Collier v. Poe

• Decision Date: 20 May 1987
• Docket Number: No. 69739,69739
• Citation: 732 S.W.2d 332
• Parties: Robert Jack COLLIER, Relator, v. Honorable Ted POE, Judge, 228th District Court of Harris County, Respondent.
• Court: Texas Court of Criminal Appeals

Page 332

732 S.W.2d 332

Robert Jack COLLIER, Relator, v. Honorable Ted POE, Judge, 228th District Court of Harris County, Respondent.

No. 69739.

Court of Criminal Appeals of Texas En Banc.

May 20, 1987.

Stanley G. Schneider, Ted Doebbler, Houston, for respondent.

David W. Bires, Debra Danburg, Houston, for relator.

Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

This is an original mandamus action brought by relator Collier seeking the issuance by this Court of a writ of mandamus to compel the respondent to vacate certain orders entered on January 2, 1987, and to grant relator's motions for legislative continuances in Cause Nos. 459,914 and 459,915 in the 228th District Court. The motions for continuance were filed by relator's counsel, David Bires, and co-counsel, the Honorable Debra Danburg, State Representative, under the provisions of V.T.C.A., Civil Practice and Remedies Code, § 30.003 (formerly 2168a, V.A.C.S.).

It appears that relator Collier had been separately indicted on October 10, 1986 in each of said cause numbers for the offenses of attempted murder and aggravated assault. Attorney Bires was the original and still current counsel for the relator Collier. On December 1, 1986, the cases were set for trial on January 5, 1987. On December 23, 1986 motions for legislative continuances were filed by Bires and Danburg. The motions for continuance were supported by affidavits of State Representative Danburg in compliance with said § 30.003. And it appears uncontroverted that Danburg was retained as an attorney for the relator more than ten (10) days in advance of the January 5, 1987 trial settings.

The motions for continuance were not controverted by any written motion or motions of the State setting forth any specific factual allegations, that if true, would demonstrate irreparable harm or that substantial existing rights of the State would be defeated or abridged by any delay in the proceedings caused by the granting of the motions for continuance.

On January 2, 1987, the respondent, Judge Poe, conducted an evidentiary hearing on the motions for continuance. At the conclusion of which the motions were overruled and Judge Poe also entered an order prohibiting Danburg from being an attorney of record in said cause numbers.

After overruling the motions the court stated (1) that legislative continuances, "in this particular case" would violate Article I, § 13, Texas Constitution providing that all courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law, (2) that the statute providing for legislative continuances was a "self serving law passed by the legislators for their own self preservation," and (3) the said motions for continuance interfere "with the orderly administration of justice."

Thereafter relator filed his motion for leave to file his application for writ of mandamus in this Court. We stayed the proceedings in the said trial court numbers and ordered a response from the respondent. Subsequently on January 22, 1987, we granted leave to file and ordered the application for writ of mandamus to be filed and submitted. Texas Rules of Appellate Procedure, Rule 211. Oral arguments were later heard.

Article V, § 5, Texas Constitution, as amended November 4, 1980 (effective Sept. 1, 1981) provided that subject to such regulations as may be prescribed by law the Court of Criminal Appeals shall have the power to issue "in criminal law matters the writs of mandamus...." See State ex rel. Millsap v. Lozano, 692 S.W.2d 470 (Tex.Cr.App.1985). See also Article 4.04, V.A.C.C.P. The instant proceedings involves the trial of criminal cases and the denial of motions for legislative continuances. This Court has jurisdiction of this criminal law matter.

The matter of a mandatory continuance based on the attendance at legislative sessions of an attorney in the case, civil or criminal, has long caused tension between the judicial and legislative branches of state government. The controversy has often swirled "in the press, court and legislative hall," DeVries v. Taylor, 505 S.W.2d 780 (Tex.1973), and the subject matter has frequently become a ballot box issue in legislative races.

It has been said that it is the inherent right of courts to determine the order of trials and to direct the method of their management in the administration of justice. 17 Am.Jur.2d, Continuance, § 2, p. 118. And as a general rule the determination of whether to grant a continuance lies with the sound discretion of the court. Tex.Jur.3d, Vol. 23, Criminal Law, § 2525, pp. 124-125.

At common law attendance upon the sessions of a legislative body was not a cause for continuance which a court was bound to recognize. Johnson v. Theodoron, 324 Ill. 543, 155 N.E. 481, 483 (1927). Thus absence of counsel in attendance in the Legislature is not in the absence of statute, a sufficient cause for continuance. 17 C.J.S., Continuances, § 37, p. 415.

And for this reason, commencing 58 years ago, the Texas Legislature has been enacting statutes pertaining to the granting of legislative continuances by the courts, once discretionary in nature and other times mandatory. The broad public policy behind such legislation in Texas and other states is or should be easily understood. Such legislation usually serves a dual purpose of encouraging good men and women to sacrifice their time in the interest of good government and of protecting a party to a law suit whose attorney may be serving in the Legislature. See Bridges v. State Bd. of Registration for Healing Arts, 419 S.W.2d 278 (Mo.App.1967). One of the best descriptions of the public policy supporting such legislation is found in Bottoms v. Superior Court, 82 Cal.App. 764, 256 P. 422, 424 (1927), which was quoted at length by the Texas Supreme Court in Government Services Ins. Underwriters v Jones, 368 S.W.2d 560, 565 (Tex.1963). It need not be repeated here.

Mandatory legislative continuances are frequently said to deprive the judiciary of its power to control the order of trials and its proper authority to administer justice, to particularly handcuff the trial court in its discretion, and to result in abuses by the lawyer/legislator to whom the right or privilege is granted. It is often charged that legislative continuances are utilized for the purpose of delay only, and that lawyer/legislators are employed for that purpose only.

Others argued that leaving the matter to the discretion of the court to determine whether the legislative continuance should be granted to insure a fair and proper trial results too often in arbitrariness of the court in overruling such a motion without any understanding of the public policy behind such legislation. The claims of "abuses" versus claims of "arbitrary actions" have invoked the constitutional issues of separation of powers doctrine, due process of law, due course of the law of the land, etc.

It is instructive that the history of the current legislative continuance statute (said § 30.003) and its forerunners be briefly examined.

Texas' first attorney/legislator continuance statute was enacted in 1929 (Acts 1929, 41st Leg., p. 17, ch. 7 [S.B. 356] ), ¹ which was codified as Article 2168a, V.A.C.S. The statute was a discretionary one and required continuance for the attorney/legislator when it appeared to the trial court that the presence of the legislator was necessary to a fair and proper trial. Nevertheless a broad public policy was declared. It was recognized that members of the Legislature must give constant and uninterrupted attention to their duties lest that bad legislation be enacted or good laws repealed, etc., and that when legislators are also lawyers they should be relieved by law from having to concern themselves with matters pertaining to their practice of law independent of their legislative duties. See Tex.Jur.3d, Vol. 23, Crim. Law, § 2525, p. 124.

While the 1929 statute was in effect the Court of Criminal Appeals decided three cases thereunder. They all involved direct appeals from criminal convictions where the legislative continuance motions had been overruled by the trial court in its discretion. In Davis v. State, 120 Tex.Cr.R. 330, 49 S.W.2d 805 (1932), the defendant had been represented by an able firm of attorneys at other trials of the case when the Legislature was not in session. The lawyer/legislator involved was not then of counsel. The legislative continuance motion was presented while the original lawyers still represented Davis and was denied. On appeal this Court held that the granting of the continuance motion in absence of the new attorney was addressed to the sound discretion of the trial court and would not be reviewed in absence of a showing of probable injury to the defendant. The Court stated:

"Discretion in regard to such a ruling on the part of the trial court is believed to be an attribute inherent in the courts, and attempt to take it away by legislative enactment would seem a transgression by one department of our government upon the proper functions of a different and co-ordinate department thereof."

In Burton v. State, 129 Tex.Cr.R. 234, 86 S.W.2d 768 (1935), the motion was based on the fact that one of Burton's attorneys was a legislator, and a Called Session had adjourned less than 10 days prior to the time the case was called for trial. This Court on appeal held that the motion for legislative continuance was addressed to the sound discretion of the trial court and no abuse of discretion appeared where the accused had other counsel.

In Burkhart v. State, 114 Tex.Cr.R. 462, 26 S.W.2d 238 (1930), the motion based on one of Burkhart's lawyer's attendance upon a legislative session was held properly overruled by the trial judge because the affidavit in support of the motion did not aver that the lawyer/legislator's presence at the trial was ...