McClelland v. Briscoe
| Decision Date | 13 July 1962 |
| Docket Number | No. 14053,14053 |
| Citation | 359 S.W.2d 635 |
| Parties | Clem B. McCLELLAND, Appellant, v. Frank BRISCOE et al., Appellees. |
| Court | Texas Court of Appeals |
J. Edwin Smith, Jack J. Rawitscher, Houston, Smith & Lehmann, Houston, of counsel, for appellant.
Sam Robertson, Jr., Carl E. F. Dally, Gus J. Zgourides, Asst. Dist. Attys., Houston, for appellees.
This is an appeal from an order refusing to grant a temporary injunction.
Appellant is the duly elected and qualified Judge of the Probate Court of Harris County. Appellee Briscoe was and is the Criminal District Attorney of Harris County. Appellee W. C. Ragan was and is Justice of the Peace, Precinct No. 1, of Harris County.
On June 5, 1962, Mr. Briscoe filed a 'Petition for a Court of Inquiry' with appellee Ragan. In the petition he stated he petitioned for the inquiry to be held pursuant to Article 886, Code of Criminal Procedure 1925. The inquiry was to be concerning 'the processing of various estates by the Probate Court.' In this connection appellee Briscoe stated he had good cause to believe that criminal offenses had been committed against the laws of Texas. He asked that witnesses be called and examined in relation thereto.
On the same day appellee Regan entered his order reciting he had good cause to believe that offenses had been committed against the laws of Texas and he desired to inquire into matters set forth in the petition filed. The order set the hearing for June 14, 1962 at 10 a. m.
On June 12, appellant filed his petition for injunctive relief against appellees, seeking first a temporary injunction and after trial on the merits a permanent injunction. The contention of appellant was that Article 886, C.C.P., and Article 887, C.C.P., the latter article being the one conferring contempt power on the Justice of the Peace holding the inquiry, were unconstitutional. It was asserted that appellee Briscoe intended to accuse appellant of offenses against the laws of Texas of the grade of a felony. It was asserted that in such circumstance of use of Article 886, appellant would be denied the following rights under Article 1, Section 10 of the Constitution of Texas:
1. To know the nature and cause of the accusation against him, and to have a copy thereof.
2. To have compulsory process for obtaining witnesses in his favor.
3. To not answer for a criminal offense unless under indictment of a grand jury.
Appellant further alleged that if it be true that charges were to be filed against him as above alleged, he was entitled not to be deprived of liberty, privileges and immunities except by 'due course of the law of the land.' Additionally, it was alleged that appellant and numerous other witnesses had been subpoenaed and the above statutes are unconstitutional as in violation of Article 1, Sections 10 and 19, in that the inquiry would involve appellant in criminal prosecutions that would deprive him of certain rights, privileges and immunities.
The above three rights are rested and the following are added:
1. He would be deprived of the rules of procedure to which he would be entitled in a hearing before a Criminal District Court.
2. He would be deprived of the privilege and immunity to have investigation of the alleged offenses on his part investigated in the secrecy of the grand jury.
3. He would be deprived of the right of cross-examination of witnesses against him.
4. He would be deprived of all the privileges to which he is entitled by the due course of the law of the land.
5. He would be subjected to a hearing for which no rules of procedure or of evidence have been prescribed, in violation of his privileges and immunities under the law of the land.
Irreparable loss to appellant is alleged in that there is no adequate remedy to secure to him the above alleged privileges and immunities other than by enjoining of the proceedings. Further, it is alleged that a grand jury is available and has in fact begun investigation. There is a specific prayer that appellees be enjoined from proceeding with the inquiry, and that Articles 886 and 887, C.C.P., be declared unconstitutional. Then there is a general prayer for relief.
The petition is sworn to by appellant.
The substance of the answer is that appellee Ragan would be derelict in performance of the duty imposed on him by Article 886 if he did not proceed since he had good cause to believe criminal offenses had been committed, that the statutes were constitutional and that appellant was neither a defendant nor an accused. There was also a general denial.
A hearing was had at which appellee Ragan testified. He testified that at the inquiry to be held no witness, including appellant, would be allowed representation by counsel. Counsel could be present but would not be allowed to participate in the proceedings. He could not make objections or cross-examine witnesses. The witnesses who desired to do so would not be allowed to cross-examine other witnesses. No one except the District Attorney would be allowed to call witnesses and only the District Attorney or his assistant would be allowed to examine the witnesses. This procedure was to be followed because this was purely an investigation and not a criminal prosecution. The purpose was to find out if any criminal offense had been committed. The inquiry was called because requested by Mr. Briscoe who, in his petition requesting it, swore he had good cause to believe offenses against the law had been committed. Judge Ragan knew nothing other than the representations of Mr. Briscoe. No alleged facts were revealed to him by Mr. Briscoe. The hearing was to be public.
Mr. Briscoe confirmed Judge Ragan's testimony and said he would object to any other attorney participating in the inquiry. He would object to any witnesses being called other than those presented by the District Attorney. He would object to cross-examination of witnesses. He likened the proceedings to a grand jury investigation where a person is entitled to none of the rights asserted by appellant. His view was there was no accused but this was purely an investigatory proceeding. He did not know the details of any offense committed. He had talked generally to some witness. There was a grand jury in session. He chose the court of inquiry because of the volume of work with other cases that the grand jury had. If this investigation were taken before it a backlog of cases would occur. He could ask for another grand jury to be empaneled. One witness had appeared before the grand jury. The hearing was to be public. By having the court of inquiry, his office could more leisurely pursue the investigation.
The substance of Judge McClelland's testimony was to complain of a public investigatory proceeding where he would be unable to defend himself against testimony that might be given because he could not call witnesses and could not cross-examine any called. He would be willing to meet the District Attorney in a forum where he was accorded these rights. He stated he did not know whether he could be hurt any more than he already was as a result of newspaper publicity that had occurred.
Article 886, C.C.P., provides in substance that if a justice of the peace has good cause to believe that an offense against the laws of the State has been or is about to be committed, he may summon and examine any witness in relation thereto. It further provides that if from the statement of any witness it appears an offense has been committed, the statement of the witness shall be reduced to writing and sworn to and a warrant shall be issued by the justice for the arrest of the offender the same as if a complaint had been made and filed. Article 887 provides the justice of the peace may hold a witness in contempt of court who refuses to appear and testify and may fine the witness not more than $100.00 and attach and imprison the witness until he testifies.
It will be thus seen from a reading of Article 886 that no express provision is made with regard to whether the investigation shall be public or secret, nor is there a provision with regard to whether witnesses shall be entitled to counsel or the right of cross-examination of witnesses who may accuse them of some crime. The appellees have interpreted the statute, since there is no provision prohibiting such, as authorizing a public ex parte proceeding at which witnesses are examined and neither the witnesses nor someone accused by them can be represented by counsel...
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In re McClelland
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