concurring.
I concur in the result. As pointed out by the majority, Ms. Bader alleged that the law firm operated as a partnership but did not present summary judgment proof of the terms of any partnership agreement. Consequently, the Texas Uniform Partnership Act, TEX.REV.CIV.STAT.ANN. art. 6132b (Vernon 1970 & Vernon Supp.1985), governs the rights and duties of the partners. Park Cities Corp. v. Byrd, 534 S.W.2d 668, 672 (Tex.1976); Dobson v. Dobson, 594 S.W.2d 177, 180 (Tex.Civ.App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.). Therefore, we must apply the act to the state of the summary judgment proof in the record.
Ms. Bader, as a partner’s spouse, had no community property right in the contingent fee contract employment cases or files of Bader and Cox, a partnership. A partner’s rights in specific partnership property are not community property. Article 6132b, section 28-A(l). Ms. Bader, however, as a partner’s spouse, had a community property interest in her husband’s interest in the partnership. A partner’s interest in the partnership may be community property. Article 6132b, section 28-A(2). Moreover, upon the death of her husband, Ms. Bader became the assignee or purchaser of her husband’s interest in the partnership. On the death of a partner, such partner’s surviving spouse shall to the extent of her interest in the partnership be regarded as assignee and purchaser of such interest from the deceased partner. Article 6132b, section 28-B(l)(B).
Dissolution of the partnership occurred under the facts of the present case upon the death of Bertrán T. Bader. The dissolution of a partnership is the change in the relationship of the partners caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business. Article 6132b, section 29. When any partner dies and the business is continued under circumstances here applicable the legal representative, as against the partnership, may have the value of the decedent’s interest in the partnership at the date of dissolution ascertained and shall receive as an ordinary creditor an amount equal to the value of dedecent’s interest in the dissolved partnership with interest. Article 6132b, section 42. The legal representative, however, in lieu of interest on decedent’s interest in the partnership from the date of dissolution, may, at his option, have the profits attributable to the use of his right in the property of the dissolved partnership from that date. Article 6132b, section 42. Consequently, upon Bertrán T. Bader’s death, Ms. Bader, under the facts of the present case, was entitled to have the value of her husband’s interest in the partnership determined as of the date of his death and to receive that value, plus either interest on that value from that date or the profits attributable to the use of decedent’s interest from that date. Article 6132b, section 42.
Therefore, we must determine Bertrán T. Bader’s interest in the partnership at the date of his death. A partner’s interest in the partnership is his share of the profits and surplus. Article 6132b, section 26. Thus, we must determine Bertrán T. Bad-er’s share of the profits and surplus at the date of his death on April 7, 1982. The act does not define “profits and surplus.” Neither does the act define “profits” or “sur*688plus.” Consequently, we must determine what are “profits and surplus” within the meaning of the act.
The only summary judgment proof directed at our inquiry is the undisputed affidavit of a certified public accountant. The affidavit proved that the partnership’s fiscal year was the calendar year and proved the amount of profits for the period January 1, 1982, through April 7, 1982. Therefore, the amount of profit for the period in question can be ascertained by the undisputed summary judgment proof. “Surplus,” however, presents a summary judgment problem. The word “surplus” is well adjudicated, and means the excess of assets over liabilities. Anderson v. United States, 131 F.Supp. 501, 502 (S.D.Cal.1954) (applying the Uniform Partnership Act adopted in California). With respect to “surplus,” the accountant’s affidavit states:
It is commonly understood in the accounting profession in Texas that the term “surplus” contained in the Texas Uniform Partnership Act is synonymous with the accepted partnership accounting term “capital account balance”. Beginning on January 1, 1982, Bertrán T. Bad-er, Jr.’s capital account balance, including all previous contributions and profits reduced by prior draws, was $409.17. By adding the current period profits (January 1 — April 7) and reducing that sum by the draws distributed to Mr. Bad-er during the period, Bertrán T. Bader, Jr.’s capital account on April 7, 1982 was $4,080.88.
The accountant, however, does not tell us that his concept of the term “capital account balance” means the excess of assets over liabilities on April 7, 1982. To my mind, the accountant’s affidavit does not tell us what we need to know — the amount of money, if any, which equals the excess of assets over liabilities.
Thus, the summary judgment proof fails to establish the amount of surplus. Consequently, a material issue of fact remains as to the amount of the share of Bertrán T. Bader’s interest in the partnership at the date of his death. Therefore, I concur that we must reverse and remand. In light of the limited basis upon which I ground this opinion, I express no opinion on other matters addressed by the majority except as follows.
The controversy in the present case centers on the contingent fee contract employment cases or files of Bader and Cox, a partnership. The majority holds “that pending contingent fee cases are partnership property which may or may not have value, depending upon the evidence.” I agree. To my mind, the contingent fee contract employment cases or files are assets of the partnership. In my view, certain of these assets may have been of no value while others may have been of little value or of great value on April 7, 1982. Thus, the value of each contingent fee case will have to be determined as of April 7, 1982. Therefore, the value of these assets on April 7, 1982, is for the fact finder to determine.