Ex parte Jones, 28730

Decision Date30 January 1957
Docket NumberNo. 28730,28730
PartiesEx parte Luther E. JONES, jr., et al.
CourtTexas Court of Criminal Appeals

L. Hamilton Lowe, Austin, Percy Foreman, Houston, Faires P. Wade, Corpus Christi, for appellants.

Sidney P. Chandler, Asst. Atty. Gen., Sam H. Burris, Dist. Atty., Alice, and Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

Our prior opinion in this matter is reported as Ex parte Jones, Tex.Cr.App., 294 S.W.2d 111. Following the issuance of the mandate in said cause, relators were arrested and imprisoned by the sheriff of Duval County. They, then, in accordance with our holding in said original opinion, made application to the Supreme Court of this State for writ of habeas corpus; however, said Court refused leave to file the same, and they again applied to this Court for relief. We granted the writ and allowed bail pending appeal.

In November, 1955, the judge of the 79th Judicial District Court had caused to be issued a calendar for the business of his court in the year of 1956. On such calendar, the month of August was shown as 'vacation.'

On December 2, 1955 there was filed in said court a petition in which the county attorney became a party to an action to remove the county judge, alleging certain misconduct in office. Such petition was not heard on its merits but was reset from time to time and finally passed indefinitely on June 4, 1956.

On August 3, 1956, one of the relators, Gohmert, called the judge's wife, told her that he wanted to speak to the judge, and inquired when they were leaving on their vacation. The record does not disclose what the judge's wife told Gohmert about when she and the judge planned to leave, if at all. It is shown that the judge left the following morning at 11:00 a. m. without calling Gohmert and without hearing further from him.

On August 6 at 9:00 a. m., an election contest was filed in the 79th District Court by relator Carrillo. Relator Jones was present, and the deputy district clerk told Jones that the judge was in Mexico. Thereafter, at 9:30 a. m., twelve of the lawyers who practiced in the 79th District, five of whom are these relators, met in the district courtroom and elected relator Gohmert as special judge.

Following this, the special judge set the election contest case for August 13.

During the course of the afternoon and after notice that the regular judge was on his way back to his district, the special judge heard and granted an amended petition to suspend the county judge from office. Such amended petition, by operation of law, abandoned the grounds originally plead and set forth an alleged illegal act on the part of the county judge which had taken place since the filing of the original petition. The judgment of contempt finds that the relators other than Gohmert 'aided and abetted' him in entering said order. It finds that relator Jones presented the petition to the special judge but does not find that the other relators did anything other than that they were merely a part of a 'preconceived plan' to remove the county judge from office.

At 7:55 p. m. on August 6, the regular judge arrived in his courtroom and set aside the order of the special judge suspending the county judge. The following day, the regular judge changed the setting on the election contest case from August 13 to August 20 and instructed the district attorney to prepare presentments against all the lawyers for contempt. Such was done; the hearing was had; five of the lawyers involved were held to have acted contemptuously of the court, and their punishment was assessed at 72 hours' confinement in the county jail.

In view of the amendment of Article V, Section 7, of the Constitution of Texas in 1949, Vernon's Ann.St., the enactment of Article 199-79, Vernon's Ann.Civ.St., and the amendment of Article 1919, V.A.C.S., in 1955, under authority thereof whereby continuous terms of court were provided during which the judge of the district is authorized to hold as many sessions as is deemed expedient for the dispatch of business, we have concluded that the relators were not authorized under Articles 1887-1893, V.A.C.S., to elect a special judge because no session of court had been ordered by the judge. Longoria v. Longoria, Tex.Civ.App., 267 S.W.2d 426.

As in that case, the situation here is similar to that which existed before the advent of continuous terms where the regular judge would call a special term of court and then fail or be unable to attend such special term.

We hold also, that Article 13.30, Vernon's Texas Election Code, V.A.T.S., does not authorize the practicing attorneys to call a special term or session of court. In McAllen v. Raphael, Tex.Civ.App., 96 S.W. 760, 766, we find the following language: 'The judge, and no one else, had power to...

To continue reading

Request your trial
2 cases
  • Myers v. Emery
    • United States
    • Texas Court of Appeals
    • August 9, 1985
  • Ex parte Morris
    • United States
    • Texas Supreme Court
    • July 19, 1961
    ...relator.' Another proceeding with a somewhat similar history is Ex parte Jones, Tex.Cr.App., 163 Tex.Cr.R. 475, 294 S.W.2d 111; 164 Tex.Cr.R. 208, 298 S.W.2d 121. Several attorneys were held in contempt for electing a special judge to try an election contest during the month shown as 'vacat......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT