Hidalgo County Water Control and Imp. Dist. No. 1 v. Boysen

• Decision Date: 07 February 1962
• Docket Number: No. 13943,13943
• Citation: 354 S.W.2d 420
• Parties: HIDALGO COUNTY WATER CONTROL & IMPROVEMENT DISTRICT NO. 1 et. al., Appellants, v. K. C. BOYSEN, District Clerk, et al., Appellees.
• Court: Texas Court of Appeals

Page 420

354 S.W.2d 420

HIDALGO COUNTY WATER CONTROL & IMPROVEMENT DISTRICT NO. 1 et. al., Appellants, v. K. C. BOYSEN, District Clerk, et al., Appellees.

No. 13943.

Court of Civil Appeals of Texas, San Antonio.

Feb. 7, 1962.

Rehearing Denied Feb. 28, 1962.

A. G. Haigh, Edinburg, Ewers, Toothaker, Ewers, Elick, Jones & Abbott, McAllen, Sawnie B. Smith, Kelley, Looney, McLean & Littleton, Edinburg, Smith McIlheran & Jenkines, Weslaco, Hill, King & McKeithan, Mission, for appellants.

Frank R. Nye, Jr., Rio Grande City, L. Hamilton Lowe, Austin, Longoria & Evins, Edinburg, Truett Hubbard, Donna, A. J. Vale, Rio Grande City, Carter, Stiernberg, Skaggs & Koppel, Harlingen, for appellees.

PER CURIAM.

This is an appeal from an order denying a temporary injunction. Appellants sought the injunction to restrain the payment of attorney's fees to the attorney for the water master in a pending suit. They claimed that the attorney was appointed by a void order. The issue is whether two District Judges who entered orders were disqualified, one because he was an attorney in the case, and the other because of his relative's interest.

The Hon. Magus F. Smith, as Judge of the 93rd Judicial District, entered an order during February, 1961, which discharged one attorney and appointed John Snedeker to represent the water master in matters arising out of a pending lawsuit. Appellants contend that the order was void. The presiding judge of the Fifth Administrative Judicial District assigned Hon. Woodrow Laughlin, Judge of the 79th District Court, to serve as Judge of The 93rd District Court during the month of August, 1961. While so serving, Judge Laughlin entered an order which understook to confirm the earlier appointment by Judge Smith and to reappoint Mr. Snedeker. Appellants urge that Judge Smith was disqualified because he was formerly counsel for named parties in the pending water case. They urge that Judge Laughlin was also disqualified by reason of the interest of his relatives within the prohibited degrees of relationship. Because of these disqualifications, appellants urge that the District Clerk should make no payment of attorney's fees under the two void orders.

Judge Smith was disqualified. Prior to his elevation to the bench, the record shows that Judge Smith, as attorney, signed and filed two separate pleadings on behalf of named parties, and by those pleadings took a legal position by asserting legal claims to the waters under the management of the court through the water master. By a third pleading, Judge Smith's name appears as attorney on behalf of still another named party, but the pleading is signed by his former law associate. These pleadings by Judge Smith settle the issue about his former appearance as an attorney in the case.

Section 11, Article 5, of the Texas Constitution, Vernon's Ann.St., provides that 'No judge shall sit in any case * * * when he shall have been counsel in the case.' Judge Smith, by reason of his pleadings on behalf of the parties, was an attorney in the case prior to his becoming a judge and was disqualified to appoint the water master's attorney. Newcome v. Light, 58 Tex. 141; Slaven v. Wheeler, 58 Tex. 23; woody v. State, Tex.Cr.App., 69 S.W. 155; Pinchback v. Pinchback, Tex.Civ.App., 341 S.W.2d 549; Turner v. Chandler, Tex.Civ.App., 304 S.W.2d 687; Kruegel v. Williams, Tex.Civ.App., 194 S.W. 683; Johnson v. Johnson, Tex.Civ.App., 89 S.W. 1102; Gaines v. Hindman, Tex.Civ.App., 74 S.W. 583.

Judge Laughlin later entered his order ¹ relating to the same matter. Appellants urge that he too was disqualified, and, further, that his order merely approved that which was void. Judge Laughlin has a cousin who owns two city lots in Edinburg, which are within the boundaries of and use water furnished by the Hidalgo County Water Control and Improvement District No. 1, a party to the main water suit. The judge's cousin testified that he was not involved in the lawsuit, had spent no money on it, was not a party so far as he knew, and had hired no one to represent him. Judge Laughlin also has a second cousin whose wife owns 19.6 acres of land as her separate property which is within and is furnished water by the Hidalgo Water Improvement District No. 3, another party to the main water suit. Neither of these relatives of Judge Laughlin is named as a party. Appellants contend, however, that they are dependent upon water furnished by named parties, and that the Water Districts are their agents.

Section 11, Article 5, of the Texas Constitution provides that 'No judge shall sit in any case * * * where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law * * *.' Article 15, R.C.S., fixes that degree at the third degree. Judge Laughlin's relatives are within that degree.

Whether Judge Laughlin was disqualified turns upon the scope of the term 'parties' within the intent and meaning of the Constitution and statute. Neither his cousin nor his second cousin's wife was named as a party. This fact is not always controlling, if the interest of the relative is a direct one. The Supreme Court's opinion in Postal Mutual Indemnity Co. v. Ellis, 140 Tex. 570, 169 S.W.2d 482, 484, is helpful. The closeness of a decision is there illustrated. An Attorney who is related to the judge and whose fee is contingent upon the outcome come of the case has only an indirect interest and the judge is not disqualified. But, if the judge must pass directly upon the amount of the fee and approve the amount, the attorney then has a direct interest in the subject matter of the suit, and the judge is disqualified. From this we learn that the facts of each case must be examined to determine whether the relative's interest is direct or indirect. An unnamed person who owns property or will be liable in community with a named party in directly interested. Fry v. Tucker, 146 Tex. 18, 202 S.W.2d 218. An unnamed partner is directly interested with a named partner. Grubstake Investment Ass'n v. Kirkham, Tex.Civ.App., 10 S.W.2d 184; Stephenson v. Kirkham, Tex.Civ.App., 297 S.W. 265.

The relationship to the judge does not, however, disqualify when the judge is related to the officers and stockholders of a defendant corporation. Campbell v. Moore, Tex.Civ.App., 12 S.W.2d 806; Kingman Texas Implement Co. v. Herring, Nat. Bank, Tex.Civ.App., 153 S.W. 394; Houston Cemetery Co. v. Drew, 13 Tex.Civ.App., 536, 36 S.W. 802; Lewis v. Hillsboro Roller-Mill Co., Tex.Civ.App., 23 S.W. 338. The relative's interest is indirect though an attorney will receive a contingent fee, Winston v. Masterson, 87 Tex. 200, 27 S.W. 768; though a relative is a certificate member of a Marketing Association, Texas Farm Bureau Cotton Ass'n v. Williams, 117 Tex. 218, 300 S.W. 44; and though an unnamed relative is a member of a class in a class action. International & G. N. Ry. Co. v. Anderson County, Tex.Civ.App., 174 S.W. 305, 327-329.

In applying the rule of disqualification for a relative's interest we should endeavor to follow the spirit and intent of the Constitutional rule. The rule is based upon ethical principles. Justice should not have even the appearance of extraneous influence. The line has been drawn at that point where one can determine from the facts that the relative's interest is direct and real instead of indirect and remote. Even this general rule may be limited by necessity. This is so, because the Constitution does not contemplate that judicial machinery shall stop. When the law afforded no other alternative, Chancellor Kent refused, under the doctrine of necessity, to disqualify himself though his brother-in-law was plaintiff. Moers v. White, 6 Johns Ch. 360 (N.Y.1822). See, 30 Am.Jur., Judges, Secs. 91-92; 39 A.L.R. 1476; 56 ...