Petition for Writ of Certiorari — Flores v. Southern Pacific Transportation Co.

Office -Supieme Court, US.

FitED

JUN 6 1985

—— = ALEX STEVAS,

CLERK

NO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

JAVIER FLORES,

Petitioner,

V.

SOUTHERN PACIFIC TRANSPORTATION CO., Et Al,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF TEXAS

J. L. HINOJOSA

BROWN & HADEN

Two Houston Center, Suite 1450

909 Fannin Street

Houston, Texas 77010-1006

(713) 227-3111

Counsel of Record

Attorneys for Petitioner

Of Counsel:

CHARLES M. HADEN

A EO ENE AIRE MOTTE BE SER IS 2 NR aR ee

Alpha Law Brief Co., Inc.—5606 Parkersburg---Houston, Texas 77036—223-3003

I

QUESTION PRESENTED

Whether the Summary Judgment granted by the Trial

Court in favor of Respondent, Estate of H. H. Coffield,

Deceased, and Estate of Charles H. Coffield, Deceased,

doing business as Coffield Warehouse Company, is correct

in holding as a matter of law that Respondent is not a

“common carrier by rail” for purposes of establishing

liability of the Respondent under 45 U.S.C. § 51-60, the

Federal Employers Liability Act, for personal injuries

sustained by Javier Flores, deceased, while in the course

and scope of his employment.

Il

LIST OF PARTIES

Petitioner, Maria © -rra Flores, as personal representa-

tive of the estate of Javier Flores, deceased.

Estate of H. H. Coffield, Deceased, and Estate of

Charles H. Coffield, Deceased, doing business as Coffield

Warehouse Company, hereinafter referred to as Coffield,

is the only Respondent in this case. Southern Pacific

Transportation Co. was a defendant in the court below,

but is not a Respondent in this case.

Ill

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .............

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STATUTORY PROVISION INVOLVED ...............

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REASONS FOR GRANTING THE WRIT .............

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TABLE OF AUTHORITIES

CASES

Chesapeake & Ohio Railroad Co. v. Kuhn, 284 US. 44

SS I SE

Edwards v. Pacific Fruit Express Co., 390 U.S. 538 (1968)

Kelly v. General Electric Co., 110 F. Supp. 4 (E.D. Pa.

1953), aff'd per curiam, 204 F.2d 692 ...............

Lone Star Steel_Co. v. McGee, 380 F.2d 640 (Sth Cir.

weenes Gere, meee SOP US. O77 ...........0.02000.

McCrea v. Harris County Ship Channel Navigation District,

423 F.2d 605 (Sth Cir. 1970), cert. denied 400 U.S. 927

Thurmond v. Armco Steel Corp., Civil Action No. H-79-

EE re

Wells Fargo & Co. v. Taylor, 254 U.S. 175 (1920) .....

STATUTES

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Page

2,4

NO.

IN THE

Supreme Court of the Mnited States

OCTOBER TERM, 1984

JAVIER FLORES,

Petitioner,

V.

SOUTHERN PACIFIC TRANSPORTATION CO., Et Al,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF TEXAS

Petitioner, Maria Sierra Flores, as personal representa-

tive of the estate of Javier Flores, deceased, petitions for

a writ of certiorari to review the judgment of the Supreme

Court of the State of Texas in this case.

OPINIONS BELOW

No opinion was issued by the Supreme Court of the

State of Texas. Petitioner’s Application for Writ of Error

was refused with the notation, No Reversible Error.

The opinion of the Court of Appeals for the Sixth

Supreme Judicial District of Texas (Appendix B, infra,

pp. 3a-9a) is reported at 683 S.W.2d 31. -

2

JURISDICTION

The judgment of the Court of Appeals (Appendix C,

infra, pp. 10a-12a) was entered on October 23, 1984.

A Motion for Rehearing was overruled on November 20,

1984. An Application for Writ of Error to the Supreme

Court of the State of Texas was refused on February 6,

1985 with the notation “No Reversible Error.” (Appendix

A, infra, p. 1a) A Motion for Rehearing of the Applica-

tion for Writ of Error was overruled on March 13, 1985.

(Appendix A, infra, p. 2a) The jurisdiction of this Court

is invoked under 28 U.S.C. § 1257(3).

STATUTORY PROVISION INVOLVED

The Federal Employer’s Liability Act, 45 U.S.C. § 51,

provides in relevant part:

Every common carrier by railroad while engaging

in commerce between any of the several States or

Territories . . . shall be liable in damages to any

person suffering injury while he is employed by such

carrier in such commerce, or, in case of the death

of such employee, to his or her personal representa-

tive, for the benefit of the surviving widow . . . and

children of such employee . . . for such injury...

resulting in whole or in part from the negligence

of any of the officers, agents or employees of such

carrier. . . .

Any employee of a carrier, any part of whose duties

as such employee shall be the furtherance of inter-

state or foreign commerce; or shall, in any way

directly or closely and substantially, affect such com-

merce as above set forth shall, for the purposes of

this chapter, be considered as being employed by

such carrier in such commerce and shall be con-

sidered as entitled to the benefits of this chapter.

3

STATEMENT

This is a personal injury suit involving application

of the Federal Employers’ Liability Act, 45 U.S.C. § 51.

Petitioner, Maria Sierra Flores, is the widow of Javier

Flores. Maria Sierra Flores is the Petitioner in this case

due to the untimely death of Javier Flores, which death

is unrelated to this cause. Mr. Flores, who was Plaintiff

in the trial court, suffered the traumatic amputation of

both legs at or below the knee on or about February 17,

1981, while in the course and scope of his employment

with Respondent, Coffield Warehouse Company. He was

run over by a cut of railroad cars. The railroad track

which is located entirely within the company premises of

Coffield and the locomotive switch engine that was backed

into the cut of railroad cars were both owned, operated

and maintained by Respondent, Coffield Warehouse Com-

nany.

Mr. Flores, filed a lawsuit against Respondent, Coffield,

and the Southern Pacific Transportation Company, for

injuries under the Federal Employers’ Liability Act. Both

Coffield and Southern Pacific filed motions for summary

judgments in the trial court. Southern Pacific is no longer

an interested party in this proceeding.

Respondent, Coffield’s Motion for Summary Judgment

alleged it was not a “common carrier by railroad” and

therefore not liable to the Petitioner under the FELA.

Javier Flores filed his own Motion for Summary Judgment

alleging that Coffield was a common carrier by railroad.

The trial court granted Respondent’s Motion for Sum-

mary Judgment and held that Respondent was not a

common carrier by rail.

4

As can be seen, the federal question sought to be re-

viewed in this court was first raised at the trial court level.

Petitioner, Flores, appealed the summary judgment to the

Court of Appeals for the Sixth Supreme Judicial District

of Texas. That opinion affirmed the trial court’s action

and found that Coffield was nc. a common carrier by

railroad. (Appendix B,. infra, pp. 3a-9a). The Supreme

Court of the State of Texas thereafter refused Plaintiff's

timely Application for Writ of Error with the notation,

No Reversible Error, and subsequently overruled Peti-

tioner’s Motion for Rehearing. The federal question con-

cerning Respondent’s status as a common carrier under

the FELA was therefore, raised and passed upon initially

at the trial court and thereafter at each subsequent pro-

ceeding through the appellate courts.

REASONS FOR GRANTING THE WRIT

The decisions below encroach upon the rights of em-

ployees under the Federal Employers’ Liability Act, 45

U.S.C. § 51. They are in conflict with applicable decisions

of this Court and decisions of the United States Court

of Appeals for the Fifth Circuit construing that statute.

The trial court, in granting Respondent’s Motion for

Summary Judgment on the issue of application of the

Federal Employers’ Liability Act, concluded that Re-

spondent, Coffield, a warehousing and grain storage

facility, which loads and unloads railroad cars and owns

its own railroad tracks and locomotive engines and em-

ploys its own crew to operate them, can defeat Peti-

tioner’s just claim for recompense for injuries suffered

as a result of Coffield’s negligence by asserting the lack

of common carrier by railroad status required under the

Federal Employers’ Liability Act.

5

The FELA was established to provide railroad em-

ployees with adequate protection under the federal law

for personal injuries and/or death resulting from the

negligence of railroads. In 1920, this Court set out to

define the words “common carrier by railroad” in Wells

Fargo & Co. v. Taylor, 254 U.S. 175 (1920). The United

States Court of Appeals for the Fifth Circuit thereafter

set out four considerations of prime importance to be

used in determining whether an entity is a common carrier

by railroad. Lone Star Steel Co. v. McGee, 380 F.2d 640

(Sth Cir.), cert. denied, 389 U.S. 977 (1967).

Since then, numerous decisions from this Court. the

Circuit Courts and other courts have been handed down

regarding common carrier status of different types of

commercial entities with each one turning on each in-

dividual fact situation. See e.g., Edwards v. Pacific Fruit

Express Co., 390 U.S. 538 (1968); Kelly v. General

Electric Co., 110 F. Supp. 4 (E.D. Pa. 1953), aff'd

per curiam, 204 F.2d 692; McCrea vy. Harris County Ship

Channel Navigation District, 423 F.2d 605 (Sth Cir

1970), cert. denied 400 U.S. 927; Thurmond vy. Armco

Steel Corp., Civil Action No. H-79-1840 (S.D. Tex. Oct.

17, 1980). Because of this, a great injustice has been

perpetrated against seriously injured employees of com-

mercial entities like Coffield Warehouse Co. These entities

are, in effect, operating “mini-railroads”, within their own

plant facilities, thus exposing their employees to all! of

the attendant dangers and risks inherent in the railroad

industry as a whole. The employees of these mini-railroads

are deprived of the protection of the FELA simply be-

cause these entities are able to circumvent application

of the law by making sure they do not operate as common

carriers by rail.

6

Petitioner believes the Respondent in this case meets

the four part test of Lone Star Steel v. McGee and there-

fore is a common carrier by railroad which entitles him

to the benefits of the FELA.

Federal rules of law control actions under the Federal

Employers’ Liability Act. Chesapeake & Ohio Railroad

Co. v. Kuhn, 284 U.S. 44, 47 (1931). What constitutes

a common carrier is, therefore, to be determined by look-

ing to the Federal decisions. The state courts must apply

federal rules in their decision-making process and it is

apparent from a reading of the Texas Court of Appeals

Opinion (Appendix B, infra, pp. 3a-9a) that they have

misapplied these Federal rules of law and have reached

an erroneous and unjust decision in this case. The un-

disputed facts in this case clearly show that Coffield is

a common carrier and should be liabl« to Petitioner for

the injuries he suffered. The Supreme Court of the State

of Texas was given the opportunity to review and correct

this decision but felt that the errors committed by the

Court of Appeals did not require reversal. It is apparent

that these state courts have misread and therefore mis-

applied the federal rules governing the issue in question.

This Court should take this opportunity to correct these

errors and to clarify the federal law so that state courts

in the future will not make the same mistakes.

Of far more reaching importance, however, is the fact

that commercial entities like the Respondent in this case

are allowed to hire employees who must work under

extremely dangerous conditions without the protection

afforded by the FELA to railroad employees who do

much the same type of work. Indeed, because of this,

employees of this type are forced to resort to the woefully

inadequate state workers’ compensation law for the com-

7

pensation of their injuries which can be terribly devastat-

ing as in this case where both of the Petitioner’s legs

were traumatically amputated.

The time has come for this Court to decide once and

for all that the application of the FELA should be ex-

tended to these mini-railroads, and to set out guidelines

for the federal and state courts to follow in the deter-

mination of issues such as the one contained herein.

Any commercial entity which chooses to operate an intra-

plant rail facility using its own equipment and its own

employees for such work should be subjected to the

Federal Employers’ Liability Act. The employees of these

entities should have the same protections afforded em-

ployees of railroad companies regardless of the status of

these entities as common carriers. Of equal importance,

however, is the fact that erroneous decisions like the one

made the basis of this writ can and should be p_evented

in the future by definite guidelines enunciated by this

Court for the benefit of the state courts.

CONCLUSION

The Petition for a Writ of Certiorari should be granted.

Respectfully submitted,

J. L. HtnoJosa

BROWN & HADEN

Two Houston Center, Suite 1450

909 Fannin Street

Houston, Texas 77010-1006

(713) 227-3111

Attorneys for Petitioner

Of Counsel:

CHARLES M. HADEN

la

APPENDIX A

Orders of the Supreme Court of the State of Texas

SUPREME COURT OF TEXAS

P. O. Box 12248

Supreme Court Building

Austin, Texas 78711

Mary M. Wakefield, Clerk pro tempore

February 6, 1985

Mr. Charles M. Haden

Brown & Haden

609 Fannin, Suite 200

Houston, TX 77002

Mr. J. L. Hinojosa

Brown & Haden

609 Fannin, Suite 200

Houston, TX 77002

Mr. Arno W. Krebs, Jr.

Fulbright & Jaworski

800 Bank of the Southwest Building

Houston, TX 77002

RE: Case No. C-3783

STYLE: JAVIER FLORES

v. SOUTHERN PACIFIC TRANSPORTATION

COo., ET AL

Dear Counsel:

Today, the Supreme Court of Texas refused the above

referenced application for writ of error with the notation,

No Reversible Error.

Respectfully yours,

Mary M. Wakefield,

Clerk pro tempore

By: /s/ Courtland Crocker

Deputy

2a

SUPREME COURT OF TEXAS

P. O. Box 12248

Supreme Court Building

Austin, Texas 78711

Mary M. Wakefield, Clerk

March 13, 1985

Mr. Charles M. Haden

Brown & Haden

609 Fannin, Suite 200

Houston, TX 77002

Mr. J. L. Hinojosa

Brown & Haden

609 Fannin, Suite 200

Houston, TX 77002

Mr. Arno W. Krebs, Jr.

Fulbright & Jaworski

800 Bank of the Southwest Building

Houston, TX 77002

RE: Case No. C-3783

STYLE: JAVIER FLORES

V. SOUTHERN PACIFIC TRANSPORTATION

CO., ET AL

Dear Counsel:

Today, the Supreme Court of Texas overruled peti-

tioner’s motion for rehearing of the application for writ

of error in the above styled case.

Respectfully yours,

Mar” M. Wakefield,

Clerk

By: /s/ Courtland Crocker

Deputy

3a

APPENDIX B

Opinion of the Court of Appeals of the Sixth

Supreme Judicial District of Texas

Javier FLORES, Appellant,

v.

COFFIELD WAREHOUSE COMPANY, Appellee.

No. 9251

Court of Appeals of Texas,

Texarkana.

Oct. 23, 1984.

Rehearing Denied Nov. 20, 1984

Employee brought action against employer warehouse

company for damages resulting from the amputation of

his legs when a railroad car on the employer’s premises

rolled over them. The 157th District Court, Harris County,

Felix Salazar, Jr., J., entered summary judgment in favor

of employer, and employee appealed. The Court of Ap-

peals, Bleil, J., held that the employer warehouse com-

pany which operated its rail facilities only in connection

with its warehouse storage business, did not transport

goods for public services, did not hold itself out to the

public as performing as a part of an interstate rail trans-

portation and whose remuneration was based upon its

charges to customers for unloading, storage and loading

was not a common carrier by railroad and thus was not

liable to employee under the Federal Employers’ Liability

Act.

Affirmed.

4a

1. Appeal and Error: 863,934 (1)

When Court of Appeals reviews summary judgments

it applies the following rules: the movants must show

that there is no issue of material fact and that they are

entitled to judgment as a matter of law, evidence favorable

to the nonmovant is taken as true, and every reasonable

inference in favor of the nonmovant or the one against

whom summary judgment is granted is indulged.

2. Employers’ Liability: 3

Four factors to determine whether an entity is a com-

mon carrier for purposes of the Federal Employers’ Lia-

bility Act are: the entity actually performs rail service,

it performs a service which is part of the total rail service

contracted for by a member of the public, it performs

as a part of the system of interstate rail transportation

by virtue of common ownership between itself and a

railroad or by a contractual relationship with the railroad

and thus is deemed to be holding itself out to the public

as a railroad, and it receives remuneration for the services

performed in some manner such as a fixed charge from

a railroad or by a percentage of the profits from a rail-

road. Federal Employers’ Liability Act, §§ 1-10, 45

US.C.A. §§ 51-60.

3. Employers’ Liability: 3

Warehouse company which operated its rail facilities

only in connection with its warehouse and storage busi-

ness, did not transport goods for public purposes, did

not hold itself out to the public as performing as a part

of an interstate rail transportation and whose remunera-

tion was based upon its charges to customers for un-

Sa

loading, storage and loading was not a common carrier

by railroad and thus was not liable under the Federal

Employers’ Liability Act to its employee whose legs were

amputated when a railroad car on the company’s prem-

ises rolled over his legs. Federal Employers’ Liability

Act, §§ 1-10, 45 U.S.C.A. §§ 51-60.

4. States: 4.10

Damages for the death or injury of an employee of a

railroad engaged in interstate commerce, allegedly caused

by the negligence of the railroad, are recoverable exclu-

sively from the railroad under the Federal Employers’

Liability Act and not under state law. Federal Employers’

Liability Act, §§ 1-10, 45 U.S.C.A. §§ 51-60.

J. L. Hinojosa, Brown & Haden, Houston, for appellant.

Arno W. Krebs, Jr., Fulbright & Jaworski, W. T.

Womble, John C. Millberg, Crain, Caton, James &

Womble, Houston, for appellee.

6a

BLEIL, Justice.

Javier Flores appeals from a summary judgment granted

in favor of Coffield Warehouse Company. Each side con-

cedes that there is no disputed material fact issue. The

issue before us is whether the facts establish that Coffield

is not a “common carrier by railroad,” as used in the

Federal Employers’ Liability Act, 45 U.S.C.A. §§ 51-60

(1972). We conclude that Coffield was not a common

carrier by railroad and therefore uphold the summary

judgment in favor of Coffield.

While working for Coffield Warehouse Company,

Flores was directed to repair a grain hopper conveyer

belt located on the company’s premises. In order to get

to the conveyer belt, Flores crossed over a set of railroad

tracks in between two stationary railcars parked on the

tracks. He climbed onto and over the coupling between

the cars when a locomotive switch engine was backed

into the railcars. The sudden impact threw Flores down

onto the track and beneath one of the car’s wheels. As

the railcar was pushed along the track the wheels rolled

over Flores amputating his legs. The railroad track and

locomotive switch engine were owned, operated, and

maintained by Coffield.

Flores sued Coffield and Southern Pacific Transporta-

tion Company. Southern Pacific filed a motion for sum-

mary judgment alleging that Flores was not its borrowed

servant and that it in no manner was resposible for the

injuries suffered by Flores; Southern Pacific prevailed on

its motion. Flores did not appeal the summary judgment

granted to Southern Pacific. Coffield also moved for

summary judgment alleging that Flores had waived his

claim for action under common law or any other statute

7a

because he was covered by the Texas Workers’ Compen-

sation Act, Tex. Rev. Civ. Stat. Ann. art. 8306 (Vernon

1967). It claimed that Flores’ recovery was limited to

workers’ compensation benefits. Coffield further alleged

that it was not a common carrier by railroad and there-

fore not liable to Flores under the Federal Employers’

Liability Act or any other act.

[1] Generally when we review summary judgments

we apply the following rules: (1) the movants must

show that there is no issue of material fact and that

they are entitled to judgment as a matter of law; (2)

we take as true all evidence favorable to the nonmovant;

and (3) we indulge every reasonable inference in favor

of the nonmovant or the one against whom summary

judgment is granted. Wilcox v. St. Mary’s Univ. of San

Antonio, 531 S.W.2d 589 (Tex. 1975); Tex. R. Civ. P.

166-A. However, because each side agrees that there is

no issue of material fact we find this appeal can be

resolved by determining a single question of law: whether

the undisputed facts establish that Coffield was not a

common carrier.

[2] A common carrier by railroad under FELA has

been held to mean one who operates a railroad as a means

of carrying for the public. Wells Fargo & Co. v. Taylor,

254 U.S. 175, 41 S.Ct. 93, 65 L.Ed. 205 (1920). In

reviewing the pertinent provisions of the Federal Em-

ployers’ Liability Act, the United States Court of Appeals

for the Fifth Circuit has set forth four significant con-

siderations in determining whether an entity is a common

carrier. These factors are whether the entity: (1) actually

performs rail service; (2) performs a service which is

part of the total rail service contracted for by a member

|

8a

of the public; (3) performs as a part of the system of

interstate rail transportation by virtue of common owner-

ship between itself and a railroad or by a contractual

relationship with a railroad, and hence is deemed to be

holding itself out to the public as a railroad; and (4)

receives remuneration for the services performed in some

manner such as a fixed charge from a railroad or by

percentage of the profits from a railroad. Mahfood v.

Continental Grain Co., 718 F.2d 779 (Sth Cir. 1983):

Lone Star Steel Co. v. McGee, 380 F.2d 640 (5th Cir.

1967). Therefore, the critical issue before us can be

determined by application of these four tests.

Coffield is in the business of grain storage and mer-

chandise warehousing. The Houston warehousing facility

is served by Southern Pacific Transportation Company,

which has a railroad spur track to the facility. One want-

ing to store graim or goods at Coffield makes arrange-

ments with it for storage and separate arrangements with

a transportation company for shipment to the storage

warehouse. Southern Pacific delivers the railcar to a site

within the Coffield premises. Coffield employees are used

only to move the railcars short distances incident to the

unloading and storage process within the boundaries of

Coffield premises. Coffield operates its rail facilities only

in connection with its warehouse and storage business.

It does not transport goods for public purposes. Coffield’s

remuneration is based upon its charges to customers for

unloading, storage and loading. Coffield in no manner

holds itself out to the public as performing as a part of

an interstate rail transportation system. The internal

transportation of goods or grains by Coffield at its facility

is not performed as a part of total rail services.

9a

{3, 4] After consideiing the undisputed facts we con-

clude that Coffield is not a common carrier by railroad.

Damages for the death or injury of an employee of a

railroad engaged in interstate commerce, allegedly caused

by the negligence of the railroad, are recoverable exclu-

sively from the railroad under the FELA and not under

state law. Janelle v. Seaboard Coast Line R.R. Co., 524

F.2d 1259 (Sth Cir. 1975). The FELA in pertinent part

provides that every common carrier by railroad while

engaging in commerce shall be liable in damages to any

person suffering injury while he is employed by that

carrier in commerce. Because Coffield is not a common

carrier by railroad under the FELA it is not answerable

to its employee, Javier Flores, under this Act.

We affirm the trial court’s judgment.

10a

APPENDIX C

Judgment of the Court of Appeals for the Sixth

Supreme Judicial District of Texas

THE STATE OF TEXAS

To the 157th District Court of Harris County—

Greeting:

BEFORE our Court of Appeals, on the 23rd day of

October A.D. 1984, the cause upon appeal to revise or

reverse your judgment between

Javier Flores, Appellant,

No. 9251 vs.

Coffield Warehouse Company, Appellee,

was determined; and therein our said Court of Appeals

made an order in these words:

BE IT REMEMBERED that on Tuesday the 23rd day

of October, A.D. 1984, the Court of Appeals for the

Sixth Supreme Judicial District of Texas met in the City

of Texarkana. Present William J. Cornelius, Chief Justice,

Bun L. Hutchinson, Associate Justice, Charles Bleil, As-

sociate Justice, and Louise Waldrop Lohse, Clerk, when

the following proceedings, among others, were had, to-wit:

lla

No. 9251

Javier Flores, Appellant

v.

Coffield Warehouse Company, Appellee

Appealed from the 157th Judicial District Court of

Harris County, Texas

THIS CAUSE came on to be considered on the tran-

script of the record, the statement of facts, and upon the

briefs and oral argument of the parties; and the Court,

after considering the same, is of the opinion and finds

there was no error in the judgment of the court below.

It is accordingly CONSIDERED, ORDERED AND

ADJUDGED that the judgment of the trial court of

November 28, 1983, be, and hereby is, in all things

AFFIRMED, in conformity with the written opinion of

this Court of even date on file herein; that appellant

Javier Flores, as principal, and General Indemnity In-

surance Company as surety upon appellant’s appeal bond,

shall pay all costs expended in behalf of this appeal,

whether in this Court or in the court below, for which

let execution issue; and that this judgment be certified

to the court below for observance.

a

12a

WHEREFORE, WE COMMAND YOU to observe the

order of our said Court, in this behalf, and in all things

to have it duly recognized, obeyed and executed.

WITNESS, the Hon. WILLIAM J. CORNELIUS,

Chief Justice of our said Court of Appeals, with the seal

thereof annexed, at the City of Texarkana, this the 10th

day of April, A.D., 1985.

LOUISE WALDROP LOHSE,

Clerk

By: /s/ LILLIAN POWELL

Lillian Powell, Deputy

SEAL

9