Haskett v. Harris, 6

• Decision Date: 24 May 1978
• Docket Number: S,No. 6,No. 1267,6,1267
• Citation: 567 S.W.2d 841
• Parties: Martin C. HASKETT, Justice of the Peace Precinctan Patricio County, Texas, Appellant, v. Ray HARRIS, Individually, and as County Auditor of San Patricio County, Texas, Appellee.
• Court: Texas Court of Appeals

Page 841

567 S.W.2d 841

Martin C. HASKETT, Justice of the Peace Precinct No. 6, San

Patricio County, Texas, Appellant, v. Ray HARRIS, Individually, and as County Auditor of San

Patricio County, Texas, Appellee.

No. 1267.

Court of Civil Appeals of Texas,Corpus Christi.

May 24, 1978.

Martin C. Haskett, Aransas Pass, for appellant.

William G. Burnett, Sinton, for appellee.

OPINION

YOUNG, Justice.

This is an appeal from an order of the District Court of San Patricio County temporarily enjoining Martin C. Haskett, Justice of the Peace of Precinct No. 6, San Patricio County, and appellant herein, from proceeding with a contempt hearing against Ray Harris, Individually and as County Auditor of San Patricio County.

On May 11, 1977, Judge Haskett, held an examining trial in case No. 967, styled State of Texas v. Charles Alleman. Under Tex.Code Crim.Proc.Ann. art. 26.04 (1966) Judge Haskett appointed Mr. James Whitten, an attorney, to represent the indigent Alleman. Appellee Harris was neither a party to this proceeding nor present in appellant's court during the proceeding.

After the examining trial appellant filled out the following form (on which subsequent action by Harris and the Commissioners' Court is shown) requesting that Mr. Whitten be paid one hundred dollars ($100.00) under Article 26.05:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

There is no indication in the record that Whitten filed any sort of motion or pleading requesting that Judge Haskett order the County Auditor to pay Whitten $100.00.

On June 13, 1977, appellee Harris approved payment of the requested $100.00, but the Commissioners' Court of San Patricio County refused the $100.00 requested and approved only a $50.00 payment.

The evidence shows that Judge Haskett considered the request for payment to be an order of the court, and on June 17, 1977 Judge Haskett issued a summons to Harris directing him to appear before appellant and according to the summons: "show cause why he should not be held in contempt of court for failure to obey a lawful order of this court." The contempt hearing was set for July 6, 1977.

In the meantime, on June 27, 1977, appellee Harris filed in the District Court of San Patricio County an application for a temporary injunction enjoining Judge Haskett from proceeding with the contempt hearing. The cause was tried to the court on July 5, 1977, and the court granted a temporary injunction directing that Judge Haskett refrain from proceeding with the contempt hearing. Judge Haskett appeals.

Appellant Haskett by his only point alleges that the trial court erred in enjoining a judicial proceeding of a Justice of the Peace when the appellee Harris had the adequate legal remedy of presenting his defenses to the contempt proceedings at the contempt hearing itself. Appellee responds that appellant Haskett was without jurisdiction to proceed with the contempt hearing because: 1) Tex.Code Crim.Proc.Ann. art. 26.05 (1966) does not give a Justice of the Peace the power to order a County Auditor to make payment to an appointed attorney and that, consequently, Judge Haskett could not have acquired jurisdiction over Harris in a contempt proceeding for failure to obey an order Judge Haskett had no power to enter; 2) the show cause order was fatally defective for indefiniteness; and 3) appellee, if adjudged in contempt, could not purge himself of the contempt because he was without authority to make such payment unless the Commissioner's Court also agreed, citing Smith v. McCoy, 533 S.W.2d 457 (Tex.Civ.App. Dallas 1976, writ dism'd). Appellee contends that the Justice Court's lack of jurisdiction gives the District Court jurisdiction to enjoin the contempt proceeding citing Lyle v. Collier, 62 S.W.2d 1112 (Tex.Civ.App. Amarillo 1933, no writ). We have no doubt that under the facts as presented, appellant Haskett would be without jurisdiction to hold Harris in contempt of the purported order which is impossible for Harris to perform. Ex Parte Dustman, 538 S.W.2d 409 (Tex.Sup.1976); Smith v. McCoy, supra. Moreover, we think appellee's other jurisdictional objections raise a serious doubt whether Judge Haskett has power to hold Harris in contempt. Even so, this conclusion does not dispose of this case.

The jurisdiction of the District Court to issue the temporary injunction was not challenged in appellant's pleadings in the trial court nor was the issue raised on appeal. However, the question of want of jurisdiction of the subject matter may be raised on a reviewing court's own motion. Southwestern Bell Tel. Co. v. City of Kountze, 543 S.W.2d 871 (Tex.Civ.App. Beaumont 1976, no writ). Lack of jurisdiction in the District Court is fundamental error and is subject to review for the first time on appeal. Texas Employment Commission v. International Union of Elec. Radio and Machine Workers, 163 Tex. 135, 352 S.W.2d 252 (1962). Therefore we deem it necessary to review the District Court's jurisdiction to enjoin Judge Haskett.

The jurisdiction of District Courts to issue certain writs is spelled out in Tex.Const. art. V, § 8 which provides in pertinent part:

" . . . and said Court and the judges thereof shall have power to issue writs of habeas corpus, mandamus, injunction, and certiorari and all writs necessary to enforce their jurisdiction."

Tex.Rev.Civ.Stat.Ann. art. 1914 (1964) further provides:

"Judges of the district courts may either in term time or in vacation, grant writs of mandamus, injunction, sequestration, attachment, garnishment, certiorari, and supersedeas, and all other writs necessary for the enforcement of the jurisdiction of the court."

See Winfrey v. Chandler, 159 Tex. 220, 318 S.W.2d 59, 61 (1958). At first blush it might appear that the District Court in our case possessed jurisdiction to enter its "Temporary Injunction". We find no such jurisdiction though.

In substance, the writ which the trial court entered in the instant case was a writ of prohibition. "The vital distinction (between prohibition and injunction) is that injunction operates only upon individuals when used to require a desistance from prosecuting a suit or proceeding, while prohibition runs against the court to require cessation from the exercise of jurisdiction." (Emphasis supplied.) Ferguson v. Ferguson, 98 S.W.2d 847, 849 (Tex.Civ.App. Eastland 1936, no writ); Seele v. State, 1 Tex.Civ.App. 495, 20 S.W. 946 (1892, no writ). See City of Dallas v. Dixon, 365 S.W.2d 919, 922 (Tex.Sup.1963); County of Anderson v. Kennedy, 58 Tex. 616, 622 (1883); 6 Lowe, Texas Practice, Remedies § 452 n.9-12 (1973). Because prohibition is not one of the enumerated writs mentioned in either Article 5 § 8 of the Texas Constitution or Article 1914 of the Revised Civil Statutes, the issue then becomes whether the writ of prohibition was necessary to enforce the jurisdiction of the District Court. See Hebert v. Probate Court No. One of Harris County, 466 S.W.2d 849 (Tex.Civ.App. Houston (14th Dist.) 1971, no writ).

We find that the jurisdiction of the District Court had not been invoked prior to the suit for the injunction. For example, no suit had been filed in the District Court relevant...