joined by Justices Brewster and Garwood dissenting, on second motion for rehearing.
The question of practice and procedure before us for decision is of such great importance that I, who am not in accord with the views expressed in the majority opinion on second motion for rehearing, feel impelled to express my views on that question. That opinion is, of course, faithful to the record, but in my view it interprets the rules of practice and procedure too strictly in the light of the record.
In the first place, I question whether the conclusion of law of the trial court should be regarded as a ground of recovery as distinguished from reasons for its conclusion, which need not be attacked by formal points or assignments when the appeal *190attacks the judgment based on undisputed facts. However, if we treat the reasons as a ground of recovery by respondent, it does not follow that the Court of Civil Appeals based its judgment of affirmance on that ground. In our review of this record heretofore it had not occurred to us that the Court of Civil Appeals based its holding on that ground. The opinion of that court did say “Therefore, we overrule both points of error in the original brief of appellants,” but it seems clear to me that that was merely a method for disposing of those points, since they had become immaterial under the holding that Deer Park had never become a city with authority to pass the ordinance. Able counsel who filed the application were obviously of that opinion, and respondent’s able counsel must surely have been of the same opinion, for in their reply to the application for writ of error they regarded the question of the validity of the ordinance as being before us for review, and they directed their first two counterpoints to upholding the conclusion of the trial court. These were followed by statements and arguments in support thereof. Their brief did not question that the grounds upon which the Court of Civil Appeals based its decision were presented to us for review by the application for writ of error. To make certain that we would consider the ground upon which the trial court based its judgment so that, if we disagreed with the grounds upon which the Court of Civil Appeals based its judgment, we might, nevertheless, affirm the case, they presented the ground of the trial court to us and devoted a major part of their briefs thereto. They now claim that the questions which they briefed, and to which counsel devoted much oral argument, were not before us at all. These considerations make the claim of insufficiency of the application, at least, very doubtful, and that doubt should be resolved in favor of petitioner’s right to have its case considered by us.
There is another reason why I am not in accord with the conclusions expressed in the opinion on second motion for rehearing. Promptly after the cause was submitted on oral argument, petitioner filed a brief in this court labeled “Petitioners’ Post-submission Argument.” It is a formal document containing points just as in applications for writs of error. The fourth point in the brief is as follows: “The issue of whether the territory annexed is ‘inhabited’ within the meaning of Article 974 is one of law reviewable by this Court.” Under that point the precise reasoning upon which the trial court’s judgment was based was challenged, with citation of many authorities from this court, with which, it was asserted, that holding is in direct conflict. Under Rule 481, T.R.C.P., an application for writ of *191error may be amended at any time when justice requires, upon such reasonable terms as the court may prescribe. While its “Post-submission Argument” was not labeled an amendment, and the court prescribed no regulations regarding its filing, it, nevertheless, was in effect an amended application and the court considered it and based its opinion on rehearing largely upon authority cited under Point 4. The old practice of requiring assignments of error has been superseded by the more liberal practice of presenting points to the court. Point 4, with the statement and argument thereunder, cured any defect, if defect existed, in the application. It thus appears that the ground of the trial court’s judgment was presented to us for review by both sides in this case, and it seems to me that we should not at this late date go back and decide that the question had never been before us.
There is still another reason why I cannot agree with the conclusions expressed in the opinion on second motion for rehearing. In Ramsey v. Dunlop, 146 Texas 191, 205 S.W. 2d 979, this court had before it the construction of Rule 476, T.R.C.P., which provides “Trials in the Supreme Court shall be only upon the questions of law raised by the assignments of error in the application for writ of error, * * We were called on to determine whether under that rule we could consider questions of fundamental error. After a very careful review of the question we arrived at the conclusion that “an error which directly and adversely affects the interest of the public generally, as that interest is declared in the statutes or Constitution of this State, is a fundamental error.” The question there held to be fundamental error which could be reviewed in the absence of any point in the application was one involving the title to the office of County Commissioner, Precinct No. 4, Loving County. We held the question one of public importance and not one involving merely the rights of private individuals, and upon that basis ruled that it could be reviewed as one of fundamental error. The question of the authority of the City of Deer Park to pass the ordinance under review is certainly one of public interest. In fact, it is a governmental question. The City Council in enacting the ordinance acted directly under authority of Article 974, and the consequences of declaring that ordinance invalid are very much more grave than would have been the consequences of permitting to stand an erroneous decision of the question of who had title to the office of County Commissioner in Loving County. If the ordinance under review is held to be void and the judgment of the trial court becomes res judicata, the results will be serious. The city of Deer Park is now *192a very small city, but we cannot close our eyes to conditions existing in the territory in which it is located. Within a few years its population may well be multiplied several fold and its area expanded to include lands adjacent to that of respondent on all sides, or, at least, the city limits will come within close proximity to its lands. To have an area surrounded by or adjacent to the city without police protection and not subject to taxation by the city is certainly a matter of public concern. While the judgment of the Court of Civil Appeals modified the injunction of the trial court which prohibited any future annexation of the territory in question, its only meaning was that under changed conditions the city could pass a valid ordinance annexing the territory. So long as respondent chooses to have no voters reside on its property the judgment of the trial court will be res judicata, of the right of the city to annex it against respondent’s will. Certainly the Court of Civil Appeals did not hold that the city may now pass a valid ordinance annexing this territory, if no voters reside thereon.
In my view the second motion for rehearing should be overruled and our opinion on the first motion for rehearing, upholding the validity of the ordinance, be not withdrawn.
Associate Justice Walker not sitting.
Opinion delivered January 5, 1955.
Rehearing of opinion on second motion overruled March 2, 1955.