124 F.3d 217
97 CJ C.A.R. 1790
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Thomas W. SPINDLE, Petitioner,v.N/F/N TILLERY, Commandant, Respondent.
No. 97-3062.
United States Court of Appeals, Tenth Circuit.
Sept. 3, 1997.

Before BRORBY, EBEL and KELLY, Circuit Judges.

1
ORDER AND JUDGMENT*

2
WADE BRORBY, United States Circuit Judge.

3
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal.  See Fed.  R.App. P. 34(a);  10th Cir.  R. 34.1.9.  The case is therefore ordered submitted without oral argument.

4
Thomas W. Spindle, a federal inmate and pro se litigant, appeals the district court's denial of his petition for habeas corpus relief.  We exercise jurisdiction pursuant to 28 U.S.C. § 1291 (1994) and affirm.

5
In June 1982, Mr. Spindle was convicted by a general court-martial at Fort Shafter, Hawaii, of felony murder, attempted sodomy, assault with intent to commit sodomy, and indecent acts with a child under sixteen years of age.1  Spindle v. Berrong, 1993 WL 230114, at * 1 (10th Cir.  June 24, 1993) (unpublished disposition), cert. denied, 510 U.S. 1067 (1993).  The convictions arose from the death of a fourteen year-old boy, whose sodomized body was found in an abandoned bomb shelter.  Id The main evidence against Mr. Spindle was the testimony of an eyewitness, Private Joseph Courtney, who was declared unavailable at the time of trial.2  Id.  In addition, testimony was introduced that Mr. Spindle confessed to being present at the scene of the murder.  Id. Mr. Spindle was sentenced, inter alia, to life imprisonment.  Id.

6
Following his convictions, Mr. Spindle appealed to the Army Court of Military Review.  Spindle v. Berrong, 1993 WL 63401, at * 1 (D.Kan. Feb. 4, 1993).  Although the court dismissed his assault conviction, it affirmed his remaining convictions and sentence.  Id. Thereafter, Mr. Spindle filed for review of his convictions in the United States Court of Military Appeals.  Id. The Court of Military Appeals affirmed his convictions and denied Mr. Spindle's request for reconsideration.  Id.

7
On January 26, 1990, Mr. Spindle filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of Kansas.  Id. at * 1-2.   Although Mr. Spindle asserted nine errors, the district court determined he was not entitled to any relief and dismissed his petition.  Id. at * 1-3.   On June 24, 1993, we affirmed the dismissal of Mr. Spindle's petition.  Spindle, 1993 WL 230114 at * 2.

8
On March 16, 1995, Mr. Spindle filed a second petition for habeas corpus relief pursuant to 28 U.S.C. § 2241 with the United States District Court for the District of Kansas.  In his second petition, Mr. Spindle raised the following claims for relief:  (1) the government withheld exculpatory evidence;  (2) he was denied the right to confrontation when the former testimony of Private Courtney was admitted at trial;  (3) military investigators failed to give proper warnings before eliciting inculpatory statements from him;  (4) he received ineffective assistance of counsel;  and (5) he was improperly convicted by a two-thirds vote and the jury was not properly instructed on the vote necessary to impose life imprisonment.  On February 6, 1997, the district court dismissed Mr. Spindle's second petition for habeas corpus relief in a twelve page order.  Mr. Spindle now appeals from the district court's dismissal of his petition.

9
On appeal, Mr. Spindle argues the district court erred in denying relief on each of his five claims.  Before reviewing these claims, we first discuss our limitations on review of military court-martial convictions.  Generally, " 'federal courts will not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted.' "  Khan v. Hart, 943 F.2d 1261, 1263 (10th Cir.1991) (quoting Schlesinger v. Councilman, 420 U.S. 738, 758 (1975)).  Where a prisoner has failed to raise a claim in the military courts, we will not review the claim unless the prisoner establishes cause and prejudice for failing to raise the error.  Lips v. Commandant, United States Disciplinary Barracks, 997 F.2d 808, 812 (10th Cir.1993), cert. denied, 510 U.S. 1091 (1994).  Furthermore, the Tenth Circuit consistently has granted "broad deference" to the military in collateral review of court-martial convictions.  Watson v. McCotter, 782 F.2d 143, 144 (10th Cir.), cert. denied, 476 U.S. 1184 (1986).  Our habeas jurisdiction "does not extend to a reassessment of the facts and issues fully and fairly considered by a military court."  Khan, 943 F.2d at 1262.   In determining the scope of our jurisdiction, we have identified four relevant factors:

10
(1) whether the claimed error is of substantial constitutional dimension, (2) whether a legal issue is involved, rather than a factual issue previously resolved by military courts, (3) whether military considerations may warrant different treatment of constitutional claims such that federal civil court intervention would be inappropriate, and (4) whether the military courts have given adequate consideration to the claimed error and applied proper legal standards.

11
Id.

12
In the present case, Mr. Spindle first argues he is entitled to habeas relief because the government failed to disclose exculpatory fingerprint evidence removed from the victim's body.  Mr. Spindle raised this same claim in his first habeas petition.  See Spindle, 1993 WL 63401 at * 1. However, the district court declined to review the issue because Mr. Spindle did not raise the issue before the military courts.  Id. We affirmed the district court's decision not to review the claim on appeal.  Spindle, 1993 WL 230114 at * 1. In his present petition, Mr. Spindle contends his failure to raise the exculpatory evidence issue in the military courts should be excused because he was provided ineffective assistance of counsel.  Assuming, without deciding, Mr. Spindle can establish cause for failing to raise the issue, we do not believe he can show actual prejudice stemming from the error he asserts.  Mr. Spindle contends the government unlawfully withheld latent fingerprints obtained from the victim's body, thus denying him a "mistake of identity" defense.  However, the evidence before the military courts revealed that as many as four people were involved in the events leading up to the murder.  See Hubbard, 1994 WL 702676 at * 2.  Thus, even if the fingerprints from the victim's body were shown to be the prints of another, this would not establish a probability that Mr. Spindle would have been acquitted.  Consequently, we conclude Mr. Spindle cannot establish he was prejudiced by the government's alleged failure to provide him with the latent fingerprints.3  We therefore affirm the district court's refusal to grant Mr. Spindle relief based on the government's alleged failure to provide him with exculpatory evidence.

13
Second, Mr. Spindle contends he is entitled to habeas relief because the military court erroneously allowed the testimony of Private Courtney to be admitted against him, even though Private Courtney was not present at Mr. Spindle's court-martial.  According to Mr. Spindle, he was denied the opportunity to effectively cross-examine Private Courtney.  As noted by the district court, however, Mr. Spindle raised a nearly identical claim in his first petition for a writ of habeas corpus.  The district court in the first habeas proceeding considered this claim on the merits and determined that Mr. Courtney's testimony was properly admitted under "a firmly rooted hearsay exception."  Spindle, 1993 WL 63401 at * 3. Furthermore, the court determined Mr. Courtney was subjected to cross examination at the Article 32 hearing, and this cross-examination was read to the jury at trial.  Id. On appeal, we concluded the admission of Private Courtney's testimony did not infringe Mr. Spindle's constitutional rights.  Spindle, 1993 WL 230114 at * 2.

14
Because Mr. Spindle's objections to Private Courtney's testimony have been previously considered and rejected by a federal court, we are only required to reconsider such objections if Mr. Spindle has "supplement[ed] his constitutional claim with a colorable showing of factual innocence."  Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986).  To satisfy this standard, Mr. Spindle must show "sufficient claims and facts that--had the jury considered them--probably would have convinced the jury that the defendant was factually innocent."  Parks v. Reynolds, 958 F.2d 989, 995 (10th Cir.), cert. denied, 503 U.S. 928 (1992) (emphasis in original).  After thoroughly reviewing Mr. Spindle's appellate brief and all relevant portions of the record, we conclude Mr. Spindle has failed to make such a showing.  Consequently, we conclude the district court did not err in failing to review Mr. Spindle's claim concerning the testimony of Private Courtney.

15
Third, Mr. Spindle argues he is entitled to habeas relief because he received ineffective assistance of counsel.  To prevail on his ineffective assistance of counsel claim, Mr. Spindle must show his counsels' representation "fell below an objective standard of reasonableness," and the deficient performance prejudiced Mr. Spindle.  Strickland v. Washington, 466 U.S. 668, 687-88 (1984).  To establish prejudice, Mr. Spindle "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."  Id. at 694.

16
In the present case, Mr. Spindle claims his representation was deficient in several regards.  First, he argues his counsel did not effectively cross-examine Private Courtney because he lacked "sufficient data, lab results or documentation" and because Private Courtney went AWOL before the court-martial.  After reviewing defense counsel's cross-examination of Private Courtney at the Article 32 hearing, we agree with the district court that the cross-examination was adequate.  Although counsel may have lacked data or lab reports, there is no indication that this was due to the deficiencies of defense counsel.  Nor is there any indication in the record that Private Courtney's absence at trial was due to any actions of defense counsel.  Thus, we conclude Mr. Spindle's counsel's cross-examination of Private Courtney was not deficient.

17
Mr. Spindle also contends his counsel was deficient because he failed to obtain key evidence.  However, Mr. Spindle fails to specify what key evidence counsel failed to uncover.  Consequently, we are unable to ascertain any deficiency from this contention.

18
Next, Mr. Spindle claims his counsel "adopted [the] impossible strategy [of] plac[ing] the petitioner at the scene of the crime on the night the victim was abducted and killed."   At Mr. Spindle's court-martial, an officer investigating the murder of the young boy testified that Mr. Spindle acknowledged that he was with the boy on the night he was killed.  Private Courtney's testimony, which was read at the court-martial, also placed Mr. Spindle at the scene of the crime on the night of the murder.  In light of this testimony, we do not believe counsel for Mr. Spindle was ineffective in adopting a strategy that placed Mr. Spindle at the scene of the crime.

19
Finally, Mr. Spindle contends his counsel was ineffective because he failed to object to testimony concerning threats Mr. Spindle allegedly made to his ex-wife and another soldier.  Assuming without deciding that defense counsel was deficient in failing to object to this testimony, we do not believe Mr. Spindle can establish he was prejudiced by this testimony.  In light of the entire testimony at the court-martial, we conclude it is very unlikely Mr. Spindle would have been acquitted in the absence of the testimony concerning the alleged threats.  We therefore find Mr. Spindle is not entitled to habeas relief for his ineffective assistance of counsel claim.

20
Fourth, Mr. Spindle contends he should receive habeas relief because he was not provided proper warnings, as required by Miranda v. Arizona, 384 U.S. 436 (1966) and Article 31(d) of the Uniform Code of Military Justice, before he made inculpatory statements to the military investigators.  At his court-martial, Mr. Spindle argued his statements to the military investigators were not voluntary, and he moved to suppress these statements.  After hearing evidence and arguments on the motion to suppress, the military judge concluded Mr. Spindle's statements were voluntary and made following proper warnings.  Although Mr. Spindle failed to challenge the military judge's ruling on direct appeal, he did argue that his statements were made without receiving proper warnings in his subsequent petition for a military writ of habeas corpus.  However, the military court of criminal appeals denied his petition.

21
As determined by the district court in its order denying Mr. Spindle's habeas petition, we believe the military courts have given full and fair consideration to Mr. Spindle's claim that he did not receive proper warnings before making inculpatory statements.  Because Mr. Spindle has made no showing that the military courts employed improper legal standards or committed errors of constitutional magnitude with respect to this claim, we conclude no further consideration is warranted.

22
Finally, Mr. Spindle contends the district court should have granted him habeas relief because he was improperly convicted by a two-thirds vote and because the military judge failed to properly instruct the jury that a three-fourths vote is required to sentence a defendant to life imprisonment.  The Uniform Code of Military Justice provides, in pertinent part, "[n]o person may be convicted of any [crime for which the death penalty is not mandatory], except ... by the concurrence of two-thirds of the members present at the time the vote is taken."  10 U.S.C. § 852(a)(2) (1994).  We have previously held that this two-thirds voting requirement satisfies the requirements of due process.  Mendrano v. Smith, 797 F.2d 1538, 1544-47 (10th Cir.1986).  In the present case, Mr. Spindle was convicted of crimes for which the death penalty was not mandatory.  Consequently, his conviction on the basis of two-thirds vote was not improper.

23
Once the court members determine a defendant is guilty, the members must deliberate on the sentence.  10 U.S.C. § 852(b)(2) provides "[n]o person may be sentenced to life imprisonment or to confinement for more than ten years, except by the concurrence of three-fourths of the members present at the time the vote is taken."   At Mr. Spindle's court-martial, the court members were instructed that in determining Mr. Spindle's sentence, "[they] will ... vote on secret written ballot on each proposed sentence in its entirety beginning with the least severe until a sentence is adopted by the required concurrence of three-fourths of the members, that is seven--excuse me six of the seven members now present."   Thus, contrary to Mr. Spindle's contentions, it is clear the court properly instructed the court members that a three-fourths vote was required to sentence Mr. Spindle.

24
Based upon the foregoing reasons, we conclude Mr. Spindle is not entitled to habeas corpus relief.  Hence, we AFFIRM the district court's denial and dismissal of Mr. Spindle's petition for a writ of habeas corpus.  However, having recently held that habeas proceedings under 28 U.S.C. § 2241 are not "civil actions" subject to the filing fee provisions of the Prison Litigation Reform Act, 28 U.S.C. § 1915(a)(2) and (b), McIntosh v. United States Parole Comm'n, 115 F.3d 809, 812 (10th Cir.1997), we REMAND to the district court with instructions to vacate its order assessing Mr. Spindle docket fees.

Entered for the Court

*
 This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.  The court generally disfavors the citation of orders and judgments;  nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.  R. 36.3

1
 Clifford B. Hubbard was convicted of the same crimes in the same courtmartial.  See Hubbard v. Lowe, 1994 WL 702676, at * 1 (10th Cir.  Dec. 15, 1994) (unpublished disposition), cert. denied, 514 U.S. 1100 (1995)

2
 Shortly before trial, Private Courtney went AWOL.  However, Private Courtney had previously testified against Mr. Spindle at an Article 32 hearing, which is the equivalent of a preliminary hearing.  Spindle, 1993 WL 230114 at * 1.  Private Courtney's testimony at the Article 32 hearing was introduced against Mr. Spindle at his court-martial

3
 We also conclude that no fundamental miscarriage of justice will result from our failure to consider this claim.  See Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir.1995) ("habeas corpus petitioner may excuse a procedural default by demonstrating either 'cause for the default and actual prejudice as a result of the alleged violation of federal law, or ... that failure to consider the claims will result in a fundamental miscarriage of justice.' ")  (quoting Brecheen v. Reynolds, 41 F.3d 1343, 1353 (10th Cir.1994), cert denied, 515 U.S. 1135 (1995))


297 So.2d 383 (1974)
Webster MITCHELL, Jr., alias
v.
STATE.
5 Div. 198.
Court of Criminal Appeals of Alabama.
April 23, 1974.
Rehearing Denied June 4, 1974.
*384 Richard D. Lane, Auburn, for appellant.
William J. Baxley, Atty. Gen., Montgomery, and Roger M. Monroe, Sp. Asst. Atty. Gen., Birmingham, for the State.
BOWEN W. SIMMONS, Supernumerary Circuit Judge.
Appellant-defendant, an indigent with appointed counsel here and in the nisi prius court, was indicted for second degree murder, convicted therefor, and sentenced by the jury to forty (40) years in the penitentiary. The victim was Jessie Maddox.
It appears from the evidence of the state that the appellant in the late afternoon of Sunday, April 29, 1973, left his home, armed with a kitchen butcher knife, and upon reaching the home of Gloria Petty (both houses being in Opelika, Lee County, Alabama) he encountered Edward Melvin (Tim) Dowdell, who as we read the evidence had been living with appellant's wife, from whom the appellant had been separated for a short period of time. They were not divorced.
Some unpleasant words ensued between them, whereupon Tim (as he was called) ran from the house of Gloria Petty with the appellant close behind and giving chase. Each, during the pursuit, chunked bricks at one another. During the course of the brick chunking, appellant threw the butcher knife at Tim.
During the course of the chase, the two came in bodily contact at which time one James Baker grabbed Tim and undertook to separate the two, while Jessie Maddox, an onlooker, grabbed the appellant. The two combatants, through the efforts of the two peacemakers, Baker and Maddox, were separated and Tim hurriedly left the scene of combat, leaving Maddox and the appellant grappling. Maddox called for his automobile to take the appellant home, but his efforts in this particular were unavailing.
It was during the encounter between the appellant and Maddox that the appellant retrieved his butcher knife from the ground, or at least produced it, and stabbed Maddox twice. One wound was at the base of the neck and the other in the right side of the chest. During the combat, a brother of the appellant, John Albert Mitchell, came up and in his contact with the alleged peace efforts of Maddox got cut in the finger with the knife. One or both of the stab wounds on Maddox caused his death at the scene.
It further appeared that some police officers of Opelika were notified and responded to the call. Appellant got in the police car voluntarily and while in the car was advised that he was under arrest for the murder of Maddox.
He was later given the Miranda warnings (in detail) by a police officer. These warnings the appellant acknowledged in writing. He thereupon gave a signed statement in which he admitted the stabbing and other details of the encounter. This statement was admitted in evidence at the instance of the state.
The evidence was also offered by the state that alcohol was on the breath of the appellant when he was arrested, (soon after the homicide) but he was not drunk or intoxicated. The officers testified that he was sober.
*385 The butcher knife, which had human blood on it, was located by the officers about three feet from the deceased in some weeds near a telephone pole.
There was evidence that Maddox did not have a weapon of any kind, and none was found on him or near the scene except the butcher knife carried and used by the appellant.
The written statement of the appellant introduced and admitted in evidence at the instance of the state comported in many versions with the oral evidence of the appellant adduced after the state rested.
Nowhere in the statement did the appellant state that the deceased was choking him. This claim was made in appellant's oral testimony when he took the stand. He said in the statement that in an effort to prevent Maddox from getting the knife on the ground, he grabbed Maddox and threw him down. He said the next thing he knew Maddox had him by the collar in the front of the shirt; that Maddox called his girlfriend, Eva Nell Edwards, to go and get his car so he could carry appellant home. After begging Maddox to turn him loose which was not done, appellant looked and saw the knife he had carried lying on the ground; that he picked it up and "juged" him twice in the front. Maddox fell down and then appellant walked off and went back toward his brother's house; that he threw the knife in the grass behind a telephone pole. He next saw the police and flagged them down. He then got in the police car.
Appellant testified in court that on April 29, 1973, which was Sunday, he reached his home Sunday evening and got a knife for his own protection and was going to his brother's home and saw Tim Dowdell at the home of Gloria Petty, where he had learned his wife was; that he wanted to talk to her and get back together; that he saw James Baker, to whom he wanted to talk.
Then it was that Tim Dowdell came to the door, and while they were talking about his wife, Tim threatened to cut his neck off and pulled out a little knife and then he backed out the door. Appellant hit the ground on the porch side and Tim ran down the doorstep. The chase began and brick throwing took place. During the chase, Tim picked up a piece of iron and swung it at appellant and thereupon the appellant threw the knife at Tim. During the encounter, the appellant said Maddox had him and was choking him.
According to appellant, he and Maddox, on a previous occasion several weeks before, had argued over a drink and Tim threatened to kill appellant the next time he caught him. Appellant further contended in his testimony that Maddox grabbed him and while holding the appellant by the collar, the appellant saw the knife on the ground and beat Maddox to it. It was then that he "juged" Maddox with the knife to get him loose; that he was scared of Maddox and was not intending to kill him. We omit further details of the homicide and the factual evidence leading up to it. We now address the points of law here presented by appellant's counsel.

I.
Appellant contends that the court erred in refusing to give appellant's requested charge nine reading as follows:
"9. The Court charges the jury that if you find from the evidence in this case that the defendant cut under a bona fide belief that his life was in danger or that he was in danger of great bodily harm and had under all circumstances reasonable cause to beleive (sic) that he was in imminent danger at the moment he cut the deceased, it would be immaterial whether there was such actual danger or not."
While the refused charge embraces a correct statement of law, we think it was substantially and fairly covered by the *386 oral charge wherein the court gave the three elements of self-defense and defined imminent danger as real or apparent. This informed the jury of the character of imminent danger.
The court further charged the jury that in a homicide case the burden rests upon the appellant to offer some evidence tending to show, (1) that he was in actual and imminent danger of death or serious bodily harm, or (2) that he honestly and reasonably believed that he was in such danger by reason of circumstances apparent to him.
The court further instructed the jury in his oral charge; "(1) The appellant must be free from fault in bringing on the difficulty. (2) He must be in imminent danger either real danger or apparent danger, that is, he thinks he is in imminent danger of losing his life or suffering grave and serious bodily harm. (3) He must retreat if there is an avenue of retreat open, unless by retreating he increases or enhances the danger of losing his life."
In view of the court's oral charge, supra, we are unwilling to commit the trial court to reversible error in refusing charge nine. Title 7, Section 273, Recompiled Code 1940. We do not necessarily approve or disapprove everything the court said, supra, as being correct statements of law. Suffice it to say, the refused charge was substantially and fairly covered.

II.
The next complaint is that the trial court erred in sustaining the state's objection to appellant's question to Dorothy Mitchell as to whether she knew the general reputation of deceased in his community or the neighborhood in which he lived for peace and quiet.
There was no evidence adduced nor any offered to make such adduction that deceased was a violent, dangerous, bloodthirsty and turbulent man. This court in Wilson v. State, 31 Ala.App. 21, 11 So.2d 563, cert. den., 243 Ala. 671, 11 So.2d 568, said:
"The rule seems to be that `it is improper to inquire into the general character of the deceased for peace and quiet without coupling such proof with proof of whether or not he was a violent, dangerous, bloodthirsty, turbulent man, even where there was some evidence of self-defense on part of defendant.' Tribble v. State, 145 Ala. 23, Headnote 1, 40 So. 938, 939; King v. State, 17 Ala.App. 381, 85 So. 876; Dyson v. State, 28 Ala.App. 549, 189 So. 784."
Nor was there any evidence of self-defense at this stage of the trial. Farley v. State, 279 Ala. 98, 182 So.2d 364(2).
There was no error in the court's ruling.

III.
Appellant next asserts that the trial court erred in admitting in evidence the confession of the appellant for that, (1) appellant was at the time intoxicated and, (2) it was not shown that the confession was voluntary.
We think this contention also is without merit. Officer Dan Davis testified that the confession was taken about five hours after he saw appellant at the scene; that he was sober, although he still had the "remains of alcoholic beverage about him." Appellant testified that he had not been drinking that Sunday afternoon. The statement was given about ten o'clock that Sunday night.
We do not think the evidence sustained appellant's contention that he was intoxicated at the time he gave the statement. More than ten hours had elapsed since the appellant had taken a drink.
The officer testified that prior to making the statement, no one had offered the appellant any hope of reward or other inducement *387 to get him to make a statement, or made any threats toward him to induce the statement.
The officer testified that he advised the appellant at the scene, when the appellant was in the police car, that he was under arrest for murder.

IV.
The next instance is that the trial court erred in refusing to give appellant's written requested charge two. This is the charge directing the jury to find the appellant not guilty.
We hold that the evidence justified submission of the case to the jury for their determination under the evidence as to the guilt vel non of the appellant. This charge was properly refused.

V.
Appellant next asserts the court's refusal to give his requested charge ten was error. This charge is quite lengthy.
We have examined this written charge and compared it with the court's oral charge relating to self-defense. We conclude that the oral charge substantially and fairly covered this refused charge, which is more explicit than some like phases of the oral charge, but the principles that appear in the oral charge are sufficient. Refusal was not error.
We have read the entire record verbatim. We conclude that the trial was free of prejudicial error. The judgment is due to be and the same is hereby affirmed.
The foregoing opinion was prepared by the Hon. BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under Section 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.
Affirmed.
CATES, P. J., and TYSON, HARRIS and DeCARLO, JJ., concur.

ON REHEARING
BOWEN W. SIMMONS, Supernumerary Circuit Judge.
On reconsideration of refused charge No. 9 in section one of this opinion, we conclude that the charge states a correct principle of law as to the element of self-defense relating to danger, but was properly refused for that it leaves out the question of freedom from fault and retreat. Gipson v. State, 262 Ala. 229, 78 So.2d 293(1); Amerson v. State, 43 Ala.App. 148, 182 So.2d 901, cert. den., 279 Ala. 685, 182 So.2d 906. Moreover, the court's oral charge covered all three elements.
We pretermit considering that part of the oral charge wherein the court charged the jury that the burden was on the defendant to offer evidence relating to certain specified elements of self-defense. There was no exception or objection taken to this placement of "burden." Lester v. State, 270 Ala. 631, 121 So.2d 110; Buckles v. State, 291 Ala. 359, 280 So.2d 823.
The foregoing was prepared by Hon. Bowen W. Simmons, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his decision is hereby adopted as that of the Court.
Opinion extended. Application for rehearing overruled.
All the Judges concur.


                IN THE SUPREME COURT OF TEXAS
                                         ══════════
                                           No. 15-0970
                                         ══════════

REEVES COUNTY APPRAISAL DISTRICT AND LOVING COUNTY APPRAISAL DISTRICT,
                             PETITIONERS

                                                 v.

      VALERUS COMPRESSION SERVICES, A TEXAS LIMITED PARTNERSHIP AND
             VALERUS COMPRESSION SERVICES MANAGEMENT, LLC,
     A TEXAS LIMITED LIABILITY COMPANY, GENERAL PARTNER, RESPONDENTS

            ══════════════════════════════════════════
                         ON PETITION FOR REVIEW FROM THE
                 COURT OF APPEALS FOR THE EIGHTH DISTRICT OF TEXAS
            ══════════════════════════════════════════

                                          PER CURIAM

       Valerus Compression Services owns and leases out compressor stations used to deliver

natural gas into pipelines. Some of these compressors are in use in Reeves and Loving counties.

In response to a 2012 amendment to the Tax Code that included leased heavy equipment in a

statutory formula used to value heavy equipment held by dealers for sale, Valerus began paying

taxes on the compressors located in Reeves and Loving counties to Harris County, where Valerus

contends it maintains its principal place of business. But Reeves and Loving counties continued to

place the compressors on their appraisal rolls at full market value, arguing that their presence

within the counties fixes taxable situs there.

       The respective appraisal-review boards sided with the counties. Valerus sought judicial

review. In the trial court, the counties argued Tax Code sections 23.1241 and 23.1242—the
provisions the legislature amended in 2012—are unconstitutional on their face and as applied

because the statutory formula for valuing leased heavy equipment bears no relationship to any

measure of market value as required by the Texas Constitution. The counties also argued that taxes

on the compressors were due to Reeves and Loving counties, not Harris County. Finally, they

argued the compressors are not “heavy equipment” under Tax Code section 23.1241(a)(6), and

therefore do not fall under the challenged statutory framework. The trial court sided with the

counties on the first two issues but with Valerus on the third.

       Both parties appealed, but the counties dropped their argument that Valerus’s compressors

are not “heavy equipment” under section 23.1241(a)(6). The court of appeals reversed the trial

court’s determination that sections 23.1241 and 23.1242 are unconstitutional but affirmed its

conclusion that the compressors’ taxable situses are Reeves and Loving counties rather than Harris

County. See 478 S.W.3d 20, 27–35 (Tex. App.—El Paso 2015).

       Both parties sought our review and this case was consolidated for briefing with four other

similar cases. On March 2, 2018, we issued an opinion in EXLP Leasing, LLC v. Galveston Central

Appraisal District, 554 S.W.3d 572 (Tex. 2018). That opinion is largely dispositive of the issues

presented in this petition for review.

       In EXLP Leasing, we considered the same constitutional challenges considered by the court

of appeals in this case and held that the Galveston County appraisal district failed to rebut the

presumed constitutionality of Tax Code sections 23.1241 and 23.1242. Specifically, we rejected

the district’s argument that “for constitutional purposes, ‘value’ under article VIII, section 1(b)

means the actual market value a willing buyer would pay a willing seller for the compressors at

issue.” Id. at 576. Instead, we acknowledged that it is the legislature’s province to set valuation for

                                                  2
tax purposes so long as it does not act unreasonably, arbitrarily, or capriciously. Id. at 576–81. We

also rejected the same argument made in this case that sections 23.1241 and 23.1242 violate the

constitution’s equal-and-uniform provision found in article VIII, section 1(a). Id. at 580–81.

       The court of appeals in this case likewise concluded that “the constitution does not

prescribe a particular formula or standard for determining the ‘market value’ of property.” 478

S.W.3d at 28. Noting that the method for valuing leased heavy equipment in sections 23.1241 and

23.1242 is “neither novel nor unique,” the court of appeals considered it “eminently reasonable to

require dealers of inventory held for lease or rent in the ordinary course of business to pay taxes

only on inventory actually leased or rented.” Id. at 29–30. The court of appeals went further than

we did by considering the reasonableness of the underlying statutory framework. Cf. EXLP

Leasing, 554 S.W.3d at 580 (concluding we “need not consider” EXLP’s “vigorous defense of

sections 23.1241 and 23.1242 as an efficient and equitable statutory scheme” because “[t]he county

made its stand on the idea that the constitution compels a market-value approach” and “offers no

other reason why the statute is unconstitutional”). Nonetheless, the court of appeals’ holding that

the appraisal districts failed to establish sections 23.1241 and 23.1242 are unconstitutional on the

basis that property must be taxed in proportion to its market value is consistent with our opinion

in EXLP Leasing. Similarly, its conclusion that the counties failed to establish that those provisions

violate the constitution’s equal-and-uniform provision is consistent with our rejection of that

argument in EXLP Leasing. Id. at 580–81. On these issues, the court of appeals’ judgment is

affirmed.

       On the question of where the compressors at issue are properly taxed, however, the court

of appeals’ conclusion differs from ours in EXLP Leasing. We concluded that “sections 23.1241

                                                  3
and 23.1242, read together, reflect the legislature’s intent to fix the situs of dealer-held heavy

equipment at the location where the dealer maintains its inventory rather than at the various

locations where the equipment might otherwise by physically located.” Id. at 583. Accordingly,

we held that Tax Code section 21.02, which contains default provisions for determining taxable

situs, “does not control the taxable situs of property covered by section 23.1242.” Id. at 585. The

court of appeals, however, concluded that Valerus failed to rebut the presumption that Reeves and

Loving counties are the compressors’ taxable situses under section 21.02. See 478 S.W.3d at 35.

Because we held differently in EXLP Leasing, we reverse the court of appeals’ judgment on the

issue and render judgment that the taxable situses of Valerus’s compressors located in Reeves and

Loving counties are controlled by Tax Code sections 23.1241 and 23.1242.

       Valerus further moved for summary judgment that taxes on the compressors at issue “were

properly declared and paid in Harris County, not in Loving County.” On the record before us,

however, we cannot say that Valerus was entitled to judgment that taxes were properly paid in

Harris County. In EXLP Leasing, we held that “sections 23.1241 and 23.1242, read together,

reflect the legislature’s intent to fix the situs of dealer-held heavy equipment at the location where

the dealer maintains its inventory rather than at the various locations where the equipment might

otherwise by physically located.” 554 S.W.3d at 583. We went on to hold that the compressors at

issue, which were physically located in Galveston County, were properly taxable in Washington

County because they were part of EXLP’s “Gulf Coast Region fleet” and, as such, were “assigned”

to EXLP’s “business location and storage yard in Washington County,” which EXLP used to

“manage the inventory of compressors in the Gulf Coast region.” Id. at 585–86.

                                                  4
       In this case, however, Valerus paid taxes in Harris County, where Valerus says it maintains

its principal place of business. Our holding in EXLP Leasing, however, clarifies that taxable situs

is tethered to “the location where the dealer maintains its inventory.” Id. at 583. See also id. (“The

process for prepayment of taxes indicates legislative intent to fix the tax situs for heavy equipment

at the business location where the dealer maintains its inventory . . . .”). Valerus does not argue

that the compressors at issue in this case are part of an inventory maintained in Harris County,

though that may be so. But if it is, that fact is not established simply because Harris County is

Valerus’s principal place of business.

       For these reasons, and without hearing oral argument, see TEX. R. APP. P. 59.1, we affirm

the court of appeals’ judgment in part and reverse in part, rendering judgment that sections 23.1241

and 23.1242 control the taxable situs of the compressors at issue in this case. However, because

summary judgment could not have been granted on Valerus’s argument that it properly paid taxes

in Harris County, we remand to the trial court for further proceedings on where taxes for the

compressors at issue are due under Tax Code sections 23.1241 and 23.1242.

OPINION DELIVERED: November 16, 2018

                                                  5


492 F.Supp. 1099 (1980)
NEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN, INC. et al., and Patricia Parisi et al., Plaintiffs,
v.
Hugh L. CAREY, Individually and as Governor of the State of New York et al., Defendants.
Nos. 72 Civ. 356, 357.
United States District Court, E. D. New York.
January 2, 1980.
New York Civil Liberties Union, Mental Health Law Project, New York City, for plaintiffs; Christopher A. Hansen, Robert Levy, New York City, of counsel, and Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for plaintiffs; Jonathan D. Siegfried, Helen Hershkoff, New York City, of counsel.
LeBoeuf, Lamb, Leiby & MacRae, New York City, for defendants; Taylor R. Briggs, Richard C. Cole, William B. Griffin, New York City, of counsel, and Robert S. Abrams, Atty. Gen. of the State of New York, New York City, for defendants; Robert S. Hammer, Asst. Atty. Gen., New York City, of counsel.
Jeffrey J. Sherrin, Margaret M. Corcoran, Albany, N. Y., of counsel, for New York State Office of Mental Retardation and Developmental Disabilities.
BARTELS, District Judge:
This is an application by plaintiffs on behalf of themselves and other members of the Willowbrook class[1] for an order implementing *1100 and enforcing the Consent Judgment entered in this action on April 30, 1975. Specifically, they seek an order enjoining defendant New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD") and its officials from terminating funding for the placement of class members in the home of their natural parents. They base their application principally upon specific provisions of the Consent Judgment and at the same time contend that termination of the funding violates the New York State Administrative Procedure Act and the Equal Protection and Due Process Clauses of the United States Constitution.
Defendants oppose the application, asserting that disbursement of the funds in question is unauthorized, illegal, and unnecessary to assure proper implementation of the Consent Judgment. In substance, they argue that funding of natural home placement of Willowbrook class members and mentally retarded residents of New York state generally is a legislative measure which the state legislature has repeatedly rejected.
Upon consideration of the affidavits, depositions, and briefs submitted by the parties, and the testimony of Kathy Schwaninger, Executive Director of the Willowbrook Review Panel, and oral argument heard on December 7, 1979, the Court concludes for the reasons hereinafter set forth that plaintiffs' motion must be granted.

I. BACKGROUND

The facts underlying the principal civil rights action previously brought on behalf of the residents of Willowbrook Developmental Center (now "Staten Island Developmental Center") have been stated in numerous prior decisions of this Court,[2] and they need no repetition here. The major points of contention were settled in 1975 by the Willowbrook Consent Judgment, which has since been modified by order of the Court on March 10, 1977 and September 15, 1978. The essence of the Consent Judgment is its mandate that defendants provide Willowbrook residents with the "least restrictive and most normal living conditions possible . . .," Consent Judgment, § A(1), and to that end, defendants are required to "take all steps necessary to develop and operate a broad range of noninstitutional community facilities and programs to meet the needs of Willowbrook's residents and the class." Id., § V(1). Included in these necessary steps is defendants' responsibility each year to request the New York legislature to "appropriate sufficient additional funds for the development and operation of community facilities and programs to serve the needs of the class . . ." Id., § V(2); see also id., ¶ 3. Within six months after the date of the Judgment, defendants were required to place 200 Willowbrook residents in the community, id., § V(4), toward the Judgment's ultimate goal of deinstitutionalization by reducing the institution's population from approximately 2800 in 1975 to 250 by 1981. Id., § V(1).
In order to implement these provisions, defendants began in 1975 to develop a placement program offering a broad spectrum of services and community settings, ranging from group homes to individual placements within a family home. As the placement process is currently in effect, the crucial determination as to the most appropriate placement, i. e., "the least restrictive and most normal living conditions possible," for each individual class member is made by an Interdisciplinary Treatment Team[3] after *1101 careful evaluation of both the client and his or her program, as prepared by direct care staff personnel. Once a placement recommendation is made, parents of the client affected are consulted, and if they object to the proposal, due process procedures may be invoked.
Pursuant to the community placement mandate of the Consent Judgment, placements of class members in foster homes under the Family Care Program have been made in numerous cases since 1975. Established prior to approval of the Consent Judgment for the benefit of those persons "who do not require inpatient care in an institution but who are unable to function adequately in their own homes or in independent housing accommodations," N.Y. Soc.Serv.L. § 209(3)(c) (McKinney), the Family Care Program provides for income maintenance payments to clients for their "lodging, board and minimal personal attendant services . . ." Id. The purpose of the program is to provide a stable family living arrangement where clients can, through supervision and participation in household activities, enhance developmental abilities and independent living skills. OMRDD Policy Manual § 10. Funding comes from a complex joint federal-state scheme and consists of federal Supplementary Security Income ("SSI") payments and additional state payments established under New York law in order to bring the total payment up to a statutorily determined "standard of monthly need." Id., § 209(2) (McKinney Supp. 1979).[4] In order to qualify under the program, various financial and categorical eligibility requirements must be met,[5] and the foster parents must be certified by OMRDD as "family care providers."[6] Notwithstanding satisfaction *1102 of each of these requirements, no class member can be placed in a foster home without an Interdisciplinary Treatment Team first having determined that such placement is the most appropriate.
Defendants assert that from its inception, the Family Care Program has been directed to placement of retarded persons in foster homes, rather than natural homes, and they rely upon the principle that a parent has legal, and thus financial, responsibility for a natural child until the age of majority. See N.Y.Dom.Rel.L. § 32. On June 28, 1975, however, the State Department of Mental Hygiene issued a departmental Memorandum extending availability of family care benefits to natural parents of retarded adults who have been institutionalized for at least two years in any institution in the state of New York. This interpretation of the applicable regulations was predicated upon the view that upon achieving majority a child is no longer the natural charge of the parents.
In October 1975, defendants determined that in order to meet the placement goals of the Consent Judgment within the required time frame, additional proposals for immediate community placement of Willowbrook residents were necessary. As a result, on December 5, 1975, then-Deputy Commissioner for Mental Retardation Thomas Coughlin issued Mental Retardation Memorandum No. 75-37, which stated, in part, as follows:
In view of the Consent Judgment ordering the Department to reduce the population of Willowbrook Developmental Center from 2,800 residents to 250 by 1982; and because of the benefit to children which would occur from their early reintegration into their own homes, the Division of Mental Retardation will allow the placement of minor children of the Willowbrook class into their own homes under the family care program as an emergency measure. Children placed must be of an age and status that will allow them to be eligible for regular family care payments when they reach the age of 18. All family care regulations will be followed. (Emphasis added.)
Payments to natural parents under this emergency program were to be made in amounts equal to those received by foster parents under the statutory Family Care Program. Although this Memorandum referred specifically to that program, it is apparent that the action taken was based not on the family care statutes but on the Consent Judgment because funding was to be drawn solely from the Willowbrook Developmental Center "other than personal services" budget. Statutory family care funding was unavailable because children placed in their natural homes are deemed to receive the income of their parents and, thus, were generally not income eligible under the statutes. The relevance, therefore, of the statutory Family Care Program was solely as a procedural framework for the emergency program. Of the approximately 500 families eligible to take advantage of this program for natural home placement of children residing at Willowbrook, only 20 expressed an interest in participating.[7]
Due largely to its limited impact, this "emergency measure" continued relatively unnoticed until early 1979. On March 21, however, in Sundheimer v. Kolb, N.Y.L.J. at 1 (Sup.Ct.Bronx Co. March 22, 1979), the New York State Supreme Court found the application of the statutory Family Care Program through the Memoranda cited supra to be "laden with unconstitutional defects."[8] Although the court concluded that *1103 the statutes themselves were properly drafted, it held that the extension of family care benefits by OMRDD to children placed in the natural home only (1) if a member of the Willowbrook class, or (2) if an adult and previously institutionalized for two years, effectively penalized the Sundheimer class  "those parents who chose not to submit their children to the well-documented horrors of [the Willowbrook] institution"  for caring for their children at home and violated their rights under the Equal Protection Clause of the Fourteenth Amendment. Specifically, the court found that the parents and children affected were identical except for the fact that "one group of children and adults has been institutionalized while the other has not," and it stated that "[b]y and large, the plaintiffs and the class which they seek to represent, have been denied unfairly certain benefits and categorized without rational basis to their detriment."
According to former OMRDD Commissioner Coughlin, the Sundheimer decision presented him with a dilemma: either (1) extend family care benefits to all natural parents of retarded children, regardless of whether a member of the Willowbrook class or extent of prior institutionalization, at an estimated cost approximating the total budget of OMRDD,[9] or (2) terminate the funding of all natural home placements. On May 17, 1979, the Commissioner opted for the latter course and issued the following memorandum to all OMRDD associate commissioners:
Effective immediately and without any exceptions, there will be no further admissions to family care in the natural home for both children and adults. Each facility director within your county service group should be called personally by you to be informed of this directive immediately. This is the highest priority and I would like you to call me when you have called each of the facility directors.
The decision evidenced by the above memorandum is the basis for plaintiffs' present application. On September 4, 1979, they moved for a preliminary injunction against defendants' refusal to certify natural parents of Willowbrook class members as Family Care Providers for their own children and defendants' denial of benefits to natural parents under the program. After limited discovery and several hearings before the Court in connection with discovery requests, plaintiffs modified the application to seek an order implementing and *1104 enforcing compliance with the Consent Judgment, abandoning thereby any claim to funding under the statutory family care program.
Thus, it is this modified application that is now before the Court for decision, rather than the motion for a preliminary injunction. Jurisdiction over the subject matter of the controversy exists under ¶ 9 of the Consent Judgment, which provides that the retained jurisdiction of the Court shall include authority to make further orders "as may be necessary or appropriate for the construction of, implementation of, or enforcement of compliance with this judgment or any of the provisions thereof."
It is conceded by all parties that former OMRDD Commissioner Coughlin's characterization of funding for natural home placement of Willowbrook class members as being made "under the family care program" was erroneous and misleading. In an affidavit to the Court dated October 23, 1979, Commissioner Coughlin described the natural home placement program for Willowbrook class members as offering a "subsidy to parents of class members who take their children back home in a program similar to family care." (Emphasis added.) Thus, he at no time understood or intended that such funding for children residing at Willowbrook would come within the ambit of the family care statutes. Indeed, as stated supra, funding came not from state or federal social services coffers but from the Willowbrook Developmental Center budget. Although the certification process and the amounts received by the parents were similar under both programs, the sources of funds and the eligibility requirements were entirely unrelated.
Consequently, the statutory Family Care Program is at best only tangentially relevant to this application as background on the origins of the dispute. Any general claim of entitlement which plaintiffs have previously asserted under the additional state payments program of the N.Y.Soc. Serv.L. must be denied because of their failure to demonstrate either categorical or financial eligibility for the benefits thereunder. Plaintiffs' claims, if upheld, must be predicated upon the Consent Judgment or some constitutional basis.
It is apparently also undisputed that with respect to some class members, the "least restrictive and most normal living conditions possible" have been determined to be their natural home. Kathy Schwaninger, called by the Court as an expert witness, testified that an Interdisciplinary Treatment Team may determine after careful deliberation that placement of a particular client with his or her natural parents will ensure the greatest degree of personal development because the client may respond to the warmth of a natural parent in a way which could not occur in a foster or group home.[10] This testimony was consistent with that of OMRDD Director of Community Placement for the New York City/County Services Group Dorothy Rowe, who confirmed at deposition that as to some clients the natural home had been determined to be the least restrictive environment. She indicated also that denial of funds to natural parents now will in some instances result in class members not being placed in their natural homes, even though one year earlier such a placement would have been made. The issue before the Court, therefore, is not whether natural home placement may be appropriate for a particular client, but whether defendants are required, not by any statute, but by the Consent Judgment, to fund such placement. It is to this issue that we now turn.

*1105 II. CONTENTIONS OF THE PARTIES

In essence, plaintiffs contend that defendants' termination of funding of natural home placements violates two basic provisions of the Consent Judgment: first, the requirement in § A(1) that class members be provided with the "least restrictive and most normal living conditions possible," and second, the mandate in § V(1) that the population of Willowbrook Developmental Center be reduced to 250 or fewer by 1981. As to the first provision, they argue that (i) there are presently class members who have been evaluated as requiring placement in the natural home as the least restrictive environment, (ii) the natural parents of these class members are interested and willing to care for their children at home, (iii) these parents would be able to provide adequate in-home care if they were certified and funded at the rate set under the statutory Family Care Program, and (iv) the existing inappropriate living conditions of these clients threatens them with irreparable harm in the form of developmental regression. As to the second provision, plaintiffs assert defendants are required to move approximately 1600 clients out of Willowbrook in the next eighteen months and that denial to them of natural home placement will hinder and delay attainment of that goal.
In opposition, defendants argue first that New York law does not now, nor has it in the past, authorized cash payments to natural parents, without regard to need, for in-home care of their mentally retarded children. They cite repeated rejections by the New York state legislature of attempts by statute to provide reimbursement for natural home placement as conclusive evidence that such funding by OMRDD is not only unauthorized but illegal under New York law.[11] Moreover, they dispute plaintiffs' contention that the drafters of the Consent Judgment contemplated natural home placements, asserting that the phrase "least restrictive and most normal living conditions possible" applies only to residents living at Willowbrook and that the community placement provisions of § V contain no reference to natural home placement.[12]
Defendants further contend that fundamental changes in OMRDD's placement program since the "emergency measure" was instituted in 1975 have made its continuation unnecessary. Citing creation of Borough Developmental Services Offices ("BDSO") and the New York City/County Services Group designed to support the provision of community services and integrate the retarded into the community, they argue that OMRDD is now able to provide a broad range of residential placements enabling individual clients to progress along a continuum of services to address their developing skills.[13] This expanding capability, *1106 together with the various federal programs under which plaintiffs can receive assistance,[14] have, according to defendants, supplanted the natural home placement program in issue here.
Finally, defendants cite the decision in Sundheimer v. Kolb, supra, as imposing upon them a financial obligation of potentially enormous proportions if this Court were to grant plaintiffs the relief requested. As interpreted by defendants, Sundheimer would require the provision of similar financial assistance to all of the estimated 55,900 retarded persons in New York state who presently live with their natural parents. Because this obligation would total more than $200 million annually, defendants urge that practical and equitable considerations require that plaintiffs' application be denied.[15]

III. DISCUSSION

It is true that natural home placement of Willowbrook class members is not explicitly authorized by the Consent Judgment. Indeed, if strictly construed, the definition of "community placement" set forth in § V(4) of the Judgment, authorizing noninstitutional residential facilities of "fifteen or fewer beds for mildly retarded adults, and ten or fewer beds for all others," would seem to permit placement in relatively large scale residences on an equal basis with smaller residences.
This provision must be considered in the context of the Judgment as a whole, however. United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975); New York State Association for Retarded Children, Inc. v. Carey, 596 F.2d 27, 37 (2d Cir. 1979), cert. denied, 444 U.S. 836, 100 S.Ct. 70, 62 L.Ed.2d 46 (1979).[16] Section A(2) evidences the drafters' general intent that residents progress from dependence and institutionalization to an individualized, independent existence, providing:
[T]he staff shall prepare residents to move from 1) more to less structured living; 2) larger to smaller facilities; 3) larger to smaller living units; 4) group to individual residences; 5) segregated from the community to integrated with the community living and programming; 6) dependent to independent living.
Subsection (6) of § V amplifies this provision and requires that within six months of the date of the Judgment the Willowbrook Review Panel prepare a "detailed and comprehensive plan for the development and operation of additional community placement facilities and programs . . ." Pursuant to this provision, in August 1976 the Review Panel issued a community placement plan, which was accepted by all parties to this action, and Deputy Commissioner Coughlin assumed responsibility for its implementation. As appears throughout *1107 the plan, the importance of the natural home as not only a placement option but a placement goal is repeatedly emphasized:
One of the most basic of all rights is that of children having the right to live with their own families. The importance of living with one's own family is well documented in the literature and protected by statutes and courts throughout the nation.
The protection of this right so well afforded to "normal children" has not been equally applied to the mentally retarded.
* * * * * *
An underlying assumption of the Community Placement Plan is that whenever possible and appropriate the placement site choice is within the natural family. Likewise, when support services are required by mentally retarded persons and/or their families, the intention for the provision of these services is that of maintaining the individual within his or her own natural home.
* * * * * *
The outstanding benefit of the natural home support program, of course, is the potential for it providing the most normalizing environment for children and young adults. With appropriate support, this should allow for maximal growth and independence of mentally retarded clients within the constellation of their own family. (Community Placement Plan, at 109-12.)
[T]here must be a concerted effort by residential systems personnel to prevent removal of a person from his/her natural home. If the person has already left the home, as in the case of the Willowbrook Class, every effort must be made first to attempt to return those people to their homes, providing the necessary support as is needed.
* * * * * *
This then constitutes the goal for the residential service system  to return clients to their natural homes and communities, and to insure movement of mentally retarded citizens to the most normal, least restrictive point on the living continuum. (Id. at 4-5.)[17]
The importance of the Review Panel in the implementation and interpretation of the Consent Judgment has been previously recognized, and its findings and recommendations concerning community placement, issued in the year following adoption of the Consent Judgment, are entitled to great weight in determining the intended scope of the placement program. New York State Association for Retarded Children, Inc. v. Carey, supra.[18]
*1108 The Panel's conception of community placement is supported by other indications as well. Most notably, former Commissioner Coughlin's extension of family care benefits to children residing at Willowbrook for placement with their natural parents reflects an apparent understanding that such placements were not only permitted by the Judgment, but were "necessary" and would "benefit . . . the children . . . [by] early reintegration into their own homes . . ." See supra at 7 and n. 8. Although he viewed state funding of this program as only an "emergency measure," his action suggests that community placement under the Consent Judgment was not interpreted as excluding the natural home. Thus, for the foregoing reasons, the Court must reject defendants' restrictive view of community placement.
Nor does the Court believe that there is any basis to construe the crucial language "least restrictive and most normal living conditions possible," found in § A(1) of the Judgment, as applying solely to residence at Willowbrook. As even defendants have conceded, obtaining such conditions for each class member is obviously the thrust of the Consent Judgment regardless of the setting in which they are provided, and it would be anomalous, indeed, to apply a lesser standard of responsibility with respect to living environment in the community than is applied to the Developmental Center. Again, the community placement plan prepared by the Review Panel is relevant:
The principles upon which this Plan is based are a direct reflection of the Consent Judgment. Implicit in the agreement and explicit in Appendix A of the Consent Judgment is the necessity for developing comprehensive community mental retardation services which will guarantee the fullest protection of constitutional rights and habilitative opportunities for all residents of Willowbrook and the total Class. It is mandated by the Decree that "residents shall be provided with the least restrictive and most normal living conditions possible . . ."
Community Placement Plan, at 2. Defendants' obligation to protect and assist the members of the Willowbrook class does not end when the clients leave the Developmental Center grounds; in fact, section V(13) of the Judgment prohibits the community placement of any resident unless the Director of Willowbrook finds that "such placement will offer the individual better services . . . and a more suitable living environment . . ." Thus, it is incumbent upon defendants to insure that class members are placed "in the least restrictive and most normal living conditions possible."
Although this conclusion is reached strictly as a matter of construction of the language of the Consent Judgment, the recent en banc decision of the Court of Appeals for the Third Circuit in Haldermann, et al. v. Pennhurst State School & Hospital, et al., 612 F.2d 84 (3d Cir. 1979), is instructive. Based upon detailed analysis of the statutory language and legislative history, the court held that the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6001-6081 (1976), provides to mentally retarded persons the right to the least restrictive environment. Id. at 103-108.[19] That this right is not limited solely to the provision of care within the institution is obvious from the language of the court's decision:
For some patients, to be sure, the Act contemplates that institutionalization might be appropriate once adequate habilitation and living conditions are established. The clear preference of the Act, however, is deinstitutionalization, and . . ., we have no doubt about Congressional power to impose the least restrictive alternative requirement upon *1109 the states for patients who do not require institutionalization for adequate habilitation.
Id., at 107.
Defendants rely heavily upon the repeated rejection of natural home placement legislation in the New York state legislature. Although this may be persuasive evidence of that forum's intention not to undercut the legal obligation of natural parents to support their children, see N.Y.Dom. Rel.L. § 32, neither that legislative history nor the language of the existing family care statutes reflect a legislative intent to preclude defendants from entering into an agreement to fund natural home placement of a limited number of specified persons, such as the Willowbrook class members, whose constitutional rights defendants have violated. No explicit statutory or constitutional provision exists rendering such an agreement unlawful or against public policy, and this Court finds no basis to infer that such a prohibition exists. Nor do we believe that the disbursal of funds for natural home placement to a limited number of class members pursuant to the Consent Judgment agreed to by defendants is either unauthorized or illegal. Such a conclusion does not undercut the validity of a parent's general obligation to provide for his or her minor child under § 32 of the N.Y.Dom. Rel.L. because the natural home placement here involved has been funded out of the Willowbrook budget, which is itself the result of a legislative and executive appropriation. This analysis is in accord with ¶ 3 of the Judgment which requires that defendants "take all steps necessary to ensure full and timely financing of this Judgment, including, if necessary, submission of appropriate budget requests to the legislature." Having previously entered into the Consent Judgment, defendants cannot now assert lack of authorization as an excuse for failure to fulfill their obligations thereunder.
The Court cannot accept defendants' contention that under the Sundheimer decision they will be subjected to an immense financial burden if plaintiffs' application here is granted. On the contrary, such a decision by this Court is strictly limited in its effect to the members of the Willowbrook class, and the financial consequences therefrom would be minor in comparison to the calculations submitted by defendants predicated upon statewide liability under the family care statutes. In addition, all previous indications suggest that interest and desire to participate in natural home placement will be minimal, particularly if the option is provided only to clients for whom the natural home has been designated as the least restrictive environment and whose parents have been certified as family care providers. As a matter of principle, however, the financial consequences of natural home placement must be subordinate to the primary objective of providing services to which the Willowbrook class members are entitled. See Welsch v. Likins, 550 F.2d 1122, 1132 (8th Cir. 1977). Only when the financial burden upon the state becomes prohibitive or clearly inequitable should this Court stay its hand.[20]
Because defendants' obligation in this case is derived not from provisions of state or federal law but from the language of the Consent Judgment and extends only to the beneficiaries of that Judgment, this Court believes that the decision in Sundheimer, based as it is upon the family care statutes, is not applicable. In contrast to that case, the present application involves neither interpretation of the family care statutes nor any distinction based upon extent of prior institutionalization. Insofar as the Sundheimer court placed all retarded residents of New York state in the same category as Willowbrook class members, we disagree. Defendants' obligations under the Consent Judgment provide an eminently reasonable *1110 basis upon which to distinguish between class members and those retarded persons outside the Judgment's protection.
We conclude, therefore, and it is hereby ordered that once it is determined in the normal course of the placement process under the Consent Judgment that a Willowbrook class member should be placed in the home of his or her natural parents in order to provide the "least restrictive and most normal living conditions possible," defendants are then enjoined from refusing (1) to certify the natural parents of that class member as family care providers and (2) to provide the funding reasonably necessary to effectuate such placement consistent with the standards applicable to natural and foster home placements previously made by defendants. Because of our interpretation of the Consent Judgment, it is unnecessary for us to reach any of the other issues raised by plaintiffs' application.
So ordered.
NOTES
[1]  This application is made by plaintiffs Lydia Daniels, Juan Gonzalez, Hector Ramos, and Mario Rivera, all members of the Willowbrook class. They are joined here by their parents, Ann Boston Daniels, Ada Gonzalez, Maria Silva, and Anna Maria Scarborough, who want to care for their children at home but are unable to do so for financial reasons.
[2]  Prior reported decisions in this case appear at 357 F.Supp. 752 (E.D.N.Y.1973); 393 F.Supp. 715 (E.D.N.Y.1975); 409 F.Supp. 606 (E.D.N.Y. 1976); 438 F.Supp. 440 (E.D.N.Y.1977); 456 F.Supp. 85 (E.D.N.Y.1978); 466 F.Supp. 479 (E.D.N.Y.1978); 466 F.Supp. 487 (E.D.N.Y.), aff'd, 612 F.2d 644 (2d Cir. 1979); see also 596 F.2d 27 (2d Cir. 1979), cert. denied, 444 U.S. 836, 100 S.Ct. 70, 62 L.Ed.2d 46 (1979).
[3]  Although there is no standard composition of an Interdisciplinary Treatment Team, it consists generally of those persons working with a particular client and may include his or her direct care staff, teacher, therapist, and any other persons whose participation is relevant to identifying the needs of the individual. To this core group may be added such other specialists as are needed in order to accomplish an adequate evaluation and program plan for the client. The process and procedure by which an Interdisciplinary Treatment Team is organized may differ from setting to setting, but its primary goal is to develop a unified and integrated individual evaluation and program and then to implement that program. Periodically, team members must review the adequacy of the client's progress, reevaluate the needs and appropriateness of the program, and modify the objectives and/or program accordingly. See generally the Willowbrook Review Panel's Auditor's Manual, at 1-8.
[4]  Briefly stated, the funds made available to a client under the Family Care Program and eventually paid to the family care provider are composed of two parts. The first is a federal Supplemental Security Income ("SSI") benefit paid by the United States Department of Health, Education and Welfare pursuant to Title XVI of the Federal Social Security Act, 42 U.S.C. §§ 1381 et seq. The second portion is an "additional state payment" made pursuant to N.Y.Soc.Serv.L. § 209 (McKinney), which is intended to bring the SSI payments up to the following "standard of monthly need": $334.46 if the client lives in New York City, and $296.46 if he or she resides outside New York.
[5]  The eligibility requirements for SSI and for additional state payments are substantially similar. The principal categorical requirement is that the recipient be over 65 years of age, blind, or disabled, as specifically defined under both programs. The financial need criterion under each program provides that a recipient not have an income or resources above a certain level, see 42 U.S.C. § 1382 and N.Y.Soc. Serv.L. § 209.2 (McKinney Supp.1979), and the income and resources of a child living with his natural parents are deemed to include the income and resources of the parent. 42 U.S.C. § 1382c(f)(2). In order to be eligible for additional state payments, a client's countable income and resources must be such as would entitle him or her to SSI benefits. N.Y.Soc. Serv.L. § 209.1(a)(iii).
[6]  A family care provider is an adult of either sex, married, single or widowed, who is certified by the State Office of Mental Retardation and Developmental Disabilities ("OMRDD") pursuant to 14 N.Y.C.R.R. 87. The provider generally acts as a surrogate parent or family for the client, receives payment for the provision of food, clothing, and shelter to the client, and assists in skill development in conjunction with the client's development plan.

The certification process under the Family Care Program consists in part of an intensive investigation into the proposed family care provider and family care home. Its elements are set forth in detail in Item 10.3 of the State Department of Mental Hygiene's Policies and Procedures for Family Care, promulgated pursuant to N.Y.Ment.Hyg.L. §§ 31.04 et seq. In addition to health, safety, and programming inspections of the home, the proposed provider must agree, inter alia, to participate with the client's Interdisciplinary Treatment Team, undergo special training, attend case management visits, and provide the client with such special services as special diets, supplemental education, psychological consultations, and integration of daily activities with programming designed by the Interdisciplinary Treatment Team.
[7]  As of the date of this application, the number of natural family placements funded under the program had grown to 83, of which 23 were children from Willowbrook and 50 were adults.
[8]  In connection with the Sundheimer litigation, former OMRDD Commissioner Coughlin submitted an affidavit, dated November 1, 1978, describing the existing application of the Family Care Program to natural parents:

[T]here are two narrow exceptions to the policy against placing a client in Family Care in his/her own home. The first exception is for clients over 21 years of age who have been in residence in a Department of Mental Hygiene facility for two years or more, when the clients Interdisciplinary Team recommends such placement and the home of the client's parents and or relatives meets the standards required for Family Care. Item No. 10.2.2 of Mental Retardation policy chapter on Family Care. These clients are given priority for participation in the Family Care Program because, due to their extended institutionalization, they have more difficulty adjusting to community living, and thus are in special need of the skills which the Family Care Program provides. In this situation, Family Care with the client's parents as providers is the only alternative for releasing the client from the restrictive environment of the Developmental Center to begin the training necessary for the integration back into community life.
The second exception to the policy against placing clients in Family Care in their own homes is for Willowbrook residents under the age of 21. Although the goals of the Family Care Program may not be obtainable in this situation, the need for moving children out of Willowbrook as quickly as possible has made it necessary to place these children in their own parents' home until more suitable living arrangements can be made available.
[9]  At oral argument, defendants estimated that extension of benefits to all natural parents of retarded children would cost between $100 million and $400 million annually. Plaintiffs dispute the accuracy of this prediction, however, in view of the limited number of families which have taken advantage of the program during the period preceding the decision in Sundheimer v. Kolb, N.Y.L.J. at 1 (Sup.Ct. Bronx Co. March 22, 1979) and because of their contention, explained in the testimony of Executive Director of the Willowbrook Review Panel Kathy Schwaninger, that natural home placement is significantly less expensive than maintenance of a client in a state institution. See note 20 and accompanying text infra.
[10]  Kathy Schwaninger cited an example of the benefit which may result from the special relationship between a parent and his or her natural child:

[T]here would also be some very strong positives. A good example that comes to mind . . . parents who have maintained contact with their children over time. They have a very strong emotionally warm, supportive relationship. When they work with their particular child, the child or adult is very responsive and will try to do skills, try to acquire skills.
In contrast, that same individual class member might be totally unresponsive to doing that kind of thing . . . to a stranger, sure, that's a possibility.
Tr., Dec. 7, 1979, at 92.
[11]  According to a letter from defendants' counsel to the Court, several bills were introduced in 1977 and 1978 in the New York state legislature which would have provided reimbursement of expenses to parents for in-home care of their retarded children. None of these bills was reported out of committee. During the 1979 session, Senate bills 586 and 1676, among others, sought to authorize funding in one form or another for natural home placement, but again neither was reported from committee.
[12]  Section V of the Consent Judgment pertains specifically to community placement, which is defined in subsection 4 as:

a non-institutional residence in the community in a hostel, halfway house, group home, foster care home, or similar residential facility of fifteen or fewer beds for mildly retarded adults, and ten or fewer beds for all others, coupled with a program element adequate to meet the resident's individual needs. Subsection 6 gives the Willowbrook Review Panel broad authority, however, to "prepare and recommend for implementation by defendants a detailed and comprehensive plan for the development and operation of additional community facilities and programs to meet the needs of Willowbrook's residents and of the class. Said plan will be referred to hereafter as the `community placement plan.'" For further discussion of this plan, see discussion infra at 1106-1107.
[13]  Defendants state that, although at the time former Commissioner Coughlin instituted the natural home placement program only family care and community residences existed as placement options, OMRDD is now capable of providing a range of residential placements, including "small independent apartment settings, congregate care, small intermediate care facilities for the mentally retarded, and alternative program models, the most significant being the day care program." Defendants' Brief, at 12.
[14]  Defendants challenge plaintiffs' claim of irreparable harm, citing various federal and state funds and services for which they might be eligible without being certified for family care funds. Among the programs are SSI, additional state payments, medical assistance subsidies, and food stamps. In addition, a variety of support services designed to assist clients in the community are available to all class members, regardless of whether they have been placed in the natural home. These include educational and guidance services, vocational rehabilitation programs, homemaker services, respite care, transportation, travel training, day program services, health services, and recreation and sheltered employment programs. These and other services are coordinated by the case managers of the Borough Developmental Services Offices, who are also responsible for working with parents in training them to deal with their developmentally disabled children.
[15]  See note 9 supra.
[16]  Available aids to construction of a consent decree or order were discussed in United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975), where the Court stated:

Since a consent decree or order is to be construed for enforcement purposes basically as a contract, reliance upon certain aids to construction is proper, as with any other contract. Such aids include the circumstances surrounding the formation of the consent order, any technical meaning words used may have had to the parties, and any documents expressly incorporated in the decree.
[17]  With respect to financing the placement of class members in the natural home, the Willowbrook Review Panel in its Community Placement Plan stated:

The actual amount of staff and financial resources directed toward a natural family placement will obviously vary from situation to situation; however, it is anticipated that the average cost of the natural home support program will be on par or below those costs incurred in foster home or group home settings. Additionally, considerable savings in time and effort by Borough Office staff can be anticipated as problems of homefinding, zoning, licensing and strict adherence to code requirements will not exist where natural families provide placement.
The outstanding benefit of the natural home support program, of course, is the potential for it providing the most normalizing environment for children and young adults. With appropriate support, this should allow for maximum growth and independence of mentally retarded clients within the constellation of their own family.
Community Placement Plan, at 112.
[18]  Although stated in the context of review of a formal Willowbrook Review Panel recommendation, the Second Circuit Court of Appeals' description of the Panel's authority in New York State Association for Retarded Children, Inc. v. Carey, 596 F.2d 27, 38 (2d Cir. 1979), is notable here as well:

[W]e treat the organizational structure established under the Consent Judgment  a Review Panel with the power to recommend interpretations of the judgment and methods of implementing it  as analogous to the powers granted, say, to Congress under Section 5 of the Fourteenth Amendment to effectuate the matters of substance and procedure contained in the first four sections of that amendment.
[19]  Among the statutory provisions cited by the court in Haldermann, et al. v. Pennhurst State School & Hospital, et al., 612 F.2d 84 (3d Cir. 1979), was 42 U.S.C. § 6010(2), which provides:

The treatment, services, and habilitation for a person with developmental disabilities should be designed to maximize the developmental potential of the person and should be provided in the setting that is least restrictive to the person's personal liberty.
[20]  Such is not the case here. Ms. Schwaninger estimated the annual cost of institutionalization as approximately $30,000 per person, of group home maintenance as between $9,000 and $12,000 per person, and of natural home placement as approximately $3,600 per person. Tr., Dec. 7, 1979, at 89-90. Counsel for defendants did not question her figures and admitted that "it does cost less . . .," and "no doubt would be cheaper, . . . especially cheaper than the cost of the institution." Id. at 103-04.