Ex parte Holmes

• Decision Date: 18 May 1988
• Docket Number: No. 69890,69890
• Citation: 754 S.W.2d 676
• Parties: Ex parte John B. HOLMES, Jr.
• Court: Texas Court of Criminal Appeals

Page 676

754 S.W.2d 676

Ex parte John B. HOLMES, Jr.

No. 69890.

Court of Criminal Appeals of Texas En Banc.

May 18, 1988.

Roger Bridgwater, Ted Doebbler, Houston, for respondents.

John B. Holmes, Jr., Dist. Atty., Calvin A. Hartmann and J. Harvey Hudson, Asst. Dist. Attys., Houston, for applicant.

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

Before the court en banc.

OPINION

ONION, Presiding Judge.

This proceeding involves an application for writ of habeas corpus invoking the original jurisdiction of this Court. ¹ The applicant, the District Attorney of Harris County, attacks an order of contempt entered against him in the 183rd District court for refusing to proceed in the prosecution of a criminal case. As punishment applicant was assessed three days in the county jail.

The record reflects that the Honorable Wallace C. Moore, a retired district judge of the 184th District Court of Harris County, and eligible for judicial assignment, ² was assigned by the Honorable Thomas Stovall, Jr., Presiding Judge of the Second Administrative Judicial Region, to the 183rd District Court of Harris County for a period of three weeks, beginning on August 24, 1987.

During the course of said assignment on September 1, 1987, Judge Moore called for trial Cause No. 483,226, a burglary charge pending in the 183rd District. Apparently the defendant had indicated he would plead guilty. The applicant personally appeared and refused to prosecute that cause because (1) the Honorable Jay Burnett, the duly elected and acting judge of the 183rd District Court was at the time sitting in another courtroom conducting the voir dire examination of a jury panel in a capital murder case, and (2) that V.T.C.A., Government Code, § 24.961, had become effective that very day (Sept. 1, 1987), and that Judge Moore as a visiting judge lacked authority and jurisdiction to try cases by virtue of said provision and the fact the regular judge was present and trying a case.

Section 24.961 provides: "The district courts in Harris County may not sit in more than one location. The courts may not establish an annex or branch court."

Judge Moore found that applicant's reliance on § 24.961 for his claim of the court's lack of authority and jurisdiction was unfounded, and further declared said section to be unconstitutional.

When applicant refused to proceed in the said cause number Judge Moore found him in contempt of court. Since the applicant was an officer of the court he was released on his personal recognizance, and Judge Stovall assigned the Honorable Jon Hughes of the 174th District Court of Harris County as "a judge of a district court that is not the offended court" to make a determination of applicant's guilt or innocence in accordance with V.T.C.A., Government Code, § 21.002(d) (former Article 1911a, V.A.C.S.). ³

At the hearing before Judge Hughes the applicant district attorney testified "The actions that I am taking is a good faith belief that the courts lack jurisdiction because of the philosophy expressed by the legislature either intentionally, accidently or stupidly." He estimated that visiting judges dispose of approximately one hundred cases a week at a minimum in Harris County, but he had a duty to uphold the law. "I think whatever public policy was expressed by the legislature is not in the best interest of the public, but obviously I am not one free to express my personal policy. That's an act done by the legislature."

The Honorable Miron O. Love, Judge of the 177th District Court and Administrative Judge for Harris County, also testified. He agreed with applicant's estimate of the disposition of cases by a visiting judge. When asked if he knew what the legislative intent was in enacting § 24.961 he responded, "I have no earthly idea."

At the conclusion of the hearing on September 2, 1987, Judge Hughes found applicant in contempt of the 183rd District Court and assessed punishment at three days' confinement in the county jail. Judge Hughes found applicant's reliance upon § 24.961 of the Government Code was unjustified, that the statute was unconstitutional, etc.

Applicant, then, by his habeas corpus application invoked the original jurisdiction of this Court, and has been released on a $100.00 personal bond pending further orders of this Court.

In construing the validity of the statute in question it is helpful to view the historical background in Texas of district judges exchanging benches or holding court for each other, and the system of assignment of such judges, as well as the enactment of the statute and its forerunner pertaining to Harris County alone.

HISTORY OF JUDICIAL ASSIGNMENTS

In 1842, six years after the Battle of San Jacinto, the Congress of the Republic of Texas enacted legislation which declared "[t]hat any of the judges of the district courts are hereby authorized to hold the courts in any other district than their own, by arrangement with each other; and all judgments or proceedings before such judge shall be as good in law and equity, as if the court was held by the judge of the district." 2 A. Gammel, Laws of Texas 757 (1842). After entering the Union, the first State Constitution of 1845 provided that district judges "may exchange districts, or hold courts for each other, when they deem it expedient, and shall do so when directed by law." Article IV, § 14 (1845). The same provision is found in the 1861 Constitution, Article IV, § 14, and in Article IV, § 12 of the 1866 Constitution, as well as in Article V, § 11 of the 1869 Constitution. The same language is found in the present 1876 Constitution in Article V, § 11, except the phrase "directed by law" was replaced by "required by law." Since 1845 then the Constitution has authorized district judges not only to exchange benches but to also hold court for each other. ⁴

The Legislature has, over the years, taken note of the aforementioned provisions as it has promulgated legislation concerning judicial procedures. In 1846 the Legislature declared that "... any [district] judge may hold court with any other district judge...." 2 H. Gammel, Laws of Texas 1509 (1846) (Emphasis supplied). Until recently this provision or similar one has been carried forward by the Legislature through numerous revisions of the State's statutes. See Article 1124, Tex.Rev.Civil Statutes (1879) ["any judge of the district court may hold courts for or with any other district judge, and the judges of the several district courts may exchange districts whenever they may deem it expedient to do so."] See also Article 1108, Tex.Rev.Civil Statutes (1895); Article 1715, Tex.Rev. Civil Statutes (1911); Article 1916, Tex.Rev.Civil Statutes (1925).

In 1927 the foregoing was supplemented when the Legislature recognized the existence of an "emergency" condition due to the congested dockets of the various district courts at that time. See Acts 1927, 40th Leg., ch. 156, § 12 at 231. Acknowledging "that there are now so many cases pending on the dockets of the several district courts of this state which cannot be reached because of the press of business, and the fact that there are other district judges whose time is not all taken," the Legislature enacted Article 200a of the civil statutes to provide in § 5 of that Act:

"Judges may be assigned in the manner herein provided for the holding of district court when the regular judge thereof is absent or is from any cause disabled or disqualified from presiding, and in instances where the regular district judge is present or himself trying cases where authorized or permitted by the Constitution and laws of the State."

When interpreting the various foregoing statutes the appellate courts of this state have uniformly endorsed the position that the Legislature has done no more than grant to district judges by statute what they already inherently possessed by constitutional provision.

In Munzesheimer v. Fairbanks, 82 Tex. 351, 18 S.W. 697 (1891), the district judge of Bowie County, engaged in trying one case, requested another district judge to hear the appellant's case. The appellant complained on appeal that two judges could not simultaneously hear cases docketed in the same district court. The Supreme Court rejected the claim and affirmed the judgment noting that the Constitution provides that "the district judges may exchange districts, or hold courts for each other, when they deem it expedient." Id. 18 S.W. at 698. See also Currie v. Dobbs, 10 S.W.2d 438 (Tex.Civ.App.--El Paso 1928, no writ).

In Eucaline Medicine Co. v. Standard Co., 25 S.W.2d 259 (Tex.Civ.App.--Dallas 1930, writ ref'd), the court wrote:

"The argument of counsel is, in effect, that jurisdiction is indivisible and individual and cannot be exercised concurrently in the same court at the same time by two judges trying different cases.

"After making provision for holding special terms of district courts, also for holding court in instances where the regular judge is absent, or from any cause is disabled or disqualified to preside, or has exchanged districts with another judge, the Constitution makes the further provision in section 11, art. 5, as follows: '... And the district judges may ... hold courts for each other when they may deem it expedient, and shall do so when required by law.'

"On the occasion under review, Judge Watkins, the regular judge of the 95th district was neither absent, disabled, disqualified from presiding, nor had he and Judge Williams exchanged districts, but at the time Judge Williams was trying this case, Judge Watkins was also presiding in his court engaged in the trial of another case.

"One of the cardinal rules for constitutional construction is that effect must be given, if possible, to the whole instrument and to every section and clause. [Citation omitted].

"The provision of the Constitution above quoted, evidently, was not intended to duplicate other provisions for holding court, such as when the regular judge is absent,...