*1 dictment Cause No. so as to
aggregate the amounts so as to create one degree felony, third under TEX.PENAL § (Vernon 1974). CODE ANN. 31.09 Appellant plea guilty entered a to each judicial indictment and executed a confes- punishment sion. The trial court assessed at confinement for a of three in each the two three terms to concurrently. run charge appellant The two indictments general with the offense of theft under the statute, theft TEX.PENAL ANN. CODE § (Vernon Supp.1984). Appellant 31.03
contends the convictions are void for reason that the indictments should have
charged the under offenses TEX.HUM. § 1980). ANN. 33.011 RES.CODE urged by appellant The contention now rejected by our Court of Criminal Appeals Mangrum, in Ex Parte 564 S.W.2d (Tex.Cr.App.1978). Op.Tex. also (1982).
Atty.Gen. No. MW-582 of charged by fenses indictments properly chargeable case at bar are the offense of theft as set out TEX.PE § (Vernon Supp. NAL CODE ANN. 31.03 1984). in each case is affirmed.
TRANSAMERICA INSURANCE
COMPANY, Appellant, AUTHORITY OF CITY HOUSING Texas, VICTORIA, Appellee. OF No. 13-82-385-CV. Appeals of Court of Corpus Christi. March 1984. Rehearing April Denied *2 Jones, III, Victoria, Douglas
O. F. M. Brin, Kennedy, Christi, Brin Corpus & for Campbell Construction Co. Antonio, Shaddox, for San R. Charles appellee. BISSETT, and GON- KENNEDY
Before ZALEZ, JJ.
OPINION
BISSETT, Justice. arising This is a suit out of construction contract. The Au- thority City Victoria, here- Housing Authority,” after “the peti- 30,1979, sought damages tion filed on from Transamerica Insurance Co., Campbell Bruce & Son Construction Inc., others, alleged arising out of a contract for the public housing renovation of Victoria, Texas. The case was submitted jury special to the issues. an- Certain jury, swers do not we discuss opinion, disregarded by in this were immaterial, being trial court as but based jury’s remaining on the answers to the issues, judgment rendered that jointly recover and sev- erally from Bruce & Son Con- Co., (the Inc. contractor for the construction), allegedly defective hereafter “Campbell,” and Insurance Transamerica (the Company surety on the given by Campbell), hereafter “Trans- america,” damages actual in the amount of $384,323.00, $66,000.00 attorney’s fees $20,- case, through trial of the attorney’s further fees” after 000.00 “for attorney’s the trial. The additional fees remittitur, total, subject part were appeals depending on whether there were appellate from the to the courts. addition, judgment In was rendered that Campbell the Transamerica recover from Dayton Wiley, Walker, G. Cornel W. Wi- $384,323.00, damages, sum of “for actual Garwood, ley, Simmons, Stolhandske & San $39,000.00 and the further sum of for attor- Antonio, for Transamerica Insurance Co. through ney’s fees for services rendered Sharber, Law Kenneth Office of Windle sum the trial of this and the further P.C., Dallas, Turley, for Victoria attorneys’ fees for further Authority. cause,” incurred after trial of this re-nail, Campbell agreed necessary,
provisions for remittitur staples in the construction of the appeal Campbell has used judgment. re-nailing, per- that needed and authorized appealed. Only roofs Transamerica Housing Authority to retain an addi- appeal judg- fected an from the trial court’s staples however, tional until the were Campbell, has filed a brief ment. nailed, pos- upon conditioned the latter’s imme- in this Court wherein it assumes *3 payment previ- of the Trans- diate to the former appellee response to ture of an $44,574.00, ously agreed upon sum of less twenty-seventh and twenty-sixth, america’s $1,000.00 After the additional retention. twenty-eighth points of error. We do not re-nailed, staples Housing the appeal. the had been points of error in this reach those Authority paid agreed upon the sum of 1, 1974, Authority, Housing the On $44,574.00 Thereafter, Campbell. owner, general Campbell, and as the as the Housing Authority paid an additional contractor, con- entered into a construction $5,200.00 the sum Campbell but retained repair for the and modernization tract $5,000.00. payment The final under the Hous- housing projects by owned three $5,000.00 in the amount of was contract for the construction of a ing and Campbell of its made to because never building, was also a community new which de- remedy certain construction failure to price building. original The contract public provisions in in accordance with the fects $871,300.00. Transamerica issued was required it contract which Housing in favor of the performance bond occurring one after the within as “LHA” Authority, sometime referred to occupancy Housing Authority’s documents, in amount of the contract project. original price. contract third, fourth, Transamerica, second, in its Housing Authori- August On error, sixth, eighth points of and seventh projects, and a “Certificate ty occupied the failing the trial court erred contends that Campbell by executed and Release” was failing verdict and grant it a directed Also, the same Housing Authority. jury the case from to withdraw Completion” was day, a “Certificate of favor, in its because render Authority’s archi- signed by Housing by it brought against Buck, Housing Au- tect, by the Robert V. one-year stat- by the Authority was barred by Campbell, which stated thority and provided by TEX. as ute of August completed as of the work art. 5160 G REV.CIV.STAT.ANN. “punch exception of certain 1971). $10,200.00. in the amount of list” items brief, subsequently paid all sums Authority, in its ar- except owing the contract gues:
$5,000.00.
“1)
executed
performance
(Transamerica)
provided
Appellant
dirt
consisted of
punch
list items
expira-
instituted before
must be
$1,000.00,
paving work
work of
(2)
date on
years from the
tion
$4,400.00,
$4,600.00,
paneling of
exterior
This limi-
fell due.
payment
final
At the time
shelving of
$200.00.
(2)
contained
period of two
tation
executed, the
Completionwas
Certificate of
over
controls
performance bond
withheld, as retain-
Authority had
period provid-
(1) year limitation
one
$54,774.00
for in
as called
age, the sum
ed in Article
Housing Au-
documents.
the contract
(Transamerica) failed
2) Appellant
agreed
thority, the architect
seeking a fact
jury
issue to the
an
submit
should be
sum of
that the
comple-
‘final
to when
com-
determination
Housing Authority until
by the
tained
occurred. Under
contract
items,
tion’ of the
and that
punch list
pletion of such
(1)
limitation
one
should
remaining
amount
comple-
upon ‘final
begins
run
period
August
Campbell. On
paid to
tion of the contract.
any
Even
the limita- We have
found
case which dealt
period provided
in Article 5160
where,
is with the situation
in a
con-
held to control over the terms of the
project,
there was a conflict be-
bond,
absent
fact determination
period
tween the limitation
under Article
jury as to
‘final completion’
when
of the
peri-
5160 G and the contractual limitation
occurred,
contract
it
impossible
to now
od set
forth in
bond. How-
(1)
determine if the
year statutory
ever,
Supreme
Court of Texas ad-
expired
had
before suit was filed.
problem
dressed a somewhat similar
3)
Company
Sherwin-Williams
v. American
The issuance
the architect of the
Indemnity Company,
Care
not to
of the contract’ is now the deter-
must be taken
confuse
applicable
pri
mining
the statute
factor.”
construction
statute
vate
contracts
surety
It is well settled that a
on
applicable
public
of limitations
construc
performance
rely
is
bond
entitled to
on
is
tion contracts. A contractor
re
Completion
Certificate
as
architect’s
performance
for
quired to furnish a
discharge
duty
of its
the bond
final
is, however,
private
He
re
construction.
agent
repre
because the architect
performance
to furnish
bond for a
quired
owner,
representa
sentative of the
and his
where,
project,
representation
tion is
of the owner.
exceeded
the construction costs
Waller,
430
473
Midland v.
S.W.2d
(now $25,000.00).
Tendick,
(Tex.1968);
Tex.
Boettler v.
73
We hold that the instant ease falls within
(1889).
equally
497
well
S.W.
It is
purview of Article
which re-
settled
if the owner
the construc
quired that a
bond be fur-
(or
per
an
other
designates
architect
nished
connection with the construction
son)
supervise
approve
the work
public improvements
the Hous-
here,
performed,
is the case
his decision
as
Authority. Consequently
one-year
ing
owner,
fraud or
binding upon
absent
provided Article
period of
Library
Carnegie
bad
Ass’n
faith.
Public
controls,
two-year
than the
rather
(Tex.
Harris,
97 S.W.
Brownwood
provided
for in the bond.
ref’d);
Civ.App.1906, writ
First-
See also
Wood, 632
Bank v.
Wichita National
Having
determined
*5
1982,
(Tex.App.
S.W.2d 210
Worth
provided by
of
year statute
—Port
writ);
Cook,
592
no
Hooks v.
345 S.W.2d
is
in this
we
applicable
Article 5160
1961,
ref’d
(Tex.Civ.App.
writ
that
limita
must now determine when
time
—Houston
n.r.e.);
Bank
Tensha v. Col
First State
year
expired. Under the
one
of
linsworth,
(Tex.Civ.App.—
er
823
substantially
sions of the contract
have
should
been rendered. Transameri-
complete
third,
on August
second,
fourth, sixth,
It has
ca’s
seventh
uniformly held
comple
eighth
that “substantial
points of
are
and
error
sustained.
regard
tion” of
is
case, it
In view of our decision in this
is
ed,
legal parlance,
in
perform
as “full
dispose
necessary
not
that we
of Trans-
Martin,
Corporation
ance.” Del Monte
v.
remaining points of
america’s
error.
(Tex.Civ.App.
S.W.2d 597
Antonio
—San
judgment of
the trial court insofar
n.r.e.);
v.
Telles Vasconce
writ ref’d
recovery
damages
as it awarded
and
los,
(Tex.Civ.App.
cause of action asserted Transamerica accrued more than the contract was completed and the occu- pied premises. The barred one-year statute of limitations under G. Transamerica’s motion for grant- verdict directed should have
ed, that the Author- ity nothing Transamerica take