Ex Parte Sanders, A-1938.

• Decision Date: 17 November 1948
• Docket Number: No. A-1938.,A-1938.
• Parties: Ex parte SANDERS.
• Court: Texas Supreme Court

Page 325

215 S.W.2d 325

Ex parte SANDERS.

No. A-1938.

Supreme Court of Texas.

November 17, 1948.

Rehearing Denied November 24, 1948.

Original habeas corpus proceedings by Honorable P. C. Sanders against Owen W. Kilday, sheriff, to secure release from a contempt commitment issued against relator by the Honorable William C. Davis.

Writ denied.

Joe Burkett, and Sam L. Harrison, both of San Antonio, for relator.

Walter Groce, Marshall Eskridge, Jack C. Hebdon and Randle Taylor, all of San Antonio, for respondent.

BREWSTER, Justice.

In this original habeas corpus proceeding the Hon. P. C. Sanders, relator, seeks release from a contempt commitment issued against him by the Hon. William C. Davis, Judge of the 37th Judicial District of Texas.

The case arose from a dispute between relator and Judge Davis as to which of them is entitled to the office of Judge of the 37th Judicial District Court.

On Jan. 1, 1945, Hon. Robert W. B. Terrell qualified for the office for the term ending Dec. 31, 1948, and was holding it when he died on July 22, 1948. At the time of his death Judge Terrell was a candidate to succeed himself for the term beginning Jan. 1, 1949; and relator was his opponent in the Democratic primary election to be held on July 24, 1948. As the only surviving candidate, relator won the nomination and was on the ballot as the Democratic nominee in the general election held on November 2, 1948.

On July 26, 1948, Judge Davis was appointed by the Governor to the vacancy created by Judge Terrell's death. He duly qualified the next day and was serving in that capacity on November 9, 1948, claiming that he was entitled to the judgeship, under his appointment, through December 31, 1948.

In the general election Judge Davis was an independent candidate for the office against relator for the term beginning Jan. 1, 1949. According to the canvass of the election results made by the Commissioners' Court of Bexar County, relator got a majority of the votes, but on Nov. 9, 1948, he had received no certificate of election as prescribed by Arts. 3034 and 3035, R.S. 1925, Vernons' Ann.Civ.St. arts. 3034, 3035.

Nevertheless on the morning of November 9 relator took the constitutional oath of office, went to the courtroom of the 37th District Court and asserted his right to assume the office of Judge of that court. Judge Davis had already tried three divorce cases and was discussing with attorneys for both sides the pending trial of a jury civil case when relator appeared, took the bench, announced to all present that he was judge of the court and insisted upon proceeding as such. Judge Davis then demanded that relator vacate the bench but relator refused. Thereupon Judge Davis held that relator's action "delayed, hindered and interfered with the functions" of the court and constituted contempt of court; accordingly, he was ordered confined in the Bexar County jail for three days and was remanded to the custody of Sheriff Owen W. Kilday, respondent, to serve the sentence.

We have concluded that relator had neither legal right nor color of legal right to the judgeship on November 9. In the first place, he was never in any sense a candidate for the unexpired term of Judge Terrell, deceased, either in the primary or in the general election, but ran for the full term to begin on January 1, 1949, and to end on Dec. 31, 1952. As such candidate, he knew, as the electors were presumed to know, that under the provisions of Art. 2929a — 1, V.A.C.S., Acts 45th Leg., p. 1320, ch. 486, the term of office he was seeking did not and could not begin until January 1, 1949. That is what he asked for and that is what he got and all he got. Whatever Judge Davis' right to the office was on Nov. 9, 1948, relator clearly had none. Any other conclusion would make the beginning of a term of office depend on the will of the electee rather than the will of the electors as the latter has been unequivocally expressed in the statute last cited. See 43 Am.Jur., p. 15, Sec. 155, and Plains Common Consol. School Dist. No. 1 v. Hayhurst, Tex.Civ.App., 122 S.W.2d 322.

While we are not here passing on the rights of the parties if relator had been elected to Judge Terrell's unexpired term and are therefore not expressing any opinion thereon, it is significant that our Constitution provides in Art. XVI, Sec. 27, Vernon's Ann.St., "In all elections to fill vacancies of...