Hunt v. Bass

• Decision Date: 19 May 1983
• Docket Number: No. 01-82-802-CV,01-82-802-CV
• Citation: 657 S.W.2d 154
• Parties: Tom HUNT, et al., Appellants, v. Tom BASS, et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 154

657 S.W.2d 154

Tom HUNT, et al., Appellants, v. Tom BASS, et al., Appellees.

No. 01-82-802-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

May 19, 1983.

Rehearing Denied Aug. 11, 1983.

Robert Hohenberger, George S. Gray, Houston, for appellants.

Dori Wind, Houston, for appellees.

Before JACK SMITH, DUGGAN and LEVY, JJ.

OPINION

LEVY, Justice.

This is an appeal from a dismissal for lack of jurisdiction in a suit for mandamus.

Appellants, in their individual capacities as citizens and taxpayers of Harris County, Texas, and as litigants in the Courts of Harris County, Texas, brought this suit for mandamus, complaining of the backlog of cases on the civil dockets of Harris County. Appellants contend that this backlog of cases creates an intolerable delay for the trial of their own causes of action, thereby depriving them, for all practical purposes, of their right to have remedy by due course of law. Tex.Const. art. I, § 13. Therefore, appellants sought to compel the Commissioners Court of Harris County to provide adequate, efficient and properly staffed courthouses, and to compel the Honorable Max M. Rogers, Presiding Judge over the Second Administrative Judicial District of Texas, to order that supplementary District Judges, from outside Harris County, be assigned to the backlog of cases in Harris County until such time as the dockets in Harris County are more nearly current and equal to the dockets of other Texas counties.

In response to appellees' pleas to the jurisdiction, the trial court dismissed appellants' suit, stating that the appellants had no standing to bring this cause of action. Appellants contend in their only ground of error that the trial court erred in sustaining appellees' pleas to the jurisdiction.

We note at the outset that mandamus is an extraordinary remedy reserved for only extraordinary circumstances, Munson v. Terrell, 101 Tex. 220, 105 S.W. 1114 (1907), and should not be granted unless the petition shows every fact necessary to entitle the relator to the relief sought. Mandamus will not issue to compel the performance of an act which involves the exercise of discretion or judgment. In performing his duties as Presiding Judge of the Second Administrative Judicial District, the appellee, Judge Max Rogers, obviously must exercise his judgment and discretion in the assignment of judges to the various district courts within his jurisdiction.

It is well established that a plaintiff fails to demonstrate a justiciable interest if, as a private citizen, he asserts a public, as distinguished from a private, right, and his petition fails to show that the matters in dispute affect him differently from other citizens. City of Abilene v. Shackelford, 572 S.W.2d 742 (Tex.Civ.App.--Eastland) rev'd on other grounds 585 S.W.2d 665 (Tex.1979). Without a justiciable interest in the subject matter of the litigation, either in his own right or in a representative capacity, a person cannot maintain a cause of action in Texas Courts. Yett v. Cook, 115 Tex. 205, 281 S.W. 837 (1926). A citizen must have a separate interest in the subject matter in his own right, different from that of the general public, and may not bring suit solely as a representative of the general public. Mitchell v. Dixon, 140 Tex. 520, 168 S.W.2d 654 (1943, opinion adopted); Lewright v. Love, 95 Tex. 157, 65 S.W. 1089 (1902); Julian v. Carrollton Independent School District, 346 S.W.2d 189 (Tex.Civ.App.--Texarkana 1961, no writ); Wilson v. Pierce, 123 S.W.2d 695 (Tex.Civ.App.--Galveston 1938, no writ).

The common law rule for standing in a suit for...