Gonzales v. Laughlin, 12547
| Citation | 256 S.W.2d 236 |
| Decision Date | 04 March 1953 |
| Docket Number | No. 12547,12547 |
| Parties | GONZALES et al. v. LAUGHLIN, District Judge, et al. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
H. P. Guerra, Jr., Rio Grande City, Cox, Patterson & Smith, San Antonio, Trueheart, McMillan & Russell, San Antonio, for relators.
Raymond, Algee, Alvarado, Kazen & Woods, Laredo, A. J. Vale, Rio Grande City, Judge C. Woodrow Laughlin, Alice, Frank R. Nye, Jr., Rio Grande City, for respondents.
This is an original proceeding instituted in this Court under the provisions of Article 1824, Vernon's Ann.Tex.Stats., seeking a writ of mandamus directing the Hon. C. Woodrow Laughlin, District Judge of the 79th District Court to proceed to trial in an election contest, being No. 2723, styled Manuel Gonzales, Jr., v. M. J. Rodriguez, now pending upon the docket of the District Court of Starr County, Texas. The contest involves an election held on March 29, 1952, to determine if the Grulla Independent School District should be consolidated with the Rio Grande City Independent School District. The case, upon another phase, has heretofore been considered by us. See, Gonzales v. Rodriguez, Tex.Civ.App., 250 S.W.2d 253.
In December, 1952, the Hon. Sam G. Reams, then District Judge of the 79th District, was not in attendence upon the Starr County District Court and Hon. Truett Hubbard, a practicing attorney of the Texas bar, was elected as a special district judge. The Grulla-Rio Grande City School case was called and a motion for continuance filed under the provisions of Article 2168a, Vernon's Ann.Tex.Stats., as Hon. A. J. Vale, one of counsel for contestees, was a member of the State Legislature which would convene in January of 1953. 1
This motion was granted by the special district judge in an order expressly reciting that the same 'was made solely as a matter of law under the mandatory provisions of this statute (Article 2168a), and not as an exercise of discretion.'
The Statute provides that:
'In all suits, either civil or criminal, or in matters of probate, pending in any court of this State at any time within thirty (30) days of a date when the Legislature is to be in Session, or at any time the Legislature is in Session, it shall be mandatory that the court continue such cause if it shall appear to the court, by affidavit, that any party applying for such continuance, or any attorney for any party to such cause, is a Member of either branch of the Legislature, and will be or is in actual attendance on a Session of the same. * * *'
Relators assert that the statute applies to matters of probate, criminal suits and civil suits, and that obviously an election contest is neither a matter of probate or a criminal suit. They point out that long before the Legislature adopted the statute in question, it had also been decided by the Supreme Court that an election contest was not a civil suit. It is contended that the Legislature must be presumed to have selected the wording employed in the statute advisedly and that its intention as gathered from the language used was to omit election contests from the operation of the statute. 2 It is further urged that the writ should therefore issue under authority of Wright v. Broeter, District Judge, 145 Tex. 142, 196 S.W.2d 82, wherein the Supreme Court held that a writ of mandamus could issue commanding a district judge to proceed to trial in an election contest under the provisions of Article 1734, relating to the original jurisdiction of the Supreme Court, which is similar in wording to Article 1824, which is directly applicable to this proceeding. 3
The record, however, discloses a circumstance which in our opinion should preclude the issuance of the writ upon the present application. It appears that on January 1, 1953, the Hon. C. Woodrow Laughlin succeeded the Hon. Sam G. Reams (for whom the special judge was sitting when the order of continuance was rendered) as Judge of the 79th District Court. A court is a continuous judicial instrumentality unaffected by the changes of personnel of the presiding judge and ordinarily we would presume, without further inquiry, that an order of a court would remain in force according to its terms, until carried out or set aside by direction of higher authority. However, in the present case, relators in their application say that the present district...
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