Narro Wrhse., Inc. v. Kelly, 1000

• Decision Date: 06 November 1975
• Docket Number: No. 1000,1000
• Citation: 530 S.W.2d 146
• Parties: NARRO WAREHOUSE, INC., et al., Appellants, v. Judge Walter M. KELLY, Appellee.
• Court: Texas Court of Appeals

Page 146

530 S.W.2d 146

NARRO WAREHOUSE, INC., et al., Appellants, v. Judge Walter M. KELLY, Appellee.

No. 1000.

Court of Civil Appeals of Texas,

Corpus Christi.

Nov. 6, 1975.

Rehearing Denied Dec. 9, 1975.

James S. Bates, Bates, Hendrix & Marsh, Edinburg, for appellants.

Oscar B. McInnis, Edinburg, Travis Hiester, McAllen, for appellee.

OPINION

BISSETT, Justice.

This is an appeal from a judgment of a District Court that dismissed a petition for mandamus against the Judge of a County Court at Law for want of jurisdiction.

Narro Warehouse, Inc. and Sonora B. Narro, defendants in a condemnation suit that was pending in the County Court at Law of Hidalgo County, Texas, Filed a petition for mandamus in the 92nd District Court of Hidalgo County, Texas, against the Judge of the County Court at Law of Hidalgo County, to compel him to disqualify himself from sitting as a judge in the condemnation case because of interest (Count I), and to vacate and set aside a pre-trial order which required Narro Warehouse, Inc. to deliver certified copies of its income tax returns for the years 1972 and 1973 to the State of Texas, plaintiff in the condemnation case (Count II).

The District Court, following a hearing on a plea to the jurisdiction, sustained the plea and dismissed the petition for mandamus. Narro Warehouse, Inc. and Sonora B. Narro have appealed.

Copies of the pleadings in the condemnation case are not in the record. No evidence was introduced at the hearing on the plea to the jurisdiction.

On April 6, 1973, the State of Texas filed a condemnation suit in the County Court at Law of Hidalgo County, Texas, Against Narro Warehouse, Inc. and Sonora B. Narro. The suit was docketed as Cause No. CL--6678. The Honorable Walter M. Kelly was and is the judge of that court at all times pertinent to this appeal.

In September 1974, Narro Warehouse, Inc. and Sonora B. Narro brought an action in the United States District Court for the Southern District of Texas, Brownsville Division, which they say was to obtain 'certain declaratory action, primarily upon environmental grounds'. Judge Kelly, the County Commissioners, the County Judge, the Sheriff, and the County Clerk, all of Hidalgo County, among others, were named as defendants in that action. Travis Hiester, Esq., the attorney who represents the State of Texas in the condemnation case (and in this appeal), filed an answer in the Federal Court action in behalf of Judge Kelly and the Hidalgo County officials and represented them at a hearing, which was held on November 25, 1974. The record is silent as to the present status of the Federal Court action.

Sometime after November 25, 1974, appellants filed a motion in Cause No. CL--6678 that Judge Kelly disqualify himself from sitting in the condemnation case, on the ground that his representation in the Federal Court case by Mr. Hiester 'constitutes acceptance of a gift in the nature of services of a distinct monetary value and as such constitutes a valuable gift by a litigant to a judge'. Judge Kelly, in the order which he signed on December 26, 1974, refused to disqualify himself, and, in disposing of another motion filed by the State requesting that appellants furnish it with certain documents, ordered that Narro Warehouse, Inc. furnish the State copies of its federal income tax returns 'for the years 1972 and 1973, which have been certified by the proper authorities of the Internal Revenue Service'.

Appellants then filed a verified petition in the District Court, wherein they sought a writ of mandamus to compel Judge Kelly 'to disqualify himself from sitting as a judge in Cause No. CL--6678' (Count I), and 'to vacate and set aside the order of December 26, 1974, requiring relators (appellants) herein to provide the State of Texas with certified copies of Federal Income Tax (Returns) for the years 1972 and 1973' (Count II).

Judge Kelly's unverified answer consisted of pleas to the jurisdiction, in abatement, and a general denial; it was signed by the Honorable Oscar B. McInnis, Criminal District Attorney of Hidalgo County. Judge Kelly was represented by Mr. McInnis at the hearing on the plea to the jurisdiction. The issue raised by the plea in abatement was resolved when the State was permitted to intervene in the mandamus action.

Since neither Judge Kelly, the defendant, nor the State, the intervenor, filed verified pleadings which denied the allegations contained in appellants' verified petition for mandamus, all allegations of fact contained in the petition must be accepted as true. Burgemeister v. Anderson, 113 Tex. 495, 259 S.W. 1078 (1924); Myers v Zoning and Planning Commission of City of West University Place, 521 S.W.2d 322 (Tex.Civ.App.--Houston (1st Dist.) 1975, writ ref'd n.r.e.).

In order to invoke the jurisdiction of a District Court to hear and determine the issues raised in a petition for mandamus, it is incumbent upon the complaining party to state in his petition the necessary facts clearly, fully, and unreservedly, by direct and positive allegations. Alice National Bank v. Edwards, 383 S.W.2d 482 (Tex.Civ.App.--Corpus Christi 1964, writ ref'd n.r.e.). Statements which are no more than conclusions or opinions are insufficient. Anderson v. Polk, 117 Tex. 73, 297 S.W. 219 (1927). It has also been held that the failure of a petition to allege a cause of action for mandamus is fundamental error and must be noticed by the appellate court. Milner v. Brewer-Monaghan Mercantile Co., 188 S.W. 49 (Tex.Civ.App.--Texarkana 1916, no writ).

We first consider the question of whether the record shows that the jurisdiction of the District Court was invoked to hear and determine the issue of the asserted disqualification of Judge Kelly to sit as a judge in Cause No. CL--6678. The only allegation in the petition which relates to that issue is that the judge 'is interested in the cause of action as he accepted gift of monetary value, the services of an attorney on his behalf without fee in a cause of action against him in another court involving litigants presently engaged in active litigation in his own court.'

A judge is prohibited by the Constitution and by statute from sitting in a case: 'wherein he may be interested'; or where either of the parties is related to him by affinity or consanguinity within such degree as prescribed by law; or when he shall have been counsel in the case. Tex.Const. Art. V, § 11; Tex.Rev.Civ.Stat.Ann. Art. 15 (1969).

It is a rule of long standing that the interest required for disqualification of a judge is one of Pecuniary nature at the tim of suit. City of Dallas v. Peacock, 89 Tex. 58, 33 S.W. 220 (1895); Taylor v. Williams, 26 Tex. 583 (1863); Nueces County Drainage & Conservation District No. 2 v. Bevly, 519 S.W.2d 938 (Tex.Civ.App.--Corpus Christi 1975, writ ref'd n.r.e.). A pecuniary interest sufficient to disqualify a judge from sitting in a case must be a direct, real and certain interest in the subject matter of that case, which is capable of monetary valuation. Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515 (1930); Elliott v. Scott, 119 Tex. 94, 25 S.W.2d 150 (1930); Hubbard v. Hamilton County, 113 Tex. 547, 261 S.W. 990 (1924). Moreover, the pecuniary gain or loss to the judge must be an immediate result of the judgment to be rendered in the pending case, and not result remotely, or at some future date, from the general operation of law upon the status fixed by the judgment. Love v. Wilcox, supra; Moody v. City of University Park, 278 S.W.2d 912 (Tex.Civ.App.--Dallas 1955, writ ref'd n.r.e.); Wagner v. State, 217 S.W.2d 463 (Tex.Civ.App.--San Antonio 1948, writ ref'd n.r.e.).

The allegation that the free legal services rendered by Mr. Hiester to Judge Kelly in the Federal Court action is not an allegation of any direct, real and certain interest in the subject matter of...