Ex parte Lowery

• Decision Date: 23 January 1975
• Docket Number: No. 7670,7670
• Citation: 518 S.W.2d 897
• Court: Texas Court of Appeals
• Parties: Ex parte Herbert LOWERY.

Page 897

518 S.W.2d 897

Ex parte Herbert LOWERY.

No. 7670.

Court of Civil Appeals of Texas Beaumont.

Jan. 23, 1975.

Ralph Zeleskey, Lufkin, for relator.

Earl B. Stover, Silsbee, for Judge Smith.

KEITH, Justice.

Our original jurisdiction has been invoked under the provisions of Vernon's Tex.Rev.Civ.Stat.Ann. art. 1824a (Supp.1974--1975), after Relator was found in contempt of court for refusing to answer certain questions propounded to him in a hearing involving children mentioned in an earlier divorce decree. The only question presented by our record is that involving the jurisdiction of the trial court to hear the contempt action and to enter the order. ¹

Statement

On January 29, 1974, the Honorable Clyde E. Smith, Jr., Judge of the 88th Judicial District of Texas, ² entered a decree of divorce wherein the custody of three minor children was adjudicated. The divorce suit was instituted and was then pending in the 159th District Court of Angelina County but the Honorable David Walker, judge of said court, was disqualified. The parties agreed that Judge Smith could hear the case at Kountze, Hardin County, but all proceedings were carried under the Angelina County number and the judgment was entered in the minutes of the 159th District Court. ³

The petitioner in the divorce proceeding (the mother) filed a motion in the 159th Court seeking to hold Relator in contempt of court for his alleged violation of the provisions of the divorce decree. Judge Walker, in a letter, advised all counsel of his continuing disqualification and suggested 'that you contact Judge Clyde Smith, Kountze, Texas, in regard to his hearing this Motion.' No other formal written instrument appears in our record with reference to an exchange of benches or a transfer of the cause, and there was no assignment of a judge by the presiding judge of the administrative judicial district.

Judge Smith, by an order entered in the Angelina County case, directed the District Clerk of the 159th District to issue a notice to Relator to appear before him at Kountze, Hardin County, to show cause why he should not be held in contempt for the violation of the original divorce decree. Relator's counsel filed a motion to quash the notice in the district court of Angelina County, but appeared in Kountze at the time and place set forth in the notice.

Relator's counsel again urged the complete want of jurisdiction of Judge Smith to hear the contempt motion but it was overruled and Judge Smith ordered the hearing to continue. We quote his remarks in the margin. ⁴ After Relator refused to answer the questions (fn. 1, supra), he was found in contempt of court and committed to the custody of the sheriff of Hardin County on a commitment issued by the District Clerk of Hardin County 'until such time as he may purge himself of such contempt.' The order of commitment recites that it was entered in Cause No. 16,079--73--1 upon the docket of the District Court of Angelina County, Texas. It recites that it was '(r)endered and entered this the 13th day of December, 1974 at Kountze, Hardin County, Texas.' It is signed by Clyde E. Smith, Jr., 'Judge, 88th Judicial District Court, Sitting for and at the Request of Honorable David Walker, District Judge, 159th Judicial District of Texas,' and it ordered Relator confined in the county jail of Hardin County. ⁵

Relator immediately made application to this court for a writ of habeas corpus. We ordered his release on bond pending a hearing and the cause has now been presented to us upon a complete record with briefs and oral argument by the opposing sides.

Opinion

Since this is a collateral attack upon the judgment of the trial court, Relator labors under the burden of showing that the judgment under which he is imprisoned is void and not merely voidable. Ex parte Williams, 469 S.W.2d 449, 450 (Tex.Civ.App.--Beaumont 1971, orig. proceedings), and cases therein cited. See also, Ex parte Helle, 477 S.W.2d 379, 381 (Tex.Civ.App.--Corpus Christi 1972, orig. proceedings); Ex parte Holloway, 490 S.W.2d 624, 626 (Tex.Civ.App.--Dallas 1973, orig. proceedings).

Since the underlying divorce decree out of which the contempt proceedings arose was a judgment of the 159th District Court of Angelina County, this ancillary proceeding was governed by the provisions of Vernon's Ann.St.Tex.Const. art. V, § 7, as amended in 1949, which requires that the District Court 'shall conduct its proceedings at the county seat of the county in which the case is pending, except as otherwise provided by law.'

This constitutional provision was construed in this manner in Lyons-Thomas Hardware Co. v. Perry Stove Manuf'g Co., 88 Tex. 468, 27 S.W. 100, 109 (1894): 'A judge of the district court in this state has no power to adjudicate the rights of litigants except at the time and places prescribed by law for holding courts, unless the authority is conferred by statute.' See Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 705, 708 (1944), holding:

'Our Constitution and statutes require that a district judge shall hold court only at the county seat of the county, which means the place where the courthouse is situated. Turner v. Tucker, 113 Tex. 434, 258 S.W. 149; Sec. 7 of Art. 5, Constitution of Texas.'

See also, Isbill v. Stovall, 92 S.W.2d 1067, 1070 (Tex.Civ.App.--Eastland 1936, no writ). Indeed, this court in State v. Orangefield Independent School District, 345 S.W.2d 823, 824 (Tex .Civ.App.--Beaumont 1961, no writ), paraphrasing Rouff v. Boyd, 16 S.W.2d 403, 407 (Tex.Civ.App.--Galveston 1929, orig. proceedings), said:

'There is no firmer principle established in our jurisprudence than that courts can only exercise jurisdiction to hear and determine rights at the time and place fixed by the statutes or rules of court authorized by the statutes.'

It is urged upon us, however, that the foregoing line of cases, antedating the 1949 amendment to the Constitution, 'are irrelevant,' counsel citing Barnhart Ind. Sch. Dist. v. Mertzon Ind. Sch. Dist., 464 S.W.2d 197, 201, fn. 1 (Tex.Civ.App.--Austin 1971, writ ref'd n.r .e.). He also contends that Tex.Rev.Civ.Stat.Ann. art. 1919 (Supp.1974--1975), adopted following the 1949 amendment to the Constitution, is controlling and supports Judge Smith's actions. We disagree. Section 2 of art. 1919, quoted in the margin, ⁶ is not, in our opinion, applicable to the fact structure which we review.

It is readily apparent that the quoted statute is applicable to two different contingencies. The first long sentence is operative only as to districts containing more than one county. Thus, it is not applicable to cases pending in the single-county 195th District, Angelina County. The second sentence applies to two different fact situations: (a) to any 'district judge assigned to preside in a court of another judicial cistrict,' or (b) to a district judge 'who may be presiding in exchange or at the request of the regular Judge of said court.'

Tex.Rev.Civ.Stat.Ann. art. 200a, § 5 (1969), provides for the assignment of district judges 'when the regular Judge thereof is absent or is from any cause disabled or disqualified from presiding.' Such judges are subject to assignment by the presiding judge of the administrative district 'wherein such judge resides.' (§ 5a) Such judge may also be assigned to serve in another administrative district, if the presiding judge of such other district has so requested. (Id., § 6). ⁷

Thus, if Judge Smith was to be assigned to try the contempt action then pending in the 159th District Court of Angelina County, concurrent action of Judge Max Rogers of the Second Administrative District, and of Judge Paul Peurifoy of the First Administrative Judicial District was required. Tex.Rev.Civ.Stat.Ann. art. 200a, §§ 5, 5a, and 6 (1969); 45 Tex.Civ.Jud.Council Ann.Rep. 254--257 (1973). No one even pretends that there was any such assignment. Thus, it is clear that Judge Smith was not presiding by virtue of any Assignment as set out in Tex.Rev.Civ.Stat.Ann. art. 1919, § 2 (Supp.1974--1975).

Recognizing the inapplicability of the assignment theory, Respondent urges that there was an exchange of benches between Judges Walker and Smith. We readily concede that district judges may exchange benches and hold court for each other. This is clearly authorized by Tex.Const. art. V, § 11, and Tex.Rev.Civ.Stat.Ann. art . 1916 (1964). Further, we concede that such an exchange may be effected upon the judges' own initiative and that the making and entry of a formal order is not required nor does the reason for the exchange need be shown in the minutes. Baldwin v. Leonard, 110 S.W.2d 1160, 1161 (Tex.Civ.App.--Eastland 1937, writ dism.); Pendleton v. State, 434 S.W.2d 694, 697 (Tex.Cr.App.1968).

Our Supreme Court defined jurisdiction in National Life Co. v. Rice, 140 Tex. 315, 167 S.W.2d 1021, 1024 (1943): 'Jurisdiction means the power conferred upon a court by the Constitution and laws to determine the merits of that suit as between the parties and to carry its judgment into effect. Withers v. Patterson, 27 Tex. 491, 86 Am.Dec. 643.' ⁸ (emphasis in text) Only the 159th District Court had continuing jurisdiction over the minor child involved in the contempt proceedings. Tex.Family Code Ann. § 11.05(a), V.T.C.A. (1973).

Judge Smith's comments made at the time he overruled Relator's motion to quash (fn. 4, supra), illustrates Respondent's misconception of the law--the distinction between a 'Judge' and a 'Court.' The language used by the Indiana Supreme Court in State v. Sammons, 223 Ind. 27, 57 N.E.2d 587, 590 (1944), is in point and appropriate to the case at bar. There, the Court said:

"Throughout all the constitutional provisions runs the controlling idea that a court can not exist without a judge.' But a judge is not the court, although frequently the words are used interchangeably. 'A time when, a place where, and the persons by whom, judicial functions are to be exercised, are essential to complete the idea of a...