In =
The
Court of=20
Appeals
For =
The
First =
District of=20
Texas
NO. =
01-06-00899-CV
THE CADLE COMPANY,=20
Appellant
v.
ROY H. BRAY, =
Appellee
On Appeal from County Civil Court at =
Law Number=20
One
Harris County, Texas
Trial Court Cause No.=20
851,629
O P I N I O N
<=
/SPAN>Appellant,=20
The Cadle Company (=E2=80=9CCadle=E2=80=9D), appeals the summary =
judgment rendered in=20
favor of appellee, Roy H. Bray, that collaterally attacked and =
declared=20
void a default judgment against Bray in an earlier case involving =
the same=20
two parties. Cadle contends that the trial court improperly =
granted=20
summary judgment because (1) Cadle=E2=80=99s petition to =
revive the dormant=20
judgment that led to the default was a properly filed =
=E2=80=9Caction of debt=E2=80=9D;=20
(2) the Harris County Court at Law had subject-matter =
jurisdiction=20
over Cadle=E2=80=99s petition to revive the judgment underlying =
the default=20
judgment; and (3) the claims brought by Bray are barred by =
res=20
judicata. We conclude that County Court at Law No. 1 had =
subject-matter=20
jurisdiction to render the default judgment and the remainder of =
Bray=E2=80=99s=20
challenges are barred by res judicata. We reverse and render =
judgment in=20
favor of Cadle.
Background
<=
/SPAN>Bray=20
executed a promissory note payable to Security Bank in the amount =
of=20
$60,000. Bray v. Cadle Co., 880 S.W.2d 813, 815 (Tex. =
App.=E2=80=94Houston=20
[14th Dist.] 1994, writ denied). The note was secured by a =
Transfer of=20
Note and Liens, covering a promissory note in the amount of =
$90,000.=20
Id. When Bray failed to pay the fourth quarter interest, =
Security=20
Bank sought full payment on the note. Id. The Federal =
Deposit=20
Insurance Corporation (=E2=80=9CFDIC=E2=80=9D) became the receiver =
of the note when=20
Security Bank ceased operating. Id. The FDIC sold all of =
Security=20
Bank=E2=80=99s notes, including both Bray=E2=80=99s note and the =
note securing Bray=E2=80=99s=20
note, to Cadle. Id.
<=
/SPAN> Cadle=20
sued Bray for recovery of the debt in Harris County Court at Law=20
No. 1. On January 28, 1993, pursuant to a jury verdict, the =
trial=20
court rendered judgment in favor of Cadle for $20,568.53, plus =
pre- and=20
post-judgment interest, attorney=E2=80=99s fees and =
attorney=E2=80=99s fees on appeal.=20
Id. Bray never paid the judgment against him.
<=
/SPAN>Almost=20
12 years later, on January 13, 2005, Cadle filed a lawsuit seeking =
to=20
revive the 1993 judgment against Bray. The pleading asserted that =
under=20
section 34.001(a) of the Texas Civil Practice and Remedies =
Code, ![3DFootnote](3D"")
the judgment rendered January 28, =
1993 had=20
become dormant since it was not executed within 10 years of its =
rendition.=20
The petition pleaded that under section 31.006 of the Texas Civil =
Practice=20
and Remedies Code,
the judgment became dormant on =
January 28,=20
2003, but it could be revived within two years of that date. The =
petition=20
to revive filed by Cadle stated that jurisdiction was based on =
=E2=80=9Cthe=20
judgment previously rendered in Cause No. 579,602; The Cadle =
Company v.=20
Roy H. Bray; in County Court at Law No. 1, Harris County, =
Texas.=E2=80=9D=20
Although the petition showed that jurisdiction was proper in =
Harris County=20
Court at Law No. 1, the clerk assigned the case to Harris =
County=20
Court at Law No. 3. Bray was served but did not answer. =
Subsequently,=20
the Harris County Administrative Judge transferred the case to =
Harris=20
County Court at Law No. 1. In the order transferring the =
case, the=20
administrative judge stated, =E2=80=9CPursuant to the local rules, =
[cause number=20
829,990] previously filed in court 579,602 [sic] under docket =
number 1=20
[sic], is transferred to the County Court at Law No. One, Harris =
County=20
Texas.=E2=80=9D Harris County Court at Law No. 1 granted a =
default judgment=20
in favor of Cadle on August 25, 2005. In the default judgment, the =
trial=20
court revived the underlying 1993 judgment and awarded Cadle =
$71,191.38,=20
which was the amount of the original judgment plus interest. The =
default=20
judgment noted that Bray was =E2=80=9Cduly and legally cited to =
appear and=20
answer,=E2=80=9D but he defaulted by failing to appear and =
answer.
<=
/SPAN>On=20
November 11, 2005, Bray filed this suit against Cadle, seeking a=20
declaratory judgment that the default judgment reviving the 1993 =
judgment=20
was void for three reasons. First, Bray contended that the default =
judgment was void because County Court at Law No. 3 did not =
have=20
subject matter jurisdiction to revive the 1993 judgment, which was =
rendered by County Court at Law No. 1. Bray explained that =
the suit=20
to revive filed by Cadle was not an action of debt, since it =
sought only=20
to revive the underlying 1993 judgment, and that it was instead an =
action=20
for scire facias, over which County Court at Law No. 1 =
had=20
exclusive jurisdiction. Bray stated further that the transfer of =
the case=20
to County Court at Law No. 1 did not give that court =
jurisdiction to=20
hear the matter =E2=80=9Csince jurisdiction is determined at the =
time the suit is=20
filed.=E2=80=9D Second, Bray pleaded that the default judgment was =
void because=20
County Court at Law No. 1 lacked personal jurisdiction over =
Bray.=20
Specifically, Bray stated that he =E2=80=9Cwas never served with a =
citation or=20
petition showing that the cause number 829,990 was filed=E2=80=9D =
in County Court=20
at Law No. 1. Bray contended that the citation and petition =
in County=20
Court at Law No. 3 were nullities. Third, Bray asserted that =
the=20
default judgment was unsupported by the pleadings. Bray explained =
that the=20
petition in cause number 829,990 is not an action of debt since =
only costs=20
of court were requested, and that the default judgment is not =
supported by=20
Cadle=E2=80=99s pleadings. Cadle answered denying Bray=E2=80=99s =
claims and pleading the=20
affirmative defenses of estoppel, laches, and res judicata. By =
agreement=20
of the parties, this suit seeking the declaratory judgment was =
transferred=20
from County Court at Law No. 3 to County Court at Law=20
No. 1.
<=
/SPAN>Cadle=20
filed a motion for summary judgment, asserting that res judicata =
barred=20
Bray=E2=80=99s collateral attack and that Cadle=E2=80=99s suit to =
revive the judgment was=20
=E2=80=9Ca new action of debt=E2=80=9D and not a motion for =
scire facias that had=20
to be filed in the court that rendered the original judgment. =
Cadle also=20
asserted that its suit to revive was properly transferred from =
County=20
Court at Law No. 3 to County Court at Law =
No. 1.
<=
/SPAN>Bray=20
responded and filed a cross-motion for summary judgment claiming =
that=20
County Court at Law No. 3 did not have subject matter jurisdiction =
over=20
Cadle=E2=80=99s suit to revive the 1993 judgment because it was a =
motion for=20
scire facias; that County Court at Law No. 1 did not =
have=20
personal jurisdiction over Bray because he was served with the =
petition=20
while it was pending in County Court at Law No. 3, a court that =
never had=20
proper jurisdiction over the scire facias motion; and that =
the=20
default judgment was unsupported by the pleadings. The trial court =
granted=20
Bray=E2=80=99s motion for summary judgment without stating the =
grounds for the=20
ruling. Cadle filed a motion for new trial, which was denied. The =
trial=20
court rendered final judgment in favor of Bray declaring the =
default=20
judgment void and void ab initio and awarded Bray =
attorney=E2=80=99s fees.=20
Summary=20
Judgment
<=
/SPAN>We=20
review a trial court=E2=80=99s grant of summary judgment de novo. =
Valence=20
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). =
Summary=20
judgment is proper only when the movant establishes that there is =
no=20
genuine issue of material fact and that the movant is entitled to =
judgment=20
as a matter of law. Tex. =
R. Civ. P.=20
166a(c). The motion must state the specific grounds relied =
upon for=20
summary judgment. Id. In reviewing a summary judgment, we =
must=20
indulge every reasonable inference in favor of the nonmovant, take =
all=20
evidence favorable to the nonmovant as true, and resolve any =
doubts in=20
favor of the nonmovant. Valence, 164 S.W.3d at =
661.
<=
/SPAN>When=20
both sides move for summary judgment and the trial court grants =
one motion=20
and denies the other, we review the summary judgment evidence =
presented by=20
both sides and determine all questions presented. =
Comm=E2=80=99rs Ct. v.=20
Agan, 940 S.W.2d 77, 81 (Tex. 1997); Cigna Ins. Co. v.=20
Rubalcada, 960 S.W.2d 408, 411=E2=80=9312 (Tex. =
App.=E2=80=94Houston [1st Dist.] 1998,=20
no pet.). We render such judgment as the trial court should have =
rendered.=20
Agan, 940 S.W.2d at 81; Rubalcada, 960 S.W.2d at =
412. When,=20
as here, a summary judgment does not specify the grounds on which =
it was=20
granted, we will affirm the judgment if any one of the theories =
advanced=20
in the motion is meritorious. Joe v. Two Thirty Nine Joint =
Venture,=20
145 S.W.3d 150, 157 (Tex. 2004). Declaratory judgments decided by =
summary=20
judgment are reviewed under the same standards of review that =
govern=20
summary judgments generally. See Tex. Civ. Prac. & Rem.Code=20
Ann. =C2=A7 37.010 (Vernon 1997); Lidawi v. =
Progressive County=20
Mut. Ins. Co., 112 S.W.3d 725, 730 (Tex. App.=E2=80=94Houston =
[14th Dist.]=20
2003, no pet.).
A. Subject Matter =
Jurisdiction
<=
/SPAN>In=20
its first issue, Cadle contends that the trial court erred by =
rendering=20
summary judgment that declared void the default judgment on the =
ground=20
that County Court at Law No. 1 lacked subject matter jurisdiction =
over the=20
matter.
<=
/SPAN>Subject=20
matter jurisdiction may be challenged at any time. See Tex. =
Employment=20
Comm=E2=80=99n v. Int=E2=80=99l Union of Elec., Radio and Mach. =
Workers, Local Union No.=20
782, 163 Tex. 135, 352 S.W.2d 252, 253 (1961). The question of =
subject=20
matter jurisdiction is a legal question that we review de novo. =
Tex.=20
Dep=E2=80=99t of Parks & Wildlife v. Miranda, 133 S.W.3d =
217, 228 (Tex.=20
2004). Our task is to examine the pleadings, to take as true the =
facts=20
pleaded, and to determine whether those facts support jurisdiction =
in the=20
trial court. See Tex. Ass=E2=80=99n of Bus. v. Tex. Air Control =
Bd., 852=20
S.W.2d 440, 446 (Tex. 1993). We construe the pleadings in favor of =
the=20
pleader. Id.
<=
/SPAN>The=20
default judgment was issued by County Court at Law No. 1, the same =
court=20
that issued the underlying 1993 judgment. Thus, assuming Bray is =
correct=20
that the suit to revive was a scire facias claim and that =
it had to=20
be resolved in the same court that issued the underlying =
judgment,=20
the record here undisputedly =
shows that the=20
default judgment was issued by the same court that issued the =
underlying=20
judgment for that claim. The record further undisputedly shows =
that Cadle=20
attempted to have the case filed in County Court at Law No. 1 by =
stating=20
in its petition that jurisdiction was proper in County Court at =
Law No. 1=20
due to the judgment that was previously rendered in that court. =
Cadle,=20
therefore, attempted to have the case assigned to the court that =
rendered=20
the prior judgment. Bray contends that we must determine whether =
there is=20
subject matter jurisdiction at the time the case is filed. =
However, it is=20
undisputed that County Court at Law No. 1 had jurisdiction at =
the=20
time the case was filed because the prior judgment was issued in =
that=20
court.
<=
/SPAN>The=20
challenge by Bray is narrow. Bray claims that because =
Cadle=E2=80=99s suit to=20
revive was assigned by the county clerk to County Court at =
Law No.=20
3 instead of County Court at Law No. 1, where the scire facias=20
claim belonged, that County Court at Law No. 1 never properly =
had=20
jurisdiction over the claim, despite the transfer by the =
administrative=20
judge, who ordered the claim transferred from County Court at Law =
No. 3 to=20
County Court at Law No. 1. Assuming that the claim was for =
scire=20
facias as Bray asserts and that the scire facias claim =
had to=20
be resolved in the same court that issued the underlying judgment, =
we=20
cannot conclude that the initial assignment of the case in County =
Court at=20
Law No. 3 rather than County Court at Law No. 1, the latter being=20
expressly referred to in the petition, deprives County Court at =
Law=20
No. 1 of subject matter jurisdiction.
<=
/SPAN>Bray=20
filed a =E2=80=9CPost Argument Brief,=E2=80=9D in which he cites =
to Texas Employers=E2=80=99=20
Ass=E2=80=99n v. Cashion, a case that he claims is =
distinguishable and =E2=80=9Cdoes=20
not appear to be well reasoned.=E2=80=9D See Tex. =
Employers=E2=80=99 Ass=E2=80=99n v.=20
Cashion, 130 S.W.2d 1112, 1113 (Tex. Civ. App.=E2=80=94Dallas =
1939, writ=20
ref=E2=80=99d). We disagree. The circumstances in Cashion =
concern a bill of=20
review, but are procedurally similar to those here. See id. =
In=20
Cashion, the plaintiff=E2=80=99s petition contained a =
caption that named=20
both the plaintiff and defendant, bore the address =E2=80=9CIn the =
14th Judicial=20
District, Dallas County, Texas,=E2=80=9D and was handed to the =
district clerk with=20
the oral statement that it was being filed in the 14th District =
Court, but=20
the clerk instead assigned the petition a number that belonged to =
the=20
116th District Court. Id. The 116th District Court entered =
an order=20
purporting to transfer Cashion=E2=80=99s cause to the 14th =
District Court.=20
Id. The 14th District Court issued the citation for =
Cashion=E2=80=99s cause=20
and, after the defendant answered, sustained the =
defendant=E2=80=99s general=20
demurrer in a trial on the pleadings. Id. In its appeal, =
the=20
defendant asserted that the action of the 14th District Court was =
an=20
adjudication upon the merits of Cashion=E2=80=99s pleading as a =
bill of review and=20
that the trial court erred by dismissing Cashion=E2=80=99s case =
without prejudice.=20
Id. The Dallas Court of Appeals disagreed, noting that the =
14th=20
District Court=E2=80=99s judgment recited that the dismissal was =
on the ground of=20
jurisdiction alone and therefore was not an adjudication of the =
merits of=20
Cashion=E2=80=99s cause of action. Id. In reversing the =
trial court=E2=80=99s=20
dismissal of Cashion=E2=80=99s cause of action, the appellate =
court held that the=20
trial court should have overruled the demurrer and set the cause =
on the=20
trial court=E2=80=99s regular docket for trial. Id. at =
1114. Thus, the=20
appellate court determined that the district court had =
jurisdiction over=20
the case, even though the district court received the case by =
transfer=20
from another district court within the same county. See id. =
at=20
1113. The appellate court noted that Cashion=E2=80=99s =
=E2=80=9Cintention, manifested by=20
his acts, was to file his petition in the court that had =
originally=20
rendered the adverse judgment, for it was maintainable in no =
other.=E2=80=9D=20
Id. The appellate court said that Cashion =
=E2=80=9Cperformed every act=20
legally required of him to place his case before the only court =
that could=20
entertain his bill,=E2=80=9D and that the clerk=E2=80=99s failure =
to properly make an=20
=E2=80=9Cendorsement on the paper left with him does not prejudice =
the valuable=20
right of the party filing the same.=E2=80=9D Id. =
<=
/SPAN>Bray=20
contends Cashion is distinguishable because Cadle did not =
perform=20
every legal act required of it to place its case before County =
Court at=20
Law No. 1. Bray states that Cadle (1) failed to place the =
court=20
number or original cause number in the caption of the petition =
that were=20
left blank by Cadle, (2) took no action to change the style =
of the=20
cause after the case was transferred by continuing to name County =
Court at=20
Law No. 3 in the captions of the motions it filed, and =
(3) allowed=20
the case to be dismissed for want of prosecution.
Of these three circumstances =
asserted by=20
Bray, the only circumstance pertinent to the time of the initial =
filing is=20
the caption on the original petition, which was left blank rather =
than=20
filled in with the information for County Court at Law No. 1. But, =
as=20
noted above, within the petition was a statement that the case =
would be=20
properly assigned to County Court at Law No. 1. We agree with the=20
reasoning of Cashion that a plaintiff=E2=80=99s petition =
that includes a=20
statement concerning the proper court for the case to be assigned =
is=20
sufficient to show the plaintiff=E2=80=99s intent concerning the =
court to which=20
the case should be assigned. See id. We also agree with the =
reasoning of Cashion that the transferee court did not lose =
subject-matter jurisdiction merely because it received the case by =
transfer from another court of concurrent jurisdiction within the =
same=20
county. See id.
<=
/SPAN>Also=20
in his =E2=80=9CPost Argument Brief,=E2=80=9D Bray refers to the =
transfer of cases=20
authorized by the Texas Government Code. See Tex. Gov=E2=80=99t Code =
Ann.=20
=C2=A7 74.121(a) (Vernon 2006). Section 74.121 of the =
Government Code=20
states,
The judges of constitutional county =
courts,=20
statutory county courts, justice courts, and small claims courts =
in a=20
county may transfer cases to and from the dockets of their =
respective=20
courts, except that a case may not be transferred from one court =
to=20
another court without the consent of the judge of the court to =
which it is=20
transferred and may not be transferred unless it is within the=20
jurisdiction of the court to which it is =
transferred.
Id.
<=
/SPAN>Bray=20
states, =E2=80=9CAlthough Section 74.121 is silent on whether the =
transferring=20
court must have jurisdiction over the case being transferred, it =
is sound=20
legal reasoning that the legislature presumed that a court has=20
jurisdiction over a case that it intends to transfer.=E2=80=9D The =
plain language=20
of section 74.121 specifically provides that these courts may =
transfer=20
cases between them. See id. Nothing in the rule requires =
that the=20
transferor court have subject matter jurisdiction for the =
administrative=20
judge to have authority to transfer the case. See id. The =
only=20
limitations to transfer, consent by the transferee court and =
jurisdiction=20
by the transferee court, are not challenged by Bray. See =
id. Thus,=20
the transfer of the case was proper under the terms of section =
74.121 of=20
the Government Code. See id.
<=
/SPAN>County=20
Court at Law No. 1 issued both the underlying 1993 judgment =
and the=20
default judgment reviving the 1993 judgment. We cannot conclude =
that=20
County Court at Law No. 1 never had subject matter jurisdiction =
over the=20
claim, which was properly filed with the county clerk=E2=80=99s =
office by Cadle,=20
merely because the clerk originally assigned Cadle=E2=80=99s suit =
to a companion=20
court within the same county. See id. We hold that the =
trial court=20
erred by rendering summary judgment on the ground that County =
Court at Law=20
No. 1 lacked subject matter jurisdiction to issue the default =
judgment and by declaring void the default judgment.
<=
/SPAN>B.=20
Personal Jurisdiction
<=
/SPAN>In=20
its second issue, Cadle contends that the trial court erred by =
rendering=20
summary judgment that declared void the default judgment because =
County=20
Court at Law No. 1 lacked personal jurisdiction over Bray. Bray =
was served=20
with citation in Cadle=E2=80=99s suit to revive while it was =
pending in County=20
Court at Law No. 3 and received notice of the lawsuit. However, =
Bray=20
claims that County Court at Law No. 1 never had personal =
jurisdiction over=20
him due to the failure to serve him with a petition that named =
County=20
Court at Law No. 1.
<=
/SPAN>The=20
judgment in cause number 829,990 was a default judgment. The Texas =
Rules=20
of Appellate Procedure and case law provide procedures to =
challenge a=20
default judgment through a restricted appeal or a bill of review.=20
See Tex. R. App. =
P.=20
30 (restricted appeal); Caldwell v. Barnes, 154 S.W.3d 93, =
96=E2=80=9397=20
(Tex. 2004) (bill of review). A restricted =
appeal is a=20
direct attack on a judgment.
Roventini v. =
Ocular=20
Scis., Inc., 111 S.W.3d 719, 721 (Tex. App.=E2=80=94Houston =
[1st Dist.] 2003,=20
no pet.). A bill of review is an equitable proceeding =
brought by a=20
person seeking to set aside a judgment that is no longer subject =
to=20
challenge by a motion for new trial or appeal. Caldwell, =
154 S.W.3d=20
at 96=E2=80=9397; Wolfe v. Grant Prideco, Inc., 53 S.W.3d =
771, 773 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 2001, pet. denied).
Bray opted not to challenge the =
default=20
judgment through a restricted appeal or bill of review. See =
Tex. R. App. P. 30;=20
Caldwell, 154 S.W.3d at 96=E2=80=9397. Instead, Bray =
challenges the court=E2=80=99s=20
personal jurisdiction over him in the default judgment by =
collaterally=20
attacking the judgment in this case through this petition for a=20
declaratory judgment.
<=
/SPAN>Having=20
failed to challenge the default judgment through a restricted =
appeal or=20
bill of review, Bray may not now challenge personal jurisdiction =
in this=20
collateral attack. When reviewing a collateral attack, we presume =
the=20
validity of the judgment under attack. Shackleford v. =
Barton, 156=20
S.W.3d 604, 606 (Tex. App.=E2=80=94Tyler 2004, pet. denied); =
Johnson v.=20
Ventling, 132 S.W.3d 173, 177 (Tex. App.=E2=80=94Corpus =
Christi 2004, no=20
pet.); Toles v. Toles, 113 S.W.3d 899, 914 (Tex. =
App.=E2=80=94Dallas 2003,=20
no pet.). The recitations of the judgment control. Narvaez v.=20
Maldonado, 127 S.W.3d 313, 317 (Tex. App.=E2=80=94Austin 2004, =
no pet.);=20
Toles, 113 S.W.3d at 914. The default judgment clearly =
shows that=20
service was accomplished on Bray, stating that Bray had =
=E2=80=9Cbeen duly and=20
legally cited to appear and answer.=E2=80=9D We hold that the =
trial court erred by=20
rendering summary judgment in favor of Bray on the ground that the =
court=20
lacked personal jurisdiction over Bray when it issued the default=20
judgment.
Res=20
Judicata
<=
/SPAN>In=20
its third issue, Cadle contends that the trial court erred by =
failing to=20
grant its motion for summary judgment on the ground that =
Bray=E2=80=99s challenges=20
are barred by res judicata.
<=
/SPAN>The=20
doctrine of res judicata bars a second suit by parties on matters =
actually=20
litigated in an earlier suit, as well as claims =
=E2=80=9C=E2=80=98which, through the=20
exercise of diligence, could have been litigated in a prior =
suit.=E2=80=99=E2=80=9D=20
Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 799 =
(Tex.=20
1992) (quoting Barr v. Resolution Trust Corp., 837 S.W.2d =
627, 631=20
(Tex. 1992)). Texas follows the transactional approach to res =
judicata,=20
which requires claims arising out of the same subject matter to be =
litigated in a single lawsuit. Hallco Tex., Inc. v. McMullen=20
County, 221 S.W.3d 50, 58 (Tex. 2006); Barr, 837 S.W.2d =
at 631.=20
For res judicata to apply, there must be: (1) a prior final =
judgment=20
on the merits by a court of competent jurisdiction; =
(2) identity of=20
parties or those in privity with them; and (3) a second =
action based=20
on the same claims that were raised or could have been raised in =
the first=20
action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 =
(Tex.=20
1996).
<=
/SPAN>Having=20
held that the trial court had subject matter jurisdiction over the =
matter,
Bray=E2=80=99s remaining =
challenges to the default=20
judgment, including his assertion that the default judgment was =
not=20
supported by proper pleadings, are barred by res judicata. We hold =
that=20
the trial court erred by failing to grant Cadle=E2=80=99s motion =
for summary=20
judgment.
ConclusionWe reverse and render =
judgment=20
that Bray take nothing in his suit to declare the default judgment =
void.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Elsa=20
Alcala
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of =
Chief=20
Justice Radack and Justices Alcala and=20
Bland.