Government Services Ins. Underwriters v. Jones

Decision Date22 May 1963
Docket NumberNo. A-9590,A-9590
Citation368 S.W.2d 560
PartiesGOVERNMENT SERVICES INSURANCE UNDERWRITERS et al., Relators, v. Honorable Herman JONES, District Judge, Respondent.
CourtTexas Supreme Court

Franklin Spears, Perry Rowan Smith, San Antonio, Heath & Davis, Austin, John Peace and J. B. Langham, San Antonio, for appellant relators.

Waggoner Carr, Atty. Gen., Austin, Joe R. Long and Dudley D. McCalla, Asst. Attys. Gen., for respondent.

NORVELL, Justice.

The sole question involved in this proceeding is whether or not Article 2168a, Vernon's Ann.Tex.Stat., which provides for a mandatory continuance of pending lawsuits upon application of a member of the Legislature is invalid because it is violative of Article II, § 1, of the Constitution of Texas Vernon's Ann.St., relating to the division of the powers of government into three distinct departments. No other constitutional basis for the invalidity of the statute is here urged. In our opinion this question was determined contrary to the respondent's position in Mora v. Ferguson, 145 Tex. 498, 109 S.W.2d 759, decided by this Court in 1947 and on authority of this case relators are entitled to the mandamus they pray for.

The essential facts are thses:

An insurance company liquidation proceedings is now pending in the District Court of Travis County, Texas, styled, State of Texas v. Government Services Insurance Underwriters, Inc., et al. Some time in October, 1962, Honorable Franklin Spears, an attorney at law and member of the State Senate, was employed as counsel by one or more of the defendants in said cause. The defendants in the case mentioned are now the relators before this Court.

The defendants in the district court case filed a motion for continuance based upon various grounds such as inability to complete the taking of the depositions of the statutory liquidator because of illness and the like. The only ground which is pertinent here, however, is that portion of the motion which is styled 'Alternative Motion for Continuance' wherein Senator Spears by a sworn pleading states that he is a member of the State Senate which is presently in session and prays that the cause be continued in accordance with the provisions of Article 2168a. This 'Alternative Motion for Continuance' was originally filed on April 8, and the grounds therein set forth were again urged in a pleading filed on April 25, 1963.

Article 2168a reads as follows:

'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. Where a party to any cause is a Member of the Legislature, his affidavit need not be corroborated. On the filing of such affidavit, the court shall continue the cause until thirty (30) days after the adjournment of the Legislature and such affidavit shall be proof of the necessity for such continuance, and such contiunance shall be deemed one of right and shall not be charged against the party receiving such continuance upon any subsequent application for continuance. It is hereby declared to be the intention of the Legislature that the provisions of this Section shall be deemed mandatory and not discretionary.'

The wording of the statute makes clear the Legislative intent that the court in which a statutory motion is filed shall have no discretion to grant or refuse the motion. It is expressly stated that, 'it shall be mandatory that the court continue such cause' and that 'It is hereby declared to be the intention of the Legislature that the provisions of this Section shall be deemed mandatory and not discretionary.'

The Honorable Herman Jones, respondent here, and the judge of the court in which the liquidation proceedings are pending, overruled the motion for continuance and held that the mandatory nature of the statute rendered the same unconstitutional under Article II, § 1 of the Texas Constitution relating to the division of governmental powers which provides that:

'The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.'

The order of the district court rests squarely upon the proposition that the portion of the statute which undertakes to deprive a district court of all discretion in granting a continuance regardless of whether in fact the presence of the attorneylegislator is essential to a fair trial of the cause amounts to an invasion of the judicial realm by the Legislature and hence comes under the constitutional proscription embodied in Article II, § 1 of the Constitution. 1 No other basis for the refusal of the continuance is set forth in the order of the trial judge and it is not urged by the Attorney General who is here representing the respondent that the granting of a continuance would result in any person being deprived of a remedy by due course of law, or that anyone would be deprived of equal protection of the laws contrary to the provisions of the Fourteenth Amendment to the Constitution of the United States or Article I, §§ 13 and 19 of the Texas Constitution; or that any constitutional provision other than Article II, § 1 would prevent Article 2168a from being fully operative under the facts of this particular case.

Upon Judge Jones' refusal to grant the statutory continuance, the relators applied to this Court for a peremptory writ of mandamus directing said District Judge to enter an order continuing the cause pending in his court in accordance with the holdings and practices outlined in Mora v. Ferguson, supra.

Express provisions similar to that contained in the Texas Constitution relating to the division of governmental powers are found in many state constitutions. Undoubtedly, as pointed out by counsel, such a provision is implicit in all written constitutions patterned after that of the United States of America. However, the problem of determining that which is judicial and that which is legislative is often difficult of statement under varying factual circumstances. Classification may depend upon the particular nomenclature and definitions employed in the field of learning with which one is concerned. To a political scientist who regards the legislative power as that authority which determines those rules of conduct which will be supported by governmental sanctions, the action of a court in declaring a law passed by a Legislature to be null and ineffective might appear to be a clear exercise of legislative power. As mentioned by this Court in Goode v. McQueen's Heirs, 3 Tex. 241, the power of the judicial branch to set aside and hold for naught an act of the legislative branch has been regarded by foreiginers as an anomaly and a somewhat dangerous one at that (p. 257). Yet, as pointed out by the Attorney General in his brief, Alexander Hamilton, in the Federalist Papers (No. 78), clearly anticipated Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60, when he asserted that the judicial branch of government must necessarily possess the power to declare those acts invalid which are contrary to the Constitution upon the theory that the judiciary must follow fundamental law and disregard non-fundamental law which is contrary thereto.

Proceedings in which a court is involved are not necessarily classified as judicial in character under any and all circumstances. This is recognized by the terms of the Constitution itself in various instances. For example, Article V, § 8 of the Constitution vests the District Court with original jurisdiction of contested elections. In De Shazo v. Webb, 131 Tex. 108, 113 S.W.2d 519, it was said, 'The jurisdiction conferred upon the district courts to hear and determine 'contested elections' is legislative in its nature. * * * In other words * * * the power and jurisdiction to hear and determine a contested election action is the power and jurisdiction to exercise a legislative function, and * * * it is not a civil suit.' See also, Williamson v. Lane, 52 Tex. 335, and Gonzales v. Laughlin, Tex.Civ.App., 256 S.W.2d 236, no writ history.

In determining whether or not the exercise of a power by one branch of government is an unauthorized invasion of the realm or jurisdiction of another branch, we must consider the relationship of the various governmental departments as set forth and defined in the Texas Constitution, for that which is permitted by the Constitution cannot be unconstitutional. The power and authority of a state legislature is plenary and its extent is limited only by the express or implied restrictions thereon contained in or necessarily arising from the Constitution itself. State v. Brownson, 94 Tex. 436, 61 S.W. 114. Insofar as procedure is concerned, the 1891 amendment to the judicial article of the Constitution vesting the Supreme Court with rule-making power expressly recognizes that such power is subordinate to that of the Legislature. Article V, § 25 of the Constitution, reads as follows:

'The Supreme Court shall have power to make and establish rules of procedure not inconsistent with the laws of the State for the government of said court and the other courts of this State to expedite the dispatch of business therein.'

See also, Golden v. Odiorne, 112 Tex....

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