Ex Parte Duncan

• Decision Date: 24 April 1901
• Citation: 62 S.W. 758
• Parties: Ex parte DUNCAN.
• Court: Texas Court of Criminal Appeals

62 S.W. 758

Ex parte DUNCAN.

Court of Criminal Appeals of Texas.

April 24, 1901.

Original application for a writ of habeas corpus by John M. Duncan to procure a release from a commitment for an alleged contempt. Writ granted, and relator discharged.

Cone Johnson and T. B. Butler, for applicant. R. W. Simpson, Dist. Atty., and Robt. A. John, Asst. Atty. Gen., for respondent.

DAVIDSON, P. J.

This is an original application for the writ of habeas corpus. Relator was appointed one of five attorneys to examine an applicant for admission to practice law. The order appointing this committee was entered on March 16th. The order failed to designate any time when the examination should occur. On the 16th of March, relator being in the court room, the presiding judge asked him if he could serve upon the committee, and was informed, if it did not occur at night, he could do so, but if at night it would be impossible for him to attend by reason of the fact that he lived remote from the court house, and could not leave his wife alone at night. The district clerk states the judge then informed relator that he would appoint him anyway, and if he could attend to do so, and, if not, "of course I will excuse you." On the night of the 20th of March all of the committee failed to attend except Hon. Cone Johnson. The judge fined the absent attorneys $25 each, and ordered the clerk to issue attachment. These orders were not entered of record, but the attachment was issued, and the next morning was served upon relator, Duncan, in his office by two deputy sheriffs, who immediately escorted him to the court room, where he took a seat in front of the judge's stand. A few minutes afterwards Judge Russell, the district judge, took the bench, and said, "Gentlemen, proceed with the examination." Relator arose and said, "I decline to serve on this committee." The judge replied, "Judge Duncan, I cannot excuse you;" to which relator replied: "I cannot help that. I will not serve. I told the court at the time of my appointment that I could not serve on an examination committee to meet at night, and gave the court my reasons for it. Now, I have been arrested at my office this morning, and brought over here under arrest by officers, under the order of this court, for failing to be present last night. I have always treated this court as a gentleman, and I expect to be treated or must be treated by the court as a gentleman, if not as a member of the bar." The court replied, "I will not sit here and allow you to reprimand the court, and I will fine you if you do not desist from it." "I then took my seat, saying, `Well, if you fine me, and I have the money to pay the fine, I can pay it; if not, I will have to go to jail.'" The court then said, "Mr. Clerk, enter a fine of $50 against Judge Duncan for contempt of court." It is shown by the evidence that it has never been the practice at that court, or in that district, for the judge to compel members of the bar to serve on such examining committees, and never before, in the knowledge of witnesses, was a fine assessed against, or an attachment issued for, a member of such committee who failed to attend; that the custom was either to postpone on account of the absence of one or more of the committee, or proceed with the examination by the appointment of other members of the bar. Relator further states that he had no intimation in any way from the judge at any time, after stating his reasons for not being able to attend the meeting of the committee at night, that he would still be expected to attend or be fined or attached; and that he had no notice or knowledge, or any reason to suspect, until the morning of the 21st, that he was fined, or was to be fined or arrested, and that the facts recited in the judgment of contempt rendered against him were placed there without his knowledge, and that he had no opportunity to see that the facts were correctly stated in the judgment; that it was wholly ex parte, and was prepared entirely under the direction of the trial judge.

This case involves and turns upon the question of jurisdiction. If the jurisdiction of the court properly attached to the person of the relator and the subject-matter of the contempt, and the facts showed contempt, then this writ should be refused, and the relator remanded. Article 256, Rev. Civ. St., provides: "During the term of the district court upon application in writing of any person desiring to obtain a permanent license to practice as an attorney and counselor at law in the courts of this state, the court shall, as soon as convenient, appoint a committee of three or more practicing attorneys of good standing, and set a day for the examination of the applicant, on which day the committee so appointed shall in open court proceed to examine the applicant; and if they or a majority of them and the court are satisfied of his legal qualification, a report of that fact shall be made." The district courts of this state being courts of record, every order made by such court must be entered of record. Upon the presentation of the application, it becomes the duty of the court to appoint a committee, naming them; and this appointment, together with the day appointed, must appear from the records to have been made as any other judicial order must so appear. Until this has been done, and the members of such committee have been notified, the court has no power to compel any member of the committee to proceed with the examination of such applicant. The question then presented is, did the court have the power to issue the attachment to compel the appearance of the relator? If it did, it must be held relator was in contempt, and the court had the power to punish, not only for the disobedience of its order originally made, but to enforce its orders subsequently made by fine or imprisonment, and to punish for refractory conduct on the part of the relator. If, on the other hand, it had no power to compel the attendance of the relator by the attachment as issued, then, the appearance of the relator being an enforced appearance, without sanction of law, the court had no power to punish, by either arrest under the writ of attachment, or for the subsequent acts of relator, while in such duress, in questioning or demanding, in a respectful manner, the right of the court in ordering his arrest, or in seeking to compel him to serve on the committee. It is conceded from the evidence before us that the application to be examined for license to practice as an attorney and counselor at law was filed by an applicant, in which application was made for a committee of practicing attorneys for the purpose of examination; that on the 16th of March an order was made and entered of record on the minutes of the court appointing relator and four other attorneys as such committee. But from this order, which is also in evidence, it is observed that no day was set or mentioned when the examination should occur. However, on the morning of the 16th of March, while relator was in the court room, the district judge inquired of him as to whether he could serve on said committee on the 20th of March. He replied: "I could not serve on any committee to examine an applicant at night; that I could not come down town at night, on account of living so far out, as my wife would be left alone should I leave." To this relator testifies that he heard no reply, but is sure that the district judge did not dissent. The district clerk, however, states that the judge replied to relator, "Well, judge, I will put you on (or leave you on), as it might be that you can come down; and, if not, of course I will excuse you." These facts are undisputed. Neither the order of the court, as made of record, nor the request of the judge to the relator to be present and take part in the examination, can form the basis for this proceeding in contempt. The order, to have been the subject of disobedience, must have been complete and perfect within itself. It was not complete. No attorney, from an inspection of the order, could say, without aid from other evidence, at what time the examination would be held, and, as no time was fixed by it for the examination, it cannot be said that relator in any way disobeyed such order. True, taken in connection with the oral statement of the judge, relator might have known that the examination would be held at 8 p. m. on the 20th of March, but in cases of this kind this is not sufficient. It is the disobedience of the order of the court as rendered and recorded which must constitute the basis of this proceeding. Stress is laid upon this from the fact that it is this order which is claimed to have first been disobeyed, and which gave rise to the subsequent proceedings. Nor can it be said, assuming that it is within the power or province of the judge to aid a recorded order by oral statements aliunde such record, that the request of the judge to relator, Duncan, was in any sense such order or command, or so regarded by the judge at the time, as to be the subject of disobedience, so as to form the basis of a contempt proceeding. It was, at most, a mere request, and evidently so understood at the time by the judge, relator, and the district clerk; and the manner in which the judge informed relator, Duncan. If he could not comply with it, would form the basis of relator's belief that he was excused from attendance. Where the court seeks to punish either by fine, arrest, or imprisonment for the disobedience of an order or command, such order or command must carry with it no uncertainty, and must not be susceptible of different meanings or constructions, but must be in the form of a command, and, when tested by itself, must speak definitely the meaning and purpose of the court in ordering. There being no such order as relator was required to obey, and there being nothing in his conduct remotely bringing him within contempt, the action of the judge in ordering the writ of...