Ex parte Dharmagunaratne, s. 2-95-231-C

• Decision Date: 27 June 1997
• Docket Number: Nos. 2-95-231-C,2-95-233-CR,s. 2-95-231-C
• Citation: 950 S.W.2d 140
• Parties: Ex parte Charaka DHARMAGUNARATNE, Appellant. Ex parte Mickey Joel FISHER, Appellant.
• Court: Texas Court of Appeals

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950 S.W.2d 140 Ex parte Charaka DHARMAGUNARATNE, Appellant.
Ex parte Mickey Joel FISHER, Appellant. Nos. 2-95-231-CR, 2-95-233-CR. Court of Appeals of Texas,
Fort Worth. June 27, 1997.
Rehearing Overruled Sept. 4, 1997.

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Thomas E. Myers Rohne, Hoodenpyle, Lobert & Myers, Arlington, Larry M. Moore, Law Office of Larry M. Moore, Fort Worth, for Appellant.

Tim Curry, Criminal District Attorney, Charles M. Mallin, Chief of the Appellate Section, David M. Curl, Assistant Criminal District Attorney, Fort Worth, Texas John B. Holmes, Jr., District Attorney Harris County, William J. Delmore, III, Assistant District Attorney Harris County, Houston, Matthew W. Paul, State Prosecuting Attorney, Austin, for Appellee.

Before the court en banc.

OPINION ON REHEARING

RICHARDS, Justice.

Having considered the issues presented in this appeal en banc after granting the State's motion for rehearing, we withdraw our prior opinion and judgment of June 27, 1996, and substitute this opinion and judgment in its place.

This is an appeal from a pretrial writ of habeas corpus filed in the district court below. In their sole point of error appellants Charaka Dharmagunaratne and Mickey Joel Fisher invite us to declare the so-called "Trial Court C" ¹ of Tarrant County unconstitutional given the manner of its creation and operation and to find that the judicial assignments made to that court are done in violation of statutory authority.

We will affirm the district court's decision denying appellants' requested relief.

Background

Appellants were indicted by a Tarrant County grand jury for the offense of possession of a controlled substance with the intent to deliver. Their cases were filed in the 297th District Court and were thereafter sent to Tarrant County's Trial Court C. Appellants filed pretrial applications for writ of habeas corpus in the 297th District Court of Tarrant County, alleging that Trial Court C was unconstitutionally created and lacked the jurisdiction of a district court. The elected judge of Criminal District Court Number Three, Judge Don Leonard, sitting for the 297th District Court, considered the writ applications and, following a lengthy hearing, ultimately denied appellants' request for the

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ordered return of both cases to the 297th Judicial District Court for trial.

The applications included the following argument: "This writ application is intended only as a challenge to the constitutionality, jurisdiction, and operations of Trial Room 'C', a/k/a Trial Court 'C', and to the judge assigned to sit in such Court."

Constitutional and Statutory Claims

We begin our analysis of appellants' constitutional claims by looking to the administrative assignment of the presiding judge.

Appellants' cases were filed in the 297th District Court for Tarrant County and were subsequently sent, along with other cases, to Trial Court C. Judge James Walker, a Former District Judge of the 286th District Court, was assigned to the 371st District Court for Tarrant County by Judge Clyde R. Ashworth, Presiding Judge of the 8th Judicial Administrative District.

Under well-settled case authority, the proper assignment of Judge Walker to the 371st District Court authorized him to sit in the other district courts of Tarrant County, including the 297th District Court. Judges sitting by assignment may be properly authorized to preside over more than one court in a county. See Zamora v. State, 508 S.W.2d 819, 823 (Tex.Crim.App.1974); Gregory v. State, 495 S.W.2d 891, 892 (Tex.Crim.App.1973). If properly assigned to one district court, the judge is authorized to preside in other district courts of the same county. See Peach v. State, 498 S.W.2d 192, 194 (Tex.Crim.App.1973), overruled on other grounds, Jackson v. State, 548 S.W.2d 685 (Tex.Crim.App.1977); Pendleton v. State, 434 S.W.2d 694, 697 (Tex.Crim.App.1968). Moreover, a judge sitting by assignment may preside over a court regardless of whether the regular district judge of that court was present and trying another case at the same time. See Hughes v. State, 897 S.W.2d 285, 306 (Tex.Crim.App.1994), cert. denied, 514 U.S. 1112, 115 S.Ct. 1967, 131 L.Ed.2d 857 (1995); Zamora, 508 S.W.2d at 823; Reed v. State, 500 S.W.2d 137, 138 (Tex.Crim.App.1973), overruled on other grounds, Ex parte Taylor, 522 S.W.2d 479 (Tex.Crim.App.1975); Gregory, 495 S.W.2d at 892.

The record reflects Trial Court C is a fully staffed courtroom where judges sitting by assignment in Tarrant County hear some of the cases filed in Tarrant County district courts, including Criminal District Court Numbers One, Three, Four, the 213th District Court, the 297th District Court, the 371st District Court, and the 372nd District Court. The fact that the elected judges of the courts may be presiding in other courtrooms at the same time an assigned judge may be presiding in another courtroom is of no legal consequence. See Peach, 498 S.W.2d at 195.

Appellants acknowledge the unbroken history of appellate decisions upholding the viability of using visiting judges in courts such as Trial Court C, whether they be called "impact courts," "annex courts," "trial courts," or "auxiliary courts." See, e.g., Hunnicutt v. State, 523 S.W.2d 244, 245 (Tex.Crim.App.1975) (conviction from a so called "Impact" district court in Dallas County upheld after rejection of contention that such courts are unconstitutional). Nevertheless, appellants strongly urge this court to find that the appellate record in this case shows that Trial Court C was intended to operate, and continues to operate, as a permanent and fully operational district court, in significant contrast to the prior cases. They point to the following language in the Court of Criminal Appeals opinion in Ex parte Holmes, 754 S.W.2d 676 (Tex.Crim.App.1988), in support of their claim that a permanent system of administrative judicial assignments to such courts is far different than temporary administrative assignments:

The contention on appeal in many of these cases has been that these were not legislatively created courts and thus invalid. In rejecting this contention the court has upheld the temporary administration assignment of a judge to a district court where the regular judge was present, but has not held that such practice constituted the establishment of a valid annex or impact court, or whatever local term was used for convenience in various counties.

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The word "establish" is used in the second sentence of [section] 24.961 as well as in [a]rticle V, [section] 1, Texas Constitution, with regard to the establishment of courts. The Reader's Digest Great Encyclopedic Dictionary including Funk [and] Wagnalls Standard College Dictionary defines "establish" as "1. To make secure, stable, or permanent, fix firmly in a particular place or condition. 2. To set up, found, or institute on a firm or lasting basis...."

The words and phrases within a statute must be read in the context in which they are used. V.T.C.A., Government Code, § 311.011(a). The word or phrase must then be construed according to the rules of grammar and common usage. Id.

It can hardly be said that a temporary administrative assignment of a judge for a week or two to a district court in Harris County, whether the regular judge is present or not, "establishes" another court, whether annex or branch, or of any other kind.

Id. at 682 n. 5.

Tarrant County's Trial Court C is clearly more than a temporary courtroom where visiting judges sometimes sit pursuant to administrative assignments. The record presented by appellants shows it was established and funded to operate full-time. The Texas Legislature had no involvement in its creation; instead, it was created by a combination of state executive and judicial authorities, and has been funded through yearly renewable grants by the Criminal Justice Division of the Governor's Office since its creation in 1991. It is located in a permanent courtroom in the courts building and and has its own full-time bailiffs, court reporter, court coordinator, and probation officers.

Nevertheless, we must acknowledge that the cases are properly assigned by valid district judges to visiting or retired judges sitting by proper assignment in their place. The vexing question presented to us is not whether such assignments are made to Trial Court C on a full-time basis; clearly they are. Rather the critical question is whether Trial Court C constitutes an unconstitutionally established court, such that the judicial assignments to it are unconstitutional and violate our separation of powers. ² On the basis that properly assigned judges may sit for other judges within the county, we hold that Judge Walker was properly authorized, pursuant to his administrative assignment, to preside over appellants' cases in the 297th District Court, regardless of whether the place of the trial was designated as Trial Court C. We believe any authority to the contrary, including the language cited above in Ex parte Holmes, is mere dictum and accordingly is not controlling.

We also reject appellants' contention that Trial Court C operates in violation of the Government Code because it receives cases from other district courts within days or weeks after indictment. Sections 74.052 and 74.056(a) of the Code authorize the presiding judge of the administrative region to assign judges when necessary to dispose of "accumulated business." TEX.GOV'T CODE ANN. §§ 74.052, 74.056(a) (Vernon 1988). We do not read the words "accumulated business," as requiring the cases to be a specific age in order to qualify for disposition by an assigned judge. Rather, we hold cases may constitute "accumulated business," the day they are filed in the assigning court.

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Notice Claims

Appellants also contend the assignment of cases by the district courts of Tarrant County to Trial Court C denies them due process and effective assistance of counsel because counsel often do not know which judge...