Mora v. Ferguson
| Decision Date | 12 February 1947 |
| Docket Number | No. A-1133.,A-1133. |
| Citation | 199 S.W.2d 759 |
| Parties | MORA et al. v. FERGUSON. |
| Court | Texas Supreme Court |
Rogers Kelley, of Edinburg, pro se, L. Hamilton Lowe, of Austin, and Cantey, Hanger, McMahon, McKnight & Johnson, Gillis A. Johnson and Carlisle Cravens, all of Fort Worth, for relator.
Price Daniel, Atty. Gen., Joe R. Greenhill, Asst. Atty. Gen., and S. J. Isaacks, of El Paso, amici curiae.
This is an original petition for writs of mandamus and prohibition filed by Ciprian Mora and Senator Rogers Kelley, relators, against Hon. Bryce Ferguson, District Judge of the 92d Judicial District of Texas, respondent.
About December 6, 1945, Mora was arrested on accusation of rape, and was duly indicted therefor in Judge Ferguson's court on March 1, 1946. Upon his arrest Mora retained relator Kelley, a member of the State Bar of Texas, to represent him, and Kelley has since continued as Mora's sole counsel. Kelley was at the time of his employment State Senator for the 27th Senatorial District of Texas; he has continued in that office since his employment and is now serving as a member of the 50th Legislature of the State of Texas, which convened on January 14, 1947.
After his indictment Mora was released on bond, but his case was not set for trial at either the March or May terms of Judge Ferguson's court. At the September term state and defense counsel agreed to a setting for October 28, 1946, but no formal setting was made by the court. Later it was discovered that the agreed date would come in vacation, whereupon the case was passed to December 9, 1946, with consent of the court. On or about December 1 the case was reset for December 16, at the request of Senator Kelley, to permit him to look after matters pending in another court during the week of December 9. After December 16 and 17 had been consumed in the consideration of motions to quash the indictment and for continuance on account of the absence of defense witnesses, Judge Ferguson granted Mora's motion for continuance which, relators allege, "was based upon the absence of material witnesses". In his answer respondent says that while he was giving consideration to Mora's motions the near approach of Christmas and New Year was "looming larger and larger" in the court's mind together with the annoyance and inconvenience that a trial so near to Christmas would occasion the venire, the jurors and the public; that while he was considering Mora's motion for continuance on the account of absent witnesses, Mora filed a supplemental motion for continuance on the ground of "the proximity of Christmas and New Year holidays and the inconvenience of the jurors; and thereupon Respondent indicated his purpose to continue said cause by reason of such exigencies, but at the same time making it clear to the defendant and his counsel that the court was overruling their contentions concerning the absence of * * * witnesses, and that the continuance was being granted since the defendant was requesting it." According to relator's petition, "At the time of the granting of such motion, in open court, and while Respondent was on the bench, he stated that the case would be set for trial January 6, 1947, the first day of the present term of said court, and further stated that he would not entertain any motion for continuance based upon the provisions of Article 2168a [Vernon's Ann.Civ.St.], and stated to Petitioners that when the case was called for trial on January 6, 1947, he was going to force them to trial, `statute or no statute.'" According to respondent's answer, "Before entering such order for continuance as requested to the January Term, Respondent reminded the defendant's counsel, Rogers Kelley, that as most there was but a few days available in said January Term before the convening of the Legislature and reminding said attorney that he was then and would continue to be a member of the Senate and of such Legislature and asked him if he was in earnest and in good faith asking that the case be put off until the January Term rather than tried in the December Term, and Senator Kelley stated to the court that he had nothing to say and refused to make any statement concerning such matters, and when the court asked him if he really had in mind that the case should be continued to some time past the session of the Legislature he again refused to make any commitment or statement with respect to his intentions or desires in that particular."
When his case was called on January 6, 1947, Mora filed a motion asking the court "to continue this cause until ten days after the adjournment of the next regular session of the Legislature which convenes on January 14, 1947, in conformity with the mandatory provisions of Article 2168a, Revised Civil Statutes of Texas [Vernon's Ann.Civ.St.]." In support of his motion he made affidavit that Senator Kelley was the sole and only attorney employed by him, "that he is financially unable to employ other counsel even if he wanted to, which he does not", and that "he has at all times relied solely upon said attorney to defend him in this cause, and will continue to do so", and that since his attorney would be in attendance upon the sessions of the Legislature on and after January 14, 1947, not to continue his case as prayed would be to deprive him of the benefit of counsel in violation of the Constitution.
In their petition filed in this court on January 7, 1947, relators allege that Mora's motion had been that day overruled by respondent, despite the terms of Art. 2168a, supra; that respondent "thereupon ordered Petitioners to proceed to trial in said cause, and unless restrained by this Honorable Court, will force Petitioner Mora to stand trial irrespective of whether or not he is represented by counsel of his own choice, and will force Petitioner Kelley either to abandon his client in the midst of the trial of a capital case, or absent himself from his duties as a member of the Legislature of this State."
Upon that petition, this court entered an order staying any further proceedings in Mora's case in Judge Ferguson's court until this cause could be determined.
In his answer filed in this court on January 17, respondent says that since "the Legislative Session has begun, Respondent has no idea or intention of calling up said case for trial until after adjournment of the Legislative Session, but at the time at which the criminal case pending before the Respondent was set for trial on the 6th day of January, it then appeared that there remained ample time in which in the normal course of events to conclude said trial before the Legislative Session would begin; and it appeared that whatever inconvenience might result to defendant's counsel by reason of the near approach of the Legislative Session was one which he was inviting by reason of his request for a continuance from the December 16th setting upon the ground of inconvenience to all parties concerned by reason of the proximity of the Christmas and New Year Holidays." He contends that these circumstances constituted a waiver and estoppel against relators to urge the statute as a ground for continuance on January 6. Then respondent urges that if Art. 2168a, supra, undertakes to impose upon the judicial branch of the government any rule of procedure different from the ordinary rule of waiver and estoppel, it constitutes an unwarranted invasion by the Legislature of the functions of the judiciary. He asserts, also, that the statute in question is unconstitutional in that it undertakes to add to the privileges and immunities given members of the Legislature by express constitutional provision.
Art. 2168a, Vernon's Annotated Civil Statutes, being Acts 1929, 41st Leg., p. 17, ch. 7, sec. 1, Acts 1941, 47th Leg., p. 69, ch. 56, sec. 1, is as follows:
Prior to its amendment in 1941, this statute was materially different in that under the Act of 1929,...
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Hatten v. City of Houston, 14255
...in failing to sustain the motion for continuance and in proceeding with the trial thereafter. Art 2168a, Rev.Civ.Stat.; Mora v. Ferguson, 145 Tex. 498, 199 S.W.2d 759; Government Services Ins. Underwriters et al. v. Hon. Herman Jones, District Judge, 6 Tex.S.Ct. J. 487. Since this is a proc......
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Collier v. Poe
...was in reaction to the decisions in Davis, Burton and Burkhart, supra, by the Court of Criminal Appeals. See Mora v. Ferguson, 145 Tex. 498, 199 S.W.2d 759, 762 (1947). No mention in the bill was made of said Rule 254 which was to become effective later that year and applicable only to civi......
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In re North American Refractories Co.
...814 S.W.2d at 213. Legislative continuances are subject to mandamus because a statute makes them mandatory. Mora v. Ferguson,a145 Tex. 498, 199 S.W.2d 759, 762-63 (1947); see Tex. Civ. Prac. & Rem. Code Ann. § 30.003 (Vernon 1997). We must decide whether a similarly mandatory law applies in......
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Schwartz v. Jefferson
...amended in 1941, was held to require a continuance of a pending criminal suit upon motion of a legislator attorney in Mora v. Ferguson, 145 Tex. 498, 199 S.W.2d 759 (1947). A similar holding with reference to a Pending civil suit was made in Government Services Insurance Underwriters v. Jon......