McGregor v. Clawson, s. 5301
| Decision Date | 21 February 1974 |
| Docket Number | 5303,Nos. 5301,s. 5301 |
| Citation | 506 S.W.2d 922 |
| Parties | Frank B. McGREGOR, Petitioner, v. James F. CLAWSON et al., Respondents. |
| Court | Texas Court of Appeals |
Beard & Kultgen, Waco, for petitioner.
Davis Grant, Austin, for respondents.
This cause encompasses applications for writs of mandamus and prohibition growing out of a disbarment suit.
The pertinent background facts leading up to the matters now before us appear to be undisputed, and are as follows: Petitioner Frank B. McGregor is and has been at all times material to this controversy a resident of Hill County, Texas, and an attorney at law duly licensed under the laws of the State of Texas. He is and has been at all times material hereto the duly elected, qualified, and acting District Attorney in and for the 66th Judicial District of Texas, composed of Hill County, Texas.
A petition for disbarment was originally filed in Hill County, Texas, at the behest of the appropriate State Bar Grievance Committee by the State Bar of Texas against Petitioner McGregor, and non-suited by the State Bar in November of 1972. A new petition was filed against McGregor at the behest of the Grievance Committee in February of 1973. Trial was had to a jury in June of 1973, which lasted approximately two weeks, and resulted in a mistrial because of the inability of the jury to agree upon a verdict. In September 1973, the State Bar moved the trial court for a change of venue on the grounds of prejudice against the Plaintiff State Bar and a combination against it instigated by influential persons so that Plaintiff could not expect or obtain a fair and impartial trial. This motion was controverted by McGregor. After a hearing, Respondent, the Honorable James F. Clawson, the trial judge presiding over the 66th Judicial District Court of Hill County, Texas, granted the motion for change of venue, and ordered the cause transferred to the 52nd Judicial District Court of Coryell County, Texas, which order reads as follows:
'Findings of Fact
Be it remembered that on this the 30th day of October, 1973 came on to be considered the motion of the plaintiff herein for Change of Venue, and the Court having heard evidence and argument of counsel finds the following facts, to-wit:
1. The publicity in Hill County, Texas and surrounding areas concerning this and related cases has been very extensive and highly partisan in nature.
2. The defendant has been involved in very intensive political activity in Hill County during the pendency of this cause.
3. A polarization of opinion has occurred in Hill County, Texas to such an extent that a substantial segment of the population of the county is, either consciously or subconsciously, committed to being either 'for' or 'against' Frank McGregor.
4. There exists in Hill County so great a prejudice against the plaintiff that the plaintiff cannot obtain a fair and impartial trial.
5. There exists in Hill County so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial.
6. The defendant Frank McGregor deliberately participated in the publicizing of this case by writing and procuring the distribution of his 'Open Letter to the Citizens of Hill County' during the pendency of this case and at a time when public interest was at a peak on June 21, 1973, thereby estopping himself from complaining of plaintiff's motion.
'CONCLUSIONS OF LAW
1. The Right to Change of Venue as provided by Rule 257 of the (Texas) Rules of Civil Procedure, and Article 3, #45 of the Constitution of the State of Texas (Vernon's Ann.St) is not prohibited by the opening sentence of Article 320a--1, Section 6 (Vernon's Ann.Civ.St.).
2. The Right to Change of Venue is not prohibited by Section 5 of Article 320a--1.
3. Both Section 5 and Section 6 of Article 320a--1 are subject to the broader considerations contemplated by Rule 257 and Article 3, #45 of the Constitution.
4. So much of Section 6 of Article 320a--1 as reads, 'nor shall any attorney be Suspended until such attorney has been convicted of the charge pending against him, in a court of competent jurisdiction in the county of such attorney's residence' is vague and indefinite in that the use of the term suspended does not contemplate the full range of discipline applicable in disbarment cases (reprimand, suspension, or disbarment). If taken in the strict legal sense, this prohibition would seem not to prohibit the Change of Venue in a case for Disbarment, and might be taken to be only a limitation upon the discipline to be administered in a case tried outside the county of the defendant's residence. If taken in the sense of common usage, the term suspension could be taken to include 'reprimand, suspension, or disbarment'.
5. The Court has an inherent, constitutional, and statutory right to change venue in order to afford a fair and impartial tribunal for the trial of the case. The wording of Section 6, if given the effect the defendant urges, would create an unreasonable restriction upon the court's jurisdiction to change venue in order to insure to all parties a fair and impartial trial. It would also have the effect of creating a privileged class composed of licensed attorneys, placing them beyond the reach of what is considered to be one of the very basic processes of the judicial branch of our system of government. This classification is clearly unreasonable and cannot be justified as being necessary in proceedings of this nature .
6. The defendant in this case could without question secure a change of venue, should he desire to do so.
For the reasons listed in the foregoing paragraphs, so much of Section 6 of Article 320a--1 as is set out in No. 4 is found to be unconstitutional when applied to the facts in this case.
7. The right to trial by jury in a county of one's residence is subject to waiver, and the defendant by his conduct in publishing his 'Open Letter to the Citizens of Hill County's effectively waived any right he had to object to the motion of the plaintiff herein.
For the foregoing reasons, the motion of the plaintiff for Change of Venue is granted, and this cause of order transferred to the 52nd Judicial District in Coryell County, Texas for trial.
Entered this 9th day of November.
/s/ J. F. Clawson
Presiding Judge
66th Judicial District'
After the entry of the trial court's order as hereinabove quoted, Petitioner McGregor filed in the Tenth Court of Civil Appeals a Motion for leave to file his application for Writ of Prohibition, followed three days later by his application for leave to file his application for Writ of Mandamus, in effect asserting that the trial court's order changing venue was and is a void order, that said order is a nonappealable order, and that the trial court has refused to proceed to trial in Hill County. In Petitioner's applications and briefs, he prays that said court should be prohibited from changing the venue out of Hill County; that said court be required to vacate his order purporting to so change the venue from Hill County, 'to retain the same for trial on the docket of the 66th District Court,' and that said court be required to proceed to trial .
In arriving at a disposition of the problems presented, we deem it necessary to quote from the following provisions:
Article 320a--1, Vernon's Civil Statutes, is cited as the State Bar Act, which among other things creates the State Bar, declares it to be an administrative agency of the Judicial Department of the state, provides for its government and sets out its powers, particularly over its membership, composed of the persons licensed to practice law in the State of Texas. It authorizes the Supreme Court to prepare and propose rules and regulations for disciplining, suspending and disbarring attorneys at law, among other things.
Then in Sections 5 and 6 of the State Bar Act, the Legislature saw fit to make the following provisions:
'Right of trial by jury not to be abrogated in disbarment proceedings.
'Venue; conviction in court prerequisite to suspension; appeal; probation; disbarment.
Article 3, Section 45 of the Texas Constitution provides:
'The power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law; and the Legislature shall pass laws for that purpose.'
Rule 257, Texas Rules of Civil Procedure, provides:
'A change of venue may be granted in civil causes...
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