim that the limit-
ations provision restricts, and next the litigant must show the restriction is unreasonable or arbitrary when bal-
anced against the statute's purpose and basis. Const. Art. Walters v. Cleveland Regional Medical Center (App. 1
Dist. 2007) 264 S.W.3d 154, rehearing overruled , review granted , reversed 307 S.W.3d 292. Constitutional
Law        2315; Limitation Of Actions         4(2)


V. T. C. A., Civil Practice & Remedies Code § 74.251, TX CIV PRAC & REM § 74.251


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Family Code § 263.405                                                                               Page 1




                                             Effective: June 16, 2007

Vernon's Texas Statutes and Codes Annotated Currentness
 Family Code (Refs & Annos)
    Title 5. The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship (Refs & Annos)
      Subtitle E. Protection of the Child
            Chapter 263. Review of Placement of Children Under Care of Department of Protective and Regulat-
         ory Services (Refs & Annos)
              Subchapter E. Final Order for Child Under Department Care
                § 263.405. Appeal of Final Order


(a) An appeal of a final order rendered under this subchapter is governed by the rules of the supreme court for
accelerated appeals in civil cases and the procedures provided by this section. The appellate court shall render its
final order or judgment with the least possible delay.



(b) Not later than the 15th day after the date a final order is signed by the trial judge, a party who intends to re-
quest a new trial or appeal the order must file with the trial court:


  (1) a request for a new trial; or


  (2) if an appeal is sought, a statement of the point or points on which the party intends to appeal.


(b-1) The statement under Subsection (b)(2) may be combined with a motion for a new trial.


(c) A motion for a new trial, a request for findings of fact and conclusions of law, or any other post-trial motion
in the trial court does not extend the deadline for filing a notice of appeal under Rule 26.1(b), Texas Rules of
Appellate Procedure, or the deadline for filing an affidavit of indigence under Rule 20, [FN1] Texas Rules of
Appellate Procedure.


(d) The trial court shall hold a hearing not later than the 30th day after the date the final order is signed to de-
termine whether:


  (1) a new trial should be granted;


  (2) a party's claim of indigence, if any, should be sustained; and




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V.T.C.A., Family Code § 263.405                                                                                 Page 2




  (3) the appeal is frivolous as provided by Section 13.003(b), Civil Practice and Remedies Code.


(e) If a party claims indigency and requests the appointment of an attorney, the court shall require the person to
file an affidavit of indigency and shall hear evidence to determine the issue of indigency. If the court does not
render a written order denying the claim of indigence or requiring the person to pay partial costs before the 36th
day after the date the final order being appealed is signed, the court shall consider the person to be indigent and
shall appoint counsel to represent the person.


(f) The appellate record must be filed in the appellate court not later than the 60th day after the date the final or-
der is signed by the trial judge, unless the trial court, after a hearing, grants a new trial or denies a request for a
trial court record at no cost.


(g) The appellant may appeal the court's order denying the appellant's claim of indigence or the court's finding
that the appeal is frivolous by filing with the appellate court the reporter's record and clerk's record of the hear-
ing held under this section, both of which shall be provided without advance payment, not later than the 10th
day after the date the court makes the decision. The appellate court shall review the records and may require the
parties to file appellate briefs on the issues presented, but may not hear oral argument on the issues. The appel-
late court shall render appropriate orders after reviewing the records and appellate briefs, if any.


(h) Except on a showing of good cause, the appellate court may not extend the time for filing a record or appel-
late brief.


(i) The appellate court may not consider any issue that was not specifically presented to the trial court in a
timely filed statement of the points on which the party intends to appeal or in a statement combined with a mo-
tion for new trial. For purposes of this subsection, a claim that a judicial decision is contrary to the evidence or
that the evidence is factually or legally insufficient is not sufficiently specific to preserve an issue for appeal.



CREDIT(S)

Added by Acts 2001, 77th Leg., ch. 1090, § 9, eff. Sept. 1, 2001. Amended by Acts 2005, 79th Leg., ch. 176, §
1, eff. Sept. 1, 2005; Acts 2007, 80th Leg., ch. 526, § 2, eff. June 16, 2007.


         [FN1] Vernon's Ann.Rules App.Proc., rules 20.1, 20.2.

VALIDITY

    <Subsection (i) of this section has been declared unconstitutional by In re D.W. (App. 2 Dist. 2008)
    249 S.W.3d 625.>


HISTORICAL AND STATUTORY NOTES




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V.T.C.A., Family Code § 263.405                                                                                Page 3




2008 Main Volume

Section 10 of Acts 2001, 77th Leg., ch. 1090 provides:


“(a) Except as provided by Subsection (b) of this section, the changes in law made by this Act apply to a
pending suit affecting the parent-child relationship regardless of whether the suit was filed before, on, or after
the effective date [Sept. 1, 2001] of this Act.


    “(b) Section 263.405, Family Code, as added by this Act, applies only to an appeal of a final order under
    Subchapter E, Chapter 263, Family Code, as amended by this Act, filed on or after the effective date of this
    Act. An appeal of a final order under Subchapter E, Chapter 263, Family Code, filed before the effective
    date of this Act is governed by the law in effect on the date the appeal was filed, and the former law is con-
    tinued in effect for that purpose.”


Acts 2005, 79th Leg., ch. 176, added subsec. (i).


Section 2 of Acts 2005, 79th Leg., ch. 176 provides:


    “Section 263.405(i), Family Code, as added by this Act, applies only to an appeal of a final order under
    Subchapter E, Chapter 263, Family Code, filed on or after the effective date [Sept. 1, 2005] of this Act. An
    appeal of a final order under Subchapter E, Chapter 263, Family Code, filed before the effective date of this
    Act is governed by the law in effect on the date the appeal was filed, and the former law is continued in ef-
    fect for that purpose. ”


Acts 2007, 80th Leg., ch. 526 divided subsec. (b) into (b) and (b-1); as divided, in the introductory paragraph of
subsec. (b), substituted “who intends to request a new trial or” for “intending to”; added subsec. (b)(1); desig-
nated subsec. (b)(2), and as designated, inserted “if an appeal is sought,”; in subsec. (b-1) inserted “under Sub-
section (b)(2)”.


Section 6 of Acts 2007, 80th Leg., ch. 526 provides:


    “The changes in law made by Subsection (d), Section 107.013, Family Code, as added by this Act, and Sec-
    tion 263.405, Family Code, as amended by this Act, apply only to a suit affecting the parent-child relation-
    ship filed on or after the effective date [June 15, 2007] of this Act. A suit affecting the parent-child relation-
    ship filed before the effective date of this Act is governed by the law in effect on the date the suit was filed,
    and the former law is continued in effect for that purpose.”


Former Sections:

A former § 263.405, relating to a final order appointing the department as managing conservator of certain aban-
doned children and the termination of parental rights, and added by Acts 2001, 77th Leg., ch. 809, § 6, was re-




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V.T.C.A., Family Code § 263.405                                                                           Page 4




numbered as V.T.C.A., Family Code § 263.407 by Acts 2003, 78th Leg., ch. 1275, § 2(54), eff. Sept. 1, 2003.


LAW REVIEW COMMENTARIES

Annual survey of Texas Law: Family law; parent and child. Linda B. Thomas and Ardita L. Vick, 60 SMU
L.Rev. 1053 (2007); 61 SMU L.Rev. 819 (2008); 62 SMU L. Rev. 1197 (2009).

LIBRARY REFERENCES

2008 Main Volume

    Infants       211, 241 to 254.
    Westlaw Topic No. 211.
    C.J.S. Infants §§ 40, 44 to 45, 59, 61, 68 to 69, 96 to 109.

NOTES OF DECISIONS

  In general 2
  Counsel 6
  Discretion of court 16
  Due process 3
  Equal protection 4
  Findings 14
  Frivolous appeal 12
  Good cause 20
  Indigent persons 6.25
  Jurisdiction of trial court 6.5
  Notice 10
  Preemption 2.5
  Preservation of issues 18
  Purpose 5
  Record 15
  Remedies 19
  Ripeness 13
  Scope of review 21
  Separation of powers 4.5
  Statement of points 7
  Sufficiency of argument 8
  Sufficiency of evidence 17
  Timeliness 11
  Validity 1
  Waiver 9

  1. Validity

Statute governing procedure for appealing termination of parental rights order under which trial court denied in-




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V.T.C.A., Family Code § 263.405                                                                                Page 5




digent mother's motion for free record of underlying termination proceeding, upon finding that appeal was
frivolous, did not violate mother's right of equal protection; scope of appellate review was limited to trial court's
determination that appeal was frivolous, with transcript of frivolousness hearing provided without advance pay-
ment, which process afforded mother same equal right and opportunity to appeal such frivolousness finding as
any other indigent or non-indigent party. In re K.D. (App. 2 Dist. 2005) 2005 WL 1693549, opinion withdrawn
2005 WL 2008466, on rehearing 202 S.W.3d 860. Infants             132


Statute requiring parent in a parental rights termination proceeding to present trial court with a statement of
points on which the parent intends to appeal within 15 days after the signing of the termination order and pre-
cluding appellate court from considering any issue that was not specifically presented to the trial court in a
timely filed statement of points did not deprive an indigent parent the ability to prosecute a meaningful appeal
and thus did not violate due process on its face. In re S.N. (App. 11 Dist. 2009) 292 S.W.3d 807. Constitutional
Law        4403.5; Infants      132


Provision of statute, providing that general allegation that evidence is legally or factually insufficient to support
termination of parental rights will not preserve issue for appellate review, did not violate separation of powers
doctrine; statute did not preclude challenge to sufficiency of evidence, and thus, statute did not interfere with
core judicial function. In re J.S. (App. 11 Dist. 2009) 291 S.W.3d 60. Constitutional Law             2372; Infants
     132


Statute prohibiting appellate court from considering, on appeal from order terminating parental rights, any issue
that was not specifically presented to trial court in a timely filed statement of points on which party intends to
appeal, or in a statement combined with a motion for new trial, was not facially unconstitutional under due pro-
cess clause on ground that it required a party to address in its statement of points matters not found by the trial
court until after the deadline for filing the statement had expired; party who appealed termination where only al-
leged trial court error occurred prior to due date for filing statement of points would not have been required to
address in its statement matters found by court after expiration of due date, it was conceivable that where party
promptly requested findings of fact and conclusions of law court could file its findings and conclusions prior to
expiration of due date for statement of points, and court could grant party's motion to extend time for filing
statement of points for appeal. In re S.N. (App. 14 Dist. 2009) 287 S.W.3d 183. Constitutional Law         4403.5
; Infants       132


Statute barring Court of Appeals from considering, in mother's appeal of order terminating her parental rights,
an issue that was not specifically presented to the trial court in a statement of points filed 15 days after the final
order that mother had otherwise properly preserved for appeal, violated separation of powers provision of Texas
Constitution and thus was void; Court's judicial power in a termination case was conferred by Texas Constitu-
tion, legislature could not usurp Court's functions and powers, statute required statement of points to be filed be-
fore deadline for filing a motion for a new trial expired, and, rather than expediting the postjudgment and appel-
late process or allowing trial court to correct mistakes, statute created a duplicative procedural hurdle that did
not preserve error but merely guaranteed Department of Family and Protective Services an affirmance of all er-
rors not listed in the statement. In re D.W. (App. 2 Dist. 2008) 249 S.W.3d 625, review denied 260 S.W.3d 462.
Constitutional Law          2372; Infants     241




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V.T.C.A., Family Code § 263.405                                                                              Page 6




Statute requiring a party appealing from a final order for child under care of Department of Protective and Regu-
latory Services to file a statement of points the party intends to appeal within 15 days, and barring appellate
court from considering any issue that was not specifically presented to trial court in a timely filed statement of
points, violated procedural due process as applied to mother whose parental rights were terminated and who was
not appointed appellate counsel until after the 15-day deadline for filing statement of points had expired; mother
had compelling interest in meaningful appellate review, such review was lost because the 15-day deadline had
expired, and risk of erroneous deprivation was significant due to lack of safeguards. In re D.M. (App. 10 Dist.
2007) 244 S.W.3d 397. Infants         132; Infants      241


Because the Legislature has granted parents a statutory right to appeal from orders terminating parental rights,
this statutory right of appeal must comport with the Due Process Clause. In re D.M. (App. 10 Dist. 2007) 244
S.W.3d 397. Constitutional Law        4403.5


Risk of erroneous deprivation of parents' right to meaningful appellate review of order terminating parental
rights was significant, weighing in favor of determination that mother's procedural due process rights were viol-
ated by application of statute requiring parent to file a statement of points intended for appeal within 15 days of
termination order and barring appellate court from considering any issue that was not specifically presented to
trial court in a timely filed statement of points; although there were some existing procedural safeguards in
place, Legislature could amend statute to permit extension of 15-day period or add a requirement that parent be
given notice of the 15-day period. In re D.M. (App. 10 Dist. 2007) 244 S.W.3d 397. Constitutional Law
4403.5; Infants       132; Infants      241


Statute providing that trial court shall hold hearing not later than 30th day after date the final order terminating
parental rights is signed to determine whether new trial should be granted, party's claim of indigence should be
sustained, and whether appeal is frivolous for purposes of eligibility for free clerk's record and reporter's record
of the underlying trial applied equally to indigent and non-indigent parents and applied equally in termination
suits initiated by Texas Department of Family and Protective Services (TDFPS) and by private individuals, and
thus, statute did not violate equal protection or due process; both indigent and non-indigent appellants had the
equal right and opportunity to appeal a frivolousness finding. In re T.C. (App. 2 Dist. 2006) 200 S.W.3d 788.
Constitutional Law         3225; Constitutional Law          4403.5; Infants       132; Infants        211; Infants
      245


Statute barring appellate court from considering issues not specifically presented to trial court in a timely filed
statement of points intended for appeal of an order terminating parental rights did not facially violate equal pro-
tection or due process; while appellate counsel often had little to no background on what occurred at trial other
than information obtained from trial counsel or the client, these circumstances did not automatically result in de-
priving parents whose parental rights had been terminated of their due process and equal protection rights. In re
N.C.M. (App. 4 Dist. 2008) 271 S.W.3d 327. Constitutional Law             3739; Constitutional Law         4403.5;
Infants      132


  2. In general

Mother's failure to file a statement of points within 15 days of the date the final order was signed by the trial




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V.T.C.A., Family Code § 263.405                                                                                Page 7




court did not deprive the Court of Appeals of jurisdiction over mother's appeal, in appeal of termination of par-
ental rights order; jurisdiction was vested with the Court of Appeals by filing a timely notice of appeal, mother
timely filed a notice of appeal, and the purpose of the statements of points was to reduce postjudgment delays
and not to deprive the appellate court of jurisdiction. In re D.R.L.M. (App. 2 Dist. 2002) 84 S.W.3d 281, rehear-
ing overruled , review denied. Infants       241


Trial court could not order mother's payments of attorney's fees in termination of parental rights case upon find-
ing she was indigent, since statute permitting court to order partial payment of costs did not extend to attorney's
fees. In re H.R. (App. 4 Dist. 2002) 87 S.W.3d 691. Infants        212


Appellate court lacked jurisdiction to review mother's appeal from an order terminating her parental rights,
where notice of appeal was filed by mother more than 20 days after the final order terminating parental rights
was signed, and a timely motion to extend time period to appeal was not filed. In re J.A.G. (App. 7 Dist. 2002)
92 S.W.3d 539. Infants      244.1


A party's failure to include a particular point or points in the statement of points filed in the case of termination
of her parental rights does not waive her right to raise such points on appeal, as long as she complies with the
procedural requirement to file a statement of points and the appellee does not establish prejudice. In re W.J.H.
(App. 2 Dist. 2003) 111 S.W.3d 707, review denied. Infants           241


Statute providing for accelerated appeals applied to parents' appeal from order appointing maternal grandparents
joint managing conservators of child, and thus, appeal was untimely; although Department of Protective and
Regulatory Services (DPRS) dropped request for termination of parental rights, accelerated appeal rule applied
when DPRS requested conservatorship of child or termination of parental rights, suit started out as both, DPRS
remained in the suit after dropping the termination request, order qualified as final order within statute, and
policy-based and practical reasons, such as applying more specific statute and quickly resolving uncertainty for
family, supported application of accelerated appeal rules. In re A.J.K. (App. 14 Dist. 2003) 116 S.W.3d 165. In-
fants      244.1


The legislature intended that a parent whose parental rights have been terminated receive either: (1) a normal ac-
celerated appeal, unlimited by his statement of points, after a finding by the trial court that the appeal is not
frivolous, or (2) an appeal from the trial court's determination that the appeal is frivolous. In re S.J.G. (App. 2
Dist. 2003) 124 S.W.3d 237, rehearing overruled , review denied. Infants        132; Infants        242


Father's failure to file a statement of points on which he intended to appeal the termination of his parental rights
was not a jurisdictional defect, and thus did not waive his nonjurisdictional issues on appeal. In re S.J.G. (App. 2
Dist. 2003) 124 S.W.3d 237, rehearing overruled , review denied. Infants          241


Indigent father's appeal from order terminating his parental rights was not frivolous or without arguable basis
either in law or fact, so as to preclude entitlement to complete reporter's record and clerk's record for appeal; ter-
mination order found that father knowingly placed or knowing allowed children to remain in conditions that en-




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V.T.C.A., Family Code § 263.405                                                                                Page 8




dangered physical or emotional well-being, despite admission by attorney for Department of Protective and Reg-
ulatory Services that there was no evidence to show that father knew of mother's sexual activities or that chil-
dren were exposed to same, which provided statutory grounds for terminating father's parental rights. In re
H.D.H. (App. 9 Dist. 2004) 127 S.W.3d 921. Infants       246


Although partition suit leads to multiple appealable judgments, partition suit cannot be characterized as
“ongoing proceeding,” in same manner as probate, receivership, and termination of parental rights proceedings,
because partition suit results in two discrete, appealable judgments; thus, common law regarding partition suits
bears little, if any, applicability to appealability of order that terminates parental rights but leaves other parties
or claims for possible later resolution, beyond recognizing that not every legal proceeding is subject to one final
judgment rule. In re T.L.S. (App. 10 Dist. 2004) 143 S.W.3d 284, rehearing overruled. Infants            242


Policy behind “one final judgment” rule, that provides that only one final judgment shall be rendered in any
cause except where it is otherwise specially provided by law, does not apply in termination of parental rights
suits instituted by Department of Protective and Regulatory Services (DPRS), and thus mother was not pre-
cluded from appealing order that terminated her parental rights, but did not resolve issue of parental rights of
father, or of alleged father; legislature “fast tracked” appeals of termination of parental rights decrees, legis-
lature expressly prohibited direct or collateral challenge to such decrees after sixth months from date order was
signed, and, if court terminates parental rights and appoints Department of Protective and Regulatory Services
(DPRS) as managing conservator, suit is ongoing proceeding in that trial court is to conduct placement review
hearing at least every six months until date child is adopted or becomes adult. In re T.L.S. (App. 10 Dist. 2004)
143 S.W.3d 284, rehearing overruled. Infants         242


Statute on accelerated appeals of final order rendered in suit affecting parent-child relationship was express stat-
ute, for purposes of “one final judgment rule,” that provides that only one final judgment shall be rendered in
any cause except where it is otherwise specially provided by law, and thus decree that terminated mother's par-
ental rights was appealable, notwithstanding fact that decree did not resolve issue of parental rights of father, or
of alleged father. In re T.L.S. (App. 10 Dist. 2004) 143 S.W.3d 284, rehearing overruled. Infants        242


Associate judge's determination that parental rights should be terminated was not final order, and thus Family
Code provision governing appeals from final orders did not apply, where referring judge stated in its order that
setting aside parents' appeals from association judge's determination was final order in the case. In re T.S. (App.
14 Dist. 2006) 191 S.W.3d 736, review denied. Infants         242


Mother was not entitled to appellate review of order terminating parental rights, where she did not file statement
of points on which she intended to appeal or motion for new trial. In re C.B.M. (App. 8 Dist. 2006) 225 S.W.3d
703. Infants     241; Infants       243


Construing failure to timely file statement of points on appeal, in appeal from suit affecting parent-child rela-
tionship, as waiver of all non-jurisdictional appellate issues does not accomplish statutory goals of reducing
frivolous appeals and post-judgment delays. In re T.A.C.W. (App. 4 Dist. 2004) 143 S.W.3d 249, appeal decided
2004 WL 1835960. Infants         241




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V.T.C.A., Family Code § 263.405                                                                                Page 9




Appeal from order terminating parental rights was perfected by timely filing of notice of appeal, and late-filed
statement of points on appeal did not deprive Court of Appeals of jurisdiction. In re T.A.C.W. (App. 4 Dist.
2004) 143 S.W.3d 249, appeal decided 2004 WL 1835960. Infants         244.1


  2.5. Preemption

Provisions of Indian Child Welfare Act (ICWA), a federal law allowing postjudgment challenges to involuntary
parental termination proceedings regardless of whether issue was raised at trial, preempted state rules and stat-
utes regarding preservation of error in termination proceedings, and thus, mother's claim on appeal concerning
trial court's failure to follow the procedures set forth in ICWA could be raised for the first time on appeal. In re
J.J.C. (App. 10 Dist. 2009) 302 S.W.3d 896, appeal decided 2010 WL 1380123. Indians                  134(4); States
       18.28


  3. Due process

Statute governing appeals process in parental rights termination cases, requiring appellant parent to file a state-
ment of the point or points on which the parent intends to appeal within 15 days of trial court's entry of final or-
der, did not violate father's due process rights, absent indication as to what point of error father was unable to in-
clude in his notice of appeal on account of the statute's time restrictions. In re D.J.R. (App. 8 Dist. 2010) 2010
WL 23665, review denied. Constitutional Law            4403.5; Infants       132; Infants        241


Under procedural due process analysis, section of Family Code barring an appellate court from considering any
issue not presented to the trial court in a timely filed statement of points is unconstitutional as applied when it
precludes a parent from raising a meritorious complaint about the insufficiency of the evidence supporting an or-
der terminating parental rights. In re J.O.A. (Sup. 2009) 283 S.W.3d 336, on remand 2009 WL 1813134. Consti-
tutional Law       4403.5; Infants        132; Infants       241


Accelerated timetable for perfecting appeals under statute governing appeals in parental rights termination cases
violated due process rights of indigent father whose request for free appellate record was denied on account of
his untimely filing of statement of appellate points; father's request for appointment of appellate counsel was not
granted until after limitations period for perfecting appeal began to run, private interests affected by proceeding
and risk of error created by State's chosen procedure were significant, and unavailability of record to show
whether father was denied effective assistance without regard to merits of his arguments served no legitimate in-
terest. In re B.G. (Sup. 2010) 317 S.W.3d 250. Constitutional Law           4403.5; Infants      244.1


Statute requiring parent in a parental rights termination proceeding to present trial court with a statement of
points on which the parent intends to appeal within 15 days after signing of termination order and precluding ap-
pellate court from considering any issue that was not specifically presented to trial court in a timely filed state-
ment of points did not require indigent father to file a statement of points before preparation of reporter's record,
in violation of due process; father's appointed counsel did not ask for extension of time to file statement of
points in order to obtain reporter's record, and had time to discuss points presented at previous hearings with
father, mother's attorney, and children's attorney ad litem. In re S.N. (App. 11 Dist. 2009) 292 S.W.3d 807. Con-
stitutional Law       4403.5; Infants       241




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V.T.C.A., Family Code § 263.405                                                                               Page 10




Section of statute, requiring parent intending to appeal order termination parental rights to file statement of
points on which parent intends to appeal not later than fifteenth day after signing of final order, did not violate
mother's right to due process; although mother's counsel did not have reporter's record from previous hearings at
time statement of points were required to be filed, they were available for him to review in preparing mother's
brief in appeal, and 15-day deadline did not preclude mother from obtaining meaningful appellate review of or-
der terminating her parental rights. In re J.S. (App. 11 Dist. 2009) 291 S.W.3d 60. Constitutional Law
4403.5; Infants       132; Infants      241


Section of statute, providing that general allegation that evidence is legally or factually insufficient to support
termination of parental rights will not preserve issue for appellate review, did not violate mother's rights to pro-
cedural due process in proceeding to terminate parental rights; statute did not preclude challenge to legal and
factual sufficiency of evidence supporting termination. In re J.S. (App. 11 Dist. 2009) 291 S.W.3d 60. Constitu-
tional Law        4403.5; Infants      132; Infants       243


Statute prohibiting appellate court from considering, on appeal from order terminating parental rights, any issue
that was not specifically presented to trial court in a timely filed statement of points on which party intends to
appeal or in a statement combined with a motion for new trial did not violate due process as applied to father in
proceeding for termination of his parental rights; paragraph of decree clearly provided that father's paternity was
established as to one child only and made no mention of his paternity with regard to two others, and, thus, the
state did not require father to address an issue in his statement of points of which he was unaware prior to filing
it. In re S.N. (App. 14 Dist. 2009) 287 S.W.3d 183. Constitutional Law           4403.5; Infants      132; Infants
       241


When, in light of evidentiary support for termination of mother's parental rights, and mother's failure to present
nonfrivolous issue for appeal, indigent mother was not presented with a copy of the bench trial record for review
by her newly appointed counsel prior to statutory post-termination hearing on whether a new trial was warranted
or whether appeal would be frivolous, the lack of bench trial record was not a denial of mother's right to due
process, where mother's appointed counsel was present at the hearing and was able to identify the issues and the
evidence relating to each issues. In re M.L.B. (App. 9 Dist. 2008) 269 S.W.3d 757. Constitutional Law
4403.5; Infants      211; Infants       246


Due process did not require that a reporter's record of termination of parental rights trial be prepared for use by
parents' appellate counsel to prepare a statement of points for appeal in a case where appellate counsel did not
represent the parents at trial. In re A.F. (App. 9 Dist. 2008) 259 S.W.3d 303. Constitutional Law           4403.5;
Infants      246


Indigent father, as a matter of due process, was entitled to have court reporter file a transcription of all of the
evidence admitted at trial at no cost, in order for appellate court to review trial court's determination that father's
appeal from termination of parental rights was frivolous; father raised legal and factual insufficiency claims in
his grounds for appeal. In re S.T. (App. 10 Dist. 2008) 242 S.W.3d 923. Constitutional Law            4403.5; Infants
      245




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V.T.C.A., Family Code § 263.405                                                                              Page 11




  4. Equal protection

Except for the provisions relating to appointment of counsel, statute governing appeal from order of termination
of parental rights applies regardless of indigence, thus ameliorating the equal protection concerns that would
otherwise be present. In re A.F. (App. 9 Dist. 2008) 259 S.W.3d 303. Infants      245


  4.5. Separation of powers

Father's claim on appeal challenging, as unconstitutional on separation-of-powers grounds, statute governing
process of appealing orders terminating parental rights, specifically requiring a parent to file a statement of the
point or points on which the parent intends to appeal within 15 days of trial court's entry of final order, was re-
jected outright absent any indication in father's appellate brief as to which issues could not be raised on appeal
on account of the statute's time restrictions. In re D.J.R. (App. 8 Dist. 2010) 2010 WL 23665, review denied. In-
fants      241


  5. Purpose

The Texas Legislature unquestionably intended that the statutes governing appeals from matters affecting the
parent-child relationship yield just, fair, and reasonable results within the legislative goal of obtaining expedited
disposition of appeals. In re B.N. (App. 10 Dist. 2009) 303 S.W.3d 16, opinion after remand 2010 WL 3434214.
Infants      132


The accelerated procedure created by the legislature for parental rights termination cases is designed to meet the
goal of providing the child with a permanent home as quickly as possible. In re M.L.B. (App. 9 Dist. 2008) 269
S.W.3d 757. Infants       193


The statutory requirements for appeal of a final order for placement of a child with the Department of Protective
and Regulatory Services were enacted to reduce post-judgment delays and screen out frivolous appeals; reducing
post-judgment delays by avoiding meritless appeals plainly serves an underlying goal of termination proceed-
ings, to find permanence for a child. In re R.J.S. (App. 5 Dist. 2007) 219 S.W.3d 623, review denied. Infants
      244.1


Viewing family code provision governing parental-termination appeals as a whole, the apparent legislative intent
behind the statutory statement of points requirement is to give the trial court some way to determine whether an
appeal is frivolous and thereby eliminate unmeritorious parental-termination appeals. In re S.J.G. (App. 2 Dist.
2003) 124 S.W.3d 237, rehearing overruled , review denied. Infants          132


The legislature's intent in enacting family code provision governing appeals in child protection cases was to
provide a mechanism to reduce frivolous parental-termination appeals and to reduce post-judgment appellate
delays in parental-termination appeals. In re S.J.G. (App. 2 Dist. 2003) 124 S.W.3d 237, rehearing overruled ,
review denied. Infants       132




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V.T.C.A., Family Code § 263.405                                                                             Page 12




General purpose of statute allowing trial court to appoint appellate counsel in termination of parental rights pro-
ceeding, after it orders appealing party to file affidavit of indigency, and holds hearing within prescribed time
limits, is to the reduce post-judgment appellate delays, not to deprive an appellate court of jurisdiction. In re
M.G.D. (App. 14 Dist. 2003) 108 S.W.3d 508, review denied. Infants           245


  6. Counsel

Father could raise ineffective assistance of counsel claim for the first time on appeal from judgment terminating
his parental rights, notwithstanding the fact that trial counsel failed to assert it in his statement of appellate
points as required by statute. Valencia v. Texas Dept. of Family and Protective Services (App. 1 Dist. 2010)
2010 WL 457494, vacated , withdrawn and superseded 2010 WL 1240988, withdrawn and superseded 2010 WL
2991241, petition stricken. Infants       243


Father could raise ineffective assistance of counsel claim for the first time on appeal from judgment terminating
his parental rights, notwithstanding the fact that trial counsel failed to assert it in his statement of appellate
points as required by statute. Valencia v. Texas Dept. of Family and Protective Services (App. 1 Dist. 2009)
2009 WL 5064769, vacated , withdrawn and superseded 2010 WL 457494, withdrawn and superseded 2010 WL
1240988, withdrawn and superseded 2010 WL 2991241, petition stricken. Infants             243


An ineffective assistance of counsel claim can be raised on appeal from order terminating parental rights despite
the failure to include it in statutorily required statement of points. In re J.O.A. (Sup. 2009) 283 S.W.3d 336, on
remand 2009 WL 1813134. Infants             205; Infants      243


Father's trial counsel's performance in failing to file statutorily required statement of points, on appeal from or-
der terminating parental rights, was seriously deficient, as element of claim of ineffective assistance, where trial
counsel filed a notice of appeal simultaneously with his motion to withdraw and did nothing further, and father's
appellate counsel was not appointed until after the 15-day deadline to file the statement of points passed; failure
of father's trial counsel to file a statement of points on his behalf was neither strategic nor a concession to any
lack of perceived merit. In re J.O.A. (Sup. 2009) 283 S.W.3d 336, on remand 2009 WL 1813134. Infants
205


Indigent parent was entitled to effective assistance of counsel through the deadline date for filing a statement of
points on appeal from order terminating parental rights. In re J.O.A. (Sup. 2009) 283 S.W.3d 336, on remand
2009 WL 1813134. Infants          205; Infants      245


Mother did not demonstrate that the evidence adduced at trial was legally or factually insufficient to support the
termination of her parental rights, and under such circumstances, there was no harm as result of mother's coun-
sel's failure to file a statement of appellate points, and thus, counsel was not ineffective. Robinson v. Department
of Family and Protective Services (App. 1 Dist. 2010) 317 S.W.3d 410. Infants             205


Mother's counsel, in his professional opinion, could have believed the evidence in termination of parental rights
action legally and factually sufficient, such that a statement of appellate points was not warranted, and therefore,




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V.T.C.A., Family Code § 263.405                                                                              Page 13




it was necessary for mother, claiming ineffective assistance of counsel, to demonstrate on appeal not only that
her counsel failed to file a statement of appellate points, but that her counsel rendered deficient performance in
his failure to do so, and that she was harmed as a result of that deficient performance. Robinson v. Department
of Family and Protective Services (App. 1 Dist. 2010) 317 S.W.3d 410. Infants          205


When determining whether counsel was ineffective in a proceeding to terminate parental rights, appellate court
would indulge in the strong presumption that counsel's conduct fell within the wide range of reasonable profes-
sional assistance, including the possibility that counsel's decision not to challenge factual sufficiency of evid-
ence was based on strategy. Robinson v. Department of Family and Protective Services (App. 1 Dist. 2010) 317
S.W.3d 410. Infants        205


Trial court is authorized to determine whether to grant a motion to withdraw filed by appointed counsel in a par-
ental-rights termination case after an appeal has been perfected. In re M.V.G. (App. 10 Dist. 2009) 285 S.W.3d
573, opinion after remand 2010 WL 730366. Infants          244.1


Mother's appeal in State-initiated termination of parental rights proceedings would be abated for trial court to
consider appointed trial counsel's motion to withdraw in favor of other counsel whom trial court had appointed
for appeal. In re M.V.G. (App. 10 Dist. 2009) 285 S.W.3d 573, opinion after remand 2010 WL 730366. Infants
      244.1


Appellate review of father's claim of ineffective assistance of counsel in proceeding for termination of his par-
ental rights proceeding was statutorily barred, where father's claim did not appear in a statement of appellate
points filed with the trial court. In re R.M. (App. 4 Dist. 2007) 281 S.W.3d 456, review denied. Infants     241


Since evidence was not sufficient to show conduct endangering the physical or emotional well-being of the chil-
dren, which was a statutory ground for terminating parental rights, father's ineffective assistance of counsel
claim, alleging that counsel was ineffective for failing to file statement of points, raised a constitutional due pro-
cess claim, and to the extent that statute, providing that appellate court may not consider any issue that was not
specifically presented to the trial court in a timely filed statement of the points, prevented appellate court from
considering those claims, it was unconstitutional as applied to the facts of the case. In re J.O.A. (App. 7 Dist.
2008) 262 S.W.3d 7, rehearing overruled, rule 53.7(f) motion dismissed, affirmed as modified and remanded
283 S.W.3d 336, on remand 2009 WL 1813134. Infants               132; Infants      241


Not every failure by counsel to preserve error by filing a statement of points in termination of parental rights ac-
tion rises to the level of a due process violation; instead, that is specifically limited to the situation where trial
counsel has failed to timely file a statement of points raising a meritorious issue concerning legal or factual suf-
ficiency of the evidence. In re J.O.A. (App. 7 Dist. 2008) 262 S.W.3d 7, rehearing overruled, rule 53.7(f) motion
dismissed, affirmed as modified and remanded 283 S.W.3d 336, on remand 2009 WL 1813134. Constitutional
Law         4403.5


Where ineffective assistance of counsel has prevented a review of the sufficiency of the evidence in termination




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V.T.C.A., Family Code § 263.405                                                                                Page 14




of parental rights action, and a review of the sufficiency of the evidence reveals that there is a high probability
that a parent's rights have been erroneously terminated, then due process considerations (i.e., the Eldridge
factors) weigh in favor of a sufficiency analysis, notwithstanding a procedural impediment. In re J.O.A. (App. 7
Dist. 2008) 262 S.W.3d 7, rehearing overruled, rule 53.7(f) motion dismissed, affirmed as modified and re-
manded 283 S.W.3d 336, on remand 2009 WL 1813134. Constitutional Law               4403.5


If parents' counsel in termination of parental rights action unjustifiably fails to file a statement of points raising a
meritorious sufficiency of the evidence point, then such incompetency raises the risk of erroneous deprivation
too high, and the procedural rule governing preservation of error must give way to constitutional due process
considerations, and the Eldridge due process factors weigh in favor of review most in those situations where re-
view of sufficiency of evidence raises greatest concern for the potential of an erroneous deprivation of parental
rights. In re J.O.A. (App. 7 Dist. 2008) 262 S.W.3d 7, rehearing overruled, rule 53.7(f) motion dismissed, af-
firmed as modified and remanded 283 S.W.3d 336, on remand 2009 WL 1813134. Constitutional Law
4403.5; Infants        205; Infants      243


The parent's and the child's interests in ensuring that the decision to permanently extinguish the family bond is
an accurate and just decision weighs heavily in favor of permitting appellate review of that decision when assist-
ance of counsel in meeting the procedural prerequisites for appeal has been effectively denied. In re J.O.A.
(App. 7 Dist. 2008) 262 S.W.3d 7, rehearing overruled, rule 53.7(f) motion dismissed, affirmed as modified and
remanded 283 S.W.3d 336, on remand 2009 WL 1813134. Infants               244.1


Parents' trial attorneys' failure to ensure that statements of points were timely filed in termination of parental
rights action amounted to ineffective assistance; filing of a statement of points was a straightforward procedure
and was something that any competent trial counsel should know, and as result of their attorneys' inaction, par-
ents were deprived of their right to present a meritorious point of appeal. In re J.O.A. (App. 7 Dist. 2008) 262
S.W.3d 7, rehearing overruled, rule 53.7(f) motion dismissed, affirmed as modified and remanded 283 S.W.3d
336, on remand 2009 WL 1813134. Infants             205


Because parents' respective trial counsel had not been discharged or replaced on or before the deadline date for
the filing of a statement of points, they had a duty to file a timely statement of points in accordance with the law.
In re J.O.A. (App. 7 Dist. 2008) 262 S.W.3d 7, rehearing overruled, rule 53.7(f) motion dismissed, affirmed as
modified and remanded 283 S.W.3d 336, on remand 2009 WL 1813134. Infants                   205; Infants     241


A parent's right to appointed counsel on appeal in termination of parental rights case is based solely upon a de-
termination of indigence and is not affected by the trial court's determination that an appeal would be frivolous.
In re A.F. (App. 9 Dist. 2008) 259 S.W.3d 303. Infants        245


Indigent appellant in termination-of-parental-rights case has a statutory right to appointed counsel, which in-
cludes the right to effective assistance of counsel on appeal. In re D.M. (App. 10 Dist. 2007) 244 S.W.3d 397.
Infants      245




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V.T.C.A., Family Code § 263.405                                                                              Page 15




Statute barring appellate court, in termination of parental rights case, from considering issues not presented to
trial court in statement of points for appeal or in a statement combined with a motion for new trial applies to
claims relating to ineffective assistance of counsel at trial. In re S.M.T. (App. 9 Dist. 2007) 241 S.W.3d 650. In-
fants       241


Mother whose parental rights were terminated failed to overcome presumption that counsel's conduct in failing
to file a statement of points for appeal fell within wide range of reasonable professional assistance, as element of
ineffective assistance of counsel claim; she was aware of her right to appeal and her right to appellate counsel,
and did not inform trial counsel that she wanted to appeal until after the time for filing a statement of points for
appeal had expired. In re S.M.T. (App. 9 Dist. 2007) 241 S.W.3d 650. Infants          205


An indigent person challenging termination of his parental rights has a statutory right to appointed counsel to
represent him in an appeal challenging a court's determination that his appeal is frivolous. In re S.T. (App. 10
Dist. 2007) 239 S.W.3d 452, opinion after remand 242 S.W.3d 923. Infants        245


The statutory right of an indigent parent to counsel in a termination of parental rights case gives rise to the con-
stitutional considerations of due process in the administration of the right and the right to constitutionally effect-
ive counsel; just as it would seem a useless gesture to require appointment of trial counsel not required to per-
form effectively, it would be useless to require appointment of appellate counsel without requiring that counsel
to be effective. In re S.K.A. (App. 6 Dist. 2007) 236 S.W.3d 875, rehearing overruled , review denied 260
S.W.3d 463. Constitutional Law         4403.5; Infants       205; Infants       245


To obtain the assistance of counsel in a termination of parental rights case, all the statute on the right to counsel
requires of an indigent parent is to respond in opposition. In re S.K.A. (App. 6 Dist. 2007) 236 S.W.3d 875, re-
hearing overruled , review denied 260 S.W.3d 463. Infants         205


Father's general assertions that appellate counsel was not appointed until after the passing of deadline for filing
statement of points with trial court did not compel conclusion that father's right to appeal judgment terminating
his parental rights was precluded by appellate court's application of statutory bar to preclude consideration of is-
sues not presented in a timely-filed statement of points. Pool v. Texas Dept. of Family & Protective Services
(App. 1 Dist. 2007) 227 S.W.3d 212, rehearing overruled. Infants         241


Trial counsel's failure, following judgment terminating mother's parental rights, to file a statement of points on
appeal did not constitute ineffective assistance; mother was able to pursue her appeal and appellate court ad-
dressed her factual sufficiency points in assessing her claim of ineffective assistance. Doe v. Brazoria County
Child Protective Services (App. 1 Dist. 2007) 226 S.W.3d 563. Infants        205


Trial court did not abuse its discretion in granting mother's motion for appointment of appellate counsel to rep-
resent her in termination of parental rights proceeding, though trial court did not order her to file affidavit set-
ting out details of her indigency, and did not hold hearing on motion within 30 days of its final order, as required
by statute; mother's testimony at hearing proved her indigency, and Children's Protective Services (CPS) failed




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V.T.C.A., Family Code § 263.405                                                                              Page 16




to show how it was harmed by absence of affidavit or court's failure to hold hearing within 30 days of final or-
der. In re M.G.D. (App. 14 Dist. 2003) 108 S.W.3d 508, review denied. Infants       245


Mother warranted appointed counsel on appeal of order terminating her parental rights, where trial court had de-
termined that mother was indigent when it appointed counsel for mother in original action and when it later sus-
tained mother's affidavit of indigence, mother's previously-appointed counsel filed motion for new trial, state-
ment of appellate points, and notice of appeal, thereby representing to appellate court that he was mother's coun-
sel on appeal, record contained no order allowing mother's appointed counsel to withdraw as attorney of record,
and accelerated nature of appeal from parental rights termination placed mother's trial counsel in position of be-
ing her appellate counsel. In re H.R. (App. 4 Dist. 2002) 87 S.W.3d 691. Infants        205


Father who sought to appeal order terminating his parental rights failed to establish indigent status required for
appointment of appellate counsel; although father's affidavit of indigence stated he was incarcerated and had no
employment income, affidavit contained no information regarding other income, assets, debts, or expenses, and,
at indigence hearing, State presented evidence showing that father received $1,498.00 per month in military re-
tirement benefits, from which $83.75 was deducted for payment of child support. In re E.E.R. (App. 4 Dist.
2004) 2004 WL 431480, Unreported, rehearing overruled. Infants          245


An attorney appointed to represent an indigent parent whose parental rights have been terminated and who be-
lieves the appeal is frivolous faces the same dilemma as counsel appointed in a criminal case, that is, he is ethic-
ally bound both to competently and zealously represent his client and to not to file a frivolous pleading, and may
not withdraw from representation without leave of court. In re R.R. (App. 4 Dist. 2003) 2003 WL 21157944,
Unreported. Infants        245


  6.25. Indigent persons

An appellant's unsworn statement of indigence, filed in the context of a suit affecting the parent-child relation-
ship, does not satisfy the requirements for an affidavit of indigency that it be sworn to before an officer author-
ized to administer oaths, and officially certified to by the officer under his seal of office. In re B.N. (App. 10
Dist. 2009) 303 S.W.3d 16, opinion after remand 2010 WL 3434214. Infants            245


  6.5. Jurisdiction of trial court

A trial court's plenary jurisdiction ends by statute on the thirty-sixth day after judgment in a parental-rights ter-
mination case. In re M.V.G. (App. 10 Dist. 2009) 285 S.W.3d 573, opinion after remand 2010 WL 730366. In-
fants      196


  7. Statement of points

Appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed
statement of points in parental rights termination proceeding. In re Z.J.C. (App. 10 Dist. 2009) 2009 WL
2179976. Infants      241




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V.T.C.A., Family Code § 263.405                                                                              Page 17




Burden of filing statement of points on appeal from order terminating parental rights fell on father's trial coun-
sel, where trial counsel filed a notice of appeal simultaneously with his motion to withdraw, and father's appel-
late counsel was not appointed until after the 15-day deadline to file the statement of points passed. In re J.O.A.
(Sup. 2009) 283 S.W.3d 336, on remand 2009 WL 1813134. Infants              245


At the end of the final order terminating parental rights, trial courts should alert parents to the requirement that a
statement of points on which a party intends to appeal be filed with the trial court within 15 days of the termina-
tion order. In re J.O.A. (Sup. 2009) 283 S.W.3d 336, on remand 2009 WL 1813134. Infants                221


In parental rights termination cases in which Texas Department of Family and Protective Services (TDFPS) is a
party, the trial court's final order is subject to the requirement, for appeal from the order, that a party intending
to appeal the order must file with the trial court a statement of the point or points on which the party intends to
appeal. In re M.D. (App. 5 Dist. 2007) 2007 WL 1310966. Infants             241


Court of Appeals considering appeal in termination of parental rights action would consider mother's conten-
tions that evidence did not support termination and that jury charge was overly broad and violated her due pro-
cess rights, even though mother did not raise the sufficiency of the evidence contention in her statement of
points on appeal and only stated in her statement of “possible points of error for appellate review” that the jury
charge did not support the termination order. In re T.M.J. (App. 9 Dist. 2010) 315 S.W.3d 271. Infants       241


Statements of points on appeal filed by mother and father in termination-of-parental-rights proceeding were not
sufficiently specific to preserve for appellate review the parents' challenges to the legal and factual sufficiency
of the evidence to support trial court's findings of statutory grounds for termination that they constructively
abandoned child, failed to comply with provisions of court order establishing actions necessary for return of the
child, and used a controlled substance in manner that endangered health or safety of child, where statements al-
leged only that there was “no evidence to support the [trial court's] ruling” and that there was legally and factu-
ally insufficient evidence to support the trial court's ruling “on both grounds for termination.” In re J.J.C. (App.
14 Dist. 2009) 302 S.W.3d 436, rehearing overruled , review denied. Infants          241


A statement of points on which a party to a parental rights termination proceeding intends to appeal is specific
enough when it allows the trial court to correct any erroneous findings on the challenged grounds. In re S.N.
(App. 11 Dist. 2009) 292 S.W.3d 807. Infants       241


In a termination of parental rights proceeding, specific, nonglobal claims of evidentiary insufficiency set out in a
statement of points are not precluded from review. In re J.S. (App. 11 Dist. 2009) 291 S.W.3d 60. Infants
241


Those points of error not listed in the statement of points for appeal, from a proceeding terminating parental
rights, filed subsequent to the trial de novo, may not be considered by the Court of Appeals. In re K.C.B. (App.
7 Dist. 2009) 280 S.W.3d 888, rehearing overruled , review denied. Infants       241




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V.T.C.A., Family Code § 263.405                                                                              Page 18




Mother's failure to timely file a statement of points with trial court, either standing alone or combined with a
motion for a new trial, precluded Court of Appeals from considering issues that mother attempted to raise in her
appellate brief concerning sufficiency of evidence supporting termination of her parental rights. Bermea v.
Texas Dept. Of Family And Protective Services (App. 1 Dist. 2008) 265 S.W.3d 34, review denied 264 S.W.3d
742. Infants      241


A statement of points on which a party intends to appeal is timely filed with the trial court, for purposes of Fam-
ily Code's expedited procedures for bringing appeals in cases in which children are under the care of the Depart-
ment of Family and Protective Services, where the statement is filed beyond the 15-day time limit after the date
a final order is signed by the trial judge, but it is filed within an extended time period granted for good cause by
the trial court and before the 30-day hearing required by the Family Code, at which hearing, not later than 30
days after the date the final order is signed, trial court determines whether new trial should be granted, where
party's claim of indigence, if any, should be sustained, and whether the appeal is frivolous. In re M.N. (Sup.
2008) 262 S.W.3d 799, on remand 2009 WL 39090. Infants                 241


Because trial court order did not terminate father's parental rights as to child, a review of the court's order was
not preserved for appeal because father failed to file a timely statement of points, as required by law. In re
J.O.A. (App. 7 Dist. 2008) 262 S.W.3d 7, rehearing overruled, rule 53.7(f) motion dismissed, affirmed as modi-
fied and remanded 283 S.W.3d 336, on remand 2009 WL 1813134. Infants               241


A review of trial court's order terminating mother's parental rights was not preserved for appeal because mother
failed to file a timely statement of points, as required by law, and mother's ineffective assistance of counsel
claims, alleging that counsel was ineffective for failing to file statement of points, did not raise a constitutional
due process claim warranting review notwithstanding failure to file timely statement of points; because children
both tested positive for controlled substances at the time of their birth, the risk of an erroneous deprivation of
mother's parental rights was slight from a sufficiency of the evidence perspective. In re J.O.A. (App. 7 Dist.
2008) 262 S.W.3d 7, rehearing overruled, rule 53.7(f) motion dismissed, affirmed as modified and remanded
283 S.W.3d 336, on remand 2009 WL 1813134. Infants              241


Because trial court order, naming a relative of the children as their managing conservator, did not terminate
mother's parental rights, a review of the trial court's order was not preserved for appeal because mother failed to
file a timely statement of points, as required by law. In re J.O.A. (App. 7 Dist. 2008) 262 S.W.3d 7, rehearing
overruled, rule 53.7(f) motion dismissed, affirmed as modified and remanded 283 S.W.3d 336, on remand 2009
WL 1813134. Infants          241


Because a statement of points was a procedural prerequisite for appellate review, the deadline date for filing a
statement of points was a critical stage of the proceeding, and accordingly, parents were entitled to effective as-
sistance of counsel in termination of parental rights action through the deadline date for filing a statement of
points. In re J.O.A. (App. 7 Dist. 2008) 262 S.W.3d 7, rehearing overruled, rule 53.7(f) motion dismissed, af-
firmed as modified and remanded 283 S.W.3d 336, on remand 2009 WL 1813134. Infants               205


The failure to timely file a statement of points does not deprive the appellate court of jurisdiction over the ap-




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V.T.C.A., Family Code § 263.405                                                                                 Page 19




peal; however, it is a procedural prerequisite to the appellate court's authority to consider any issue presented. In
re J.O.A. (App. 7 Dist. 2008) 262 S.W.3d 7, rehearing overruled, rule 53.7(f) motion dismissed, affirmed as
modified and remanded 283 S.W.3d 336, on remand 2009 WL 1813134. Appeal And Error                    758.1


Parents were required to file a statement of points when appealing from trial court order involuntarily terminat-
ing their parental rights and appointing the Department of Protective and Regulatory Services as managing con-
servator of children, and, because parents failed to file a statement of points, parents' points were not preserved
for review, but, nonetheless, appellate court would proceed to consider parents' constitutional challenge contend-
ing that their federal and state due process right to effective assistance of counsel was violated by their attorneys'
failure to file a statement of points. In re J.O.A. (App. 7 Dist. 2008) 262 S.W.3d 7, rehearing overruled, rule
53.7(f) motion dismissed, affirmed as modified and remanded 283 S.W.3d 336, on remand 2009 WL 1813134.
Infants       241


The points for appeal required by statute in termination of parental rights cases serve to promptly bring revers-
ible error to the attention of the trial court and to assist the trial court in determining whether the appeal is frivol-
ous. In re A.F. (App. 9 Dist. 2008) 259 S.W.3d 303. Infants              241


Rule 2 of the Rules of Appellate Procedure could not be used to suspend statement of points requirements in
mother's appeal of order terminating her parental rights, as the statement of points requirements were established
by statute and the Rule applied only to suspend appellate rules not statutes, and Rule 2 did not provide for retro-
active suspension of a rule governing events that had already occurred. In re D.W. (App. 2 Dist. 2008) 249
S.W.3d 625, review denied 260 S.W.3d 462. Infants           241


Father whose parental rights were terminated failed to preserve error on the issues presented in his appellate
brief, where he did not file a timely statement of points on which he intended to appeal. In re S.M.T. (App. 9
Dist. 2007) 241 S.W.3d 650. Infants        241


Father was not required to file statement of points in trial court within 15 days of parental rights termination or-
der, where termination case was not brought by state; requirement did not apply to private termination proceed-
ing. In re J.R.S. (App. 2 Dist. 2007) 232 S.W.3d 278. Infants        241


Appellate court could not consider mother's issues on appeal from termination of parental rights, where mother's
statement of points was untimely filed. In re T.R.F. (App. 10 Dist. 2007) 230 S.W.3d 263, review denied. Infants
     241


Fact that parents appealing a termination of parental rights order in proceedings involving the Texas Department
of Family and Protective Services (TDFPS) were statutorily required to file a statement of points appealed,
while parents involved in private termination suits avoided additional appeal requirement of statement of points,
did not violate mother's equal protection rights, despite mother's contention that parents involved in TDFPS ter-
mination cases were more likely to be indigent; all parents involved in a TDFPS termination suit, whether indi-
gent or not, faced the same appeal requirements. In re R.J.S. (App. 5 Dist. 2007) 219 S.W.3d 623, review




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V.T.C.A., Family Code § 263.405                                                                              Page 20




denied. Constitutional Law        3739; Infants       132; Infants       241


“Presenting” the statement of points for appeal to the trial court requires both timely filing the statement andre-
questing a hearing. In re R.J.S. (App. 5 Dist. 2007) 219 S.W.3d 623, review denied. Infants         241


On appeal from trial court's order terminating her parental rights, mother failed to present, to the trial court, a
statement of points that she intended to appeal, and thus the Court of Appeals was precluded from considering
her issues; nothing in the record showed that the statements of what appellant desired to appeal, contained in the
notice of appeal, were considered by the trial court, and there was no evidence that a hearing was conducted. In
re R.J.S. (App. 5 Dist. 2007) 219 S.W.3d 623, review denied. Infants       241


Appellate court could not consider issues raised by biological mother on appeal from trial court's final order ap-
pointing Department of Family and Protective Services as permanent managing conservator of her child, where
mother did not file with trial court a statement of points on which she intended to appeal or a motion for new tri-
al. In re C.M. (App. 14 Dist. 2006) 208 S.W.3d 89. Infants        241; Infants       243


Mother was required to present a statement of point or points on which she intended to appeal, on appeal from
trial court judgment terminating parental rights to her minor child, under statute governing appeals from place-
ment of children under care of Department of Protective and Regulatory Services, and in absence of statement of
points, no contention of error was raised that Court of Appeal could consider on appeal. In re S.E. (App. 4 Dist.
2006) 203 S.W.3d 14, rehearing overruled. Infants        241


The Court of Appeals lacked jurisdiction to review mother's claims on appeal from order terminating parental
rights, where mother did not file statement of points on which she intended to appeal. In re E.A.R. (App. 10
Dist. 2006) 201 S.W.3d 813. Infants      241


Appeal from termination of mother's parental right was not required to be dismissed because mother failed to
file statement of points as statement of points was not required on date appeal was filed. In re D.S. (App. 2 Dist.
2005) 176 S.W.3d 873. Infants         247


  8. Sufficiency of argument

Father's bare allegation that statute governing appeals of final orders in termination of parental rights actions un-
constitutionally limited the appellate issues which could be considered was insufficient to raise constitutional is-
sue on appeal, where father did not identify any issue which he had been prevented by the statute from present-
ing to appellate court for review. In re M.V.G. (App. 10 Dist. 2010) 2010 WL 730366. Infants            241


In considering motions for new trial by fathers whose parental rights had been terminated, trial court did not ab-
use its discretion in determining points raised were frivolous, where fathers did not summarize for trial court
where evidence was missing or insufficient to sustain trial court's findings, and Department of Protective and
Regulatory Services reminded court that both fathers had a long history of criminal behavior and imprisonment.




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V.T.C.A., Family Code § 263.405                                                                             Page 21




In re A.M.R. (App. 4 Dist. 2003) 2003 WL 21467518, Unreported. Infants            211


Mother's appeal of termination of her parental rights was frivolous, for purposes of entitlement to free transcript
and statement of facts, where she signed an affidavit of voluntary relinquishment of her parental rights, she did
not sign affidavit at time two state employees were allegedly pressuring her to sign it, but much later, after being
fully advised by her attorney, her attorney agreed to withhold the affidavit until the day of trial, and mother had
voluntarily relinquished parental rights to five other children, indicating experience with the process. In re
A.M.R. (App. 4 Dist. 2002) 2002 WL 31830482, Unreported. Infants            245


  9. Waiver

Family code provision providing that appellate court may not consider any issue not specifically included in a
timely filed statement of points of error on which party intends to appeal was procedural, rather than jurisdic-
tional, and thus mother's failure to challenge trial court's extension of statutory deadline in her statement of
points waived that issue on appeal of parental rights termination proceeding. In re J.H.G. (Sup. 2010) 302
S.W.3d 304, on remand 313 S.W.3d 894. Infants          241; Infants      243


Issue as to whether statute governing appeals in termination of parental rights proceedings violated separation-
of-powers doctrine in dictating the manner in which parents were required to raise certain challenges on appeal
was not reviewed on the merits, where mother failed to identify any issue that escaped appellate review by virtue
of statute. M.C. v. Texas Dept. of Family and Protective Services (App. 8 Dist. 2009) 300 S.W.3d 305, review
denied. Infants      241


Whether statute precluding appellate court from considering any issue that was not specifically presented to trial
court in a timely filed statement of points in a parental rights termination case violated separation of powers doc-
trine in the state constitution was waived on appeal, where parent did not list the issue in his statement of points
on which he intended to appeal. In re S.N. (App. 11 Dist. 2009) 292 S.W.3d 807. Infants            241


Mother did not waive her right to appeal denial of her motion to dismiss parental rights termination proceeding
by not including issue in her statement of points; mother's issue did not involve terms of final order, but rather,
related to trial court's ability to retain case after dismissal date, and objections to subject matter jurisdiction
could not be waived. In re JHG (App. 5 Dist. 2009) 290 S.W.3d 400, petition stricken, review granted , reversed
302 S.W.3d 304, on remand 313 S.W.3d 894. Infants            241


Father waived for appellate review, on appeal from termination of parental rights, claim that trial court abused
its discretion by excluding testimony of his designated expert on adoption and sibling issues, where father failed
to specifically present issue to trial court in timely filed statement of appellate points or in such statement com-
bined with his motion for new trial. In re T.T. (App. 14 Dist. 2007) 228 S.W.3d 312, review denied. Infants
241; Infants       243


On appeal from termination of their parental rights, mother and father did not waive or forfeit any issues by not
including them in their statements of points on appeal. In re S.P. (App. 5 Dist. 2005) 168 S.W.3d 197, rehearing




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V.T.C.A., Family Code § 263.405                                                                              Page 22




overruled. Infants      241


Mother's failure to file a statement of points pursuant to appeal from termination of parental rights did not con-
stitute a waiver of her nonjurisdictional issues on appeal. In re J.J.O. (App. 2 Dist. 2004) 131 S.W.3d 618. In-
fants      241


Mother and father preserved for appellate review their claim that evidence was factually insufficient to support
termination of their parental rights, where mother and father filed a statement of points on which they intended
to appeal, in which they included allegation that the evidence was factually insufficient to support the jury's ver-
dict. Smith v. Texas Dept. of Protective and Regulatory Services (App. 3 Dist. 2003) 2003 WL 22096141, Unre-
ported. Infants      241


Mother failed to preserve for appellate review issues of whether termination of parental rights proceedings were
rendered fundamentally unfair by implication that she behaved improperly in failing to follow instructions of
Department of Protective and Regulatory Services, when its explicit goal was to terminate her parental rights,
and whether Department's alleged “cavalier” behavior toward her violated her constitutional rights; record con-
tained no copy of either of the Department's service plans for review, mother failed to object on these grounds in
trial court, and mother's argument failed to show how alleged unfairness would undermine judicial consequences
of jury verdict. In re T.C. (App. 7 Dist. 2003) 2003 WL 21658314, Unreported. Infants           241; Infants
243; Infants       246


  10. Notice

No separate notice of appeal was required, in proceedings to terminate father's parental rights, for perfection of
appeal of trial court's determinations that father was not indigent and that his appeal was frivolous, since statute
governing termination of parental rights plainly set forth the requirements for appeal of such rulings. In re S.T.
(App. 10 Dist. 2007) 239 S.W.3d 452, opinion after remand 242 S.W.3d 923. Infants            244.1


  11. Timeliness

Appellate review of father's claims of error in termination of parental rights proceeding was statutorily barred,
where father failed to present such claims in a timely filed statement of points or motion for new trial. Pool v.
Texas Dept. of Family & Protective Services (App. 1 Dist. 2006) 2006 WL 3628911, withdrawn and superseded
on denial of rehearing 227 S.W.3d 212, rehearing overruled. Infants       243


Where father filed his statement of points thirteen days after trial court entered the final termination of parental
rights order, the statement of points was timely as it filed within the fifteen day statutory deadline. D.R. v. Texas
Dept. of Family and Protective Services (App. 8 Dist. 2008) 281 S.W.3d 598. Infants            244.1


Mother had good cause for her failure to timely file with trial court, under Family Code's expedited procedures
for bringing appeals in cases in which children are under care of Department of Family and Protective Services,
her statement of points on which she intended to appeal, with respect to termination of her parental rights, and




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V.T.C.A., Family Code § 263.405                                                                              Page 23




thus, trial court could grant extension of time for filing the statement; mother's counsel mis-calendared the time
for post-trial filings by mistakenly using date that counsel received trial court's final order to calculate the last
date for filing the statement of points instead of using the date the order was signed, mother at all times desired
to appeal, counsel's filing of statement of points was timely according to erroneously-calendared deadline, and
Department did not claim that five-day-late filing of statement of points prejudiced or could have prejudiced any
party. In re M.N. (Sup. 2008) 262 S.W.3d 799, on remand 2009 WL 39090. Infants              241


Late request for preparation of clerk's record was not deliberate so as to preclude review of frivolous appeal
finding regarding appeal from termination of father's parental rights; trial counsel explained that she did not un-
derstand jurisdictional and procedural implications of timely filing clerk's record, and appellate counsel ob-
served that father could have reasonably inferred that preparation and filing would occur without further action
on his part. In re S.T. (App. 10 Dist. 2008) 242 S.W.3d 923. Infants        246


The Court of Appeals lacked jurisdiction to review merits of mother's appeal from order signed by associate
judge terminating parental rights, where mother, following subsequent trial de novo, did not file Statement of
Points of Error to Be Relied On within 15 days after entry of final order. In re K.C.B. (App. 7 Dist. 2007) 240
S.W.3d 454, rehearing overruled , review granted , reversed 251 S.W.3d 514, on remand 280 S.W.3d 888, re-
view denied. Infants      241


Father who failed to file his request for preparation of the clerk's record within 10 days of judgment terminating
his parental rights would be required to file with the appellate court a brief or other response providing a reason-
able explanation for the late filing, or his appeal would be dismissed. In re S.T. (App. 10 Dist. 2007) 239 S.W.3d
452, opinion after remand 242 S.W.3d 923. Infants          241; Infants       246


Mother, who failed to file a separate statement of points on appeal within 15 days of the date of termination or-
der, as required by statute, failed to preserve for appellate review all issues set forth challenging termination of
her parental rights, even though mother included a statement of points on appeal in her trial court motion for
new trial, and trial court granted extension within which mother had to file her statement of points on appeal; the
trial court was without authority to grant such an extension. In re M.N. (App. 11 Dist. 2007) 230 S.W.3d 248,
rehearing overruled , review granted , reversed 262 S.W.3d 799, on remand 2009 WL 39090. Infants              241


Father's failure to timely file a statement of points with trial court, either standing alone or combined with a mo-
tion for a new trial, precluded appellate court from considering issues that father attempted to raise in his appel-
late brief concerning sufficiency of evidence supporting termination of his parental rights. Pool v. Texas Dept.
of Family & Protective Services (App. 1 Dist. 2007) 227 S.W.3d 212, rehearing overruled. Infants            241


Mother's notice of accelerated appeal from termination of her parental rights was timely filed, more than 20 days
after entry of original final judgment but only three days after signing of corrected judgment, despite agency's
contention that modification was undertaken solely to extend mother's time to file notice of accelerated appeal,
where trial court retained plenary power jurisdiction to modify and correct its judgment at time it entered correc-
ted judgment, and modifications included necessary revisions, corrections, additions and deletions. In re J.L.
(Sup. 2005) 163 S.W.3d 79, rehearing denied, on remand 2006 WL 3803707. Infants             244.1




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V.T.C.A., Family Code § 263.405                                                                             Page 24




On appeal from order terminating his parental rights, father's untimely filing of statement of points, absent
grounds to consider any issue that was not raised in a timely filed statement of points, rendered Court of Appeals
unable to review the issues on appeal on the merits. In re W.R.D. (App. 10 Dist. 2008) 2008 WL 5174549, Unre-
ported. Infants      242


  12. Frivolous appeal

In determining whether an appeal is frivolous, the trial judge may consider whether the appellant has presented a
substantial question for appellate review. In re S.M. (App. 4 Dist. 2008) 2008 WL 5423138, Unreported, opinion
after remand 2009 WL 1617772. Costs            260(4)


Mother's appeal of appointment of Department of Family and Protective Services as managing conservator for
children on ground that court was required to appoint her as a possessory conservator was not frivolous, where
trial judge intended to appoint mother as possessory conservator and advocated an immediate increase in moth-
er's visitation rights, but judge who presided over hearing to determine whether appeals would be frivolous did
not follow trial judge's intentions. In re S.M. (App. 4 Dist. 2008) 2008 WL 5423138, Unreported, opinion after
remand 2009 WL 1617772. Infants            248.1


Mother's appeal of judgment terminating her parental rights was frivolous, and thus, mother was not entitled to
free record of termination proceeding for purpose of appeal; issues complained of on appeal of frivolousness
finding, pointing to purported delays in appointment of counsel, ineffective assistance of counsel, and suffi-
ciency of evidence, were not supported by record on appeal, and basis of her constitutional challenge against ter-
mination of parental rights proceedings in general was unclear. In re K.D. (App. 2 Dist. 2005) 2005 WL
1693549, opinion withdrawn 2005 WL 2008466, on rehearing 202 S.W.3d 860. Infants             245


Department of Family and Protective Services did not waive the issue of whether father's proposed appeal from
termination of parental rights was frivolous by failing to present evidence at the frivolousness hearing; at the
frivolousness hearing, Department expressly relied on the trial evidence, Department was not required to repeat
the previously offered trial evidence at the frivolousness hearing, trial court also considered the proceedings at
trial, and trial court was required by statute to determine whether the proposed appeal was frivolous, regardless
of whether Department presented argument or evidence. In re J.J.C. (App. 14 Dist. 2009) 302 S.W.3d 436, re-
hearing overruled , review denied. Infants        243


When a termination-of-parental-rights order contains a finding that parent's proposed appeal is frivolous, the
Court of Appeals construes the parent's appeal from the termination order to encompass a challenge to the frivol-
ousness finding even when the parent does not specifically assign error to that finding. In re J.J.C. (App. 14 Dist.
2009) 302 S.W.3d 436, rehearing overruled , review denied. Infants        248.1


Appellate court reviews for an abuse of discretion a trial court's finding that an appeal of an order terminating
parental rights is frivolous. M.C. v. Texas Dept. of Family and Protective Services (App. 8 Dist. 2008) 300
S.W.3d 300, appeal decided 300 S.W.3d 305, review denied. Infants          251




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V.T.C.A., Family Code § 263.405                                                                              Page 25




An appeal is “frivolous,” for purposes of statute requiring trial court to determine whether appeal from order ter-
minating parental rights is frivolous, when it lacks an arguable basis in law or in fact. M.C. v. Texas Dept. of
Family and Protective Services (App. 8 Dist. 2008) 300 S.W.3d 300, appeal decided 300 S.W.3d 305, review
denied. Infants      248.1


Mother's appeal of order terminating her parental rights was not “frivolous,” such that appellate review of order
was warranted, as mother challenged constitutionality of statute permitting trial court, rather than appellate
court, to determine whether her appeal was frivolous, another appellate court had held that this statute was un-
constitutional, such that mother's constitutional arguments had arguable basis in law, and mother's other consti-
tutional arguments raised substantial questions that warranted review on the merits. M.C. v. Texas Dept. of Fam-
ily and Protective Services (App. 8 Dist. 2008) 300 S.W.3d 300, appeal decided 300 S.W.3d 305, review denied.
Infants       248.1


Appellate court's duty to review trial court's finding that mother's appeal of order terminating her parental rights
was frivolous was not dependent on adequacy of mother's briefing of issue; mother was not required to file a
brief with respect to frivolousness finding, and it was appellate court's duty to render appropriate orders after re-
viewing records and appellate briefs, if any. M.C. v. Texas Dept. of Family and Protective Services (App. 8
Dist. 2008) 300 S.W.3d 300, appeal decided 300 S.W.3d 305, review denied. Infants                241; Infants
248.1


Father's appeal challenging constitutionality of statute governing appeals of final orders in termination of parent-
al rights cases was not “frivolous” for purposes of statute permitting free transcript of statement of facts on ap-
peal in termination of parental rights case if indigent appeal is not frivolous; one court of appeals had already
held that one provision of the statute was unconstitutional because it violated the separation of powers clause of
the Texas Constitution, and thus, father's constitutional challenge had an arguable basis in law. D.R. v. Texas
Dept. of Family and Protective Services (App. 8 Dist. 2008) 281 S.W.3d 598. Infants           245


Appellate court reviews under an abuse of discretion standard trial court's determination that indigent party's ap-
peal from a termination of parental rights order is frivolous for purposes of statute permitting free transcript of
statement of facts on appeal if indigent appeal is not frivolous. D.R. v. Texas Dept. of Family and Protective
Services (App. 8 Dist. 2008) 281 S.W.3d 598. Infants        248.1


An appeal is “frivolous” when it lacks an arguable basis in law or in fact for purposes of statute permitting free
transcript of statement of facts on appeal in termination of parental rights case if indigent appeal is not frivolous.
D.R. v. Texas Dept. of Family and Protective Services (App. 8 Dist. 2008) 281 S.W.3d 598. Infants              245


Trial court's determination that indigent father's grounds for appealing termination of parental rights were frivol-
ous precluded father from pursuing appeal on the merits, even if father did so at his own expense, where father
failed to show, on appeal of frivolousness determination, that any issue presented in his statement of points had
an arguable basis in law or fact, and father did not challenge sufficiency of evidence to support finding that ter-
mination was in child's best interest. In re S.T. (App. 10 Dist. 2008) 263 S.W.3d 394, review denied. Infants
      245; Infants      248.1




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V.T.C.A., Family Code § 263.405                                                                              Page 26




The primary results of a trial court's determination regarding appeal from termination of parental rights that an
appeal is frivolous are: (1) the appellant cannot obtain a complete copy of the appellate record without paying
for it himself; and (2) his appeal is limited to the issue of whether the court abused its discretion in making this
determination. In re S.T. (App. 10 Dist. 2008) 263 S.W.3d 394, review denied. Infants              245; Infants
251


An appeal in a child protection proceeding is frivolous, for purposes of entitlement to a free transcript on appeal
due to indigency, when it lacks an arguable basis in law or in fact. In re S.T. (App. 10 Dist. 2008) 263 S.W.3d
394, review denied. Infants      245


Legal and factual sufficiency issues of parents, challenging finding that physical or emotional well-being of chil-
dren was endangered, lacked substantial basis in law or in fact, as would support determination that parents' ap-
peals from judgments terminating parental rights were frivolous; in addition to caseworker's testimony regarding
condition of home and father's admitted illegal drug usage, evidence was presented that mother allowed children
to play outside unsupervised, that family members would find children without enough food and wearing dirty
clothes and, and that parents demonstrated inability to maintain stable housing or employment. Lumpkin v. De-
partment of Family and Protective Services (App. 1 Dist. 2008) 260 S.W.3d 524. Infants          248.1


If a trial court determines that an appeal from a termination of parental rights order is frivolous, the court has ne-
cessarily determined that each of the issues identified in the statement of points is frivolous; that is, that they
lack a substantial basis in law or fact. Lumpkin v. Department of Family and Protective Services (App. 1 Dist.
2008) 260 S.W.3d 524. Infants          248.1


For analysis purposes, an appeal from a termination of parental rights order is “frivolous” when it lacks an argu-
able basis either in law or in fact. Lumpkin v. Department of Family and Protective Services (App. 1 Dist. 2008)
260 S.W.3d 524. Infants          248.1


An appellate court reviews a trial court's frivolous finding from a termination of parental rights order under an
abuse of discretion standard. Lumpkin v. Department of Family and Protective Services (App. 1 Dist. 2008) 260
S.W.3d 524. Infants       251


Before an appellate court can reach the substantive merits of an appeal from an order terminating parental rights
in which a frivolousness finding has been made, the appellate court must first determine whether the trial court
properly found the appeal to be frivolous. Lumpkin v. Department of Family and Protective Services (App. 1
Dist. 2008) 260 S.W.3d 524. Infants       248.1


The points for appeal are required to preserve error for appeal in termination of parental rights cases, but counsel
does not have to present a full brief on the merits at the hearing to determine whether appeal is frivolous. In re
A.F. (App. 9 Dist. 2008) 259 S.W.3d 303. Infants         241


Mother presented at least an arguable basis that the trial court erred in relying on rule, governing withdrawal of a




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V.T.C.A., Family Code § 263.405                                                                              Page 27




cause from a jury docket for party's failure to appear, to deny mother's request for jury trial in termination of
parental rights action, since mother's counsel was present, announced not ready, and stated he was proceeding on
the instructions of his client as to jury trial request and mother, although not personally present, appeared for tri-
al when her attorney was present; as such, mother's sole point of error relating to her jury demand was not
frivolous, for purposes of rule permitting free transcript of statement of facts on appeal if indigent appeal is not
frivolous. In re M.N.V. (App. 4 Dist. 2006) 216 S.W.3d 833. Infants           245


Once a trial court finds that an appellant is not indigent and that an appeal of a termination of parental rights is
frivolous, appellate review is statutorily limited to review of the trial court's non-indigence and frivolousness
findings. In re V.I. (App. 10 Dist. 2007) 214 S.W.3d 707. Infants        248.1


Parent's failure to respond to the Court of Appeals order seeking a response as to whether parent intended to ap-
peal trial court's findings of non-indigence and frivolous appeal, which findings were entered following a hear-
ing in response to parent's motion for a new trial on termination of parental rights, necessitated dismissal of par-
ent's appeal of trial court order terminating parental rights. In re V.I. (App. 10 Dist. 2007) 214 S.W.3d 707. In-
fants       247


Parent's failure to respond to the Court of Appeals order seeking a response as to whether parent intended to ap-
peal trial court's findings of non-indigence and frivolous appeal, which findings were entered following a hear-
ing in response to parent's motion for a new trial on termination of parental rights, necessitated dismissal of par-
ent's appeal of trial court order terminating parental rights. In re V.I. (App. 10 Dist. 2007) 214 S.W.3d 707. In-
fants       247


Family Code section governing appeals in termination of parental rights proceedings and providing that trial
court determined whether an appeal was frivolous did not deny indigent mother her constitutional right to an ap-
peal with a full record, although frivolousness finding had effect of denying an indigent appellant the right to
free clerk's record and reporter's record of underlying trial; an appellate court had authority to order the prepara-
tion of a free record of all of the evidence in a termination case when necessary to review a trial court's determ-
ination that an appeal raising a factual sufficiency complaint was frivolous. In re K.D. (App. 2 Dist. 2006) 202
S.W.3d 860. Constitutional Law           2324; Infants      245


Family Code section governing appeals in termination of parental rights proceedings did not, in provision limit-
ing review to trial court's frivolousness finding, where such a finding has been made regarding appeal, have a
disparate impact on indigent parent in government-initiated termination proceedings, as compared to private ter-
minations, in violation of indigent mother's constitutional due process or equal protection rights; both indigent
and non-indigent appellants had the equal right and opportunity to appeal a frivolousness finding. In re K.D.
(App. 2 Dist. 2006) 202 S.W.3d 860. Constitutional Law           3225; Constitutional Law        4403.5; Infants
      245


Family Code section governing appeals in termination of parental rights proceedings and providing that trial
court determined whether an appeal was frivolous did not have a disparate impact on indigent mother, in viola-
tion of her constitutional due process or equal protection rights, although frivolousness finding had effect of




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V.T.C.A., Family Code § 263.405                                                                             Page 28




denying an indigent appellant the right to free clerk's record and reporter's record of underlying trial; once trial
court determined that appeal was frivolous, scope of appellate review was statutorily limited to a review of
frivolousness finding, and reporter's record and the clerk's record of the frivolousness hearing would be provided
without advance payment. In re K.D. (App. 2 Dist. 2006) 202 S.W.3d 860. Constitutional Law              3225; Con-
stitutional Law      4403.5; Infants       245


Any appeal from judgment terminating parental rights would not present a substantial question for appellate re-
view, and thus, any appeals from the judgment by parents would be frivolous, for purposes of eligibility for free
clerk's record and reporter's record of the underlying trial; jury found by clear and convincing evidence that
mother's and father's rights should be terminated, evidence at trial demonstrated that both mother and father ab-
used drugs, got into physical fights, did not maintain stable home for their children, and abandoned their chil-
dren when they moved cross-country, and children suffered from aggression, developmental delays, and anxiety
issues as a result of being neglected and moved around. In re T.C. (App. 2 Dist. 2006) 200 S.W.3d 788. Infants
      245


That mother's appeal of order terminating her parental rights to her three children was accelerated did not relieve
trial court of its duty to prepare and file findings of fact and conclusions of law supporting its judgment; appel-
late rule governing accelerated appeals applied only to interlocutory orders, and trial court's termination order
was final, not interlocutory, and family code section governing appeals from termination orders contemplated
the filing of findings of fact and conclusions of law, regardless of whether appeals are accelerated. In re D.H.
(App. 2 Dist. 2006) 2006 WL 133523, Unreported. Infants            210; Infants      244.1


A party's appeal from a final order terminating parental rights is initially limited to review of the trial court's
frivolousness finding; in other words, before an appellate court may consider the substantive merits of an appeal
from an order terminating parental rights in which a frivolousness finding was made, the appellate court must
first determine whether the trial court properly found the appeal to be frivolous. In re A.B. (App. 8 Dist. 2008)
269 S.W.3d 120. Infants        248.1


On mother's appeal from trial court's finding that her points of appeal from order terminating her parental rights
were frivolous, Court of Appeals could only consider mother's point of appeal alleging that the evidence was
factually insufficient to support a finding that termination was in the child's best interests, where other issues
identified by the mother on appeal were not the same as those issues presented to the trial court. In re A.B. (App.
8 Dist. 2008) 269 S.W.3d 120. Infants        243


Trial court's finding that a mother's point of appeal from order terminating parental rights, alleging factually in-
sufficient evidence supported trial court's finding that termination was in child's best interest, was frivolous was
not supported by the evidence, where particular evidence supporting best interest of child finding was not
presented at the hearing to determine frivolousness, and frivolousness was not apparent in the termination order
itself, which was the sole exhibit entered at the hearing. In re A.B. (App. 8 Dist. 2008) 269 S.W.3d 120. Infants
       241


  13. Ripeness




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Family Code § 263.405                                                                             Page 29




Claim by incarcerated father against whom a default judgment terminating his parental rights was entered, that
the procedure by which a trial court in a termination proceeding was to hold a hearing on a motion for new trial,
determine indigence and determine the frivolousness of an appeal was unconstitutional facially and as applied
because it reserved the frivolousness determination to the trial court instead of the Court of Appeals, was not
ripe, where the trial court conducted a timely hearing on father's motion for new trial, determined that father was
indigent and determined that father's appeal was not frivolous. In re S.K.A. (App. 6 Dist. 2007) 236 S.W.3d 875,
rehearing overruled , review denied 260 S.W.3d 463. Infants         242


  14. Findings

Trial court's failure to prepare and file findings of fact and conclusions of law supporting order terminating
mother's parental rights to her three children was harmless error, since mother did not have to guess the reasons
for the trial court's termination order, as reasons were clearly stated in the order, mother was not prevented from
properly presenting her case on appeal, for with a complete reporter's record, she was afforded an opportunity to
fully brief, and Court of Appeals was able to fully review, whether the grounds in the termination order, includ-
ing the best interest finding, were supported by legally and factually sufficient evidence. In re D.H. (App. 2 Dist.
2006) 2006 WL 133523, Unreported. Infants            253


  15. Record

Father's motion to reconsider was insufficient to preserve for appellate review his assertion that trial court viol-
ated his due process rights when it denied his request for free record in proceeding to terminate parental rights,
where father's motion to reconsider was filed 64 days after final judgment was signed, and thus, at time motion
to reconsider was filed, trial court had no power to reconsider its ruling denying father free record. In re B.G.
(App. 12 Dist. 2007) 317 S.W.3d 259, rehearing overruled , review granted , reversed 317 S.W.3d 250. Infants
      243


Father was not entitled to free reporter's record of parental rights termination hearing; evidence supported
grounds for termination, father did not identify evidence that would arguably support argument that jury could
not reasonably have formed firm belief or conviction as to truth of allegations, it would serve no useful purpose
to further delay resolution of appeal and leave child's future in limbo so that reporter's record could be prepared
when record would not show that father completed plan for reunification or that he or someone acting in his
stead was able to raise child, and he did not show that due process required that appellate court order court re-
porter to prepare and file reporter's record of trial before it reviewed trial court's ruling that appeal would be
frivolous. In re A.S. (App. 9 Dist. 2007) 239 S.W.3d 390, rule 53.7(f) motion granted. Constitutional Law
4403.5; Infants       212


To decide whether a trial court has abused its discretion in determining that the evidence supporting a parental
rights termination order is factually sufficient, and, therefore, that an appeal complaining that the evidence is
factually insufficient is frivolous, thereby depriving the indigent party of a free record on appeal, though party
may obtain record without advance payment, an appellate court engages in a two-pronged inquiry: first, it de-
cides whether the trial court had sufficient information upon which to exercise its discretion, and, second, it de-
termines whether the trial court erred in the application of its discretion. In re M.R.J.M. (App. 2 Dist. 2006) 193




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Family Code § 263.405                                                                              Page 30




S.W.3d 670. Infants         246


  16. Discretion of court

Appellate court reviews under an abuse of discretion standard trial court's determination that indigent party's ap-
peal from a termination of parental rights order is frivolous, for purposes of rule permitting free transcript of
statement of facts on appeal if indigent appeal is not frivolous. In re M.N.V. (App. 4 Dist. 2006) 216 S.W.3d
833. Infants      251


  17. Sufficiency of evidence

Evidence was sufficient to support trial court finding that mother endangered the life of her child, such that it
was not arguable, for purposes of presenting a non-frivolous appeal, that trial court failed to establish grounds
for termination of mother's parental rights; mother had a history of drug use, and continually used illicit drugs
while she was pregnant and when she knew she was pregnant, and baby tested positive for controlled substances
at birth. In re M.L.B. (App. 9 Dist. 2008) 269 S.W.3d 757. Infants      248.1


Father's claims that there was factually insufficient evidence to support each of trial court's four predicate find-
ings for termination of his parental rights were sufficiently specific to preserve these issues for appellate review.
In re S.T. (App. 10 Dist. 2008) 263 S.W.3d 394, review denied. Infants          243


Father proved his indigence for appeal of judgment terminating his parental rights; father had been found indi-
gent at trial level and had counsel appointed to represent him, his monthly income as a self-employed carpenter
roughly approximated his monthly expenses, and his services as an insurance adjuster were not currently in de-
mand. In re S.T. (App. 10 Dist. 2007) 239 S.W.3d 452, opinion after remand 242 S.W.3d 923. Infants        245



On appeal from trial court's order terminating parent-child relationship, father's statement of points, which set
out specific statutory grounds for his contention that evidence that he failed to establish paternity was factually
insufficient, complied with statutory requirements for appeal from final order in suits affecting the parent-child
relationship. In re A.J.H. (App. 2 Dist. 2006) 205 S.W.3d 79. Infants       241



If the evidence contrary to the findings supporting termination of parental rights is so significant that a fact find-
er could not reasonably have formed a firm belief or conviction in the truth of the findings, then the evidence is
“factually insufficient.” In re M.R.J.M. (App. 2 Dist. 2006) 193 S.W.3d 670. Infants         252


When conducting a factual sufficiency review in a parental rights termination case, an appellate court applies a
heightened standard of review in which it considers whether the evidence supporting termination rises to the
level of being “clear and convincing”; that is, whether, in light of the entire record, the evidence is such that a
fact finder could reasonably form a firm belief or conviction that the grounds for termination were proven. In re
M.R.J.M. (App. 2 Dist. 2006) 193 S.W.3d 670. Infants          252




                            © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Family Code § 263.405                                                                              Page 31




  18. Preservation of issues

Claim that mother's due process rights were violated when trial court denied her motion for continuance would
be dismissed in parental rights termination proceeding, where issue was not specifically presented to trial court
in mother's statement of points contained within her motion for new trial. In re Z.J.C. (App. 10 Dist. 2009) 2009
WL 2179976. Infants         243


Father's appeal from judgment appointing his children's maternal grandparents as joint managing conservators
during pendency of murder trial in which father stood accused of murdering children's mother fell within pur-
view of statute governing accelerated appeals in certain suits affecting parent-child relationship, which required
father to file statement of points on which he intended to appeal in timely manner; although action evolved from
a parental rights termination proceeding to a conservatorship proceeding, the language of statute's subtitle itself
was not limited to termination, headings of statutory subchapter were not for termination suits, but for suits af-
fecting the parent-child relationship, and the preceding subchapters involving suits by the State referenced a
wide range of orders, rather than termination only. In re G.J.P. (App. 6 Dist. 2010) 314 S.W.3d 217, petition for
review filed. Child Custody         908


Statute governing the expedited 15-day timetable by which a parent must request a new trial or appeal a parental
rights termination order was not unconstitutional as applied to mother, specifically with respect to her due pro-
cess rights, where, on appeal, mother did not allege there were other complaints she would have raised but for
the time restrictions of statute, and thus was unable to demonstrate how the statute operated to deprive her of
any due process rights. M.C. v. Texas Dept. of Family and Protective Services (App. 8 Dist. 2009) 300 S.W.3d
305, review denied. Constitutional Law        4403.5; Infants     132; Infants       211; Infants      244.1


Statute governing the expedited 15-day timetable by which a parent must request a new trial or appeal a parental
rights termination order was not facially violative of a parent's due process rights; on appeal from order termin-
ating her parental rights, mother did not contend there were any issues appellate counsel was precluded from
raising because of the statutory time restrictions, and there were situations in which a trial counsel, if retained as
appellate counsel, would be able to timely file a statement of points within 15 days, as he would have been
aware of all objections at trial that could be raised on appeal. M.C. v. Texas Dept. of Family and Protective Ser-
vices (App. 8 Dist. 2009) 300 S.W.3d 305, review denied. Constitutional Law           4403.5; Infants         132


Parents' claim that, because the district court did not render judgment within ninety days of taking the termina-
tion of parental rights case under advisement, they suffered substantial prejudice and harm, was not couched as a
jurisdictional challenge and was not raised in the statement of points that parents filed in the trial court, and
therefore, appellate court was precluded by law from considering it on appeal. In re T.D.S.T. (App. 7 Dist. 2009)
287 S.W.3d 268, review denied. Infants          241


Although parents did not raise in their statement of points their claim that judgment of the district court, termin-
ating their parental rights following trial de novo, was void because it was rendered out of term without an ex-
tension, and although appellate courts were barred from considering an issue not raised in a timely filed state-
ment of points, the issue might constitute a challenge to the trial court's jurisdiction to render judgment, and thus
to appellate court's jurisdiction to consider the merits of the appeal, and as such, appellate court would address




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Family Code § 263.405                                                                              Page 32




it. In re T.D.S.T. (App. 7 Dist. 2009) 287 S.W.3d 268, review denied. Infants          241


Claim that evidence was legally and factually insufficient to support trial court's finding regarding father's pa-
ternity as to two children could not be considered on appellate review of termination of parental rights, where
father failed to present issue of his paternity as to two children to trial court. In re S.N. (App. 14 Dist. 2009) 287
S.W.3d 183. Infants         243


Mother's counsel in termination of parental rights trial was not required, in light of bench trial, to file motion for
new trial in order to preserve error, and counsel satisfied sufficiency issues in the points for appeal, such that
mother presented no arguable point, for purposes of presenting a non-frivolous appeal, that counsel was ineffect-
ive for failing to preserve sufficiency issues. In re M.L.B. (App. 9 Dist. 2008) 269 S.W.3d 757. Infants          205
; Infants       248.1


Statute precluding consideration on appeal of issues not raised in statement of points for appeal did not operate
to prohibit Court of Appeals from considering mother's claim that trial counsel was ineffective in failing to file
statement of points for appeal concerning sufficiency of evidence supporting order terminating her parental
rights; an interpretation of statute as precluding the right to appeal ineffective assistance claims not set out in a
timely filed statement of points for appeal could not be traced back to legislative intent and would have deprived
mother of statutory and constitutional rights. Bermea v. Texas Dept. Of Family And Protective Services (App. 1
Dist. 2008) 265 S.W.3d 34, review denied 264 S.W.3d 742. Infants            241


Parents' claims in their statements of points generally averring that evidence supporting terminations was legally
insufficient were not sufficiently specific to preserve issue for appeal. Lumpkin v. Department of Family and
Protective Services (App. 1 Dist. 2008) 260 S.W.3d 524. Infants          241


Court of Appeals was not precluded from considering mother's challenge that statute barring an appellate court
from considering an issue that was not specifically presented to the trial court in a timely filed statement of
points violated the separation of powers provision of the Texas Constitution, in mother's appeal in termination of
parental rights proceeding, though mother's challenge was not included in her original statement of points that
another part of the same statute required mother to file within 15 days of the date of the final order and was only
included in mother's supplemental statement of points filed after expiration of 15-day period, as the issue of
whether the statute interfered with the Court of Appeals' own power and authority to exercise its core judicial
functions could not have been addressed by the trial court in the first instance, and thus did not have to be pre-
served in order to be raised with the Court of Appeals. In re D.W. (App. 2 Dist. 2008) 249 S.W.3d 625, review
denied 260 S.W.3d 462. Infants         241


Though global, nonspecific claims of evidentiary insufficiency in a statement of points are not sufficiently spe-
cific to preserve an issue for review, in a termination of parental rights proceeding, a statement of points' specif-
ic, nonglobal claims of insufficiency are not precluded from review. In re S.K.A. (App. 6 Dist. 2007) 236
S.W.3d 875, rehearing overruled , review denied 260 S.W.3d 463. Infants           241




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Family Code § 263.405                                                                               Page 33




Bar against a reviewing court from considering any issue that was not specifically presented to the trial court in
a timely filed statement of points, in statute regarding appeals in termination of parental rights cases, was uncon-
stitutional as applied to indigent father who was not provided with timely requested appointed counsel prior to
statute's deadline requiring that the statement of points be filed within 15 days of the final order, as such violated
father's procedural due process rights; father's interest in ensuring that the decision was an accurate and just one
weighed heavily in favor of permitting appellate review despite the bar, State's interest in an accelerated
timetable and a final decision paled in comparison to father's private interests at stake, statement of points was
filed only one week late, State's interest in protecting the child weighed in favor of appellate review, and any
significant risk of erroneous deprivation was unacceptable. In re S.K.A. (App. 6 Dist. 2007) 236 S.W.3d 875, re-
hearing overruled , review denied 260 S.W.3d 463. Constitutional Law              4403.5; Infants        132; Infants
       241


Statute bars an appellate court in termination of parental rights cases from reviewing any points of error not in-
cluded in a timely filed statement of points. In re S.K.A. (App. 6 Dist. 2007) 236 S.W.3d 875, rehearing over-
ruled , review denied 260 S.W.3d 463. Infants        241


Incarcerated father who had his parental rights terminated by a default judgment preserved for appeal claim that
statute forbidding the consideration of tardy points on appeal was unconstitutional as applied to him, where fath-
er raised his constitutional challenges at the trial level in his timely motion for a new trial as well as in his un-
timely statement of points on appeal. In re S.K.A. (App. 6 Dist. 2007) 236 S.W.3d 875, rehearing overruled , re-
view denied 260 S.W.3d 463. Infants          243


For purposes of statute prohibiting an appellate court from considering any issue that was not specifically
presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a
statement combined with a motion for new trial on appeal from an order terminating parental rights, a claim that
a judicial decision is contrary to the evidence or that the evidence is factually or legally insufficient is not suffi-
ciently specific to preserve an issue for appeal. In re N.C.M. (App. 4 Dist. 2008) 271 S.W.3d 327. Infants
241; Infants       243


  19. Remedies

Appropriate remedy for violation of mother's procedural due process rights, stemming from application of stat-
ute that barred appellate court from considering issues on appeal from termination-of-parental-rights order if the
issue was not raised in a timely filed statement of points intended for appeal, was for the Court of Appeals to
consider the merits of the unpreserved issue presented in mother's appellate brief. In re D.M. (App. 10 Dist.
2007) 244 S.W.3d 397. Constitutional Law          4403.5; Infants     132; Infants      241


  20. Good cause

In limited situations, for very limited periods of time, workload will constitute good cause justifying an exten-
sion to file appellate brief in termination of parental rights appeal. Pool v. Texas Dept. of Family & Protective
Services (App. 1 Dist. 2007) 227 S.W.3d 212, rehearing overruled. Infants         241




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Family Code § 263.405                                                                             Page 34




A showing of good cause for briefing extensions in termination of parental rights appeals requires more than a
reasonable explanation, and general allegations of workload, standing alone, do not constitute good cause. Pool
v. Texas Dept. of Family & Protective Services (App. 1 Dist. 2007) 227 S.W.3d 212, rehearing overruled. In-
fants     241


Mother provided a reasonable explanation for the late filing of her notice of appeal from decree terminating her
parental rights, and thus Court of Appeals would grant mother's implied motion for extension of time for filing
appeal arising from fact that her counsel filed notice of appeal within 15 days after it was due; mother did not in-
form trial counsel of her desire to appeal until after the appeal period had expired, trial counsel filed notice of
appeal that same day and moved trial court to appoint appellate counsel, and it was not unusual for a party to not
understand the importance of deadlines in legal proceedings. In re D.M. (App. 10 Dist. 2007) 244 S.W.3d 397.
Infants      244.1


  21. Scope of review

On appeal from trial court's finding that mother's and father's proposed appeals from termination of their parent-
al rights were frivolous, Court of Appeals' review would include evidence from the termination trial, not just the
frivolousness hearing, where the clerk's record and reporter's record of the frivolousness hearing were insuffi-
cient to allow Court of Appeals to determine from hearing record alone whether the trial court acted within its
discretion, and at the frivolousness hearing, Department relied on the totality of the evidence presented at trial
and trial court likewise considered the trial proceedings. In re J.J.C. (App. 14 Dist. 2009) 302 S.W.3d 436, re-
hearing overruled , review denied. Infants       246


V. T. C. A., Family Code § 263.405, TX FAMILY § 263.405


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Government Code § 302.017                                                                          Page 1




                                       Effective:[See Text Amendments]

Vernon's Texas Statutes and Codes Annotated Currentness
 Government Code (Refs & Annos)
    Title 3. Legislative Branch (Refs & Annos)
      Subtitle A. Legislature
            Chapter 302. Speaker of the House of Representatives
              Subchapter B. Candidate for Speaker: Campaign Finance
                § 302.017. Contributions and Loans from Organizations

(a) Except as provided by Subsection (b), a corporation, partnership, association, firm, union, foundation, com-
mittee, club, or other organization or group of persons may not contribute or lend or promise to contribute or
lend money or other things of value to a speaker candidate or to any other person, directly or indirectly, to aid or
defeat the election of a speaker candidate.



(b) This section does not apply to a loan made in the due course of business to a speaker candidate for campaign
purposes by a corporation that is legally engaged in the business of lending money and that has continuously
conducted the business for more than one year before making the loan to the speaker candidate.



CREDIT(S)

Acts 1985, 69th Leg., ch. 479, § 1, eff. Sept. 1, 1985.


VALIDITY

    < This section has been declared unconstitutional. See Free Market Foundation v. Reisman,
    W.D.Tex.2008, 573 F.Supp.2d 952.>


HISTORICAL AND STATUTORY NOTES

2005 Main Volume

Prior Laws:

    Acts 1973, 63rd Leg., p. 72, ch. 48, § 1.

    Vernon's Ann.Civ.St. art. 5428a, § 7.




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Government Code § 302.017                                                                         Page 2




LIBRARY REFERENCES

2005 Main Volume

    States       29.
    Westlaw Topic No. 360.
    C.J.S. States § 41.

NOTES OF DECISIONS

  Construction and application 1
  Injunction 2
  Validity 1/2

  1/2. Validity

Texas statutes limiting the amount individuals and groups could contribute to influence the election of the Texas
House Speaker, while purportedly advancing a compelling state interest in preventing corruption or the appear-
ance of corruption, were overbroad, in violation of the First Amendment; even if the statutes limited only com-
munications to legislators about the Speaker election, they remained a serious burden on a type of speech that
was fundamentally “public” in character and therefore entitled full protection under the First Amendment. Free
Market Foundation v. Reisman, W.D.Tex.2008, 573 F.Supp.2d 952. Constitutional Law               1699; Elections
     311


To pass constitutional muster under First Amendment protections for freedom of expression and association, the
Government must demonstrate that a campaign contribution limit involving significant interference with associ-
ational rights is closely drawn to match a sufficiently important interest. Free Market Foundation v. Reisman,
W.D.Tex.2008, 540 F.Supp.2d 751. Constitutional Law          1469; Constitutional Law       1699


  1. Construction and application

Vernon's Ann.Civ.St. art. 5428a (repealed; see, now, § 302.011 et seq.), for the most part, was unambiguous and
should have been read literally with reference to who may and may not contribute to the campaign of candidates
for election to the office of Speaker of the House, the amounts of such contributions, the extent of expenditures
which could be made of campaign funds, and other similar matters. Op.Atty.Gen.1973, No. H-55.


  2. Injunction

For purposes of determining whether political organizations and individuals, alleging that Texas statutes restrict-
ing contributions and expenditures relating to election of Speaker of Texas House of Representatives violated
their First Amendment rights of expression and association, were entitled to preliminary injunction precluding
enforcement of the statute, public interest would be served by granting injunction; primary elections were im-
minent, and public interest in free speech regarding candidates for public office would be best served by grant-
ing preliminary injunctive relief. Free Market Foundation v. Reisman, W.D.Tex.2008, 540 F.Supp.2d 751. Civil
Rights       1457(7)




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Government Code § 302.017                                                                         Page 3




For purposes of determining whether political organizations and individuals, alleging that Texas statutes restrict-
ing contributions and expenditures relating to election of Speaker of Texas House of Representatives violated
their First Amendment rights of expression and association, were entitled to preliminary injunction precluding
enforcement of the statute, balance of harms weighed in favor of plaintiffs; although state's legitimate interests
in preventing corruption would be protected by reporting statutes if preliminary injunctive relief was granted,
plaintiffs would irrevocably lose their opportunity to political debate on Speaker's election in upcoming primar-
ies if relief was denied. Free Market Foundation v. Reisman, W.D.Tex.2008, 540 F.Supp.2d 751. Civil Rights
      1457(7)


Political organizations and individuals alleging that Texas statutes, which restricted contributions and expendit-
ures relating to election of Speaker of Texas House of Representatives, violated their First Amendment rights of
expression and association established substantial likelihood of irreparable harm if their motion for preliminary
injunction precluding enforcement of the statute was not granted; primary elections were imminent, and
plaintiffs wished to advocate for and against potential candidates for Texas House of Representatives based on
their expected positions on election for House Speaker. Free Market Foundation v. Reisman, W.D.Tex.2008,
540 F.Supp.2d 751. Civil Rights         1457(7)


Political organizations and individuals challenging Texas statutes that restricted contributions and expenditures
relating to election of Speaker of Texas House of Representatives established substantial likelihood of success
on the merits of their claim that statutes violated their First Amendment rights of expression and association, as
required for preliminary injunction precluding enforcement of statute; despite contention that statutes were lim-
ited to internal election of the Speaker, term “election” was not defined and could have included primary and
general elections, and statutes did not appear to be narrowly tailored to achieve compelling government interest
in preventing corruption, as they allowed a single individual to make unlimited contributions to Speaker candid-
ates, but prevented a group of two or more individuals from pooling even small amounts in support of a Speaker
candidate. Free Market Foundation v. Reisman, W.D.Tex.2008, 540 F.Supp.2d 751. Civil Rights            1457(7)


Permanent injunctive relief was not warranted to protect the constitutional rights of plaintiff's challenging the
validity of Texas statutes limiting the amount individuals and groups could contribute to influence the election
of the Texas House Speaker; there was no likelihood that Texas would attempt to enforce the statutes that had
been declared unconstitutional. Free Market Foundation v. Reisman, W.D.Tex.2008, 573 F.Supp.2d 952. Civil
Rights       1456


V. T. C. A., Government Code § 302.017, TX GOVT § 302.017


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Government Code § 302.019                                                                      Page 1




                                       Effective:[See Text Amendments]

Vernon's Texas Statutes and Codes Annotated Currentness
 Government Code (Refs & Annos)
    Title 3. Legislative Branch (Refs & Annos)
      Subtitle A. Legislature
            Chapter 302. Speaker of the House of Representatives
              Subchapter B. Candidate for Speaker: Campaign Finance
                § 302.019. Individual Contributions; Campaign Expenditures

(a) Except as provided by Section 302.017 or 302.018, an individual other than the speaker candidate may con-
tribute personal services and traveling expenses to aid or defeat a speaker candidate.



(b) An individual other than the speaker candidate may expend a total of not more than $100 for the cost of cor-
respondence to aid or defeat the election of a speaker candidate.


(c) Except as provided by Subsections (a) and (b), all campaign expenditures must be made by the speaker can-
didate from campaign funds.



CREDIT(S)

Acts 1985, 69th Leg., ch. 479, § 1, eff. Sept. 1, 1985.


VALIDITY

    < This section has been declared unconstitutional. See Free Market Foundation v. Reisman,
    W.D.Tex.2008, 573 F.Supp.2d 952.>


HISTORICAL AND STATUTORY NOTES

2005 Main Volume

Prior Laws:

    Acts 1973, 63rd Leg., p. 72, ch. 48, § 1.

    Vernon's Ann.Civ.St. art. 5428a, § 10.




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Government Code § 302.019                                                                        Page 2




LIBRARY REFERENCES

2005 Main Volume

    States       29.
    Westlaw Topic No. 360.
    C.J.S. States § 41.

NOTES OF DECISIONS

  Injunction 3
  Limitation on expenditures 1
  Speech by proxy 2
  Validity 1/2

  1/2. Validity

Texas statutes limiting the amount individuals and groups could contribute to influence the election of the Texas
House Speaker, while purportedly advancing a compelling state interest in preventing corruption or the appear-
ance of corruption, were overbroad, in violation of the First Amendment; even if the statutes limited only com-
munications to legislators about the Speaker election, they remained a serious burden on a type of speech that
was fundamentally “public” in character and therefore entitled full protection under the First Amendment. Free
Market Foundation v. Reisman, W.D.Tex.2008, 573 F.Supp.2d 952. Constitutional Law               1699; Elections
     311


To pass constitutional muster under First Amendment protections for freedom of expression and association, the
Government must demonstrate that a campaign contribution limit involving significant interference with associ-
ational rights is closely drawn to match a sufficiently important interest. Free Market Foundation v. Reisman,
W.D.Tex.2008, 540 F.Supp.2d 751. Constitutional Law          1469; Constitutional Law       1699


  1. Limitation on expenditures

An unsalaried state officer may make contributions to candidates for public office or to candidates for the Office
of Speaker of House of Representatives but may not expend more than $100 for the cost of correspondence to
aid or defeat the election of a speaker candidate. Tex.Ethics Comm.Op. No. 24 (1992).


  2. Speech by proxy

Speech by proxy, wherein an individual speaks through a candidate for Speaker of Texas House of Representat-
ives by contributing to their campaign, runs afoul of the fundamental rule of protection under the First Amend-
ment, that a speaker has the autonomy to choose the content of his own message. Free Market Foundation v. Re-
isman, W.D.Tex.2008, 540 F.Supp.2d 751. Constitutional Law          1698


  3. Injunction




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V.T.C.A., Government Code § 302.019                                                                         Page 3




For purposes of determining whether political organizations and individuals, alleging that Texas statutes restrict-
ing contributions and expenditures relating to election of Speaker of Texas House of Representatives violated
their First Amendment rights of expression and association, were entitled to preliminary injunction precluding
enforcement of the statute, public interest would be served by granting injunction; primary elections were im-
minent, and public interest in free speech regarding candidates for public office would be best served by grant-
ing preliminary injunctive relief. Free Market Foundation v. Reisman, W.D.Tex.2008, 540 F.Supp.2d 751. Civil
Rights       1457(7)


For purposes of determining whether political organizations and individuals, alleging that Texas statutes restrict-
ing contributions and expenditures relating to election of Speaker of Texas House of Representatives violated
their First Amendment rights of expression and association, were entitled to preliminary injunction precluding
enforcement of the statute, balance of harms weighed in favor of plaintiffs; although state's legitimate interests
in preventing corruption would be protected by reporting statutes if preliminary injunctive relief was granted,
plaintiffs would irrevocably lose their opportunity to political debate on Speaker's election in upcoming primar-
ies if relief was denied. Free Market Foundation v. Reisman, W.D.Tex.2008, 540 F.Supp.2d 751. Civil Rights
      1457(7)


Political organizations and individuals alleging that Texas statutes, which restricted contributions and expendit-
ures relating to election of Speaker of Texas House of Representatives, violated their First Amendment rights of
expression and association established substantial likelihood of irreparable harm if their motion for preliminary
injunction precluding enforcement of the statute was not granted; primary elections were imminent, and
plaintiffs wished to advocate for and against potential candidates for Texas House of Representatives based on
their expected positions on election for House Speaker. Free Market Foundation v. Reisman, W.D.Tex.2008,
540 F.Supp.2d 751. Civil Rights         1457(7)


Political organizations and individuals challenging Texas statutes that restricted contributions and expenditures
relating to election of Speaker of Texas House of Representatives established substantial likelihood of success
on the merits of their claim that statutes violated their First Amendment rights of expression and association, as
required for preliminary injunction precluding enforcement of statute; despite contention that statutes were lim-
ited to internal election of the Speaker, term “election” was not defined and could have included primary and
general elections, and statutes did not appear to be narrowly tailored to achieve compelling government interest
in preventing corruption, as they allowed a single individual to make unlimited contributions to Speaker candid-
ates, but prevented a group of two or more individuals from pooling even small amounts in support of a Speaker
candidate. Free Market Foundation v. Reisman, W.D.Tex.2008, 540 F.Supp.2d 751. Civil Rights            1457(7)


Permanent injunctive relief was not warranted to protect the constitutional rights of plaintiff's challenging the
validity of Texas statutes limiting the amount individuals and groups could contribute to influence the election
of the Texas House Speaker; there was no likelihood that Texas would attempt to enforce the statutes that had
been declared unconstitutional. Free Market Foundation v. Reisman, W.D.Tex.2008, 573 F.Supp.2d 952. Civil
Rights       1456


V. T. C. A., Government Code § 302.019, TX GOVT § 302.019




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V.T.C.A., Government Code § 302.019                                                             Page 4




Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Penal Code § 38.18                                                                                Page 1




                                         Effective: September 1, 2001

Vernon's Texas Statutes and Codes Annotated Currentness
 Penal Code (Refs & Annos)
      Title 8. Offenses Against Public Administration
         Chapter 38. Obstructing Governmental Operation
           § 38.18. Use of Accident Report Information and Other Information for Pecuniary Gain

(a) This section applies to:



  (1) information described by Section 550.065(a), Transportation Code;


  (2) information reported under Chapter 772, Health and Safety Code, other than information that is confiden-
  tial under that chapter; and


  (3) information contained in a dispatch log, a towing record, or a record of a 9-1-1 service provider, other than
  information that is confidential under Chapter 772, Health and Safety Code.


(b) A person commits an offense if:


  (1) the person obtains information described by Subsection (a) from the Department of Public Safety of the
  State of Texas or other governmental entity; and


  (2) the information is subsequently used for the direct solicitation of business or employment for pecuniary
  gain by:


    (A) the person;


    (B) an agent or employee of the person; or


    (C) the person on whose behalf the information was requested.


(c) A person who employs or engages another to obtain information described by Subsection (a) from the De-
partment of Public Safety or other governmental entity commits an offense if the person subsequently uses the
information for direct solicitation of business or employment for pecuniary gain.




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V.T.C.A., Penal Code § 38.18                                                                         Page 2




(d) An offense under this section is a Class B misdemeanor.



CREDIT(S)

Added by Acts 2001, 77th Leg., ch. 1032, § 1, eff. Sept. 1, 2001.


VALIDITY

    < This section has been declared unconstitutional. See Anderson Courier Service v. State (App. 3
    Dist. 2003) 104 S.W.3d 121.>


HISTORICAL AND STATUTORY NOTES

2003 Main Volume

Former Sections:

A former § 38.18 was renumbered as V.T.C.A., Penal Code § 38.15 by Acts 1993, 73rd Leg., ch. 900, § 1.01,
eff. Sept. 1, 1994.


LIBRARY REFERENCES

2003 Main Volume

    Records       31.
    Westlaw Topic No. 326.
    C.J.S. Criminal Law §§ 449 to 450.
    C.J.S. Records §§ 74 to 92.

RESEARCH REFERENCES

2010 Electronic Update

Encyclopedias

TX Jur. 3d Constitutional Law § 197, Commercial Speech.


NOTES OF DECISIONS

  Validity 1

  1. Validity

Law providing that a person commits misdemeanor if he uses certain accident report information obtained from
the Department of Public Safety or other governmental entity for pecuniary gain regulated commercial free




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V.T.C.A., Penal Code § 38.18                                                                                Page 3




speech, rather than access to information; law attempted to regulate use of information legally obtained since
statute provided open access to information, and then attempted to regulate how holder could use information
once holder had acquired it. Anderson Courier Service v. State (App. 3 Dist. 2003) 104 S.W.3d 121, review
denied. Constitutional Law       1569; Records      31


Law providing that a person commits misdemeanor if he uses certain accident report information obtained from
the Department of Public Safety or other governmental entity for pecuniary gain unconstitutionally regulated
commercial free speech; although state had substantial interests in protecting accident victims from exploitation,
proof was not offered that resulting statute directly advanced state's interests, nor was it shown that it was nar-
rowly tailored to accomplish goals. Anderson Courier Service v. State (App. 3 Dist. 2003) 104 S.W.3d 121, re-
view denied. Constitutional Law        1569; Records        31


V. T. C. A., Penal Code § 38.18, TX PENAL § 38.18


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Penal Code § 43.21                                                                                 Page 1




                                        Effective:[See Text Amendments]

Vernon's Texas Statutes and Codes Annotated Currentness
 Penal Code (Refs & Annos)
    Title 9. Offenses Against Public Order and Decency
          Chapter 43. Public Indecency (Refs & Annos)
            Subchapter B. Obscenity (Refs & Annos)
              § 43.21. Definitions

(a) In this subchapter:



  (1) “Obscene” means material or a performance that:


    (A) the average person, applying contemporary community standards, would find that taken as a whole ap-
    peals to the prurient interest in sex;


    (B) depicts or describes:


      (i) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or
      simulated, including sexual intercourse, sodomy, and sexual bestiality; or


      (ii) patently offensive representations or descriptions of masturbation, excretory functions, sadism, mas-
      ochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or
      arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful
      primarily for stimulation of the human genital organs; and


    (C) taken as a whole, lacks serious literary, artistic, political, and scientific value.


  (2) “Material” means anything tangible that is capable of being used or adapted to arouse interest, whether
  through the medium of reading, observation, sound, or in any other manner, but does not include an actual
  three dimensional obscene device.


  (3) “Performance” means a play, motion picture, dance, or other exhibition performed before an audience.


  (4) “Patently offensive” means so offensive on its face as to affront current community standards of decency.




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V.T.C.A., Penal Code § 43.21                                                                                     Page 2




  (5) “Promote” means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish,
  distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same.


  (6) “Wholesale promote” means to manufacture, issue, sell, provide, mail, deliver, transfer, transmit, publish,
  distribute, circulate, disseminate, or to offer or agree to do the same for purpose of resale.


  (7) “Obscene device” means a device including a dildo or artificial vagina, designed or marketed as useful
  primarily for the stimulation of human genital organs.


(b) If any of the depictions or descriptions of sexual conduct described in this section are declared by a court of
competent jurisdiction to be unlawfully included herein, this declaration shall not invalidate this section as to
other patently offensive sexual conduct included herein.



CREDIT(S)

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 372, ch. 163,
§ 1, eff. Sept. 1, 1975; Acts 1979, 66th Leg., p. 1974, ch. 778, § 1, eff. Sept. 1, 1979; Acts 1993, 73rd Leg., ch.
900, § 1.01, eff. Sept. 1, 1994.


VALIDITY

    < This section has been declared unconstitutional by Reliable Consultants, Inc. v. Earle, 517 F.3d
    738, C.A.5 (Tex.), 2008.>


HISTORICAL AND STATUTORY NOTES

2003 Main Volume

The 1975 amendment in subd. (1)(A), substituted “the prurient interest of the average person applying contem-
porary community standards” for “a prurient interest in sex, nudity, or excretion”; in subd. (1)(B), substituted
“depicts or describes sexual conduct in a patently offensive way” for “is patently offensive because it affronts
contemporary community standards relating to the description or representation of sex, nudity, or excretion”; in
subd. (1)(C), substituted “lacks serious literary, artistic, political, or scientific value” for “is utterly without re-
deeming social value”; in subd. (2), inserted “a play, dance, or performance”; in the first sentence of subd. (3),
substituted “an interest in sexual conduct” for “a shameful or morbid interest in nudity, sex, or excretion” and
“conduct” for “matters”; and added subd. (6).


The 1979 amendment rewrote the section which prior thereto read:


“In this subchapter:




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Penal Code § 43.21                                                                                   Page 3




  “(1) ‘Obscene’ means having as a whole a dominant theme that:


    “(A) appeals to the prurient interest of the average person applying contemporary community standards;

    “(B) depicts or describes sexual conduct in a patently offensive way; and

    “(C) lacks serious literary, artistic, political, or scientific value.

  “(2) ‘Material’ means a book, magazine, newspaper, or other printed or written material; a picture, drawing,
  photograph, motion picture, or other pictorial representation; a play, dance, or performance; a statute or other
  figure; a recording, transcription, or mechanical, chemical, or electrical reproduction; or other article, equip-
  ment, or machine.

  “(3) ‘Prurient interest’ means an interest in sexual conduct that goes substantially beyond customary limits of
  candor in description or representation of such conduct. If it appears from the character of the material or the
  circumstances of its dissemination that the subject matter is designed for a specially susceptible audience, the
  appeal of the subject matter shall be judged with reference to such audience.

  “(4) ‘Distribute’ means to transfer possession, whether with or without consideration.

  “(5) ‘Commercially distribute’ means to transfer possession for valuable consideration.

  “(6) ‘Sexual conduct’ means:


    “(A) any contact between any part of the genitals of one person and the mouth or anus of another person;

    “(B) any contact between the female sex organ and the male sex organ;

    “(C) any contact between a person's mouth or genitals and the anus or genitals of an animal or fowl; or

    “(D) patently offensive representations of masturbation or excretory functions.”


Sections 3 and 4 of the 1979 amendatory act provide:


“Sec. 3. If any portion of this Act is declared unlawful by a court of competent jurisdiction, this declaration does
not invalidate any other portions of this Act.


“Sec. 4. This Act applies only to offenses committed on or after its effective date [Sept. 1, 1979]. A criminal ac-
tion for an offense committed before this Act's effective date is governed by the law in existence before the ef-
fective date of this Act, and Sections 43.21 and 43.23, Penal Code, as in existence before the effective date of
this Act, are continued in effect for this purpose as if this Act were not in effect. For the purpose of this section,
an offense is committed before the effective date of this Act if any element of the offense is committed before
the effective date.”




                            © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Penal Code § 43.21                                                                           Page 4




The 1993 amendment made no apparent change.



Prior Laws:

    Rev.P.C.1879, art. 339.

    Rev.P.C.1895, art. 359.

    Rev.P.C.1911, arts. 496, 509.

    Acts 1943, 48th Leg., p. 38, ch. 35, § 1.

    Acts 1955, 54th Leg., p. 386, ch. 107, § 1.

    Acts 1957, 55th Leg., p. 425, ch. 203, § 1.

    Acts 1961, 57th Leg., p. 1041, ch. 461, § 1.

    Acts 1969, 61st Leg., p. 1547, ch. 468, § 1.

    Acts 1969, 61st Leg., p. 2057, ch. 711, § 1.

    Acts 1971, 62nd Leg., p. 2723, ch. 887, §§ 1 to 3.

    Acts 1971, 62nd Leg., p. 3406, ch. 1038, § 1.

    Vernon's Ann.P.C. (1925) arts. 513, 527, § 1.


LAW REVIEW COMMENTARIES

Annual survey of Texas law: Criminal law--Obscenity. Mike McColloch and David W. Coody, 37 Sw.L.J. 399
(1983).

Changing standards of obscenity in Texas. 34 Sw.L.J. 1201 (1981).

Indecency on cable television: Barren battleground for regulation of programming content. Vicky Hallick Rob-
bins, 15 St.Mary's L.J. 417 (1984).

Good vibrations: Liberating sexuality from the commercial regulation of sexual devices. Alana Chazan, 18 Tex.
J. Women & L. 263 (2009).

CROSS REFERENCES

      Disposition of gambling paraphernalia, prohibited weapon, criminal instrument, and other contraband, see
      Vernon's Ann.Texas C.C.P. Art. 18.18.
      Engaging in organized criminal activity, see V.T.C.A., Penal Code § 71.02.
      General duties, see V.T.C.A., Government Code § 444.021.
      Limitation on Certain Funds, see V.T.C.A., Government Code § 441.1385.




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Penal Code § 43.21                                                                           Page 5




LIBRARY REFERENCES

2003 Main Volume

    Obscenity       1, 4 to 7.
    Westlaw Topic No. 281.
    C.J.S. Obscenity §§ 2 to 10, 12 to 19.

RESEARCH REFERENCES

2010 Electronic Update

ALR Library

192 ALR, Federal 1, Propriety of Federal Court's Abstention, Under Railroad Commission of Tex. v. Pullman
Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941), as to Claim Based on First Amendment.


183 ALR, Federal 379, Propriety of Federal Court's Abstention, Under Railroad Commission of Tex. v. Pullman
Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941), as to Federal Constitutional Due Process or Equal Pro-
tection...


94 ALR 5th 497, Constitutionality of State Statutes Banning Distribution of Sexual Devices.


5 ALR 3rd 1158, Modern Concept of Obscenity.


169 ALR 315, Comment Note.--Duty in Instructing Jury in Criminal Prosecution to Explain and Define Offense
Charged.


91 ALR 1478, Offer of Defendant in Criminal Case to Concede or Stipulate Fact, or His Admission of Same, as
Affecting Prosecution's Right to Introduce Evidence Thereof.


77 ALR 946, Expert Testimony to Interpret or Explain or Draw Conclusion from Photograph.


81 ALR 801, What Amounts to an Obscene Play or Book Within Prohibition Statute.


Encyclopedias

55 Am. Jur. Proof of Facts 3d 249, Proof that Motion Picture is Obscene or Harmful to Minors.


61 Am. Jur. Proof of Facts 3d 51, Cyberporn: Transmission of Images by Computer as Obscene, Harmful to
Minors or Child Pornography.




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Penal Code § 43.21                                                                               Page 6




TX Jur. 3d Criminal Law § 1312, Judicial Definition of Obscenity; Federal and State Tests Distinguished.


TX Jur. 3d Criminal Law § 1313, Generally; “Obscene”.


TX Jur. 3d Criminal Law § 1314, “Obscene Device”.


TX Jur. 3d Criminal Law § 1315, “Patently Offensive”.


TX Jur. 3d Criminal Law § 1316, “Material” and “Performance”.


TX Jur. 3d Criminal Law § 1317, “Promote” and “Wholesale Promote”.


TX Jur. 3d Criminal Law § 1321, Relating to Possession or Promotion of Child Pornography.


TX Jur. 3d Criminal Law § 1322, Generally; Obscene Display or Distribution.


TX Jur. 3d Criminal Law § 1323, Obscenity.


TX Jur. 3d Criminal Law § 1324, Obscenity--Constitutionality.


TX Jur. 3d Criminal Law § 1325, Sale, Distribution, or Display of Harmful Material to Minor.


TX Jur. 3d Criminal Law § 1341, Expert Testimony.


TX Jur. 3d Criminal Law § 1594, Generally; Elements of Offense.


TX Jur. 3d Family Law § 2018, Reportable Acts and Omissions; Abuse.


TX Jur. 3d Nuisances § 8, Generally; Public Nuisances--As Classified by Statute.


Treatises and Practice Aids

Charlton, 6 Tex. Prac. Series § 25.7, Obscenity.


Charlton, 6 Tex. Prac. Series App. A, Penal Code.




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Penal Code § 43.21                                                                            Page 7




McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series § 130.5, Obscenity.


Cochran, 28A Tex. Prac. Series Ch. 2 J, J Telephone Solicitation.


Morgan and Gaither, 29A Tex. Prac. Series App. F, Texas Family Code.


UNITED STATES SUPREME COURT

Community standards for obscenity, see Jenkins v. Georgia, 1974, 94 S.Ct. 2750, 418 U.S. 153, 41 L.Ed.2d 642;
Hamling v. U.S., 1974, 94 S.Ct. 2887, 418 U.S. 87, 41 L.Ed.2d 590.

Obscenity, children as a part of the community, see Pinkus v. U. S., U.S.Cal.1978, 98 S.Ct. 1808, 436 U.S. 293,
56 L.Ed.2d 293, on remand 579 F.2d 1174.

NOTES OF DECISIONS

  In general 6
  Admissibility of evidence 24, 25
       Admissibility of evidence - In general 24
       Admissibility of evidence - Local community standards 25
  Children as community, instructions 29
  Computer and floppy diskette 15
  Contemporary community standards 7-9
       Contemporary community standards - In general 7
       Contemporary community standards - Geographic area 8
       Contemporary community standards - National community 9
  Devices 19
  Films and pictures 14
  First amendment violations, validity 3
  Geographic area, contemporary community standards 8
  Indictment, information or complaint 22
  Instructions 27-30
       Instructions - In general 27
       Instructions - Children as community 29
       Instructions - Local community standards, generally 28
       Instructions - Prurient interest 30
  Intercourse 11
  Jury questions 31
  Knowledge 10
  Local community standard, validity 4
  Local community standards, admissibility of evidence 25
  Local community standards, generally, instructions 28
  Magazines 13
  Municipal ordinances 21




                          © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Penal Code § 43.21                                                                                 Page 8




  National community, contemporary community standards 9
  Nudity 18
  Obscene communication 16
  Performances 17
  Presumptions and burden of proof 23
  Promote, generally 20
  Prurient interest, instructions 30
  Sodomy 12
  Sufficiency of evidence 26
  Vagueness and overbreadth, generally, validity 2
  Validity 1-5
      Validity - In general 1
      Validity - First amendment violations 3
      Validity - Local community standard 4
      Validity - Vagueness and overbreadth, generally 2
      Validity - Validity of prior laws 5
  Validity of prior laws 5

  1. Validity--In general

In actions challenging this section and § 43.23 on ground that prohibition on sales of sexually oriented devices
denies equal protection to handicapped persons, record was devoid of evidence supporting assertions that consti-
tutional right in handicapped persons to sexual devices proscribed by statute should be recognized or that such
right was burdened by this section and § 43.23. Red Bluff Drive-In, Inc. v. Vance, C.A.5 (Tex.)1981, 648 F.2d
1020, rehearing denied 656 F.2d 700, certiorari denied 102 S.Ct. 1264, 455 U.S. 913, 71 L.Ed.2d 453. Constitu-
tional Law        3167; Obscenity      2.5


Subsection (a)(7) of this section defining devices, including dildos and artificial vaginas, designed or marketed
as useful primarily for stimulation of human genital organs as obscene per se is constitutionally proper. Red
Bluff Drive-In, Inc. v. Vance, C.A.5 (Tex.)1981, 648 F.2d 1020, rehearing denied 656 F.2d 700, certiorari
denied 102 S.Ct. 1264, 455 U.S. 913, 71 L.Ed.2d 453. Obscenity         2.5


Substitution of “and” for “or” in this section defining obscenity as expression lacking “serious literary, artistic,
political and scientific value” does not generate facial threat to constitutional right. Red Bluff Drive-In, Inc. v.
Vance, C.A.5 (Tex.)1981, 648 F.2d 1020, rehearing denied 656 F.2d 700, certiorari denied 102 S.Ct. 1264, 455
U.S. 913, 71 L.Ed.2d 453. Obscenity         2.5


This section and § 43.23 prohibiting promotion of obscene devices were not unconstitutional. Moses v. State
(App. 14 Dist. 1982) 630 S.W.2d 337, rehearing denied 633 S.W.2d 585 Obscenity      2.5


This section defining obscene material as “having as a whole a dominant theme” appealing to prurient interest
meets Miller standards requiring that material “taken as whole” appeal to prurient interest; thus this section is
not unconstitutionally overbroad and does not violate First and Fourteenth Amendments of the Constitution.




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V.T.C.A., Penal Code § 43.21                                                                                   Page 9




McMahon v. State (App. 14 Dist. 1982) 630 S.W.2d 730, review refused. Constitutional Law               2190; Consti-
tutional Law     4509(20); Obscenity      2.5


Definition of “promote” in subd. (a)(5) of this section did not unconstitutionally sweep within its ambit acts
State could not criminalize and, since no possible exception existed within facts of the case, it was not necessary
for court to determine exceptions limiting “promote.” Tyree v. State (App. 2 Dist. 1982) 638 S.W.2d 245, re-
view granted , affirmed. Obscenity       2.5


Texas obscenity statute was not unconstitutional, either on its face or as applied in action arising from seizure of
movie films. Porter v. State (App. 2 Dist. 1982) 638 S.W.2d 249, review granted , affirmed Obscenity           2.5


Lack of statutory definition for term “prurient interest” does not render this section constitutionally deficient, at
least where term has been defined by the United States Supreme Court. Sanders v. State (App. 1 Dist. 1982) 649
S.W.2d 59, petition for discretionary review granted , vacated 770 S.W.2d 778, opinion after remand. Obscenity
      2.5


Sections 43.21(a)(7) and 43.23(c)(1) of the Penal Code making it an offense for a person, knowing content and
character of an obscene device, defined to include a dildo, to either promote device or possess same with intent
to promote is not violative of Article I, § 19 of the State Constitution as arbitrarily depriving an individual of the
right to use and dispose of his property as he pleases. Yorko v. State (Cr.App. 1985) 690 S.W.2d 260. Obscenity
      2.5


Sections 43.21(a)(7) and 43.23(c)(1) of the Penal Code making it an offense for a person, knowing content and
character of an obscene device, defined to include a dildo, to promote such device or to possess such device with
intent to promote do not criminalize use of obscene devices, nor mere possession of such devices without intent
to promote them, but do criminalize promotion of and possession of such devices with intent to promote, when
purpose is for sexual stimulation and gratification, and as such may be contrasted with contraceptives associated
with the constitutionally protected decision not to beget a child, and are not unconstitutional as violative of the
fundamental right to privacy. Yorko v. State (Cr.App. 1985) 690 S.W.2d 260. Obscenity              2.5; Obscenity
      7


This section was constitutional insofar as it did not apply the “average person” standard to a determination of the
value of a work. Handl v. State (App. 14 Dist. 1988) 763 S.W.2d 446, petition for discretionary review refused.
Obscenity       2.5


Proper court to reexamine state obscenity statute was Court of Criminal Appeals, not intermediate appellate
court, where defendant challenged facial validity of obscenity statute as unconstitutional infringement of right to
free expression under State Constitution and alleged that courts had improperly interpreted First Amendment to
United States Constitution without independent consideration of vitality of State Constitution's grant of free
speech, but the Court of Criminal Appeals, applying same statute, had already declined to set lower standards
for obscenity under Texas Constitution. Flores v. State (App. 7 Dist. 1994) 883 S.W.2d 383, petition for discre-




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Penal Code § 43.21                                                                               Page 10




tionary review refused. Courts       247(8)


  2. ---- Vagueness and overbreadth, generally, validity

In actions challenging subd. (a)(5) of this section, defining “promote,” the act element of offense prohibited, in
terms of 19 different verbs would not be struck down on facial overbreadth challenge, but, rather, Texas courts
would be given opportunity to find marital, medical and other necessary exceptions narrowing scope of defini-
tion. Red Bluff Drive-In, Inc. v. Vance, C.A.5 (Tex.)1981, 648 F.2d 1020, rehearing denied 656 F.2d 700, certi-
orari denied 102 S.Ct. 1264, 455 U.S. 913, 71 L.Ed.2d 453. Obscenity         2.5


Subdivisions (a)(2) and (3) of this section are neither unconstitutionally vague nor facially overbroad. Red Bluff
Drive-In, Inc. v. Vance, C.A.5 (Tex.)1981, 648 F.2d 1020, rehearing denied 656 F.2d 700, certiorari denied 102
S.Ct. 1264, 455 U.S. 913, 71 L.Ed.2d 453. Obscenity         2.5


Subsection (a)(6) of this section defining “wholesale promote” in terms of various kinds of acts which have as
their purpose the “resale” of obscene materials or devices confines definition to commercial transactions, and,
therefore, does not present overbreadth threat. Red Bluff Drive-In, Inc. v. Vance, C.A.5 (Tex.)1981, 648 F.2d
1020, rehearing denied 656 F.2d 700, certiorari denied 102 S.Ct. 1264, 455 U.S. 913, 71 L.Ed.2d 453. Obscenity
      2.5


This section's specification of “sexual intercourse, sodomy, and sexual bestiality” as varieties of sexual conduct
whose patently offensive depictions or descriptions may be found obscene does not render the section unconsti-
tutionally overbroad, since additional terms yield plain, ascertainable meaning and their addition reduces rather
than increases vagueness of statute. Red Bluff Drive-In, Inc. v. Vance, C.A.5 (Tex.)1981, 648 F.2d 1020, rehear-
ing denied 656 F.2d 700, certiorari denied 102 S.Ct. 1264, 455 U.S. 913, 71 L.Ed.2d 453. Obscenity          2.5


Definition of “obscene device” under this section as “a device including a dildo or artificial vagina, designed or
marketed as useful primarily for the stimulation of human genital organs,” was not unconstitutionally vague.
Teeters v. State (App. 13 Dist. 1981) 624 S.W.2d 391. Obscenity        2.5


This section governing crime of promoting obscene material is neither overbroad nor vague because of failure to
define word “sodomy” or terms “prurient interest in sex.” Taylor v. State (App. 14 Dist. 1981) 625 S.W.2d 839.
Obscenity       2.5


If community standards regarding tolerance rather than community standards of propriety and taste are now the
constitutional test for obscenity, this section and § 43.23 still meets the guide and is not constitutionally over-
broad. Garcia v. State (App. 8 Dist. 1982) 633 S.W.2d 611. Obscenity          2.5


This section defining “obscene” was not unconstitutionally vague simply because community was allowed to de-
termine when sexual conduct was patently offensive. Goocher v. State (Cr.App. 1982) 633 S.W.2d 860, appeal
dismissed 103 S.Ct. 32, 459 U.S. 807, 74 L.Ed.2d 46. Obscenity      2.5




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V.T.C.A., Penal Code § 43.21                                                                              Page 11




This section making it an offense to sell obscene material, which defined obscene as appealing to the prurient in-
terest of the average person and which defined prurient interest as an interest in sexual conduct going substan-
tially beyond customary limits of candor in description or representation of such conduct and which further
defined sexual conduct as encompassing three specific types of sexual contact and patently offensive representa-
tions of masturbation or excretory functions, was neither vague nor overboard. Fletcher v. State (Cr.App. 1982)
633 S.W.2d 895. Obscenity         2.5


Definition of obscene device under subd. (a)(7) of this section as applied to an artificial vagina, was not uncon-
stitutionally vague. Coberly v. State (App. 2 Dist. 1982) 640 S.W.2d 428, review refused 644 S.W.2d 734. Ob-
scenity       2.5


Prohibition against obscene devices under subd. (a)(7) of this section was not constitutionally overbroad as ap-
plied to defendant's possession of artificial vagina with intent to promote same. Coberly v. State (App. 2 Dist.
1982) 640 S.W.2d 428, review refused 644 S.W.2d 734. Obscenity           2.5


This section was drawn substantially from Miller and was not unconstitutionally vague or overbroad. Shelton v.
State (App. 14 Dist. 1982) 640 S.W.2d 649. Obscenity      2.5


Subdivisions (a)(5) and (7) of this section defining “promote” and “obscene device” were not unconstitutionally
vague and, were not unconstitutional because of overbreadth where there was no showing that any exceptions
such as medical or marital privacy were available to defendant, who was charged with attempt to promote an ob-
scene device, namely, 29 dildos. Hall v. State (App. 1 Dist. 1982) 646 S.W.2d 489, reversed 661 S.W.2d 101.
Obscenity       2.5


Penal Code § 43.21 defining obscenity and Penal Code § 43.23 making it misdemeanor if person promotes or
possesses with intent to promote obscene material are not vague, indefinite, or uncertain. Ybarra v. State (App. 4
Dist. 1988) 762 S.W.2d 368. Obscenity       2.5


Statutory definition of obscenity is not void for vagueness on basis that its failure to define term “prurient in-
terest in sex” violates due process and men of common intelligence must necessarily guess at its meaning and
differ as to its application. Shelton v. State (App. 14 Dist. 1982) 640 S.W.2d 649. Obscenity      2.5


  3. ---- First amendment violations, validity

Subsection (a)(1)(B)(ii) of this section focusing on stimulated, aroused or turgid genitals as subjects whose pat-
ently offensive representations or depictions may be found obscene does not constitute facial encroachment on
First Amendment. Red Bluff Drive-In, Inc. v. Vance, C.A.5 (Tex.)1981, 648 F.2d 1020, rehearing denied 656
F.2d 700, certiorari denied 102 S.Ct. 1264, 455 U.S. 913, 71 L.Ed.2d 453. Constitutional Law            2190; Ob-
scenity      2.5


State may prohibit all obscenity without violating First Amendment rights. West v. State (Cr.App. 1974) 514




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V.T.C.A., Penal Code § 43.21                                                                                Page 12




S.W.2d 433. Constitutional Law         2191


Statute which regulates obscenity may be enforced against any offender, regardless of nature of material in-
volved in specific case only if definition of proscribed material is not broader than definition of obscenity used
by the Supreme Court in drawing line between protected and unprotected speech under First Amendment.
Shelton v. State (App. 14 Dist. 1982) 640 S.W.2d 649. Obscenity          2.5


Obscenity statute [V.T.C.A., Penal Code § 43.23] and statute [V.T.C.A., Penal Code § 43.21] providing defini-
tions for obscenity statute are not unconstitutional under First and Fourteenth Amendments on basis that they
define community standards for judging obscenity in terms of community standards of “decency” rather than
community standards of “tolerance.”. Yorko v. State (App. 1 Dist. 1986) 707 S.W.2d 680. Constitutional Law
      2190; Constitutional Law       4509(20); Obscenity        2.5


Comic book sold by defendant was not constitutionally protected under First Amendment where book contained
series of very graphic drawings of women engaging in oral sex and drawings prominently displaying female
genitals, drawings of people engaging in sexual intercourse and oral sex, with genitals prominently displayed in
state of stimulation and arousal, and sexually explicit comments and drawings depicting excretory functions and
a female engaging in intercourse with a tree root. Castillo v. State (App. 5 Dist. 2002) 79 S.W.3d 817, petition
for discretionary review refused, certiorari denied 123 S.Ct. 1593, 538 U.S. 924, 155 L.Ed.2d 315. Constitution-
al Law        2194; Obscenity       5.2


  4. ---- Local community standard, validity

Sections 43.21 and 43.23 defining community standards for judging obscenity in terms of community standard
of “decency” rather than of “tolerance” were constitutional. Drummond v. State (App. 14 Dist.1984) 675 S.W.2d
545, review refused; Staten v. State (App. 14 Dist.1985) 686 S.W.2d 268.


This section, which defined “patently offensive” material as material so offensive on its face as to affront current
community standards of decency, rather than defining “patently offensive” in terms of tolerance, was constitu-
tional. Hoover v. Byrd, C.A.5 (Tex.)1986, 801 F.2d 740, rehearing denied 805 F.2d 1030. Obscenity             2.5


This section imposed local community standard on first two prongs of the Miller test and was in compliance
with constitutional requirements. Garcia v. State (App. 8 Dist. 1982) 633 S.W.2d 611. Obscenity  2.5


Subdivision (a)(4) of this section which permitted allegedly obscene material to be judged on community stand-
ards of “decency” was unconstitutional; since striking of words “of decency” from end of the statute would
leave remaining portion complete in itself and capable of being executed in accordance with apparent legislative
intent, independently of rejected portion, the unconstitutional portion was severed and the remainder sustained.
Porter v. State (App. 2 Dist. 1982) 638 S.W.2d 249, review granted , affirmed.


So long as fact finder does not employ personal subjective reactions and uses as one factor what is tolerated by




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V.T.C.A., Penal Code § 43.21                                                                                  Page 13




average person in determining a contemporary community standard of decency, Texas obscenity statute is not
overly broad. Porter v. State (App. 2 Dist. 1982) 638 S.W.2d 249, review granted , affirmed. Obscenity 2.5


To extent that subd. (a)(4) of this section defines “patently offensive” in terms of community standards of
“decency,” rather than community standards of “tolerance,” subd. (a)(4) of this section is unconstitutional,
though remaining portion of statute, being complete within itself, is capable of being executed in accordance
with apparent legislative intent, independently of rejected portion. Sanders v. State (App. 1 Dist. 1982) 649
S.W.2d 59, petition for discretionary review granted , vacated 770 S.W.2d 778, opinion after remand. Obscenity
     2.5


This section underlying charge of promotion of obscenity is not unconstitutional by defining term “patently of-
fensive” in terms of community standards of “decency.” Sanders v. State (App. 1 Dist. 1982) 649 S.W.2d 59, pe-
tition for discretionary review granted , vacated 770 S.W.2d 778, opinion after remand.


Definition in this section of term “patently offensive” as so offensive on its face as to affront current community
standards of decency passes constitutional muster because in context of this section, word “decency” actually
states common meaning of what governs current community standards, that is, whether to average person mater-
ial, which must depict or describe in patently offensive way ultimate sexual acts, is so offensive on its face as to
affront current community standards of propriety. Andrews v. State (Cr.App. 1983) 652 S.W.2d 370. Obscenity
      2.5


This section was not unconstitutionally vague because statutory term “patently offensive” was defined in terms
of community standard of decency since statute, by its terms, clearly stated that only in indirect manner of
speaking would terms decency or tolerance come into play when trier of fact decided whether material was ob-
scene. Andrews v. State (Cr.App. 1983) 652 S.W.2d 370. Obscenity        2.5


This section, which required that first prong of obscenity determination, prurient interest, be assessed by average
person, applying contemporary community standards to work as whole, and which similarly related second
prong of “patently offensive” to local standard, was not unconstitutional for failure to apply contemporaneous
community standard to test requiring that material lack serious literary, artistic, political or scientific value. Rent
v. State (App. 5 Dist. 1989) 771 S.W.2d 723, petition for discretionary review granted , affirmed 838 S.W.2d
548, rehearing on petition for discretionary review granted, rehearing denied, rehearing on petition for discre-
tionary review denied. Obscenity         2.5


  5. ---- Validity of prior laws

Section 1(A) of Vernon's Ann.P.C. (1925) art. 527 (now, this section) which defined “obscene”, was not consti-
tutionally deficient for having failed to provide for measurement of “contemporary community standards” from
national perspective, where such article could have been construed to do so. Newman v. Conover,
N.D.Tex.1970, 313 F.Supp. 623. Obscenity           2.5


Section 1(F) of Vernon's Ann.P.C. (1925) art. 527 (now, this section) which defined “knowingly,” was constitu-




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V.T.C.A., Penal Code § 43.21                                                                                 Page 14




tional. Newman v. Conover, N.D.Tex.1970, 313 F.Supp. 623.


Though definition of obscenity in sec. 1(B) of Vernon's Ann.P.C. (1925) art. 527 (now, this section) failed to
provide that certain work's appeal was to be measured solely by its appeal to and effect on average adult, the art-
icle was not unconstitutional for that reason, where it could have been construed to so provide. Newman v. Con-
over, N.D.Tex.1970, 313 F.Supp. 623. Obscenity           2.5


Section 1 of Vernon's Ann.P.C. (1925) art. 527 (now, this section), which defined obscene material as material
(a) the dominant theme of which, taken as a whole, appealed to a prurient interest, (b) which was patently of-
fensive because it affronted contemporary community standards, and (c) which was utterly without redeeming
social value, was not unconstitutionally vague. Bryers v. State (Cr.App. 1972) 480 S.W.2d 712. Obscenity
2.5


Section 1(A) of Vernon's Ann.P.C. (1925) art. 527 (now, this section) was not overbroad and established stand-
ards at least as narrow as those required by United States Supreme Court decision in Miller v. California, 19
S.Ct. 2607, 413 U.S. 15, 37 L.Ed.2d 419 (1973). West v. State (Cr.App. 1974) 514 S.W.2d 433. Obscenity
2.5


Vernon's Ann.P.C. (1925) art. 527 (now, this section) was constitutional. Parrish v. State (Cr.App. 1975) 521
S.W.2d 849.


  6. In general

Definition in this section of “obscene” is referable to Vernon's Ann.Civ.St. art. 4667 (repealed; see, now,
V.T.C.A. Civil Practice and Remedies Code, §§ 125.021, 125.022) authorizing injunction against the commer-
cial manufacture, distribution or exhibition of obscene material. Universal Amusement Co., Inc. v. Vance, C.A.5
(Tex.)1977, 559 F.2d 1286, on rehearing 587 F.2d 159, probable jurisdiction noted 99 S.Ct. 2857, 442 U.S. 928,
61 L.Ed.2d 295, affirmed 100 S.Ct. 1156, 445 U.S. 308, 63 L.Ed.2d 413, rehearing denied 100 S.Ct. 2177, 446
U.S. 947, 64 L.Ed.2d 804, on rehearing 587 F.2d 176, certiorari denied 99 S.Ct. 2859, 442 U.S. 929, 61 L.Ed.2d
296. Nuisance       60


In determining whether material is “constitutionally obscene,” appellate courts are obligated to independently
review and evaluate the material in accordance with a three-part test requiring the court to consider whether: (1)
the average person, applying contemporary community standards would find the work, taken as a whole, appeals
to the prurient interest in sex; (2) the work depicts or describes in a patently offensive way, sexual conduct spe-
cifically defined by the applicable state law; and (3) the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value. Varkonyi v. State (App. 8 Dist. 2008) 276 S.W.3d 27, petition for discretionary re-
view refused. Obscenity          1.1


In an obscenity prosecution, work which does not appeal to the prurient interest, does not depict sexual conduct
in a patently offensive way, and does not lack serious literary, artistic, political, or scientific value is constitu-
tionally protected. Varkonyi v. State (App. 8 Dist. 2008) 276 S.W.3d 27, petition for discretionary review re-




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V.T.C.A., Penal Code § 43.21                                                                                    Page 15




fused. Obscenity        1.1


Court of Appeals could not apply separate test for reviewing obscenity laws in criminal case that was in conflict
with pronouncements of Court of Criminal Appeals. Churitch v. State (App. 5 Dist. 1994) 888 S.W.2d 911.
Courts     91(1)


Since criminal penalties can be imposed by a statute which implicates guarantees under U.S.C.A. Const.Amend.
1, §§ 43.21 to 43.23 dealing with obscenity must be subjected to close scrutiny. Gholson v. State (App. 14 Dist.
1983) 667 S.W.2d 168, petition for discretionary review refused. Obscenity       2.1


Particular object can be judged obscene only after consideration of the allegedly objectionable aspects in the
context of the entire work. Bryers v. State (Cr.App. 1972) 480 S.W.2d 712. Obscenity      7.7


Where “pandering” is shown, material may be found constitutionally obscene even though otherwise not in viol-
ation of standards defining obscenity. Bryers v. State (Cr.App. 1972) 480 S.W.2d 712. Obscenity   1.2


  7. Contemporary community standards--In general

With respect to determination of obscenity, what appeals to the prurient interest or is patently offensive in the
Ninth Circuit is of no relevance in State of Texas, and obscenity is to be determined by applying contemporary
community standards. West v. State (Cr.App. 1974) 514 S.W.2d 433. Courts          97(6)


In determining whether any given material is obscene under subd. (1)(B) of this section, it is contemporary com-
munity standard that should be applied and not one's personal standard. Evert v. State (Cr.App. 1978) 561
S.W.2d 489. Obscenity       1.4


Section 43.21 imposed local community standard on first two prongs of the Miller test and was in compliance
with constitutional requirements. Garcia v. State (App. 8 Dist. 1982) 633 S.W.2d 611. Obscenity   2.5


There is no authority that requires that State apply contemporary community standard test to third prong of
Miller test requiring that material lack serious literary, artistic, political or scientific value. Garcia v. State (App.
8 Dist. 1982) 633 S.W.2d 611. Obscenity           1.4


In obscenity case, juror's personal beliefs regarding what is acceptable, tolerable, intolerable, indecent, decent,
and the like are irrelevant and immaterial, because juror decides issue through eyes and mind of average person
and, in doing so, juror actually is deciding what to average person in his community is obscene. Andrews v.
State (Cr.App. 1983) 652 S.W.2d 370. Obscenity          1.4


This section does not violate principle in United States Supreme Court's Pope v.Illinois decision that it is im-
proper to take the “average person, applying contemporary community standards” language from the first prong




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V.T.C.A., Penal Code § 43.21                                                                                Page 16




of Miller test and insert it into value test of third prong. Ford v. State (App. 1 Dist. 1988) 753 S.W.2d 451, peti-
tion for discretionary review refused. Obscenity          2.5


Trial court did not have to give defendant's requested instruction on need to determine community standard for
obscenity before deciding whether the magazines that defendant had sold were obscene; matter was adequately
covered by trial court's instruction that, in determining whether material was obscene, jury first had to determine
whether or not content of material affronted contemporary community standards of decency. T.K.'s Video, Inc.
v. State (App. 2 Dist. 1994) 871 S.W.2d 527, rehearing overruled , petition for discretionary review refused.
Criminal Law        829(3)


  8. ---- Geographic area, contemporary community standards

Applicable standard in determining obscenity of motion picture films exhibited and distributed by defendants
was the area of the states and of the geographic area from which the jury was drawn. Richards v. State (Civ.App.
1973) 497 S.W.2d 770. Obscenity          5.2


States are accorded considerable latitude in deciding geographic scope of community from which jury is to ap-
ply standards in determining whether material is obscene. LaRue v. State (Cr.App. 1980) 611 S.W.2d 63. Ob-
scenity      1.4


  9. ---- National community, contemporary community standards

Obscenity must be decided on basis of “contemporary community standards” rather than “contemporary national
community standards.” Hunt v. State (Cr.App. 1972) 475 S.W.2d 935. Obscenity       1.4


Standards for judging whether works are obscene are “contemporary community standards” rather than a
“national standard.” Locke v. State (Civ.App. 1974) 516 S.W.2d 949. Obscenity 1.4


  10. Knowledge

Eyewitness testimony of accused's perusal of material is not necessary in prosecution for promotion of obscene
material, nor is any one particular kind of evidence required to prove element of knowledge. Glass v. State
(App. 1 Dist. 1988) 761 S.W.2d 806. Obscenity       17


In prosecution for promotion of obscene material, knowledge of content and character of obscene material may
be shown by direct or circumstantial evidence. Glass v. State (App. 1 Dist. 1988) 761 S.W.2d 806. Obscenity
     17


There was sufficient evidence that defendant knew sexually explicit character and content of comic book sold at
store he managed, as required to support his obscenity conviction, even though store was not adult bookstore,
and did not retail predominantly sexually explicit materials, and comic book's cover did not depict sexual con-
duct, nor was its title vulgar or sexually explicit; evidence indicated that defendant managed store for two years,




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V.T.C.A., Penal Code § 43.21                                                                              Page 17




was familiar with title of comic book at issue, handled comic book at time of sale to police officer, knew comic
book was in adults-only section of store, and knew adults-only section contained sexually explicit material.
Castillo v. State (App. 5 Dist. 2002) 79 S.W.3d 817, petition for discretionary review refused, certiorari denied
123 S.Ct. 1593, 538 U.S. 924, 155 L.Ed.2d 315. Obscenity        5.2


  11. Intercourse

Pictures which showed men and women in the nude engaged in acts of sexual intercourse were obscene under
Vernon's Ann.P.C. (1925) art. 527 (now, this section). Phelper v. State (Cr.App. 1965) 396 S.W.2d 396, certior-
ari denied 86 S.Ct. 387, 382 U.S. 943, 15 L.Ed.2d 353. Obscenity        5.2


  12. Sodomy

Term “sodomy” as currently employed by Court of Criminal Appeals and Penal Code includes both oral and
anal versions of such conduct. Knight v. State (App. 14 Dist. 1982) 642 S.W.2d 180. Sodomy 1


  13. Magazines

Magazines containing pictures of young females naked as to their genital area were not obscene in constitutional
sense, in absence of suggestion of assault upon individual privacy by publication in manner so obtrusive as to
make it impossible for an unwilling individual to avoid exposure or evidence of pandering. Hunt v. State
(Cr.App. 1972) 475 S.W.2d 935. Obscenity         5.1


Magazine containing photographs portraying nude females and photographs appearing to show some contact
between sexes was not obscene where magazine contained no overt portrayals of sexual activity. Thacker v.
State (Cr.App. 1973) 490 S.W.2d 854. Obscenity    5.1


In prosecution for promoting obscenity by selling magazine, magazine, which contained vivid portrayal of actual
or simulated ultimate sexual acts, leaving nothing to imagination as to what anatomical positions human beings
could assume when engaging in mutual or menage a trois sexual behavior, was constitutionally obscene. An-
drews v. State (Cr.App. 1983) 652 S.W.2d 370. Obscenity         5.1


Fact that cover of magazine might be objectionable does not make magazine legally obscene; it is the content
and character of magazine, not the cover, which determines whether magazine is legally obscene. Shealy v. State
(Cr.App. 1984) 675 S.W.2d 215. Obscenity         5.1


Magazine entitled “Disco Cowgirl,” which contained photographs and written descriptions of patently offensive
representations of ultimate sex acts which average person, applying contemporary community standards in state,
would find to appeal only to those having prurient interest in sex, was hard core pornography lacking in serious
literary, artistic, political or scientific value and was constitutionally obscene. Staten v. State (App. 14 Dist.
1985) 686 S.W.2d 268. Obscenity             5.1




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V.T.C.A., Penal Code § 43.21                                                                                 Page 18




Magazine, which defendant sold and which depicted acts of sexual intercourse, oral sodomy, and other sexual
activity, fell within statutory definition of obscenity. Yorko v. State (App. 1 Dist. 1986) 707 S.W.2d 680. Ob-
scenity        5.1


  14. Films and pictures

Three film versions of motion picture entitled “Deep Throat” were obscene under prior version of this section
and § 43.23. McKenzie v. Butler, W.D.Tex.1975, 398 F.Supp. 1319. Obscenity       5.2


Films exhibited in rooms of motor inn patrons and which had practically no plot or story content, which depicted
in most explicit and detailed form possible continuing series of acts of sexual intercourse, deviate sexual inter-
course, oral sodomy, cunnilingus, and fellatio, which focused on genitalia of participants in lewd manner, which
had no literary, artistic, political or scientific value, and which appealed wholly to the prurient interest in sexual
conduct, were obscene according to both obscenity definition in prior version of this section and test approved
by United States Supreme Court. Locke v. State (Civ.App. 1974) 516 S.W.2d 949. Obscenity                5.2


Information which alleged exhibition of film as “obscene material” was not defective merely by reason of fact
that this section defines motion picture as “performance” and exhibition of performance is not prohibited under
this section, since “motion picture” is also included in definition of “material.” Sanders v. State (App. 1 Dist.
1982) 649 S.W.2d 59, petition for discretionary review granted , vacated 770 S.W.2d 778, opinion after remand.
Obscenity        6


Matters of obscenity may not be exploited, without limit, by films exhibited in places of public accommodations
any more than live sex and nudity can be exhibited, without limit, in such public places. Sanders v. State (App. 1
Dist. 1982) 649 S.W.2d 59, petition for discretionary review granted , vacated 770 S.W.2d 778, opinion after re-
mand. Obscenity        6


Movie was factually and constitutionally obscene notwithstanding that several avowed homosexuals did not find
the film obscene. Beier v. State (App. 14 Dist. 1984) 681 S.W.2d 124, petition for discretionary review granted ,
reversed 687 S.W.2d 2. Obscenity        5.2


Film which contained graphic, explicit depiction of two males engaged in acts of anilingus, fellatio and mutual
masturbation was obscene. Rees v. State (App. 3 Dist. 1995) 909 S.W.2d 264, rehearing overruled, petition for
discretionary review refused, certiorari denied 117 S.Ct. 169, 519 U.S. 863, 136 L.Ed.2d 111. Obscenity
5.2


Film shown during television program did not have to lack any serious educational value in order to be obscene;
overall educational value, if any, of exposure to pornography did not create scientific value, for purposes of ob-
scenity definition. Rees v. State (App. 3 Dist. 1995) 909 S.W.2d 264, rehearing overruled, petition for discre-
tionary review refused, certiorari denied 117 S.Ct. 169, 519 U.S. 863, 136 L.Ed.2d 111. Obscenity        5.2




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V.T.C.A., Penal Code § 43.21                                                                               Page 19




Sexually explicit pictures and communications defendant sent to law enforcement officer posing as teenage girl
constituted “harmful material” under statute criminalizing display of harmful material to a minor; pictures and
communications were tangible, i.e., “capable of being touched or sensed,” and sending them via computer did
not alter their status, and internet pictures, e-mails, or communications were capable of being used or adapted to
arouse interest through medium of internet transmission. State v. Stone (App. 1 Dist. 2004) 137 S.W.3d 167, pe-
tition for discretionary review refused. Obscenity          4; Obscenity    5.2


  15. Computer and floppy diskette

Personal computer and floppy diskettes on which obscene electronic coding was stored and displayed, and
which were used in promotion of child pornography, were tangible “obscene materials,” subject to forfeiture,
even if electronic coding and files on computer could have been erased. Janjua v. State (App. 14 Dist. 1999) 991
S.W.2d 419. Obscenity        22


  16. Obscene communication

Rule of ejusdem generis applied to interpretation of harassment statute, which prohibited obscene communica-
tion, and which defined obscene communications as those containing a patently offensive description of or a so-
licitation to commit an “ultimate sex act,” and then listed such acts. Lefevers v. State (Cr.App. 2000) 20 S.W.3d
707, on remand 2000 WL 1499160. Statutes           194


  17. Performances

Obscenity of defendant's nude dancing performance was established since performance could have appealed to
nothing other than a prurient interest, it depicted or described sexual conduct in a patently offensive way, and it
did not have any serious literary, artistic, political or scientific value. Lnu v. State (App. 13 Dist. 1982) 654
S.W.2d 2. Obscenity        6


A performance which contains an obscene portion will as a whole take on the character of being obscene within
statutory proscriptions. Lnu v. State (App. 13 Dist. 1982) 654 S.W.2d 2. Obscenity    6


  18. Nudity

Mere nudity itself is not obscene. Evert v. State (Cr.App. 1978) 561 S.W.2d 489. Obscenity         1.1


  19. Devices

Obscene devices, defined by sections 43.21(a)(7) and 43.23(c)(1) of the Penal Code to include a dildo, are not
like contraceptives, which citizens must be free to obtain, in order to implement the constitutionally protected
decision not to beget a child, but are like obscene materials, to which the state may deny access because they are
designed, purchased and used consensually only for the purpose of sexual stimulation and gratification and, like
obscene materials, deal with sex in a manner appealing to the prurient interest. Yorko v. State (Cr.App. 1985)
690 S.W.2d 260. Obscenity          7




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V.T.C.A., Penal Code § 43.21                                                                               Page 20




Defendant's conviction for promotion of obscenity did not violate due process clause of State and Federal Con-
stitutions on basis that defendant had insufficient notice that devices confiscated from workplace were obscene;
subd. (7) of this section defined obscene device to include dildo, defendant did not argue that devices were not
dildos, and defendant admitted to police officer that she used devices since she did not have husband or boy-
friend. Yates v. State (App. 5 Dist. 1989) 766 S.W.2d 286, petition for discretionary review refused. Constitu-
tional Law        4509(20); Obscenity       7


“Dildo” is an “obscene device” as a matter of law under Penal Code provision prohibiting intentional promotion
of obscene devices. Webber v. State (App. 3 Dist. 2000) 21 S.W.3d 726, petition for discretionary review re-
fused. Obscenity      6


Testimony of arresting officer, that device sold to her by defendant charged with promotion of obscene device
was “dildo,” that there was no mistaking shape of device as male sexual organ, and that it was capable of stimu-
lating female sexual organ, was sufficient to establish that device was dildo, and was “obscene” within meaning
of statute. Webber v. State (App. 3 Dist. 2000) 21 S.W.3d 726, petition for discretionary review refused. Ob-
scenity      17


  20. Promote, generally

Sexually explicit film which was shown as part of live call-in cable-access program was separate unit of percep-
tion, and therefore was the work to be taken as a whole in determining whether defendants unlawfully promoted
obscenity, rather than the entire television program; program was a sham or pretense for the promotion of sexu-
ally explicit film despite its alleged purpose of providing instruction on sexual fantasies and safe sexual prac-
tices. Rees v. State (App. 3 Dist. 1995) 909 S.W.2d 264, rehearing overruled, petition for discretionary review
refused, certiorari denied 117 S.Ct. 169, 519 U.S. 863, 136 L.Ed.2d 111. Obscenity        5.2


Although definition of word “promote” in subd. (a)(5) of this section prohibiting promotion of obscene material
includes far-reaching prohibitions that the state cannot legitimately control, subd. (a)(5) of this section was not
unconstitutionally applied to defendant, who was charged with commercially exhibiting obscene material, since
prohibition of exhibition of obscene material is within legitimate area of governmental control. Sanders v. State
(App. 1 Dist. 1982) 649 S.W.2d 59, petition for discretionary review granted , vacated 770 S.W.2d 778, opinion
after remand. Constitutional Law        725; Constitutional Law        859


Definition of “promote” in subd. (a)(5) of this section includes “exhibit” as one of its many methods. Sanders v.
State (App. 1 Dist. 1982) 649 S.W.2d 59, petition for discretionary review granted , vacated 770 S.W.2d 778,
opinion after remand. Obscenity       6


“Exhibit,” which is included in definition of “promote” in subd. (a)(5) of this section means to show or display
outwardly, especially by visible signs or actions. Sanders v. State (App. 1 Dist. 1982) 649 S.W.2d 59, petition
for discretionary review granted , vacated 770 S.W.2d 778, opinion after remand. Obscenity        6


  21. Municipal ordinances




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V.T.C.A., Penal Code § 43.21                                                                               Page 21




Proposed municipal ordinance regulating obscenity that defines the community standard on a less than statewide
basis and that determines, as a matter of law, issues which are questions of fact is void as conflicting with state
and federal law; ordinance conflicted with state law by restrictively designating applicable community as city's
adult residents. Op.Atty.Gen.1987, No. JM-780.


  22. Indictment, information or complaint

Information charging that defendant “did * * * intentionally sell * * * obscene material, namely a magazine * *
* which depicts patently offensive representations of actual and simulated anal sodomy” was neither vague, in-
definite nor uncertain and was not violative of due process inasmuch as information qualified word “sodomy”
with modifier “anal” and, thus, limited meaning of “sodomy” so as to require narrow construction. Taylor v.
State (App. 14 Dist. 1981) 625 S.W.2d 839. Constitutional Law         4581


Information charging defendant with “intentionally promoting an obscene device, namely one dildo, by selling
said dildo” was sufficient to show that offense was committed and to apprise defendant of charge against her.
Moses v. State (App. 14 Dist. 1982) 630 S.W.2d 337, rehearing denied 633 S.W.2d 585. Indictment And Inform-
ation      71.4(1)


Word “sodomy” was not used in information charging defendant with promoting obscenity, and therefore, de-
fendant could not contend that trial court erred in denying his motion to quash information as vague, indefinite
and uncertain and in violation of due process because word “sodomy” was such that persons of common intelli-
gence must necessarily differ as to its meaning. Shelton v. State (App. 14 Dist. 1982) 640 S.W.2d 649. Indict-
ment And Information         137(6)


Information charging defendant with criminal offense of commercial obscenity by selling an obscene magazine
which contained “patently offensive representations of actual and simulated sexual intercourse, sodomy and anal
intercourse,” gave defendant sufficient notice of what offense he was accused of committing, and was not insuf-
ficient on basis that the word “sodomy” was not more specifically pled; overruling Stonelake v. State, 638
S.W.2d 619, and Taylor v. State, 625 S.W.2d 839. Barnhart v. State (Cr.App. 1983) 648 S.W.2d 696. Obscenity
      12


Information charging violation of § 43.23 is not rendered voidable or subject to attack for vagueness for spe-
cifically alleging statutory method of “promoting,” for example, where information charges “exhibiting” of ob-
scene material, when that method is self-explanatory. Sanders v. State (App. 1 Dist. 1982) 649 S.W.2d 59, peti-
tion for discretionary review granted , vacated 770 S.W.2d 778, opinion after remand. Obscenity     11


Use of term “sodomy” in information charging defendant with promotion of obscenity was sufficient to put ac-
cused on notice of acts alleged to be obscene. Hoyle v. State (App. 14 Dist. 1982) 650 S.W.2d 97, writ granted ,
rehearing granted , reversed 672 S.W.2d 233. Indictment And Information         71.4(1)


  23. Presumptions and burden of proof




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V.T.C.A., Penal Code § 43.21                                                                              Page 22




Before material may be found obscene and support valid conviction, state must prove beyond reasonable doubt
that it depicts and describes “patently offensive” representations of actual or simulated sexual intercourse, anal
intercourse, or oral sodomy; however, where items charged as obscene are introduced and admitted into evid-
ence, state is not required to introduce testimony as affirmative evidence of community standards. Ho v. State
(App. 1 Dist. 1993) 856 S.W.2d 495, rehearing denied. Obscenity          5.1; Obscenity      17


  24. Admissibility of evidence--In general

Evidence that a person charged with sale of allegedly obscene book entitled “Apartment Sinners” was found not
guilty was not admissible on issue of contemporary standards in prosecution of another for sale of obscene book
entitled “Cum Together.” Walker v. State (Cr.App. 1975) 530 S.W.2d 572. Obscenity          16


Proof of prior acquittals in obscenity cases is not admissible in subsequent cases on issue of community stand-
ards. Walker v. State (Cr.App. 1975) 530 S.W.2d 572. Obscenity         16


In prosecution for promoting an obscene device, a dildo, two photographs from an unknown magazine depicting
masturbation by insertion of a dildo into a female vagina were admissible to prove that the device was designed
for stimulation of human genital organs, an element of the offense, where a vice squad officer, who testified that
he had made several investigations concerning those types of devices and had seen the depiction of such devices,
testified that the photographs correctly represented a dildo being used for the stimulation of human genital or-
gans. Moses v. State (App. 14 Dist. 1982) 630 S.W.2d 337, rehearing denied 633 S.W.2d 585. Obscenity
16


Permitting police officers to testify with respect to purpose and use of obscene devices, based in part upon their
having read certain magazine advertisements which were not introduced into evidence and in part on their own
personal observations and experiences as vice squad officers, was proper. Southwick v. State (App. 1 Dist.
1985) 701 S.W.2d 927. Witnesses           37(2)


  25. ---- Local community standards, admissibility of evidence

Exclusion of proffered materials on issue of contemporary community standards was not harmless on ground
that their exclusive nature, combined with fact that they were purchased in Dallas or Fort Worth, clearly evid-
enced that they did not relate to what community standards were in Johnson County. Berg v. State
(Cr.App.1980) 599 S.W.2d 802. Criminal Law           1170(1)


Jury was given an inaccurate portrait of what contemporary community standards might have been where,
though instructed to consider everything they had learned or observed during their travels and own experiences,
they were precluded from considering proffered materials which were no less and possibly more probative than
their counterparts. Berg v. State (Cr.App. 1980) 599 S.W.2d 802. Obscenity       16


Refusing to admit in evidence nine magazines and one film offered by defendant to reflect “contemporary com-
munity standards” as that term was utilized in the 1975 amendment to subd. (1)(A) of this section defining ob-




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V.T.C.A., Penal Code § 43.21                                                                             Page 23




scenity as material having as a whole a dominant theme that appeals to prurient interest of average person ap-
plied to contemporary community standards was reversible error. Berg v. State (Cr.App. 1980) 599 S.W.2d 802.
Criminal Law        1170(1); Obscenity     16


In prosecution for commercial obscenity, statistical evidence of community patronage of movie “Deep Throat,”
offered as circumstantial evidence of contemporary community standards, was not cumulative, even though oth-
er witnesses testified regarding their opinion whether another film was within limits of contemporary com-
munity standards, and thus exclusion of such evidence was erroneous. Keller v. State (Cr.App. 1980) 606
S.W.2d 931. Criminal Law         675


Statistical evidence of community patronage of movie “Deep Throat,” offered as circumstantial evidence of con-
temporary community standards, was legally relevant to issue of contemporary community standards in prosecu-
tion for sale of another film, and thus exclusion of evidence was erroneous. Keller v. State (Cr.App. 1980) 606
S.W.2d 931. Obscenity          16


Any appropriate testimony regarding community standards proffered by a defendant in obscenity case should be
admitted as relevant and material to the process of determining if item challenged is obscene, and case authority
does not distinguish between nonjury and jury trials. Knight v. State (App. 14 Dist. 1982) 642 S.W.2d 180. Ob-
scenity       16


In obscenity prosecution, error was not shown in excluding expert testimony as to community standards in view
of fact that one expert's testimony as summarized in bill of exceptions would only have demonstrated means
which he employed to determine community standards and other expert would have testified that literature “such
as” magazine in question had been used by experts in classes dealing with human sexuality and was similar to
movie believed to have had wide viewing. Knight v. State (App. 14 Dist. 1982) 642 S.W.2d 180. Criminal Law
     476.5


In prosecution for promotion of obscenity, testimony of law clerk employed by defense attorney that he had
bought nine magazines at various locations in the county and was familiar with their contents, but that he had
not looked through the magazine in issue, failed to establish similarity between the nine magazines and the
magazine in issue, and thus, the testimony was insufficient to qualify the nine magazines as relevant to issue of
community standards. Gill v. State (App. 14 Dist. 1984) 675 S.W.2d 549. Obscenity        16


  26. Sufficiency of evidence

Evidence that bestiality video was obscene, applying contemporary community standards, supported conviction
for obscenity, despite defendant's contention that the video was a “viral video,” meaning that it received a cer-
tain number of “hits” on the internet, and that it was popular in dorms; under a statewide community standard,
the average person in Texas would find the images depicting a woman being sexually penetrated by a pony ap-
pealed to the prurient interest in sex, depicted sexual conduct in a patently offensive way, and lacked serious
artistic or scientific value. Varkonyi v. State (App. 8 Dist. 2008) 276 S.W.3d 27, petition for discretionary re-
view refused. Obscenity         5.2




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V.T.C.A., Penal Code § 43.21                                                                                  Page 24




In trial for promotion of obscenity, State was not required to provide expert testimony that pornographic film
shown by defendants during television program was obscene, where film itself as well as film of entire televi-
sion program were in evidence. Rees v. State (App. 3 Dist. 1995) 909 S.W.2d 264, rehearing overruled, petition
for discretionary review refused, certiorari denied 117 S.Ct. 169, 519 U.S. 863, 136 L.Ed.2d 111. Obscenity
      17


In cases involving hard-core pornography, trier of fact needs no expert advice to determine whether material is
obscene. Rees v. State (App. 3 Dist. 1995) 909 S.W.2d 264, rehearing overruled, petition for discretionary re-
view refused, certiorari denied 117 S.Ct. 169, 519 U.S. 863, 136 L.Ed.2d 111. Obscenity      17


Police officers' testimony that, in their opinion, average adult Texan would find homosexual magazine, contain-
ing photographs and illustrations of oral and anal sex and group sex between males, appealed to prurient in-
terests, was patently offensive and lacked literary, artistic, political and scientific merit was sufficient to support
obscenity conviction of defendant who sold magazine; evidence showing that magazine was unacceptable to
members of homosexual community was not required. Coon v. State (App. 2 Dist. 1994) 871 S.W.2d 284, peti-
tion for discretionary review refused. Obscenity        17


Jurors in obscenity cases do not need assistance of experts or testimony from members of deviant group unless
contested materials are directed at such a bizarre deviant group that experience of trier of fact would be plainly
inadequate from which to judge whether materials appeal to prurient interest. Coon v. State (App. 2 Dist. 1994)
871 S.W.2d 284, petition for discretionary review refused. Obscenity        17


Finding that videotape sold by obscenity defendant was obscene was supported by evidence that videotape con-
tained patently offensive representations of actual sexual intercourse, oral sodomy, masturbation and male ejacu-
lation, that, taken as a whole, it appealed to a prurient interest in sex, and that it lacked any serious literary,
artistic, political or scientific value. Ho v. State (App. 1 Dist. 1993) 856 S.W.2d 495, rehearing denied. Obscen-
ity       5.2


Evidence that defendant and his family owned theater and that defendant controlled projection room operations
was sufficient to support conviction of promoting and possessing obscene motion picture. Brady v. State (App.
13 Dist. 1990) 799 S.W.2d 408. Obscenity        17


Although cover of sexually explicit magazine does not automatically impute knowledge of its character and con-
tent to viewer of that cover, sexually explicit cover may be considered as evidence in deciding whether defend-
ant charged with promotion of obscene materials had such knowledge. Glass v. State (App. 1 Dist. 1988) 761
S.W.2d 806. Obscenity         16


Rational trier of fact could have concluded beyond reasonable doubt that defendant knew nature of business
where she worked and content and character of magazine she sold, and thus defendant was properly convicted of
promotion of obscene material, where defendant sold to plainclothes policeman magazine, covers of which de-
picted explicit sexual intercourse and oral sodomy, similar to covers of other magazines displayed for sale at




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V.T.C.A., Penal Code § 43.21                                                                                 Page 25




store, even though magazine was sealed with stickers stating that material had been sealed prior to exhibition
and that clerk who sold material had no knowledge of contents. Glass v. State (App. 1 Dist. 1988) 761 S.W.2d
806. Obscenity      17


There was no rational basis upon which to find defendant guilty of intentionally promoting obscene material by
exhibiting a motion picture film with knowledge of its obscene content and character where, though the State re-
lied on defendant's act of selling tickets to police officers to prove that she promoted the film by exhibiting it,
there was no evidence that defendant had anything to do with the operation of the movie projector or the selec-
tion or showing of the film and, thus, no evidence that defendant exhibited the film. Goodman v. State (Cr.App.
1984) 667 S.W.2d 135. Obscenity          17


In prosecution for possession of obscene device with the intent to promote it, evidence, including nature of arti-
ficial vaginas, manner in which they were displayed in store, and defendant's remarks concerning use and clean-
ing of devices was sufficient to support jury's finding that devices were designed and being marketed as useful
primarily for stimulation of human genital organs. Teeters v. State (App. 13 Dist. 1981) 624 S.W.2d 391. Ob-
scenity       17


  27. Instructions--In general

Instruction that jury could not convict defendant of commercially exhibiting obscene material if they found that
film had scientific or educational value adequately protected defendant's rights, so that there was no error in re-
fusal to instruct jury on the educational, therapeutic, or scientific value, if any, of the film in question. Walthall
v. State (Cr.App. 1980) 594 S.W.2d 74. Criminal Law            829(4)


Because dildo is obscene per se if designed or marketed as useful primarily for stimulation of human genital or-
gans, trial court, in prosecution for promoting such a device, was not required to instruct jury on definition of
“obscene.” Moses v. State (App. 14 Dist. 1982) 630 S.W.2d 337, rehearing denied 633 S.W.2d 585. Obscenity
     20


Trial court in prosecution for promoting obscenity did not err in charging jury that “patently offensive” means so
offensive on its face as to affront current community standards of decency. Hoyle v. State (App. 14 Dist. 1982)
650 S.W.2d 97, writ granted , rehearing granted , reversed 672 S.W.2d 233. Obscenity           20


Trial court was not required to instruct jury in trial for possession with intent to promote obscene devices that it
had to find that “dildos” possessed by defendant were without serious quality, artistic merit, literary merit, or
scientific value, as subd. (7) of this section specifically defined “dildo” as “obscene device.” Myers v. State
(App. 2 Dist. 1989) 781 S.W.2d 730, petition for discretionary review refused. Obscenity          18.1


Defendant's objection to jury charge in trial for promotion of obscenity, that charge did not instruct jury that it
must find television program lacked serious educational value before it could find program obscene, was too
broad to preserve claimed error for review; issue in trial was whether film shown during television program was
obscene rather than whether program as a whole was obscene. Rees v. State (App. 3 Dist. 1995) 909 S.W.2d 264




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V.T.C.A., Penal Code § 43.21                                                                                Page 26




, rehearing overruled, petition for discretionary review refused, certiorari denied 117 S.Ct. 169, 519 U.S. 863,
136 L.Ed.2d 111. Criminal Law          1043(2)


  28. ---- Local community standards, generally, instructions

In trial of an obscenity case, there should be a court instruction limiting community standard to that of tolerance.
Tyree v. State (App.1982) 638 S.W.2d 245, affirmed by unpublished opinion; Porter v. State (App.1982) 638
S.W.2d 249, affirmed by unpublished opinion.


Jury instruction in prosecution of defendants for distribution of obscene materials requiring application of com-
munity standard of the “nation as a whole” did not require reversal of conviction in the absence of a showing of
material prejudice to defendants. Goodwin v. State (Cr.App. 1974) 514 S.W.2d 942. Criminal Law
1172.1(3)


One of the most critical phases in the court's charge in an obscenity prosecution is that which informs the jury
that the phrase “contemporary community standards” means the average conscience of the time and the present
critical point in the compromise between candor and shame at which the community “may have arrived here and
now.” Berg v. State (Cr.App. 1980) 599 S.W.2d 802. Obscenity          20


Proper community scope for determining obscenity is not limited to one county; thus it was error to charge on
countywide standard over objection of defendant charged with commercial obscenity. LaRue v. State (Cr.App.
1980) 611 S.W.2d 63. Obscenity       1.4


In prosecution which resulted in conviction for offense of selling obscene magazine, trial court improperly
defined and limited community to one county in instructing jury on contemporary community standards to de-
termine whether materials were obscene. Graham v. State (Cr.App. 1981) 620 S.W.2d 133. Obscenity      20


In prosecution for commercial obscenity, trial court's instructions were not erroneous for failing to define con-
temporary community standards with reference to standards of one county or to age or maturity of community.
Boyd v. State (Cr.App. 1982) 643 S.W.2d 700. Obscenity          20


Applicable geographical area for determining contemporary community standards for purposes of prosecution
under this section was entire state rather than county, and trial court committed reversible error by incorrectly
defining area in its charge to jury. Brewer v. State (Cr.App. 1983) 659 S.W.2d 441. Criminal Law
1172.1(3); Obscenity       1.4; Obscenity        19


Defendant was not penalized for relying on law as it stood at time of trial by requesting that jury be instructed
that it was to evaluate magazine in terms of community standards of “tolerance” within geographical region of
county, in reliance upon decision that standard of “decency” in this section is unconstitutional, where defendant
was tried under community standard of “tolerance,” which is more lenient concept than “decency,” but under
which jury may still properly identify material in question as being obscene, and where use of large metropolitan




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V.T.C.A., Penal Code § 43.21                                                                               Page 27




area of county was more favorable to defendant than use of statewide area which would include generally more
conservative views of citizens in smaller cities and rural areas. Staten v. State (App. 14 Dist. 1985) 686 S.W.2d
268. Obscenity      1.4


  29. ---- Children as community, instructions

Trial court, in prosecution for promoting obscenity through sale of allegedly obscene magazine, did not imper-
missibly direct jury to consider children in determining contemporary standards of average person of community
as a whole; rather, it adequately directed jury's consideration to adults. Hoyle v. State (App. 14 Dist. 1982) 650
S.W.2d 97, writ granted , rehearing granted , reversed 672 S.W.2d 233. Obscenity           20


In prosecution for promotion of obscenity, jury instruction that “obscene” means material that the average per-
son, applying contemporary community standards, would find that, taken as a whole, appeals to the prurient in-
terest in sex was sufficient without additional instruction to exclude children from being part of the
“community.” Gill v. State (App. 14 Dist. 1984) 675 S.W.2d 549. Obscenity       20


Trial court's error in overruling defendant's objection to prosecutor's inclusion of children in community for pur-
poses of determining community standard in obscenity case was harmless, where trial court told jury that they
were to be guided by court's instruction and to use their better judgment as jurors regarding prosecutor's argu-
ment. Campbell v. State (App. 4 Dist. 1988) 765 S.W.2d 817, petition for discretionary review refused. Criminal
Law        1171.1(3)


State was not required to produce all volumes in series of comic books in order for jury to determine whether,
when taken as a whole, comic book sold by defendant was obscene, where complained-of volume was sold as
separate, independent unit. Castillo v. State (App. 5 Dist. 2002) 79 S.W.3d 817, petition for discretionary review
refused, certiorari denied 123 S.Ct. 1593, 538 U.S. 924, 155 L.Ed.2d 315. Obscenity         5.2


  30. ---- Prurient interest, instructions

In prosecution for promoting obscenity, trial court was not required to define term “prurient interest” in jury
charge since that term was not defined by statute. Andrews v. State (Cr.App. 1983) 652 S.W.2d 370. Obscenity
     20


Defendant was not prejudiced by court's refusal to define “prurient interest” for jury; charge given both included
obscenity standard and indicated to jury types of conduct that were considered obscene, thereby adequately cov-
ering defendant's requested instruction. Ho v. State (App. 1 Dist. 1993) 856 S.W.2d 495, rehearing denied.
Criminal Law        829(3)


Trial court was not obligated to include definition of “prurient interest” when instructing jury in obscenity case.
Ho v. State (App. 1 Dist. 1993) 856 S.W.2d 495, rehearing denied. Obscenity          20




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V.T.C.A., Penal Code § 43.21                                                                                 Page 28




Instruction defining “prurient interest,” for purposes of obscenity offense, as unhealthy interest in nudity, sex or
excretion, did not have to add that jury could not find defendants guilty if film appealed only to viewers' healthy
interest in sex; from definition given, a healthy interest in sex was, logically, nonprurient. Rees v. State (App. 3
Dist. 1995) 909 S.W.2d 264, rehearing overruled, petition for discretionary review refused, certiorari denied 117
S.Ct. 169, 519 U.S. 863, 136 L.Ed.2d 111. Obscenity           20


It is unnecessary to define prurient interest in court's jury charge during trial for obscenity offense. Rees v. State
(App. 3 Dist. 1995) 909 S.W.2d 264, rehearing overruled, petition for discretionary review refused, certiorari
denied 117 S.Ct. 169, 519 U.S. 863, 136 L.Ed.2d 111. Obscenity            20


  31. Jury questions

A jury must first determine what are the governing “contemporary community standards” before it can decide
whether given materials are in fact obscene. Berg v. State (Cr.App. 1980) 599 S.W.2d 802. Obscenity  1.4


Issue of what is or is not acceptable according to contemporary community standards is question jury must re-
solve before determining whether particular material distributed, in prosecution for commercially distributing
obscene material, is in fact obscene. Carlock v. State (Cr.App. 1980) 609 S.W.2d 787. Obscenity    19


In applying this section, fact finder must determine what is or is not acceptable according to contemporary com-
munity standards before determining whether particular material is in fact obscene. McMahon v. State (App. 14
Dist. 1982) 630 S.W.2d 730, review refused. Obscenity         19


The question whether material is obscene under “contemporary community standards” is a matter of fact to be
determined by the jury. Andrews v. State (App. 1 Dist. 1982) 639 S.W.2d 4, review refused, affirmed in part ,
reversed in part 652 S.W.2d 370. Obscenity     19


In determining whether homosexual magazine sold by defendant was obscene, jury was required to judge mater-
ial with reference to targeted audience and then evaluate material from viewpoint of average adult person, apply-
ing contemporary community standards, to determine whether it appealed to prurient interests, and to apply
same standard to determine if material was offensive and lacking recognized merit. Coon v. State (App. 2 Dist.
1994) 871 S.W.2d 284, petition for discretionary review refused. Obscenity        5.2


V. T. C. A., Penal Code § 43.21, TX PENAL § 43.21


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Penal Code § 43.23                                                                                  Page 1




                                          Effective: September 1, 2003

Vernon's Texas Statutes and Codes Annotated Currentness
 Penal Code (Refs & Annos)
    Title 9. Offenses Against Public Order and Decency
          Chapter 43. Public Indecency (Refs & Annos)
            Subchapter B. Obscenity (Refs & Annos)
              § 43.23. Obscenity


(a) A person commits an offense if, knowing its content and character, he wholesale promotes or possesses with
intent to wholesale promote any obscene material or obscene device.



(b) Except as provided by Subsection (h), an offense under Subsection (a) is a state jail felony.


(c) A person commits an offense if, knowing its content and character, he:


  (1) promotes or possesses with intent to promote any obscene material or obscene device; or


  (2) produces, presents, or directs an obscene performance or participates in a portion thereof that is obscene or
  that contributes to its obscenity.


(d) Except as provided by Subsection (h), an offense under Subsection (c) is a Class A misdemeanor.


(e) A person who promotes or wholesale promotes obscene material or an obscene device or possesses the same
with intent to promote or wholesale promote it in the course of his business is presumed to do so with know-
ledge of its content and character.


(f) A person who possesses six or more obscene devices or identical or similar obscene articles is presumed to
possess them with intent to promote the same.


(g) It is an affirmative defense to prosecution under this section that the person who possesses or promotes ma-
terial or a device proscribed by this section does so for a bona fide medical, psychiatric, judicial, legislative, or
law enforcement purpose.


(h) The punishment for an offense under Subsection (a) is increased to the punishment for a felony of the third




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V.T.C.A., Penal Code § 43.23                                                                                    Page 2




degree and the punishment for an offense under Subsection (c) is increased to the punishment for a state jail
felony if it is shown on the trial of the offense that obscene material that is the subject of the offense visually de-
picts activities described by Section 43.21(a)(1)(B) engaged in by:


  (1) a child younger than 18 years of age at the time the image of the child was made;


  (2) an image that to a reasonable person would be virtually indistinguishable from the image of a child young-
  er than 18 years of age; or


  (3) an image created, adapted, or modified to be the image of an identifiable child.


(i) In this section, “identifiable child” means a person, recognizable as an actual person by the person's face,
likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature:


  (1) who was younger than 18 years of age at the time the visual depiction was created, adapted, or modified;
  or


  (2) whose image as a person younger than 18 years of age was used in creating, adapting, or modifying the
  visual depiction.


(j) An attorney representing the state who seeks an increase in punishment under Subsection (h)(3) is not re-
quired to prove the actual identity of an identifiable child.



CREDIT(S)

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1979, 66th Leg., p. 1975, ch. 778,
§ 2, eff. Sept. 1, 1979; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994; Acts 2003, 78th Leg., ch. 1005,
§ 1, eff. Sept. 1, 2003.


VALIDITY

    < This section has been declared unconstitutional by Reliable Consultants, Inc. v. Earle, 517 F.3d
    738, C.A.5 (Tex.), 2008.>


HISTORICAL AND STATUTORY NOTES

2003 Main Volume

The 1979 amendment rewrote this section which prior thereto read:




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V.T.C.A., Penal Code § 43.23                                                                                   Page 3




“(a) A person commits an offense if, knowing the content of the material:


  “(1) he sells, commercially distributes, commercially exhibits, or possesses for sale, commercial distribution,
  or commercial exhibition any obscene material;

  “(2) he presents or directs an obscene play, dance, or performance or participates in that portion of the play,
  dance, or performance that makes it obscene; or

  “(3) he hires, employs, or otherwise uses a person under the age of 17 years to achieve any of the purposes set
  out in Subdivisions (1) and (2) of this subsection.


“(b) It is an affirmative defense to prosecution under this section that the obscene material was possessed by a
person having scientific, educational, governmental, or other similar justification.


“(c) An offense under this section is a Class B misdemeanor unless committed under Subsection (a)(3) of this
section, in which event it is a Class A misdemeanor.”


Sections 3 and 4 of the 1979 amendatory act provide:


“Sec. 3. If any portion of this Act is declared unlawful by a court of competent jurisdiction, this declaration does
not invalidate any other portions of this Act.


“Sec. 4. This Act applies only to offenses committed on or after its effective date [Sept. 1, 1979]. A criminal ac-
tion for an offense committed before this Act's effective date is governed by the law in existence before the ef-
fective date of this Act, and Sections 43.21 and 43.23, Penal Code, as in existence before the effective date of
this Act, are continued in effect for this purpose as if this Act were not in effect. For the purpose of this section,
an offense is committed before the effective date of this Act if any element of the offense is committed before
the effective date.”


The 1993 amendment rewrote subsecs. (b) and (g); and, in subsec. (d), following “Subsection (c)”, deleted “of
this section”. Prior to amendment, subsecs. (b) and (g) read:


“(b) An offense under Subsection (a) of this section is a felony of the third degree;”


“(g) This section does not apply to a person who possesses or distributes obscene material or obscene devices or
participates in conduct otherwise prescribed by this section when the possession, participation, or conduct oc-
curs in the course of law enforcement activities.”


2010 Electronic Update

2003 Legislation




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V.T.C.A., Penal Code § 43.23                                                                                 Page 4




Acts 2003, 78th Leg., ch. 1005, in subsecs. (b) and (d), substituted “Except as provided by Subsection (h), an”
for “An”; and added subsecs. (h) to (j).


Section 11 of Acts 2003, 78th Leg., ch. 1005 provides:


“(a) The change in law made by this Act applies only to an offense committed on or after the effective date of
this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element
of the offense occurs before the effective date.


“(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense
was committed, and the former law is continued in effect for that purpose.”


2003 Main Volume

Prior Laws:

    Rev.P.C.1911, art. 509.

    Acts 1943, 48th Leg., p. 38, ch. 35, § 1.

    Acts 1955, 54th Leg., p. 386, ch. 107, § 1.

    Acts 1957, 55th Leg., p. 425, ch. 203, § 1.

    Acts 1961, 57th Leg., p. 1041, ch. 461, § 1.

    Acts 1969, 61st Leg., p. 1547, ch. 468, § 1.

    Acts 1969, 61st Leg., p. 2057, ch. 711, § 1.

    Acts 1971, 62nd Leg., p. 2723, ch. 887, §§ 1 to 3.

    Acts 1971, 62nd Leg., p. 3406, ch. 1038, § 1.

    Vernon's Ann.P.C. (1925) art. 527, §§ 5, 8(B).


CROSS REFERENCES

      Affirmative defense explained, see V.T.C.A., Penal Code § 2.04.
      Age computation, see V.T.C.A., Penal Code § 1.06.
      “Person” defined, see V.T.C.A., Penal Code § 1.07.
      Penalties for repeat and habitual felony offenders, see V.T.C.A., Penal Code § 12.42.
      “Possession” defined, see V.T.C.A., Penal Code § 1.07.
      Punishment,
        Class A misdemeanor, see V.T.C.A., Penal Code § 12.21.




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V.T.C.A., Penal Code § 43.23                                                                           Page 5




        State jail felony, see V.T.C.A., Penal Code § 12.35.

LAW REVIEW COMMENTARIES

Annual survey of Texas law: Criminal law--Obscenity. Mike McColloch and David W. Coody, 37 Sw.L.J. 399
(1983).

Changing standards of obscenity in Texas. 34 Sw.L.J. 1201 (1981).

Good vibrations: Liberating sexuality from the commercial regulation of sexual devices. Alana Chazan, 18 Tex.
J. Women & L. 263 (2009).

Impact of new Penal Code on First Amendment freedoms. 38 Tex.B.J. 245 (1975).

Obscenity laws. 17 Hous.L.Rev. 835 (1980).

LIBRARY REFERENCES

2003 Main Volume

    Obscenity       7.
    Westlaw Topic No. 281.
    C.J.S. Obscenity §§ 13 to 18.

RESEARCH REFERENCES

2010 Electronic Update

ALR Library

192 ALR, Federal 1, Propriety of Federal Court's Abstention, Under Railroad Commission of Tex. v. Pullman
Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941), as to Claim Based on First Amendment.


183 ALR, Federal 379, Propriety of Federal Court's Abstention, Under Railroad Commission of Tex. v. Pullman
Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941), as to Federal Constitutional Due Process or Equal Pro-
tection...


94 ALR 5th 497, Constitutionality of State Statutes Banning Distribution of Sexual Devices.


5 ALR 3rd 1214, Comment Note.--Validity of Procedures Designed to Protect the Public Against Obscenity.


169 ALR 315, Comment Note.--Duty in Instructing Jury in Criminal Prosecution to Explain and Define Offense
Charged.


162 ALR 495, Constitutionality of Statutes or Ordinances Making One Fact Presumptive or Prima Facie Evid-
ence of Another.




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V.T.C.A., Penal Code § 43.23                                                                        Page 6




91 ALR 1478, Offer of Defendant in Criminal Case to Concede or Stipulate Fact, or His Admission of Same, as
Affecting Prosecution's Right to Introduce Evidence Thereof.


81 ALR 801, What Amounts to an Obscene Play or Book Within Prohibition Statute.


24 ALR 1432, Indictment Based on Evidence Illegally Procured.


Encyclopedias

55 Am. Jur. Proof of Facts 3d 249, Proof that Motion Picture is Obscene or Harmful to Minors.


61 Am. Jur. Proof of Facts 3d 51, Cyberporn: Transmission of Images by Computer as Obscene, Harmful to
Minors or Child Pornography.


TX Jur. 3d Criminal Law § 1313, Generally; “Obscene”.


TX Jur. 3d Criminal Law § 1315, “Patently Offensive”.


TX Jur. 3d Criminal Law § 1322, Generally; Obscene Display or Distribution.


TX Jur. 3d Criminal Law § 1323, Obscenity.


TX Jur. 3d Criminal Law § 1324, Obscenity--Constitutionality.


TX Jur. 3d Criminal Law § 1334, Presumptions.


TX Jur. 3d Criminal Law § 1339, Sufficiency.


TX Jur. 3d Criminal Law § 1341, Expert Testimony.


Treatises and Practice Aids

Charlton, 6 Tex. Prac. Series § 25.7, Obscenity.


Charlton, 6 Tex. Prac. Series App. A, Penal Code.


McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series § 24.7, Obscene Display or Distribution.




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V.T.C.A., Penal Code § 43.23                                                                           Page 7




McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series § 102.4, List of Statutory Presumptions.


McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series § 109.1, Model for Dictating Objections to the Court's
Charge.


McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series § 130.5, Obscenity.


Morgan and Gaither, 29 Tex. Prac. Series § 24:1, Rules for Sealing a Juvenile's Files and Records and Require-
ments for Sexual Offender Registration.


NOTES OF DECISIONS

  In general 9
  Admissibility of evidence 24
  Burden of proof 22, 23
       Burden of proof - In general 22
       Burden of proof - Knowledge of content 23
  Circumstantial evidence, sufficiency of evidence 32
  Community standards, generally 11
  Community standards, validity 5
  Construction and application 8
  Defenses 17-19
       Defenses - In general 17
       Defenses - Law enforcement 19
       Defenses - Private possession 18
  Due process, validity 2
  Employees, sufficiency of evidence 27
  Equal protection, validity 3
  Erotic dancing, sufficiency of evidence 29
  Exhibition 12
  Federal law 10
  Independent determination of obscenity, review 38
  Indictment and information 14
  Instructions 33-35
       Instructions - In general 33
       Instructions - Obscene nature of material 34
       Instructions - Presumptions 35
  Introduction of alleged obscene material, sufficiency of evidence 30
  Jury deliberations 36
  Knowledge of content, burden of proof 23
  Knowledge of content, generally, sufficiency of evidence 26
  Knowledge of content, presumptions 21
  Law enforcement, defenses 19




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V.T.C.A., Penal Code § 43.23                                                                             Page 8




  Managers, sufficiency of evidence 28
  Multiple offenses 13
  Obscene devices, sufficiency of evidence 30.5
  Obscene nature of material, instructions 34
  Presumption of knowledge, generally, validity 6
  Presumptions 20-21, 35
      Presumptions - In general 20
      Presumptions - Instructions 35
      Presumptions - Knowledge of content 21
  Pretrial procedure 16
  Private possession, defenses 18
  Review 37, 38
      Review - In general 37
      Review - Independent determination of obscenity 38
  Right to jury trial 15
  Right to privacy, validity 4
  Standing 14.5
  Sufficiency of evidence 25-32
      Sufficiency of evidence - In general 25
      Sufficiency of evidence - Circumstantial evidence 32
      Sufficiency of evidence - Employees 27
      Sufficiency of evidence - Erotic dancing 29
      Sufficiency of evidence - Introduction of alleged obscene material 30
      Sufficiency of evidence - Knowledge of content, generally 26
      Sufficiency of evidence - Managers 28
      Sufficiency of evidence - Obscene devices 30.5
      Sufficiency of evidence - Testimony of law enforcement officers 31
  Testimony of law enforcement officers, sufficiency of evidence 31
  Validity 1-7
      Validity - In general 1
      Validity - Community standards 5
      Validity - Due process 2
      Validity - Equal protection 3
      Validity - Presumption of knowledge, generally 6
      Validity - Right to privacy 4
      Validity - Validity of prior laws 7
  Validity of prior laws 7

  1. Validity--In general

This section and § 43.21 were not constitutionally impermissible. McKenzie v. Butler (D.C.1975) 398 F.Supp.
1319; Boyd v. State (Cr.App.1983) 643 S.W.2d 700.


Since criminal penalties can be imposed by a statute which implicates guarantees under U.S.C.A. Const.Amend.
1, §§ 43.21 to 43.23 dealing with obscenity must be subjected to close scrutiny. Gholson v. State (App. 14 Dist.




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V.T.C.A., Penal Code § 43.23                                                                                   Page 9




1983) 667 S.W.2d 168, petition for discretionary review refused. Obscenity           2.1


This section prohibiting possession of obscene device with intent to sell is not unconstitutional under either
State or Federal Constitutions. Yorko v. State (App. 14 Dist. 1984) 681 S.W.2d 633, petition for discretionary
review granted , affirmed 690 S.W.2d 260.


Sections 43.21(a)(7) and 43.23(c)(1) of the Penal Code making it an offense for a person, knowing content and
character of an obscene device, defined to include a dildo, to either promote device or possess same with intent
to promote is not violative of Const. Art. I, § 19 as arbitrarily depriving an individual of the right to use and dis-
pose of his property as he pleases. Yorko v. State (Cr.App. 1985) 690 S.W.2d 260. Obscenity             2.5


Penal Code § 43.21 defining obscenity and Penal Code § 43.23 making it misdemeanor if person promotes or
possesses with intent to promote obscene material are not vague, indefinite, or uncertain. Ybarra v. State (App. 4
Dist. 1988) 762 S.W.2d 368. Obscenity       2.5


Subsection (c)(1) of this section prohibiting sale of obscene material was not unconstitutionally vague. Graham
v. State (App. 7 Dist. 1989) 767 S.W.2d 271. Obscenity        2.5


Law enforcement exception to this section does not render this section overbroad or unconstitutionally vague.
Rent v. State (App. 5 Dist. 1989) 771 S.W.2d 723, petition for discretionary review granted , affirmed 838
S.W.2d 548, rehearing on petition for discretionary review granted, rehearing denied, rehearing on petition for
discretionary review denied. Obscenity      2.5


This section was not unconstitutional for failure to provide exception or defense to prosecution where obscene
material is promoted by person having scientific, educational, governmental or other similar justification. Rent
v. State (App. 5 Dist. 1989) 771 S.W.2d 723, petition for discretionary review granted , affirmed 838 S.W.2d
548, rehearing on petition for discretionary review granted, rehearing denied, rehearing on petition for discre-
tionary review denied. Obscenity        2.5


This section, outlawing sale of magazines having as their dominant theme subject matter that, inter alia, appeals
to prurient interest in sex, is not overbroad under Const. Art. 1, § 8 protecting opinions “on any subject.” Video
News, Inc. v. State (App. 1 Dist. 1989) 781 S.W.2d 411, petition for discretionary review refused, petition for
discretionary review refused 786 S.W.2d 356, rehearing on petition for discretionary review denied , certiorari
denied 111 S.Ct. 138, 498 U.S. 849, 112 L.Ed.2d 105. Constitutional Law           2194; Obscenity       2.5


This section did not violate Const. Art. 1, § 8. Video News, Inc. v. State (App. 1 Dist. 1990) 790 S.W.2d 340.


Statutory definition of “obscene device” was not unconstitutionally vague; though term “dildo” was not statutor-
ily defined, items in question concededly met dictionary definition. Regalado v. State (App. 14 Dist. 1994) 872
S.W.2d 7, petition for discretionary review refused, certiorari denied 115 S.Ct. 194, 513 U.S. 871, 130 L.Ed.2d




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126. Obscenity       2.5


Statute proscribing possession with intent to sell obscene devices was not unconstitutionally overbroad as ap-
plied to adult book store clerk; though devices in question were prescribed for medical patients suffering from
sexual disfunction, there was no evidence that clerk was such patient, that he was health care practitioner, or that
he was using device for medical reasons. Regalado v. State (App. 14 Dist. 1994) 872 S.W.2d 7, petition for dis-
cretionary review refused, certiorari denied 115 S.Ct. 194, 513 U.S. 871, 130 L.Ed.2d 126. Obscenity          2.5


Proper court to reexamine state obscenity statute was Court of Criminal Appeals, not intermediate appellate
court, where defendant challenged facial validity of obscenity statute as unconstitutional infringement of right to
free expression under State Constitution and alleged that courts had improperly interpreted First Amendment to
United States Constitution without independent consideration of vitality of State Constitution's grant of free
speech, but the Court of Criminal Appeals, applying same statute, had already declined to set lower standards
for obscenity under Texas Constitution. Flores v. State (App. 7 Dist. 1994) 883 S.W.2d 383, petition for discre-
tionary review refused. Courts      247(8)


  2. ---- Due process, validity

Texas statute which, in essence, criminalized the selling, advertising, giving or lending of any device designed
or marketed for sexual stimulation, unless defendant could prove that device was sold, advertised, given or lent
for statutorily-approved purpose, impermissibly burdened the substantive due process rights of customers of
businesses that sold such devices to engage in private intimate conduct of their choosing; neither state's interest
in discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procre-
ation, nor its interest in protecting children from improper sexual expression or desire to protect “unwilling
adults” from exposure to sexual devices, was sufficient to justify its heavy-handed restriction, not only on sale
and advertisement, but upon giving or lending of such devices. Reliable Consultants, Inc. v. Earle, C.A.5
(Tex.)2008, 517 F.3d 738, rehearing and rehearing en banc denied 538 F.3d 355. Constitutional Law
4509(20); Obscenity         2.5


The obscenity statute does not violate the due process clause of the Fourteenth Amendment. Villarreal v. State
(App. 13 Dist. 2008) 267 S.W.3d 204. Constitutional Law        4509(20); Obscenity    2.5


Statute providing that person commits offense if, knowing its content and character, she promotes or possesses
with intent to promote any obscene material or obscene devices, was not unconstitutional restriction on right of
privacy under due process clause; there was no constitutionally-protected right to sell obscene material, State
had legitimate interest in regulating commerce in obscene material, and prohibiting sale of obscene material was
rationally related to government's advancement of this legitimate interest. Ex parte Dave (App. 2 Dist. 2007) 220
S.W.3d 154, rehearing overruled, petition for discretionary review refused, certiorari denied 128 S.Ct. 628, 552
U.S. 1023, 169 L.Ed.2d 394. Obscenity        2.5


Defendant failed to preserve issue of whether statute prohibiting promotion of obscene devices violated due pro-
cess and due course of law provisions of federal and state constitutions, where argument was not raised in mo-




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V.T.C.A., Penal Code § 43.23                                                                                Page 11




tion for new trial. Webber v. State (App. 3 Dist. 2000) 21 S.W.3d 726, petition for discretionary review refused.
Criminal Law         1030(2)


Statutory presumption that person who possesses six or more obscene devices or identical or similar obscene art-
icles is presumed to possess them with intent to promote same did not violate defendant's due process rights;
presumption was presented to jury as permissible, rather than mandatory, and was rational, given evidence that
defendant, as sale clerk of adult book store, was found in possession of 17 dildos. Regalado v. State (App. 14
Dist. 1994) 872 S.W.2d 7, petition for discretionary review refused, certiorari denied 115 S.Ct. 194, 513 U.S.
871, 130 L.Ed.2d 126. Constitutional Law        4653; Obscenity      2.5


This section prohibiting sale of dildoes did not violate state constitutional guarantee of due process. Yorko v.
State (App. 14 Dist. 1984) 681 S.W.2d 633, petition for discretionary review granted , affirmed 690 S.W.2d 260.


With regard to presumption in subsec. (c) of this section that those who possess obscene materials or devices
with intent to promote them in course of their business have knowledge of material's content and character, ra-
tional connection exists between established facts of exhibiting obscene material in course of business and
knowledge aspect of presumption; therefore, presumption withstands safeguards of due process. Sanders v. State
(App. 1 Dist. 1982) 649 S.W.2d 59, petition for discretionary review granted , vacated 770 S.W.2d 778, opinion
after remand. Constitutional Law      4653; Obscenity        15


Although presumption of knowledge under subsec. (e) of this section is made rebuttable by instructions to jury,
effect of such instructions is to shift burden to defendant to offer proof rebutting inference raised by subsec. (e)
of this section violating standards of due process. Skinner v. State (App. 1 Dist. 1982) 647 S.W.2d 686, affirmed
in part , disapproved in part 652 S.W.2d 773. Constitutional Law         4638


To meet requirements of due process, presumption of subsec. (e) of this section that person who promotes ob-
scene material does so with knowledge of its content and character must be rebuttable, must not shift burden of
proof to defendant, and must be based upon logical connection between fact proved and ultimate fact presumed.
Skinner v. State (App. 1 Dist. 1982) 647 S.W.2d 686, affirmed in part , disapproved in part 652 S.W.2d 773.
Constitutional Law       4653


  3. ---- Equal protection, validity

In actions challenging this section and § 43.21 on ground that prohibition on sales of sexually oriented devices
denies equal protection to handicapped persons, record was devoid of evidence supporting assertions that consti-
tutional right in handicapped persons to sexual devices proscribed by statute should be recognized or that such
right was burdened by this section and § 43.21. Red Bluff Drive-In, Inc. v. Vance, C.A.5 (Tex.)1981, 648 F.2d
1020, rehearing denied 656 F.2d 700, certiorari denied 102 S.Ct. 1264, 455 U.S. 913, 71 L.Ed.2d 453. Constitu-
tional Law        3167; Obscenity      2.5


Subdivision (c)(1) of this section making it a class A misdemeanor to “promote” obscene material is not uncon-
stitutionally vague and does not deny equal protection as subd. (c)(1) of this section, which proscribes an




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V.T.C.A., Penal Code § 43.23                                                                               Page 12




“exhibit” for commercial gain, regulates a separate and distinct criminal activity from § 43.22 prohibiting public
“display” in a manner that is reckless about whether a person is present who will be offended by the display.
Powell v. State (App. 14 Dist. 1982) 632 S.W.2d 842. Constitutional Law          3781; Obscenity       2.5


  4. ---- Right to privacy, validity

Obscenity statute was not unconstitutional as applied to defendant who showed obscene video to undercover po-
lice officers in his home and subsequently e-mailed the video to officer; while defendant's viewing of the materi-
al in the privacy of his own home was protected conduct, his exhibition of the material to the undercover police
officers in the context of a business transaction involving the employment of defendant to set up a pornographic
website was not, and defendant did not have a right to give obscene material to others. Varkonyi v. State (App. 8
Dist. 2008) 276 S.W.3d 27, petition for discretionary review refused. Constitutional Law        1242; Obscenity
      2.5


Constitutionally protected right to privacy does not include use of or possession with intent to promote obscene
devices. Regalado v. State (App. 14 Dist. 1994) 872 S.W.2d 7, petition for discretionary review refused, certior-
ari denied 115 S.Ct. 194, 513 U.S. 871, 130 L.Ed.2d 126. Constitutional Law        1242; Obscenity        2.1


Sections 43.21(a)(7) and 43.23(c)(1) of the Penal Code making it an offense for a person, knowing content and
character of an obscene device, defined to include a dildo, to promote such device or to possess such device with
intent to promote do not criminalize use of obscene devices, nor mere possession of such devices without intent
to promote them, but do criminalize promotion of and possession of such devices with intent to promote, when
purpose is for sexual stimulation and gratification, and as such may be contrasted with contraceptives associated
with the constitutionally protected decision not to beget a child, and are not unconstitutional as violative of the
fundamental right to privacy. Yorko v. State (Cr.App. 1985) 690 S.W.2d 260. Obscenity              2.5; Obscenity
      7


Constitutional right of privacy was not violated by prohibition of this section of promoting obscene devices.
Coberly v. State (App. 2 Dist. 1982) 640 S.W.2d 428, review refused 644 S.W.2d 734. Constitutional Law
1242; Obscenity        2.5


  5. ---- Community standards, validity

Sections 43.21 and 43.23 defining community standards for judging obscenity in terms of community standard
of “decency” rather than of “tolerance” were constitutional. Drummond v. State (App. 14 Dist.1984) 675 S.W.2d
545, review refused; Staten v. State (App. 14 Dist.1985) 686 S.W.2d 268.


If community standards regarding tolerance rather than community standards of propriety and taste are now the
constitutional test for obscenity, this section and § 43.21 still meets the guide and is not constitutionally over-
broad. Garcia v. State (App. 8 Dist. 1982) 633 S.W.2d 611. Obscenity          2.5


So long as fact finder does not employ personal subjective reactions and uses as one factor what is tolerated by




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V.T.C.A., Penal Code § 43.23                                                                               Page 13




average person in determining a contemporary community standard of decency, Texas obscenity statute is not
overly broad. Porter v. State (App. 2 Dist. 1982) 638 S.W.2d 249, review granted , affirmed. Obscenity 2.5


Obscenity statute [V.T.C.A., Penal Code § 43.23] and statute [V.T.C.A., Penal Code § 43.21] providing defini-
tions for obscenity statute are not unconstitutional under First and Fourteenth Amendments on basis that they
define community standards for judging obscenity in terms of community standards of “decency” rather than
community standards of “tolerance.”. Yorko v. State (App. 1 Dist. 1986) 707 S.W.2d 680. Constitutional Law
      2190; Constitutional Law       4509(20); Obscenity        2.5


  6. ---- Presumption of knowledge, generally, validity

Where trial court's charge in obscenity prosecution did not refer to either presumption created by this section
having to do with knowledge of content and character of obscene material or possession with intent to promote
same, but instead contained instructions on knowledge and circumstantial evidence, defendant had no standing
to challenge constitutionality of said presumptions. Gholson v. State (App. 14 Dist. 1983) 667 S.W.2d 168, peti-
tion for discretionary review refused. Constitutional Law      859


In view of holding of the Court of Criminal Appeals that presumption of knowledge of content and character of
obscene material or obscene device under subd. (e) of this section is unconstitutional, it was necessary to reverse
and remand conviction for retrial without use of such statutory presumption. Kramer v. State (App. 1 Dist. 1983)
661 S.W.2d 283, petition for discretionary review refused. Criminal Law         1189


Presumption contained in subd. (e) of this section providing that a person who promotes or possesses obscene
material with intent to promote it in course of his business is presumed to do so with knowledge of its content
and character creates or makes offense of promotion of obscenity a strict criminal liability offense, as to know-
ledge of contents and character of material, and as such is unconstitutional as infringing upon freedom of ex-
pression. Davis v. State (Cr.App. 1983) 658 S.W.2d 572. Constitutional Law        2204; Obscenity          2.5


Decision declaring unconstitutional the presumption of knowledge in a prosecution for promotion of obscenity
under subd. (e) of this section was made in a case where defendant was not shown to have had any managerial
responsibilities in operation of bookstore and, hence, was not in conflict with the decision of the New York
Court of Appeals in Kirkpatrick upholding the presumption in a case where the defendant was shown to be a
comanager responsible for ordering and reordering the various issues of the magazine in question. Davis v. State
(Cr.App. 1983) 658 S.W.2d 572. Obscenity         2.5


Subdivision (e) of this section which sanctions conviction of a bookseller, or his employee, on basis of a pre-
sumption without any proof whatsoever that he knew or was familiar with nature of material that was exhibited
is unconstitutional; overruling Tyree v. State, 638 S.W.2d 245; Moses v. State, 633 S.W.2d 585; Garcia v. State,
633 S.W.2d 611; Sanders v. State, 649 S.W.2d 59; McMahon v. State, 630 S.W.2d 730; Porter v. State, 638
S.W.2d 249. Davis v. State (Cr.App. 1983) 658 S.W.2d 572. Obscenity          2.5


Presumption in this section inferring knowledge of content and character of obscene materials by those possess-




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V.T.C.A., Penal Code § 43.23                                                                                 Page 14




ing the materials with intent to promote them in course of business does not infringe privilege against compuls-
ory self-incrimination, in view of fact that presumption, which is permitted only when logical inference of
knowledge flows from proved facts, allows, but does not require, jury to draw conclusions about accused's
knowledge from his actions, and presumption instructions clearly describe presumption as permissible inference
capable of being rebutted. Sanders v. State (App. 1 Dist. 1982) 649 S.W.2d 59, petition for discretionary review
granted , vacated 770 S.W.2d 778, opinion after remand. Witnesses        300


Where, without presumption contained in subsec. (e) of this section it would have been impossible for jury or
judge to have found, beyond reasonable doubt, that defendant had “intended” to promote obscene film, knowing
its contents and character, subsec. (e) of this section violated First, Fifth, and Fourteenth Amendments of the
United States Constitution as applied to defendant who was ticket seller at theater where film was shown. Skin-
ner v. State (App. 1 Dist. 1982) 647 S.W.2d 686, affirmed in part , disapproved in part 652 S.W.2d 773. Consti-
tutional Law       2226; Constitutional Law        4653; Obscenity         2.5


Subsections (e) and (f) of this section providing that a person who promotes obscene material or an obscene
device or possesses the same with intent to promote it in the course of business is presumed to do so with know-
ledge of its content and character and that a person who possesses six or more devices or identical or similar ob-
scene articles is presumed to possess them with intent to promote the same were facially unconstitutional in viol-
ation of First, Fifth and Fourteenth Amendments to United States Constitution. Hall v. State (App. 1 Dist. 1982)
646 S.W.2d 489, reversed 661 S.W.2d 101. Constitutional Law           4653; Obscenity       2.5


  7. ---- Validity of prior laws

Section 3 of Vernon's Ann.P.C. (1925) art. 527 (now, this section), which provided that every person who know-
ingly prepared for distribution, published, printed, exhibited, distributed, offered to distribute or had in his pos-
session with intent to distribute or to exhibit or offer to distribute any obscene matter was guilty of a misde-
meanor, was constitutional. Newman v. Conover (D.C.1970) 313 F.Supp. 623; Academy, Inc. v. Vance
(D.C.1970) 320 F.Supp. 1357.


Vernon's Ann.P.C. (1925) art. 527 (now, this section), prohibiting possession of obscene material with intent to
sell or distribute, was not unconstitutional on ground that it failed to provide for an adversary hearing on ques-
tion of obscenity of materials prior to initiation of criminal process. Hunt v. State (Cr.App. 1972) 475 S.W.2d
935. Obscenity        2.5


It was not necessary to constitutionality of Vernon's Ann.P.C. (1925) art. 527 (now, this section) under the First
Amendment that it required either pandering, obtrusive showing, violation of specific concern for juveniles, or
“hard-core pornography” as a precondition for conviction. Bryers v. State (Cr.App. 1972) 480 S.W.2d 712. Con-
stitutional Law      2190; Obscenity         2.1


Prior judicial construction of Vernon's Ann.P.C. (1925) art. 527 (now, this section) provided sufficient spe-
cificity to cure potential vagueness and to put defendants on notice that they might suffer criminal liability for
distribution and sale of material containing photographs of nude men and women engaged in a variety of explicit




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V.T.C.A., Penal Code § 43.23                                                                                Page 15




sexual acts. Goodwin v. State (Cr.App. 1974) 514 S.W.2d 942. Obscenity           2.5


Vernon's Ann.P.C. (1925) art. 527 (now, this section) was not unconstitutionally vague, where prohibited con-
duct was specifically defined by applicable state law as authoritatively construed. Burkett v. State (Cr.App.
1974) 516 S.W.2d 147. Obscenity       2.5


  8. Construction and application

Use of mails to transmit obscene materials was punishable under federal rather than state obscenity statute re-
gardless of fact that jury decided guilt based on Miller test, which applied local standards, and regardless of fact
that state obscenity statute closely paralleled Miller test; state statute simply prohibited promotion of obscene
materials, whereas federal statute required additional element of use of mails, a matter of particular federal con-
cern. U.S. v. Ragsdale, C.A.5 (Tex.)2005, 426 F.3d 765, certiorari denied 126 S.Ct. 1405, 546 U.S. 1202, 164
L.Ed.2d 105, certiorari denied 126 S.Ct. 1417, 546 U.S. 1207, 164 L.Ed.2d 114, post-conviction relief denied
2008 WL 2390172. Postal Service           31.1


Subdivision (c)(1) of this section proscribing the promotion of obscene material, rather than § 43.22 making it
an offense to intentionally display obscene material and to be reckless about whether a person is present who
will be offended or alarmed by the display, was applicable to circumstances wherein defendant exhibited al-
legedly obscene film. Powell v. State (App. 14 Dist. 1982) 632 S.W.2d 842. Obscenity        6


Fair import of terms which constitute gravamen of offense of exhibition of obscenity compels conclusion that
conduct denounced does not include that which is merely incidental to exhibition of obscenity. Acevedo v. State
(Cr.App. 1982) 633 S.W.2d 856. Obscenity        6


Words “content” and “character” as used in obscenity statute [V.T.C.A., Penal Code § 43.23] must be given
their ordinary or common usage, as those words are not defined in the statute or for the purposes of the Penal
Code. Yorko v. State (Cr.App. 1985) 699 S.W.2d 224, on remand 707 S.W.2d 680. Obscenity          2.5


  9. In general

In commercial obscenity prosecution, mere presence is a circumstance tending to prove guilt as a party. Tyree v.
State (App.1982) 638 S.W.2d 245, affirmed by unpublished opinion; Porter v. State (App.1982) 638 S.W.2d 249
, affirmed by unpublished opinion.


Obscenity need not involve dissemination to unconsenting adults or children in order for it to be proscribed and
constitutionally suppressed. Parrish v. State (Cr.App. 1975) 521 S.W.2d 849. Obscenity        2.1


Strict criminal liability may not be imposed for promotion or possession of obscene materials. Skinner v. State
(App. 1 Dist. 1982) 647 S.W.2d 686, affirmed in part , disapproved in part 652 S.W.2d 773. Obscenity       5.1;
Obscenity        7




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It is not necessary for jury in obscenity prosecution to have understanding of deviant group's interests, prurient
or otherwise, when assessing hard core pornography intended to appeal to particular deviant audience; the por-
nography speaks for itself. Coon v. State (App. 2 Dist. 1994) 871 S.W.2d 284, petition for discretionary review
refused. Obscenity        17


Texas test for obscenity is somewhat stricter than federal test, and elements include: average person, applying
contemporary community standards, would find that taken as whole material appeals to prurient interest in sex;
average person applying current community standards of decency would find that, facially, material is so offens-
ive that it is not decent; average person would find that material facially depicts ultimate sexual acts or certain
other specified acts; and, regardless of what may be socially acceptable to average person, or what contemporary
community standards of propriety may be to average person in community, material, taken as whole, must lack
serious literary, artistic, political, and scientific value. T.K.'s Video, Inc. v. State (App. 2 Dist. 1994) 871
S.W.2d 522, rehearing overruled , petition for discretionary review refused. Obscenity        1.1


Court of Appeals could not apply separate test for reviewing obscenity laws in criminal case that was in conflict
with pronouncements of Court of Criminal Appeals. Churitch v. State (App. 5 Dist. 1994) 888 S.W.2d 911.
Courts     91(1)


  10. Federal law

Federal test for obscenity is: whether average person, applying contemporary community standards, would find
work, taken as whole, appeals to prurient interest; whether work depicts or describes, in patently offensive way,
sexual conduct specifically defined by applicable state law; and whether work, taken as whole, lacks serious lit-
erary, artistic, political, or scientific value. T.K.'s Video, Inc. v. State (App. 2 Dist. 1994) 871 S.W.2d 522, re-
hearing overruled , petition for discretionary review refused. Obscenity          1.1


Federal test for obscenity is whether average person, applying contemporary community standards, would find
work, taken as a whole, appeals to the prurient interest, whether work depicts or describes, in patently offensive
way, sexual conduct specifically defined by the applicable state law and whether work, taken as a whole, lacks
serious literary, artistic, political or scientific value. T.K.'s Video, Inc. v. State (App. 2 Dist. 1994) 883 S.W.2d
300, rehearing overruled , petition for discretionary review refused. Obscenity           1.1


  11. Community standards, generally

Texas test for obscenity is somewhat stricter than federal test and Texas test is whether average person, applying
contemporary community standards, would find that, taken as a whole, material alleged to be obscene appeals to
prurient interest in sex, whether average person, applying community standards of decency, would find that fa-
cially the material is so offensive that it is not decent, whether average person would find that facially the mater-
ial depicts representations of sexual acts and whether, regardless of what may be socially acceptable to average
person, material taken as a whole lacks serious literary, artistic, political and scientific value. T.K.'s Video, Inc.
v. State (App. 2 Dist. 1994) 883 S.W.2d 300, rehearing overruled , petition for discretionary review refused. Ob-
scenity       1.1




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V.T.C.A., Penal Code § 43.23                                                                               Page 17




Under both state and federal law, jury is permitted to draw upon knowledge of the community and decide wheth-
er average person, applying community standards, would find materials in question obscene. T.K.'s Video, Inc.
v. State (App. 2 Dist. 1994) 883 S.W.2d 300, rehearing overruled , petition for discretionary review refused. Ob-
scenity      1.4; Obscenity       19


  12. Exhibition

“Exhibit,” within meaning of this section means to show or display outwardly. Kennedy v. State (App. 8 Dist.
1989) 774 S.W.2d 822.


Exhibition, display or show, as applied to obscenity, involves both an active element, such as initial preparation,
arrangement, cleaning, maintenance, and restocking, and a passive or static element, which includes finished ar-
rangement made outwardly available for intended view. Kennedy v. State (App. 8 Dist. 1989) 774 S.W.2d 822.
Obscenity       6


  13. Multiple offenses

Under Vernon's Ann.P.C. (1925) art 527 (now, this section), where more than one item of obscene material was
distributed in one transaction, additional items could only affect the penalty to be imposed and could not provide
basis for additional charges. Cheeseman v. State (Cr.App. 1975) 520 S.W.2d 382. Criminal Law            29(12)


  14. Indictment and information

The constitutionality of presumption under this section that person who promotes or wholesale promotes ob-
scene material does so with knowledge of its content was not appropriate basis for challenging information
which on its face stated criminal offense without reliance on presumption. Garcia v. State (App. 8 Dist. 1982)
633 S.W.2d 611. Indictment And Information         137(1)


Despite contention that information failed to allege culpable mental state in that information alleged only that
defendant knew content and character of material but did not know material was obscene, information ad-
equately charged culpable mental state where information tracked this section. Rent v. State (App. 5 Dist. 1989)
771 S.W.2d 723, petition for discretionary review granted , affirmed 838 S.W.2d 548, rehearing on petition for
discretionary review granted, rehearing denied, rehearing on petition for discretionary review denied. Indictment
And Information        110(19)


In charging defendant with promoting obscene material, State was not required to distinguish between oral/
genital contact and genital/anal contact when alleging that acts which rendered magazine obscene involved “oral
and anal deviate sexual intercourse.” Rent v. State (App. 5 Dist. 1989) 771 S.W.2d 723, petition for discretion-
ary review granted , affirmed 838 S.W.2d 548, rehearing on petition for discretionary review granted, rehearing
denied, rehearing on petition for discretionary review denied. Obscenity      12


Information alleging that employee of adult bookstore knowingly and intentionally possessed obscene devices




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V.T.C.A., Penal Code § 43.23                                                                                Page 18




with intent to promote them did not need to state how employee intended to promote devices; “promote” was
defined in § 43.21(a)(5); and allegations as to manner and means of promoting devices would be evidentiary in
nature. Hutto v. State (App. 5 Dist. 1989) 775 S.W.2d 407. Indictment And Information     11


  14.5. Standing

Businesses that sold sexual devices for profit had standing to raise constitutional rights of their customers in
challenging, as violative of customers' substantive due process right to engage in private intimate conduct of
their choosing, a Texas statute which, in essence, criminalized the selling, advertising, giving or lending of any
device designed or marketed for sexual stimulation, unless defendant could prove that device was sold, advert-
ised, given or lent for statutorily-approved purpose. Reliable Consultants, Inc. v. Earle, C.A.5 (Tex.)2008, 517
F.3d 738, rehearing and rehearing en banc denied 538 F.3d 355. Constitutional Law          889


  15. Right to jury trial

Under Texas law, final adjudication of film's obscenity can only be made in criminal proceeding by jury trial un-
less jury is waived. Bradford v. Wade, N.D.Tex.1974, 386 F.Supp. 1156, affirmed 530 F.2d 973. Jury         24.2


  16. Pretrial procedure

Defendant charged with obscenity for selling homosexual magazine was not entitled to ask prospective jurors
during voir dire if they knew attitudes held by homosexuals toward sexually explicit material and whether ho-
mosexuals' attitudes about sexually explicit materials differed from average person's attitudes; questions tended
to confuse jury panel regarding standard applicable to determination of obscenity and it was not necessary for
jurors to have understanding of deviant group interests. Coon v. State (App. 2 Dist. 1994) 871 S.W.2d 284, peti-
tion for discretionary review refused. Jury     131(16); Jury       131(17)


  17. Defenses--In general

In prosecution for possession of obscene device with intent to promote it, defendant was not entitled to instruc-
tion on law of justification on basis of defendant's contention that, at time of his arrest, he thought there was in
existence a court order enjoining enforcement of the obscenity statutes, absent evidence that defendant was party
to injunction suit, had knowledge of pleadings or papers on file in case, knew at time of his arrest whether in-
junction had been granted, or evidence of existence of any judgment or order requiring or authorizing defendant
to sell devices in question. Teeters v. State (App. 13 Dist. 1981) 624 S.W.2d 391. Criminal Law           772(6)


Mere fact that film which was subject of prosecution for commercial obscenity contained copyright did not raise
issue regarding affirmative defense that material was possessed by person having scientific, educational, govern-
mental, or other similar justification, since obscene materials could be copyrighted. Boyd v. State (Cr.App.
1982) 643 S.W.2d 700. Obscenity          8


In prosecution for possession of obscene material with intent to promote, commenced after November 5, 1991,
defendant could not prevail under theory that state did not negate reasonable hypothesis that, at time of sale of




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V.T.C.A., Penal Code § 43.23                                                                             Page 19




obscene videotape, defendant no longer owned the store from which tape was sold. Haddad v. State (App. 5
Dist. 1993) 860 S.W.2d 947, petition for discretionary review refused. Obscenity 15


  18. ---- Private possession, defenses

Right to possess obscene material does not extend to business of obscenity. Tyree v. State (App.1982) 638
S.W.2d 245, affirmed by unpublished opinion; Porter v. State (App.1982) 638 S.W.2d 249, affirmed by unpub-
lished opinion.


Mere private possession of obscene photographs is not a crime. Kemp v. State (Cr.App. 1970) 464 S.W.2d 141.
Obscenity      5.2


Operator of theater where obscene film was shown was not in private possession of film, even though patrons
were required to purchase “membership” and was thus not denied due process of law in obscenity prosecution
on theory that film was not publicly exhibited but was privately possessed. Sharp v. State (Cr.App. 1973) 495
S.W.2d 906, vacated 94 S.Ct. 854, 414 U.S. 1118, 38 L.Ed.2d 746. Constitutional Law        4509(20)


United States Supreme Court decision holding that Constitution prohibits making mere private possession of ob-
scene material a crime was inapplicable to defendants' operation of motion picture theaters to which entrance
was gained through the payment of money to join a “club” which rendered patron “eligible” to pay for admis-
sion to the theater. Richards v. State (Civ.App. 1973) 497 S.W.2d 770. Obscenity     5.2


Theater manager was doing “business in obscenity” and in that capacity had no right under either First or Four-
teenth Amendment to private possession of allegedly obscene films. Soto v. State (Cr.App. 1974) 513 S.W.2d
931. Constitutional Law     2226; Constitutional Law       4292


The right to privately possess obscene materials is not at issue where such materials are offered for sale to the
public since the concept of privacy in the home cannot be equated with a zone of privacy intended to surround
and protect the purveyor and consumer of obscene materials. Goodwin v. State (Cr.App. 1974) 514 S.W.2d 942.
Obscenity       7


Right of a person to privately possess obscene material does not create corollary right for that person to import
or transport the material for such use or purpose. Locke v. State (Civ.App. 1974) 516 S.W.2d 949. Obscenity
      7


While individual may have right to possess obscene material in the privacy of his home, that “zone of privacy”
does not extend beyond the home to surround purveyor and consumer of obscene material. T.K.'s Video, Inc. v.
State (App. 2 Dist. 1994) 891 S.W.2d 287, rehearing overruled , petition for discretionary review refused. Ob-
scenity      7


While customers had privacy right to possess obscene material, they did not have corresponding privacy right to




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V.T.C.A., Penal Code § 43.23                                                                               Page 20




purchase obscene material and thus customers of store which sold obscene item lacked privacy right which
could be asserted by store as defense to charge of promoting obscene material. T.K.'s Video, Inc. v. State (App.
2 Dist. 1994) 891 S.W.2d 287, rehearing overruled , petition for discretionary review refused. Obscenity      8


  19. ---- Law enforcement, defenses

Issue of whether defendant was acting in the course of law enforcement when he was arrested for selling an ob-
scene magazine was a defense to the obscenity charge, rather than an exception to the charge, and thus issue was
not required to be negated in State's pleadings. Johnson v. State (App. 5 Dist. 1988) 760 S.W.2d 797. Indictment
And Information        111(1)


Exemption from this section for persons acting in course of law enforcement did not insulate violator of this sec-
tion from prosecution, even though evidence was found in his possession during execution of lawful search war-
rant; exemption was intended only to apply to law enforcement personnel. Myers v. State (App. 2 Dist. 1989)
781 S.W.2d 730, petition for discretionary review refused. Obscenity     8


Defense to the statutory offense of promoting obscenity for a person whose possession, participation or conduct
concerning obscene act was in the course of law enforcement activities, was not an exception which had to be
negated in the charging instrument. Borkowicz v. State (App. 6 Dist. 1990) 802 S.W.2d 115. Indictment And In-
formation       111(1)


  20. Presumptions--In general

Evidence that names of the defendants were identical with the names of those charged by the state with opera-
tion of theaters in which obscene motion picture films were exhibited and distributed gave rise to presumption of
identity. Richards v. State (Civ.App.1973) 497 S.W.2d 770. Names         18


  21. ---- Knowledge of content, presumptions

There was no error in presumption under this section that obscenity defendant had knowledge of content and
character of seized movie films; even without presumption, officer's affidavit provided sufficient facts to support
a finding of probable cause. Tyree v. State (App.1982) 638 S.W.2d 245, affirmed by unpublished opinion; Porter
v. State (App.1982) 638 S.W.2d 249, affirmed by unpublished opinion.


As applied in prosecution of adult bookstore employee for promoting an obscene device, presumption that one
who possesses obscene materials or devices with intent to promote them has knowledge of their character was
entirely rational where store contained three walls of “adult” magazines, there were glass cases around cashier's
booth containing artificial penises and vaginas, there were “peep shows” in booths and dildo which was basis of
the prosecution was sold wrapped in cellophane and apparently was anatomically correct, although exaggerated
in size. Moses v. State (App. 14 Dist. 1982) 633 S.W.2d 585. Obscenity        15


Law enforcement officials must rely upon sufficient inferences of guilt to obtain and sustain a conviction for




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V.T.C.A., Penal Code § 43.23                                                                                Page 21




promoting obscene material, but may not rely upon a statutory presumption to establish guilty knowledge on
part of accused of content and character of obscene material. Davis v. State (Cr.App. 1983) 658 S.W.2d 572.
Obscenity       2.1


  22. Burden of proof--In general

It is incumbent upon the censor to prove that a film is obscene. Richards v. State (Civ.App. 1973) 497 S.W.2d
770. Obscenity      15


State's assumption of burden of establishing that motion picture films exhibited and distributed by defendants
were without redeeming social value did not prejudice defendants. Richards v. State (Civ.App. 1973) 497
S.W.2d 770. Obscenity       15


To convict person of selling obscene device, it is not necessary for State to prove who designed device or who
decided that it should be marketed for purpose set out in this section. Teeters v. State (App. 13 Dist. 1981) 624
S.W.2d 391. Obscenity        7


To obtain a conviction for obscenity, state must prove that: the average person, applying contemporary com-
munity standards, would find material, taken as a whole, appeals to prurient interest in sex; material depicts or
describes patently offensive sexual acts; and taken as a whole, material lacks serious literary, artistic, political
and scientific value. Adams v. State (App. 13 Dist. 1984) 669 S.W.2d 339, petition for discretionary review
granted , affirmed 707 S.W.2d 900. Obscenity        1.1


To sustain conviction for possession of obscene devices with intent to promote them by exhibition, State was not
required to demonstrate store employee's actual participation in or managerial authority over the act of physical
placement and maintenance of display containing devices. Kennedy v. State (App. 8 Dist. 1989) 774 S.W.2d 822
. Obscenity      9


To prove charge that defendant possessed with intent to promote obscene material, state had to show that: de-
fendant solicited, encouraged, directed, aided, or attempted to aid clerk in sale of videotape; with intent to pro-
mote or assist sale; and with knowledge of character and content of film. Haddad v. State (App. 5 Dist. 1993)
860 S.W.2d 947, petition for discretionary review refused. Obscenity        5.2


  23. ---- Knowledge of content, burden of proof

To convict for offense described in this section, the state must establish that defendant knew content and charac-
ter of proscribed item and that he intended to promote obscene material or obscene device. Sanders v. State
(App. 1 Dist. 1982) 649 S.W.2d 59, petition for discretionary review granted , vacated 770 S.W.2d 778, opinion
after remand. Obscenity       5.1


Neither defendant's allowing his business establishment to be open to the general public nor his giving change to




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V.T.C.A., Penal Code § 43.23                                                                                Page 22




the general public amounted to a violation of proscription against exhibition of obscene material, and it was ne-
cessary to establish in addition that defendant, either individually or as a party, directly or by circumstantial
evidence, exhibited the material and in doing so knew the character and content of the film. Davis v. State
(Cr.App. 1983) 658 S.W.2d 572. Obscenity         5.2


In prosecution for promotion of obscenity, it is only necessary for the State to prove that defendants knew con-
tent and character of material at issue; it is not necessary to allege and prove that defendants knew material was
obscene. Rees v. State (App. 3 Dist. 1995) 909 S.W.2d 264, rehearing overruled, petition for discretionary re-
view refused, certiorari denied 117 S.Ct. 169, 519 U.S. 863, 136 L.Ed.2d 111. Obscenity           1.2


The plain language of obscenity statute does not require defendant to have knowledge that what he promotes is
legally obscene; all that is required is that a defendant have knowledge of the material's sexually explicit charac-
ter and content. Burden v. State (Cr.App. 2001) 55 S.W.3d 608. Obscenity         1.2


The state need not prove that the defendant knew the material was obscene in order to prove, in an obscenity
case, that defendant knew the character and content of the material in question; it is enough that the defendant
had knowledge of the sexually explicit character and content of the materials. Castillo v. State (App. 5 Dist.
2002) 79 S.W.3d 817, petition for discretionary review refused, certiorari denied 123 S.Ct. 1593, 538 U.S. 924,
155 L.Ed.2d 315. Obscenity       1.2


  24. Admissibility of evidence

In prosecution for commercial obscenity based on sale of film to police officer, cover of magazine purchased by
officer at same time was admissible to discredit defendant's testimony that he did not know content of film or
what kind of material he was selling, where officer testified that defendant handled magazine to look for price
tag and that obscene photographs on cover of the magazine were visible through plastic covering, and State was
not required to introduce entire magazine to show it to be obscene. McMahon v. State (App. 14 Dist. 1982) 630
S.W.2d 730, review refused. Obscenity        16


  25. Sufficiency of evidence--In general

Evidence that, inter alia, defendant invited police and members of the press to a showing of the film “Deep
Throat,” that the officers neither paid nor were asked to pay to view the film, that members of the press were not
charged admission, and that no one was seen paying an admission charge was insufficient to support defendant's
conviction for commercial exhibition of obscene material. Smith v. State (Cr.App. 1976) 530 S.W.2d 955. Ob-
scenity       17


Mere fact that man entered club at which film “Deep Throat” was being shown to police officers and members
of the press who had not been charged admission, and shortly thereafter cash register opened and closed, did not
exclude every reasonable hypothesis except that of defendant's guilt of offense of commercial exhibition of ob-
scene material, and was not sufficient to support conviction. Smith v. State (Cr.App. 1976) 530 S.W.2d 955. Ob-
scenity       17




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Evidence of obscene materials, together with presumption that those who possess obscene materials or devices
with intent to promote them in course of their business have knowledge of character of the materials or devices,
was sufficient to sustain conviction for commercially exhibiting obscene material. Sanders v. State (App. 1 Dist.
1982) 649 S.W.2d 59, petition for discretionary review granted , vacated 770 S.W.2d 778, opinion after remand.
Obscenity        17


Evidence, including covers of magazine which contained highly explicit photographs of sex acts, “adults only”
sign outside store, fact that no “regular” magazines were sold, sexual devices displayed for sale, defendant's re-
sponse that magazine was good, and fact that defendant appeared to be in sole and exclusive control of store,
supported his conviction for promotion of obscenity. Staten v. State (App. 14 Dist. 1985) 686 S.W.2d 268. Ob-
scenity      17


Stipulation of evidence, standing alone, was insufficient to support conviction for selling obscene magazine.
Burch v. State (App. 1 Dist. 1985) 695 S.W.2d 264, petition for discretionary review refused 712 S.W.2d 163.
Stipulations      18(6)


Where officer seized multiple copies of obscene videotape from defendant's residence and there was evidence
that defendant owned store at which videotapes were sold, jury could infer that defendant intended films for sale
and not for personal use, and evidence was sufficient to show that defendant acted as party in commission of of-
fense of possession of obscenity with intent to promote, though no direct evidence showed that defendant was
ever seen at the store. Haddad v. State (App. 5 Dist. 1993) 860 S.W.2d 947, petition for discretionary review re-
fused. Obscenity        17


Jurors in obscenity cases do not need assistance of experts or testimony from members of deviant group unless
contested materials are directed at such a bizarre deviant group that experience of trier of fact would be plainly
inadequate from which to judge whether materials appeal to prurient interest. Coon v. State (App. 2 Dist. 1994)
871 S.W.2d 284, petition for discretionary review refused. Obscenity        17


Police officers' testimony that, in their opinion, average adult Texan would find homosexual magazine, contain-
ing photographs and illustrations of oral and anal sex and group sex between males, appealed to prurient in-
terests, was patently offensive, and lacked literary, artistic, political and scientific merit was sufficient to support
obscenity conviction of defendant who sold magazine; evidence showing that magazine was unacceptable to
members of homosexual community was not required. Coon v. State (App. 2 Dist. 1994) 871 S.W.2d 284, peti-
tion for discretionary review refused. Obscenity         17


In case of hard core pornography intended to appeal to particular deviant audience, it is not generally necessary
that jury have understanding of that group's interests, prurient or otherwise; pornography speaks for itself. T.K.'s
Video, Inc. v. State (App. 2 Dist. 1994) 871 S.W.2d 522, rehearing overruled , petition for discretionary review
refused. Obscenity       17


Jurors in obscenity cases do not need assistance of expert testimony unless contested materials are directed at




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V.T.C.A., Penal Code § 43.23                                                                               Page 24




such bizarre deviant group that experience of jurors would be plainly inadequate from which to judge whether
materials appeal to prurient interest. T.K.'s Video, Inc. v. State (App. 2 Dist. 1994) 871 S.W.2d 522, rehearing
overruled , petition for discretionary review refused. Obscenity      17


In trial for promotion of obscenity, State was not required to provide expert testimony that pornographic film
shown by defendants during television program was obscene, where film itself as well as film of entire televi-
sion program were in evidence. Rees v. State (App. 3 Dist. 1995) 909 S.W.2d 264, rehearing overruled, petition
for discretionary review refused, certiorari denied 117 S.Ct. 169, 519 U.S. 863, 136 L.Ed.2d 111. Obscenity
      17


In cases involving hard-core pornography, trier of fact needs no expert advice to determine whether material is
obscene. Rees v. State (App. 3 Dist. 1995) 909 S.W.2d 264, rehearing overruled, petition for discretionary re-
view refused, certiorari denied 117 S.Ct. 169, 519 U.S. 863, 136 L.Ed.2d 111. Obscenity      17


There was sufficient evidence that comic book sold by defendant lacked serious literary, artistic, scientific, or
political value, as required to support his obscenity conviction, despite testimony of defendant's expert witnesses
to the contrary; evidence indicated that comic book contained acts of sexual intercourse, oral sodomy, masturba-
tion, excretory functions, sadism, masochism, and lewd exhibition of the genitals, and that police officer who in-
vestigated defendant believed book lacked any literary, artistic, scientific, or political value. Castillo v. State
(App. 5 Dist. 2002) 79 S.W.3d 817, petition for discretionary review refused, certiorari denied 123 S.Ct. 1593,
538 U.S. 924, 155 L.Ed.2d 315. Obscenity          5.2


  26. ---- Knowledge of content, generally, sufficiency of evidence

In prosecution for knowingly exhibiting obscene matter for purpose of sale, it was not necessary to show that de-
fendant store manager actually looked at particular magazine introduced into evidence where it was clear that he
knew type of business he was in and type of material he was exhibiting for sale, nor was it necessary to show
that defendant personally placed particular magazine on display for sale or was on premises when particular
magazine was purchased by officer. Volkland v. State (Cr.App. 1974) 510 S.W.2d 585. Obscenity           9


To convict of knowingly exhibiting obscene matter, it is not necessary to show that defendant actually looked at
obscene material introduced in evidence and it is sufficient to demonstrate that defendant knew type of business
he was in and type of material he was exhibiting for sale. McMahon v. State (App. 14 Dist. 1982) 630 S.W.2d
730, review refused. Obscenity      7


Where defendants testified without contradiction that they had never seen film in question, and police officer did
not ever see defendants outside ticket or concession booth, there was insufficient evidence, in prosecution for
commercially exhibiting obscene material, that defendants knew content and character of obscene film in ques-
tion. Carr v. State (App. 14 Dist. 1983) 658 S.W.2d 653. Obscenity       17


There was no evidence to show that defendant had any personal knowledge of contents of movie at time of of-
fense, and, thus, evidence was insufficient to sustain conviction for commercial obscenity, since none of the ar-




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V.T.C.A., Penal Code § 43.23                                                                              Page 25




resting officers saw defendant in the theater on the day of the offense, and defendant testified that he had not
seen the film until it was exhibited during his trial. Rausher v. State (Cr.App. 1984) 663 S.W.2d 840. Obscenity
      17


Direct and circumstantial evidence was sufficient to prove that defendant, who owned newsstand in which un-
dercover officer purchased allegedly obscene material, knew content of cassettes sold to officer and directly or
through accomplice liability participated in their promotion. Gholson v. State (App. 14 Dist. 1983) 667 S.W.2d
168, petition for discretionary review refused. Obscenity      17


Evidence was sufficient to support finding, in prosecution for selling an obscene magazine, that defendant knew
the character of the magazine, even though he stipulated only to knowing the content and not the character,
where the magazine itself was also in evidence and was obviously obscene. Yorko v. State (Cr.App. 1985) 699
S.W.2d 224, on remand 707 S.W.2d 680. Obscenity           17


Evidence that defendant picked up magazine where it had been delivered to him, unloaded it at store, wrapped it
in cellophane and placed it on display with other similar magazines and films and that defendant saw cover of
magazine which displayed acts of sodomy and intercourse was sufficient to support determination that defendant
knew character and content of magazine at time he sold it to undercover police officer for purposes of obscenity
conviction. (Per White, J., with two judges concurring in result). Carroll v. State (Cr.App. 1986) 701 S.W.2d
913. Obscenity      17


Evidence both direct and circumstantial, together with rational inferences drawn therefrom, was sufficient to es-
tablish that defendant, charged with promotion of obscenity by intentionally selling obscene material, knew film
sold to undercover officer was obscene. Shealy v. State (App. 1 Dist. 1986) 707 S.W.2d 683. Obscenity        17


Determination that defendant had knowledge of the content and character of an obscene magazine which he sold
was supported by evidence showing that defendant worked at an adult bookstore and appeared to be in sole and
exclusive control of the store when the magazine was purchased, that magazine was wrapped in clear cellophane
and was on a shelf in clear view of the defendant, that magazine's front and back covers depicted graphic oral
and anal sex, and that defendant had an opportunity to view magazine's cover when he rang up the price. John-
son v. State (App. 5 Dist. 1988) 760 S.W.2d 797. Obscenity      17


Finding that defendant had exhibited obscene devices knowing the content and character thereof was sufficiently
supported by evidence, including evidence that devices were packaged in clear cellophane and prominently dis-
played on racks approximately four feet in front of counter behind which defendant worked. Kennedy v. State
(App. 5 Dist. 1989) 766 S.W.2d 336, petition for discretionary review refused. Obscenity     17


Evidence supported finding that defendant convicted of promoting obscenity knew character and content of
videotape he sold to undercover police officer; defendant was in sole charge of adult bookstore at the time, store
was filled with materials with acts of sexual and deviate sexual intercourse shown on covers, magazines and
videos were clearly visible from manager's station, and defendant read back cover of box containing description




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V.T.C.A., Penal Code § 43.23                                                                                Page 26




of videos and including three photographs of men and women engaging in sexual intercourse or deviate sexual
intercourse before selling videotape to officer. Borkowicz v. State (App. 6 Dist. 1990) 802 S.W.2d 115. Obscen-
ity      16


There was sufficient evidence that defendants knew film was obscene, as alleged by state and charged to jury, to
support their convictions for promotion of obscenity, where defendant who hosted television program in which
film was shown described film prior to showing it, defendants were aware of controversy in another city sur-
rounding showing of same film, defendant who produced program wrote letter to cable system that program did
not contain any material that violated any obscenity laws, and defendant who hosted program testified that he
had previously learned about law governing obscenity through a documentary film. Rees v. State (App. 3 Dist.
1995) 909 S.W.2d 264, rehearing overruled, petition for discretionary review refused, certiorari denied 117 S.Ct.
169, 519 U.S. 863, 136 L.Ed.2d 111. Obscenity        17


Finding that defendant had sufficient knowledge of videotape's character and content to sustain conviction for
promoting obscenity was supported by evidence that defendant, who was a sales clerk at video store, knew the
character of most of the videotapes in the store was sexually explicit, it appeared the video store sold nothing but
sexually explicit materials, and the videotape boxes displayed sexually explicit pictures. Burden v. State
(Cr.App. 2001) 55 S.W.3d 608. Obscenity          17


There was sufficient evidence that defendant knew sexually explicit character and content of comic book sold at
store he managed, as required to support his obscenity conviction, even though store was not adult bookstore,
and did not retail predominantly sexually explicit materials, and comic book's cover did not depict sexual con-
duct, nor was its title vulgar or sexually explicit; evidence indicated that defendant managed store for two years,
was familiar with title of comic book at issue, handled comic book at time of sale to police officer, knew comic
book was in adults-only section of store, and knew adults-only section contained sexually explicit material.
Castillo v. State (App. 5 Dist. 2002) 79 S.W.3d 817, petition for discretionary review refused, certiorari denied
123 S.Ct. 1593, 538 U.S. 924, 155 L.Ed.2d 315. Obscenity            5.2


The state may satisfy its burden to prove, in an obscenity case, that defendant knew the character and content of
the material in question with either direct or circumstantial evidence. Castillo v. State (App. 5 Dist. 2002) 79
S.W.3d 817, petition for discretionary review refused, certiorari denied 123 S.Ct. 1593, 538 U.S. 924, 155
L.Ed.2d 315. Obscenity        17


  27. ---- Employees, sufficiency of evidence

Evidence was insufficient as a matter of constitutional law to support conviction of defendant, employee of
“adult” theatre who sold tickets to undercover police officers, of promoting by exhibiting obscene material, re-
gardless of applicability of presumption under this section that a person who promotes obscene material does so
with knowledge of its content and character, where defendant was not shown to have any managerial responsib-
ilities in operation of theatre, was not shown to have anything to do with operation of movie projector or selec-
tion of or showing of films in theatre, and was not shown to have any financial interest in theatre or in corpora-
tion which owned theater. Skinner v. State (Cr.App. 1983) 652 S.W.2d 773. Obscenity          17




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V.T.C.A., Penal Code § 43.23                                                                                Page 27




Circumstantial evidence that defendant sold movie theater tickets to officers, that he walked down auditorium
aisle during showing of movie, and that he was apparently the only employee present in the theater at the time,
was insufficient to support presumption that defendant had exhibited films with knowledge of their obscene con-
tent and character. Knighton v. State (App. 1 Dist. 1984) 666 S.W.2d 386, petition for discretionary review re-
fused. Obscenity       17


Jury could reasonably conclude that defendant, as sole employee on duty, stationed at overlook post, and re-
sponsible for making sales facilitated by merchandise displays, was in charge of and responsible for static exhib-
ition of obscene devices, and as result there was sufficient evidence that defendant was in possession of devices
and, in keeping with his job responsibilities, intended to promote them by use of static exhibits. Kennedy v.
State (App. 8 Dist. 1989) 774 S.W.2d 822. Obscenity          17


Evidence established that sole employee at adult bookstore had possession of obscene devices, vibrators, with
intent to promote them, even though police officer failed to express opinion that employee had care, custody, or
control of store and devices; customer could purchase something only by approaching and paying employee.
Hutto v. State (App. 5 Dist. 1989) 775 S.W.2d 407. Obscenity        17


Jury could find beyond reasonable doubt that defendant knowingly possessed obscene devices with intent to pro-
mote them; State established that defendant, as sole employee on duty in video store, was in charge of store, had
possession of and control over sexually oriented devices, knew obscene character of devices, and was promoting
devices by offering them for sale. Myers v. State (App. 2 Dist. 1989) 781 S.W.2d 730, petition for discretionary
review refused. Obscenity       17


  28. ---- Managers, sufficiency of evidence

Testimony that defendant was manager of so-called adult bookstore at time of alleged offense and had instructed
employees in wrapping the books and magazines displayed for sale in cellophane and wrapped them for purpose
of exhibiting them for sale and looked through a few of them that had type of pictures found in magazine admit-
ted into evidence and found to be obscene sustained conviction for knowingly exhibiting obscene matter for pur-
pose of sale. Volkland v. State (Cr.App. 1974) 510 S.W.2d 585. Obscenity        17


There was insufficient direct or circumstantial evidence to establish that defendant had knowledge of both con-
tent and character of allegedly obscene film exhibited to a police officer in that there was no direct evidence that
defendant ever came into contact with the booth where the film was shown, or with the projector, or with the
film which was inside the projector, and there was no circumstantial evidence, outside defendant's presence in a
managerial capacity, to link defendant to booth, projector, or film. Davis v. State (Cr.App. 1983) 658 S.W.2d
572. Obscenity        17


Where there was nothing in record to show that defendants had any managerial duties in operating theatre, oper-
ated movie projector, had responsibilities for selecting or showing films, or had any financial interest in theatre,
there was insufficient evidence, in prosecution for commercially exhibiting obscene material, to prove that de-
fendants exhibited the obscene film in question. Carr v. State (App. 14 Dist. 1983) 658 S.W.2d 653. Obscenity




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V.T.C.A., Penal Code § 43.23                                                                               Page 28




     17


There was no rational basis for finding defendant guilty of intentionally promoting obscene material by exhibit-
ing a motion picture film with knowledge of its obscene content and character where, aside from fact that de-
fendant did not sell a ticket to police officers, there was no evidence that her duties as a “manager” had anything
to do with the “exhibition” of the film through the operation of the movie projector or the selection or showing
of the film. Goodman v. State (Cr.App. 1984) 667 S.W.2d 135. Obscenity             17


Conviction of alleged manager of theater for promotion of obscene material was reversed as the state failed to
produce evidence that defendant knew the content and character of the film. Galen v. State (App. 14 Dist. 1983)
672 S.W.2d 235, petition for discretionary review refused. Obscenity      17


Evidence that defendant was manager of “adult” book store and cleared cash register prior to clerk's sale of adult
film was insufficient to support conviction for misdemeanor offense of selling obscene material under § 43.23,
absent proof of act by defendant that directed, aided, encouraged, or assisted in commission of offense under §
7.02. Beier v. State (Cr.App. 1985) 687 S.W.2d 2. Obscenity       17


Rational trier of fact could have found, beyond reasonable doubt, and excluding every other reasonable hypo-
thesis raised by evidence, that defendant advertised obscene devices knowing content and character thereof; de-
fendant was manager and sole employee of store, defendant called public's attention to devices by prominently
displaying them in racks, and devices had statements and representations printed on red tags attached to mer-
chandise. Yates v. State (App. 5 Dist. 1989) 766 S.W.2d 286, petition for discretionary review refused. Obscen-
ity       17


  29. ---- Erotic dancing, sufficiency of evidence

Evidence that defendant performed dance during which she exhibited her genitals in such a manner that the in-
side of her vagina was visible to the audience, bent over, exposed her anus and allowed customer to place dollar
bill on her vagina was sufficient to sustain conviction for obscenity. Greenlee v. State (App. 5 Dist. 1983) 648
S.W.2d 783, petition for discretionary review refused. Obscenity       17


Obscenity of defendant's nude dancing performance was established since performance could have appealed to
nothing other than a prurient interest, it depicted or described sexual conduct in a patently offensive way, and it
did not have any serious literary, artistic, political or scientific value. Lnu v. State (App. 13 Dist. 1982) 654
S.W.2d 2. Obscenity        6


  30. ---- Introduction of alleged obscene material, sufficiency of evidence

Conviction for exhibiting an obscene film could not be sustained where the film itself was not introduced into
evidence. Cummings v. State (Cr.App.1972) 480 S.W.2d 704; Bryers v. State (Cr.App.1972) 480 S.W.2d 712.




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V.T.C.A., Penal Code § 43.23                                                                              Page 29




Showing of film is sufficient evidence for determination of its obscenity. Mullins v. State (Cr.App.1975) 530
S.W.2d 113; Soto v. State (Cr.App.1974) 513 S.W.2d 931.


Evidence was insufficient to sustain an obscenity conviction unless the alleged obscene matter was introduced
into evidence or defendant expressly and affirmatively stipulated or admitted that the material was obscene un-
der the standards set forth by Vernon's Ann.P.C. (1925) art. 527 (now, this section). Bryers v. State (Cr.App.
1972) 480 S.W.2d 712. Obscenity        17


In prosecution for knowingly distributing an obscene magazine, magazine itself was sufficient evidence for a de-
termination of obscenity. Parrish v. State (Cr.App. 1975) 521 S.W.2d 849. Obscenity       17


Where cassette recording of confiscated film was true and exact copy of original 16-millimeter film, its showing
to jury was sufficient evidence for determination of obscenity. Sanders v. State (App. 1 Dist. 1982) 649 S.W.2d
59, petition for discretionary review granted , vacated 770 S.W.2d 778, opinion after remand. Obscenity       17


In trial for promotion of obscenity, jury could make obscenity determination based solely on introduction of al-
legedly obscene magazine. T.K.'s Video, Inc. v. State (App. 2 Dist. 1994) 871 S.W.2d 522, rehearing overruled ,
petition for discretionary review refused. Obscenity     17


Expert testimony is not required to prove materials are obscene if materials themselves are introduced into evid-
ence. T.K.'s Video, Inc. v. State (App. 2 Dist. 1994) 871 S.W.2d 522, rehearing overruled , petition for discre-
tionary review refused. Obscenity       17


  30.5. ---- Obscene devices, sufficiency of evidence

Evidence was sufficient to support conviction for promotion of obscene devices as defendant possessed more
than six obscene devices on date anterior to presentment of indictment and within statutory limitations period.
Villarreal v. State (App. 13 Dist. 2008) 267 S.W.3d 204. Obscenity     17


  31. ---- Testimony of law enforcement officers, sufficiency of evidence

Testimony of two police officers who viewed allegedly obscene motion pictures and then testified as to the con-
tents of certain portions of the pictures was not sufficient evidence for jury to reasonably conclude that the mo-
tion pictures were beyond reasonable doubt obscene matter. Longoria v. State (Cr.App. 1972) 479 S.W.2d 689.
Obscenity        17


Evidence consisting of testimony of detective who after purchasing ticket from defendant saw allegedly obscene
motion picture film and still photographs taken during exhibition of film was insufficient to support conviction.
Saldivar v. State (Cr.App. 1972) 480 S.W.2d 691. Obscenity        17


Evidence was sufficient to support jury's finding that items were obscene devices and that defendant knew char-




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V.T.C.A., Penal Code § 43.23                                                                                Page 30




acter and content of such items; officers vividly described intended use of obscene devices without objection
and testified that devices were openly displayed in glass-enclosed counter, behind which defendant stood and
made sales. Southwick v. State (App. 1 Dist. 1985) 701 S.W.2d 927. Obscenity       17


State did not engage in improper jury argument, in trial for promoting obscenity, because state's characterization
of statement made by police officer was supported by officer's testimony. T.K.'s Video, Inc. v. State (App. 2
Dist. 1994) 871 S.W.2d 522, rehearing overruled , petition for discretionary review refused. Criminal Law
2095


Testimony of arresting officer, that device sold to her by defendant charged with promotion of obscene device
was “dildo,” that there was no mistaking shape of device as male sexual organ, and that it was capable of stimu-
lating female sexual organ, was sufficient to establish that device was dildo, and was “obscene” within meaning
of statute. Webber v. State (App. 3 Dist. 2000) 21 S.W.3d 726, petition for discretionary review refused. Ob-
scenity      17


  32. ---- Circumstantial evidence, sufficiency of evidence

In prosecution for promoting obscenity, circumstantial evidence including defendant's own testimony that he
sold tickets for $6 to adults only permitted jury finding that he knew content and character of film which he was
exhibiting. Kramer v. State (App. 1 Dist. 1983) 661 S.W.2d 283, petition for discretionary review refused. Ob-
scenity       17


Jury may not completely ignore magazine's cover and all circumstances of sale in determining whether defend-
ant accused of promotion of obscenity had knowledge of content and character of magazine; cover of magazine
should be considered as one brick in wall of circumstantial evidence needed to convict defendant (declining to
follow Gonzales v. State, 676 S.W.2d 437, 1984). Staten v. State (App. 14 Dist. 1985) 686 S.W.2d 268. Obscen-
ity     17


Though sales tax permit alone did not prove ownership of store from which obscene videotape was sold, reason-
able jury could reasonably infer from other evidence that defendant owned store directly or indirectly, thus
providing financial motive in promoting and assisting sale of videotapes, which could be considered as circum-
stance indicating guilt from which jury could reasonably infer that defendant acted with intent to promote and
assist sales clerk in sale of film so as to be guilty of possession of obscene material with intent to promote. Had-
dad v. State (App. 5 Dist. 1993) 860 S.W.2d 947, petition for discretionary review refused. Obscenity           17


  33. Instructions--In general

In prosecution for exhibiting obscene material, trial judge did not invade province of jury in charging that mo-
tion picture film depicted acts of sexual intercourse and oral sodomy where there was no room for doubt or hes-
itancy insofar as that conclusion was concerned and the record reflected no contradictory evidence at trial from
any source. Marlow v. State (Cr.App. 1976) 537 S.W.2d 8. Criminal Law          761(8)




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V.T.C.A., Penal Code § 43.23                                                                               Page 31




Discrepancy between court's jury charges authorizing conviction for commercial distribution of certain obscene
material and indictments charging possession for commercial distribution and sale of certain obscene material
constituted fundamental error. Brewer v. State (Cr.App. 1983) 659 S.W.2d 441. Criminal Law        1038.1(3.1)


Trial court's instruction to jury in trial for promoting obscenity contained proper definition of community stand-
ard; even though contested magazine was directed at homosexuals, court was not required to instruct jury to con-
sider prurient interest aspect of community standards test from viewpoint of homosexuals. T.K.'s Video, Inc. v.
State (App. 2 Dist. 1994) 871 S.W.2d 522, rehearing overruled , petition for discretionary review refused. Ob-
scenity       1.3; Obscenity        20


Objection to jury charge stating that defendants need only to have known “content orcharacter” of the videotapes
they allegedly promoted rather than “requiring that appellants know the content andcharacter” of the videotapes
was untimely, where objection was first made in middle of defense counsel's closing jury argument and again
after the jury had retired to deliberate. Martin v. State (App. 3 Dist. 2002) 2002 WL 31476659, Unreported, peti-
tion for discretionary review refused. Criminal Law          1038.1(7)


  34. ---- Obscene nature of material, instructions

Instruction which was given in prosecution for promoting obscene material and which in effect assumed as es-
tablished two essential facts, that the magazine in question was “obscene material” and that it depicted and de-
scribed “patently offensive” representations of actual or simulated sexual intercourse, anal intercourse, and oral
sodomy, was erroneous as leading the jury to believe that it could convict defendant if it found he sold the
magazine, even if it did not find that the magazine was obscene. Andrews v. State (App. 1 Dist. 1982) 639
S.W.2d 4, review refused, affirmed in part , reversed in part 652 S.W.2d 370. Criminal Law         761(18)


In prosecution for promoting obscenity, application paragraph of jury charge was defective where it eliminated
from State's burden proof of whether magazine depicted and described patently offensive representations of ac-
tual or simulated sexual intercourse, anal intercourse and oral sodomy. Andrews v. State (Cr.App. 1983) 652
S.W.2d 370. Obscenity        20


Trial court, in its jury charge in prosecution for exhibiting obscene materials, improperly assumed material dis-
puted fact regarding element of “patent offensiveness,” thus prejudicially relieving the state of burden of estab-
lishing requisite obscene nature or patent offensiveness of films in question. Knighton v. State (App. 1 Dist.
1984) 666 S.W.2d 386, petition for discretionary review refused. Criminal Law         761(6); Criminal Law
1172.3


Instruction in obscenity trial which inquires whether ordinary member of any given community would find seri-
ous literary, artistic, political or scientific value in allegedly obscene material violates First Amendment. Camp-
bell v. State (App. 4 Dist. 1988) 765 S.W.2d 817, petition for discretionary review refused. Constitutional Law
      2190; Obscenity           20


Definition of contemporary community standards was not required in prosecution for possession with intent to




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V.T.C.A., Penal Code § 43.23                                                                                Page 32




promote obscene material, where term “contemporary community standards” was not defined by criminal stat-
utes. Video News, Inc. v. State (App. 1 Dist. 1990) 790 S.W.2d 340. Obscenity 20


Definition of “prurient interest” was not required in jury instructions in prosecution for possession with intent to
promote obscene material. Video News, Inc. v. State (App. 1 Dist. 1990) 790 S.W.2d 340. Obscenity             20


Instruction in prosecution for possession with intent to promote obscene material sufficiently indicated that jury
was to determine whether material appealed to prurient interest from standpoint of average person that trial court
properly refused requested instruction. Video News, Inc. v. State (App. 1 Dist. 1990) 790 S.W.2d 340. Criminal
Law        829(3)


In prosecution of defendant for promoting obscene material, trial court properly instructed jury to determine
whether magazines sold by defendant appealed to the prurient interest of the average person, despite defendant's
objection that materials aimed at sexually deviant groups cannot be judged by what appeals to prurient interest
of the average person. T.K.'s Video, Inc. v. State (App. 2 Dist. 1994) 883 S.W.2d 300, rehearing overruled , pe-
tition for discretionary review refused. Obscenity      20


Defendant's objection to jury charge in trial for promotion of obscenity, that charge did not instruct jury that it
must find television program lacked serious educational value before it could find program obscene, was too
broad to preserve claimed error for review; issue in trial was whether film shown during television program was
obscene rather than whether program as a whole was obscene. Rees v. State (App. 3 Dist. 1995) 909 S.W.2d 264
, rehearing overruled, petition for discretionary review refused, certiorari denied 117 S.Ct. 169, 519 U.S. 863,
136 L.Ed.2d 111. Criminal Law          1043(2)


Instruction defining “prurient interest,” for purposes of obscenity offense, as unhealthy interest in nudity, sex or
excretion, did not have to add that jury could not find defendants guilty if film appealed only to viewers' healthy
interest in sex; from definition given, a healthy interest in sex was, logically, nonprurient. Rees v. State (App. 3
Dist. 1995) 909 S.W.2d 264, rehearing overruled, petition for discretionary review refused, certiorari denied 117
S.Ct. 169, 519 U.S. 863, 136 L.Ed.2d 111. Obscenity           20


  35. ---- Presumptions, instructions

Trial court's instruction to jury that a person who possesses six or more obscene devices or identical or similar
obscene articles is presumed to possess them with intent to promote the same, which was not accompanied by
any limiting instructions, presented the presumption as being irrebuttable and therefore denied defendant due
process. Coberly v. State (App. 2 Dist. 1982) 640 S.W.2d 428, review refused 644 S.W.2d 734. Constitutional
Law        4653


Obscenity conviction was required to be reversed and cause remanded due to trial court's failure to charge jury
on consequences of presumption under § 2.05 that person who possesses six or more obscene devices or identic-
al or similar obscene articles is presumed to possess them with intent to promote the same. Coberly v. State
(Cr.App. 1983) 644 S.W.2d 734. Criminal Law         1173.2(5); Obscenity      20




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V.T.C.A., Penal Code § 43.23                                                                              Page 33




Error in charge to jury with respect to permissible presumptions in a prosecution for possession of an obscene
device with intent to promote was not reversible since, even without application of presumptions, evidence was
sufficient to convict. Hall v. State (Cr.App. 1983) 661 S.W.2d 101. Criminal Law       1172.2


In prosecution for promoting obscenity, trial court committed prejudicial error when it instructed jury that it
could find defendant guilty solely by applying presumption under subsec. (e) of this section that person who
promotes or wholesale promotes obscene material or possesses the same with intent to promote or wholesale
promote it in course of his business is presumed to do so with knowledge of its content and character, in that the
material promoted by defendant, a magazine, was presumptively protected by U.S.C.A. Const.Amend 1 and
Const. Art. 1, § 8. Hoyle v. State (Cr.App. 1984) 672 S.W.2d 233. Criminal Law        778(2)


Trial court erred in authorizing jury to find that defendant had knowledge of content and character of magazine
she sold undercover officer solely by invoking presumption under subsec. (e) of this section stating that person
who promotes obscene material is presumed to do so with knowledge of its content and character. Shealy v.
State (Cr.App. 1984) 675 S.W.2d 215. Obscenity           20


When promoted material is protected by U.S.C.A. Const.Amend. 1 or by Const. Art. 1, § 8, and trial court errs
by instructing jury that prosecution may establish that accused had knowledge of content and character of pro-
moted material through use of presumption under subsec. (e) of this article stating that person who promotes ob-
scene material is presumed to do so with knowledge of its content and character, such cannot ever be harmless
error. Shealy v. State (Cr.App. 1984) 675 S.W.2d 215. Criminal Law         1172.2


Instructing jury regarding statutory presumption of promoter's knowledge of content of obscene material was re-
versible error in prosecution for class A misdemeanor offense of obscenity in which subject material was
magazine. Gonzales v. State (App. 1 Dist. 1984) 676 S.W.2d 437, petition for discretionary review refused 689
S.W.2d 231. Criminal Law          1172.2; Obscenity     20


Defendant's conviction of misdemeanor offense of obscenity would be reversed due to submission of a charge
regarding statutory presumption of promoter's knowledge of content of obscene material. Gonzales v. State
(Cr.App. 1985) 689 S.W.2d 231. Obscenity       20


  36. Jury deliberations

In order for jury to determine whether material was obscene, each juror was required to determine whether a
community standard of decency existed and whether the material at issue violated that standard, and jury was
not required to apply the community standard as the average person would apply it, or to reach a consensus as to
what that standard was. Johnson v. State (App. 5 Dist. 1988) 760 S.W.2d 797. Obscenity        19


Jury at guilt/innocence stage of prosecution for violation of this section that is attempting to evaluate whether
magazines are obscene cannot judge obscenity of magazines by their covers. Video News, Inc. v. State (App. 1
Dist. 1990) 790 S.W.2d 340. Obscenity        17




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Penal Code § 43.23                                                                               Page 34




In determining whether homosexual magazine sold by defendant was obscene, jury was required to judge mater-
ial with reference to targeted audience and then evaluate material from viewpoint of average adult person, apply-
ing contemporary community standards, to determine whether it appealed to prurient interests, and to apply
same standard to determine if material was offensive and lacking recognized merit. Coon v. State (App. 2 Dist.
1994) 871 S.W.2d 284, petition for discretionary review refused. Obscenity        5.2


The fact that expert witnesses do not find material to be obscene does not prevent a jury from deciding it (1)
lacks serious literary, artistic, scientific, or political value or (2) would be offensive to the average member of
the community. Castillo v. State (App. 5 Dist. 2002) 79 S.W.3d 817, petition for discretionary review refused,
certiorari denied 123 S.Ct. 1593, 538 U.S. 924, 155 L.Ed.2d 315. Criminal Law             494


  37. Review--In general

In actions challenging this section, Court of Appeals abstained from adjudication on merits of whether presump-
tions of this section that one who possesses obscene materials or devices with intent to promote them is pre-
sumed to have knowledge of their character and that one who possesses six or more obscene devices or identical
or similar obscene articles is presumed to possess them with intent to promote them, since Texas courts deserved
opportunity to determine in first instance how presumptions would operate and Texas courts could obviate any
conflict between application of presumptions and due process and First Amendment requirements. Red Bluff
Drive-In, Inc. v. Vance, C.A.5 (Tex.)1981, 648 F.2d 1020, rehearing denied 656 F.2d 700, certiorari denied 102
S.Ct. 1264, 455 U.S. 913, 71 L.Ed.2d 453. Federal Courts        49


Although evidence was insufficient to support conviction, prosecution of clerk at adult book store for class A
misdemeanor offense of obscenity would be remanded for new trial rather than judgment reformed to acquittal
since State may have reasonably relied on unconstitutional statutory presumption of promoter's knowledge of
content of obscene material and not have submitted all evidence. Gonzales v. State (App. 1 Dist. 1984) 676
S.W.2d 437, petition for discretionary review refused 689 S.W.2d 231. Criminal Law       1189


Defendant was precluded from arguing on appeal that, because no timely and proper determination of obscenity
was made, his conviction for selling obscene material was invalid; defendant alleged in his motion to quash in-
formation that an independent, prearrest judicial determination of obscenity was made, defendant did not request
a prior determination of obscenity, material purchased did not constitute a “seizure” implicating constitutional
concerns that would require a preseizure hearing to determine whether material was obscene, and defendant, by
his plea of nolo contendere, admitted every element of offense including element that material was obscene
when he sold it. Graham v. State (App. 7 Dist. 1989) 767 S.W.2d 271. Criminal Law         1136


  38. ---- Independent determination of obscenity, review

In prosecution for knowingly distributing an obscene magazine, it was duty of Criminal Court of Appeals to ex-
amine magazine and, applying test for obscenity established by decisional law, determine whether magazine was
constitutionally obscene. Parrish v. State (Cr.App. 1975) 521 S.W.2d 849. Criminal Law      1134.32




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Penal Code § 43.23                                                                                    Page 35




Appellate court, though it may not be required to review sufficiency of evidence to support obscenity convic-
tion, must, nevertheless, make independent determination of whether material is constitutionally obscene, that is,
whether material advocates or communicates any ideas or opinions concerning serious literary, artistic, political,
or scientific values. Andrews v. State (Cr.App. 1983) 652 S.W.2d 370. Criminal Law         1159.2(10)


In obscenity case, where defendant pleads not guilty and trial is to jury or the court, but defendant is found
guilty and appeals his conviction, it is incumbent upon intermediate appellate courts to make independent de-
termination whether material that is alleged to be obscene is constitutionally obscene. Andrews v. State (Cr.App.
1983) 652 S.W.2d 370. Criminal Law          1158.1



Where, on review of promoting obscenity conviction, defendant did not make challenge that content of
magazine did not depict and describe patently offensive representations of actual and simulated sexual inter-
course, anal intercourse and oral sodomy or challenge sufficiency of evidence to show his connection or rela-
tionship to sale of magazine or challenge sufficiency of evidence that he knew content and character of
magazine, it was unnecessary for Court of Criminal Appeals to make independent review of evidence to determ-
ine whether it was sufficient to sustain implicit findings made by trier of fact. Andrews v. State (Cr.App. 1983)
652 S.W.2d 370. Criminal Law          1158.1



If defendant contends either during trial or upon appeal that the material is not factually obscene, in accordance
with the average person-contemporary community standard test, it is necessary for the trial court and, if there
has been a conviction and appeal, the appellate court to independently view the material and determine whether
as a matter of law the material is factually obscene. Davis v. State (Cr.App. 1983) 658 S.W.2d 572. Criminal
Law       1139; Obscenity        19


If there is not an issue raised in the trial or appellate court that material is not either factually or constitutionally
obscene, it is not incumbent upon the trial court or, if there has been a conviction and appeal, upon the appellate
court to view the entire material to make independent determination whether the material is factually or constitu-
tionally obscene. Davis v. State (Cr.App. 1983) 658 S.W.2d 572. Criminal Law                1030(3)


It is incumbent upon the trial court and, if there has been a conviction and appeal, the appellate court to make in-
dependent determination whether material that is alleged to be obscene is factually and constitutionally obscene,
if issue is made in the trial or appellate court whether the material is obscene, either constitutionally or factually.
Davis v. State (Cr.App. 1983) 658 S.W.2d 572. Criminal Law              1139; Obscenity        19


Should the appellate court, in reviewing any grounds of error, determine that material may not be either factually
or constitutionally obscene, it is free to decide either of those issues, pursuant to its inherent judicial powers,
even though such issue was not raised on appeal. Davis v. State (Cr.App. 1983) 658 S.W.2d 572. Criminal Law
     1134.32


It is incumbent upon Court of Appeals to make an independent determination of whether material alleged to be




                            © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Penal Code § 43.23                                                                                 Page 36




obscene is factually and constitutionally obscene, if such issue is raised at trial or on appeal. Carr v. State (App.
14 Dist. 1983) 658 S.W.2d 653. Criminal Law           1139


In determining whether material is constitutionally obscene, appellate courts are obliged to independently re-
view and evaluate material. Rees v. State (App. 3 Dist. 1995) 909 S.W.2d 264, rehearing overruled, petition for
discretionary review refused, certiorari denied 117 S.Ct. 169, 519 U.S. 863, 136 L.Ed.2d 111. Criminal Law
      1134.32


V. T. C. A., Penal Code § 43.23, TX PENAL § 43.23


Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




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