In re McClelland, Civ. A. No. 65-H-291

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
• Writing for the Court: J. Edwin Smith and Jack J. Rawitscher, Houston, Tex., for petitioner
• Citation: 260 F. Supp. 182
• Parties: In the Matter of Clem McCLELLAND for the Writ of Habeas Corpus.
• Decision Date: 06 October 1966
• Docket Number: 65-H-882.,Civ. A. No. 65-H-291

260 F. Supp. 182

In the Matter of Clem McCLELLAND for the Writ of Habeas Corpus.

Civ. A. Nos. 65-H-291, 65-H-882.

United States District Court S. D. Texas, Houston Division.

October 6, 1966.

J. Edwin Smith and Jack J. Rawitscher, Houston, Tex., for petitioner.

J. Milton Richardson, Asst. Atty. Gen., Austin, Tex., Sam R. Wilson, Asst. Atty. Gen., and Carl E. F. Dally, Asst. Dist. Atty., Houston, Tex., for respondent.

260 F. Supp. 183

MEMORANDUM AND ORDER

CONNALLY, Chief Judge.

The petitioner has filed herein two applications for the writ of habeas corpus, Civil Action No. 65-H-291 and Civil Action No. 65-H-882, which have been consolidated. These attack two separate and distinct convictions, by different courts, at different times, for different offenses, based on different indictments, returned by different grand juries. Petitioner was convicted by the District Court of Travis County, Texas, of the offense of fraudulent conversion of an estate on April 22, 1964, the trial having been transferred on change of venue from Harris County. This is subject to attack in Civil Action No. 65-H-291. Petitioner was convicted of the offense of bribery on June 25, 1964, by the District Court of Falls County, Texas, on change of venue from Harris County. This conviction is attacked in Civil Action No. 65-H-882. Both convictions stem from the so-called Probate Court scandal of Harris County, Texas, which came to light in 1962.

Petitioner has been convicted of what to my mind is among the most serious of offenses. A long-time member of the Bar, and for many years Judge of the Probate Court of Harris County, Texas, he has been shown to have been a corrupt and dishonest judge, stealing from the estates of decedents being administered through his Court and accepting bribes from his friends and cronies whom he appointed to lucrative positions as appraisers, guardians, etc.

At the outset, it is well to note what is, and what is not, in issue. Petitioner makes no attack upon any matters which transpired during the two trials. His sole attack is directed at the indictment in each case. This is not the usual complaint that the indictment is inadequate, or does not apprise the defendant of the offense with which he is charged. It goes much deeper. While breaking his contentions down into some nine points, the real thrust is that his constitutional rights were infringed to such extent by reason of allegedly improper conduct of the District Attorney and one of the Justices of the Peace of Harris County in conducting a Court of Inquiry (which occurred before either indictment was returned), that the two grand juries could not thereafter under any circumstances return a valid indictment against him. In the event his point be sustained here, the argument would, I am sure, go further; and it would be contended that no grand jury could ever return a valid indictment against petitioner because of the Court of Inquiry proceedings.

The background is this. In the spring of 1962 it became common knowledge around the Harris County Courthouse that something was amiss in the official work of the Probate Court. It was known that some four or five intimates of the Probate Judge were receiving an inordinately large number of appointments; and that what appeared to be exorbitant fees were allowed. Both the District Attorney of Harris County and the reporters for the three daily newspapers of this city became aware of these rumors, and all were interested. The District Attorney exacted a promise from each of the three newspapers that they would not publish the story, at least until the official investigation was complete. One of the papers, however (the now defunct Houston Press), did not abide by this understanding, and published the story on June 5, 1962.

At this point the District Attorney was not aware to a certainty that any crime had been committed, or if so, who all the guilty parties might be—although certainly the petitioner as the Judge of the Court and the individuals who had received so many lucrative appointments were under grave suspicion.

In June of 1962, the District Attorney requested that the Honorable W. C. Ragan, a Justice of the Peace of Harris County, convene a Court of Inquiry pursuant to Article 886, Vernon's Ann. Texas Code of Criminal Procedure

260 F. Supp. 184

(1925).¹ As contemplated by this statute, and in practice, the Court of Inquiry is purely a fact finding proceeding. It may issue subpoenas, take testimony, and do nothing else. There are no parties. There is no accused. No trial is conducted. The Justice of the Peace sitting in this capacity cannot determine any civil or criminal liability. If the facts developed indicate that a crime has been committed, the Justice of the Peace may issue an arrest warrant. That is the only order (other than subpoenas) which he may issue. Thus, the Court of Inquiry is completely unrelated to grand jury proceeding. As this is a local procedure conducted at the county level, I am advised by the Attorney General of Texas that there are no accurate figures or statistics with regard to the purposes or frequency with which it is used. However, in general, history shows that the Court of Inquiry procedure has been availed of in cases of wide public interest, as when the conduct of some public agency or official is called in question, and irrespective of the question of criminality. For example, a series of such inquiries was conducted in connection with the now famous Billie Sol Estes case. Evidence was developed there tending to show a colossal fraud not only on several sophisticated large business concerns, but on many hundreds of small farmers. Indictment and conviction in both state and federal courts resulted. An inquiry was held recently in connection with alleged voting irregularities in Bexar County, Texas. No criminal charge resulted. As a further example, a Court of Inquiry was scheduled to inquire into all matters in connection with the assassination of President John F. Kennedy in Dallas, Texas, on November 22, 1963, though this was abandoned when the President of the United States by proclamation created The Warren Commission to make a similar inquiry on a nationwide scale. Inquiries are also held from time to time with regard to public issues or controversies, as evidenced by Inquiries into the indiscriminate sale of firearms, and the sale of obscene literature.²

The Court of Inquiry here in controversy convened in Houston, Texas, on June 14, 1962. Its purpose was "to inquire into the processing of various estates by the Probate Court" of Harris County.³ A number of persons, including petitioner, were summoned as witnesses. Eight of these witnesses were represented by counsel, who entered appearances. Each of such persons, through his attorney, sought to assume the attitude of an accused. In fact, thereafter some were indicted, others were not.

The "ground rules" under which the Court of Inquiry was conducted (the real basis of petitioner's complaint) were as follows. Each witness was permitted to have his counsel present with him while

260 F. Supp. 185

testifying. As the Justice of the Peace announced several times during the hearing, the proceeding was not adversary in nature, and neither counsel for the witness then testifying, nor counsel for the other witnesses was permitted to make objection to particular questions. However, each witness, on advice of counsel or otherwise, was permitted to decline to answer any question propounded to him simply by stating that he did not choose to answer. He was not required specifically to invoke his Fifth Amendment privilege. Each witness was excluded from the hearing room while not testifying. The attorneys for the witnesses were not permitted to cross-examine, or to call other witnesses. The petitioner, and several others toward whom the finger of suspicion pointed, were called. Many other witnesses were called. The petitioner's counsel was with him in the courtroom at all times. While required to take the stand, petitioner declined to answer a number of questions, and was not pressed to do so

Because newspaper stories had already indicated the possibility of corruption in the Probate Court, the hearing was of wide public...